Last updated on March 31st, 2023 at 07:50 am
Title 25—Indians–Volume 1
CHAPTER I—BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
SUBCHAPTER A—PROCEDURES AND PRACTICE
PART 1—APPLICABILITY OF RULES OF THE BUREAU OF INDIAN AFFAIRS
§ 1.1 [Reserved]
The regulations in chapter I of title 25 of the Code of Federal Regulations are of general application. Notwithstanding any limitations contained in the regulations of this chapter, the Secretary retains the power to waive or make exceptions to his regulations as found in chapter I of title 25 CFR in all cases where permitted by law and the Secretary finds that such waiver or exception is in the best interest of the Indians.
§ 1.3 Scope.
Chapters I and II of this title contain the bulk of the regulations of the Department of the Interior of general application relating to Indian affairs. Subtitle B, chapter I, title 43 of the Code or Federal Regulations contains rules relating to the relationship of Indians to public lands and townsites. Subtitle A of title 43 CFR has application to certain aspects of Indian affairs and, among other things, contains procedural rules for appellate and other administrative review and for practice before the Department of the Interior, of which the Bureau of Indian Affairs is a part. Indian health matters are covered in 42 CFR part 36. Title 30 CFR contains regulations on oil and gas and other mining operations, which, under certain circumstances, may be applicable to Indian resources.
§ 1.4 State and local regulation of the use of Indian property.
(a) Except as provided in paragraph (b) of this section, none of the laws, ordinances, codes, resolutions, rules or other regulations of any State or political subdivision thereof limiting, zoning or otherwise governing, regulating, or controlling the use or development of any real or personal property, including water rights, shall be applicable to any such property leased from or held or used under agreement with and belonging to any Indian or Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States.
(b) The Secretary of the Interior or his authorized representative may in specific cases or in specific geographic areas adopt or make applicable to Indian lands all or any part of such laws, ordinances, codes, resolutions, rules or other regulations referred to in paragraph (a) of this section as he shall determine to be in the best interest of the Indian owner or owners in achieving the highest and best use of such property. In determining whether, or to what extent, such laws, ordinances, codes, resolutions, rules or other regulations shall be adopted or made applicable, the Secretary or his authorized representative may consult with the Indian owner or owners and may consider the use of, and restrictions or limitations on the use of, other property in the vicinity, and such other factors as he shall deem appropriate.
§ 1.10 Availability of forms.
Forms upon which applications and related documents may be filed and upon which rights and privileges may be granted may be inspected and procured at the Bureau of Indian Affairs, Washington, DC, and at the office of any Area Director or Agency Superintendent.
PART 2—APPEALS FROM ADMINISTRATIVE ACTIONS
§ 2.1 Information collection.
In accordance with Office of Management and Budget regulations in 5 CFR 1320.3(c), approval of information collections contained in this regulation is not required.
§ 2.2 Definitions.
Appeal means a written request for review of an action or the inaction of an official of the Bureau of Indian Affairs that is claimed to adversely affect the interested party making the request.
Appellant means any interested party who files an appeal under this part.
Interested party means any person whose interests could be adversely affected by a decision in an appeal.
Legal holiday means a Federal holiday as designated by the President or the Congress of the United States.
Notice of appeal means the written document sent to the official designated in this part, indicating that a decision is being appealed (see § 2.9).
Person includes any Indian or non-Indian individual, corporation, tribe or other organization.
Statement of reasons means a written document submitted by the appellant explaining why the decision being appealed is in error (see § 2.10).
§ 2.3 Applicability.
(a) Except as provided in paragraph (b) of this section, this part applies to all appeals from decisions made by officials of the Bureau of Indian Affairs by persons who may be adversely affected by such decisions.
(b) This part does not apply if any other regulation or Federal statute provides a different administrative appeal procedure applicable to a specific type of decision.
§ 2.4 Officials who may decide appeals.
The following officials may decide appeals:
(a) An Area Director, if the subject of appeal is a decision by a person under the authority of that Area Director.
(b) An Area Education Programs Administrator, Agency Superintendent for Education, President of a Post-Secondary School, or the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs), if the appeal is from a decision by an Office of Indian Education Programs (OIEP) official under his/her jurisdiction.
(c) The Assistant Secretary—Indian Affairs pursuant to the provisions of § 2.20 of this part.
(d) A Deputy to the Assistant Secretary—Indian Affairs pursuant to the provisions of § 2.20(c) of this part.
(e) The Interior Board of Indian Appeals, pursuant to the provisions of 43 CFR part 4, subpart D, if the appeal is from a decision made by an Area Director or a Deputy to the Assistant Secretary—Indian Affairs other than the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs).
§ 2.5 Appeal bond.
(a) If a person believes that he/she may suffer a measurable and substantial financial loss as a direct result of the delay caused by an appeal, that person may request that the official before whom the appeal is pending require the posting of a reasonable bond by the appellant adequate to protect against that financial loss.
(b) A person requesting that a bond be posted bears the burden of proving the likelihood that he/she may suffer a measurable and substantial financial loss as a direct result of the delay caused by the appeal.
(c) In those cases in which the official before whom an appeal is pending determines that a bond is necessary to protect the financial interests of an Indian or Indian tribe, that official may require the posting of a bond on his/her own initiative.
(d) Where the official before whom an appeal is pending requires a bond to be posted or denies a request that a bond be posted, he/she shall give notice of his/her decision pursuant to § 2.7.
§ 2.6 Finality of decisions.
(a) No decision, which at the time of its rendition is subject to appeal to a superior authority in the Department, shall be considered final so as to constitute Departmental action subject to judicial review under 5 U.S.C. 704, unless when an appeal is filed, the official to whom the appeal is made determines that public safety, protection of trust resources, or other public exigency requires that the decision be made effective immediately.
(b) Decisions made by officials of the Bureau of Indian Affairs shall be effective when the time for filing a notice of appeal has expired and no notice of appeal has been filed.
(c) Decisions made by the Assistant Secretary—Indian Affairs shall be final for the Department and effective immediately unless the Assistant Secretary—Indian Affairs provides otherwise in the decision.
§ 2.7 Notice of administrative decision or action.
(a) The official making a decision shall give all interested parties known to the decisionmaker written notice of the decision by personal delivery or mail.
(b) Failure to give such notice shall not affect the validity of the decision or action but the time to file a notice of appeal regarding such a decision shall not begin to run until notice has been given in accordance with paragraph (c) of this section.
(c) All written decisions, except decisions which are final for the Department pursuant to § 2.6(c), shall include a statement that the decision may be appealed pursuant to this part, identify the official to whom it may be appealed and indicate the appeal procedures, including the 30-day time limit for filing a notice of appeal.
§ 2.8 Appeal from inaction of official.
(a) A person or persons whose interests are adversely affected, or whose ability to protect such interests is impeded by the failure of an official to act on a request to the official, can make the official’s inaction the subject of appeal, as follows:
(1) Request in writing that the official take the action originally asked of him/her;
(2) Describe the interest adversely affected by the official’s inaction, including a description of the loss, impairment or impediment of such interest caused by the official’s inaction;
(3) State that, unless the official involved either takes action on the merits of the written request within 10 days of receipt of such request by the official, or establishes a date by which action will be taken, an appeal shall be filed in accordance with this part.
(b) The official receiving a request as specified in paragraph (a) of this section must either make a decision on the merits of the initial request within 10 days from receipt of the request for a decision or establish a reasonable later date by which the decision shall be made, not to exceed 60 days from the date of request. If an official establishes a date by which a requested decision shall be made, this date shall be the date by which failure to make a decision shall be appealable under this part. If the official, within the 10-day period specified in paragraph (a) of this section, neither makes a decision on the merits of the initial request nor establishes a later date by which a decision shall be made, the official’s inaction shall be appealable to the next official in the process established in this part.
§ 2.9 Notice of an appeal.
(a) An appellant must file a written notice of appeal in the office of the official whose decision is being appealed. The appellant must also send a copy of the notice of appeal to the official who will decide the appeal and to all known interested parties. The notice of appeal must be filed in the office of the official whose decision is being appealed within 30 days of receipt by the appellant of the notice of administrative action described in § 2.7. A notice of appeal that is filed by mail is considered filed on the date that it is postmarked. The burden of proof of timely filing is on the appellant. No extension of time shall be granted for filing a notice of appeal. Notices of appeal not filed in the specified time shall not be considered, and the decision involved shall be considered final for the Department and effective in accordance with § 2.6(b).
(b) When the appellant is an Indian or Indian tribe not represented by counsel, the official who issued the decision appealed shall, upon request of the appellant, render such assistance as is appropriate in the preparation of the appeal.
(c) The notice of appeal shall:
(1) Include name, address, and phone number of appellant.
(2) Be clearly labeled or titled with the words “NOTICE OF APPEAL.”
(3) Have on the face of any envelope in which the notice is mailed or delivered, in addition to the address, the clearly visible words “NOTICE OF APPEAL.”
(4) Contain a statement of the decision being appealed that is sufficient to permit identification of the decision.
(5) If possible, attach either a copy of the notice of the administrative decision received under § 2.7, or when an official has failed to make a decision or take any action, attach a copy of the appellant’s request for a decision or action under § 2.8 with a written statement that the official failed to make a decision or take any action or to establish a date by which a decision would be made upon the request.
(6) Certify that copies of the notice of appeal have been served on interested parties, as prescribed in § 2.12(a).
§ 2.10 Statement of reasons.
(a) A statement of reasons shall be filed by the appellant in every appeal, and shall be accompanied by or otherwise incorporate all supporting documents.
(b) The statement of reasons may be included in or filed with the notice of appeal.
(c) If the statement of reasons is not filed with the notice of appeal, the appellant shall file a separate statement of reasons in the office of the official whose decision is being appealed within 30 days after the notice of appeal was filed in that office.
(d) The statement of reasons whether filed with the notice of appeal or filed separately should:
(1) Be clearly labeled “STATEMENT OF REASONS”.
(2) Have on the face of any envelope in which the statement of reasons is mailed or delivered, in addition to the address, the clearly visible words “STATEMENT OF REASONS”.
§ 2.11 Answer of interested party.
(a) Any interested party wishing to participate in an appeal proceeding should file a written answer responding to the appellant’s notice of appeal and statement of reasons. An answer should describe the party’s interest.
(b) An answer shall state the party’s position or response to the appeal in any manner the party deems appropriate and may be accompanied by or otherwise incorporate supporting documents.
(c) An answer must be filed within 30 days after receipt of the statement of reasons by the person filing an answer.
(d) An answer and any supporting documents shall be filed in the office of the official before whom the appeal is pending as specified in § 2.13.
(e) An answer should:
(1) Be clearly labelled or titled with the words “ANSWER OF INTERESTED PARTY.”
(2) Have on the face of any envelope in which the answer is mailed or delivered, in addition to the address, the clearly visible words “ANSWER OF INTERESTED PARTY,” and
(3) Contain a statement of the decision being appealed that is sufficient to permit identification of the decision.
§ 2.12 Service of appeal documents.
(a) Persons filing documents in an appeal must serve copies of those documents on all other interested parties known to the person making the filing. A person serving a document either by mail or personal delivery must, at the time of filing the document, also file a written statement certifying service on each interested party, showing the document involved, the name and address of the party served, and the date of service.
(b) If an appeal is filed with the Interior Board of Indian Appeals, a copy of the notice of appeal shall also be sent to the Assistant Secretary—Indian Affairs. The notice of appeal sent to the Interior Board of Indian Appeals shall certify that a copy has been sent to the Assistant Secretary—Indian Affairs.
(c) If the appellant is an Indian or Indian tribe not represented by counsel, the official with whom the appeal is filed (i.e., official making the decision being appealed) shall, in the manner prescribed in this section, personally or by mail serve a copy of all appeal documents on the official who will decide the appeal and on each interested party known to the official making such service.
(d) Service of any document under this part shall be by personal delivery or by mail to the record address as specified in § 2.14. Service on a tribe shall be to the principal or designated tribal official or to the governing body.
(e) In all cases where a party is represented by an attorney in an appeal, service of any document on the attorney is service on the party represented. Where a party is represented by more than one attorney, service on any one attorney is sufficient. The certificate of service on an attorney shall include the name of the party whom the attorney represents and indicate that service was made on the attorney representing that party.
(f) When an official deciding an appeal determines that there has not been service of a document affecting a person’s interest, the official shall either serve the document on the person or direct the appropriate legal counsel to serve the document on the person and allow the person an opportunity to respond.
§ 2.13 Filing documents.
(a) An appeal document is properly filed with an official of the Bureau of Indian Affairs:
(1) By personal delivery during regular business hours to the person designated to receive mail in the immediate office of the official, or
(2) By mail to the facility officially designated for receipt of mail addressed to the official; the document is considered filed by mail on the date that it is postmarked.
(b) Bureau of Indian Affairs offices receiving a misdirected appeal document shall forward the document to the proper office promptly. If a person delivers an appeal document to the wrong office or mails an appeal document to an incorrect address, no extension of time should be allowed because of the time necessary for a Bureau office to redirect the document to the correct address.
(c) Notwithstanding any other provision of this section, an official deciding an appeal shall allow late filing of a misdirected document, including a notice of appeal, where the official finds that the misdirection is the fault of the government.
§ 2.14 Record address.
(a) Every interested party who files a document in connection with an appeal shall, when he/she files the document, also indicate his/her address. Thereafter, any change of address shall be promptly reported to the official with whom the previous address was filed. The most current address on file under this subsection shall be deemed the proper address for all purposes under this part.
(b) The successors in interest of a party shall also promptly inform the official specified in paragraph (a) of this section of their interest in the appeal and their address.
(c) An appellant or interested party failing to file an address or change of address as specified in this section may not object to lack of notice or service attributable to his/her failure to indicate a new address.
§ 2.15 Computation of time.
In computing any period of time prescribed or allowed in this part, calendar days shall be used. Computation shall not include the day on which a decision being appealed was made, service or notice was received, a document was filed, or other event occurred causing time to begin to run. Computation shall include the last day of the period, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.
§ 2.16 Extensions of time.
An official to whom an appeal is made may, upon a showing of good cause by a party and with notice to all other parties, extend the period for filing or serving any document; provided, however, that no extension will be granted for filing a notice of appeal under § 2.9 of this part or serve by itself to extend any period specified by law or regulation other than in this part.
§ 2.17 Summary dismissal.
(a) An appeal under this part will be dismissed if the notice of appeal is not filed within the time specified in § 2.9(a).
(b) An appeal under this part may be subject to summary dismissal for the following causes:
(1) If after the appellant is given an opportunity to amend them, the appeal documents do not state the reasons why the appellant believes the decision being appealed is in error, or the reasons for the appeal are not otherwise evident in the documents, or
(2) If the appellant has been required to post a bond and fails to do so.
§ 2.18 Consolidation of appeals.
Separate proceedings pending before one official under this part and involving common questions of law or fact may be consolidated by the official conducting such proceedings, pursuant to a motion by any party or on the initiative of the official.
§ 2.19 Action by Area Directors and Education Programs officials on appeal.
(a) Area Directors, Area Education Programs Administrators, Agency Superintendents for Education, Presidents of Post-Secondary Schools and the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs) shall render written decisions in all cases appealed to them within 60 days after all time for pleadings (including all extensions granted) has expired. The decision shall include a statement that the decision may be appealed pursuant to this part, identify the official to whom it may be appealed and indicate the appeal procedures, including the 30-day time limit for filing a notice of appeal.
(b) A copy of the decision shall be sent to the appellant and each known interested party by certified or registered mail, return receipt requested. Such receipts shall become a permanent part of the record.
§ 2.20 Action by the Assistant Secretary—Indian Affairs on appeal.
(a) When a decision is appealed to the Interior Board of Indian Appeals, a copy of the notice of appeal shall be sent to the Assistant Secretary—Indian Affairs.
(b) The notice of appeal sent to the Interior Board of Indian Appeals shall certify that a copy has been sent to the Assistant Secretary—Indian Affairs.
(c) In accordance with the provisions of § 4.332(b) of title 43 of the Code of Federal Regulations, a notice of appeal to the Board of Indian Appeals shall not be effective until 20 days after receipt by the Board, during which time the Assistant Secretary—Indian Affairs shall have authority to decide to:
(1) Issue a decision in the appeal, or
(2) Assign responsibility to issue a decision in the appeal to a Deputy to the Assistant Secretary—Indian Affairs.
(d) A copy of the decision shall be sent to the appellant and each known interested party by certified or registered mail, return receipt requested. Such receipts shall become a permanent part of the record.
(e) If the Assistant Secretary—Indian Affairs or the Deputy to the Assistant Secretary—Indian Affairs to whom the authority to issue a decision has been assigned pursuant to § 2.20(c) does not make a decision within 60 days after all time for pleadings (including all extensions granted) has expired, any party may move the Board of Indian Appeals to assume jurisdiction subject to 43 CFR 4.337(b). A motion for Board decision under this section shall invest the Board with jurisdiction as of the date the motion is received by the Board.
(f) When the Board of Indian Appeals, in accordance with 43 CFR 4.337(b), refers an appeal containing one or more discretionary issues to the Assistant Secretary—Indian Affairs for further consideration, the Assistant Secretary—Indian Affairs shall take action on the appeal consistent with the procedures in this section.
(g) The Assistant Secretary—Indian Affairs shall render a written decision in an appeal from a decision of the Deputy to the Assistant Secretary—Indian Affairs/Director (Indian Education Programs) within 60 days after all time for pleadings (including all extensions granted) has expired. A copy of the decision shall be sent to the appellant and each known interested party by certified or registered mail, return receipt requested. Such receipts shall become a permanent part of the record. The decision shall be final for the Department and effective immediately unless the Assistant Secretary—Indian Affairs provides otherwise in the decision.
§ 2.21 Scope of review.
(a) When a decision has been appealed, any information available to the reviewing official may be used in reaching a decision whether part of the record or not.
(b) When the official deciding an appeal believes it appropriate to consider documents or information not contained in the record on appeal, the official shall notify all interested parties of the information and they shall be given not less than 10 days to comment on the information before the appeal is decided. The deciding official shall include in the record copies of documents or a description of the information used in arriving at the decision. Except where disclosure of the actual documents used may be prohibited by law, copies of the information shall be made available to the parties upon request and at their expense.
PART 5—PREFERENCE IN EMPLOYMENT
§ 5.1 Definitions.
For purposes of making appointments to vacancies in all positions in the Bureau of Indian Affairs a preference will be extended to persons of Indian descent who are:
(a) Members of any recognized Indian tribe now under Federal Jurisdiction;
(b) Descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation;
(c) All others of one-half or more Indian blood of tribes indigenous to the United States;
(d) Eskimos and other aboriginal people of Alaska; and
(e) For one (1) year or until the Osage Tribe has formally organized, whichever comes first, effective January 5, 1989, a person of at least one-quarter degree Indian ancestry of the Osage Tribe of Indians, whose rolls were closed by an act of Congress.
§ 5.2 Appointment actions.
(a) Preference will be afforded a person meeting any one of the standards of § 5.1 whether the appointment involves initial hiring, reinstatement, transfer, reassignment or promotion.
(b) Preference eligibles may be given a Schedule A excepted appointment under Exception Number 213.3112(a)(7). However, if the individuals are within reach on a Civil Service Register, they may be given a competitive appointment.
§ 5.3 Application procedure for preference eligibility.
(a) Proof of eligibility must be submitted with the person’s application for a position.
(b) In order for a person to be considered a preference eligible according to the standards of § 5.1, they must submit proof of membership, descendancy or degree of Indian ancestry as indicated on rolls or records acceptable to the Secretary.
§ 5.4 Information collection.
The Office of Management and Budget has informed the Department of the Interior that the information collection requirements contained in part 5 need not be reviewed by them under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
SUBCHAPTER B—LAW AND ORDER
PART 10—INDIAN COUNTRY DETENTION FACILITIES AND PROGRAMS
§ 10.1 Why are policies and standards needed for Indian country detention programs?
Policies and standards are required to ensure that all Bureau of Indian Affairs (BIA) and tribal entities that receive Federal funding for the operation, maintenance, design and construction or renovation of detention facilities, community residential, or holding facilities are supporting constitutional rights and are complying with the Indian Law Enforcement Reform Act of 1990. Self-governance tribes and tribes with limited jurisdiction are encouraged to follow the regulations in this part, and other BIA manuals and handbooks. The provision for funding tribes for detention programs under the Indian Alcohol and Substance Abuse Prevention and Treatment Act, Public Law 99–570, (25 U.S.C. 2453) requires standards and procedures for such facilities.
§ 10.2 Who is responsible for developing and maintaining the policies and standards for detention and holding facilities in Indian country?
The Director, Office of Law Enforcement Services who reports to the Deputy Commissioner of Indian Affairs, BIA, establishes policies, procedures, and standards for the operations, design, planning, maintenance, renovation, and construction of detention programs in the BIA and by tribal contract under Indian Self-Determination and Education Assistance Act, Public Law 93–638, as amended, 25 U.S.C. 450.
§ 10.3 Who must follow these policies and standards?
You must follow these minimum policies, standards, and guides if you are part of the BIA or tribal detention or rehabilitation program receiving Federal funding. Self-governance tribes and tribes with limited jurisdiction are encouraged to follow the regulations in this part, and other BIA manuals and handbooks. Detention officers, guards, cooks and other staff conducting business in the facilities must meet minimum standards of law enforcement personnel as prescribed in 25 CFR part 12, subpart D, “Qualifications and Training Requirements.” Those tribal programs not receiving Federal funding under the Indian Self-Determination and Education Assistance Act (Public Law 93–638, as amended) who wish to be accredited are encouraged to use the policies and standards in that part since they have been modified and approved for Indian country.
§ 10.4 What happens if the policies and standards are not followed?
The risk for human and civil rights violations due to lack of common standards will subject the operation and/or facility to unnecessary exposure to liability. Lack of employee standards, particularly for training and background checks, will increase the risk of misconduct and vicarious liability of the tribes and the Federal government through tort claims. Funding sources for detention programs may become scarce to nonexistent because of contract noncompliance. The tribes’ opportunity to receive funding from potential resource sharing agreements with other law enforcement agencies may be damaged because the facility may have to be closed for cause due to violation of the life safety codes.
§ 10.5 Where can I find the policies and standards for the administration, operation, services, and physical plant/construction of Indian country detention, community residential, and holding facilities?
The Bureau of Indian Affairs, Department of the Interior, maintains a manual of policies and procedures called the Bureau of Indian Affairs Manual (BIAM). The chapter 69 BIAM titled “Indian Country Detention Facilities and Programs,” contains the BIA’s policies, procedures, and standards for detention and holding programs in Indian country. The standards for the programs within the BIAM are in handbook format for easy field reference and use. Copies of the chapter 69 BIAM and handbooks may be obtained from the Director, Office of Law Enforcement Services.
§ 10.6 How is the BIA assured that the policies and standards are being applied uniformly and facilities are properly accredited?
The tribes and BIA programs will use a phased approach to meeting all non-mandatory detention standards and will document progress on uniform reporting. The BIA Office of Law Enforcement Services will conduct periodic operational evaluations for oversight.
§ 10.7 Where do I find help or receive technical assistance in complying with the policies and standards?
The BIA has a trained Detention Specialist on the staff of the Office of Law Enforcement Services, Albuquerque, New Mexico, who is available to conduct evaluations and provide technical assistance or guidance in all facets of Indian country detention programs.
§ 10.8 What minimum records must be kept and reports made at each detention, community residential, or holding facility in Indian country?
The Director, Office of Law Enforcement Services, BIA, will develop all necessary requirements for maintaining records, reporting data, and archiving information. These requirements will be published in 69 BIAM, “Indian Country Detention Facilities and Programs.”
§ 10.9 If a person is detained or incarcerated in an Indian country detention, community residential, or holding facility, how would they know what their rights, privileges, safety, protection and expected behavior would be?
When an individual is incarcerated in an Indian country detention, community residential, or holding facility, he/she will be given, or in some cases notified of the availability of, an Inmate Handbook. This book of guidelines describes in detail the inmate’s rights, privileges, protection and safety, cleanliness and sanitation, and general health and nutritional standards. The Inmate Handbook describes the emergency evacuation procedures, medical, counseling, rehabilitation services, visitation procedures, and other appropriate information. The Inmate Handbook is published by the Director, Office of Law Enforcement Services and maintained by the detention facility administrator at each facility location.
§ 10.10 What happens if I believe my civil rights have been violated while incarcerated in an Indian country detention or holding facility?
All allegations of civil rights violations must be reported immediately to the Internal Affairs Branch of the Office of Law Enforcement Services. This office will ensure that such allegations are immediately reported to the Civil Rights Division of the U.S. Department of Justice through established procedures. The BIA Internal Affairs Branch may also investigate alleged violations and make recommendations for additional action as necessary. Detailed instructions on the procedure to report violations can be found in the Inmate Handbook.
§ 10.11 How would someone detained or incarcerated, or their representative, get the BIA policies and standards?
At each detention, community residential, or holding facility located in a tribal jurisdiction where federal funds are used for operations or maintenance programs, the BIA’s policies, standards, and procedures will be made available upon request. The Inmate Handbook will be made available to all persons at the time they are incarcerated or detained in a facility. There may be times when this may be delayed due to the physical or mental condition of the person at time of incarceration. In these cases, the Inmate Handbook will be made available when the person is deemed receptive and cognizant by the detention officer in charge. All policies, standards, procedures, and guidelines are available at each facility to the public or by writing to the Director, Office of Law Enforcement Services.
PART 11—COURTS OF INDIAN OFFENSES AND LAW AND ORDER CODE
Subpart A—Application; Jurisdiction
§ 11.100 Where are Courts of Indian Offenses established?
(a) A list of the areas in Indian Country where Courts of Indian Offenses are established is available on the Bureau of Indian Affairs website (www.bia.gov) and is published periodically in the
(b) The Director, Bureau of Indian Affairs, will maintain on the Bureau of Indian Affairs website (www.bia.gov) an updated list of the areas in Indian Country where Courts of Indian Offenses are established and, upon any change to the list, will publish notice of the change in the
§ 11.102 What is the purpose of this part?
It is the purpose of the regulations in this part to provide adequate machinery for the administration of justice for Indian tribes in those areas of Indian country where tribes retain jurisdiction over Indians that is exclusive of State jurisdiction but where tribal courts have not been established to exercise that jurisdiction.
§ 11.104 When does this part apply?
(a) The regulations in this part continue to apply to each area in Indian Country listed in accordance with § 11.100 until either:
(1) BIA and the tribe enter into a contract or compact for the tribe to provide judicial services; or
(2) The tribe has put into effect a law-and-order code that establishes a court system and that meets the requirements of paragraph (b) of this section.
(b) When a tribe adopts a legal code and establishes a judicial system, the tribe must notify the Assistant Secretary—Indian Affairs or his or her designee. The law-and-order code must be adopted by the tribe in accordance with its constitution and by-laws or other governing documents.
§ 11.106 Who is an Indian for purposes of this part?
For the purposes of the enforcement of the regulations in this part, an Indian is defined as a person who is a member of an Indian tribe which is recognized by the Federal Government as eligible for services from the BIA, and any other individual who is an “Indian” for the purposes of 18 U.S.C. 1152–1153.
§ 11.108 How are tribal ordinances affected by this part?
The governing body of each tribe occupying the Indian country over which a Court of Indian Offenses has jurisdiction may enact ordinances which, when approved by the Assistant Secretary—Indian Affairs or his or her designee:
(a) Are enforceable in the Court of Indian Offenses having jurisdiction over the Indian country occupied by that tribe; and
(b) Supersede any conflicting regulation in this part.
§ 11.110 How are tribal customs affected by this part?
Each Court of Indian Offenses shall apply the customs of the tribe occupying the Indian country over which it has jurisdiction to the extent that they are consistent with the regulations of this part.
§ 11.112 [Reserved]
§ 11.114 What is the criminal jurisdiction of the Court of Indian Offenses?
(a) Except as otherwise provided in this title, each Court of Indian Offenses has jurisdiction over any action by an Indian (hereafter referred to as person) that is made a criminal offense under this part and that occurred within the Indian country subject to the court’s jurisdiction.
(b) No person may be prosecuted, tried or punished for any offense unless the complaint is filed within 5 years after the offense is committed.
§ 11.116 What is the civil jurisdiction of a Court of Indian Offenses?
(a) Except as otherwise provided in this title, each Court of Indian Offenses has jurisdiction over any civil action arising within the territorial jurisdiction of the court in which:
(1) The defendant is an Indian; or
(2) Other claims, provided at least one party is an Indian.
(b) Any civil action commenced in a Court of Indian Offenses is barred unless the complaint is filed within 3 years after the right of action first accrues.
§ 11.118 What are the jurisdictional limitations of the Court of Indian Offenses?
(a) A Court of Indian Offenses may exercise over a Federal or State official only the same jurisdiction that it could exercise if it were a tribal court. The jurisdiction of Courts of Indian Offenses does not extend to Federal or State employees acting within the scope of their employment.
(b) A Court of Indian Offenses may not adjudicate an election dispute, take jurisdiction over a suit against a tribe, or adjudicate any internal tribal government dispute, unless the relevant tribal governing body passes a resolution, ordinance, or referendum granting the court jurisdiction.
(c) In deciding who is a tribal official, BIA will give deference to a decision of the Court of Indian Offenses, acting as a tribal forum by resolution or ordinance of a tribal governing body under paragraph (b) of this section.
(d) A tribe may not be sued in a Court of Indian Offenses unless its tribal governing body explicitly waives its tribal immunity by tribal resolution or ordinance.
Subpart B—Courts of Indian Offenses; Personnel; Administration
§ 11.200 What is the composition of the Court of Indian Offenses?
(a) Each court shall be composed of a trial division and an appellate division.
(b) A chief magistrate will be appointed for each court who will, in addition to other judicial duties, be responsible for the administration of the court and the supervision of all court personnel.
(c) Appeals must be heard by a panel of magistrates who were not involved at the tribal/trial level.
(d) Decisions of the appellate division are final and are not subject to administrative appeals within the Department of the Interior.
§ 11.201 How are magistrates for the Court of Indian Offenses appointed?
(a) Each magistrate shall be appointed by the Assistant Secretary—Indian Affairs or his or her designee subject to confirmation by a majority vote of the tribal governing body of the tribe occupying the Indian country over which the court has jurisdiction, or, in the case of multi-tribal courts, confirmation by a majority of the tribal governing bodies of the tribes under the jurisdiction of a Court of Indian Offenses.
(b) Each magistrate shall hold office for a period of four years, unless sooner removed for cause or by reason of the abolition of the office, but is eligible for reappointment.
(c) No person is eligible to serve as a magistrate of a Court of Indian Offenses who has ever been convicted of a felony or, within one year of the date of service or application, of a misdemeanor.
(d) No magistrate shall be qualified to act as such wherein he or she has any direct conflicting interest, real or apparent.
(e) A tribal governing body may set forth such other qualifications for magistrates of the Court of Indian Offenses as it deems appropriate, subject to the approval of the Assistant Secretary—Indian Affairs, or his or her designee.
(f) A tribal governing body may also recommend requirements for the training of magistrates of the Court of Indian Offenses to the Assistant Secretary—Indian Affairs.
§ 11.202 How is a magistrate of the Court of Indian Offenses removed?
Any magistrate of a Court of Indian Offenses may be suspended, dismissed or removed by the Assistant Secretary—Indian Affairs, or his or her designee, for cause, upon the written recommendation of the tribal governing body, and, in the case of multi-tribal courts, upon the recommendation of a majority of the tribal governing bodies of the tribes under the jurisdiction of a Court of Indian Offenses, or pursuant to his or her own discretion.
§ 11.203 How are the clerks of the Court of Indian Offenses appointed and what are their duties?
(a) Except as may otherwise be provided in a contract with the tribe occupying the Indian country over which the court has jurisdiction, the chief magistrate shall appoint a clerk of court for the Court of Indian Offenses within his or her jurisdiction, subject to the superintendent’s approval.
(b) The clerk shall render assistance to the court, to local law enforcement officers and to individual members of the tribe in the drafting of complaints, subpoenas, warrants, commitments, and other documents incidental to the functions of the court. The clerk shall also attend and keep a record of all proceedings of the court and manage all monies received by the court.
(c) The clerk of court shall forward any monies received on judgments due to the person, agency, or corporation to which entitled, within 30 days unless directed otherwise by a magistrate of the Court of Indian Offenses.
§ 11.204 Prosecutors.
Except as may otherwise be provided in a contract with the tribe occupying the Indian country over which the court has jurisdiction, the superintendent shall appoint a prosecutor for each Court of Indian Offenses within his or her jurisdiction.
§ 11.205 Are there standards for the appearance of attorneys and lay counselors?
(a) No defendant in a criminal proceeding shall be denied the right to counsel.
(b) The chief magistrate shall prescribe in writing standards governing the admission and practice in the Court of Indian Offenses of professional attorneys and lay counselors.
§ 11.206 Is the Court of Indian Offenses a court of record?
(a) Each Court of Indian Offenses shall keep a record of all proceedings of the court containing the title of the case, the names of the parties, the complaint, all pleadings, the names and addresses of all witnesses, the date of any hearing or trial, the name of any magistrate conducting such hearing or trial, the findings of the court or jury, the judgment and any other information the court determines is important to the case.
(b) The record in each case shall be available for inspection by the parties to the case.
(c) Except for cases in which a juvenile is a party or the subject of a proceeding, and for cases whose records have been sealed by the court, all case records shall be available for inspection by the public.
(d) Such court records are part of the records of the BIA agency having jurisdiction over the Indian country where the Court of Indian Offenses is located and shall be protected in accordance with 44 U.S.C. 3102.
§ 11.207 What are the responsibilities of Bureau of Indian Affairs employees?
(a) No employee of the BIA may obstruct, interfere with, or control the functions of any Court of Indian Offenses, or influence such functions in any manner except as permitted by Federal statutes or the regulations in this part or in response to a request for advice or information from the court.
(b) Employees of the BIA shall assist the court, upon its request, in the preparation and presentation of facts in the case and in the proper treatment of individual offenders.
§ 11.208 May Individual Indian Money accounts be used for payment of judgments?
(a) Any Court of Indian Offenses may make application to the superintendent who administers the individual Indian money account of a defendant who has failed to satisfy a money judgment from the court to obtain payment of the judgment from funds in the defendant’s account. The court shall certify the record of the case to the superintendent. If the superintendent so directs, the disbursing agent shall pay over to the injured party the amount of the judgment or such lesser amount as may be specified by the superintendent.
(b) A judgment of a Court of Indian Offenses shall be considered a lawful debt in all proceedings held by the Department of the Interior or by a Court of Indian Offenses to distribute decedents’ estates.
§ 11.209 How does the Court of Indian Offenses dispose of fines?
All money fines imposed for the commission of an offense shall be in the nature of an assessment for the payment of designated court expenses. The fines assessed shall be paid over by the clerk of the court to the disbursing agent of the reservation for deposit as a “special deposit, court funds” to the disbursing agent’s official credit in the Treasury of the United States. The disbursing agent shall withdraw such funds, in accordance with existing regulations, upon order of the clerk of the court signed by a judge of the court for the payment of specified expenses. The disbursing agent and the clerk of the court shall keep an account of all such deposits and withdrawals available for public inspection.
Subpart C—Criminal Procedure
§ 11.300 Complaints.
(a) A complaint is a written statement of the essential facts charging that a named individual(s) has committed a particular offense. All criminal prosecutions shall be initiated by a complaint filed with the court by a law enforcement officer and sworn to by a person having personal knowledge of the offense.
(b) Complaints shall contain:
(1) The signature of the complaining witness, or witnesses, sworn before a magistrate, a court clerk, a prosecutor, or any law enforcement officer.
(2) A written statement by the complaining witness or witnesses having personal knowledge of the violation, describing in ordinary language the nature of the offense committed including the time and place as nearly as may be ascertained.
(3) The name or description of the person alleged to have committed the offense.
(4) A description of the offense charged and the section of the code allegedly violated.
(c) Complaints must be submitted without unnecessary delay by a law enforcement officer to the prosecutor and, if he or she approves, to a judge to determine whether an arrest warrant or summons should be issued.
(d) When an accused has been arrested without a warrant, a complaint shall be filed forthwith with the court for review as to whether probable cause exists to hold the accused, and in no instance shall a complaint be filed later than at the time of arraignment.
§ 11.301 Arrests.
(a) Arrest is the taking of a person into police custody in order that he or she may be held to answer for a criminal offense.
(b) No law enforcement officer shall arrest any person for a criminal offense except when:
(1) The officer shall have a warrant signed by a magistrate commanding the arrest of such person, or the officer knows for a certainty that such a warrant has been issued; or
(2) The offense shall occur in the presence of the arresting officer; or
(3) The officer shall have probable cause to believe that the person arrested has committed an offense.
§ 11.302 Arrest warrants.
(a) Each magistrate of a Court of Indian Offenses shall have the authority to issue warrants to apprehend any person the magistrate has probable cause to believe has committed a criminal offense in violation of the regulations under this part based on a written complaint filed with the court by a law enforcement officer and bearing the signature of the complainant.
(b) The arrest warrant shall contain the following information:
(1) Name or description and address, if known, of the person to be arrested.
(2) Date of issuance of the warrant.
(3) Description of the offense charged.
(4) Signature of the issuing magistrate.
(c) Such warrants may be served only by a BIA or tribal police officer or other officer commissioned to enforce the regulations of this part.
§ 11.303 Notification of rights prior to custodial interrogation.
Prior to custodial interrogation, the suspect shall be advised of the following rights:
(a) That he or she has the right to remain silent.
(b) That any statements made by him or her may be used against him or her in court.
(c) That he or she has the right to obtain counsel and, if indigent, to have counsel appointed for him/her.
§ 11.304 Summons in lieu of warrant.
(a) When otherwise authorized to arrest a suspect, a law enforcement officer or a magistrate may, in lieu of a warrant, issue a summons commanding the accused to appear before the Court of Indian Offenses at a stated time and place and answer to the charge.
(b) The summons shall contain the same information as a warrant, except that it may be signed by a police officer.
(c) The summons shall state that if a defendant fails to appear in response to a summons, a warrant for his or her arrest shall be issued.
(d) The summons, together with a copy of the complaint, shall be served upon the defendant by delivering a copy to the defendant personally or by leaving a copy at his or her usual residence or place of business with any person 18 years of age or older who also resides or works there. Service shall be made by an authorized law enforcement officer, who shall file with the record of the case a form indicating when the summons was served.
§ 11.305 Search warrants.
(a) Each magistrate of a Court of Indian Offenses shall have the authority to issue a warrant for the search of premises and for the seizure of physical evidence of a criminal violation under the regulations of this part located within the Indian country over which the court has jurisdiction.
(b) No warrant for search or seizure may be issued unless it is based on a written and signed statement establishing, to the satisfaction of the magistrate, that probable cause exists to believe that the search will lead to discovery of evidence of a criminal violation under the regulations of this part.
(c) No warrant for search or seizure shall be valid unless it contains the name or description of the person, vehicle, or premises to be searched, describes the evidence to be seized, and bears the signature of the magistrate who issued it.
(d) Warrants may be executed only by a BIA or tribal police officer or other official commissioned to enforce the regulations under this part. The executing officer shall return the warrant to the Court of Indian Offenses within the time limit shown on the face of the warrant, which in no case shall be longer than ten (10) days from the date of issuance. Warrants not returned within such time limits shall be void.
§ 11.306 Search without a warrant.
No law enforcement officer shall conduct any search without a valid warrant except:
(a) Incident to making a lawful arrest; or
(b) With the voluntary consent of the person being searched; or
(c) When the search is of a moving vehicle and the officer has probable cause to believe that it contains contraband, stolen property, or property otherwise unlawfully possessed.
§ 11.307 Disposition of seized property.
(a) The officer serving and executing a warrant shall make an inventory of all seized property, and a copy of such inventory shall be left with every person from whom property is seized.
(b) A hearing shall be held by the Court of Indian Offenses to determine the disposition of all seized property. Upon satisfactory proof of ownership, the property shall be delivered immediately to the owner, unless such property is contraband or is to be used as evidence in a pending case. Property seized as evidence shall be returned to the owner after final judgment. Property confiscated as contraband shall be destroyed or otherwise lawfully disposed of as ordered by the Court of Indian Offenses.
§ 11.308 Commitments.
No person may be detained, jailed or imprisoned under the regulations of this part for longer than 48 hours unless the Court of Indian Offenses issues a commitment bearing the signature of a magistrate. A temporary commitment shall be issued for each person held before trial. A final commitment shall be issued for each person sentenced to jail after trial.
§ 11.309 Arraignments.
(a) Arraignment is the bringing of an accused before the court, informing him or her of his or her rights and of the charge(s) against him or her, receiving the plea, and setting conditions of pretrial release as appropriate in accordance with this part.
(b) Arraignment shall be held in open court without unnecessary delay after the accused is taken into custody and in no instance shall arraignment be later than the next regular session of court.
(c) Before an accused is required to plead to any criminal charges the magistrate shall:
(1) Read the complaint to the accused and determine that he or she understands it and the section(s) of this part that he or she is charged with violating, including the maximum authorized penalty; and
(2) Advise the accused that he or she has the right to remain silent, to be tried by a jury if the offense charged is punishable by imprisonment, to be represented by counsel (which shall be paid for by the government if the accused is indigent) and that the arraignment will be postponed should he or she desire to consult with counsel.
(d) The magistrate shall call upon the defendant to plead to the charge:
(1) If the accused pleads “not guilty” to the charge, the magistrate shall then inform the accused of the trial date and set conditions for release prior to trial.
(2) If the accused pleads “guilty” to the charge, the magistrate shall accept the plea only if he or she is satisfied that the plea is made voluntarily and that the accused understands the consequences of the plea, including the rights waived by the plea. The magistrate may then impose sentence or defer sentencing for a reasonable time in order to obtain any information he or she deems necessary for the imposition of a just sentence. The accused shall be afforded an opportunity to be heard by the court prior to sentencing.
(3) If the accused refuses to plead, the judge shall enter a plea of “not guilty” on his or her behalf.
(e) The court may, in its discretion, allow a defendant to withdraw a plea of guilty if it appears that the interest of justice would be served by doing so.
§ 11.310 Bail.
(a) Each person charged with a criminal offense under this part shall be entitled to release from custody pending trial under whichever one or more of the following conditions is deemed necessary to reasonably assure the appearance of the person at any time lawfully required:
(1) Release on personal recognizance upon execution by the accused of a written promise to appear at trial and all other lawfully required times;
(2) Release to the custody of a designated person or organization agreeing to assure the accused’s appearance;
(3) Release with reasonable restrictions on the travel, association, or place of residence of the accused during the period of release;
(4) Release after deposit of a bond or other sufficient collateral in an amount specified by the magistrate or a bail schedule;
(5) Release after execution of a bail agreement by two responsible members of the community; or
(6) Release upon any other condition deemed reasonably necessary to assure the appearance of the accused as required.
(b) Any law enforcement officer authorized to do so by the court may admit an arrested person to bail pending trial pursuant to a bail schedule and conditions prepared by the court.
(c) A convicted person may be released from custody pending appeal on such conditions as the magistrate determines will reasonably assure the appearance of the accused unless the magistrate determines that release of the accused is likely to pose a danger to the community, the accused, or any other person.
(d) The Court of Indian Offenses may revoke its release of the defendant and order him or her committed at any time where it determines that the conditions of release will not reasonably assure the appearance of the defendant, or if any conditions of release have been violated.
§ 11.311 Subpoenas.
(a) Upon request of any party, the court shall issue subpoenas to compel the testimony of witnesses, or the production of books, records, documents or any other physical evidence relevant to the determination of the case and not an undue burden on the person possessing the evidence. The clerk of the court may act on behalf of the court and issue subpoenas which have been signed either by the clerk of the court or by a magistrate of the Court of Indian Offenses and which are to be served within Indian country over which the Court of Indian Offenses has jurisdiction.
(b) A subpoena shall bear the signature of the chief magistrate of the Court of Indian Offenses, and it shall state the name of the court, the name of the person or description of the physical evidence to be subpoenaed, the title of the proceeding, and the time and place where the witness is to appear or the evidence is to be produced.
(c) A subpoena may be served at any place but any subpoena to be served outside of the Indian country over which the Court of Indian Offenses has jurisdiction shall be issued personally by a magistrate of the Court of Indian Offenses.
(d) A subpoena may be served by any law enforcement officer or other person appointed by the court for such purpose. Service of a subpoena shall be made by delivering a copy of it to the person named or by leaving a copy at his or her place of residence or business with any person 18 years of age or older who also resides or works there.
(e) Proof of service of the subpoena shall be filed with the clerk of the court by noting on the back of the subpoena the date, time and place that it was served and noting the name of the person to whom it was delivered. Proof of service shall be signed by the person who actually served the subpoena.
(f) In the absence of a justification satisfactory to the court, a person who fails to obey a subpoena may be deemed to be in contempt of court and a bench warrant may be issued for his or her arrest.
§ 11.312 Witness fees.
(a) Each fact witness answering a subpoena is entitled to a fee of not less than the hourly minimum wage scale established by 29 U.S.C. 206(a)(1) and any of its subsequent revisions, plus actual cost of travel. Each fact witness testifying at a hearing shall receive pay for a full day (eight hours) plus travel allowance.
(b) The Court of Indian Offenses may order any party calling a witness to testify without a subpoena to compensate the witness for actual traveling and living expenses incurred in testifying.
(c) If the Court of Indian Offenses finds that a complaint was not filed in good faith but with a frivolous or malicious intent, it may order the complainant to reimburse the court for expenditures incurred under this section, and such order may constitute a judgment upon which execution may levy.
§ 11.313 Trial procedure.
(a) The time and place of court sessions, and all other details of judicial procedure shall be set out in rules of court approved by the chief magistrate of the Court of Indian Offenses.
(b) Courts of Indian Offenses shall be bound by the Federal Rules of Evidence, except insofar as such rules are superseded by order of the court or by the existence of inconsistent tribal rules of evidence.
§ 11.314 Jury trials.
(a) A defendant has a right, upon demand, to a jury trial in any criminal case:
(1) That is punishable by a maximum sentence of one year incarceration; or
(2) In which the prosecutor informs the court before the case comes to trial that a jail sentence will be sought.
(b) If the prosecutor informs the court that no sentence of incarceration will be sought, the court may not impose a sentence of incarceration for the offense.
(c) A jury must consist of not less than six residents of the vicinity in which trial is held, selected from a list of eligible jurors prepared each year by the court.
(1) An eligible juror must:
(i) Be at least 18 years of age;
(ii) Not have been convicted of a felony; and
(iii) Be otherwise qualified according to standards established by the Court of Indian Offenses under its general rulemaking authority.
(2) Any party may challenge without cause a maximum of three members of the jury panel chosen under this section.
(d) The magistrate shall instruct the jury with regard to the applicable law and the jury shall decide all questions of fact on the basis of the law.
(e) The jury shall deliberate in secret and return a verdict of guilty or not guilty. Six out of the eight jurors must concur to render a verdict.
(f) Each juror who serves on a jury is entitled to a fee not less than the hourly minimum wage scale established by 29 U.S.C. 206(a)(1), and any of its subsequent revisions, plus mileage not to exceed the maximum rate per mile established by the Federal Government of jurors and witnesses. Each juror shall receive pay for a full day (eight hours) for any portion of a day served, plus travel allowance.
§ 11.315 Sentencing.
(a) Any person who has been convicted in a Court of Indian Offenses of a criminal offense under the regulations of this part may be sentenced to one or a combination of the following penalties:
(1) Imprisonment for a period up to the maximum permitted by the section defining the offense, but in no case for longer than one year; and
(2) A fine in an amount up to the maximum permitted by the section defining the offense, but in no case greater than $5,000.
(b) In addition to or in lieu of the penalties provided in paragraph (a) of this section, the court may require a convicted offender who has inflicted injury upon the person or property of another to make restitution or compensate the injured person by means of the surrender of property, payment of money damages, or the performance of any other act for the benefit of the injured party.
(c) If, solely because of indigence, a convicted offender is unable to pay forthwith a money fine assessed under any applicable section, the court shall allow him or her a reasonable period of time to pay the entire sum or allow him or her to make reasonable installment payments to the clerk of the court at specified intervals until the entire sum is paid. If the offender defaults on such payments the court may find him or her in contempt of court and imprison him or her accordingly.
§ 11.316 Probation.
(a) Where a sentence of imprisonment has been imposed on a convicted offender, the Court of Indian Offenses may, in its discretion, suspend the serving of such sentence and release the person on probation under any reasonable conditions deemed appropriate by the court, provided that the period of probation shall not exceed one year.
(b) Any person who violates the terms of his or her probation may be required by the court to serve the sentence originally imposed or such part of it as the court may determine to be suitable giving consideration to all the circumstances, provided that such revocation of probation shall not be ordered without a hearing before the court at which the offender shall have the opportunity to explain his or her actions.
§ 11.317 Parole.
(a) Any person sentenced by the court of detention or labor shall be eligible for parole at such time and under such reasonable conditions as set by the Court of Indian Offenses.
(b) Any person who violates the conditions of his or her parole may be required by the court to serve the whole original sentence, provided that such revocation or parole shall not be ordered without a hearing before the court at which the offender shall have the opportunity to explain his or her actions.
§ 11.318 Extradition.
Any Court of Indian Offenses may order delivery to the proper state, tribal or BIA law enforcement authorities of any person found within the jurisdiction of the court, who is charged with an offense in another jurisdiction. Prior to delivery to the proper officials, the accused shall be accorded a right to contest the propriety of the court’s order in a hearing before the court.
Subpart D—Criminal Offenses
§ 11.400 Assault.
(a) A person is guilty of assault if he or she:
(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(2) Negligently causes bodily injury to another with a deadly weapon; or
(3) Attempts by physical menace to put another in fear of imminent serious bodily injury.
(b) Assault is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor.
§ 11.401 Recklessly endangering another person.
A person commits a misdemeanor if he or she recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another person, whether or not the actor believed the firearm to be loaded.
§ 11.402 Terroristic threats.
A person is guilty of a misdemeanor if he or she threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly or facility of public transportation, or otherwise to cause serious public inconvenience or in reckless disregard of the risk of causing such terror or inconvenience.
§ 11.403 Unlawful restraint.
A person commits a misdemeanor if he or she knowingly:
(a) Restrains another unlawfully in circumstances exposing him or her to risk of serious bodily injury; or
(b) Holds another in a condition of involuntary servitude.
§ 11.404 False imprisonment.
A person commits a misdemeanor if he or she knowingly restrains another unlawfully so as to interfere substantially with his or her liberty.
§ 11.405 Interference with custody.
(a) Custody of children. A person commits a misdemeanor if he or she knowingly or recklessly takes or entices any child under the age of 18 from the custody of his or her parent, guardian or other lawful custodian, when he or she has no privilege to do so.
(b) Custody of committed person. A person is guilty of a misdemeanor if he or she knowingly or recklessly takes or entices any committed person away from lawful custody when he or she does not have the privilege to do so. Committed person means, in addition to anyone committed under judicial warrant, any orphan, neglected or delinquent child, mentally defective or insane person, or other dependent or incompetent person entrusted to another’s custody by or through a recognized social agency or otherwise by authority of law.
§ 11.406 Criminal coercion.
(a) A person is guilty of criminal coercion if, with purpose to unlawfully restrict another’s freedom of action to his or her detriment, he or she threatens to:
(1) Commit any criminal offense; or
(2) Accuse anyone of a criminal offense; or
(3) Take or withhold action as an official, or cause an official to take or withhold action.
(b) Criminal coercion is classified as a misdemeanor.
§ 11.407 Sexual assault.
(a) A person who has sexual contact with another person not his or her spouse, or causes such other person to have sexual contact with him or her, is guilty of sexual assault as a misdemeanor, if:
(1) He or she knows that the conduct is offensive to the other person; or
(2) He or she knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the nature or his or her conduct; or
(3) He or she knows that the other person is unaware that a sexual act is being committed; or
(4) The other person is less than 10 years old; or
(5) He or she has substantially impaired the other person’s power to appraise or control his or her conduct, by administering or employing without the other’s knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or
(6) The other person is less than 16 years old and the actor is at least four years older than the other person; or
(7) The other person is less than 21 years old and the actor is his or her guardian or otherwise responsible for general supervision of his or her welfare; or
(8) The other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him or her.
(b) Sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, or for the purpose of abusing, humiliating, harassing, or degrading the victim.
§ 11.408 Indecent exposure.
A person commits a misdemeanor if he or she exposes his or her genitals under circumstances in which he or she knows his or her conduct is likely to cause affront or alarm.
§ 11.409 Reckless burning or exploding.
A person commits a misdemeanor if he or she purposely starts a fire or causes an explosion, whether on his or her property or another’s, and thereby recklessly:
(a) Places another person in danger of death or bodily injury; or
(b) Places a building or occupied structure of another in danger of damage or destruction.
§ 11.410 Criminal mischief.
(a) A person is guilty of criminal mischief if he or she:
(1) Damages tangible property of another purposely, recklessly, or by negligence in the employment of fire, explosives, or other dangerous means; or
(2) Purposely or recklessly tampers with tangible property of another so as to endanger person or property; or
(3) Purposely or recklessly causes another to suffer pecuniary loss by deception or threat.
(b) Criminal mischief is a misdemeanor if the actor purposely causes pecuniary loss in excess of $100, or a petty misdemeanor if he or she purposely or recklessly causes pecuniary loss in excess of $25. Otherwise, criminal mischief is a violation.
§ 11.411 Criminal trespass.
(a) A person commits an offense if, knowing that he or she is not licensed or privileged to do so, he or she enters or surreptitiously remains in any building or occupied structure. An offense under this subsection is a misdemeanor if it is committed in a dwelling at night. Otherwise it is a petty misdemeanor.
(b) A person commits an offense if, knowing that he or she is not licensed or privileged to do so, he or she enters or remains in any place as to which notice against trespass is given by:
(1) Actual communication to the actor; or
(2) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
(3) Fencing or other enclosure manifestly designed to exclude intruders.
(c) An offense under this section constitutes a petty misdemeanor if the offender defies an order to leave personally communicated to him or her by the owner of the premises or other authorized person. Otherwise it is a violation.
§ 11.412 Theft.
A person who, without permission of the owner, shall take, shoplift, possess or exercise unlawful control over movable property not his or her own or under his or her control with the purpose to deprive the owner thereof or who unlawfully transfers immovable property of another or any interest therein with the purpose to benefit himself or herself or another not entitled thereto shall be guilty of theft, a misdemeanor.
§ 11.413 Receiving stolen property.
A person is guilty of receiving stolen property, a misdemeanor, if he or she purposely receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with purpose to restore it to the owner. Receiving means acquiring possession, control or title, or lending on the security of the property.
§ 11.414 Embezzlement.
A person who shall, having lawful custody of property not his or her own, appropriate the same to his or her own use, with intent to deprive the owner thereof, shall be guilty of embezzlement, a misdemeanor.
§ 11.415 Fraud.
A person who shall by willful misrepresentation or deceit, or by false interpreting, or by the use of false weights or measures obtain any money or other property, shall be guilty of fraud, a misdemeanor.
§ 11.416 Forgery.
(a) A person is guilty of forgery, a misdemeanor, if, with purpose to defraud or injure anyone, or with knowledge that he or she is facilitating fraud or injury to be perpetrated by anyone, he or she:
(1) Alters, makes, completes, authenticates, issues or transfers any writing of another without his or her authority; or
(2) Utters any writing which he or she knows to be forged in a manner above specified.
(b) “Writing” includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege, or identification.
§ 11.417 Extortion.
A person who shall willfully, by making false charges against another person or by any other means whatsoever, extort or attempt to extort any moneys, goods, property, or anything else of any value, shall be guilty of extortion, a misdemeanor.
§ 11.418 Misbranding.
A person who shall knowingly and willfully misbrand or alter any brand or mark on any livestock of another person, shall be guilty of a misdemeanor.
A person commits a misdemeanor if he or she operates another person’s automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle without consent of the owner. It is an affirmative defense to prosecution under this section that the actor reasonably believed that the owner would have consented to the operation had he or she known of it.
§ 11.420 Tampering with records.
A person commits a misdemeanor if, knowing that he or she has no privilege to do so, he or she falsifies, destroys, removes or conceals any writing or record, with purpose to deceive or injure anyone or to conceal any wrongdoing.
§ 11.421 Bad checks.
(a) A person who issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee, commits a misdemeanor.
(b) For the purposes of this section, an issuer is presumed to know that the check or order would not be paid, if:
(1) The issuer had no account with the drawee at the time the check or order was issued; or
(2) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within 10 days after receiving notice of that refusal.
(a) A person commits a misdemeanor if he or she uses a credit card for the purpose of obtaining property or services with knowledge that:
(1) The card is stolen or forged; or
(2) The card has been revoked or cancelled; or
(3) For any other reason his or her use of the card is unauthorized by the issuer.
(b) Credit card means a writing or other evidence of an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer.
§ 11.423 Defrauding secured creditors.
A person commits a misdemeanor if he or she destroys, conceals, encumbers, transfers or otherwise deals with property subject to a security interest with purpose to hinder that interest.
§ 11.424 Neglect of children.
(a) A parent, guardian, or other person supervising the welfare of a child under 18 commits a misdemeanor if he or she knowingly endangers the child’s welfare by violating a duty of care, protection or support.
(b) A parent, guardian, or other person supervising the welfare of a child under 18 commits a violation if he or she neglects or refuses to send the child to school.
§ 11.425 Persistent non-support.
A person commits a misdemeanor if he or she persistently fails to provide support which he or she can provide and which he or she knows he or she is legally obliged to provide to a spouse, child or other dependent.
§ 11.426 Bribery.
(a) A person is guilty of bribery, a misdemeanor, if he or she offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another:
(1) Any pecuniary benefit as consideration for the recipient’s decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official or voter; or
(2) Any benefit as consideration for the recipient’s decision, vote, recommendation or other exercise of official discretion in a judicial or administrative proceeding; or
(3) Any benefit as consideration for a violation of a known legal duty as a public servant or party official.
(b) It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way, whether because he or she had not yet assumed office, or lacked jurisdiction, or for any other reason.
§ 11.427 Threats and other improper influence in official and political matters.
(a) A person commits a misdemeanor if he or she:
(1) Threatens unlawful harm to any person with purpose to influence his or her decision, vote or other exercise of discretion as a public servant, party official or voter; or
(2) Threatens harm to any public servant with purpose to influence his decision, opinion, recommendation, vote or other exercise of discretion in a judicial or administrative proceeding; or
(3) Threatens harm to any public servant with purpose to influence his decision, opinion, recommendation, vote or other exercise of discretion in a judicial or administrative proceeding; or
(b) It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way, whether because he or she had not yet assumed office, or lacked jurisdiction, or for any other reason.
§ 11.428 Retaliation for past official action.
A person commits a misdemeanor if he or she harms another by any unlawful act in retaliation for anything lawfully done by the latter in the capacity of public servant.
§ 11.429 Perjury.
A person is guilty of perjury, a misdemeanor, if in any official proceeding he or she makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he or she does not believe it to be true.
(a) No person shall be guilty of an offense under this section if he or she retracted the falsification in the course of the proceeding in which it was made before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding.
(b) No person shall be convicted of an offense under this section where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant.
§ 11.430 False alarms.
A person who knowingly causes a false alarm of fire or other emergency to be transmitted to, or within any organization, official or volunteer, for dealing with emergencies involving danger to life or property commits a misdemeanor.
§ 11.431 False reports.
(a) A person who knowingly gives false information to any law enforcement officer with the purpose to implicate another commits a misdemeanor.
(b) A person commits a petty misdemeanor if he or she:
(1) Reports to law enforcement authorities an offense or other incident within their concern knowing that it did not occur; or
(2) Pretends to furnish such authorities with information relating to an offense or incident when he or she knows he or she has no information relating to such offense or incident.
§ 11.432 Impersonating a public servant.
A person commits a misdemeanor if he or she falsely pretends to hold a position in the public service with purpose to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense to his or her prejudice.
§ 11.433 Disobedience to lawful order of court.
A person who willfully disobeys any order, subpoena, summons, warrant or command duly issued, made or given by any Court of Indian Offenses or any officer thereof is guilty of a misdemeanor.
§ 11.434 Resisting arrest.
A person commits a misdemeanor if, for the purpose of preventing a public servant from effecting a lawful arrest or discharging any other duty, he or she creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.
§ 11.435 Obstructing justice.
A person commits a misdemeanor if, with purpose to hinder the apprehension, prosecution, conviction or punishment of another for a crime, he or she harbors or conceals the other, provides a weapon, transportation, disguise or other means of escape, warns the other of impending discovery, or volunteers false information to a law enforcement officer.
§ 11.436 Escape.
A person is guilty of the offense of escape, a misdemeanor, if he or she unlawfully removes himself or herself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
§ 11.437 Bail jumping.
A person set at liberty by court order, with or without bail, upon condition that he or she will subsequently appear at a specified time or place, commits a misdemeanor if, without lawful excuse, he or she fails to appear at that time and place.
§ 11.438 Flight to avoid prosecution or judicial process.
A person who shall absent himself or herself from the Indian country over which the Court of Indian Offenses exercises jurisdiction for the purpose of avoiding arrest, prosecution or other judicial process shall be guilty of a misdemeanor.
§ 11.439 Witness tampering.
(a) A person commits a misdemeanor if, believing that an official proceeding or investigation is pending or about to be instituted, he or she attempts to induce or otherwise cause a witness or informant to:
(1) Testify or inform falsely; or
(2) Withhold any testimony, information, document or thing; or
(3) Elude legal process summoning him or her to supply evidence; or
(4) Absent himself or herself from any proceeding or investigation to which he or she has been legally summoned.
(b) A person commits a misdemeanor if he or she harms another by any unlawful act in retaliation for anything lawfully done in the capacity of witness or informant.
§ 11.440 Tampering with or fabricating physical evidence.
A person commits a misdemeanor if, believing that an official proceeding or investigation is pending or about to be instituted, he or she:
(a) Alters, destroys, conceals, or removes any record, document or thing with purpose to impair its verity or availability in such proceeding or investigation; or
(b) Makes, presents or uses any record, document or thing knowing it to be false and with the purpose to mislead a public servant who is or may be engaged in such proceeding or investigation.
§ 11.441 Disorderly conduct.
(a) A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof, he or she:
(1) Engages in fighting or threatening, or in violent or tumultuous behavior;
(2) Makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or
(3) Creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
(b) Public means affecting or likely to affect persons in a place to which the public has access; among the places included are highways, schools, prisons, apartments, places of business or amusement, or any neighborhood.
(c) An offense under this section is a petty misdemeanor if the actor’s purpose is to cause substantial harm or serious inconvenience, or if he or she persists in disorderly conduct after reasonable warning or request to desist. Otherwise, disorderly conduct is a violation.
§ 11.442 Riot; failure to disperse.
(a) A person is guilty of riot, a misdemeanor, if he or she participates with two or more others in a course of disorderly conduct:
(1) With purpose to commit or facilitate the commission of a felony or misdemeanor; or
(2) With purpose to prevent or coerce official action; or
(3) When the actor or any other participant to the knowledge of the actor uses or plans to use a firearm or other deadly weapon.
(b) Where three or more persons are participating in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, a law enforcement officer may order the participants and others in the immediate vicinity to disperse. A person who refuses or knowingly fails to obey such an order commits a misdemeanor.
§ 11.443 Harassment.
A person commits a petty misdemeanor if, with purpose to harass another, he or she:
(a) Makes a telephone call without purpose or legitimate communication; or
(b) Insults, taunts or challenges another in a manner likely to provoke violent or disorderly response; or
(c) Makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language; or
(d) Subjects another to an offensive touching; or
(e) Engages in any other course of alarming conduct serving no legitimate purpose.
§ 11.444 Carrying concealed weapons.
A person who goes about in public places armed with a dangerous weapon concealed upon his or her person is guilty of a misdemeanor unless he or she has a permit to do so signed by a magistrate of the Court of Indian Offenses.
§ 11.445 Driving violations.
(a) A person who shall operate any vehicle in a manner dangerous to the public safety is guilty of reckless driving, a petty misdemeanor, unless it is committed while under the influence of alcohol, in which case it is a misdemeanor.
(b) A person who shall drive, operate or be in physical control of any motor vehicle when his or her alcohol concentration is 0.10 or more shall be guilty of driving while intoxicated, a misdemeanor.
(c) Any person who drives, operates, or is in physical control of a motor vehicle within the Indian country under the jurisdiction of a Court of Indian Offenses consents to a chemical test of his or her blood, breath, or urine for the purpose of determining the presence of alcohol, to be administered at the direction of a law enforcement officer. The test may be required when the officer has reasonable cause to believe that a person is driving while intoxicated, and the person has either been lawfully placed under arrest for a violation of this section, or has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death.
(d) In the absence of an applicable tribal traffic code, the provisions of state traffic laws applicable in the state where a Court of Indian Offenses is located shall apply to the operation of motor vehicles within the Indian country under the jurisdiction of the Court of Indian Offenses with the exception that any person found guilty of violating such laws shall, in lieu of the penalties provided under state law, be sentenced according to the standards found in § 11.450 depending on the nature of the traffic code violation, and may be deprived of the right to operate any motor vehicle for a period not to exceed 6 months.
§ 11.446 Cruelty to animals.
A person commits a misdemeanor if he or she purposely or recklessly:
(a) Subjects any animal in his or her custody to cruel neglect; or
(b) Subjects any animal to cruel mistreatment; or
(c) Kills or injures any animal belonging to another without legal privilege or consent of the owner.
(d) Causes one animal to fight with another.
§ 11.447 Maintaining a public nuisance.
A person who permits his or her property to fall into such condition as to injure or endanger the safety, health, comfort, or property of his or her neighbors, is guilty of a violation.
§ 11.448 Abuse of office.
A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor if, knowing that his or her conduct is illegal, he or she:
(a) Subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or
(b) Denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.
§ 11.449 Violation of an approved tribal ordinance.
A person who violates the terms of any tribal ordinance duly enacted by the governing body of the tribe occupying the Indian country under the jurisdiction of the Court of Indian Offenses and approved by the Assistant Secretary—Indian Affairs or his or her designee, is guilty of an offense and upon conviction thereof shall be sentenced as provided in the ordinance.
§ 11.450 Maximum fines and sentences of imprisonment.
A person convicted of an offense under the regulations in this part may be sentenced as follows:
| Type of offense | Maximum allowable sentence |
|---|---|
| (a) Misdemeanor | Up to 1 year in prison, or a fine of up to $5,000, or both. |
| (b) Petty misdemeanor | Up to 6 months in prison, or a fine of up to $2,500, or both. |
| (c) Violation | Up to 3 months in prison, or a fine of up to $1,000, or both. |
§ 11.451 Abuse of psychotoxic chemical solvents.
(a) It is unlawful to:
(1) Intentionally smell or inhale the fumes of any psychotoxic chemical solvent or possess, purchase, or attempt to possess or purchase any psychotoxic chemical solvent, for the purpose of causing intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system; or
(2) Sell, give away, dispense, or distribute, or offer to sell, give away, dispense, or distribute, any psychotoxic chemical solvent knowing or believing that the purchaser or another person intends to use the solvent in violation of this section.
(b) This section does not apply to inhalation of anesthesia for medical or dental purposes.
(c) As used in this section, “psychotoxic chemical solvent” means any glue, gasoline, paint, hair spray, Lysol, or other substance containing one or more of the following chemical compounds:
(1) Acetone and acetate;
(2) Benzene;
(3) Butyl-alcohol;
(4) Methyl ethyl;
(6) Peptone;
(7) Pentachlorophenol;
(8) Petroleum ether; or
(9) Any other chemical substance the inhalation of whose fumes or vapors can cause intoxication, inebriation, excitement, stupefaction, or the dulling of the brain or nervous system.
(d) The statement listing the contents of a substance packaged in a container by the manufacturer or producer thereof is rebuttable proof of the contents of the substance without further expert testimony if it reasonably appears that the substance in the container is the same substance placed therein by the manufacturer or producer.
(e) Abuse of psychotoxic chemical solvents, as defined in this section, is punishable as a petty misdemeanor, and the court may order any person using psychotoxic chemical solvents as described in paragraph (a) of this section to be committed to a facility for treatment for up to 6 months.
(f) Psychotoxic chemical solvents kept or used in violation of this section are declared contraband. Upon proof of a violation, these solvents must be forfeited to the Federal government by order of the court, following public notice and an opportunity for any person claiming an interest in the solvents to be heard.
§ 11.452 Possession of a controlled substance.
(a) It is unlawful for a person to knowingly or intentionally possess any controlled substance listed in 21 CFR Part 1308, as amended, unless:
(1) The Controlled Substances Act or Drug Enforcement Agency regulations specifically authorizes possession of the substance;
(2) The substance or preparation is excluded or exempted by 21 CFR 1308.21 through 1308.35, as amended; or
(3) The provisions of 42 U.S.C. 1996a (regarding traditional Indian religious use of peyote) apply.
(b) Violations of paragraph (a) of this section are punishable as a misdemeanor.
(c) Any controlled substance involved in violation of this section is declared to be contraband. Upon proof of a violation of this section, the controlled substance must be forfeited to the Federal Government by order of the court, after public notice and an opportunity for any person claiming an interest in the substance to be heard.
(d) Any personal property used to transport, conceal, manufacture, cultivate, or distribute a controlled substance in violation of this section is subject to forfeiture to the Federal Government by order of the court upon proof of this use, following public notice and opportunity for any person claiming an interest in the property to be heard.
§ 11.453 Prostitution or solicitation.
A person who commits prostitution or solicitation or who knowingly keeps, maintains, rents, or leases, any house, room, tent, or other place for the purpose of prostitution is guilty of a misdemeanor.
§ 11.454 Domestic violence.
(a) A person who commits domestic violence by inflicting physical harm, bodily injury, or sexual assault, or inflicting the fear of imminent physical harm, bodily injury, or sexual assault on a family member, is guilty of a misdemeanor.
(b) For purposes of this section, a family member is any of the following:
(1) A spouse;
(2) A former spouse;
(3) A person related by blood;
(4) A person related by existing or prior marriage;
(5) A person who resides or resided with the defendant;
(6) A person with whom the defendant has a child in common; or
(7) A person with whom the defendant is or was in a dating or intimate relationship.
Subpart E—Civil Actions
§ 11.500 Law applicable to civil actions.
(a) In all civil cases, the Magistrate of a Court of Indian Offenses shall have discretion to apply:
(1) Any laws of the United States that may be applicable;
(2) Any authorized regulations contained in the Code of Federal Regulations; and
(3) Any laws or customs of the tribe occupying the area of Indian country over which the court has jurisdiction that are not prohibited by Federal laws.
(b) The delineation in paragraph (a) of this section does not establish a hierarchy relative to the applicability of specific law in specific cases.
(c) Where any doubt arises as to the customs of the tribe, the court may request the advice of counselors familiar with those customs.
(d) Any matters that are not covered by the laws or customs of the tribe, or by applicable Federal laws and regulations, may be decided by the Court of Indian Offenses according to the laws of the State in which the matter in dispute lies.
§ 11.501 Judgments in civil actions.
(a) In all civil cases, judgment shall consist of an order of the court awarding damages to be paid to the injured party, or directing the surrender of certain property to the injured party, or the performance of some other act for the benefit of the injured party, including injunctive relief and declaratory judgments.
(b) Where the injury inflicted was the result of carelessness of the defendant, the judgment shall fairly compensate the injured party for the loss he or she has suffered.
(c) Where the injury was deliberately inflicted, the judgment shall impose an additional penalty upon the defendant, which additional penalty may run either in favor of the injured party or in favor of the tribe.
(d) Where the injury was inflicted as a result of accident, or where both the complainant and the defendant were at fault, the judgment shall compensate the injured party for a reasonable part of the loss he or she has suffered.
(e) No judgment shall be given on any suit unless the defendant has actually received notice of such suit and ample opportunity to appear in court in his or her defense.
§ 11.502 Costs in civil actions.
(a) The court may assess the accruing costs of the case against the party or parties against whom judgment is given. Such costs shall consist of the expenses of voluntary witnesses for which either party may be responsible and the fees of jurors in those cases where a jury trial is had, and any further incidental expenses connected with the procedure before the court as the court may direct.
(b) In all civil suits the complainant may be required to deposit with the clerk of the court a fee or other security in a reasonable amount to cover costs and disbursements in the case.
§ 11.503 Applicable civil procedure.
The procedure to be followed in civil cases shall be the Federal Rules of Civil Procedure applicable to United States district courts, except insofar as such procedures are superseded by order of the Court of Indian Offenses or by the existence of inconsistent tribal rules of procedure.
§ 11.504 Applicable rules of evidence.
Courts of Indian Offenses shall be bound by the Federal Rules of Evidence, except insofar as such rules are superseded by order of the Court of Indian Offenses, or by the existence of inconsistent tribal rules of evidence.
Subpart F—Domestic Relations
§ 11.600 Marriages.
(a) A magistrate of the Court of Indian Offenses shall have the authority to perform marriages.
(b) A valid marriage shall be constituted by:
(1) The issuance of a marriage license by the Court of Indian Offenses and by execution of a consent to marriage by both parties to the marriage and recorded with the clerk of the court; or
(2) The recording of a tribal custom marriage with the Court of Indian Offenses within 30 days of the tribal custom marriage ceremony by the signing by both parties of a marriage register maintained by the clerk of the court.
(c) A marriage license application shall include the following information:
(1) Name, sex, occupation, address, social security number, and date and place of birth of each party to the proposed marriage;
(2) If either party was previously married, his or her name, and the date, place, and court in which the marriage was dissolved or declared invalid or the date and place of death of the former spouse;
(3) Name and address of the parents or guardian of each party;
(4) Whether the parties are related to each other and, if so, their relationship; and
(5) The name and date of birth of any child of which both parties are parents, born before the making of the application, unless their parental rights and the parent and child relationship with respect to the child have been terminated.
(6) A certificate of the results of any medical examination required by either applicable tribal ordinances, or the laws of the State in which the Indian country under the jurisdiction of the Court of Indian Offenses is located.
§ 11.601 Marriage licenses.
A marriage license shall be issued by the clerk of the court in the absence of any showing that the proposed marriage would be invalid under any provision of this part or tribal custom, and upon written application of an unmarried male and unmarried female, both of whom must be eighteen (18) years or older. If either party to the marriage is under the age of eighteen (18), that party must have the written consent of parent or his or her legal guardian.
§ 11.602 Solemnization.
(a) In the event a judge, clergyman, tribal official or anyone authorized to do so solemnizes a marriage, he or she shall file with the clerk of the court certification thereof within thirty (30) days of the solemnization.
(b) Upon receipt of the marriage certificate, the clerk of the court shall register the marriage.
§ 11.603 Invalid or prohibited marriages.
(a) The following marriages are prohibited:
(1) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
(2) A marriage between an ancestor and a descendant, or between a brother and a sister, whether the relationship is by the half or the whole blood;
(3) A marriage between an aunt and a nephew or between an uncle and a niece, whether the relationship is by the half or the whole blood, except as to marriages permitted by established tribal custom;
(4) A marriage prohibited by custom and usage of the tribe.
(b) Children born of a prohibited marriage are legitimate.
§ 11.604 Declaration of invalidity.
(a) The Court of Indian Offenses shall enter a decree declaring the invalidity of a marriage entered into under the following circumstances:
(1) A party lacked capacity to consent to the marriage, either because of mental incapacity or infirmity or by the influence of alcohol, drugs, or other incapacitating substances; or
(2) A party was induced to enter into a marriage by fraud or duress; or
(3) A party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was entered into, the other party did not know of the incapacity; or
(4) The marriage is prohibited under § 11.603.
(b) A declaration of invalidity may be sought by either party to the marriage or by the legal representative of the party who lacked capacity to consent.
§ 11.605 Dissolution.
(a) The Court of Indian Offenses shall enter a decree of dissolution of marriage if:
(1) The court finds that the marriage is irretrievably broken, if the finding is supported by evidence that (i) the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of the proceeding, or (ii) there is serious marital discord adversely affecting the attitude of one or both of the parties towards the marriage;
(2) The court finds that either party, at the time the action was commenced, was domiciled within the Indian country under the jurisdiction of the court, and that the domicile has been maintained for 90 days next preceding the making of the findings; and
(3) To the extent it has jurisdiction to do so, the court has considered, approved, or provided for child custody, the support of any child entitled to support, the maintenance of either spouse, and the disposition of property; or has provided for a separate later hearing to complete these matters.
(b) If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the Court of Indian Offenses shall grant the decree in that form unless the other party objects.
§ 11.606 Dissolution proceedings.
(a) Either or both parties to the marriage may initiate dissolution proceedings.
(b) If a proceeding is commenced by one of the parties, the other party shall be served in the manner provided by the applicable rule of civil procedure and within thirty days after the date of service may file a verified response.
(c) The verified petition in a proceeding for dissolution of marriage or legal separation shall allege that the marriage is irretrievably broken and shall set forth:
(1) The age, occupation, and length of residence within the Indian country under the jurisdiction of the court of each party;
(2) The date of the marriage and the place at which it was registered;
(3) That jurisdictional requirements are met and that the marriage is irretrievably broken in that either (i) the parties have lived separate and apart for a period of more than 180 days next preceding the commencement of the proceeding or (ii) there is a serious marital discord adversely affecting the attitude of one or both of the parties toward the marriage, and there is no reasonable prospect of reconciliation;
(4) The names, age, and addresses of all living children of the marriage and whether the wife is pregnant;
(5) Any arrangement as to support, custody, and visitation of the children and maintenance of a spouse; and
(6) The relief sought.
§ 11.607 Temporary orders and temporary injunctions.
(a) In a proceeding for dissolution of marriage or for legal separation, either party may move for temporary maintenance or temporary support of a child of the marriage entitled to support. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested.
(b) As a part of a motion for temporary maintenance or support or by an independent motion accompanied by an affidavit, either party may request the Court of Indian Offenses to issue a temporary injunction for any of the following relief:
(1) Restraining any person from transferring, encumbering, concealing, or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him or her to notify the moving party of any proposed extraordinary expenditures made after the order is issued;
(2) Enjoining a party from molesting or disturbing the peace of the other party or of any child;
(3) Excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result;
(4) Enjoining a party from removing a child from the jurisdiction of the court; and
(5) Providing other injunctive relief proper in the circumstances.
(c) The court may issue a temporary restraining order without requiring notice to the other party only if it finds on the basis of the moving affidavit or other evidence that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.
(d) A response may be filed within 20 days after service of notice of a motion or at the time specified in the temporary restraining order.
(e) On the basis of the showing made, the Court of Indian Offenses may issue a temporary injunction and an order for temporary maintenance or support in amounts and on terms just and proper under the circumstances.
(f) A temporary order or temporary injunction:
(1) Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in a proceeding;
(2) May be revoked or modified before the final decree as deemed necessary by the court;
(3) Terminates when the final decree is entered or when the petition for dissolution or legal separation is voluntarily dismissed.
§ 11.608 Final decree; disposition of property; maintenance; child support; custody.
(a) A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal.
(b) The Court of Indian Offenses shall have the power to impose judgment as follows in dissolution or separation proceedings:
(1) Apportion or assign between the parties the non-trust property and non-trust assets belonging to either or both and whenever acquired, and whether the title thereto is in the name of the husband or wife or both;
(2) Grant a maintenance order for either spouse in amounts and for periods of time the court deems just;
(3) Order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for his or her support, without regard to marital misconduct, after considering all relevant factors. In addition:
(i) When a support order is issued by a Court of Indian Offenses, the order may provide that a portion of an absent parent’s wages be withheld to comply with the order on the earliest of the following dates: When an amount equal to one month’s support becomes overdue; when the absent parent requests withholding; or at such time as the Court of Indian Offenses selects. The amount to be withheld may include an amount to be applied toward liquidation of any overdue support.
(ii) If the Court of Indian Offenses finds that an absent parent who has been ordered to pay child support is now residing within the jurisdiction of another Court of Indian Offenses, an Indian tribal court, or a state court, it shall petition such court for reciprocal enforcement and provide it with a copy of the support order.
(iii) If the Court of Indian Offenses receives a petition from another Court of Indian Offenses, an Indian tribal court or a state court, it shall take necessary steps to determine paternity, establish an order for child support, register a foreign child support order or enforce orders as requested in the petition.
(iv) The Court of Indian Offenses shall assist a state in the enforcement and collection of past-due support from Federal tax refunds of absent parents living within the Indian country over which the court has jurisdiction.
(v) Any person or agency who has provided support or assistance to a child under 18 years of age shall be a proper person to bring an action under this section and to recover judgment in an amount equal to such past-paid support or assistance, including costs of bringing the action.
(4) Make child custody determinations in accordance with the best interest of the child.
(5) Restore the maiden name of the wife.
§ 11.609 Determination of paternity and support.
The Court of Indian Offenses shall have jurisdiction of all suits brought to determine the paternity of a child and to obtain a judgment for the support of the child. A judgment of the court establishing the identity of the father of the child shall be conclusive of that fact in all subsequent determinations of inheritance by the Court of Indian Offenses or by the Department of the Interior.
§ 11.610 Appointment of guardians.
The court shall have the jurisdiction to appoint or remove legal guardians for minors and for persons who are incapable of managing their own affairs under terms and conditions to be prescribed by the court.
§ 11.611 Change of name.
The Court of Indian Offenses shall have the authority to change the name of any person upon petition of such person or upon the petition of the parents of any minor, if at least one parent is Indian. Any order issued by the court for a change of name shall be kept as a permanent record and copies shall be filed with the agency superintendent, the governing body of the tribe occupying the Indian country under the jurisdiction of the court, and any appropriate agency of the State in which the court is located.
Subpart G—Probate Proceedings
§ 11.700 Probate jurisdiction.
The Court of Indian Offenses shall have jurisdiction to administer in probate the estate of a deceased Indian who, at the time of his or her death, was domiciled or owned real or personal property situated within the Indian country under the jurisdiction of the court to the extent that such estate consists of property which does not come within the jurisdiction of the Secretary of the Interior.
§ 11.701 Duty to present will for probate.
Any custodian of a will shall deliver the same to the Court of Indian Offenses within 30 days after receipt of information that the maker thereof is deceased. Any custodian who fails to do so shall be liable for damages sustained by any person injured thereby.
§ 11.702 Proving and admitting will.
(a) Upon initiating the probate of an estate, the will of the decedent shall be filed with the court. Such will may be proven and admitted to probate by filing an affidavit of an attesting witness which identifies such will as being the will which the decedent executed and declared to be his or her last will. If the evidence of none of the attesting witnesses is available, the court may allow proof of the will by testimony that the signature of the testator is genuine.
(b) At any time within 90 days after a will has been admitted to probate, any person having an interest in the decedent’s estate may contest the validity of such will. In the event of such contest, a hearing shall be held to determine the validity of such will.
(c) Upon considering all relevant information concerning the will, the Court of Indian Offenses shall enter an order affirming the admission of such will to probate, or rejecting such will and ordering that the probate of the decedent’s estate proceed as if the decedent had died intestate.
§ 11.703 Petition and order to probate estate.
(a) Any person having an interest in the administration of an estate which is subject to the jurisdiction of the court may file a written petition with the court requesting that such estate be administered in probate.
(b) The Court of Indian Offenses shall enter an order directing that the estate be probated upon finding that the decedent was an Indian who, at the time of his or her death, was domiciled or owned real or personal property situated within the Indian country under the jurisdiction of the court other than trust or other restricted property, that the decedent left an estate subject to the jurisdiction of the court, and that it is necessary to probate such estate.
§ 11.704 Appointment and duties of executor or administrator.
(a) Upon ordering the estate to be probated, the court shall appoint an administrator to administer the estate of the decedent. The person nominated by the decedent’s will, if any, to be the executor of the estate shall be so appointed, provided such person is willing to serve in such capacity.
(b) The executor or administrator appointed by the court shall have the following duties and powers during the administration of the estate and until discharged by the court:
(1) To send by certified mail true copies of the order to probate the estate and the will of the decedent admitted to probate by such order, if any, to each heir, devisee and legatee of the decedent, at their last known address, to the governing body of the tribe or tribes occupying the Indian country over which the court has jurisdiction, and to the agency superintendent;
(2) To preserve and protect the decedent’s property within the estate and the heirs, so far as is possible;
(3) To investigate promptly all claims against the decedent’s estate and determine their validity;
(4) To cause a written inventory of all the decedent’s property within the estate to be prepared promptly with each article or item being separately set forth and cause such property to be exhibited to and appraised by an appraiser, and the inventory and appraisal thereof to be filed with the court;
(5) To give promptly all persons entitled thereto such notice as is required under these proceedings;
(6) To account for all property within the estate which may come into his or her possession or control, and to maintain accurate records of all income received and disbursements made during the course of the administration.
§ 11.705 Removal of executor or administrator.
The Court of Indian Offenses may order the executor or administrator to show cause why he or she should not be discharged, and may discharge the executor or administrator for failure, neglect or improper performance of his or her duties.
§ 11.706 Appointment and duties of appraiser.
(a) Upon ordering an estate to be probated, the court shall appoint a disinterested and competent person as an appraiser to appraise all of the decedent’s real and personal property within the estate.
(b) It shall be the duty of the appraiser to appraise separately the true cash value of each article or item of property within the estate, including debts due the decedent, and to indicate the appraised value of each such article or item of property set forth in the inventory of the estate and to certify such appraisal by subscribing his or her name to the inventory and appraisal.
§ 11.707 Claims against estate.
(a) Creditors of the estate or those having a claim against the decedent shall file their claim with the clerk of the court or with the executor or administrator within 60 days from official notice of the appointment of the executor or administrator published locally in the press or posting of signs at the tribal and agency offices, giving appropriate notice for the filing of claims.
(b) The executor or administrator shall examine all claims within 90 days of his or her appointment and notify the claimant whether his or her claim is accepted or rejected. If the claimant is notified of rejection, he or she may request a hearing before the court by filing a petition requesting such hearing within 30 days following the notice of rejection.
§ 11.708 Sale of property.
After filing the inventory and appraisal, the executor or administrator may petition the court for authority to sell personal property of the estate for purposes of paying the expenses of last illness and burial expenses, expenses of administration, claims, if any, against the estate, and for the purpose of distribution. If, in the court’s judgment, such sale is in the best interest of the estate, the court shall order such sale and prescribe the terms upon which the property shall be sold.
§ 11.709 Final account.
(a) When the affairs of an estate have been fully administered, the executor or administrator shall file a final account with the court, verified by his or her oath. Such final account shall affirmatively set forth:
(1) That all claims against the estate have been paid, except as shown, and that the estate has adequate unexpended and unappropriated funds to fully pay such remaining claims;
(2) The amount of money received and expended by him or her, from whom received and to whom paid, referring to the vouchers for each of such payments;
(3) That there is nothing further to be done in the administration of the estate except as shown in the final account;
(4) The remaining assets of the estate, including unexpended and unappropriated money, at the time of filing the final account;
(5) The proposed determination of heirs and indicate the names, ages, addresses and relationship to the decedent of each distributee and the proposed distributive share and value thereof each heir, devisee or legatee is to receive; and
(6) A petition that the court set a date for conducting a hearing to approve the final account, to determine the heirs, devisees and legatees of the decedent and the distributive share each distributee is to receive.
§ 11.710 Determination of the court.
At the time set for hearing upon the final account, the Court of Indian Offenses shall proceed to examine all evidence relating to the distribution of the decedent’s estate, and consider objections to the final account which may have been filed by any heir, devisee, legatee, or other person having an interest in the distribution of the estate. Upon conclusion of the hearing, the court shall enter an order:
(a) Providing for payment of approved claims;
(b) Determining the decedent’s heirs, devisees and legatees, indicating the names, ages and addresses of each, and the distributive share of the remaining estate which each distributee is to receive; and
(c) Directing the administrator or executor to distribute such distributive share to those entitled thereto.
§ 11.711 Descent and distribution.
(a) The court shall distribute the estate according to the terms of the will of the decedent which has been admitted to probate.
(b) If the decedent died intestate or having left a will which has been rejected by the court, the estate shall be distributed as follows:
(1) According to the laws and customs of the tribe if such laws and customs are proved; or
(2) According to state law absent the existence of tribal laws or customs.
(c) If no person takes under the above subsections, the estate shall escheat to the tribe.
§ 11.712 Closing estate.
(a) Upon finding that the estate has been fully administered and is in a condition to be closed, the court shall enter an order closing the estate and discharging the executor or administrator.
(b) If an order closing the estate has not been entered by the end of nine months following appointment of executor or administrator, the executor or administrator shall file a written report with the court stating the reasons why the estate has not been closed.
§ 11.713 Small estates.
An estate having an appraised value which does not exceed $2,000.00 and which is to be inherited by a surviving spouse and/or minor children of the deceased may, upon petition of the executor or administrator, and a hearing before the court, be distributed without administration to those entitled thereto, upon which the estate shall be closed.
Subpart H—Appellate Proceedings
§ 11.800 Jurisdiction of appellate division.
The jurisdiction of the appellate division shall extend to all appeals from final orders and judgments of the trial division, by any party except the prosecution in a criminal case where there has been a jury verdict. The appellate division shall review all issues of law presented to it which arose in the case, but shall not reverse the trial division decision unless the legal error committed affected a substantial right of a party or the outcome of the case.
§ 11.801 Procedure on appeal.
(a) An appeal must be taken within 15 days from the judgment appealed from by filing a written notice of appeal with the clerk of the court.
(b) The notice of appeal shall specify the party or parties taking the appeal, shall designate the judgment, or part thereof appealed from, and shall contain a short statement of reasons for the appeal. The clerk of the court shall mail a copy of the notice of appeal to all parties other than parties taking the appeal.
(c) In civil cases, other parties shall have 15 days to respond to the notice of appeal.
(d) In civil cases, the appellant may request the trial division to stay the judgment pending action on the notice of appeal, and, if the appeal is allowed, either party may request the trial division to grant or stay an injunction pending appeal. The trial division may condition a stay or injunction pending appeal on the depositing of cash or bond sufficient to cover damages awarded by the court together with interest.
§ 11.802 Judgment against surety.
Any surety to a bond submits himself or herself to the jurisdiction of the Court of Indian Offenses, and irrevocably appoints the clerk of the court as his or her agent upon whom any papers affecting his or her liability on the bond may be served.
§ 11.803 Record on appeal.
Within 20 days after a notice of appeal is filed, the clerk of court shall certify and file with the appellate division the record of the case.
§ 11.804 Briefs and memoranda.
(a) Within 30 days after the notice of appeal is filed, the appellant may file a written brief in support of his or her appeal. An original and one copy for each appellee shall be filed with the clerk of court who shall mail one copy by registered or certified mail to each appellee.
(b) The appellee shall have 30 days after receipt of the appellant’s brief within which to file an answer brief. An original and one copy for each appellant shall be filed with the clerk of the court who shall mail one copy, by registered or certified mail, to each appellant.
§ 11.805 Oral argument.
The appellate division shall assign all criminal cases for oral argument. The court may in its discretion assign civil cases for oral argument or may dispose of civil cases on the briefs without argument.
§ 11.806 Rules of court.
The chief magistrate of the appellate division shall prescribe all necessary rules concerning the operation of the appellate division and the time and place of meeting of the court.
Subpart I—Children’s Court
§ 11.900 Definitions.
For purposes of sections pertaining to the children’s court:
(a) Abandon means the leaving of a minor without communication or failing to support a minor for a period of one year or more with no indication of the parents’ willingness to assume a parental role.
(b) Adult means a person eighteen (18) years or older.
(c) Counsel means an attorney admitted to the bar of a state or the District of Columbia or a lay advocate admitted to practice before the Court of Indian Offenses.
(d) Custodian means one who has physical custody of a minor and who is providing food, shelter and supervision to the minor.
(e) Custody means the power to control the day-to-day activities of the minor.
(f) Delinquent act means an act which, if committed by an adult, would be designated a crime under this part or under an ordinance of the tribe.
(g) Detention means the placement of a minor in a physically restrictive facility.
(h) Guardian means a person other than the minor’s parent who is by law responsible for the care of the minor.
(i) Guardian ad Litem means a person appointed by the court to represent the minor’s interests before the court.
(j) Juvenile offender means a person who commits a delinquent act prior to his or her eighteenth birthday.
(k) Minor means:
(1) A person under 18 years of age,
(2) A person 18 years of age or older concerning whom proceedings are commenced in the children’s court prior to his or her eighteenth birthday, or
(3) A person 18 years of age or older who is under the continuing jurisdiction of the children’s court.
(l) Minor-in-need-of-care means a minor who:
(1) Has no parent or guardian available and willing to take care of him or her;
(2) Is unwilling to allow his or her parent or guardian to take care of him or her;
(3) Has suffered or is likely to suffer a physical or emotional injury, inflicted by other than accidental means, which causes or creates a substantial risk of death, disfigurement, impairment of bodily functions or emotional health;
(4) Has not been provided with adequate food, clothing, shelter, medical care, education or supervision by his or her parent, guardian or custodian;
(5) Has been sexually abused;
(6) Has been committing delinquent acts as a result of parental pressure, guidance or approval; or,
(7) Has been committing status offenses.
(m) Status offense means an offense which, if committed by an adult, would not be designated a crime under this part or under an ordinance of the tribe.
§ 11.901 The children’s court established.
When conducting proceedings under §§ 11.900–11.1114 of this part, the Court of Indian Offenses shall be known as the “Children’s Court”.
§ 11.902 Non-criminal proceedings.
No adjudication upon the status of any minor in the jurisdiction of the children’s court shall be deemed criminal or be deemed a conviction of a crime, unless the children’s court refers the matter to the Court of Indian Offenses. Neither the disposition nor evidence given before the children’s court shall be admissible as evidence against the child in any proceeding in another court.
§ 11.903 Presenting officer.
(a) The agency superintendent and the chief magistrate of the children’s court shall jointly appoint a presenting officer to carry out the duties and responsibilities set forth under §§ 11.900–11.1114 of this part. The presenting officer’s qualifications shall be the same as the qualifications for the official who acts as prosecutor for the Court of Indian Offenses. The presenting officer may be the same person who acts as prosecutor in the Court of Indian Offenses.
(b) The presenting officer shall represent the tribe in all proceedings under §§ 11.900–11.1114 of this part.
§ 11.904 Guardian ad litem.
The children’s court, under any proceeding authorized by this part, shall appoint, for the purposes of the proceeding, a guardian ad litem for a minor, where the court finds that the minor does not have a natural or adoptive parent, guardian or custodian willing and able to exercise effective guardianship, or where the parent, guardian, or custodian has been accused of abusing or neglecting the minor.
§ 11.905 Jurisdiction.
The children’s court has exclusive, original jurisdiction of the following proceedings:
(a) Proceedings in which a minor who resides in a community for which the court is established is alleged to be a juvenile offender, unless the children’s court transfers jurisdiction to the Court of Indian Offenses pursuant to § 11.907 of this part.
(b) Proceedings in which a minor who resides in a community for which the court is established is alleged to be a minor-in-need-of-care.
§ 11.906 Rights of parties.
(a) In all hearings and proceedings under §§ 11.900–11.1114 of this part the following rights will be observed unless modified by the particular section describing a hearing or proceeding:
(1) Notice of the hearing or proceeding shall be given the minor, his or her parents, guardian or custodian and their counsel. The notice shall be delivered by certified mail. The notice shall contain:
(i) The name of the court;
(ii) The title of the proceeding; and
(iii) The date, time and place of the proceeding.
(b) The children’s court magistrate shall inform the minor and his or her parents, guardian or custodian of their right to retain counsel, and, in juvenile delinquency proceedings, shall tell them: “You have a right to have a lawyer or other person represent you at this proceeding. If you cannot afford to hire counsel, the court will appoint counsel for you.”
(c) If the children’s court magistrate believes there is a potential conflict of interest between the minor and his or her parents, guardian, or custodian with respect to legal representation, the court shall appoint another person to act as counsel for the minor.
(d) The minor need not be a witness against, nor otherwise incriminate, himself or herself.
(e) The children’s court shall give the minor, and the minor’s parent, guardian or custodian the opportunity to introduce evidence, to be heard on their own behalf and to examine witnesses.
§ 11.907 Transfer to Court of Indian Offenses.
(a) The presenting officer or the minor may file a petition requesting the children’s court to transfer the minor to the Court of Indian Offenses if the minor is 14 years of age or older and is alleged to have committed an act that would have been considered a crime if committed by an adult.
(b) The children’s court shall conduct a hearing to determine whether jurisdiction of the minor should be transferred to the Court of Indian Offenses.
(1) The transfer hearing shall be held no more than 30 days after the petition is filed.
(2) Written notice of the transfer hearing shall be given to the minor and the minor’s parents, guardian or custodian at least 72 hours prior to the hearing.
(c) All the rights listed in § 11.906 shall be afforded the parties at the transfer hearing.
(d) The following factors shall be considered when determining whether to transfer jurisdiction of the minor to the Court of Indian Offenses:
(1) The nature and seriousness of the offense with which the minor is charged.
(2) The nature and condition of the minor, as evidenced by his or her age; mental and physical condition; past record of offenses; and responses to past children’s court efforts at rehabilitation.
(e) The children’s court may transfer jurisdiction of the minor to the Court of Indian Offenses if the children’s court finds clear and convincing evidence that both of the following circumstances exist:
(1) There are no reasonable prospects for rehabilitating the minor through resources available to the children’s court; and
(2) The offense allegedly committed by the minor evidences a pattern of conduct which constitutes a substantial danger to the public.
(f) When a minor is transferred to the Court of Indian Offenses, the children’s court shall issue a written transfer order containing reasons for its order. The transfer order constitutes a final order for purposes of appeal.
§ 11.908 Court records.
(a) A record of all hearings under §§ 11.900–11.1114 of this part shall be made and preserved.
(b) All children’s court records shall be confidential and shall not be open to inspection to anyone but the minor, the minor’s parents or guardian, the presenting officer, or others by order of the children’s court.
§ 11.909 Law enforcement records.
(a) Law enforcement records and files concerning a minor shall be kept separate from the records and files of adults.
(b) All law enforcement records and files shall be confidential and shall not be open to inspection to anyone but the minor, the minor’s parents or guardian, the presenting officer, or others by order of the children’s court.
§ 11.910 Expungement.
When a minor who has been the subject of any proceeding before the children’s court attains his or her twenty-first birthday, the children’s court magistrate shall order the court records and the law enforcement records pertaining to the minor to be destroyed, except for adoption records which shall not be destroyed under any circumstances.
§ 11.911 Appeal.
(a) For purposes of appeal, a record of the proceedings shall be made available to the minor and parents, guardian or custodian. Costs of obtaining the record shall be paid by the party seeking the appeal.
(b) Any party to a children’s court hearing may appeal a final order or disposition of the case by filing a written notice of appeal with the children’s court within 30 days of the final order of disposition.
(c) No decree or disposition of a hearing shall be stayed by such appeal.
(d) All appeals shall be conducted in accordance with this part.
§ 11.912 Contempt of court.
Any willful disobedience or interference with any order of the children’s court constitutes contempt of court which may be punished in accordance with this part.
Subpart J—Juvenile Offender Procedure
§ 11.1000 Complaint.
A complaint must be filed by a law enforcement officer or by the presenting officer and sworn to by a person who has knowledge of the facts alleged. The complaint shall be signed by the complaining witness, and shall contain:
(a) A citation to the specific section(s) of this part which gives the children’s court jurisdiction of the proceedings;
(b) A citation to the section(s) of this part which the minor is alleged to have violated;
(c) The name, age, and address of the minor who is the subject of the complaint, if known; and
(d) A plain and concise statement of the facts upon which the allegations are based, including the date, time, and location at which the alleged facts occurred.
§ 11.1001 Warrant.
The children’s court may issue a warrant directing that a minor be taken into custody if the court finds there is probable cause to believe the minor committed the delinquent act alleged in the complaint.
§ 11.1002 Custody.
A minor may be taken into custody by a law enforcement officer if:
(a) The officer observes the minor committing a delinquent act; or
(b) The officer has reasonable grounds to believe a delinquent act has been committed that would be a crime if committed by an adult, and that the minor has committed the delinquent act; or
(c) A warrant pursuant to § 11.1001 has been issued for the minor.
§ 11.1003 Law enforcement officer’s duties.
A law enforcement officer who takes a minor into custody pursuant to § 11.1002 of this part shall:
(a) Give the following warnings to any minor taken into custody prior to any questioning:
(1) The minor has a right to remain silent;
(2) Anything the minor says can be used against the minor in court;
(3) The minor has the right to the presence of counsel during questioning; and
(4) If he or she cannot afford counsel, the court will appoint one.
(b) Release the minor to the minor’s parent, guardian, or custodian and issue a verbal advice or warning as may be appropriate, unless shelter care or detention is necessary.
(c) If the minor is not released, make immediate and recurring efforts to notify the minor’s parents, guardian, or custodian to inform them that the minor has been taken into custody and inform them of their right to be present with the minor until an investigation to determine the need for shelter care or detention is made by the court.
§ 11.1004 Detention and shelter care.
(a) A minor alleged to be a juvenile offender may be detained, pending a court hearing, in the following places:
(1) A foster care facility approved by the tribe;
(2) A detention home approved by the tribe; or
(3) A private family home approved by the tribe.
(b) A minor who is 16 years of age or older may be detained in a jail facility used for the detention of adults only if:
(1) A facility in paragraph (a) of this section is not available or would not assure adequate supervision of the minor;
(2) The minor is housed in a separate room from the detained adults; and
(3) Routine inspection of the room where the minor is housed is conducted every 30 minutes to assure his or her safety and welfare.
§ 11.1005 Preliminary inquiry.
(a) If a minor is placed in detention or shelter care, the children’s court shall conduct a preliminary inquiry within 24 hours for the purpose of determining:
(1) Whether probable cause exist to believe the minor committed the alleged delinquent act; and
(2) Whether continued detention or shelter care is necessary pending further proceedings.
(b) If a minor has been released to the parents, guardian or custodian, the children’s court shall conduct a preliminary inquiry within three days after receipt of the complaint for the sole purpose of determining whether probable cause exists to believe the minor committed the alleged delinquent act.
(c) If the minor’s parents, guardian or custodian is not present at the preliminary inquiry, the children’s court shall determine what efforts have been made to notify and to obtain the presence of the parents, guardian, or custodian. If it appears that further efforts are likely to produce the parents, guardian or custodian, the children’s court shall recess for no more than 24 hours and direct that continued efforts be made to obtain the presence of parents, guardian or custodian.
(d) All the rights listed in § 11.906 shall be afforded the parties in a preliminary inquiry.
(e) The children’s court shall hear testimony concerning:
(1) The circumstances that gave rise to the complaint or the taking of the minor into custody; and
(2) The need for detention or shelter care.
(f) If the children’s court finds that probable cause exists to believe the minor performed the delinquent act, the minor shall be released to the parents, guardian or custodian, and ordered to appear at the adjudicatory hearing unless:
(1) The act is serious enough to warrant continued detention or shelter care;
(2) There is reasonable cause to believe the minor will run away and be unavailable for further proceedings; or
(3) There is reasonable cause to believe that the minor will commit a serious act causing damage to person or property.
(g) The children’s court may release a minor pursuant to paragraph (f) of this section to a relative or other responsible adult tribal member if the parent, guardian, or custodian of the minor consents to the release. If the minor is ten years of age or older, the minor and the parents, guardian or custodian must both consent to the release.
(h) Upon a finding that probable cause exists to believe that the minor has committed the alleged delinquent act and that there is need for detention or shelter care, the minor’s detention or shelter care shall be continued. Otherwise, the complaint shall be dismissed and the minor released.
§ 11.1006 Investigation by the presenting officer.
(a) The presenting officer shall make an investigation following the preliminary inquiry or the release of the minor to his or her parents, guardian or custodian to determine whether the interests of the minor and the public require that further action be taken. Upon the basis of this investigation, the presenting officer may:
(1) Determine that no further action be taken;
(2) Begin transfer proceedings to the Court of Indian Offenses pursuant to § 11.907 of this part; or
(3) File a petition pursuant to § 11.1007 of this part to initiate further proceedings. The petition shall be filed within 48 hours of the preliminary inquiry if the minor is in detention or shelter care. If the minor has been previously released to his or her parents, guardian or custodian, relative or responsible adult, the petition shall be filed within ten days of the preliminary inquiry.
§ 11.1007 Petition.
(a) Proceedings under §§ 11.1000–11.1014 of this part shall be instituted by a petition filed by the presenting officer on behalf of the tribe and in the interests of the minor. The petition shall state:
(1) The name, birth date, and residence of the minor;
(2) The names and residences of the minor’s parents, guardian or custodian;
(3) A citation to the specific section(s) of this part which gives the children’s court jurisdiction of the proceedings;
(4) A citation to the section(s) of this part which the minor is alleged to have violated; and
(5) If the minor is in detention or shelter care, the time the minor was taken into custody.
§ 11.1008 Date of hearing.
Upon receipt of the petition, the children’s court shall set a date for the hearing which shall not be more than 15 days after the children’s court receives the petition from the presenting officer. If the adjudicatory hearing is not held within 15 days after filing of the petition, the petition shall be dismissed and cannot be filed again, unless;
(a) The hearing is continued upon motion of the minor; or
(b) The hearing is continued upon motion of the presenting officer by reason of the unavailability of material evidence or witnesses and the children’s court finds the presenting officer has exercised due diligence to obtain the material evidence or witnesses and reasonable grounds exist to believe that the material evidence or witnesses will become available.
§ 11.1009 Summons.
(a) At least five working days prior to the adjudicatory hearing, the children’s court shall issue summons to:
(1) The minor;
(2) The minor’s parents, guardian or custodian; and
(3) Any person the children’s court or the minor believes necessary for the adjudication of the hearing.
(b) The summons shall contain the name of the court, the title of the proceedings, and the date, time and place of the hearing.
(c) A copy of the petition shall be attached to the summons.
(d) The summons shall be delivered personally by a law enforcement officer or appointee of the children’s court. If the summons cannot be delivered personally, the court may deliver it by certified mail.
§ 11.1010 Adjudicatory hearing.
(a) The children’s court shall conduct the adjudicatory hearing for the sole purpose of determining the guilt or innocence of the minor. The hearing shall be private and closed.
(b) All the rights listed in § 11.906 shall be afforded the parties at the adjudicatory hearing. The notice requirements of § 11.906(a) are met by a summons issued pursuant to § 11.1009.
(c) If the minor admits the allegations of the petition, the children’s court shall proceed to the dispositional stage only if the children’s court finds that:
(1) The minor fully understands his or her rights as set forth in § 11.906 of this part and fully understands the potential consequences of admitting the allegations;
(2) The minor voluntarily, intelligently and knowingly admits to all facts necessary to constitute a basis for children’s court action; and
(3) The minor has not, in the purported admission to the allegations, set forth facts which, if found to be true, constitute a defense to the allegations.
(d) The children’s court shall hear testimony concerning the circumstances which gave rise to the complaint.
(e) If the allegations of the petition are sustained by proof beyond a reasonable doubt, the children’s court shall find the minor to be a juvenile offender and proceed to the dispositional hearing.
(f) A finding that a minor is a juvenile offender constitutes a final order for purposes of appeal.
§ 11.1011 Dispositional hearing.
(a) A dispositional hearing shall take place not more than 15 days after the adjudicatory hearing.
(b) At the dispositional hearing, the children’s court shall hear evidence on the question of proper disposition.
(c) All the rights listed in § 11.906 shall be afforded the parties in the dispositional hearing.
(d) At the dispositional hearing, the children’s court shall consider any predisposition report, physician’s report or social study it may have ordered and afford the parents an opportunity to controvert the factual contents and conclusions of the reports. The children’s court shall also consider the alternative predisposition report prepared by the minor and his or her attorney, if any.
(e) The dispositional order constitutes a final order for purposes of appeal.
§ 11.1012 Dispositional alternatives.
(a) If a minor has been adjudged a juvenile offender, the children’s court may make the following disposition:
(1) Place the minor on probation subject to conditions set by the children’s court;
(2) Place the minor in an agency or institution designated by the children’s court; or
(3) Order restitution to the aggrieved party.
(b) The dispositional orders are to be in effect for the time limit set by the children’s court, but no order may continue after the minor reaches 18 years of age, unless the dispositional order was made within six months of the minor’s eighteenth birthday or after the minor had reached 18 years of age, in which case the disposition may not continue for more than six months.
(c) The dispositional order is to be reviewed at the children’s court discretion, but at least once every six months.
§ 11.1013 Modification of dispositional order.
(a) A dispositional order of the children’s court may be modified upon a showing of a change of circumstances.
(b) The children’s court may modify a dispositional order at any time upon the motion of the minor or the minor’s parents, guardian or custodian.
(c) If the modification involves a change of custody, the children’s court shall conduct a hearing pursuant to paragraph (d) of this section.
(d) A hearing to review a dispositional order shall be conducted as follows:
(1) All the rights listed in § 11.906 shall be afforded the parties in the hearing to review the dispositional order. The notice required by paragraph (a) of § 11.906 shall be given at least 48 hours before the hearing.
(2) The children’s court shall review the performance of the minor, the minor’s parents, guardian or custodian, and other persons providing assistance to the minor and the minor’s family.
(3) In determining modification of disposition, the procedures prescribed in § 11.1011 of this part shall apply.
(4) If the request for review of disposition is based upon an alleged violation of a court order, the children’s court shall not modify its dispositional order unless it finds clear and convincing evidence of the violation.
§ 11.1014 Medical examination.
The children’s court may order a medical examination for a minor who is alleged to be a juvenile offender.
Subpart K—Minor-in-Need-of-Care Procedure
§ 11.1100 Complaint.
A complaint must be filed by a law enforcement officer or by the presenting officer and sworn to by a person who has knowledge of the facts alleged. The complaint shall be signed by the complaining witness and shall contain:
(a) A citation to the specific section of this part which gives the children’s court jurisdiction of the proceedings;
(b) The name, age and address of the minor who is the subject of the complaint, if known; and
(c) A plain and concise statement of the facts upon which the allegations are based, including the date, time and location at which the alleged facts occurred.
§ 11.1101 Warrant.
The children’s court may issue a warrant, directing that a minor be taken into custody if the children’s court finds there is probable cause to believe the minor is a minor-in-need-of-care.
§ 11.1102 Custody.
A minor may be taken into custody by a law enforcement officer if:
(a) The officer has reasonable grounds to believe that the minor is a minor-in-need-of-care and that the minor is in immediate danger from his or her surroundings and that removal is necessary; or
(b) A warrant pursuant to § 11.1101 of this part has been issued for the minor.
§ 11.1103 Law enforcement officer’s duties.
Upon taking a minor into custody the officer shall:
(a) Release the minor to the minor’s parents, guardian or custodian and issue a verbal advice or warning as may be appropriate, unless shelter care is necessary.
(b) If the minor is not released, make immediate and recurring efforts to notify the minor’s parents, guardian or custodian to inform them that the minor has been taken into custody and inform them of their right to be present with the minor until an investigation to determine the need for shelter care is made by the children’s court.
§ 11.1104 Shelter care.
(a) A minor alleged to be a minor-in-need-of-care may be detained, pending a court hearing, in the following places:
(1) A foster care facility authorized under tribal or state law to provide foster care, group care or protective residence;
(2) A private family home approved by the tribe; or
(3) A shelter care facility operated by a licensed child welfare services agency and approved by the tribe.
(b) A minor alleged to be a minor-in-need-of care may not be detained in a jail or other facility used for the detention of adults. If such minor is detained in a facility used for the detention of juvenile offenders, he or she must be detained in a room separate from juvenile offenders, and routine inspection of the room where the minor is detained must be conducted every 30 minutes to assure his or her safety and welfare.
§ 11.1105 Preliminary inquiry.
(a) If a minor is placed in shelter care, the children’s court shall conduct a preliminary inquiry with 24 hours for the purpose of determining:
(1) Whether probable cause exists to believe the minor is a minor-in-need-of care; and
(2) Whether continued shelter care is necessary pending further proceedings.
(b) If a minor has been released to the parents, guardian or custodian, the children’s court shall conduct a preliminary inquiry within three days after receipt of the complaint for the sole purpose of determining whether probable cause exists to believe the minor is a minor-in-need-of-care.
(c) If the minor’s parents, guardian or custodian is not present at the preliminary inquiry, the children’s court shall determine what efforts have been made to notify and obtain the presence of the parent, guardian or custodian. If it appears that further efforts are likely to produce the parent, guardian or custodian, the children’s court shall recess for no more than 24 hours and direct that continued efforts be made to obtain the presence of the parents, guardian or custodian.
(d) All the rights listed in § 11.906 of this part shall be afforded the parties in the minor-in-need-of care preliminary inquiry except that the court is not required to appoint counsel if the parties cannot afford one. Notice of the inquiry shall be given to the minor, and his or her parents, guardian or custodian and their counsel as soon as the time for the inquiry has been established.
(e) The children’s court shall hear testimony concerning:
(1) The circumstances that gave rise to the complaint or the taking of the minor into custody; and
(2) The need for shelter care.
(f) If the children’s court finds that probable cause exists to believe the minor is a minor-in-need-of-care, the minor shall be released to the parents, guardian or custodian, and ordered to appear at the adjudicatory hearing, unless:
(1) There is reasonable cause to believe that the minor will run away and be unavailable for further proceedings;
(2) There is reasonable cause to believe that the minor is in immediate danger from parents, guardian or custodian and that removal from them is necessary; or
(3) There is a reasonable cause to believe that the minor will commit a serious act causing damage to person or property.
(g) The children’s court may release the minor pursuant to paragraph (f) of this section to a relative or other responsible adult tribal member if the parents, guardian or custodian of the minor consent to the release. If the minor is ten years to age or older, the minor and the parents, guardian or custodian must both consent to the release.
(h) Upon finding that probable cause exists to believe that the minor is a minor-in-need-of-care and that there is a need for shelter care, the minor’s shelter care shall be continued. Otherwise, the complaint shall be dismissed and the minor released.
§ 11.1106 Investigation by the presenting officer.
The presenting officer shall make an investigation following the preliminary inquiry or the release of the minor to the parents, guardian or custodian to determine whether the interests of the minor and the public require that further action be taken. Upon the basis of this investigation, the presenting officer may:
(a) Determine that no further action be taken; or
(b) File a petition pursuant to § 11.1107 of this part in the children’s court to initiate further proceedings. The petition shall be filed within 48 hours of the preliminary inquiry if the minor is in shelter care. If the minor has been previously released to the parents, guardian or custodian, relative or responsible adult, the petition shall be filed within ten days of the preliminary inquiry.
§ 11.1107 Petition.
Proceedings under §§ 11.1100–11.1114 of this part shall be instituted by a petition filed by the presenting officer on behalf of the tribe and the interests of the minor. The petition shall state:
(a) The name, birth date, and residence of the minor;
(b) The names and residences of the minor’s parents, guardian or custodian;
(c) A citation to the specific section of this part which gives the children’s court jurisdiction of the proceedings; and
(d) If the minor is in shelter care, the place of shelter care and the time he or she was taken into custody.
§ 11.1108 Date of hearing.
Upon receipt of the minor-in-need-of-care petition, the children’s court shall set a date for the hearing which shall not be more than 15 days after the children’s court receives the petition from the presenting officer. If the adjudicatory hearing is not held within 15 days after the filing of the petition, it shall be dismissed unless;
(a) The hearing is continued upon motion of the minor; or
(b) The hearing is continued upon motion of the presenting officer by reason of the unavailability of material evidence or witnesses and the children’s court finds the presenting officer has exercised due diligence to obtain the material evidence or witnesses and reasonable grounds exist to believe that the material evidence or witnesses will become available.
§ 11.1109 Summons.
(a) At least five working days prior to the adjudicatory hearing for a minor-in-need-of-care, the children’s court shall issue summons to:
(1) The minor;
(2) The minor’s parents, guardian or custodian; and
(3) Any person the children’s court or the minor believes necessary for the proper adjudication of the hearing.
(b) The summons shall contain the name of the court; the title of the proceedings, and the date, time and place of the hearing.
(c) A copy of the petition shall be attached to the summons.
(d) The summons shall be delivered personally by a tribal law enforcement officer or appointee of the children’s court. If the summons cannot be delivered personally, the court may deliver it by certified mail.
§ 11.1110 Minor-in-need-of-care adjudicatory hearing.
(a) The children’s court shall conduct the adjudicatory hearing for the sole purpose of determining whether the minor is a minor-in-need-of-care. The hearing shall be private and closed.
(b) All the rights listed in § 11.906 of this part shall be afforded the parties in the adjudicatory hearing, except that the court may not appoint counsel if the parties cannot afford one. The notice requirements of § 11.906(a) are met by a summons issued pursuant to § 11.1109.
(c) The children’s court shall hear testimony concerning the circumstances which gave rise to the complaint.
(d) If the circumstances of the petition are sustained by clear and convincing evidence, the children’s court shall find the minor to be a minor-in-need-of-care and proceed to the dispositional hearing.
(e) A finding that a minor is a minor-in-need-of-care constitutes a final order for purposes of appeal.
§ 11.1111 Minor-in-need-of-care dispositional hearing.
(a) No later than 15 days after the adjudicatory hearing, a dispositional hearing shall take place to hear evidence on the question of proper disposition.
(b) All the rights listed in § 11.906 of this part shall be afforded the parties in the dispositional hearing except the right to free court-appointed counsel. Notice of the hearing shall be given to the parties at least 48 hours before the hearing.
(c) At the dispositional hearing the children’s court shall consider any predisposition report or other study it may have ordered and afford the parties an opportunity to controvert the factual contents and conclusions of the reports. The children’s court shall also consider the alternative predisposition report prepared by the minor and his or her attorney, if any.
(d) The dispositional order constitutes a final order for purposes of appeal.
§ 11.1112 Dispositional alternatives.
(a) If a minor has been adjudged a minor-in-need-of-care, the children’s court may:
(1) Permit the minor to remain with his or her parents, guardian or custodian subject to such limitations and conditions as the court may prescribe; or, if reasonable efforts to have the minor return or remain in his or her own home are unsuccessful, the children’s court may make whichever of the following dispositions is in the best interest of the minor;
(2) Place the minor with a relative within the boundaries of the reservation subject to such limitations and conditions as the court may prescribe;
(3) Place the minor in a foster home within the boundaries of the reservation which has been approved by the tribe subject to such limitations and conditions as the court may prescribe;
(4) Place the minor in shelter care facilities designated by the court;
(5) Place the minor in a foster home or a relative’s home outside the boundaries of the reservation subject to such limitations and conditions as the court may prescribe; or
(6) Recommend that termination proceedings begin.
(b) Whenever a minor is placed in a home or facility located outside the boundaries of the reservation, the court may require the party receiving custody of the minor to sign an agreement that the minor will be returned to the court upon order of the court.
(c) The dispositional orders are to be in effect for the time limit set by the children’s court, but no order may continue after the minor reaches 18 years of age, unless the dispositional order was made within six months of the minor’s eighteenth birthday, in which case the disposition may not continue for more than six months.
(d) The dispositional orders are to be reviewed at the children’s court discretion, but at least once every six months to determine the continuing need for and appropriateness of placement, to determine the extent of progress made, and to assess the probability of the minor’s return to his or her home.
(e) A permanency planning hearing must be held within 18 months after the original placement and every six months thereafter to determine the future status of the minor except when the minor is returned to his or her home and court supervision ceases.
§ 11.1113 Modification of dispositional order.
(a) A dispositional order of the children’s court may be modified upon a showing of a change of circumstances.
(b) The children’s court may modify a dispositional order at any time upon motion of the minor or the minor’s parents, guardian or custodian.
(c) If the modification involves a change of custody, the children’s court shall conduct a hearing pursuant to paragraph (d) of this section to review the dispositional order.
(d) A hearing to review a dispositional order shall be conducted as follows:
(1) All the rights listed in § 11.906 of this part shall be afforded the parties in the review of the disposition hearing except the right to free court-appointed counsel. Notice of the hearing shall be given the parties at least 48 hours before the hearing.
(2) The children’s court shall review the performance of the minor, the minor’s parents, guardian or custodian, and other persons providing assistance to the minor and the minor’s family.
(3) In determining modification of disposition, the procedures prescribed in § 11.1111 of this part shall apply.
(4) If the request for review of disposition is based upon an alleged violation of a court order, the children’s court shall not modify its dispositional order unless it finds clear and convincing evidence of the violation.
§ 11.1114 Termination.
(a) Parental rights to a child may be terminated by the children’s court according to the procedures in this section.
(b) Proceedings to terminate parental rights shall be instituted by a petition filed by the presenting officer on behalf of the tribe or by the parents or guardian of the child. The petition shall state:
(1) The name, birth date, and residence of the minor;
(2) The names and residences of the minor’s parents, guardian or custodian;
(3) If the child is in detention or shelter care, the place of detention or shelter care and the time he was taken into custody; and
(4) The reasons for the petition.
(c) Upon receipt of the petition, the children’s court shall set a date for the termination hearing which shall not be more than 15 days after the children’s court receives the petition from the presenting officer. The hearing may be continued:
(1) On motion of the minor’s parents, guardian or custodian; or
(2) Upon motion of the presenting officer by reason of the unavailability of material evidence or witnesses and the children’s court finds the presenting officer has exercised due diligence to obtain the material evidence or witnesses and reasonable grounds exist to believe that the material evidence or witnesses will become available.
(d) Summons:
(1) At least five working days prior to the termination hearing, the children’s court shall issue summons to the minor, the minor’s parents, guardian or custodian, and any other person the court or the minor’s parents, guardian or custodian believes necessary for the proper adjudication of the hearing.
(2) The summons shall contain the name of the court, the title of the proceedings, and the date, time and place of the hearing.
(3) A copy of the petition shall be attached to the summons.
(4) The summons shall be delivered personally by a law enforcement officer or appointee of the children’s court. If the summons cannot be delivered personally, the court may deliver it by certified mail.
(e) The children’s court shall conduct the termination hearing for the sole purpose of determining whether parental rights shall be terminated. The hearing shall be private and closed.
(1) All the rights listed in § 11.906 shall be afforded the parties in the termination hearing except the right to a free court-appointed counsel. The minor’s parents may not be compelled to be witnesses against, nor otherwise incriminate themselves.
(2) The children’s court shall hear testimony concerning the circumstances that gave rise to the petition, and the need for termination of parental rights.
(3) The children’s court may terminate parental rights if, following efforts to prevent or eliminate the need to remove the minor, it finds such efforts to have been unsuccessful, and it finds beyond a reasonable doubt that:
(i) The child has been abandoned;
(ii) The minor has suffered physical injuries, willfully and repeatedly inflicted by his or her parent(s) which cause or create a substantial risk of death, disfigurement, or impairment of bodily functions;
(iii) The parent(s) has subjected the minor to willful and repeated acts of sexual abuse;
(iv) The minor has suffered serious emotional or mental harm due to the act of the parent(s); or
(v) The voluntary written consent of both parents has been acknowledged before the court.
(f) Dispositional alternatives:
(1) If parental rights to a child are terminated, the children’s court shall place the minor in a foster care or shelter care facility which has been approved by the tribe, and follow the adoption procedures of the tribe, or, in their absence, the adoption procedures of the state within which it is located.
(2) If parental rights to a child are not terminated, the children’s court shall make a disposition according to § 11.1112 of this part.
(g) The termination order constitutes a final order for purposes of appeal.
(h) No adjudication of termination of parental rights shall affect the minor’s enrollment status as a member of any tribe or the minor’s degree of blood quantum of any tribe.
§ 11.1115 Information collection.
(a) The information collection requirements contained in § 11.600 and § 11.606 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq., and assigned approval number 1076–0094. The information is being collected to obtain a marriage license (§ 11.600) and a divorce decree (§ 11.606) from the Courts of Indian Offenses, and will be used by the courts to issue a marriage license or divorce decree. Response to this request is required to obtain a benefit.
(b) Public reporting for this information collection is estimated to average .25 hours per response, including the time for reviewing instructions, gathering and maintaining data, and completing and reviewing the information collection. Direct comments regarding the burden estimate or any other aspect of this information collection to the Bureau of Indian Affairs, Information Collection Clearance Officer, Room 336–SIB, 1849 C Street, NW., Washington, DC 20240; and the Office of Information and Regulatory Affairs [Project 1076–0094], Office of Management and Budget, Washington, DC 20502.
Subpart L—Child Protection and Domestic Violence Procedures
§ 11.1200 Definitions.
For purposes of this subpart:
Domestic violence means to inflict physical harm, bodily injury, or sexual assault, or the fear of imminent physical harm, bodily injury, or sexual assault on a family member.
Family member means any of the following:
(1) A spouse;
(2) A former spouse;
(3) A person related by blood;
(4) A person related by existing or prior marriage;
(5) A person who resides or resided with the defendant;
(6) A person with whom the defendant has a child in common; or
(7) A person with whom the defendant is or was in a dating or intimate relationship.
Parent means persons who have a child in common, regardless of whether they have been married or have lived together at any time.
§ 11.1202 How to petition for an order of protection.
A victim of domestic violence, or the parent, guardian of a victim, or a concerned adult may petition the court under this subpart for an order of protection.
(a) The petition must be made under oath or accompanied by a sworn affidavit setting out specific facts describing the act of domestic violence.
(b) The petitioner is not required to file for annulment, separation, or divorce in order to obtain an order of protection. However, the petition should state whether any legal action is pending between the petitioner and the respondent.
(c) The Court may develop simplified petition forms with instructions for completion and make them available to petitioners not represented by counsel. Law enforcement agencies may keep the forms on hand and make them available upon request to victims of domestic violence.
§ 11.1204 Obtaining an emergency order of protection.
(a) When a victim files a petition for an order of protection under § 11.202(a), the court may immediately grant an ex parte emergency order of protection if the petition clearly shows that an act of domestic violence has occurred. The order must meet the content requirements of § 11.206 (a) and (b).
(b) If the court does not immediately grant an emergency order of protection under paragraph (a) of this section, the court must either:
(1) Within 72 hours after the victim files a petition, serve notice to appear upon both parties and hold a hearing on the petition for order of protection; or
(2) If a notice of hearing cannot be served within 72 hours, issue an emergency order of protection.
(c) If the court issues an ex parte emergency order of protection under paragraph (a) of this section, it must within 10 days hold a hearing on the question of continuing the order. If notice of hearing cannot be served within 10 days:
(1) The emergency order of protection is automatically extended for 10 days; and
(2) If after the 10-day extension, notice to appear cannot be served, the emergency order of protection expires.
(d) If the court issues an ex parte emergency order of protection under paragraph (b)(2) of this section, it must cause the order to be served on the person alleged to have committed a family violence act and seek to hold a hearing as soon as possible. If a hearing cannot be held within 10 days, the petitioner may ask the court to renew the emergency protection order.
§ 11.1206 Obtaining a regular (non-emergency) order of protection.
Following a hearing and finding that an act of domestic violence occurred, the court may issue an order of protection. The order must meet the requirements of paragraph (a) of this section and may meet the requirements of paragraph (b) of this section. Either party may request a review hearing to amend or vacate the order of protection.
(a) The order of protection must do all of the following:
(1) Specifically describe in clear language the behavior the court has ordered he or she do or refrain from doing;
(2) Give notice that violation of any provision of the order of protection constitutes contempt of court and may result in a fine or imprisonment, or both; and
(3) Indicate whether the order of protection supersedes or alters prior orders pertaining to matters between the parties.
(b) The order of protection may do any of the following:
(1) Order the person who committed the act of domestic violence to refrain from acts or threats of violence against the petitioner or any other family member;
(2) Order that the person who committed the act of domestic violence be removed from the home of the petitioner;
(3) Grant sole possession of the residence or household to the petitioner during the period the order of protection is effective, or order the person who has committed an act of domestic violence to provide temporary suitable alternative housing for the petitioner and other family members to whom the respondent owes a legal obligation of support;
(4) Award temporary custody of any children involved when appropriate and provide for visitation rights, child support, and temporary support for the petitioner on a basis which gives primary consideration to the safety of the petitioner and other household members;
(5) Order the person who is found to have committed an act of domestic violence not to initiate contact with the petitioner;
(6) Restrain the parties from transferring, concealing, encumbering, or otherwise disposing of one another’s property or the joint property of the parties except in the usual course of business or for the necessities of life, and order the parties to account to the court for all such transferring, encumbrances, and expenditures made after the order is served or communicated; and
(7) Order other injunctive relief as the court deems necessary for the protection of the petitioner, including orders to law enforcement agencies as provided by this subpart.
§ 11.1208 Service of the protection order.
When an order of protection is granted under this subpart:
(a) The petitioner must file it with the clerk of the court;
(b) The clerk of the court must send a copy to a law enforcement agency with jurisdiction over the area in which the court is located;
(c) The order must be personally served upon the respondent, unless the respondent or his or her attorney was present at the time the order was issued; and
(d) If the court finds the petitioner unable to pay court costs, the order will be served without cost to the petitioner.
§ 11.1210 Duration and renewal of a regular protection order.
An order of protection granted by the court:
(a) Is effective for a fixed period of time, which is up to a maximum of 6 months; and
(b) May be extended for good cause upon motion of the petitioner for an additional period of up to 6 months each time a petition is presented. A petitioner may request as many extensions as necessary provided that the court determines that good cause exists.
§ 11.1212 Consequences of disobedience or interference.
Any willful disobedience or interference with any court order constitutes contempt of court which may result in a fine or imprisonment, or both, in accordance with this part.
§ 11.1214 Relationship of this subpart to other remedies.
The remedies provided in this subpart are in addition to the other civil or criminal remedies available to the petitioner.
PART 12—INDIAN COUNTRY LAW ENFORCEMENT
Subpart A—Responsibilities
§ 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.).
§ 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.
§ 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.
§ 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
§ 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.
§ 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.
§ 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.
§ 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
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, in