[Federal Register Volume 78, Number 91 (Friday, May 10, 2013)]
[Proposed Rules]
[Pages 27341-27342]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11070]


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LEGAL SERVICES CORPORATION

45 CFR Part 1614


Restrictions on Legal Assistance With Respect to Criminal 
Proceedings in Tribal Courts

AGENCY: Legal Services Corporation.

ACTION: Request for information.

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SUMMARY: The Legal Services Corporation (LSC) is requesting public 
comments on issues associated with amending its regulations to align 
with the statutory authority granted to LSC under the Indian Arts and 
Crafts Amendment Act of 2010 (the IACAA). The IACAA amended the LSC Act 
to provide authority for LSC funds to be used by grantees to represent 
eligible persons in any and all criminal proceedings in tribal courts. 
Previously, the LSC Act and related regulations permitted 
representation only in criminal matters involving misdemeanors or 
lesser offenses in tribal courts. The information received as a result 
of this request will be considered in rulemaking undertaken by LSC.

DATES: Written comments must be received by August 23, 2013.

ADDRESSES: Written comments must be submitted by mail, fax, or email to 
Atitaya Rok at the addresses listed in the FOR FURTHER INFORMATION 
CONTACT section.

FOR FURTHER INFORMATION CONTACT: Atitaya Rok, Staff Attorney, Legal 
Services Corporation, 3333 K St. NW., Washington, DC 20007; (202) 295-
1500 (phone); 202-337-6831 (fax); or lscrulemaking@lsc.gov.

SUPPLEMENTARY INFORMATION: 

I. Background Information

A. New Statutory Authorities

    The IACAA amended the LSC Act to provide authority for LSC funds to 
be used by grantees to represent eligible persons in any and all 
criminal proceedings in tribal courts. Previously, the LSC Act and 
related regulations in 45 CFR part 1613 permitted representation only 
in criminal matters involving misdemeanors or lesser offenses in tribal 
courts.
    A subsection of the IACAA, known as the Tribal Law and Order Act of 
2010, Public Law 111-211, tit. II, 124 Stat. 2261 (the TLOA), includes 
new authorizations related to tribal court criminal proceedings. The 
TLOA increases the maximum jail sentence that any tribal court may 
impose from one to three years for any single offense. Prior to the 
TLOA, crimes (felonies, misdemeanors, or less serious offenses) within 
tribal jurisdiction (those not reserved to federal or state 
jurisdiction) that could result in jail sentences of more than one year 
upon successful prosecution were often referred by tribes to federal or 
state courts because of the tribal courts' inability to impose 
lengthier sentences.
    In order to use this new sentencing authority, tribes must ``opt 
in'' and implement affirmative preconditions detailed in the TLOA, 
including, but not limited to, ensuring that judges in tribal courts 
have sufficient legal training to preside over criminal proceedings; 
affording the defendant the right to effective assistance of counsel 
and, if a defendant is indigent, providing the defendant with a 
licensed defense attorney at the tribe's expense; publishing the tribal 
government's criminal laws and rules of evidence and criminal 
procedure; and creating a system that maintains records of criminal 
proceedings. Public Law 111-211, tit. II, 124 Stat. at 2280.
    In addition to the IACAA and TLOA, the Violence Against Women 
Reauthorization Act of 2013, Public Law 113-4, 127 Stat. 54 (the 2013 
VAWA expands tribal courts' criminal jurisdiction to include crimes of 
domestic violence and dating violence committed by non-Indians within a 
tribal court's jurisdiction.

B. Current LSC Requirements

    LSC regulations currently reference the original language of the 
LSC Act, which explicitly carved out an exception to the general 
prohibition on the use of LSC funds in criminal proceedings for 
misdemeanors and lesser offenses in tribal courts: ``[a] misdemeanor or 
lesser offense tried in an Indian tribal court is not a `criminal 
proceeding.'' 45 CFR 1613.2.
    On November 12, 2012, LSC Management informed grantees via Program 
Letter 12-3 that all grantees may use LSC funds to assist any eligible 
person charged with any offense in a criminal proceeding in a tribal 
court until such time the LSC Board of Directors (LSC Board) made an 
affirmative decision on the issue.
    On January 26, 2013, the LSC Board authorized rulemaking to 
consider aligning the LSC regulations and the LSC Act. Pursuant to 
LSC's Rulemaking Protocol, 67 FR 69763 (Nov. 19, 2002), a Rulemaking 
Options Paper (ROP) is under development. This Request for Information 
(RFI) is issued to better understand the impact of the IACAA, TLOA, and 
the 2013 VAWA on grantees that are active in tribal courts.

II. Request for Information

    LSC requests information from members of the public with any 
expertise or experience relating to criminal proceedings in tribal 
courts, the impact of TLOA or the 2013 VAWA on criminal laws of tribal 
government, or tribal court appointments of lawyers. Commenters are 
asked to respond to these general topics of discussion:
    1. Do you or your organization currently undertake representations 
of criminal defendants in tribal courts?
    a. If yes, please identify which tribal courts.
    b. If no, do you or your organization have a formal or informal 
policy in place to provide or decline such representations?
    c. Are you or your organization aware of any changes in the 
criminal laws of the tribal government and/or sentencing authority of 
the tribal courts that have been implemented in accordance with TLOA or 
the 2013 VAWA?
    2. Do you or your organization anticipate undertaking 
representations of criminal defendants in tribal courts in the future?
    a. If yes, please identify which tribal courts.
    b. If no, will you or your organization create a formal or informal 
policy to provide or decline such representations?

[[Page 27342]]

    3. As a result of the IACAA, TLOA, and the 2013 VAWA, have you or 
your organization seen an increase in the number of requests for 
assistance in criminal matters before tribal courts by eligible 
clients?
    a. If yes, please estimate the number of cases and the approximate 
percentage these cases constitute as a proportion of all requests. 
Please distinguish, if possible, requests for representation in 
misdemeanor cases from those for more serious crimes.
    b. Please indicate (by percentage estimation, if possible) what the 
increase is over years prior to 2010, if any.
    c. If no, please indicate whether you or your organization 
anticipate requests for representation in the future.
    4. As a result of the IACAA, TLOA, and the 2013 VAWA, have you or 
your organization increased the number of representations in criminal 
cases in tribal courts?
    a. If yes, please estimate the increase, if any, in the number of 
representations you or your organization have undertaken in criminal 
cases in tribal courts since 2010. Please distinguish, if possible, 
between representations in misdemeanor cases and those for more serious 
crimes. How does the number of criminal matters in tribal courts 
compare to the overall number of matters you or your organization has 
accepted since 2010?
    b. If no, please indicate the number of matters you or your 
organization have undertaken in tribal courts since 2010.
    5. As a result of the IACAA, TLOA, and the 2013 VAWA, have you or 
any staff attorney at your organization been appointed to represent a 
criminal defendant in tribal court proceedings?
    a. If yes, please explain the court appointment process in the 
tribal court(s) in which the court appointment(s) took place.
    b. Are you or your organization concerned about future court 
appointments in tribal courts? If yes, please indicate why.
    6. Is there any additional information you would like to provide to 
LSC at this time about changes in tribal courts as a result of the TLOA 
and the 2013 VAWA that may have an impact upon you or your organization 
and its use of LSC funds?

III. Important Notes

    Information received in response to this RFI may be published or 
summarized by LSC without acknowledgement of or permission by your 
organization. Furthermore, your responses may be releasable to the 
public under the LSC's adoption of the Freedom of Information Act, 42 
U.S.C. 2996d(g), and the LSC regulation, 45 CFR part 1619. LSC, in its 
discretion, may request individual commenters to meet with LSC to 
elaborate on information in their written comments.
    Comments sent by any method other than email to 
lscrulemaking@lsc.gov, or hard copy to Atitaya Rok, Staff Attorney, 
Legal Services Corporation, 3333 K St. NW., Washington, DC 20007; to 
any other address or individual, or received after the end of the 
comment period, may not be considered by LSC.

    Dated: May 6, 2013.
Atitaya C. Rok,
Staff Attorney.
[FR Doc. 2013-11070 Filed 5-9-13; 8:45 am]
BILLING CODE 7050-01-P