Colville Tribal Law and Order Code

TITLE 2 - RULES OF PROCEDURE

CHAPTER 2-1 CRIMINAL ACTIONS
CHAPTER 2-2 CIVIL ACTIONS
CHAPTER 2-3 INFRACTIONS; FIELD BONDS; OTHER CIVIL VIOLATIONS AND FORFEITURES
CHAPTER 2-4 ADMINISTRATIVE PROCEDURE ACT
CHAPTER 2-5 DEBT SET-OFF

CHAPTER 2-1 CRIMINAL ACTIONS

JURISDICTION

2-1-1 Jurisdiction—Generally

The Court shall have jurisdiction over all offenses enumerated in this Code, or in other enactments of the Council.

2-1-2 Extradition

(b) On receipt of a valid warrant, the judge may issue a Court order directed to the Chief of Police, instructing him that the person named shall be apprehended and delivered over to the proper authority.

(c) When the person is apprehended, it shall be the duty of the Chief of Police to notify the proper authority of his apprehension, and he may be detained in the tribal jail for a period not to exceed twenty-four (24) hours from the time of apprehension. If the lawful authority requesting apprehension of the person, after first being notified, does not take possession of the person within twenty-four (24) hours, the judge shall not honor the same warrant for the person but shall require a new warrant to be presented and shall require the requesting authority's representative to accompany the tribal officer to apprehend the person on the warrant and take immediate custody over the person apprehended by the tribal officer.

CRIMINAL PROCEDURE, GENERALLY

2-1-30 Complaints

(b) "Contents" the complaint shall be in writing and shall set forth:

(1) The name of the Court;

(2) The title of the action and the name of the offense charged;

(3) The name of the person charged; and

(4) The offense charged, in the language of the statue, together with a statement as to the time, place, person, and property involved to enable the defendant to understand the character of the offense charged.

(c) "Certification" the complaint shall contain a form of certificate by the tribal prosecutor, or his or her designee, that he or she certifies, under penalty of perjury, that he or she has reasonable grounds to believe, and does believe, the person committed the offense contrary to law. The certificate need not be made before a judge, but shall be notarized.

(d) "Approval of form" the complaint shall be on a form prescribed or approved by the Administrator of the Court.

(e) "Citizen complaints" the judge may consider a complaint made by any person on the basis of an affidavit sworn to before the judge or Notary Public where the judge is satisfied that probable cause exists, that the complaining witness is aware of the gravity of initiating a criminal complaint, the necessity of a Court appearance for himself and witnesses, the possible liability for false arrest and consequences of perjury, such affidavit may be in substantially the form prescribed or approved by the Administrator of the Court.

(f) "Issuance of summons" if it appears from the complaint or from an affidavit filed that there is reasonable cause to believe that an offense has been committed and that the defendant has committed it, the judge may order service of the complaint upon the defendant either by criminal summons or by a warrant to apprehend pursuant to Colville Tribal Code section 2-1-32. The judge shall issue a summons instead of a warrant unless there is reasonable cause to believe that the defendant will not appear in response to a summons, or that arrest is necessary to prevent serious bodily harm to the accused or another, or a person summoned fails to appear in response to the summons, or if service is unsuccessful, a warrant for his arrest may issue.

(Amended 4/17/86, Resolution 1986-172)

2-1-31 Limitation on Filing of Complaints

No complaint shall be filed charging the commission of an offense as defined by this Code unless the offense shall have been committed within the time period for that class of offense as follows:

Class A or those offenses listed in CTC 3-3-40(a).............Five (5) years

Class B or those offenses listed in CTC 3-3-40(b)............Three (3) years

Class C or those offenses listed in CTC 3-3-40(c).............One (1) year

(Amended 8/17/89, Resolution 1989-610)

2-1-32 Warrants to Apprehend

Every judge of the Court shall have the authority to issue warrants to apprehend, the warrants to issue upon a showing of probable cause only after a written complaint shall have been filed bearing the signature of the complaining witness. Service of warrants shall be made by an officer. No warrant to apprehend shall be valid unless it shall bear the signature of a judge of the Court.

2-1-33 Arrests

No police officer shall arrest any person for any offense defined by this Code or by federal law, except when the offense shall occur in the presence of the arresting officer or he shall have probable cause to believe that the person arrested has committed an offense, or he shall have a warrant commanding him to apprehend the person.

2-1-34 Hot Pursuit

Any police officer who observes any person inside the Reservation committing an offense defined by this Code or by federal law or who has probable cause to believe that the person has committed an offense, may pursue and capture the person or seize and impound the property in his possession if he attempts to flee the Reservation.

2-1-35 Search Warrants

Every judge of the Court shall have authority to issue warrants for search and seizure of the premises and property of any person under the jurisdiction of the Court. However, no warrant of search and seizure shall be issued except upon a presentation of a written or oral complaint based upon probable cause, supported by oath or affirmation and charging the commission of an offense against the Tribes. No warrant for search and seizure shall be valid unless it contains the name or description of the person or property to be searched and seized and bears the signature of a judge of competent jurisdiction. Service of warrants of search and seizure shall be made by an officer.

2-1-36 Search Without Warrant

An officer may search or seize property without a warrant in circumstances under which warrantless searches are permitted by federal criminal law.

2-1-37 Crime Involving Domestic Violence

(b) To invoke the provisions of Chapter 5-5, the charging document shall expressly state that the charge is being brought under that Chapter as well as under Chapter 3-1.

(Amended 6/3/04, Resolution 2004-385)

CITATIONS

2-1-70 Citation in Lieu of Detention

Whenever a person is arrested for a violation of this Code, the arresting officer, or any other officer, may serve upon the arrested person a citation and notice to appear in Court, in lieu of keeping the person in custody or requiring bail or bond. In determining whether to issue a citation and notice to appear, the officer may consider the following factors:

(b) Whether detention appears reasonably necessary to prevent imminent bodily harm to himself or to another, injury to property, or breach of the peace;

(c) Whether the person has ties to the Tribes or is a local resident, so as to provide reasonable assurance of his appearance before the Court, or whether there is substantial likelihood that he will refuse to respond to the citation; and

(d) Whether the person previously has failed to appear in response to a citation issued pursuant to this section or to other lawful process of the Court.

2-1-71 Citation—Contents

(b) To secure his release, the person must give his written promise to appear in Court as required by the citation.

(c) The citation shall also state the time and place at which the person is to appear in Court to hear the charges against him and post bail, which shall be not less than seventy-two (72) hours after the date of the citation, nor more than fifteen (15) days after the date of citation.

2-1-72 Citation—Effect, Procedure

(b) If a defendant fails to appear, the judge may issue a warrant of arrest and may order any bail deposited by the defendant as hereinafter set forth forfeited.

ARRAIGNMENTS & PLEAS; TRIAL DATES

2-1-100 Arraignment

As soon as reasonably possible after arrest, but not more than seventy-two (72) hours thereafter, or within the period designated on the citation, the defendant shall appear or be brought before a judge and the defendant shall again be informed of his rights under the Constitution of the Colville Confederated Tribes and under federal law, including his right to counsel at his own expense. If the defendant desires, but does not presently have a spokesman, he will be given a reasonable time to secure a spokesman before entering his plea.

2-1-101 Reading of Complaint and Defendant's Plea

When the defendant is brought before the judge the complaint shall be read and explained to the defendant, and he shall plead "guilty" or "not guilty". If the defendant refuses to plead, the judge shall enter the fact and a plea of "not guilty" on his behalf. The judge shall cause the defendant to be informed of the charge against him and the defendant's right to appear and defend against the charge either in person or with a spokesman. The defendant shall be provided with a copy of the complaint if he has not before received one.

2-1-102 Time of Trial

(b) When the defendant is summoned before the judge pursuant to a citation as provided herein, the defendant shall appear on the date indicated on the citation to hear the charges against him, post bail, enter a plea, and be assigned a trial date. Trial shall be set within ninety (90) days unless continued for cause or at the request of the defendant.

(c) A defendant may post bail, enter a plea, and request a trial date prior to the return date of the citation if the defendant so desires, provided, that bail or other bond satisfactory to the judge is posted. A trial date shall be set within ninety (90) days of the return date on the citation unless continued for cause or at the request of the defendant.

(d) Provided, a defendant not released from jail pending trial shall be brought to trial not later than sixty (60) days after the date of arraignment.

(Amended 5/19/88, Resolution 1988-264)

2-1-103 Sentencing

Upon a plea of "guilty", the judge may impose sentence at once or at a later date not to exceed sixty (60) days at his discretion.

(Amended 5/19/88, Resolution 1988-265)

2-1-104 Pre-dismissal Hearing

(b) When scheduled: The pre-dismissal hearing shall be set at the time of sentencing and the date and time of the hearing shall be included in the Tribal Court order.

(c) Date of hearing: The pre-dismissal hearing shall be scheduled for not less than two weeks prior to the termination date of the condition(s) imposed.

(d) Proof required: It will be the defendant's responsibility to submit to the Court written documentation that he/she has complied with the conditions set out in the Tribal Court order. This documentation must be signed by:

(1) The program counselor assigned to the defendant;

(2) The defendant's immediate supervisor, if community service hours are ordered;

(3) Any other person directly associated with a program utilized by the defendant to comply with the Court order; or

(4) The defendant's probation officer.

If more than one program is being utilized, written documentation must be submitted for each, except if the defendant is on probation, his/her probation officer may verify compliance with the other programs involved.

If sufficient written documentation is submitted to the Court prior to the pre-dismissal hearing verifying the defendant's compliance with the program(s) assigned, the defendant may be excused from appearing at the hearing.

(e) Failure to comply: If the defendant has not complied with a given program or has failed to provide written documentation to the Court, a show cause hearing shall be scheduled for within ten (10) days of the pre-dismissal hearing for the purpose of determining if the suspended fine and/or jail term should be reinstated or modified.

(f) Failure to Appear: If the defendant fails to appear for the pre-dismissal hearing without good cause and has failed to provide written documentation to the Court of his/her compliance with the Court order, the Court may issue a bench warrant to bring the defendant before the Court.

2-1-105 Deferred Prosecution

(1) Waive his/her right to trial within 60/90 days;

(2) Stipulate to the truth of the police report;

(3) Agree to pay the current Court costs; and

(4) Agree with the other terms and conditions included in the proposed order of deferred prosecution.

(b) The Court shall grant a motion for deferred prosecution when presented by the Tribes.

(c) Unless the Court finds that it is not in the interest of justice, the Court shall grant a motion for deferred prosecution when presented by a defendant in any case where the defendant has no known criminal conviction in any jurisdiction for the preceding ten (10) years and the current crime(s) charged does/do not include:

(1) Serious injury or threat thereof, or

(2) Sexual assault or threat thereof, or

(3) Sale of delivery of a controlled substance.

(d) If at the end of the period of the deferred prosecution, the Court finds that the defendant has complied with the requirements and conditions of the order of deferred prosecution, the charge(s) shall be dismissed with prejudice and expunged from the defendant's criminal record.

(Adopted 7/23/96, Resolution 1996-313)

2-1-106 Waiver of Speedy Disposition

Waiver of the 90/60 rule regarding trial, sixty (60) day rule regarding sentencing and other speedy disposition rights signed by an attorney of record, are valid provided that:

(a) The litigant personally signs a waiver on the next date when he personally appears in Court; and

(b) Any waiver states that the litigant knowingly and voluntarily agrees to the waiver of counsel.

(Adopted 10/5/95, Resolution 1995-675)

BAIL, BONDS AND FINES

2-1-130 Bail and Bonds—Generally

Except as provided herein, every person charged with any offense before the Court may be admitted to bail. Bail shall be by cash deposit or by assurance of two reliable members of the Tribes resident within the boundaries of the Reservation who shall execute an agreement in compliance with the form provided therefor to the effect that they will pay any bail forfeited. In no case shall the bail specified in the agreement exceed twice the maximum penalty set by the section of this Code for the offense for which the accused has been charged. The cash or bond agreement shall be executed before the Clerk or any bonded employee authorized by the Court to accept bail. All such bonds shall be promptly filed with the Clerk.

2-1-131 Bail—Personal Recognizance

In lieu of bail, a person charged with any offense may be released on his personal recognizance (PR) without posting bail or bond, pursuant to the discretion of the judge. In determining whether to grant PR, the judge may consider the following factors:

(a) Whether the person has identified himself satisfactorily;

(b) Whether detention appears necessary to prevent imminent bodily harm to himself or to another, injury to property, or breach of the peace;

(c) Whether the person has ties to the Tribes or is a local resident, so as to provide reasonable assurance of his appearance before the Court, or whether there is substantial likelihood that he will refuse to appear for trial; and

(d) In any case, to secure his release, the person must give written promise to appear in Court as required by the citation.

2-1-132 Bail Schedule

The Chief Judge may establish a bail schedule for all offenses under this Code. Any person arrested and taken into custody for violation of this Code may be released upon posting the specified bail with the Clerk, or other person authorized by the Court to receive bail, unless release on personal recognizance or detention is ordered by the Court.

2-1-133 Denial of Bail, Detention

The judge may deny a person release on bail if it appears reasonably certain that the person will pose a serious threat to the safety and well-being of himself, the Reservation, or its residents, if released, or if there is a substantial likelihood that the person will not appear for trial.

2-1-134 Fine Schedule

The Chief Judge may also establish a schedule for fines for specified violations of this Code, within the limits prescribed by this Code and the section establishing the offense.

TRIAL PROCEDURE

2-1-170 Prosecution

The Tribes shall prosecute the charge by presenting the evidence against the defendant by the testimony of the law enforcement officer and any other witnesses called to support the charge, and in presenting such evidence, the Tribes may make use of either a tribal official or a professional attorney approved as a spokesman pursuant to this Code.

2-1-171 Evidence

The Court shall not be bound by common law rules of evidence, but shall use its own discretion as to what evidence it deems necessary and relevant to the charge and the defense.

2-1-172 Standard of Proof

The Court shall require the charge to be proved beyond a reasonable doubt. The defendant shall be afforded a full opportunity to present his defense.

2-1-173 Trial by Court

In a case tried without a jury, the judge shall make a general finding of guilt or innocence and shall, upon request of any party, make specific findings which may be embodied in a written decision.

2-1-174 Jury

Any person accused of an offense punishable by imprisonment may demand a jury trial. The demand may be made by oral demand in open Court or by filing a written demand with the Clerk. In any case, the demand must be made at least fourteen (14) days before the date set for trial, or the right shall be deemed waived. The verdict of the jury shall be unanimous and shall be returned by the jury to the judge in open Court.

2-1-175 Lesser Offenses

The defendant may be found guilty of a lesser offense necessarily included in the offense charged, without the necessity of having been formally charged with the lesser offense.

2-1-176 Sentencing

A sentence shall be imposed at once or, in the discretion of the judge, at a later date not to exceed sixty (60) days from the day of judgment. The judge may suspend all or any part of the fine or sentence imposed by him upon a person found guilty of violating any of the provisions of this Code as provided in section 3-1-263. Pending sentence, the judge may commit the defendant to jail or continue the bail. Before imposing sentence, the judge shall allow a spokesman or the defendant to speak on behalf of the defendant and to present any information which would help the judge in setting the punishment.

(Amended 8/17/89, Resolution 1989-612)

2-1-177 Other Procedures

All additional procedures set out in this Code will be followed in any criminal action to the extent that they are applicable.

2-1-178 Civil Rights

All accused persons shall be guaranteed all civil rights secured under the Tribal Constitution and federal laws specifically applicable to Indian Tribal Courts.

2-1-179 Incarceration

(a) Court Authority to Sentence: The Colville Tribal Court has the duty and authority to set the duration, starting date, and time of incarceration of criminal sentences. In determining an appropriate sentence, the Court shall not consider where or how defendant’s sentence will be carried out by the Jail Board.

(b) Jail Board: A board is hereby established to exercise the authority of the Colville Tribes to execute any jail sentence imposed. The board shall be appointed by the Colville Business Council resolution

(c) Authority of Jail Board: The board shall have the authority and duty to establish policies and procedures for incarceration of tribal inmates as authorized under this section. That duty shall include, but not be limited to the following:

(1) To approve jail facilities for the tribes, including the use of unsecured or minimal security facilities and to assign inmates to a facility.

(2) To establish the policy regarding home detention and to assign inmates to home detention and to establish policy regarding part time release for work, community service work, school, family obligations, and to assign inmates such part-time release.

(A) Prior to assigning inmates tot he alternative forms of incarceration in this subsection, the board shall consider the following factors:

(i) Whether defendant is likely to comply with conditions of release.

(ii) Defendant’s behavior and/or compliance with the current or prior sentence and/or conditions of incarceration.

(iii) Defendant’s interest in and ability for rehabilitation.

(iv) Whether an alternative form of incarceration will assist defendant’s rehabilitation;

(v) Defendant’s ability to obtain employment;

(vi) Danger posed by defendant tot he community if allowed an alternative form of incarceration; including danger apparent from defendant’s criminal history.

(B) The board may consider any other factors it deems relevant, except the board shall not consider whether the number of days of incarceration imposed by the Court was appropriate.

(C) The board has the authority to set any reasonable conditions on part-time release and home detention, including, but not limited to:

(i) Random drug and/or alcohol testing;

(ii) Days and hours that defendant is permitted to be or required to be at the jail, home, or any other location;

(iii) Persons defendant is allowed to have contact with or restricted from having contact with; or

(iv) Dates and times defendant is to report to the Probation Department.

(D) The board is further authorized to require that an inmate pre-pay or make wage assignment and/or authorized to request that an inmate make a voluntary per capita assignment to pay fees set out under subsection (E).

(E) The board may require that any individual who is unable to pay the costs of home monitoring, but who is able to perform community service work shall perform two (2) hours of community service work for each day of home monitoring.

(F) To establish policy for furlough from detention for personal reasons, including funerals, medical or dental appointments, job interview, serious illness of family members, and to grant furloughs.

(G) To set monetary fees to inmates for incarceration, home monitoring, and part-time release and to collect such charges. The maximum fee shall be the costs to the tribes for the incarceration and/or monitoring. The board shall consider the inmate’s ability to pay in setting the fee for incarceration, and may consider other relevant factors, except the board shall not consider the fine set by the Court in the same matter. Fees set may be collected in the same manner as other debts to the Colville Tribes.

(H) Decisions of the board shall be made by majority vote of the board, except the board may designate to any one member the authority to approve furloughs under subsection (D).

(d) Violations of alternative forms of incarceration: The Department of Probation and Parole shall monitor each individual permitted an alternative form of incarceration. Probation officers shall have authority to request a warrant of arrest for defendant for any violation of conditions place on such alternative forms of incarceration.

(e) The Tribal Court shall issue such arrest warrant where the probation officer files an affidavit and request for warrant.

(f) Serverability: Each portion of this section is serverable, if any provisions of this section is held invalid, the remainder of the section shall not be affected.

(g) Implementation: Until such time as the members of the Jail Board are appointed, and the Jail Board certifies to the Court that it is assembled and has procedures in place to begin receiving referrals from the Court, the Court shall continue its authority over all aspects of sentencing including the manner in which sentences will be served.

(Enacted 7/15/99, Resolution 1999-427)
(Certified 2/17/2000)
(Repealed 6/3/99, Resolution 1999-307)
(Re-enacted 6/3/99, Resolution 1999-307)
(Adopted 11/13/97, Resolution 1997-714)

HABEAS CORPUS

2-1-210 Who May Prosecute Writ

Every person imprisoned or otherwise restrained of his liberty on the Reservation may prosecute a Writ of Habeas Corpus to inquire into the cause of his imprisonment or restraint and, if it be illegal, to be delivered therefrom.

2-1-211 Writ for Purpose of Bail

When a person is imprisoned or detained in custody on any criminal charge, for want of bail, such person is entitled to a Writ of Habeas Corpus for the purpose of giving bail, upon averring that fact in his petition, without alleging that he is illegally confined.

2-1-212 Application For—How Made

Application for the Writ is made by petition, signed either by the person for whose relief it is intended, or by some person in his behalf, and must specify:

(a) That the person in whose behalf the Writ is applied for is unlawfully imprisoned or restrained of his liberty, why the imprisonment or restraint is unlawful, the officer or person by whom he is confined or restrained, and the place where, naming all the parties if they are know, or describing them if they are not known.

(b) The petition must be verified by the oath or affirmation of the person making the application.

2-1-213 Content of Writ

(a) The Writ must be directed to the person having custody of or restraining the person on whose behalf the application is made and must command him to have the body of such person before the Court at a time and place therein specified.

(b) The issues to be determined upon return of the Writ may be stated either in the Writ, or in an order attached to the Writ, or in a copy of the petition attached to the Writ.

2-1-214 Service of the Writ

The Writ must be served upon the person to whom it is directed and must be served in the same manner as a summons.

2-1-215 Return, What to Contain

The person upon whom the Writ is served must make a return to the Court and state in the return:

(a) Whether he has the detained person in his custody or under his restraint, and the authority for holding the detained person.

(b) If he had the detained person in his custody or under his restraint, the return must state particularly to whom, at what time and place, for what cause, and by what authority custody was released.

(c) The return must be signed by the person making it and unless he is a sworn public official and makes the return in his official capacity, it must be verified by his oath.

2-1-216 Hearing on Return

(a) The detained person shall be brought before the Court by the person commanded by the Writ as soon as possible.

(b) The hearing must be held on the day set and may be summary in nature.

(c) Evidence may be produced and compelled as in civil actions.

2-1-217 Judgment

(a) If the detained person is in official custody, he may not be released on a Writ of Habeas Corpus for any technical defect in commitment not affecting his substantial rights.

(b) Following the hearing, the judge shall make a judgment regarding the custody of the detained person as the facts and circumstances warrant and the judgment shall be effective immediately.

RECIPROCAL CRIMINAL JURISDICTION - COLVILLE TRIBAL MEMBERS - MEMBERS OF OTHER FEDERALLY RECOGNIZED TRIBES

2-1-250 Reciprocal Jurisdiction

The Confederated Tribes of the Colville Reservation in exercise of its retained sovereignty over its enrolled members hereby grants to the Tribal Courts of any said federally recognized Indian tribe, band, or nation, the right to try and punish any enrolled member of the Confederated Tribes of the Colville Reservation who is alleged to have committed an offense within the jurisdiction of the said federally recognized Indian tribe, band or nation pursuant to the written tribal Code of laws of the said federally recognized Indian tribe, band or nation, provided;

(a) That the said Indian tribe, band or nation has, prior to charging the enrolled member of the Colville Tribe of the Colville Reservation with a criminal offense under its tribal Code, effectively authorized by ordinance, statute or compact, the Courts of the Confederated Tribes of the Colville Reservation to try and punish members of the said federally recognized Indian tribe, band, or nation who are alleged to have committed an offense within the jurisdiction of the Confederated Tribes of the Colville Reservation pursuant to the Colville Tribal Code; and

(b) That the said Indian tribe, band, or nation provides effective protection for the civil rights of criminal defendants before its Tribal Courts by recognizing and enforcing the provisions of the Indian Civil Rights Act, 25 USC §1302 or recognizes protection of the rights of criminal defendants in its Courts by enforcing a tribal civil rights act which provides the same or broader protection than the Indian Civil Rights Act.

(Adopted 6/7/90, Resolution 1990-350)
(Certified 6/18/90)

2-1-251 Filing

Tribal Governments seeking authority to criminally prosecute members of the Confederated Tribes of the Colville Reservation pursuant to this Chapter shall file documents bearing a certification or seal showing compliance with CTC § 2-1-250(a) and (b) with the Administrator of the Colville Tribal Courts and shall receive, in return, from the said Administrator a copy of this Chapter and the Colville Tribal Civil Rights Act under Seal of the Colville Tribal Court.

(Chapter enacted-original code 5/7/79)

(June 2004 version of Chapter 2-1)

CHAPTER 2-2 CIVIL ACTIONS

JURISDICTION

2-2-1 Jurisdiction Generally

The Court shall have jurisdiction of all suits involving persons residing within the Tribal jurisdiction as defined by this Code and all other suits in which a party is deemed to have consented to the jurisdiction of the Court, or in which the events giving rise to the action occurred within the Tribal jurisdiction as defined by this Code.


2-2-2 through 2-2-29 [Reserved]


COMPLAINTS

2-2-30 Complaints—Elements

A complaint filed in the Tribal Court shall contain:
(a) The title of the cause, the name of the Court, and the names of the plaintiff and defendant;

(b) A statement of the facts constituting the cause of action;

(c) A request for whatever relief the party wants, including the amount, if monetary damages are requested;

(d) The signature of the plaintiff, witnessed by a member of the Court staff or a licensed
Notary Public.(Amended 8/2/82, Resolution 1982-445)


2-2-31 Limitation on Filing of Complaint

No complaint shall be filed in a civil action unless the events shall have occurred within a three (3) year period prior to the date of filing the complaint: provided, that this general statute of limitations shall not apply to suits filed to recover public moneys or public property intentionally or erroneously misspent, misappropriated, or misused in any way; and further provided that this general statute of limitations shall not apply to any debt owed the Tribes or any of its agencies, arms, or instrumentalities, whether organized or not under tribal law.

(Amended 12/20/90, Resolution 1990-681)
(Certified 10/31/91)


2-2-32 Filing Fees

In all civil suits the plaintiff shall be required to pay to the Court a filing fee of $30.00.
The fee may be waived by the Court upon a show of good cause. No fee shall be charged if the Tribe is the plaintiff.


2-2-33 Answers

An answer filed in the Tribal Court shall contain:
(a) A general or specific denial or admission of the allegations in the complaint;

(b) A statement of any new matter constituting a defense or counterclaim, in ordinary and clear language.The answer is to be filed no later than twenty (20) days after the defendant has been served the summons and complaint, unless good cause for later filing is shown.


2-2-34 through 2-2-69 [Reserved]


NOTIFICATION

2-2-70 Notice and Service

Civil actions may be instituted either by voluntary appearance and agreement of the parties or by service upon the defendant of a true copy of the filed complaint and notice either personally by a person not a party in the action or as provided herein. The notice shall be attached to the copy of the complaint, and cite the defendant to answer in writing, by filing with the Court and serving a copy on the plaintiff, not less than twenty (20) days from the date of service of the complaint and notice. The service may be made by means of certified mail, return receipt requested. Evidence of the receipt of notice shall be kept as part of the record in the case.


2-2-71 Substituted Service

(a) Upon a showing by the plaintiff to the Court that diligent efforts were made to serve the Notice and Complaint on the defendant and that for sufficient reasons service could not be made, the judge may allow substituted service pursuant to CTC §2-2-71(b). Diligent efforts shall include an attempt of service by certified mail to the defendant's last known address. If the defendant is a tribal member and the plaintiff is the Tribe, or a tribal entity or program (including CTEC and related businesses), then there shall be an attempt of service by certified mail to the defendant's address used for enrollment purposes.

(b) Substituted service shall be made as follows:
(1) Copies of the Notice and Complaint shall be posted in two public places on the Reservation for three (3) weeks. One copy shall be posted at the Tribal Headquarters Building. The other copy shall be posted in the Reservation district where the defendant last resided. If the defendant does not reside on or near the Reservation, then for the purposes of this subsection, defendant shall be deemed to reside in the Nespelem District.

(2) Service must also be made by publication of a copy of the Notice once a week for three (3) consecutive weeks in a newspaper of general circulation in the Reservation District where the defendant resides. If the defendant does not reside on the Reservation, then the Notice must be published for three (3) consecutive weeks in a newspaper of general circulation in the Reservation District where the cause of action arose. Publication for two (2) consecutive issues in the Tribal Tribune may be substituted for publication in a newspaper of general circulation. The Notice, when published, shall state the general nature of the case and the nature of the relief requested.(Adopted 01/12/89, Resolution 1989-46)


2-2-72 through 2-2-99 [Reserved]


CIVIL PROCEDURE

2-2-100 Standard of Proof

The plaintiff in a civil case shall have the burden of proving his case by the greater weight of the evidence.


2-2-101 Jury

Civil actions, other than appeals, shall be tried by a jury upon written request filed by any party at least fourteen (14) days before the trial date and upon such party's posting of a fee or other security in the amount of $75.00 to cover costs, disbursements and jury fees in the case. The fee may be waived by the Court upon a showing of good cause.


2-2-102 Applicable Law

In all civil cases the Court shall apply in the following order of priority, any applicable laws of the Colville Confederated Tribes, tribal case law, tribal customs, state statute, state common law, federal statues, and federal custom law, and international law.

(Amended 12/21/82, Resolution 1982-775)


2-2-103 Customs

Where any doubt arises as to the customs of the Tribes the Court may request the advice of counselors familiar with those customs.


2-2-104 Other Law

Repealed by Tribal Resolution 1982-775 on December 21, 1982.


2-2-105 Evidence

The Court shall not be bound by common law rules of evidence, but shall use its own discretion as to what evidence it deems necessary and relevant to the action.


2-2-106 through 2-2-139 [Reserved]


JUDGMENTS

2-2-140 Judgments—Generally

In all civil cases, judgment shall consist of an order of the Court awarding money damages to be paid to the injured person, or directing the surrender of certain property to the injured person, or the performance or prohibition of some other act.


2-2-141 Judgments—Compensation

The judgment shall fairly compensate the injured person for the loss he has suffered or shall follow any rules of compensation set out in any ordinance or section of this Code pursuant to which the action is brought.


2-2-142 Punitive Damages

If an injury is adjudged deliberately inflicted, the judgment may award punitive damages to the prevailing person.


2-2-143 Costs in Civil Actions

The judge may access the accruing costs of the case against the person against whom judgment is given. Such costs shall include the expenses of voluntary witnesses for which either party may be responsible under this Code, and the fees of jurors in jury cases, and any further incidental expenses or fees connected with the procedure required by this Code as the judge may direct.


2-2-144 Judgments and Decedents' Estates

A judgment shall be considered a lawful debt in all proceedings held by the Department of the Interior or by the Court to distribute decedents' estates.


2-2-145 Judgments—Duration and Interest

A judgment of the Tribal Court shall be valid until satisfied in full, including interest upon the judgment. Interest on judgments shall accrue as follows:
(a) Judgments founded on written contracts, providing for the payment of interest until paid at a specified rate, shall bear interest at the rate specified in the contracts. Provided, that said interest rate is set forth in the judgment.

(b) Except as provided under subsection (1) of this section, judgments shall bear interest from the date of entry at the maximum rate permitted under R.C.W. 19.52.020 on the date of entry thereof: Provided, that in any case where a judgment entered on verdict is wholly or party affirmed on review, interest on the judgment or on that portion of the judgment affirmed shall date back to and shall accrue from the date the verdict was rendered.
2-2-146 through 2-2-169 [Reserved]


EXECUTION OF JUDGMENTS

2-2-170 Procedure

If, after the time for appeal has run, it is made to appear to the Court that the judgment debtor has not paid the judgment amount in full or is not making payments in a manner agreed to by the parties or required by the Court, the judge shall order the judgment debtor to appear before him and answer under oath regarding his personal property. The judge shall then determine what property of the judgment debtor is available for execution and order the police to seize as much of the property as reasonably appears necessary to pay the judgment Failure of the judgment debtor to appear may be deemed a contempt of court and the judge may proceed without his appearance.


2-2-171 Sale of Property

Sale of the seized property shall be at public auction conducted by the police after giving at least ten (10) days public notice posted in at least three public places on the Reservation. Property shall be sold in a commercially reasonable manner to the highest bidder. Payment for the property and transfer of title shall take place after the retention period has expired, as described below. If the sale results in a price higher than the debt plus expenses of sale, the debtor shall be given the surplus. The judgment shall continue in effect in the amount not recovered at the sale, plus expenses of the sale.


2-2-172 Exemption from Execution

The judge shall order seizure and sale of only such property of the judgment debtor as will not impose an immediate and substantial hardship on his immediate family. Only property of the judgment debtor himself may be subject to execution and not property of his family.


2-2-173 Redemption

At any time within fourteen (14) days after the sale under section 2-2-170 above, the judgment debtor may redeem the sold property by paying the judgment amount in full, plus expenses of the sale. Upon such payment, the property shall be returned to the judgment debtor and the purchaser shall be notified that the property has been redeemed.


2-2-174 Per Capita Payments/Dividends

Unless otherwise provided by the Business Council, the Tribal Court and all the judges thereof shall have the authority and power to order that all per capita payments/dividends of judgment debtors, as authorized by 25 U.S.C.A. §117b, be available for execution of judgment and to order appropriate tribal or federal officials to seize and all per capita payments/dividends of judgment debtors which may arise in the present or future, as much of said payments/dividends as appears necessary to satisfy any judgment of the Tribal Court where the Confederated Tribes of the Colville Reservation, as party plaintiff, was awarded money damages or money judgment for payment of contracted obligations, contracted indebtedness, or otherwise.

(Adopted 2/21/83, Resolution 1985-80)


2-2-175 through 2-2-199 [Reserved]


JUDGMENTS OF OTHER COURTS

2-2-200 Application

Any person may apply to the Court by written application for an order accepting a civil judgment from another tribal court or a state or federal court as a judgment of the Court.


2-2-201 Review by Court

The judge shall review the application within five (5) days of its filing. The judge shall then decide whether to enter the judgment of the other court as a Tribal Court judgment. Unless otherwise provided by the Business Council or this Section, the judge shall have full and total discretion regarding this matter and shall be guided by the best interests of the Tribes and the parties. The Tribes shall automatically recognize, for a period not to exceed three (3) days following issuance, any no contact or restraining order issued by another court of competent jurisdiction in which domestic assault or violence is involved, provided that such order is filed with the Tribal Court in accordance with this Subchapter within the three (3) day time period.

(Amended 3/21/96, Resolution 1996-128)


2-2-202 Payment of Judgment

Upon the entry of the order declaring the other court's judgment to be a judgment of the Tribal Court, all provisions of this Code regarding judgments and execution shall be applicable.

GENERAL PROVISIONS

2-3-1 Findings

Lawbreakers are using devices, items, substances, objects and vehicles on the Reservation in violation of federal law and this Law and Order Code and are taking, possessing and using the natural resources of the Reservation in violation of federal law and this Law and Order Code. These activities are interfering with law enforcement and endangering the peace, safety, morals and general welfare of all persons on the Reservation. It is the purpose of this Chapter to provide for a procedure for adjudicating infractions and other civil violations and forfeiture of objects used or possessed in violation of this Code.

2-3-2 Purpose

These procedures are intended to be remedial and not punitive and should compensate the Tribes for the damage done to the peace, security, welfare and natural resources of the Colville Indian Reservation and for the actions taken by the Colville Tribes to protect the Reservation and its resources and people. These civil procedures are also intended to coerce individuals into obeying the Ordinances and regulations of the Colville Confederated Tribes and not to punish such individuals for violations of those Ordinances and regulations.

2-3-3 Application and Procedure

(a) Unless otherwise provided by specific language found elsewhere in this Code, this Chapter shall apply to any general or traffic infraction, field bond procedure, civil offense or forfeiture action listed in this Code or regulation adopted thereunder.

(b) Unless other procedures are provided by this Chapter, the Civil Actions Chapter 2-2 of this Code shall govern all questions of procedure arising as a result of the enforcement of this Chapter.

2-3-4 Definitions

(a) "Defendant" means the person against whom an action is filed under this Chapter.

(b) "Infraction^" means a civil offense in which the remedy involved is a civil fine or penalty which has been predetermined by the Business Council as provided by the subchapter "Infractions" of this Chapter. An infraction is not a crime and the punishment imposed therefore shall not be deemed for any purpose a penal or criminal punishment and shall not affect or impair the credibility of a witness or otherwise of any person convicted thereof.

(c) "Law Enforcement Officer" means an officer or agent of a law enforcement department, from the Colville Tribes, or a county or local government, who is certified as a police officer.

(Amended 7/11/02, Resolution 2002-417)
(Certified 7/19/02)

(d) "Notice" means a notice of infraction as provided by this Chapter.

(e) "Regulatory Enforcement Officer" means the person or persons charged with the responsibility of enforcing Colville Tribal civil laws, regulations, and tribal resolutions promulgated pursuant thereto and shall include all Colville Tribal:

(1) Law enforcement officers,

(2) Parks and Recreation Program law enforcement personnel;

(3) Fish and Wildlife Program law enforcement personnel; and

(4) Any other qualified individual authorized by Colville Tribal law to act as a Regulatory Enforcement Officer.

(Amended 7/1 1/02, Resolution 2002-417)
(Certified 7/19/02)

2-3-5 Final Judgment

(a) A final judgment against the defendant in favor of the Colville Confederated Tribes as determined under this Chapter shall include:

(1) The issuance of an infraction notice as provided by this Chapter, unless contested as provided by this Chapter;

(2) A final court order in favor of the Tribes resulting from any infraction notice which is contested as provided by this Chapter;

(3) A penalty imposed under this Chapter for any other civil violation of tribal law or regulation;

(4) A determination by the Tribal Court that property is subject to forfeiture under this Chapter.

(b) Any final judgement under this section shall be an obligation of the defendant to the Colville Confederated Tribes and is subject to collection or execution. Such judgment shall become a lien upon any available real, personal or other property of the defendant located within the boundaries of the Colville Indian Reservation or within the jurisdiction of the Colville Tribal Court. When necessary, the Colville Tribes may bring suit in any court to reach property of the defendant located outside the boundaries of the Colville Indian Reservation or outside the jurisdiction of the Colville Tribal Court.

2-3-6 Additional Remedies

Nothing in this Chapter shall be deemed to preclude the Tribal Court, to the extent authorized by tribal law, from:

(a) Issuing an injunction, by ordering the defendant to temporarily or permanently refrain from conducting the acts or actions that gave rise to a complaint;

(b) Ordering the defendant to pay compensation or restitution to an individual or any other entity injured by the actions of the defendant. Compensation or restitution shall reflect the actual documented damages or loss suffered as determined by the Tribal Court and shall not include compensation for emotional distress, pain or suffering or other special damages; or

(c) Imposing any other remedy for civil violations of tribal law or regulations.

INFRACTIONS

Issuance\Response

2-3-40 Determination of Identification

(a) Any regulatory enforcement officer who has reasonable grounds to believe that a person has committed a general or traffic infraction either in or out of the officer^'s presence, shall identify himself to such person and promptly request any identifying information necessary to carry out the enforcement procedures under this subchapter. In making such determination, the officer may demand identification and ask questions as the officer reasonably believes are necessary to making the determination.

(b) In the event a person cannot be or refuses to be identified as provided by this section, the regulatory enforcement officer shall issue and file a notice of infraction according to the procedures of this subchapter, substituting for the suspected violator's name a fictitious name such as John Doe. Upon determination of the true name of any person designated by a fictitious name in a notice of infraction, counsel for the Tribes shall amend the complaint to reflect the person's true name.

(Amended 7/1 1/02, Resolution 2002-417)
(Certified 749/02)

2-3-41 Notice of Infraction

(a) A notice of infraction constitutes the basis for the enforcement of this subchapter and shall serve as the civil complaint under this subchapter and shall satisfy any and all requirements for the filing of a civil complaint under the Civil Actions Chapter 2-2 of this Code. The content of the notice shall include the following:

(1) A statement that the notice represents a determination that an infraction has been committed by the person named in the notice and that such person may contest the determination as provided in this subchapter;

(2) A statement that an infraction is a non-criminal offense for which imprisonment cannot be imposed as a sanction;

(3) A statement of the specific act or omission for which the notice was issued and the specific infraction alleged;

(4) A statement of the liquidated damages established for the infraction

(5) A statement of the options provided in this subchapter for responding to the notice and the procedures necessary to exercise those options, including:

(A) A statement that, at any hearing to contest that an infraction took place, the Tribes has the burden of proving, by a preponderance of the evidence, that the infraction was committed; and

(B) A statement that, at any hearing requested for the purpose of explaining mitigating circumstances surrounding the commission of the infraction, the person will be deemed to have committed the infraction and may not subpoena witnesses;

(6) A statement that failure to respond to the notice within the time prescribed or to appear at a hearing requested for the purpose of contesting the determination or for the purpose of explaining mitigating circumstances will result in the imposition of an additional fee representing the added expenses incurred by the Tribes, and the entering of an order against the person named;

(7) A statement that an order imposing a fine shall be a debt owed to the Tribes, and the judgment entered on the debt may be enforced civilly in Tribal Court;

(8) A statement that the defendant must respond to the notice within fifteen (15) days.

(b) A notice may be issued by:

(1) A regulatory enforcement officer when an infraction under this Code or regulation adopted thereunder is committed in the officer^'s presence or when it is issued subsequent to an investigation and the officer has probable cause to believe that the defendant has committed an infraction under this Code. When issued by a regulatory enforcement officer, there shall be no requirement that the officer's signature on the notice be witnessed by a member of the court staff or a licensed notary public regardless of the procedures for civil complaints under this Code;

(2) The Colville Tribal Court upon receipt of a written complaint by a, regulatory enforcement officer, the tribal prosecutor or citizen stating the circumstances of the incident, from which the court determines that there is probable cause to believe that an infraction was committed.

(c) In the event the notice is issued by a regulatory enforcement officer, he shall serve a copy of the notice on the defendant by personal delivery to him when the defendant is present. When served with a notice by a regulatory enforcement officer, the defendant shall sign the promise to appear located on the notice and shall be released unless held for arrest, expulsion, federal prosecution or any other applicable procedures provided by this Chapter or this Code. When the notice is for a traffic infraction and the defendant is not present, the officer may serve the notice by issuing the notice to the registered owner of the vehicle involved and affixing it in plain view on the vehicle. In the event the defendant is not present and the infraction is for another civil regulatory violation other than a traffic infraction, the officer may serve the notice by certified mail, return receipt requested. Certification of service of the notice or other evidence of delivery satisfactory to the court shall be indicated on the face of the notice by the issuing officer. One copy of the notice shall be filed by the issuing officer with the tribal prosecutor, who shall file the notice with the court if the officer has not already filed the notice.

(Amended 7/1 1/02, Resolution 2002-417)
(Certified 7/19/02)

2-3-42 Response to Notice

(a) If the defendant named in the notice of infraction does not contest the determination that an infraction took place as stated in the notice he shall within fifteen (15) days of the date of the notice respond by completing the appropriate portion of the notice and submit it either by mail or in person to the Tribal Court. A check or money order in the amount of the liquidated damage amount set out in the notice must be submitted with the response. When a response under this subsection is received, an appropriate notation shall be entered in the court's records. No further proceedings under this subchapter shall be initiated against any defendant who pays the liquidated damage amount as provided in this section and, unless held for forfeiture as provided by this Chapter, any bond held by the Court for such payment shall be returned.

(b) If the defendant named in the notice wishes to contest the determination that an infraction took place as stated in the notice or if the defendant named in the notice does not contest the determination that an infraction took place as stated in the notice, but wishes to explain mitigating circumstances surrounding the infraction, he shall, within fifteen (15) days of the date of the notice, respond by completing the portion of the notice requesting a hearing for such purpose and shall submit it either by mail or in person to the Tribal Court.

Hearings\Remedies

2-3-43 Hearings-Rules of Practice

(a) All infractions that are not resolved pursuant to administrative procedures provided by this subchapter shall be determined by a hearing before the Colville Tribal Court pursuant to this part. Unless the defendant has made arrangements with the Clerk of the Court and scheduled a hearing date, the Court shall set a hearing date and notify the relevant law enforcement agency and the defendant of the time, place and date. Unless otherwise agreed by the parties, the date of the hearing shall be within thirty (30) days of the receipt of the notice in which the defendant contests the infraction and the notice from the Court setting the hearing shall be sent to the defendant within five (5) business days of the receipt of the notice that the infraction is contested.

(b) Any person subject to proceedings under this subchapter may be represented by counsel admitted to practice before the Colville Tribal Court. The Tribes shall not have any duty to either appoint counsel for or compensate a person for his attorney's fees. The prosecutor or in the case of conflict of scheduling or interest, such other counsel for the Tribes as the Business Council may designate, shall represent the Tribes in all actions under this subchapter. An attorney representing the Tribes may, but need not, appear in any proceeding under this subchapter.

(c) Hearings held under this subchapter to contest the determination that the infraction took place shall be as follows:

(1) A hearing shall be held without a jury;

(2) The court shall consider the notice and any other written report made under oath submitted by the law enforcement officer who issued the notice, or whose written statement formed the basis for the issuance of the notice in lieu of the officer's personal appearance at the hearing, provided, the person named in the notice may subpoena witnesses, including the officer, and has the right to present evidence and examine witnesses in court. The regulatory enforcement officer is not required to attend the hearing but may do so if he or she chooses and shall do so if he or she is timely served by the defendant with a subpoena within five (5) business days of the scheduled hearing.

(3) The burden of proof is on the Tribes to establish the commission of the infraction by a preponderance of the evidence;

(4) After consideration of the evidence and argument the court shall determine whether the infraction was committed. Where the court finds that the infraction was not committed an order dismissing the case shall be entered in the court's records. Where the court finds that the infraction was committed an appropriate order shall be entered in the court's records;

(5) Any person found to have committed an infraction may appeal the court's order in the same manner as other civil appeals as appropriate.

(d) [Reserved/not used]

(e) Hearings held under this subchapter to explain mitigating circumstances shall be as follows:

(1) A hearing held for the purpose of allowing a person to explain mitigating circumstances surrounding the commission of an infraction shall be informal. The person named in the notice may not subpoena witnesses nor may the determination that an infraction was committed be contested,

(2) After the court has heard the explanation of the circumstances surrounding the commission of the infraction the Court may affirm the liquidated damage amount established for the infraction or may reduce the liquidated damage amount as the circumstances dictate;

(3) There shall be no appeal from the court's determination under this subsection.

(f) Additional procedures for hearings provided for under this subchapter may be established by rule of the Tribal Court.

(Amended 7/1 1/02, Resolution 2002-417)
(Certified 7/19/02)

2-3-44 Liquidated Damages

(a) As directed by the Business Council, the directors of the appropriate tribal department(s) shall prepare for the approval of the council, and from time to time shall review and, as necessary, propose revisions to a schedule of liquidated damages consisting of a dollar determination or dollar determinations calculated to closely approximate the cost of providing equitable restitution to the Tribes for the damage or loss which would be caused by any infraction(s) of this Code or regulation adopted thereunder. In calculating liquidated damages, the Business Council may consider, in addition to any other factors they reasonably deem relevant:

(1) The cost to the Tribes of producing and/or protecting the tribal property or interest affected;

(2) The cost of replacing or restoring the tribal property or interest affected;

(3) The costs of enforcement including the general overall costs and costs particularized to individual infractions where appropriate;

(4) The loss to the Tribes of any revenue affected by the infraction;

(5) Damages for trespass;

(6) The costs incurred in representing the Tribes in an action under this subchapter.

(b) The director of the tribal department preparing or updating the Liquidated Damages Schedule shall post notice of the adoption of the schedule in a conspicuous place in Nespelem, Keller, Omak and Inchelium. Such notice shall provide that schedules will be available at the Tribal Police Department and in the case of schedules of liquidated damages for violations of the Fish, Wildlife and Recreation Chapter 4-1 of this Code, all outlets where fish and wildlife licenses are issued. Schedules of liquidated damages shall also be available at the office of the Code Reviser. Provided, the failure to have the schedule of liquidated damages at the office of the Code Reviser shall not affect the enforceability or the applicability of the liquidated damage amount.

(c) In the case of traffic infractions:

(1) Liquidated damages for any one infraction may not exceed $250.00;

(2) Until such time as it is revised by the Council, the monetary deterrent schedule promulgated under the motor vehicle provisions of this Code shall serve as the Liquidated Damages Schedule.

(d) If, on a showing of good cause, the defendant is unable to pay the liquidated damage amount when due, the court shall grant one three (3) month extension, and may grant additional extensions of time in which such damages shall be paid or may allow payment in installments. The court may, in its discretion, waive, reduce, or suspend the liquidated damage amount prescribed for the infraction after a hearing. At the option of the defendant named in the notice, the court may, but need not allow performance of a number of hours of community service in lieu of payment of the liquidated damage amount. Work performance shall be credited against the liquidated damage amount at the rate of the then federal minimum wage per hour.

(e) Any liquidated damage amount assessed and determined due under this subchapter by the Tribal Court order for which a judgment has been entered or through failure to contest the amount shall be collected in the same manner as any other judgment entered in a civil action. In any action on collection, the court may award reasonable attorney's fees and costs to the prevailing party.

(f) Exclusive jurisdiction for the collection of a judgment shall be in the Colville Tribal Court. Provided, if the domicile of the defendant subject to a judgment under this section is off the Colville Indian Reservation, the Tribes may, but need not file the judgment in a court of competent jurisdiction where the person subject to the judgment is domiciled, and there collect the same.

2-3-45 Liquidated Damage Presumption

(a) Since in most instances the exact amount of damages caused to the Tribes by a particular infraction of this Code or regulation adopted thereunder will be difficult or impossible to determine, it shall be presumed by the court adjudicating an infraction of this Code that the amount fixed by the schedule of liquidated damage amount represents the damages owed to the Tribes as restitution if the defendant is found to be liable. This presumption may be rebutted by evidence which shows that the amount indicated by the schedule of liquidated damage amount is excessive, or special circumstances warrant a reduction of the liquidated damage amounts in the particular case. In any case in which the presumption is successfully rebutted, the parties may introduce evidence to prove the actual damages as in any other civil case.

(b) All persons shall be deemed to have consented to the liquidated damages provision of this subchapter by their entry onto the Reservation, and where applicable, by their signature on a tribal permit or permits.

2-3-46 Default Judgment

(a) Unless otherwise provided by this part, the Tribal Court shall enter a default judgment against any defendant who is cited for an infraction of any provision of this Code or regulations promulgated under this Code and does not appear at the hearing or otherwise respond to the notice of infraction as provided in this subchapter. If a default judgment is entered, the court clerk shall, if feasible, issue notice of judgment to the defendant advising him that he must pay the judgment by a date certain which shall not be less than fifteen (15) days after the date of the notice. The notice shall state that failure to pay the judgment may result in forfeiture of a bond held pursuant to this Chapter, if any, and/or a civil proceeding in Tribal Court to collect the liquidated damage amount, and an additional fee of one hundred and fifty dollars ($ 150.00). Before ordering collection of the liquidated damage amount and additional civil penalty, the Tribal Court shall find:

(1) The notice of infraction was issued;

(2) The defendant was informed of his duty to either pay the liquidated damage amount or enter an appearance; and

(3) The defendant did not appear at the hearing or otherwise respond to the notice of infraction as provided by this subchapter.

(b) Any person who has:

(1) Requested a hearing to contest the determination that an infraction was committed or requested a hearing to explain mitigating circumstances, and without good cause fails to appear at the hearing scheduled; or

(2) Fails to respond to the notice shall be deemed to have conceded to the correctness of the determination of the infraction and the liquidated damage amount imposed on the notice.

2-3-47 Disposition of Fees, Penalties, and Damages

Unless otherwise provided by specific language found elsewhere in this Code, all fees resulting from all fines, costs, monies, penalties or damages collected for an infraction of this Code or regulations promulgated thereunder or any cash bond posted as provided by this Chapter shall be deposited in a special fund and shall be available for expenditure pursuant to a Business Council approved budget in connection with the conservation, restoration and protection of the property or interests of the Colville Indian Reservation and for Tribal Court Administration of this subchapter.

2-3-48 Res Judicata/Collateral Estoppel

No plea, finding or proceeding regarding any infraction adjudicated under this subchapter shall be used for the purpose of res judicata or collateral estoppel, nor shall any plea, finding or proceeding upon any infraction be admissible as evidence, in any civil proceeding.

FIELD BONDS

2-3-80 Demand for Bond

A law enforcement officer may demand that a defendant, who is alleged to have committed an infraction of this Code or a criminal violation of the Fish, Wildlife and Recreation Chapter 4-1, post a bond if both subsections (a) and (b) below are met:

(a) The defendant:

(1) Refuses to sign a notice of infraction or citation; or

(2) Cannot be, or refuses to be, identified; or

(3) Is not a tribal member and is not a permanent resident of the Reservation.

(b) The officer determines both that:

(1) Seizure of the defendant's property is necessary to secure the important tribal interest of guaranteeing the presence within tribal jurisdiction of sufficient assets of the defendant to secure payment of restitution to the Tribes for any damages determined by the Court pursuant to this Chapter or the criminal procedures provisions of this Code to have resulted from an infraction of this Code or a criminal violation of the Fish, Wildlife and Recreation Chapter 4-1; and

(2) There is a need for prompt action because it is likely that the defendant will leave the Reservation and the jurisdiction of the Colville Tribes with his property and not return, then the officer may demand that the defendant post a bond in an amount equal to the sum of the liquidated damages or bail for which he could be found liable by the Tribal Court pursuant to this Chapter or the criminal procedure provisions of this Code for the infraction(s) or criminal violation(s) the officer has alleged in the notice or citation.

(Amended 7/1 1/02, Resolution 2002-417)
(Certified 7/19/02)

2-3-81 Bond Notices

(a) In all cases where it is feasible, the law enforcement officer shall prepare and issue a bond notice to the defendant, allow him to read it, and have him sign the bond notice before the officer takes possession of any bond property.

(b) The bond notice shall inform the defendant of:

(1) The officer's authority under this subchapter to demand and, if necessary, seize the bond property;

(2) The infraction(s) or criminal violation(s) alleged, the liquidated damage amount or bail for each, and the total amount;

(3) The alternative methods of posting bonds as set forth in this subchapter;

(4) The fact that failure to appear at the trial or hearing or failure to otherwise respond to the notice of infraction or citation as directed will result in entry of a default judgment and forfeiture of bond; and,

(5) The fact that a property bond may be redeemed at any time during normal business hours at the Colville Tribal Court at Nespelem, Washington, by the posting of a cash bond, or payment of damages but that post judgment redemption must occur, it at all, within thirty (30) days of the entry of judgment unless an appeal is filed.

(c) Bond notices shall be prepared in duplicate and the original signed by the defendant shall be filed by the law enforcement officer with the copy of the notice of infraction or citation. A copy of the bond notice shall be given to the defendant.

(d) Bond notices shall contain the name and address of the defendant, the serial number of the notice of infraction or citation which has been issued, the date, and the signature and identification number of the issuing officer, and such other information as the Business Council deems necessary.

(e) The officer may seize bond property first and then issue a bond notice in any case in which he has reasonable grounds to believe that the delay caused by the bond notice procedure could:

(1) Jeopardize the safety of the officer;

(2) Lead to a breach of the peace;

(3) Cause the officer to lose the opportunity to seize the bond property; or

(4) Give the defendant the opportunity to flee the jurisdiction of the Tribes.

2-3-82 Bond Alternatives

(a) Cash Method: The defendant may post a cash bond with the law enforcement officer in the form of a personal check or money order made out to the order of the Confederated Tribes of the Colville Reservation, in the specified amount. The decision to accept a personal check shall be within the discretion of the officer who shall consider whether the alleged violator lives on the Reservation, has other ties with the Reservation, the nature of the infraction, and persons with Reservation ties who will vouch for the alleged violator.

(1) Upon receipt of the cash bond, the officer shall prepare a bond receipt for the amount received, which shall be on the official form provided by the Business Council for that purpose, and which shall contain the name of the defendant, the serial number of the notice of infraction or citation issued to him, the date, the bond amount, and the signature and identification number of the issuing officer. One copy of the bond receipt shall be issued to the defendant.

(2) The defendant shall sign the bond receipt and the law enforcement officer shall retain and file the signed copy with the filed copy of the notice of infraction or citation, and shall give the defendant a copy.

(3) If the law enforcement officer decides to accept a personal check or any other noncash form of payment, he may do so only as provided for by regulation of the Business Council, and under such conditions as provided by those regulations.

(b) Property Method: The defendant may post as bond with the officer any property which the officer reasonably believes is valued at an amount at least equal to the required bond amount.

(1) Upon receipt of bond property, the officer shall give to the person from whom he received it a bond receipt as provided by this section, except that instead of the cash amount received the receipt shall contain a completed description of the property including all serial and model numbers. The bond receipt shall also contain the officer's estimate of the value of the property.

(2) The defendant shall sign the bond receipt and the officer shall retain and file a signed copy as provided by this section.

(c) The defendant may choose between the following alternatives as to the disposition of his bond property:

(1) He may leave the property in the custody of the Colville Tribes until after the trial or hearing or forfeiture of the liquidated damage amount or bail at which time, if he has not been found liable to the Tribes it shall be returned to him. If he is found to be liable to the Tribes, is in default as provided by this Chapter or otherwise fails to appear, it will be held as security for payment of the judgment, and will be returned upon payment in full. If the payment in full is not received within thirty (30) days of the date of judgment or default, and if an appeal is not filed as provided by this Code, the property shall be sold at a public auction, and the amount received shall be applied to the judgment and the costs of sale and storage. Any excess shall then be returned to the judgement debtor; or

(2) He may redeem his property at any time during normal business hours at the Colville Tribal Court, Nespelem, Washington, by posting a cash bond in an amount equal to the sum of the liquidated damage mounts or bail for the infractions or criminal violations with which he is charged, or by paying damages as determined by the court. Redemption must occur, if at all, within thirty (30) days of the entry of judgment unless an appeal is filed.

2-3-83 Seizure of Contraband

Nothing in the field bond procedures shall affect or diminish the authority of a law enforcement officer to seize any item taken or used in violation of this Code or regulation promulgated thereunder.

2-3-84 Cash Bond Trust Bond

Within three (3) business days of being posted all cash bonds shall be deposited in a trust account established by the Colville Tribal Court for disposition as provided by this Chapter.

2-3-85 Bond Property Storage

All bond property shall be deposited with the Tribal Court for placement in secure storage within twenty-four (24) hours, excluding weekends and holidays, of being posted.

2-3-86 Involuntary Summary Seizure of Bond Property

Any law enforcement officer who has followed the procedures of this subchapter may use any reasonable force necessary to seize bond property from a defendant who refuses to comply with the bond procedures provided by this subchapter.

OTHER CIVIL VIOLATIONS

2-3-120 Civil Action

When any Ordinance or regulation of the Colville Confederated Tribes, other than an infraction violation, shall provide for the assessment of a civil fine or penalty against any person, association, partnership, company, or corporation for the violation of such tribal Ordinance or regulation, the Tribes shall proceed against such individual or group by civil complaint under the applicable civil action procedures of this Code. The Colville Confederated Tribes in such action shall have the burden of showing by a preponderance of the evidence that such person or group violated the applicable Ordinance or regulation.

2-3-121 Civil Penalty

If it is determined in a civil action under this subchapter that the defendant violated the applicable Ordinance or regulation, the court shall impose a civil penalty of not less than $25.00 nor more that $5000.00 against the defendant.

(Amended 7/1 1/02, Resolution 2002-417)
(Certified 7/19/02)

FORFEITURE

2-3-150 Forfeiture, Generally

Property shall be forfeited to the Colville Confederated Tribes pursuant to this subchapter when it is found to be "contraband." Contraband is defined as property which was or is:

(a) Being used to violate or possessed in violation of any law, Ordinance or regulation of the Colville Confederated Tribes; or

(b) Obtained by violation of any law, Ordinance or regulation of the Colville Confederated Tribes.

2-3-151 Search and Seizure of Contraband with Warrant

Upon a presentation of a written or oral complaint based upon probable cause, supported by oath or affirmation, it shall be made to appear to the judge that contraband as defined in this subchapter is possessed or used on the Reservation, the judge shall issue a warrant directed to any law enforcement officer, commanding him to search for and seize any such contraband, to keep it safely and to make a return of the warrant within three (3) days showing all acts and things done thereunder, with a specification of all contraband seized and the name of the person in whose possession it was found, if any. No warrant for search and seizure of contraband shall be valid unless it contains a description of the property to be seized and bears the signature of a judge of the Tribal Court.

2-3-152 Search and seizure of Contraband without Warrant

A law enforcement officer may search or seize contraband as defined in this subchapter without a warrant in circumstances under which warrantless searches and seizures are permitted by federal law. The officer shall keep such contraband safely and report the seizure to a judge of the Tribal Court within three (3) days after seizure, showing all acts and things done, with a specification of all contraband seized and the name of the person in whose possession it was found, if any.

2-3-153 Notice, Hearing, Disposal of Contraband

(a) If the property seized under the provision of this subchapter is seized pursuant to a lawful arrest for violation of this Code, then upon conviction of the person arrested or upon a finding by a preponderance of the evidence of the judge that the property is contraband, the judge shall order the contraband to be destroyed immediately, or disposed of and all proceeds therefrom shall be the sole property of the Tribes. If the property may be adapted to any lawful use, it shall be forfeited to the Tribes for their use.

(b) If the property seized under the provision of this subchapter is not seized pursuant to a lawful arrest for violation of this Code, then a hearing shall be held within ten (10) days after such seizure, and notice of such hearing shall be given in writing to the person in whose possession the property was found, if any. If the owner or possessor of the property is not known, then such notice of hearing shall be posted for ten (10) days in a public manner on the premises from which the property was seized. Upon a finding by a preponderance of the evidence of the judge that the property is contraband, the judge shall order the contraband to be destroyed immediately, or disposed of, and all proceeds therefrom shall be the sole property of the Tribes. If the property may be adapted to any lawful use, it shall be forfeited to the Tribes for their use.

(c) If the property seized under the provisions of this subchapter is not found to be contraband pursuant to this section, it shall be immediately returned to the person(s) from whom it was taken. In such case, no storage, impoundment or other charges shall be assessed against the owner or person from whom the property was taken.

(July 2002 version of Chapter 2-3)

CHAPTER 2-4 ADMINISTRATIVE PROCEDURE ACT

2-4-1 Administrative Procedure Act Limited in Its Application

Unless the Colville Tribal Council shall act by resolution to make this Chapter, the Colville Administrative Procedure Act, applicable to other administrative actions taken by the Tribe, this Chapter, Chapter 2-4, shall only be applicable to Chapter 4-5 (On-Site Wastewater Treatment and Disposal); Chapter 4-6 (Mining Water Quality Protection); Chapter 4-7 (Forest Practices Water Quality); Chapter 4-8 (Water Quality Standards); Chapter 4-9 ( Hydraulics Project Permitting); Chapter 4-10 (Water Use and Permitting); Chapter 4-15 (Shoreline Management); Chapter 10-1 (Tribal Employment Rights); and Chapter 10-3 (Indian Preference In Contracting) of the Colville Tribal Code.

(Chapter 4-9 through 10-3 included 8/10/01)
(Amended 9/6/01, Resolution 2001-495)


2-4-2 Findings

(a) The Colville Confederated Tribes have a primary interest in assuring that the administrative procedures carried out by the Tribe, and implemented through its subordinate administrative bodies pursuant to Tribal law, are consistent with the basic principles of common sense, justice and fairness. The Colville Administrative Procedure Act is intended to implement the following major principles:
(1) Except in emergencies, all rule-making, both procedural and substantive, shall be accompanied by notice to interested persons, and opportunities to submit views or information;

(2) Proper publicity shall accompany the enactment of all administrative rules;

(3) Provision shall be made for advanced determination of the applicability of the administrative rules to particular cases;

(4) Administrative adjudicatory hearings shall be fundamentally fair, particularly in regard to such matters as notice, rules of evidence, taking of official notice, and preparation of the Administrative Record;

(5) Responsible deciding officers and Agency heads in quasi-judicial cases shall be personally familiar with the evidence presented in that proceeding; and

(6) Adequate provision shall be made to provide for judicial review of administrative errors.(b) The Colville Confederated Tribes have jurisdiction to enforce the Colville Administrative Procedure Act and to insure that all persons, whether residing upon the Colville Indian Reservation or conducting business or other activities within the exterior boundaries of the Reservation are provided with due process of law. Tribal jurisdiction of all such persons and lands is necessary to protect the economy, health, safety and welfare of the Reservation population.


2-4-3 Definitions

For the purpose of this Chapter: (a) "Agency" means any tribal board, commission, department, or officer, authorized by law to propose rules for adopting by the Business Council or to adjudicate contested cases, except that the term "agency" shall not include either the Business Council or any Tribal Court.

(b) "Rule" means any order, directive or regulation of general applicability enacted into law by the Business Council:

(1) The violation of which subjects a person to a civil fine, civil penalty or other civil administrative sanction;

(2) Which establishes, alters or revokes any procedure, practice or requirement relating to agency hearings;

(3) Which establishes, alters or revokes any qualification or requirement relating to the enjoyment of benefits or privileges conferred by law;

(4) Which establishes, alters or revokes any qualifications or standards for the issuance, suspension or revocation of licenses to pursue any commercial activity. The term includes the amendment or repeal of a prior rule, but does not include:

(i) Statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public; or

(ii) Declaratory rulings issued pursuant to this Chapter as now or hereafter amended.

(c) The "Colville Environmental Quality Commission" or "CEQC" means the environmental policy-making and environmental administrative appellate body of the Colville Confederated Tribes.

(d) "Contested case" means a proceeding before an agency in which an opportunity for a hearing before such agency is required by law prior or subsequent to the determination by the agency of the legal rights, duties, or privileges of specific parties. Contested cases shall also include all cases of licensing where a license is revoked, suspended, or modified, or in which the granting of an application is contested by a person having standing to contest such matter under the law.

(e) "Council" or "Business Council" means the Colville Business Council of the Colville Confederated Tribes.

(f) "License" or "permit" means the whole or part of any agency approval, registration, or any form of permission required by law to engage in any activity.

(g) "Licensing" or "permitting" means the agency process respecting the grant, denial, renewal, revocation, suspension, annulment, withdrawal, or modification of a license or permit.

(h) "Person" means any individual, association of individuals; partnership; private, public, tribal or municipal corporation; tribal enterprise; company; business enterprise; any county, tribal, federal, state or local government; or any governmental entity.

(i) "Reservation" means all land within the exterior boundaries of the Colville Indian Reservation established on July 2, 1872 by Executive Order, and to the greatest extent permissible by law, such other lands as have been or may be added to the reservation or held in trust by the United States for the Confederated Tribes of the Colville Reservation or its members.

(j) "Reservation population" means all persons who reside on or otherwise conduct business or other activities on any lands, whether trust or fee, within the exterior boundaries of the Colville Indian Reservation.

(k) "Reservation resources" or "Reservation environment" means land, surface and ground water, fish, biota, plants, animals, air, wildlife and capital improvements on the Colville Indian Reservation.

(l) "Secretary" means the Secretary of the Colville Business Council.

(m) "Sponsoring Agency" means the tribal agency which prepares a rule or other matter under this Chapter for action by the Business Council.(n) "Tribe" means the Colville Confederated Tribes.

2-4-4 Adoption of Rules of Practice and Procedure—Public Inspection of Agency Orders, Decisions and Opinions

In addition to other rule-making requirements imposed by law:
(a) Each agency may adopt informal procedures prescribed or authorized by this Chapter, together with forms and instructions.

(b) To the extent not prohibited by federal law nor prohibited for reasons of confidentiality by Tribal law, each agency shall keep on file for public inspection all final orders, decisions and opinions in contested cases and any index to those orders, decisions or opinions prepared by the agency for its own use. No agency order, decision or opinion is valid or effective against any person, nor may it be invoked by the agency for any purpose, unless, upon reasonable request therefore, it is available for public inspection. This provision is not applicable in favor of any person who has actual or constructive notice knowledge of the agency order, decision or opinion in question.
2-4-5 Notices of Intention to Adopt Rules and Opportunity To Submit Data

(a) Prior to proposing that the Business Council adopt, amend, or repeal any rule, the sponsoring agency proposing that the Business Council take such action shall: (1) Publish notice thereof either in the Colville Tribal Tribune, or in two (2) other newspapers of general circulation in Okanogan and Ferry Counties, and mail a copy of the notice to all persons who have made timely request to the agency for information regarding the proposed rule-making proceedings. Such notice shall include:

(i) Reference to the authority under which the rule is proposed;

(ii) A statement of either the terms or substance of the proposed rule or a description of the subjects and issues involved; and

(iii) The time when, place where, and manner in which interested persons may present their views thereon;

(2) Afford all interested persons reasonable opportunity to submit data, views, or arguments in writing. Opportunity for public hearing may be granted if requested in a timely manner and determined by the sponsoring agency to be in the public interest. It is the intent of this Chapter that reasonable and timely requests for public hearings be favorably acted upon by the sponsoring agency. Following the close of the public comment period, and prior to making its final recommendation to the Business Council, the agency shall fully consider all oral comments and written submissions respecting the proposed action.(b) No regulatory proceeding shall be held on any final rule until twenty (20) days have passed from the publication date of the Tribal Tribune or newspapers in which notice is given of the adoption of said rule by the Business Council.

(c) No rule hereafter adopted is valid unless adopted in substantial compliance with this section, or, if an emergency rule designated as such, adopted in compliance with section 2-4-5. In any proceeding a rule cannot be contested on the ground of noncompliance with the procedural requirements of this section, as now or hereafter amended, after one (1) year has elapsed from the effective date of the rule.


2-4-6 Emergency Rules and Amendments

(a) If an agency recommends, and the Business Council so finds that immediate adoption or amendment of a rule is necessary for the preservation of the public health, safety, or general welfare of the Reservation population, and that observance of the requirements of notice and opportunity to present views on the proposed action would be contrary to the public interest, the Council may dispense with such requirements and immediately adopt the rule or amendment as an emergency rule or amendment. The Council's finding and a brief statement of the reasons for its finding shall be incorporated in the emergency rule or amendment. An emergency rule or amendment shall not remain in effect for longer than one hundred-eighty (180) days after adoption.

(b) The emergency rule may be published in any newspaper but such publication is solely to inform the public of its adoption and nothing in this section shall be construed to prevent the implementation of the rule upon its adoption by the Council in accordance with this section.


2-4-7 Rules Filed with the Secretary and Public Inspection

(a) Each agency shall file with the Secretary a true copy of all rules now in effect and being implemented by that agency. The Secretary shall keep a permanent register of such rules and all rules subsequently adopted by the Council in accordance with this Chapter. This permanent register shall be open to public inspection during normal business hours.

(b) Emergency rules enacted in accordance with section 2-4-5 shall become effective upon their adoption by the Council. All other rules hereafter adopted pursuant to this Chapter shall become effective upon the expiration of twenty (20) days following their publication as provided for in section 2-4-4, unless a later date is required by applicable law or specified in the rule. After the Council adopts an emergency rule pursuant to section 2-4-5 a copy of such emergency rule shall promptly be filed with the Secretary.


2-4-8 Statement of Purpose of Rules and How Implemented—Contents—Distribution by Agency

(a) When an agency proposes that the Business Council take action to adopt a rule pursuant to this Chapter, the sponsoring agency shall insure that the proposed rule is accompanied by a statement prepared by the sponsoring agency which generally describes the purpose of the proposed rule and how the rule is to be implemented. Such statement shall contain, but is not limited to, the following: (1) A title, a description of the rule's purpose, the name of the sponsoring agency, the legal authority for the proposed rule, and any other information which may be of assistance in identifying the proposed rule or its purpose;

(2) A summary of the proposed rule;

(3) The agency personnel who are responsible for drafting the proposed rule and who will be responsible for implementation and enforcement of the proposed rule;(b) Upon filing the proposed rule with the Secretary the sponsoring agency shall have copies of all statements prepared in accordance with this section, on file and available for public inspection.


2-4-9 Compilation of Rules and Judicial Notice

(a) The Secretary may compile and index all rules adopted by the Council pursuant to this Chapter and remaining in effect.

(b) Judicial notice shall be taken by the Tribal Court of rules adopted by the Council pursuant to this Chapter.


2-4-10 Petition for Adoption, Amendment, Repeal of Rules—Agency Action

Any interested person may petition an agency and request that such agency propose that the Council promulgate, amend, or repeal any rule. Within sixty (60) days after the submission of such petition, or at the next regular meeting of the agency if it does not meet within this sixty (60) day period, the agency shall formally consider the petition and within thirty (30) days thereafter shall either deny the petition in writing (stating its reasons for the denial) or initiate rule-making proceedings in accordance with this Chapter. Upon its receipt of any such petition, the agency may elect to take no action other than to immediately refer the matter to the appropriate administrative appellate body with jurisdiction over the matter in question and request that such administrative appellate body respond to the petition on the agency's behalf. Where such a referral is made, the administrative appellate body shall first determine whether it has jurisdiction over the matter, and it so finds, the administrative appellate body shall respond to the Petition within the time periods set forth herein.


2-4-11 Declaratory Judgment on Validity of Rule

(a) The validity of any rule may be determined upon petition for a declaratory judgment thereon addressed to the Colville Tribal Court when it appears that the rule, or its threatened application, interferes with or impairs or immediately threatens to interfere with or impair, the legal rights or privileges of the petitioner. The sponsoring agency shall be made a party to the proceeding, provided, that the Tribal Court shall not have jurisdiction to hear any such petition for declaratory judgment, and no declaratory judgment may be rendered, unless the petitioner has first requested in writing that the sponsoring agency pass upon the validity of the rule in question.

(b) Upon its receipt of any such petition the sponsoring agency may elect to take no action other than to immediately refer the matter to the appropriate administrative appellate body with jurisdiction over the matter in question and request that such administrative appellate body respond to the petition on the agency's behalf. In such case the administrative appellate body shall first determine whether it has jurisdiction over the referred matter and if so finding the administrative appellate body shall then pass upon the validity of the rule in question.

(c) In any proceeding under section 2-4-11(a) the Court shall declare the rule invalid only if it finds that the rule violates constitutional provisions, exceeds the lawful authority of the Council or was adopted without compliance with lawful rule-making procedures.


2-4-12 Declaratory Ruling by Agency

On petition of any interested person an agency may issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule enforceable by such agency. A declaratory ruling, if issued after an informal hearing and stated to be binding, is binding between the agency and the petitioner on the state of facts alleged, unless it is altered or set aside on appeal either by an administrative appellate body with jurisdiction over the matter or by the Colville Tribal Court. Such a ruling is subject to review in the Colville Tribal Court in the manner hereinafter provided for the review of decisions in contested cases by section 2-4-19.


2-4-13 Contested Cases Notice and Procedural Rules

(a) In any contested case, the agency shall afford all parties an opportunity for hearing upon their request. Moreover, where the agency with jurisdiction over the matter determines that a hearing should be held in furtherance of the public interest such agency may provide for a hearing even where one is not requested by any party. In any event, no such hearing shall be held upon less than twenty (20) days advance notice to all parties. The notice shall include: (1) A statement of the time, place and nature of the proceeding;

(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;

(3) A reference to the particular sections of the Tribal law involved;

(4) A short and plain statement of the issues and matters asserted.(b) Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved.

(c) Unless precluded by law, informal disposition may also be made of any contested case by stipulation, agreed settlement, consent order, or default.

(d) The record in a contested case shall include:
(1) All pleadings, motions, intermediate rulings;

(2) Evidence received or considered;

(3) A statement of matters officially noticed;

(4) Questions and offers of proof, objections, and rulings thereon;

(5) Proposed findings and exceptions;

(6) Any decision, opinion, or report by the officer presiding at the hearing.(e) Oral proceedings shall be recorded or transcribed for the purposes of agency decision. A copy of the entire record or any part thereof shall be furnished to any party upon their written request therefor and payment of the costs thereof.

(f) Findings of fact shall be based exclusively on the evidence presented and on matters officially noticed.

(g) The Federal Rules of Civil Procedure and Evidence may where applicable, be used as general guides for proceedings before any agency, except as to matters covered explicitly by Tribal law. The Federal Rules shall be interpreted as instructive rather than controlling in any event.

(h) Agencies, or their authorized agents, may: (1) Administer oaths and affirmations, examine witnesses, and receive evidence, and no person shall be compelled to divulge information which he could not be compelled to divulge in Tribal Court;

(2) Issue subpoenas;

(3) Rule upon offers of proof and receive relevant evidence;

(4) Take or cause depositions to be taken;

(5) Regulate the course of the hearing;

(6) Hold conferences for the settlement or simplification of the issues;

(7) Dispose of procedural matters by decision; and

(8) Take any other action authorized by Tribal law consistent with this Chapter.
2-4-14 Contested Cases, Rules of Evidence and Cross-Examination

In contested cases:
(a) Agencies, or their authorized agents, may admit and give probative effect to evidence which possesses probative value commonly accepted by reasonably prudent people in the conduct of their affairs. They shall give effect to the rules of privilege recognized by Law. They may exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence.

(b) All evidence, including but not limited to records and documents in the possession of the agency of which it desires to avail itself, shall be offered and made a part of the record in the case, and no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts or by incorporation by reference.

(c) Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence.

(d) Agencies, or their authorized agents, may take notice of judicially cognizable facts and in addition may take notice of general, technical, or scientific facts within their specialized knowledge. Parties shall be notified either before or during hearing, or by reference in preliminary reports or otherwise, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed. Agencies, or their authorized agents, may utilize their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to them.
2-4-15 Agency Hearings and Contested Cases—Hearings, Oaths, Subpoenas, Evidence Witnesses—Contempt

(a) In order to determine the necessity or desirability of proposing that the Council adopt, amend, repeal, or otherwise revise a rule or proposed rule, agencies may hold public hearings, subpoena witnesses, administer oaths, take the testimony of any person under oath, and in connection therewith, require the production for examination of any books or papers relating to the subject matter of contemplated regulation. This subsection shall not preclude the exercise of subpoena powers for investigative purposes granted agencies by other provisions of Tribal law.

(b) In any contested case, after proper service of notice, agencies, their authorized agents, or the hearing examiner hearing the case may: (1) Issue a subpoena upon the request of any party upon a statement showing general relevance and reasonable scope of the evidence sought. Provided, however, that such subpoena may be issued with like effect by the attorney of record of the party to the contested case in whose behalf the witness is required to appear, and the form of such subpoena in each case may be the same as when issued by the agency except that it shall only be subscribed by the signature of such attorney;

(2) Issue a subpoena upon their own motion;(c) Subpoenas may be served outside the Reservation to the maximum extent allowable in conformance with the requirements of the Due Process Clause of the Indian Civil Rights Act, 25 U.S.C. 1301, for purposes of long-arm jurisdiction with respect to any activity or consequence of any activity occurring within the Colville Indian Reservation.

(d) Witnesses in an agency hearing or contested case shall be paid the same fees and allowances, in the same manner and under the same conditions, as provided for witnesses in the Colville Tribal Courts. Provided, that the agency shall have the power to fix the allowance for meals and lodging. Such fees and allowances and the cost of producing records required to be produced by agency subpoena, shall be paid by the agency or, in a contested case, by the party requesting the issuance of the subpoena.

(e) If an individual fails to obey a subpoena or obeys a subpoena but refuses to testify when requested concerning any matter under examination or investigation at the hearing, the agency or attorney issuing the subpoena may petition the Colville Tribal Court for enforcement of the subpoena. The petition shall be accompanied by a copy of the subpoena and proof of service, and shall set forth in what specific manner the subpoena has not been complied with, and shall ask that the Tribal Court issue an order of the court to compel the witness to appear and testify before the agency.

(f) Upon its receipt of such petition, the Court shall enter an order directing the witness to appear before the Court at a time and place to be fixed in such order and then and there to show cause why he has not responded to the subpoena or has refused to testify. A copy of the order shall promptly be served upon the witness.

(g) If it appears to the Court that the subpoena was properly issued and that the particular questions which the witness refuses to answer are reasonable and relevant, and in the case of a rule-making hearing that the requested appearance and testimony are reasonably necessary to secure information the expected nature of which would reasonably tend to cause the agency to exercise its rule-making authority, the Court shall enter an order that the witness appear at the time and place fixed in the order and testify or produce the required papers, and on failing to obey said order the witness shall be subject to civil contempt proceedings before the Colville Tribal Court.


2-4-16 Contested Cases—Consideration of the Record and Re-opening

In a contested case, the officials who are to render the decision shall personally consider the whole record or such portions thereof as may be cited by the parties. Subsequent to the close of the contested case hearing and when determined to be in the interest of justice, the decision-making officer may temporarily postpone his decision and elect to re-open the record and request that the parties to the proceeding submit additional legal memoranda and/or present oral argument. After fully considering such additional written or oral presentations, the decision-making officer shall promptly render his decision.


2-4-17 Consultation with Agency Officers Ex Parte Contacts

(a) Except upon notice and opportunity for all parties to be present or to the extent required for the disposition of ex parte matters as authorized by law, no hearing examiner or agency or member of an agency presiding in a contested case or preparing a decision, or proposal for decision shall consult with any person or party on any issue of fact or law in the proceedings, except that in analyzing and appraising the record for decision any agency member or hearing examiner may: (1) Consult with members of the agency making the decision,

(2) Have the aid and advice of one or more personal assistants,

(3) Have the assistance of other employees of either the agency or the office of the Reservation Attorney who have not participated in the proceeding in any manner, who are not engaged for the agency in any investigative functions in the same or any current factually related case and who are not engaged for the agency in any prosecutory functions.
2-4-18 Contested Cases—Decisions and Orders—Findings and Conclusions—Requests for Reconsideration

(a) Every decision and order rendered by an agency in a contested case shall be in writing or stated in the record and shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of each fact found upon each contested issue of fact. Parties to the proceeding shall be notified of the decision and order in person or by mail. A copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed to each party or if a party is represented by an attorney, to his attorney of record.

(b) Should any party request a rehearing or reconsideration of the agency's order or decision, such request shall be made within ten (10) days of such order or decision, and the agency shall take action upon such request within thirty (30) days of receipt thereof. Where a request for rehearing or reconsideration has been timely made, the agency order or decision shall not be final either for further administrative or judicial review until the agency acts upon such request.


2-4-19 Administrative Appeals—Finality—Exhaustion of Administrative Remedies

Whenever an administrative order or decision is reviewable by an administrative appellate body, the order or decision so reviewable shall not be considered a final agency order or decision if any party to the order or decision timely petitions £or review of that order or decision to such administrative appellate body. Unless as otherwise specified by Tribal law, such petitions for administrative appellate review shall be filed within thirty (30) days of the agency action which is the subject of such appeal. Exhaustion of administrative remedies is a jurisdictional requirement to seeking judicial review thereof.


2-4-20 Judicial Review of Final Agency Action

(a) Any person aggrieved by either a final decision in a contested case, or by the promulgation of a rule under this Chapter, is entitled to judicial review thereof only under the provisions of this Chapter and such person may not use any other procedure to obtain judicial review of such final decision or such final rule, even though another procedure is provided elsewhere by a special law or other provision of Tribal law of general application.

(b) Proceedings for review under this Chapter shall be instituted by filing a petition in the Colville Tribal Court. The petition shall be served and filed within twenty (20) days after either service of the final administrative decision in a contested case, or within twenty (20) days of the effective date of a rule promulgated under this Chapter. Copies of any such petition for review shall be served upon the agency, the appellate administrative agency, if any, the Office of Reservation Attorney and all parties of record by certified mail, return receipt requested. The Court, in its discretion, may permit other interested persons to intervene.

(c) In the case of any request for judicial review of a rule promulgated under this Chapter, only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.

(d) The filing of the petition shall neither stay enforcement of the agency decision nor the rule. Where other tribal laws provide for stay or supersede as of an agency decision, it may be stayed by the agency or the reviewing Court only as provided therein, otherwise, the agency may do so or the reviewing Court may order a stay upon such terms as it deems proper.

(e) Within thirty (30) days after service of the petition, or within such further time as the Court may allow, the agency shall transmit to the reviewing Court the original or a certified copy of the entire record of the proceeding under review; but, by stipulation of all parties to the review proceeding, the record may be shortened. Any party unreasonably refusing to stipulate to limit the record may be taxed by the Court for the additional costs. The Court may require or permit subsequent corrections or additions to the record when deemed desirable and in the interests of justice.

(f) The review shall be conducted by the Court without a jury and shall be confined to the record. Any alleged irregularities in procedure before the agency, not shown in the record, shall be submitted to the Court in the form of a motion to the Court, supported by a memorandum of law and affidavits. The Court may, in the case of motions, and shall otherwise, upon request, hear oral argument and receive written briefs. The length of briefs and time for arguments shall be set by the Court.

(g) The Court may affirm the final decision of the agency or uphold promulgation of the rule, it may remand the case for further proceedings; or it may reverse the final decision or the rule, in whole or in part, if the substantial rights of petitioners have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional provisions;

(2) In excess of the lawful authority or jurisdiction of the agency or otherwise unlawful;

(3) Clearly erroneous in view of the entire record; or

(4) Arbitrary or capricious.
2-4-21 Appeal to Colville Tribal Court of Appeals

An aggrieved party may request review of any final judgment or final decision of the Colville Tribal Court under this Chapter by appeal to the Colville Court of Appeals. Such appeal shall be based upon the record and shall be taken in the manner provided by law for appeals from the Colville Tribal Court in other civil cases as provided for by the Subchapter on Appellate Proceedings under Chapter 1-1 of the Colville Tribal Code.


2-4-22 Provisions Applicable to Licenses, Licensing and Emergency Actions

(a) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, an existing full, temporary, or provisional license does not expire until the application has been finally determined by the agency, and, in case the application is denied or the terms of the new license limited, until the last day for seeking review of the agency order or a later date fixed by order of the reviewing Court.

(b) No revocation, suspension, annulment, modification, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by Certified Mail Return Receipt Requested to the licensee of facts or conduct which warrant the intended action, and the licensee was given reasonable opportunity to show compliance with all lawful requirements for the retention of the license.

(c) Where an agency finds that protection of public health, safety, or welfare requires that immediate emergency action be taken, and incorporates a finding to that effect in it, order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be instituted within five (5) working days of such emergency action and shall be promptly determined.


2-4-23 Severability

If any provision of this Chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are declared to be severable.


2-4-24 General Repeal and Saving

All Tribal law or parts of Tribal laws, whether special or comprehensive in nature, which are subject to the Colville Administrative Procedure Act, and which are inconsistent with the provisions of this Chapter, are hereby repealed, but such repeal shall not affect pending proceedings. Provided, that this section shall not apply to Chapters 4-5, 4-6, 4-7, and 4-8 of the Colville Tribal Code.


2-4-25 Effective Date

This Chapter shall take effect thirty (30) days after the date of its enactment by the Council.


2-4-26 Operation of Chapter If in Conflict with Federal Law

If any part of this Chapter shall be found to be in conflict with federal requirements which are a condition precedent to the allocation of federal funds to the Colville Confederated Tribes, such conflicting part of this Chapter is hereby declared to be inoperative solely to the extent of such conflict and with respect to the agencies directly affected, and such findings or determination shall not affect the operation of the remainder of this Chapter in its application to the agencies concerned.


2-4-27 Savings—Authority of Agencies to Comply with Act—Effect of Subsequent Legislation

Nothing in the Colville Administrative Procedure Act shall be held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by or otherwise recognized by law. Except as otherwise required by law, all requirements or privileges relating to evidence or procedure shall apply equally to agencies and persons. Every agency is granted all authority necessary to comply with the requirements of the Administrative Procedure Act. No subsequent Tribal laws shall be held to supersede or modify the provisions of the Administrative Procedure Act or its applicability to any agency except to the extent that such Tribal law shall do so expressly.

(Chapter 2-4 Adopted 1/18/85, Resolution 1985-20)

CHAPTER 2-5 DEBT SET-OFF

2-5-1 General Provisions

(a) Name: This Chapter shall be known as the Colville Debt Set-Off Chapter.

(b) Findings: The Colville Business Council finds that because of the expanded economic development of the Colville Indian Reservation, the number of tribal programs and enterprises providing services and products to members of the Tribes has increased greatly. As a result, the indebtedness of the Colville Tribal members and employees to these programs and enterprises has also increased.

The increase has resulted in a large number of accounts receivable owed to the Tribes by members and employees. The effect of this large amount of accounts receivable is to restrict the availability of program services and products to other tribal members and employees. The Business Council finds that it is its duty to find ways to expedite the repayment of debts to the Colville Confederated Tribes so that these programs and enterprises can best provide services and products for more Colville tribal members and employees.


2-5-2 Dividend Payment

(a) Debtor List: Within ten (10) days after the official date of entitlement cutoff for a dividend payment, the director or executive of every tribal program or enterprise, including by way of example and no 1 limitation, the Tribal Court, Credit program, Trading Post, Pole Plant, Housing program, and Sewer program, shall forward to the Tribal Enrollment Officer a list of tribal members currently indebted to such program or enterprise, including the amount of such indebtedness.

1(note: "not" in original 12/18/00)

(b) Notice: Within ten (10) days after receiving debtor lists from tribal programs and enterprises, the Tribal Enrollment Officer shall cause a notice to be sent out to each tribal member on the debtor lists, which notice shall be substantially in the following form:
"Tribal records show that you owe the (name of tribal program) the sum of $_____ as of (date). Unless it is paid in full, immediately, it will be withheld from your share of the next tribal dividend payment. The amount withheld will then be credited towards your debt. If you believe the amount of the debt shown to be incorrect or if you have any other reason to question the debt, you must file an action in Tribal Court to contest this matter within seven (7) days after the date of this notice. If you do not bring such an action, the amount of debt will be withheld from your dividend payment." (c) Tribal Court Action: If an action is commenced in the Tribal Court within the time period set out above, a hearing shall be held within five (5) days after the filing of the action to determine the validity of the debtor's claim. The decision of the Tribal Court shall be final.

(d) Debt Credit: The Tribal Enrollment Officer shall be responsible for informing the officer who issues dividend payment checks of the names of debtors and the amounts of debt so that these amounts may be withheld from the next dividend payment. The Tribal Enrollment Officer shall also have the duty of notifying the respective tribal programs and enterprises of the amounts to be credited to each debtor after funds are withheld from the tribal dividend payment.


2-5-3 Wages and Salaries

(a) Debtor List: No less than five (5) days before wage and salary checks are to be distributed by the Tribes, the director or executive of every tribal program or enterprise including, by way of example and not limitation, the Tribal Court, Credit Program, Trading Post, Pole Plant, Housing Program and Sewer Program, shall forward to the Tribal Central Accounting Department a list of tribal employees currently indebted to such program or enterprise, including the amount of such indebtedness.

(b) Notice: The Tribal Central Accounting Department shall cause a notice to be sent along with the next salary or wage check to each person shown on the debtor lists, which notice shall be substantially in the following form:
"Tribal records show that you owe the (name of tribal program) the sum of $______. Unless this amount is paid in full immediately, either the amount of the debt, or 25% of your gross salary or wages, or $50.00 whichever is less, will be deducted from your next paycheck. The amount withheld will then be credited towards your debt. If you believe the amount of the debt shown to be incorrect or if you have any other reason to question the debt, you must file an action in Tribal Court within five (5) days of the date of this notice. If you do not bring such an action, the amount specified above will be withheld from your next paycheck."(c) Tribal Court Action: If an action is commenced in the Tribal Court within the time period set out above, a hearing shall be held within three (3) days after the filing of the action to determine the validity of the debtor's claim. The decision of the Tribal Court shall be final.

(d) Debt Credit: The Tribal Central Accounting Department shall withhold from the next paycheck of the debtor the proper amount as determined in accordance with the above notice. The Tribal Central Accounting Department shall have the duty of notifying the respective tribal programs and enterprises of the amounts to be credited to each debtor after funds are withheld from wages and salaries.


2-5-4 Severability

If any provision of this Chapter or its application to any person or circumstance is held invalid, the remainder of the Chapter or the application of the provision to other persons or circumstances is not affected.


2-5-5 Effective Date

This Chapter shall be effective from the date of its adoption by the Colville Business Council.

(Chapter 2-5 Adopted 8/31/78, Resolution 1978-638)

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