Oglala Sioux Tribe: Law and Order Code, Ch. 5

Oglala Sioux Tribe: Law and Order Code

Last amended: 1996; New Ordinances Received: 2002.

CHAPTER 5

JUVENILE CODE

SUBCHAPTER I - ESTABLISHMENT AND PURPOSE

SECTION 1.01 ESTABLISHMENT.

The Juvenile Court of the Oglala Sioux Tribal Court, is hereby designated the Youth and Family division of the Oglala Sioux Tribal Court. The Youth and Family Division of the Oglala Sioux Tribal Court shall have the primary jurisdiction of enforcing the juvenile code of the Oglala Sioux Tribe and associated family matters.

Hist: Ordinance No. 91-03.

SECTION 1.02 DEFINITION - CONSTRUCTION.

For the purposes of this Code, words, phrases, and terms shall have the meanings respectively ascribed to them unless the context clearly indicates otherwise.

SECTION 1.03 CHILDREN - JUVENILES - MINORS.

Children, juveniles, and minors, which terms are used interchangeably, are natural male persons and natural female persons under eighteen (18) years of Age.

SECTION 1.04 ADULTS.

Adults are natural male persons and natural female persons eighteen (18) years of age or older.

SECTION 1.05 UNBORN CHILDREN.

A child conceived, but not born, is to be deemed an existing person so far as may be necessary for its interests and welfare to be protected in the event of its subsequent birth.

SECTION 1.06 JUVENILE COURT.

The Juvenile Court of the Oglala Sioux Tribe shall mean the division of the Oglala Sioux Tribal Court designated by the Tribal Council to hear all matters arising under the Juvenile Code of the Oglala Sioux Tribe and as set forth in Chapter 4 of this Code.

SECTION 1.07 DELINQUENT ACT.

A delinquent act is an act which if committed by an adult is designated a crime under the Oglala Sioux Tribal Law and Order Code.

SECTION 1.08 JUVENILE OFFENDER.

A juvenile offender is any person, male or female, who commits a delinquent act prior to his eighteenth (18th) birthday.

SECTION 1.09 JUVENILE IN NEED OF CARE.

A juvenile in need of care is a minor who:

(a) Has no parent, guardian or custodian available and willing to care for him;

(b) Has suffered or is likely to suffer physical injuries inflicted upon him by other than accidental means, which causes or creates a substantial risk of death, disfigurement, or impairment of bodily functions;

(c) Has not been provided with adequate food, clothing, shelter, medical care, education or supervision or any other necessary care by his parent, guardian or custodian necessary for his health, guidance or well being;

(d) Whose parent, guardian or custodian has abandoned him;

(e) Has been sexually abused;

(f) Has been committing delinquent acts as a result of parental pressure, guidance or approval.

Within this Code, unless the context otherwise plainly requires another meaning, a juvenile in need of care shall also include any child who is habitually truant from school; who has run away from home, or who is otherwise beyond the control of his parent, guardian or custodian; or whose behavior or condition is such as to endanger his own welfare or the welfare of others.

SECTION 1.10 GUARDIAN AD LITEM.

In any proceeding authorized by this Code where the Court finds that a juvenile does not have a natural or adoptive parent of guardian who is willing and able to represent the interests of the minor, or who will not exercise the best interests of the juvenile, the Court shall appoint, for the purposes of that proceeding only, a guardian ad litem who shall be lawfully vested with the power and charged with the duty of representing the best interests of the juvenile in an adversary role. The guardian ad litem shall be an adult who has no interest in the proceedings before the Court and who is not related by blood or marriage to the parties to the Court action.

SUBCHAPTER II

RIGHTS AND OBLIGATIONS

SECTION 2.01 RIGHTS IN JUVENILE OFFENDER PROCEEDINGS.

At every stage of a juvenile offender proceeding under Chapter 5 of the Juvenile Code, the minor involved and his parents, guardian or custodian shall be afforded the following rights, in addition to any others which may be available or provided by any other provisions of the Oglala Sioux Tribal Code:

(a) The right to have retained counsel at all hearings;

(b) The right to be present when any and all Tribal witnesses testify;

(c) The right to introduce evidence for and on their own behalf and to have witnesses subpoenaed to be present to testify for and on their behalf;

(d) The right not to be a witness against or otherwise incriminate themselves;

(e) The right to question or otherwise examine any witnesses who testify for and on behalf of the Tribe;

(f) The right to request a new hearing within ten (10) days after the adjudicatory hearing and the dispositional decision, on the grounds that new evidence has been discovered, which was not available at the original adjudicatory hearing;

(g) The right to appeal to the Oglala Sioux Tribal Court of Appeals, provided appellate procedure under the Tribal Code is followed accordingly.

SECTION 2.02 RIGHTS OF JUVENILE IN NEED OF CARE AND TERMINATION OF PARENTAL RIGHTS PROCEEDINGS.

At every stage of a juvenile in need of care and termination of parental rights proceeding under Chapter 5 of the Juvenile Code, the minor involved and his parents, guardian or custodian shall be afforded the following rights in addition to any others which may be available or provided by any other provision of the Oglala Sioux Tribal Code:

(a) The right to have retained counsel at all hearings;

(b) The right to be present when any and all Tribal witnesses testify;

(c) The right to introduce evidence for and on their own behalf and to have witnesses subpoenaed to be present to testify for and on their behalf;

(d) The right not to be a witness against or other wise incriminate themselves;

(e) The right to question or otherwise examine any witnesses who testify for and on behalf of the Tribe;

(g) The right to appeal to the Oglala Sioux Tribal Court of Appeals, provided appellate procedure under the Tribal Code is followed accordingly.

SECTION 2.03 RIGHTS TO COUNSEL.

(a) The Juvenile Court Judge shall in any proceedings for a juvenile offender, juvenile in need of care, or in proceedings for the termination of parental rights under Chapter 5 of the Juvenile Code of the Oglala Sioux Tribe, inform the minor and his parents, his guardian, or other custodian, of their right to retain counsel by telling them, "According to the Indian Civil Rights Act you have a right to have counsel represent you at this hearing. However, you or your family must pay any fees for such representation."

(b) If the parties appear at any hearing through the action without counsel, the Juvenile Judge shall continue proceedings if they need additional time to seek counsel.

(c) If the parties are unable to pay counsel, Juvenile Court Judge shall inform them of any available services that provides representation.

(d) The term "counsel" need not be equated with law trained attorneys. Counsel may be a law trained attorney, a non-law trained tribal attorney, or a competent lay person if allowed by the Court.

SECTION 2.04 MINORS LIABILITY FOR CIVIL WRONGS.

A minor is civilly liable for any wrong done by him, is like manner as any other person, but such minor cannot be subject to exemplary damages, unless at the time of the act he was capable of knowing it was unlawful.

SECTION 2.05 ENFORCEMENT OF MINORS RIGHTS - GUARDIAN REQUIRED.

A minor may enforce his rights by civil action, or other legal proceedings in the same manner as a person of the age of majority, except that a guardian must be appointed to conduct same.

SECTION 2.06 DELEGATION OF POWER BY MINOR - CONTRACTS RELATING TO PROPERTY.

A minor cannot give a delegation of power, nor make a contract relating to real property, or any interest therein, or relating to any personal property not in his immediate possession or control.

SECTION 2.07 CONTRACTS SUBJECT TO POWER OF DISAFFIRMANCE.

Except as specified in Section 2.06, a minor may make any other contracts subject only to his power of disaffirmance under the provisions of this Code.

SECTION 2.08 POWER OF DISAFFIRMANCE NOT APPLICABLE TO NECESSITIES.

A minor cannot disaffirm a contract, otherwise valid, to pay the reasonable value of things necessary for his support, or that of his family, entered into by him when not under the care of a parent or guardian able to provide for him or them.

SECTION 2.09 SUPPORT.

If it shall appear upon the hearing of the cause that the parent, parents, or any person named in such petition, who is in law liable for the support of such child, is able to contribute to the support of such child, the Court shall enter an order requiring such parent, parents or other persons to pay to the guardians so appointed or to be appointed, or the institution to which such child may be committed, reasonable sums from time to time for the support, maintenance or education of such child; and the Court may order such parent, parents or other persons to have reasonable security for the payment of such sum or sums, and upon failure to pay, the Court may enforce obedience to such order by proceeding as for Disobedience of a Lawful Order of the Court. The Court may upon application and upon such notice as it may direct, from time to time make such alterations in the allowances as shall appear reasonable and proper.

SECTION 2 .10 ORDER RELATING TO SUPPORT.

If the person so ordered to pay for support, maintenance or education of a dependent, neglected, or delinquent child shall be employed for wages, salary or commission, the Court may order that the sum to be paid by him shall be paid to the guardian or institution out of his wages, salary or commission, and that he shall execute an assignment thereof pro tanto. The Court may also order the parent or the person ordered to pay the sum of money for the support, maintenance or education of the child, from time to time, to make discovery to the Court as to his place of employment and the amount earned by him. Upon his failure to obey the order of the Court, he may be punished as for Disobedience of a Lawful Order of the Court.

SUBCHAPTER III

HOMES AND TRIBAL AGENCIES

SECTION 3.01 DEVELOPMENT OF STANDARDS - AUTHORIZATION.

The Juvenile Court of the Oglala Sioux Tribe, in conjunction with the Oglala Sioux Tribal Council or any of its authorized and designated personnel, committees or other agencies, shall prescribe and enforce rules and regulations governing the operation or detention facilities, shelter care facilities, foster care homes, foster care facilities, and any other homes, facilities or places used for the care and custody of the children of the Oglala Sioux Tribe.

SECTION 3.02 RULES AND REGULATIONS: INCLUSIONS BUT NO LIMITATIONS.

The rules and regulations governing the operation of such facilities as are set forth in this Chapter shall include but shall not be limited to the following:

(a) Cleanliness standards;

(b) Health, water and light standards;

(d) Visitation privileges;

(e) Occupancy standards;

(f) Provisions for medical and dental care;

(g) Provisions for food, furnishings, clothing and toilet articles.

SECTION 3.03 CARE AND TREATMENT POLICIES.

The Juvenile Court for the Oglala Sioux Tribe, in conjunction with the Oglala Sioux Tribal Council or any or its authorized and designated entities, committees or persons shall proscribe and enforce policies and procedures governing the administration of those facilities which are set forth in this Chapter.

Such policies and procedures shall include, but shall not be limited to the following:

(a) A minor shall not be punished, ridiculed or criticized for expressing through speech, custom or dress, the minor's Indian or Tribal heritage;

(b) A minor shall be allowed to wear his hair according to his personal taste. The minor shall not be punished, ridiculed, or criticized for the hairstyle he selects;

(c) A minor may wear his own clothes rather than clothes supplied by the detention facility, so long as they comply with minimum standards of cleanliness;

(d) Incoming and outgoing mail may be inspected for contraband, but mail shall not be read;

(e) Whenever possible, the minor shall be allowed to attend the school in which he is enrolled. School work and educational assistance, at the minor's level of development, shall be provided for the minor in detention facilities;

(f) A minor shall be allowed to attend traditional religious ceremonies provided that he is accompanied by a parent, guardian or custodian, has received consent to do so by a Children's Court Judge, and returns immediately to the detention or shelter care facility;

(g) A minor shall be allowed to attend the funeral and related activities of his brother, sister, mother, father, aunt, uncle, grandmother, grandfather or cousin, whether they be natural or adopted, provided that:

(1) His parent, guardian or custodian requests and receives permission from the Children's Court Judge; and

(2) He is accompanied by a parent, guardian or custodian; and

(3) He return immediately to the shelter care or detention facility.

(h) A minor shall be given the opportunity to engage in physical exercise every day.

(i) A minor shall not be locked alone in a room unless there exists a reasonable belief that he may cause physical injury to himself or others if not locked alone. While the minor is locked alone in a room, he must be visited at least once an hour. The confinement shall not continue unnecessarily;

(j) A minor shall not be punished by physical force, solitary confinement or deprivation of meals or family visits.

SECTION 3.04 LICENSE REQUIRED FOR CHILD CARE, CHILD PLACEMENT, OR CHILD WELFARE AGENCY OR FACILITY.

No person, firm, corporation, association, organization, or agency of government may establish or maintain a child welfare agency or receive children for care of placement in any home or facility having as its purpose, care or placement of children with person, persons, organizations, or institutions other than the parent or parents of the child, or person having legal custody of the child, unless licensed to do so by the Juvenile Court of the Oglala Sioux Tribe, with approval of such license by the Law and Order Committee of the Oglala Sioux Tribe. Any person who violates any provision of this Section shall be guilty of an offense, and shall be sentenced to labor for a period not to exceed thirty (30) days or to a fine not to exceed one hundred dollars ($100.00), or to both such imprisonment and fine, with costs.

SECTION 3.05 APPLICATION FOR LICENSE - INVESTIGATION BY THE LAW AND ORDER COMMITTEE.

Before issuing a license or authorizing establishment of any organization, home or facility having as its purpose to receive children for care and placement, the Juvenile Judge of the Oglala Sioux Tribal Court shall provide a copy of the application for authorization together with such other information in its possession pertaining to the proposed organization, home or facility to a three-person committee, composed of members of the Law and Order Committee, established for such purpose, and such committee shall conduct an investigation into the activities and standards of the care of the agency, organization or home or facility, and if satisfied as to the need for the agency, its financial ability, and the equipment of the agency, organization home or facility and its services are conducive to the welfare of the children, the committee shall recommend to the Juvenile Court Judge that a license be issued; which license shall be approved by the full Law and Order Committee of the Oglala Sioux Tribe.

All licenses shall be in force for one (1) year from the date of issuance unless revoked by the Juvenile Court, and shall be renewed annually on application to the Juvenile Court, by the same procedures as application for the initial license. No provision of this Chapter shall restrict the authority of the Juvenile Judge of the Oglala Sioux Tribal Court from making placement of the juvenile on a temporary basis to an unlicensed facility, home, or agency if the Court deems such placement to be in the best interests of the minor child.

SECTION 3.06 CATEGORIES OF CHILD WELFARE AGENCY LICENSES.

A child welfare agency shall be licensed, as provided in this Code, for activities which fall within one or more of the following categories:

(1) The providing of group care, maintenance, supervision and protection of children on a regular full-time basis as a substitute for regular parental care, with or without compensation, in a non-family group setting, which shall be known as a group care center or as a group care home as each shall be defined by standards established pursuant to Section 3.01 et seq. ;

(2) The providing of care, maintenance, supervision and protection of a child or children, as a substitute for regular parental care, without transfer of legal custody of placement for adoption, with or without compensation, on a regular full-time basis in a family home, which shall be known as a foster home;

(3) The providing of group care and supervision of children on a regular basis for part of a day as a supplement to regular parental care, with or without compensation, in an institutional setting, in a place which shall be known as a day-care center;

(4) The providing of care and supervision of a child or children as a supplement to regular parental care, without transfer of legal custody or placement for adoption, with or without compensation, on a regular basis for part of a day in a family home, which shall be known as a foster day-care home;

(5) The receiving and placement of children in foster homes or for adoption, with or without compensation, as a regular activity of any agency formed for such purposes, or the performance of such services as an adjunct to other regular activities, and any such agency shall be known as a child placement agency;

(6) The providing of care for girls or women pregnant out of wedlock, before or after confinement, or the care of such mother and infant after confinement, unless the child born becomes legitimate by the subsequent marriage of its parents, with or without compensation, and any agency performing such service shall be known as a maternity home.

SUBCHAPTER IV

JUVENILE COURT, ESTABLISHMENT AND DUTIES

SECTION 4.01 ESTABLISHMENT.

There is hereby established for the Oglala Sioux Tribe a division of the Tribal Court to be known and referred to as the Juvenile Court of the Oglala Sioux Tribe.

SECTION 4.02 JURISDICTION.

The Juvenile Court of the Oglala Sioux Tribe shall have original jurisdiction in all proceedings which are commenced within and under the terms of the Juvenile Code of the Oglala Sioux Tribe, within the establishment boundaries of the Oglala Sioux Indian Reservation and any and all lands pertinent thereto and connected therewith which are considered part and parcel of that land area known as the land or trust land of the Oglala Sioux Tribe.

Further, the Juvenile Court shall have jurisdiction over those matters commenced within the Juvenile Court of the Oglala Sioux Tribe as a result of referral under the Indian Child Welfare Act and under those terms and provisions as set forth under Subchapter X, within the Juvenile Code of the Oglala Sioux Tribe.

SECTION 4.03 COMPOSITION.

The Oglala Sioux Tribal Juvenile Court shall consist of one (1) or more Judges as appointed by the Oglala Sioux Tribal Council who shall also serve as Judges of the Oglala Sioux Tribal Court.

The Judge of the Juvenile Court, with the approval of the Chief Judge of the Oglala Sioux Tribal Court and within allowable budget considerations, shall have the authority to appoint any number of qualified persons to serve as Court Counselors, Court Service Workers, Investigators, Clerks of Court, and other necessary staff, as in the discretion of the Juvenile Court Judge that the case load and work requirements of the Court shall necessitate; which persons shall be employees of the Court and shall be considered part of the Court system.

SECTION 4.04 TRIBAL PROSECUTOR TO REPRESENT THE TRIBE.

All matters and proceedings brought against a juvenile under the provisions of the Juvenile Code of the Oglala Sioux Tribe shall be prosecuted or presented by a prosecutor or presenting officer of the Prosecutor's Office of the Oglala Sioux Tribe in the name of the Tribe and in the interest of the minor child.

SECTION 4.05 PROCEEDINGS IN INTEREST OF CHILD AND TRIBE - CHILD AS WARD OF TRIBE.

Every proceeding under the Oglala Sioux Tribal Juvenile Code shall be in the interest of the child, but with due regard for the rightful parents and others directly interested; and in any proceedings of the child shall be dealt with and protected and cared for as a ward of the Oglala Sioux Tribe.

SECTION 4.06 INTERFERENCE WITH COURT ORDERS AS CONTEMPT.

Any person who shall interfere with the direction or disposition of any child under any order of the Oglala Sioux Tribal Juvenile Code, or with any officer of the Court in carrying out the orders of the Court, shall be held in contempt and shall be subject to punishment.

SECTION 4.07 COOPERATION IN CARRYING OUT THE PURPOSES OF THE JUVENILE CODE.

In order to carry out the purposes of the Oglala Sioux Tribal Juvenile Code, the Oglala Sioux Tribal Juvenile Court is authorized to participate in any diversion, rehabilitation, attention, detention, foster care, or other placement facility or agency; to participate in training programs; to receive grants to carry out the purpose of the Code, and to cooperate with any Federal, State, Tribal, public or private agency or entity whose program or programs are consistent with the purposes of this Code.

SUBCHAPTER V

JUVENILE OFFENDERS

SECTION 5.01 PETITIONS.

Proceedings asking the Court to declare a child a juvenile offender as defined within the Oglala Sioux Tribal Juvenile Code shall be instituted by petition filed by a Tribal Police Officer or Juvenile Prosecutor (Presenting Officer) on behalf of the Tribe and in the interests of the child; the Petition shall state:

(a) The name, birth date and residence of the child;

(b) The names and addresses of the child's parents, guardians or custodians;

(d) A citation to the Tribal Code provision which the child is alleged to have violated;

(e) If the minor is in detention or shelter care, the place of detention or shelter care and the time he was taken into custody;

(f) That the child be declared a juvenile offender and that the appropriate action be taken pursuant to this Subchapter.

The petition shall be verified and the statements in the petition may be made upon information and belief.

SECTION 5.02 SUMMONS.

Upon the filing of such petition but at least five (5) days prior to an initial appearance which shall be termed an arraignment, the Oglala Sioux Tribal Juvenile Court shall issue summons to the child's parents, guardian or custodian, and which summons shall set forth the day, hour and place for the arraignment hearing on said petition, and which summons shall require the person alleged to have the custody of such child to appear before the Court at such time and place as stated in the summons.

SECTION 5.03 SERVICE.

The summons shall be delivered personally by a Tribal Law Enforcement Officer or appointee of the Oglala Sioux Tribal Juvenile Court. If the summons cannot be delivered personally, the Court may deliver the summons by registered mail If the summons cannot be delivered personally or be registered mail, the summons may, be served by posting. Service by posting shall be in the following manner:

Whenever it shall appear from the petition or from affidavit filed in the cause that any person or persons to whom notice should be given resides or has gone off of the Reservation, or on due inquiry cannot be found, or is concealed within the Reservation, or that their place of residence is unknown, so that the summons or citation cannot be served upon him, or whenever any person is affected by the designation "All Whom it May Concern", the Judge or Clerk shall cause the summons or citation to be posted once in the post office, community store, law enforcement office, or other commonly used public place in the community, or community where the person or persons to whom notice is required to be given resides or is last known to have resided, or in any other place ordered by the Court where such posting is likely to give notice to the person or persons to whom notice is required to be given; such posting shall be posted for not less than five (5) days prior to the day of hearing on the petition. Such Judge or Clerk shall also within one (1) day after the posting of such summons or citation, send a copy thereof by mail, addressed to each person to whom notice should be given whose place of residence is stated in the petition and who shall not have been served personally with the summons or citation. Notice given by posting as required by this Chapter shall be the only posting notice required either in the case of residents, nonresidents, or otherwise. The certificate of the Clerk or Judge that he has sent such notice in pursuance of this Chapter shall be evidence thereof.

SECTION 5.04 ARRAIGNMENT.

At the first appearance before the Court, which shall be referred to as the arraignment, the child and his parents, guardians or other custodian shall be fully informed of their constitutional, statutory and legal rights before the Court, including the right to be represented by counsel at every stage of the proceedings. At the arraignment stage the Court shall also make a determination as to whether there is an admission or denial to the petition on file before the Court.

In the event of a denial to the petition before the Court, the Court shall so inform the child and his parents, guardian, or other custodian of the date, hour and place of adjudicatory hearing upon the petition. Said adjudicatory hearing shall be held not less than five (5) days but no more than ten (10) days after the arraignment, unless there is a waiver by the child and his parents, in which case the adjudicatory hearing may take place at any time upon the Court's discretion.

In the event there is an admission to the petition, the Court shall proceed to the disposition hearing, which dispositional hearing shall take place not less than five (5) days but no more than ten (10) days after the arraignment, unless there be a waiver of said time period by the child and his parents, and in that event, the Court shall be authorized to proceed forthwith at its discretion.

SECTION 5.05 FAILURE TO PRODUCE CHILD AS CONTEMPT.

If the person having the custody or control of the child shall fail without reasonable cause to appear at all appearances contemplated within this Subchapter, then and in that event, that person may be proceeded against for Contempt of Court.

SECTION 5.06 ADJUDICATION HEARING.

In the event an adjudicatory hearing is held pursuant to this Subchapter, the Oglala Sioux Tribal Juvenile Court shall conduct the adjudicatory hearing for the sole purpose of determining whether there has, in fact, been a violation of provisions under the Oglala Sioux Tribal Penal Code by said child, or whether there has been, in fact, as act committed by said child, which act, if committed by an adult would be a crime within any provision of the Oglala Sioux Tribal Code. The adjudicatory hearing shall be private and closed.

SECTION 5.07 TRANSFER.

After the filing of a petition as contemplated within this Subchapter, but before the arraignment, the Juvenile Prosecutor, or Presenting Officer, may file a petition for transfer, which is a formal request to the Children's Court through the Juvenile Court to transfer the child to the adult Tribal Court to be tried as an adult, if the minor is fourteen (14) years of age or older and is alleged to have committed an act, which would have been considered a crime if committed by an adult.

The transfer hearing on the petition to transfer shall be held not more than ten (10) days after the petition for transfer is filed and in the event said petition for transfer is filed, the time periods for arraignment and further adjudication are stayed.

SECTION 5.08 NOTICE OF TRANSFER.

Written notice of the transfer hearing shall be given to the child and to the child's parents, guardian or custodian at least three (3) days prior to the transfer hearing. Said notice shall contain the date, hour and place where transfer hearing shall take place and shall command said parent, guardian, or custodian to procure said child for said transfer hearing. Said notice shall also be accompanied by a statement of constitutional, statutory and legal rights of the parents and of the child before the Court.

SECTION 5.09 TRANSFER HEARING.

The Juvenile Court, in determining whether to transfer jurisdiction of the minor to adult Tribal Court shall consider the nature and seriousness of the offense with which the minor is charged, and the nature and condition of the minor, as evidenced by his age, mental and physical condition, past record of offenses, and responses to past juvenile court efforts at rehabilitation; however, the juvenile court may transfer jurisdiction of the minor to adult Tribal Court only if the Juvenile Court finds by clear and convincing evidence that both of the following circumstances exist:

(a) There are no reasonable prospects for rehabilitation of the minor through resources available through the Juvenile Court; and

(b) The offense alleged to be committed by the minor evidences a pattern of conduct which constitutes substantial danger to the public.

SECTION 5.10 TRANSFER ORDER.

When a minor is transferred to adult Tribal Court, the Juvenile Court shall issue a written certificate of transfer in the form of an order containing the reasons for the Juvenile Court decision. This certificate of transfer (or transfer order) constitutes a final order for purposes of appeal.

In the event transfer is not ordered by the Juvenile Court, the Court shall inform the minor and his parents and any other interested persons or parties who have appeared at said transfer hearing, of the date of arraignment on the original petition, filed with the Court asking that the minor be declared a juvenile offender; the arraignment to take place no later than five (5) days after the entry of the order denying transfer.

SECTION 5.11 TAKING CHILD INTO CUSTODY.

A child may be taken into temporary custody by law enforcement officers or designated Court officials without order of the Court when said child is subject to arrest under the provisions of the Oglala Sioux Tribal Penal Code; the Juvenile Court may enter an order called a warrant, directing that a child be taken into custody if the Juvenile Court finds there is probable cause to believe the child has committed a delinquent act as alleged in the petition setting forth a request that a warrant issue.

SECTION 5.12 TAKING TEMPORARY CUSTODY NOT ARREST.

Taking a child into temporary custody under Section 5.11 is not an arrest nor does it constitute a police record.

SECTION 5.13 NOTICE TO PARENT, GUARDIAN OR CUSTODIAN OF CHILD TAKEN INTO TEMPORARY CUSTODY.

When a child is taken into temporary custody, the officer or designated Court official shall notify the parents, guardian or custodian without unnecessary delay, but within twenty-four (24) hours and inform them that if the child is placed in detention, he has a right to a prompt hearing to determine whether he is to be detained further.

The child shall then be released to the care of his parents, guardian or custodian, unless his immediate welfare or the protection of the community requires that he be detained. The parent, guardian or custodian to whom the child is released may be required to sign a written promise, on forms supplied by the Court, to bring the child to the Court at a time set by the Court.

SECTION 5.14 DETENTION OR SHELTER CARE.

In the event release has not effectuated under the provisions of Section 5.13, a minor may be detained or placed in shelter care pending further proceedings. No child shall be held in detention or shelter care longer than twenty-four (24) hours excluding Saturdays, Sundays and Holidays, unless a petition has been filed and the Court so orders following a detention hearing to determine whether probable cause exists to believe the minor committed the alleged delinquent act and whether continued detention or shelter care is necessary pending further proceedings.

If the minor's parents, guardian, or custodian is not present at the detention hearing, the juvenile Court shall determine what efforts have been made to notify and to obtain the presence of the parents, guardian or custodian, the Court may proceed forthwith. If it appears that further efforts are likely to produce the parents, guardian or custodian, the Juvenile Court shall recess for not more than twenty-four (24) hours and direct law enforcement officer or designated court officials to make continued efforts to obtain the presence of the parents, guardian or custodian and in the event such continuance does not result in the appearance of the parents, guardian or custodian, the Court shall then proceed forthwith.

SECTION 5.15 NOTICE OF DETENTION HEARING.

Notice of the detention hearing as is contemplated by provisions of Section 5.14, shall be given to the minor and his parents, guardian or custodian, and shall contain the name of the Court, the title of the proceedings, a brief statement of the substance of the allegations against the minor, including the fact that further detention or shelter care is necessary, and the date, time and place of the detention hearing. Said notice shall be delivered by Tribal law enforcement officers or a designated official of the Juvenile Court.

SECTION 5.16 FACILITIES.

In the event detention or shelter care is deemed necessary by the procedures set forth in Section 5.14, a minor alleged to be a juvenile offender maybe detained pending further Court proceedings in the following places:

(a) A foster care facility approved by the Tribe;
(b) An Attention or Detention home or facility approved by the Tribe;
(c) A private family home approved by the Tribe.

In the event no other facility or home is available, a juvenile offender may be detained in a jail or a facility used for the detention of adults only if detention is in a cell separate from adult prisoners or inmates, that adequate supervision is provided twenty-four (24) hours a day, and said child is not removed from sight and sound of adult supervision whenever possible, and a facility commonly used for the detention, attention, or shelter care for minors would not assure adequate supervision of the minor.

SECTION 5.17 INFORMAL ADJUSTMENT.

After a petition has been filed under the provisions of this Chapter, the Court may refer the matter to a Court Services Worker, Court Counselor, or other designated Court official, who may make whatever informal adjustment under the supervision of the Court that is practicable, provided that:

(a) The child, the child's parents, guardian or other custodian are informed of their constitutional and legal rights including being represented by counsel at every stage of the proceedings;

(b) The facts of the petition are admitted and jurisdiction is established;

(c) Written consent is obtained from the parents, guardian or other custodian and also from the child, if of sufficient age and understanding.

Efforts to effect informal adjustment may extend no longer than three (3) months from the date of consent provided herein, and in the event informal adjustment cannot be effectuated, the Court Counselor, Court Service Worker, etc., shall so inform the Juvenile Court Judge who may then forthwith proceed on the petition.

No statement during the informal adjustment period may be admitted into evidence at an adjudicatory hearing, or any other proceeding against the minor under this Chapter.

During the informal adjustment period the Court Counselor, Court Service Worker, etc., may:

(a) Refer the minor: and parents, guardian or custodian to a community or Tribal agency for needed assistance;

(b) Order terms of supervision calculated to assist and benefit the child which regulate the child's activities;

SECTION 5.18 ADJUDICATION ORDER ON FINDING OF ALLEGATIONS OF PETITION SUPPORTED BY EVIDENCE.

When the Court finds that the allegations of the petition are sustained by proof beyond a reasonable doubt, the Juvenile Court shall find the minor to be a juvenile offender and shall make an order of Adjudication setting forth whether the child is a juvenile offender and such order constitutes a final order for purposes of appeal

The Court shall then hold a dispositional hearing, as provided for herein, but such dispositional hearing may be continued on the motion of any interested party or upon a motion by the Court.

SECTION 5.19 PRE-DISPOSITIONAL HEARING.

Following adjudication, the Juvenile Court shall require an officer of the Court to present the Court within ten (10) days, a plan of disposition and treatment which shall specify the length and type of treatment, location of treatment program if outside the child's home, guardianship of the child during the treatment program, and other details as the Court may require.

The officer of the Court designated to prepare said report shall submit said report to the Juvenile Court, the minor, the minor's parents, guardian or other custodian, the minor's attorney and the Juvenile Court prosecutor (Presenting Officer) in a sufficient amount of time so that adequate preparation might be made before dispositional hearing.

SECTION 5.20 DISPOSITIONAL HEARING.

After making an order of Adjudication, the Court shall set a time and place for dispositional hearing which shall take place not less than five (5) but not more than ten (10) days after adjudicatory hearing.

At the dispositional hearing, the Juvenile Court shall hear evidence on the question of proper disposition which best serves the interest of the child and the public and such evidence shall include but not necessarily be limited to the social study report set forth in prior provisions.

SECTION 5.21 NOTICE.

Notice of the dispositional hearing shall be given to the minor, his parents, guardian, or custodian, and their counsel at least five (5) days prior to the hearing, and such notice shall contain the name of the Court, the title of the proceedings, a statement that the hearing is to determine the disposition of the case, and the date, time and place of the dispositional hearing.

SECTION 5.22 DISPOSITIONAL ALTERNATIVES.

If the minor has been adjudicated a juvenile offender, the plan of disposition and treatment may provide for:

(1) Placement of the child on probation with the supervision of the probation officer or other designated Court official.

(2) May require the child, as a condition of the probation, to report for assignment to a supervised work program, which program shall be a constructive nature designed to promote rehabilitation, appropriate to the age level and physical ability of the child, and shall be combined with counseling from a probation officer or other designated Court official.

(3) May require, at the discretion of the Juvenile Judge, as a condition of probation, that the juvenile offender be held in a jail facility up to fifteen (15) days, such detention to be in a cell separate from adult prisoners or inmates, under adequate twenty-four (24) hours a day supervision.

The dispositional order entered hereunder, however, shall not deprive a child of schooling appropriate to his age, needs and specific rehabilitative goals.

Dispositional orders are to be in effect for a time limit set by the Juvenile Court but such orders shall not continue after the child reaches the age of eighteen (18) years of age.

Dispositional orders are to be reviewed at the Juvenile Court's discretion, but shall be reviewed at least once every three (3) months.

SECTION 5.23 MODIFICATION OF DISPOSITIONAL ORDERS.

A dispositional order of the Juvenile Court may be modified upon a showing of a change of circumstances upon motion of the minor, or the minor's parents, guardian, or custodian, or the Juvenile Court Prosecutor (Presenting Officer), or Court, or its designated officers.

A hearing to modify dispositional orders shall be conducted after written notice of such hearing shall be given to the minor, the minor's parents, guardian or custodian and the minor's counsel at least five (5) days prior to the hearing and which notice shall contain the name of the Court, the title of the proceedings, a statement that the hearing is to modify the dispositional order, and the date, time and place of the hearing. Such notice shall be delivered by a Tribal law enforcement officer or a designated Court official.

SECTION 5.24 COURT RECORDS.

A record of all hearings under this Chapter shall be made and preserved.

All Juvenile Court records shall be confidential and shall not be opened to inspection, except to the Court and/or its designated official, which official may inspect the Juvenile Court records for official purposes only. The child, child's parents, guardian or custodian may inspect their own records only after petitioning the Court for permission. The Juvenile Court shall grant such request only upon the showing of good cause and necessity.

SECTION 5.25 LAW ENFORCEMENT RECORDS.

Law enforcement records and files concerning a child shall be kept separate from the records and files of adults.

All law enforcement records and files shall be confidential and shall not be opened to inspection except to the Court and/or its designated officials and Tribal prosecutors, which officials may inspect the law enforcement records and files for official purposes only. The child, child's parents, guardian or custodian, may inspect their own law enforcement records and files only after petitioning the Court for permission. The Juvenile Court shall grant such request only upon the showing of good cause and necessity.

SECTION 5.26 RECORDS SEALED.

When a child who has been the subject of any proceeding before the Juvenile Court attains his eighteenth birthday, the Juvenile Court's presiding Judge shall order the Clerk of the Juvenile Court to destroy the Court's records.

SUBCHAPTER VI

JUVENILE IN NEED OF CARE

SECTION 6.01 PETITIONS.

Proceedings asking the Court to declare a child a juvenile in need of care as defined within the Oglala Sioux Tribal Juvenile Code shall be instituted by petition filed by the Tribal Police officer or Juvenile Prosecutor (Presenting Officer) on behalf of the Tribe and in the interest of the child; and the petition shall state:

(a) The name, birth date and residence of the child;

(b) The names and addresses of the child's parents, guardians or custodians;

(d) A citation to the Tribal Code provision which the child is alleged to have violated;

(e) If the minor is in detention or shelter care, the place of detention or shelter care and the time he was taken into custody;

(f) That the child be declared a juvenile in need of care and that the appropriate action be taken pursuant to this Chapter.

The petition shall be verified and the statements in the petition may be made upon information and belief.

SECTION 6.02 SUMMONS.

Upon the filing of such petition but at least five (5) days prior to an initial appearance which shall be termed an arraignment, the Oglala Sioux Tribal Juvenile Court shall issue summons to the child's parent, guardian, or custodian, and which summons shall set forth the day, hour, and place for the arraignment hearing on said petition, and which summons shall require the person alleged to have the custody of such child to appear before the Court at such time and place as stated in the summons. A copy of the petition shall be attached to the summons.

SECTION 6.03 SERVICE.

The summons shall be delivered personally by a Tribal Law Enforcement Officer or appointee of the Oglala Sioux Tribal Juvenile Court. If the summons cannot be delivered personally, the Court may deliver the summons by registered mail. If the summons cannot be delivered personally or by registered mail, the summons may be served by posting. Service by posting shall be in the following manner:

Whenever it appears from the petition or from affidavit filed in the cause that any person or persons to whom notice should be given resides or has gone off of the Reservation, or on due inquiry cannot be found, or is concealed within the Reservation, or that their place of residence is unknown, so that the summons or citation cannot be served upon him, or whenever any person is affected by the designation "All Whom it May Concern", the Judge or Clerk shall cause the summons or citation to be posted once in the Post Office, Community Store, law enforcement office, or other commonly used public place in the community, or in the community where the person or persons to whom notice is required to be given resides or is last known to have resided, or in any other place ordered by the Court where such posting is likely to give notice to the person or persons to whom notice is required to be given; such posting shall be posted not less than five (5) days prior to the day of hearing on the petition. Such Judge or Clerk shall also, within one (1) day after the posting of such summons or citation, send a copy thereof by mail, addressed to each person to whom notice should be given whose place of residence is stated in the petition and who shall not have been served personally with the summons or citation. Notice given by posting as required by this Chapter shall be the only posting notice required either in the case of residents, non-residents, or otherwise. The certificate of the Clerk or Judge that he has sent such notice pursuance of this Chapter shall be evidenced thereof.

SECTION 6.04 ARRAIGNMENT.

At the first appearance before the Court, which shall be referred to as the arraignment, the child and his parents guardian or other custodian shall be fully informed of their constitutional, statutory and legal rights before the Court, including the right to be represented by counsel at every stage of the proceedings. At the arraignment stage the Court shall also make a determination as to whether there is an admission or a denial to the petition on file before the Court.

In the event of a denial to the petition before the Court, the Court shall so inform the child and his parents, guardian or other custodian of the date, hour and place of adjudicatory hearing upon the petition. Said adjudicatory hearing shall be held not less than five (5) days but no more than ten (10) days after the arraignment, unless there is a waiver by the child and his parents, in which case the adjudicatory hearing may take place at any time upon the Court's discretion.

In the event there is an admission to the petition, the Court shall proceed to the dispositional hearing, which dispositional hearing shall take place not less than five (5) working days but not more than ten (10) days after the arraignment, unless there be a waiver of said time period by the child and his parents, and in that event, the Court shall be authorized to proceed forthwith at its discretion.

SECTION 6.05. FAILURE TO PRODUCE CHILD AS CONTEMPT.

If the person having the custody or control of the child shall fail without reasonable cause to appear at all appearances contemplated within this Chapter, then and in that event that person may be proceeded against for Contempt of Court.

SECTION 6.06. ADJUDICATORY HEARING.

In the event an adjudicatory hearing is held pursuant to this Chapter, the Oglala Sioux Tribal Juvenile Court shall conduct the adjudicatory hearing for the sole purpose of determining whether there has in fact been a violation of provisions under the Oglala Sioux Tribal Penal Code by said child or whether, if committed by an adult, would be a crime within any provision of the Oglala Sioux Tribal Code. The adjudicatory hearing shall be private and closed.

SECTION 6.07. TAKING CHILD INTO TEMPORARY CUSTODY WITHOUT COURT ORDER.

A child may be taken into temporary emergency custody by law enforcement officers, designated Court officials, or duly authorized social service agency personnel without order of the Court when such personnel have reasonable grounds to believe that the child is a juvenile in need of care, and that the child has been abandoned, seriously endangered in his surroundings, and that immediate removal appears to be necessary for such child's protection.

SECTION 6.08. TEMPORARY CARE OF CHILD WHEN TAKEN INTO TEMPORARY EMERGENCY CUSTODY.

A child who has been taken into temporary emergency custody pursuant to Subchapter V, shall be given temporary care in a facility designated by the Oglala Sioux Tribal Juvenile Court in conjunction with the Oglala Sioux Tribal Council.

No child shall be held in such shelter care facility longer than forty-eight (48) hours excluding Saturdays, Sundays, and court holidays, unless an application for Temporary Emergency Custody has been filed.

In the event an application for temporary emergency custody is filed, a temporary emergency custody hearing shall be held within forty-eight (48) hours of said filing and in the event said hearing is not so held, said child shall be immediately returned to the parents, guardian, or custodian.

SECTION 6.09 NOTICE TO PARENTS, GUARDIAN OR CUSTODIAN OF CHILD TAKEN INTO TEMPORARY EMERGENCY SHELTER.

When a child is taken into temporary emergency custody and the application for temporary emergency custody is filed, the Oglala Sioux Tribal Court shall, without unnecessary delay, but within twenty-four (24) hours before the temporary emergency custody hearing, notify the parents, guardian or custodian of said child and inform them that an application for temporary emergency custody has been filed and that the parents, guardian, or custodian have right to a prompt hearing to determine whether said child shall remain in temporary emergency custody pending further proceedings.

Said notice shall contain the name of the Court, the title of the proceeding, a brief statement of the substance of the allegations including the fact that further shelter care is necessary, and the date, time and place of temporary emergency custody hearing. Said notice shall be delivered by Tribal law enforcement officers or a designated official of the Juvenile Court.

SECTION 6.10 DETERMINATIONS.

In the event a temporary emergency custody hearing is held pursuant to the provisions of Sections 6.08 and 6.09, the Court shall make a determination whether there is probable cause to believe the child in question is a juvenile in need of care, and whether continued shelter care is necessary pending further proceedings.

If the minor's parents, guardian, or custodian is not present at the temporary emergency care hearing, the Juvenile Court shall determine what efforts have been made to notify and obtain the presence of the parents, guardian, or custodian. If it appears that further efforts are likely to produce the parents, guardian, or custodian, the Juvenile Court shall recess for not more than twenty-four (24) hours and direct law enforcement officials or designated court officers to make continued efforts to obtain the presence of the parents, guardian or custodian and in the event such continuance does not result in the appearance of the parents, guardian or custodian, the Court shall then proceed forthwith.

In the event a temporary emergency custody hearing is held and the Court then determines that there is probable cause to believe the minor is a juvenile in need of care and that further shelter care is necessary pending further proceedings, the Court shall enter its order allowing the same but in no event shall such child be held in temporary shelter care for longer than forty-eight (48) hours, excluding Saturdays, Sundays, and court holidays unless a petition has been filed with the Court pursuant to Subchapter VI.

In the event the Court does not make a determination that probable cause exists to believe that the minor is a juvenile in need of care, or does not make a determination that further shelter care is necessary pending further proceedings, then the child shall be released immediately to the care of his parents, guardian or custodian, but said release does not preclude the Tribal Prosecutor (Presenting Officer) from pursuing a minor in need of care proceedings as is contemplated in this subchapter.

SECTION 6.11 ADJUDICATION ORDER ON FINDING ALLEGATIONS SUPPORTED BY EVIDENCE.

When the Oglala Sioux Tribal Juvenile Court finds that the allegations of the petition are sustained by proof by preponderance of the evidence (beyond a reasonable doubt), the Juvenile Court shall find the child to be a juvenile in need of care and shall make an order of adjudication setting forth its findings and the statement that the said child is in fact a juvenile in need of care and such order constitutes a final order for purposes of appeal.

The Court shall then hold a dispositional hearing, as provided for herein, but such dispositional hearing may be continued on the motion of any interested party or upon a motion by the Court.

SECTION 6.12 PRE-DISPOSITIONAL HEARING.

Following adjudication, the Juvenile Court shall require an officer of the Court to present the Court within ten (10) days, a plan of disposition and treatment which shall specify the length and type of treatment, location of treatment program, guardianship of the child during the treatment program, and other details as the Court may require.

The officer of the Court designated to prepare said report shall submit said report to the Juvenile Court, the minor, the minor's parents, guardian or other custodian, the minor's attorney and the Juvenile Court Prosecutor (Presenting Officer) in sufficient amount of time so that adequate preparation might be made before dispositional hearing.

SECTION 6.13 DISPOSITIONAL HEARING.

After making an order of adjudication, the Court shall set a time and place for dispositional hearing which shall take place not less than five (5) but not more than ten (10) days after the adjudicatory hearing.

At the dispositional hearing, the Juvenile Court shall hear evidence on the question of proper disposition which best serves the interest of the child and the Oglala Sioux Tribe and such evidence shall include but not necessarily be limited to the social study report set forth in prior provisions.

SECTION 6.14 NOTICE.

Notice of the dispositional hearing shall be given to the minor, his parents, guardian or custodian, and their counsel at least five (5) days prior to the hearing and such notice shall contain the name of the Court, the title of the proceedings, a statement that the hearing is to determine the disposition of the case, and the date, time and place of the dispositional hearing.

SECTION 6.15 DISPOSITIONAL ALTERNATIVES.

If the child in question has been designated a juvenile in need of care, one or more of the following provisions may be entered as a dispositional provision when the Court finds such appropriate:

(1) The Court may place the child in legal custody of on or both parents, guardian or custodian, or a relative, or other suitable persons, with or without protective supervision, under such conditions as the Court may impose;

(2) The Court may place legal custody in the Oglala Sioux Tribal On-Going Child Welfare Program, or in a child placement agency for placement in a foster home or other child care facility, provided that the order so allowing the same shall reflect that the child is to remain a ward of the Oglala Sioux Tribe until further order of the Court.

In addition to the alternatives set forth herein, the Court may order that the child be examined or treated by a physician, surgeon, psychiatrist, psychologist, or that he receive other special care and may place the child in a hospital or other suitable facility for such purposes.

SECTION 6.16 MODIFICATION OF DISPOSITIONAL ORDERS.

A dispositional order of the Juvenile Court may be modified upon a showing of a change of circumstances upon motion of the minor, the minor's parents, guardian or other custodian, or the Juvenile Court Prosecutor (Presenting Officer), or Court or its designated officer.

A hearing to modify dispositional order shall be conducted after written notice of such hearing shall be given to the minor, the minor's parents, guardian, or custodian and the minor's counsel at least five (5) days prior to the hearing and which notice shall contain the name of the Court, title of the proceedings, a statement that the hearing is to modify the dispositional order, and the date, time and place of the hearing. Such notice shall be delivered by a Tribal law enforcement officer or a designated Court official.

SECTION 6.17 COURT RECORDS.

A record of all hearings under this Chapter shall be made and preserved.

All Juvenile Court records shall be confidential and shall not be opened to inspection, except to the Court and/or its designated official, which official may inspect the Juvenile Court's records for official purposes only. The child, child's parents, guardian or custodian may inspect their own records only after petitioning the Court for permission. The Juvenile Court shall grant such request only upon the showing of good cause and necessity.

SUBCHAPTER VII

TERMINATION OF PARENTAL RIGHTS

SECTION 7.01 AUTHORITY.

The Oglala Sioux Tribal Juvenile Court may enter an order terminating all parental rights of one or both parents of a child when it finds that the best interest and welfare of the child so require.

SECTION 7.02 GROUNDS FOR TERMINATION.

The Oglala Sioux Tribal Juvenile Court may terminate the parental rights of one or both the parents of a child if it finds by preponderance of the evidence that:

(a) The parent or parents have abandoned the child;

(b) A minor has suffered physical injuries willfully and repeatedly inflicted by the parent(s) upon him which causes or created a substantial risk of death, disfigurement, or impairment of bodily functions;

(d) The voluntary written consent of both parents has been acknowledged before the Court.

SECTION 7.03 PETITION.

Proceedings to terminate parental rights shall be instituted by petition filed by the Juvenile Court Prosecutor (or Presenting Officer) on behalf of the Oglala Sioux Tribe. The petition shall state in writing:

(a) The name, birth date, and residence of the minor;

(b) The names and addresses of the minor's parents, guardian or custodian;

(c) Whether or not the child is in detention or shelter care, and the place of detention or shelter care and the time said child was taken into custody;

(d) Setting forth plainly the facts which would establish grounds for bringing the child within the Court's jurisdiction for a termination proceeding.

The petition shall be verified and the statements in the petition may be made upon information and belief.

SECTION 7.04 SUMMONS.

Upon the filing of such petition, but at least five (5) days prior to the termination hearing, the Oglala Sioux Tribal Juvenile Court shall issue summons to the child's parent, parents, guardian or custodian and any person the Court believes necessary for the proper adjudication of the hearing, and which summons shall set forth the day, hour, and place for the hearing of such petition, and which summons shall require the person alleged to have custody of the child to appear before the Court at such time and place stated in the summons. A copy of the petition shall be attached to the summons.

SUMMONS 7.05 SERVICE.

The summons shall be delivered personally by a Tribal law enforcement officer or appointee of the Oglala Sioux Tribal Juvenile Court. If the summons cannot be delivered personally, the Court may deliver the summons by registered mail. If the summons cannot be delivered personally or by registered mail, the summons may be served by posting. Service by posting shall be in the following manner:

Whenever it shall appear from the petition or from affidavit filed in the cause that any person to whom notice should be given resides or has gone off of the Reservation, or on due inquiry cannot be found, or is concealed within the Reservation, or that their place of residence is unknown, so that the summons or citation cannot be served upon him, or whenever any person is affected by the designation "All Whom it May Concern", the Judge or Clerk shall cause the summons or citation to be posted once in the post office, community store, law enforcement office, or other commonly used public place in the community, or in the community where the person or persons to whom notice is required to be given resides or is last known to have resided, or in any other place ordered by the Court where such posting is likely to give notice to the person or persons to whom notice is required to be given; such posting shall be posted not less than five (5) days prior to the day of hearing on the petition. Such Judge or Clerk shall also, within one (1) day after the posting of such summons or citation, send a copy thereof by mail, addressed to each person to whom notice should be given whose place of residence is stated in the petition and who shall not have been served personally with the summons or citation. Notice given by posting as required by this Subchapter shall be the only posting notice required either in the case of residents, nonresidents, or otherwise. The certificate of the Clerk or Judge that he has sent such notice pursuant to this Subchapter shall be evidence thereof,

SECTION 7.06 FAILURE TO PRODUCE CHILD AS CONTEMPT.

If the person having custody or control of the child shall fail without reasonable cause to appear at hearing contemplated within this Subchapter, that person may be proceeded against for Contempt of Court.

SECTION 7.07 DETERMINATION HEARING.

The Oglala Sioux Tribal Juvenile Court shall conduct the determination hearing for the purpose of determining whether parental rights shall be terminated and said hearing shall be private and closed. The Oglala Sioux Tribal Juvenile Court shall hear testimony concerning the circumstances that gave rise to the petition, the need for the termination of parental rights, and must be convinced by preponderance of the evidence that there is proof establishing one or more of the grounds set forth for termination within this Chapter.

SECTION 7.08 DISPOSITIONAL ALTERNATIVES.

If parental rights to a child are terminated, the Oglala Sioux Tribal Juvenile Court shall place the minor in a foster care facility, a shelter care facility, or may make pre-adoptive placement provided that whichever facility is utilized hereunder any and all facilities or placements alternatives have been approved by the Oglala Sioux Tribe as contemplated within this Code; or the Oglala Sioux Tribal Juvenile Court may authorize proceedings to be commenced under the Adoption Section of the Oglala Sioux Tribal Juvenile Code.

SECTION 7.09 FINAL ORDER.

The termination order shall constitute a final order for purposes of appeal.

SECTION 7.10 CHILD STATUS.

No adjudication or termination of parental rights shall affect the child's enrollment status as a member of the Oglala Sioux Tribe or the child's degree of blood quantum of the Oglala Sioux Tribe, nor shall such adjudication affect any of the child's rights, privileges and benefits accorded to a member of the Oglala Sioux Tribe.

Note: This Section needs to be reviewed in order to determine if the action to be taken ultimately by the enrollment committee has any effect upon this and similar sections throughout the Code.

SUBCHAPTER VIII

ADOPTION

SECTION 8.01 JURISDICTION.

The Oglala Sioux Tribal Court shall have jurisdiction in any adoption proceeding involving an Indian child or adoptive Indian parent whose domicile or actual residence is within the original exterior boundaries or upon trust land of the Pine Ridge Indian Reservation or who is a member of the Oglala Sioux Tribe and maintains sufficient contracts therewith, or which is brought under the jurisdiction of this Court by the Indian Child Welfare Act.

SECTION 8.02 AGE CONSIDERATION.

Any child under the age of eighteen (18) years may be adopted by any adult person pursuant to this Chapter. The person adopting the child must be at least ten (10) years older than the person adopted unless good cause is shown why this requirement should be waived.

SECTION 8.03 LEGITIMIZATION.

The father of a child born to an unmarried women by publicly acknowledging it as his own child, receiving it as such into his family with the consent of his wife if he is married, and otherwise treating it as his own, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The order provisions of law relating to adoption shall not apply is such cases.

SECTION 8.04 ADOPTION LIMITATION.

There shall be no adoption of Oglala Sioux Indian children by non-Indians.

SECTION 8.05 CUSTOM AND TRADITION.

Any Indian or Indians wishing to adopt an adult according to Indian custom (Waliyacinpi) shall appear before the Tribal Court of the Oglala Sioux, Tribe with the party to be adopted and all other parties concerned and declare their intentions. The Court, if after examination finds the person or persons requesting that the adoption be made, is of sound mind and the request is free and voluntary, may authorize such adoption and make a record thereof upon the payment of a fee of ten dollars ($10.00) which is to be deposited to the Court funds.

All adoptions made heretofore by Tribal custom shall be null and void unless they are renewed in the manner as above described.

SECTION 8.06 CONSENT OF CHILD.

The consent of the child, if over the age of twelve (12) years, is necessary to its adoption.

SECTION 8.07 CONSENT: EXCEPTIONS.

A child cannot be adopted without the consent of the parents, if living, provided that in the following cases consent shall not be necessary:

(a) From any parent, who has been judicially deprived of the custody of the child, provided any such adjudication shall be final on appeal or the time for such appeal shall have expired; or

(b) From any parent who has been adjudged by the Court to be mentally incompetent; or

SECTION 8.08 SPOUSAL CONSENT.

A married man or woman cannot adopt a person without the consent of his or her spouse, providing the spouse is capable of giving such consent.

SECTION 8.09 NOTICE: PATERNITY CONSIDERATIONS.

The father of a child born to a woman who is not married shall have no rights to service of process of adoption, delinquency, dependency, or termination of parental rights proceedings unless he is known and identified by the mother or unless he, prior to the entry of a final order in any of the proceedings, shall have acknowledged the child as his own by affirmatively asserting paternity:

(a) By publicly acknowledging it as his own, receiving it into his family; and treating it as his own child.

(b) By causing his name to be affixed to the birth certificate.

SECTION 8.10 ADOPTION OF TWO OR MORE CHILDREN.

The adoption of two (2) or more children by the same adopting parent or parents may be included in one proceeding provided that a separate order of adoption shall be made and filed by the Court as to each child adopted.

SECTION 8.11 TIME IN ADOPTIVE HOME.

No petition for adoption shall be granted until the child shall have lived within the proposed adoptive home for a period of at least six (6) months before or after the filing of the petition.

SECTION 8.12 PETITION.

The petition filed shall be sworn by the person or persons requesting adoption and shall state:

(1) The name, address, residence, social security number, birthdate, and race of the person or persons requesting adoption;

(2) The name, address, birth date, race and residence of the person to be adopted;

(3) The length of time that the person to be adopted has been in the proposed adoptive home;

(4) The name, address, residence, birth date, and race, if known, of the legal mother and father of the child to be adopted;

(5) The facts describing under what circumstances the person to be adopted began residing in the proposed adoptive home, including whether or not one or both legal parents have consented to that arrangement and to the proposed adoption or whether the consent of one or both of the legal parents is not required by the provisions of this Chapter, and whether or not the father of the child is entitled to service of process;

(6) A full description and statement of value of all property owned or possessed by the person to be adopted; and

(7) Relief requested.

SECTION 8.13 INVESTIGATION AND RECOMMENDATIONS.

Whenever a person petitions the Oglala Sioux Tribal Court for an order adopting a minor child, the Judge of the Tribal Court shall fix a time for hearing and shall request a Bureau of Indian Affairs or Oglala Sioux Tribal Social Services Department, or an officer of the South Dakota Department of Social Services, or some other competent agency person appointed by the Court, to make a careful and thorough investigation of the matter and report his findings, including a recommendation as to whether or not the adoption should or should not be granted, in writing, to the Court.

SECTION 8.14 APPEARANCE BY INVESTIGATING AGENCY.

Upon the filing of a petition for the adoption of a minor child, the Court shall notify the Bureau of Indian Affairs or Oglala Sioux Tribal office responsible for human resources, by mailing to the office a copy of the said petition and shall notify the office of the date fixed for hearing said petition, or mail to the office a copy of the order fixing the date of such hearing. The office shall make recommendation as to the desirability of the adoption. The office may appear in any such proceeding the same as the party in interest, and may request a postponement of hearing on the petition in event more time is needed for its investigation.

SECTION 8.15 SERVICE OF DOCUMENTS.

A copy of the petition for adoption and order for hearing shall be personally served upon the legal/or natural mother and father of the child to be adopted; provided, however, that service may not be required or otherwise excused under this Chapter. The petition and order shall be accompanied by a notice that adoption of their child is requested, that if granted their parental rights in said child will be terminated, the time, date and place of hearing, and that they may attend the hearing and show cause why the adoption should not be granted if said cause exists. Proof of service required under this section shall be made to appear by affidavit or oral testimony.

SECTION 8.16 COURT ORDER FOR SERVICE BY PUBLICATION.

In the event personal service as required under this Chapter is not possible, facts and circumstances resulting in the impossibility shall be set forth in an affidavit. The affidavit and a request for service by posting shall be presented to the Oglala Sioux Tribal Court. If the Court is of the opinion that good cause exists for service by posting, it shall enter an order to that effect.

SECTION 8.17 SERVICE BY PUBLICATION.

Notice by posting shall be done, in a public place of the Community of the adoptive parents' residence. It shall take the form of the notice required to be personally served. The notice shall be posted five (5) days. Such posting shall take place in the same manner in the same place or places as required for posting under the Juvenile Section of this Code.

SECTION 8.18 APPEARANCES.

At the time of the hearing on the petition for adoption, the person adopting a child, the child adopted, the natural mother and father of the adopted child, and any spouse of any person adopting any child must appear before the Court and execute a consent to the adoption. Any person except the adoptive child and the person adopting may enter their consent through a power of attorney.

SECTION 8.19 AGREEMENT AT HEARING.

At the time of the hearing on the petition for adoption, an agreement must be executed that the child adopted shall be treated in all respects as his, hers, or their natural and lawful child should be treated.

SECTION 8.20 FINDINGS.

The Court shall enter Findings of Facts and Conclusions of Law when testimony is presented establishing any facts relevant to any point under this Chapter.

SECTION 8.21 EXAMINATION BY COURT: BEST INTERESTS PROMOTED: ORDER.

The Judge must examine all persons appearing separately and if satisfied from such examinations and the report of the investigation that the child is suitable for adoption and that the petitioning parent or parents are financially and morally fit to have the care and training of such child, that all requirements of law have been met and that the interests of the child will be promoted by the adoption, he must make an order declaring that the child henceforth shall be the adopted child of the person adopting and shall be regarded and treated in all respects as the child of such person; and which order, among other things shall contain the following:

(a) The adoptive name, date of birth, sex, color or race and place of birth of the adoptive child; and
(b) The full name, date of birth, citizenship, residence, color or race, birthplace and occupation of both adoptive parents.

SECTION 8.22 FILES AND RECORDS.

The files and records of the Court in adoption proceedings shall not be open to inspection or copy, except under order of the Tribal Court only after a showing of good cause and necessity. No Indian person within the jurisdiction of the Court, having charge of any birth or adoptive records shall disclose the names of any parent or parents by adoption or any other matter, appearing in such records or furnish certified copies of any such records, except upon order of the Oglala Sioux Tribal Court.

SECTION 8.23 RIGHTS OF CHILD: RELATIONSHIP.

A child when adopted, may take the family name of the person adopting. After adoption the two shall sustain toward each other the legal relationship of parent and child and have the rights and be subject to all the duties of that relationship.

SECTION 8.24 RIGHTS OF PARENTS.

The natural parents of an adopted child are from the time of the adoption relieved of all parental duties towards, and all responsibilities for, the child so adopted; and have no right over it, except in cases where a natural parent consents to the adoption of his or her child by the child's stepfather or stepmother who is the present spouse of the natural parent.

SECTION 8.25 INHERITANCE RIGHTS.

An adopted child will retain full inheritance rights from his natural parent or parents.

NOTE: Hold for further study.

SECTION 8.26 ENROLLMENT NOT EFFECTED.

The fact of adoption shall not in any manner whatsoever effect the adoptive child's qualification and right to be enrolled in the Oglala Sioux Tribe.

NOTE: Hold for further study. Need to review to see if action by the enrollment committee has any effect upon this section.

SUBCHAPTER IX

CHILD ABUSE AND NEGLECT

SECTION 9.01. CRUELTY TO OR ABUSE OF MINOR

Any person who causes or permits a minor to be: (a) abused, exposed, tortured or cruelly punished; (b) placed in or to remain in a situation that endangers his/her life, physical, mental or emotional health; (c) cruelly confined; (d) deprived of necessary food, shelter or medical care; (e) left unattended or unsupervised, if under the age ten (10), in circumstances that a prudent member of the Oglala Sioux Tribe would consider having a risk of substantial harm to the child; (f) subjected to sexual abuse, sexual molestation or sexual exploitation by his/her parent, guardian, custodian or any of other person or (g) subjected to mental injury by reason of any of the foregoing, is guilty of an offense.

Any person convicted under this section shall be sentenced to imprisonment for a minimum of six (6) months in jail, and to a fine of five hundred ($500.00), with costs.

SECTION 9.02. NEGLECTED OR DEPENDENT CHILD DEFINED.

In this sub-chapter unless the contest otherwise plainly requires "neglected or dependent child" means a child:

1. Whose parent, guardian, or custodian has abandoned him or has subjected him to mistreatment or abuse;

2. Who lacks proper parental care through the actions or omissions of the parent, guardian, or custodian;

3. Whose environment is injurious to his welfare;

4. Whose parent, guardian, or custodian fails or refuses to provide proper or necessary subsistence, education, medical care or any other care necessary for his health, guidance, or well-being, or;

5. Who is homeless, without proper care, or not domiciled with his parent, guardian, or custodian through no fault of his parent, guardian, or custodian.

6. Who is threatened with substantial harm that results in mental or emotional injury.

7. Who has sustained emotional harm or mental injury as indicated by an injury to intellectual or psychological capacity evidenced by an observable and substantial impairment in his ability to function within his normal range of performance and behavior, with due regard to his culture.

8. Who is subjected to sexual abuse, sexual molestation or sexual exploitation by his parent, guardian, custodian or any other any person responsible for his care.

9. Who is subject to sexual abuse, sexual molestation or sexual exploitation by an act of omission or other failure to act by his parent, guardian, custodian or any other person responsible for his care.

SECTION 9.03. MENTAL EMOTIONAL INJURY DEFINED.

Mental and emotional injury to a minor as used herein means an injury to the intellectual or psychological capacity of a child as evidenced by an observable and substantial impairment in his/her ability to function within his/her normal range of performance and behavior, with due regard to his/her culture. Such substantial impairment in ability to function may be in relation to, but not limited to such factors as control of aggression or self-destructive impulse, ability to think and reason, or acting out of misbehavior.

SECTION 9.04. SEXUAL ABUSE DEFINED.

Sexual abuse of a minor as used in Chapter 3B, Subchapter IX, means any act, however slight, of sexual intercourse, anal intercourse, masturbation, bestiality, sadism, masochism, fellatio, cunnilingus, anilingus, the filming or photographing of a minor, to engage in a sex act or in the simulation of such act, any intrusion, however slight, of any part of the body or of any object into the genital or anal openings of another person's body, any touching of the breasts or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party and any other sexual activity including nudity if sexual activity is depicted for the purpose of sexual stimulation or gratification of any persons who might view such depiction. Practitioners of the healing are not included within the punishments set forth in Chapter 3B, Subchapter IX.

SECTION 9.05. SPIRITUAL TREATMENT EXEMPTION

Notwithstanding other provisions of this Subchapter, no parent or guardian who in good faith is providing to a child treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church, including any Native American religious beliefs and ceremonies, shall for that reason alone be considered to have abused or intentionally neglected the child.

SECTION 9.06. REPORTING CHILD ABUSE AND NEGLECT CASE.

Any physician, clergy, surgeon, mental health professional, dentist, doctor of osteopathy, religious healing practitioner, pathologist, chiropractor, optometrist, podiatrist, psychologist, social worker, hospital intern, resident, or other hospital personnel, law enforcement officer, parole or probation officer, teacher, school counselor, school official, nurse, coroner, parent, foster parent, guardian, custodian, family member, group home or foster home agent or employee, treatment center agent or employee, or attorney having reasonable cause to suspect that any child under the age of eighteen (18) years of age, examined by such persons either for care of treatment, noticed in their usual and ordinary contact with the child, that such child has been starved, is a minor in need of care or as that term is defined by Section 1.09 of the Juvenile Code of the Oglala Sioux Tribe, has been sexually abused, or has had physical injury or injuries inflicted upon him by abuse of intentional neglect other than by accidental means, by any person, including parents or other persons responsible for his/her care, shall report or cause report to be made in accordance with the provisions of Section 9.05 and 9.06. Any person who knows, suspects or has reason to believe that a child has received physical, mental or emotional injury or injuries as the result of abuse or intentional neglect or been sexually abused shall make a report as is provided by law.

Any person convicted hereunder shall be sentenced to labor for a period not exceed thirty (30) days or to a fine not to exceed one hundred dollars ($100.00), or to both imprisonment and fine, with costs.

SECTION 9.07. CHILD ABUSE REPORTS BY HOSPITAL PERSONNEL.

When the attendance of persons referred to in Section 9.06 with respect to a child is: pursuant to the performance of services, as a member of a staff of a hospital or similar institution, such person shall forthwith notify the person in charge of the institution or his designated delegate, which person in charge or his delegate shall report or cause reports to be made in accordance with the provisions of Section 9.08. Any person in charge or delegate who knowingly and intentionally fails to make a report required of him is guilty of an offense and shall be sentenced to labor for a period not to exceed thirty (30) days, or to a fine not to exceed one hundred dollars ($100.00), or to both such imprisonment and fine with costs.

SECTION 9.08. REPORT TO PROSECUTOR OR SOCIAL SERVICES.

The report required by Section 9.06 and 9.07 shall be made orally and immediately by telephone or otherwise to the Oglala Sioux Tribal Law Enforcement Officers, Prosecutor of the Oglala Sioux Tribe, or to the Oglala Sioux Tribal Child On-going Child Welfare Program, Child Protection Team, or any like social services department which may exist for and on behalf of the Oglala Sioux Tribe. Anyone receiving a report of suspected child abuse shall keep the report confidential as provided in Section 9.13.

SECTION 9.09. INVESTIGATION AND PROSECUTION.

The Social Services Department of the Bureau of Indian Affairs, or State Department of Social Services, or any like social services department which may exist for and on behalf of the Oglala Sioux Tribe with the aid of Tribal law enforcement officers, shall upon receipt of any report pursuant to Section 9.08 forthwith investigate. Such investigation shall not prohibit any other lawful action as may be provided by law. Should such investigation and report indicated that a child abuse has occurred, the Prosecutor shall commence an appropriate action forthwith and the Court, upon commencement of such action, shall appoint a guardian ad litem to represent the interests of the child. Nothing contained herein shall prohibit the Juvenile Presenting Officer from initiating action for the temporary emergency placement of said child.

SECTION 9.10 REPORT TO JUVENILE COURT

The Court shall make a report which shall include the name and address of the child, the name and address of the parent(s), guardian or responsible person, the date and place of birth of the child, the date of the report, the suspected or proven physical, sexual, or emotional abuse, mental injury or intentional neglect and the disposition of the proceedings. Such report shall be filed within ten (10) days of the date of any judgement or order entered by the Court. The Juvenile Court shall be the central registry for such information and shall release such information only to the prosecutor of the Oglala Sioux Tribe, the Courts of the Oglala Sioux Tribe, or to any persons by order of the court, or to a regional or national registry of child abuse cases and to Courts of record or other States or Tribes upon request. Such information shall only be released to such persons upon proof that it is necessary in the performance of official functions relating to child abuse, or neglect and all such information so released or furnished shall be held in confidence by the person receiving it, provided however, the court may order the release of information necessary for determination of an issue before such court.

SECTION 9.11. CHILD PROTECTION TEAMS

The Pine Ridge Indian Reservation shall have two Child Protection Teams. One team will be in the Pine Ridge district and one team will be in the Kyle district. The teams will develop, implement and co-ordinate services in order to: (1) increase public awareness and (2) prevent and treat child abuse and neglect. The multidisciplinary team shall consist, where possible, of one or more of the following: A physician, a representative of the Kyle and Pine Ridge juvenile courts, a representative of the local law enforcement agency, a representative of B.I.A. Social Services, a representative of State Social Services, a representative of the Human Services Program, a representative of Field Health Nursing, an attorney, a representative of BIA, contract and parochial schools, a representative of West River Mental Health, a representative of Project Recovery, other appropriate agency representatives, a representative of Project Phoenix, and representatives of the lay community.

SECTION 9.12. GUARDIAN AD LITEM.

The court in every case filed hereunder shall appoint a guardian ad litem. The guardian ad litem shall be provided with all reports relevant to the case made to or by any agency or person pursuant to the subchapter and with reports of any examination of the responsible person made pursuant hereto. The court or the social services worker assigned to the case shall advice the guardian ad litem of significant developments in the case, particularly any further abuse or neglect of the child involved. The guardian ad litem shall be charged in general with the representation of the child's interests. To that end he or she shall make such further investigations as he or she deems necessary to ascertain the facts, talk with or observe the child involved, interview witnesses and the parents, guardian, custodian or foster parents of the child, and examine and cross-examine witnesses in both the adjudicatory and dispositional hearings and may introduce and examine his or her own witnesses, make recommendations for treatment, rehabilitation from trauma, and follow-up, and participate further in the proceedings to the degree necessary to adequately represent the child.

SECTION 9.13. INFORMATION CONFIDENTIAL

All records, files, and information concerning child abuse reports are confidential and no disclosure of such records, files or information shall be made except as provided in Section 9.10. Any person who shall knowingly violate the confidential nature of records, files or information shall be guilty of an offense and be sentenced to labor for a period not to exceed thirty (30) days, or to a fine not to exceed one hundred dollars ($100.00), or to both such fine and imprisonment, with costs.

SECTION 9.14. IMMUNITY

Anyone participating in good faith in the making of a report pursuant to 9.06 to 9.10., inclusive, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed, and shall have the immunity with respect to participation in any juvenile proceeding resulting from such report.

Immunity shall also extend in like manner to persons requesting the taking of photographs and X-rays pursuant to 9.20, to persons taking the photographs and X-rays and to child protection teams, public officials or employees involved in the investigation and treatment of child abuse or neglect or who make a temporary placement of children pursuant to this subchapter, or to any persons who in good faith cooperates with a child protection team or the Bureau of Indian Affairs or social services departments in an investigation, placement or treatment plan. The provisions of this section or any other section granting or allowing the grant of immunity may not be extended to any person alleged to have committed an act or acts of child abuse.

SECTION 9.15. COMMUNICATIONS NOT PRIVILEGED

Any confidential relation privilege, provided by law or otherwise, may not be claimed in any judicial proceeding resulting from the giving of a report as provided for within this Chapter or as a result of participation in any judicial proceeding resulting there from.

SECTION 9.16 MINOR VICTIM'S TREATMENT

Anyone convicted under 9.01, 9.02, 103, 104, 104.1, 104.2, may be required as part of the sentence imposed by the Court to pay the cost of any necessary medical, psychological or psychiatric treatment of the minor resulting from the act or acts for which the defendant is convicted.

SECTION 9.17. VIDEOTAPE OF VICTIM'S TESTIMONY USE AT TRIAL.

If a defendant has been charged with a violation of 9.01, 9.02, 103, 104,104.1, or 104.2, if the victim is a person eighteen years of age or less, the prosecuting attorney may apply for an order that the victim's testimony at the preliminary hearing, in addition to being stenographically recorded, bye recorded and preserved on videotape. The scope and manner of the examination shall be such as would be allowed at the trial.

The application for the order shall be in writing and made at least three days before the preliminary hearing.

Upon timely receipt of the application, the court shall order that the testimony of the victim given at the preliminary hearing be taken and preserved on videotape. The videotape shall be transmitted to the clerk of the court in which the action is pending.

If at the time of trial the court finds that further testimony would cause the victim emotional trauma, or that the victim is otherwise unavailable within the meaning of Rule 804 (a) of the Federal Rules of Evidence, or that such testimony would in the opinion of the court be substantially detrimental to the well being of the victim, the court may admit the videotape of the victim's testimony at the preliminary hearing as former testimony under Rule 804 (b) of the Federal Rules of Evidence.

SECTION 9.18. STATEMENT OF THE SEX CRIME - VICTIM UNDER AGE TWELVE.

A statement made by a child under the age of twelve describing any act of sexual abuse performed with or on the child by the defendant, not otherwise admissible, is admissible in evidence in proceedings under this subchapter the courts of the Pine Ridge Reservation if:

1. The Court finds, in a hearing conducted out side the presence of the jury, that the time, content and circumstances of the statement provided sufficient indicia of reliability, and;

2. The child either:

(a) Testifies at the proceedings; or

(b) Is unavailable as a witness.

However, if the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

SECTION 9.19. MINOR'S TESTIMONY AS TO SEXUAL OFFENSE INVOLVING CHILD - CLOSING.

Any portion of proceeding under this subchapter at which a minor is required to testify concerning rape of a child, sexual abuse of a child, child abuse involving sexual abuse or any other sexual offense involving a child may be closed to all persons except the parties and officers of the court.

SECTION 9.20. OBLIGATIONS OF PERSONS REQUIRED TO REPORT.

Any persons or official required to report cases of suspected cruelty to or abuse of minors may take or cause to be taken photographs of the areas of trauma and, if medically indicated, cause to be performed a radiological examination on the minor without the consent of the child's parents. Any photograph or X-rays taken shall be sent to the prosecutor of the Oglala Sioux Tribe as soon as possible.

SECTION 9.21. TAKE A CHILD INTO PROTECTIVE CUSTODY.

A law enforcement officer or an employee of the Social Services Department of the Bureau of Indian Affairs, or State Department of Social Services, or any like social services department which may exist for and on behalf of the Oglala Sioux Tribe, may take a minor into protective custody without the consent of a parent or guardian if the circumstances or condition of the minor are such that continuing in his/her place of residence or in the care and custody of the parent, guardian, custodian or other persons responsible for the minor's care presents an imminent danger to the minor's life or health.

SECTION 9.22. TEMPORARY REMOVAL WITH CONSENT.

A law enforcement officer or an employee of the Social Services Department of Bureau of Indian Affairs, or State Department of Social Services, or any like social services department which may exist for and on behalf of the Oglala Sioux Tribe may remove a minor from the place where he/she is residing with the consent of his/her parent or other person legally responsible for his/her care, if the minor is an abused minor as described in this subchapter.

SECTION 9.23. PRELIMINARY ORDERS OF COURT BEFORE PETITION.

(A) The court may enter an order directing the temporary removal of a minor from the place where he is residing before the filing of a petition under this article, if

The parent or other person legally responsible for the minor's care is absent or, though present, was asked and refused to consent to the temporary removal of the minor and was informed of an intent to apply for an order under this section; and
The minor appears so to suffer from the abuse or neglect of this parent or other person legally responsible for his care that his immediate removal is necessary to avoid imminent danger to the minor's life or health; and

There is not enough time to file a petition and hold a preliminary hearing.

(B) The order shall specify where the minor is to be brought. Except for good cause shown or unless the minor is sooner returned to the place where he was residing, a petition shall be filed under this article within three days of the issuance of the order

(C) The court may enter an order authorizing a physician or hospital to provide emergency medical or surgical procedures before the filing of a petition under this article, if

Such procedures are necessary to safeguard the life or health of the minor; and
There is not enough time to file a petition and a hold a preliminary hearing.

SECTION 9.24. PROCEDURE FOR ISSUANCE OF TEMPORARY ORDER BEFORE FILING OF PETITION.

Any person who may originate a proceeding under this subchapter may apply for, or the court on its own motion may issue, an order of temporary removal under Section 9.23. An appropriate person designated by the court shall make every reasonable effort to inform the parent or other person legally responsible for the minor's care of any such application, confer with a person wishing to make such an application, and make such inquiries as will aid the court in disposing of such application.

SECTION 9.25. EMERGENCY REMOVAL WITHOUT COURT ORDER.

A law enforcement official, or an employee of the Social Services Department of the Bureau of Indian Affairs, or State Department of Social Services, or any like social services department which may exist for and on behalf of the Oglala Sioux Tribe may take a minor into protective custody or any physician treating such minor may keep a minor in his custody without an order under Section 9.23 and without the consent of the parent or other person legally responsible for the minor's care, regardless of whether the parent or other person legally responsible for the minor's care is absent, if

The minor is in such circumstances or condition that his continuing in said place of residence or in the care and custody of the parent or person legally responsible for the minors care presents an imminent danger to the minor's life or health; and
There is not enough time to file an order under section 9.23.

If a person authorized by this section removes or keeps custody of a minor he shall:

Bring the minor immediately to a place for such purpose by the local social services department, unless the person is a physician treating the minor and the minor is or will be presently admitted to a hospital, and
Make every reasonable effort to inform the parent or other person legally responsible for the minor's care of the facility, to which he has brought the minor; and
Give, coincident with removal, written notice to the parent or other persons legally responsible for the minor's care of the right to apply to the court for the return of the minor pursuant to section 9.28 of this subchapter. Such notice shall be personally served upon the parent or other person at the residence of the minor provided, that if such person is not present at the minor's residence at the time of removal, a copy of the notice shall be mailed to such person at his or her last known place of residence within twenty-four hours after the removal of the minor. If the notice shall be personally served upon the parent or person legally responsible for the minor's care forthwith, or affixed to the door of the minor's residence and mailed to the parent of other person legally responsible for the minor's care at his or her last known place of residence within twenty-four hours after the removal.

(IV) Inform the court and make a report as soon as possible.

(C) Any person or institution acting in good faith in the removal or keeping of a minor pursuant to this section shall have immunity from any liability, civil, or criminal, that might otherwise be incurred or imposed as a result of such removal or keeping.

(D) Where the physician keeping a minor in his custody does so in his capacity as a member of the staff of a hospital of a similar institution, who shall then become responsible for the further care of such minor.

(E) Any physician keeping a minor in his custody pursuant to this section shall have the right to keep such minor in his custody until such time as the custody of the minor has been transferred to the appropriate police authorities or the social services officials where the physicians maintains his place of business. If the Social Services officials receive custody of a minor pursuant to the provisions of this section, shall promptly inform the parent or other person responsible for such minor's care and the court of his actions.

SECTION 9.26 ACTION BY THE COURT AND SOCIAL SERVICES AGENCY UPON EMERGENCY REMOVAL.

(A) The court when informed that there has been an emergency removal of a minor from his home without court order shall:

(I) Direct such person or social services agency to make every reasonable effort to communicate immediately with the minor's parent or other person legally responsible for his care, and

(II) Except in cases involving abuse, authorize such person or social services agency to cause a minor thus removed to be returned if it concludes there is not an imminent risk to the minor, the social services agency may recommend to the court that the minor be returned or that no petition be filed.

(B) The social services agency may, but need not, condition the return of a minor under this section upon the giving of a written promise, without security, of the parent or other person legally responsible for the minor's care that he will appear at the court at a time and place to be specified in the recognizance and may also require him to bring the minor with him.

(C) If the social services agency for any reason does not return the minor under this section, or if the social service agency concludes it appropriate, it shall forthwith cause a petition to be filed under this act.

SECTION 9.27. PRELIMINARY ORDERS AFTER FILING OF PETITION.

(A) In any case involving abuse or in any case where the minor has been removed without court order, the court shall hold a hearing as soon as practicable after the filing of a petition to determine whether the minor's interests require protection pending a final order of disposition. In any case under this subchapter, any person who may originate a proceeding under this subchapter may apply for, or the court on its own motion may order, a hearing at any time after the petition is filed to determine whether the minor's interests required protection pending a final order of disposition.

(B) Upon such hearing, if the court finds that removal is necessary to avoid imminent risk to the minor's life or health, it shall remove the minor and remand him to a place approved for such purpose by the local social services department or place him in the custody of a suitable person other than the respondent.

(C) Upon such hearing, the court may, for good cause shown, issue a preliminary order of protection which may contain any of the provisions authorized on the making of an order of protection under Section 9.30 of this act.

(D) Upon such hearing, the court may, for good cause shown, release the minor to the custody of his parent or other person legally responsible for his care, pending a final order of disposition.

(E) Upon such hearing, the court may authorize a physician or hospital to provide medical or surgical procedure if such procedures are necessary to safeguard the minor's life and health.

(F) If the court grants or denies a preliminary order requested pursuant to this section, it shall state the grounds for such decision.

(G) In all cases involving abuse the court shall order, and in all cases involving neglect the court may order, an examination of the minor by a physician appointed or designated for the purpose by the court. As part of such examination, the physician shall arrange to have colored photographs taken as soon as practical of the areas of trauma visible on such minor and may if indicated, arrange to have a radiological examination performed on the minor. The physician, on the completion of such examination, shall forward the results thereof together with the color photographs to the court ordering such examination in those cases which were commenced on the basis of a physical examination by a physician. Unless colored photographs have already been taken or unless there are no areas of visible trauma, the court shall arrange to have colored photographs taken even if the examination is dispensed with.

SECTION 9.28. APPLICATION TO RETURN CHILD TEMPORARILY REMOVED

Upon application of the parent or other person legally responsible for the care of a minor temporarily removed under this part for an order returning the minor, the court shall hold a hearing to determine whether the minor should be returned.

(I) If there has not been a hearing on the removal of the minor at which the parent or other person legally responsible was present or had an adequate opportunity to be present; or

(II) Upon good cause shown. Except for good cause shown, such hearing shall be held within three court days of the application. Upon such hearing, the court shall grant the application, unless it finds;

(A) That the return presents an imminent risk to the minor's life or health; or

(B) That there is a substantial probability that the minor will be found to be abused or neglected under this subchapter and that the final order of disposition will be an order of placement with other than parent or guardian or that, pending entry of a final order of disposition, temporary removal is necessary to avoid an imminent risk to the minor's life or health.

SECTION 9.29. TEMPORARY ORDER OF PROTECTION

(A) The court, upon the application of any person who may originate a proceeding under this subchapter, for good cause shown, may issue a temporary order of protection, before or after the filing of such petition, which may contain any of the provisions authorized on the making of an order of protection under Section 9.30.

(B) Temporary order of protection have a duration of fourteen (14) days and can be renewed for a subsequent seven (7) day period.

(D) The Court may issue or extend a temporary order of protection ex parte or on notice simultaneously with the issuance of a warrant directing that the respondent be arrested and brought before the court.

SECTION 9.30 ORDER OF PROTECTION.

The court may make an order of protection in assistance or as a condition of any other order made. The order of protection may set forth reasonable conditions of behavior to be observed. A person who is before the court, or is family or household member, or a person legally responsible for the minor's care. Such as order may require any such person;

(A) To stay away from the home, the other spouse or the minor;

(B) To permit a parent to visit the minor at stated periods;

(C) To abstain from offensive conduct against the minor or against the other parent or against any person to whom custody of the minor is awarded;

(D) To give proper attention to the care of the home; or

(E) To refrain from acts of commission or omission that tend to make the home not a proper place for the minor.

The court may also award custody of the minor during the term of the order of protection to either parent, or to an appropriate relative. Nothing in this section gives the court power to place or board out any minor to an institution or agency. In making orders of protection, the court shall so act as to insure that in the care, protection, discipline and guardianship of the minor his religious faith and culture shall be preserved and protected.

An order of protection may have duration of one year or less.

The term "family or household members" shall mean, spouse, former spouse, persons related by consanguinity, adoption or law and living in the same household.

SECTION 9.31 DEFERRAL OF PROSECUTION UPON SUCCESSFUL COMPLETION OF A PRE-TRIAL DIVERSION PROGRAM.

1. After an offender is charged for an offense under this subchapter the Department of Social Services and the Court official shall determine whether or not the offender is eligible for the pretrial diversion program, but only after the alleged offender has admitted to the offence(s) with which he/she is charged.

2. If it is determined that the offender is eligible for this program, then the offender shall be evaluated by a mental health professional which evaluation shall be supervised by the Department of Social Services. The evaluation shall include information on the treatability of the offender. The mental health profession should be agreed upon by the Court official, the case representative of the Department of Social Services and the attorney for the offender, Court official and the case representative of the Department of Social Services shall select the evaluator and the attorney for the offender shall have the right to have a second evaluation done. Copies of the report, of both reports, shall be sent to the Court official, the case representative of the Department of Social Services and the offender's attorney.

3. If the results of the evaluation(s) is such that the Court official and the case representative of the Department of Social Services shall recommend treatment and pre-trial diversion, a written agreement shall be drawn by the Court official for presentation to and approval by the Court.

4. If, after the initial admission to the offense charged, the offender is not accepted for deferral of prosecution and diversion herein, then normal judiciary procedures will be followed as if no admission had been made.

5. The agreement for pre-trial shall include the following conditions:

The offender is not to engage in any activities which are or conduct which is related in any manner to the offense of offenses for which the person was charged.
The offender is to participate in a supervised rehabilitation program which includes, but is not limited to counseling and treatment.
The offender is to pay, in a manner to be worked out by all parties, for all counseling and/or treatment of his/her entire family and the victim's entire family, taking into consideration the offender's ability to pay;
The offender is to pay court costs, including the cost of any court-appointed attorney;
The offender is to reside outside the home in a case of incest until the determination is made as to his/ her method and time of return to the home;
The offender is to be in counseling and/or treatment in a program specified by the court official and the case representative of the Department of Social Services for an unspecified period of time until it is determined by a mental health professional that the offender is capable of functioning without any further incident being likely;
The offender shall abide by any other terms and conditions as may be agreed upon by the court official, case representative of the Department of Social Services and the offender's attorney.

6. Upon an agreement being worked out by all parties, the offender shall appear before a Tribal Judge, who shall ascertain on the record the following;

Whether or not the offender understands the diversion process;
Whether or not the offender understands that the Court may revoke the diversionary program, upon recommendation by the Court official and the case representative of the Department of Social Services, and the offender be sentenced without trial upon the admission entered at the beginning of the diversion process, without any record of this proceeding being made public and without credit for any time spent in the diversionary process;
Whether or not the offender understands that revocation of this process would be warranted upon any deviance from the terms and conditions of the written agreement and any others laid down by the Court;
Whether or not the offender understands that by participating in this process and admitting to the offense he/she waives the right to a speedy trial and any rights under the Fifth Amendment to the United States Constitution.

7. Upon the Court's determination that the offender understands all of the items mentioned in Section 5, all parties, including the Court official, case representative of the offender, shall sign the written agreement, and then shall each be given a copy.

At the end of two years, from the date of the agreement signing, or earlier if recommended by the Court official and the case representative of the Department of Social Services, the offender shall be released from the diversionary program upon completion of all terms and condition of the written agreement, and upon the written motion of the Court by the Court official, which motion shall be granted by the Court, and the whole record of the proceedings shall then be sealed forever. This record shall then only be accessible to the Court official and the Court if the same offender commits a similar offense in the future.

SUBCHAPTER X

INDIAN CHILD WELFARE ACT

SECTION 10.01 POLICY.

The Oglala Sioux Tribe recognizes the Congressional intent in declaring the policy of this nation to protect the best interests of Indian Tribes and families by establishment of minimum Federal standards for removal of such children in foster or adoptive homes which well reflect the unique values of Indian culture and preservation of the Indian family by maintaining the relationship between the Indian children and the Tribal and cultural community in which they were born, or to which they are otherwise tied. The Oglala Sioux Tribe commits its Tribal Court System through this Code to assuming jurisdiction over all Indian children covered by the Indian Child Welfare Act, members are eligible for enrollment in the Tribe, and those children located within the jurisdiction limits of this Court who are involved in custody proceedings outside the territorial jurisdiction of the Oglala Sioux Tribal Court and for whom a return to jurisdiction of the Oglala Sioux Tribal Court and this Tribe is appropriate.

SECTION 10.02 DEFINITIONS.

(a) "Act" means the Indian Child Welfare Act, Public Law 95-608.

(b) "Extended family" means any person related by blood or marriage to the family or any individual who is viewed by the family as a relative in accordance with customs of the Oglala Sioux Tribe. In situations where relationship is not formally established by blood or marriage, the relationship must be attested to by two (2) reliable witnesses. The extended family shall include, but not be limited to, any person who has reached the age of eighteen (18) and who is the Indian child's grandparent, aunt, uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or step-parent.

(1) A member of an Indian Tribe; or

(2) Is eligible for membership in an Indian Tribe and is the biological child of a member of an Indian Tribe.

(d) "Indian custodian" means any Indian person who has legal custody of an Indian child under Tribal law or custom, or under State law or to whom temporary physical care, custody and control has been transferred by the parent(s) of such child.

(e) "Parent" means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under Tribal law or custom. It does not include the unwed father whose paternity has not been acknowledged or established.

(f) "Child Custody Proceeding" shall mean and include:

(1) "Foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.

(2) "Termination of Parental Rights" which shall mean any action resulting in the termination of the parent-child relationship.

(3) "Preadoptive Placement" which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and

(4) "Adoptive Placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

SECTION 10.03 NOTICE: TRIBAL AUTHORITY VESTED IN JUVENILE COURT.

The office of the Juvenile Court Judge of the Oglala Sioux Tribe is designated as the agency of the Oglala Sioux Tribe to receive notice when an Indian child is involved in any court proceeding seeking the foster care placement of, or termination of parental rights to the Indian child who is a member of the Oglala Sioux Tribe, or is eligible for membership in the Oglala Sioux Tribe, or whom the Oglala Sioux Tribal Court has jurisdiction or who may be tied to the Oglala Sioux Tribe for any reason. All notice of and inquiries under the Act are to be directed to the office of the Juvenile Judge of the Oglala Sioux Tribe, Pine Ridge, South Dakota 57770.

SECTION 10.04 NOTICE OF CHILD CUSTODY PROCEEDING.

In any involuntary child custody proceedings where the Court knows or has reason to know that an Indian child is involved, it shall be the responsibility of the party seeking the foster care placement or termination of parental rights to an Indian child to notify the parent or Indian custodian and the office of the juvenile Judge of the Oglala Sioux Tribal Court at Pine Ridge, South Dakota, of such proceeding, by registered mail with return receipt requested. Such notice to the Juvenile Court shall inform the Juvenile Court of the pending proceedings and of the Tribes and parents right to intervene.

SECTION 10.05 GUIDELINES FOR ACCEPTING OR DECLINING JURISDICTION.

The Oglala Sioux Tribal Court in accepting or rejecting over an Indian child under the Indian Child Welfare Act shall consider but not be limited to the following guidelines:

(A) Guidelines for accepting jurisdiction:

The child has strong ties with the Reservation.
The child has recently moved from the Reservation.
The child has been abandoned by his parents, guardian, or Indian custodian.
The parents have requested that the child be educated and raised on the Pine Ridge Reservation.
The child has reached sufficient age and sufficient maturity to express his own desires, and desires to return to the Reservation.
The child's on-Reservation family is strong and stable.
The Reservation has resources available to meet the needs of the child.

(B) Reasons for declining jurisdiction:

The child is of a mixed marriage whose primary family ties and/or identity are with the nonmembers.
The child has reached sufficient age and sufficient maturity to express his own desires, and does not desire to return to the Reservation.
The child has no ties with the Reservation.
The child has multiple problems for which there are no possible on-Reservation programs, or resources.
One of the parents have contested the transfer.