Yomba Shoshone Tribe Law and Order Code
Approved: 2001
TITLE FOUR - CRIMINAL PROCEDURE
A. General Provisions
B. Complaints and Initiation of Prosecution
C. Arrest, Summons, and Citations
D. Extradition
E. Searches and Seizure
F. Procedures Before Trial
G. Trials
H. Procedure After a Verdict or After Trial
Sec. 1 Words and Terms Defined
a. Accused - A defendant, or any other person suspected of the commission of an offense.
b. Arrest - The taking into custody of a person so that he may be charged with an offense
c. Beyond a Reasonable Doubt - The decision maker is entirely convinced that the proven facts establish the guilt of the accused party.
d. Evidence - Anything tending to show that an offense was or was not committed, or tending to prove or disprove some fact relevant to the commission of an offense
e. Felony - Any crime punishable by imprisonment for more than one year.
f. Fruit of a Offense (aka: Fruit of a Crime) - Anything in possession which relates to an offense (crime), such as stolen goods,'money or proceeds from the sale of stolen goods, or items purchased with stolen money, etc.
g. Instrumentality (AKA: instrument) - Anything used to commit or aid in the commission of an offense (crime).
h. Motion - An oral or written request to the Court for an order, stating the grounds upon which it is made, setting forth the relief or order sought, and if necessary, supported by sworn written statements.
i. Offense (AKA: Crime) - Any act or failure to act which is prohibited by this Code and which is punishable by a fine, imprisonment, or both.
j. Party - The defendant or the Prosecutor; also applies if used in the plural.
k. Probable Cause - Reasonable grounds to believe that a person should be arrested or searched.
l. Reasonable Suspicion (AKA: Reasonable Grounds) - A suspicion which justifies an officer in stopping a person, with sufficient knowledge to induce an ordinarily prudent and cautious person to believe criminal activity is at hand.
m. Representative - Any person with authority to speak or act on behalf of another person pursuant to this Code.
n. Tribal Police Officer - Any person commissioned by authorized authority to enforce all the Tribal laws, not including those person's holding limited commissions to enforce only portions of Tribal law; such persons have Tribal police officer powers only when enforcing laws within the scope of their commission.
Sec. 2 Statute of Limitations
Except for murder, which has no time limit, arraignment of the accused must occur within five years of the alleged offense. Time in which the accused is outside the jurisdiction of the Court is not included in the time limit.
Sec. 3 Rights of a Defendant
a. In addition to rights set forth elsewhere in this Code, every defendant in a criminal proceeding shall have the following rights:
(1) To receive at or prior to arraignment a copy of the complaint showing: the Title, Chapter, etc., of the Code allegedly violated; the approximate date and time of the violation; and a brief summary of the facts constituting the offense.
(2) To receive written notice of the time and place the case will be heard.
(3) To appear and present a defense, in person or by a representative, at his own expense. The Tribe, if it so desires, may provide for a public defender.
(4) To testify on his own behalf, or refuse to testify. Once he testifies, he shall be deemed to have waived all right to refuse to testify to all matters relevant to the immediate charge against him. Testimony by defendant on a motion to suppress evidence or other pretrial matter does not affect his right to refuse to testify at trial.
(5) To present evidence on his own behalf, in accordance with the Rules of Evidence contained within this Code.
(6) To use subpoenas and compel witnesses to attend on his behalf, where Such witnesses are within the jurisdiction of the Court.
(7) To confront and cross-examine all witnesses against him.
(8) To have a speedy and public trial within 60 days of arraignment by an impartial Judge or jury, except where the defendant consents to a longer time or for other good cause.
(9) To appeal the decision of the Court and to have such appeal heard within a reasonable time from the date of the appeal
(10) Not to be twice put in jeopardy (double jeopardy) for the same offense. Jeopardy, or the danger of conviction arises at the beginning of trial, or at the earliest occurrence of any of the following events:
(a) the swearing in of the jury; or,
(b) the first word of the Prosecution's opening statement; or,
(c) Hearing of the first word of evidence at trial.
b. Remedies - If any of the defendant's rights, listed in Subsection "a" of this Section, are denied or violated, the case may be dismissed with prejudice, unless the defendant has knowingly and voluntarily waived any of the enumerated rights. A defendant may assert a Writ of Habeas Corpus, or an Appeal.
Sec. 4 Habeas Corpus
a. Right to a Writ of Habeas Corpus - Petition for a Writ of Habeas Corpus may be filed by any person who believes that he or another is wrongly imprisoned, held, or in any way restrained of liberty by the Tribal Court, a Tribal Police Officer, or any other person, in violation of this Code or in violation of the rights of the person under any other applicable law, such as the Indian Civil Rights Act.
b. Contents of Petition - Any person wishing to exercise the right to a Writ of Habeas Corpus shall file with the Court a simple pleading stating
(1) The name of the person held or restrained of liberty.
(2) The name of the individual or institution holding or restraining the liberty of the person held.
(3) The reasons the holding or restraint of liberty is felt to be unlawful, including if possible references to sections of this Code alleged to be violated.
(4) The name and signature of the person filing the petition as petitioner.
c. Issuance of a Writ of Habeas Corpus - If a petition for a Writ of Habeas Corpus fulfills the requirements, the Tribal Judge shall issue a Writ of Habeas Corpus. The Writ shall direct the individual or institution restraining the liberty of the person held to appear at a hearing before the Court, with the person held.
d. Hearing on a Writ of Habeas Corpus - The hearing on the Writ shall consider the evidence on the lawfulness of the restraint of the person held. The petitioner shall first present his evidence on behalf of the person held, and shall have the burden of proving by a preponderance of the evidence that the restraint is unlawful.
e. Order of Freedom - If the Judge determines that the restraint of liberty is unlawful, the Judge shall issue an Order of Freedom, ordering the release of the person held.
Sec. 5 Multiple Offenses and Defendants
a. Two or more offenses may be charged in the same Complaint, if the Code Title, Section, etc., and heading for each offense is separately listed, and if all such offenses are based on the same acts or transactions or constitute parts of a common scheme or plan.
b. Two or more defendants may be charged in the same Complaint if they are alleged to have participated in the same acts or transactions constituting an offense or offenses. Such defendants may be charged with one or more offenses together or separately, and all of the defendants need not be charged with each offense.
c. Defendants or offenses may be joined where the defendant is charged with an offense against another.
d. The Court may order two or more defendants tried together if they could have been joined in a single Complaint, or may order a single defendant tried on more than one Complaint at a single trial.
e. If it would be unfair to any party for any reason to join offenses or defendants, the Judge shall order separate Complaints and may order separate trials or provide such other relief as justice requires. The Judge may take such actions on his own motion or upon the motion of a party.
B. COMPLAINTS AND INITIATION OF PROSECUTION
Sec. 1 Complaint Required
All criminal prosecution for violation of this Code shall be initiated by a Complaint
Sec. 2 Complaint Defined
A Complaint is a written statement, sworn to by the complaining witness, charging that a named or described person or persons have committed a particular offense or offenses.
Sec. 3 Contents of Complaint
a. A Complaint shall contain:
(1) the name or description of the person or persons alleged to have committed the offenses; and
(2) a written statement describing in ordinary language the facts constituting the offense, including the time and place as nearly as is known; and,
(3) the Title, Chapter, Section, etc., Of the Code provision allegedly violated; and,
(4) the oath and signature of the complaining witness sworn before a Tribal Judge, Court Clerk, a Tribal Police Officer, Tribal Prosecutor, or a person designated by the Tribal Judge to administer said oath. The complaining Witness may be a Tribal Police Officer or any other person. The oath shall state that, under penalties of perjury, the complaining witness knows or believes the truth of the Complaint.
Sec. 4 Filing a Complaint
A Complaint shall be filed and submitted without unnecessary delay to a Tribal Judge to determine whether an arrest warrant or a summons should be issued.
Sec. 5 Probable Cause to Arrest Upon Complaint, Warrant
or Summons
a. If the Complaint, or the Complaint together with other sworn statements, is sufficient to establish probable cause to believe that a crime has been committed by the person charged, the Tribal Judge shall either:
(1) issue an arrest warrant instructing the Tribal Police to arrest the accused; or,
(2) issue, for service upon the accused, a summons commanding the accused to appear before the Court at a specified time and place to answer the charge.
Sec. 6 Filing a Complaint After Arrest
When an accused has been arrested without a warrant, a Complaint shall be filed with the Court immediately, for review as to whether there is probable cause to hold the accused. Failure to file a Complaint at or prior to arraignment shall require the immediate dismissal of the case at arraignment. A case, so dismissed, may be renewed by filing a Complaint in the manner set forth in this Chapter.
C. ARREST, SUMMONS, AND CITATIONS
Sec. 1 Arrest by Tribal Police Officer
a. A Tribal Police Officer may arrest an Indian person for an offense when:
(1) the officer has a warrant signed by a Tribal Judge commanding the arrest of the person, or if the officer knows for a certainty that a warrant has been issued and is outstanding; or,
(2) the offense is committed in the presence of the arresting officer; or,
(3) the officer knows that an offense has been committed and has probable cause to believe the person to be arrested has committed the offense, and obtaining a warrant should involve a dangerous delay, considering the likelihood of a breach of the peace, injury to persons or property, or escape of the accused.
b. A Tribal Police Officer may arrest a non-Indian person for an offense, within the boundaries of the Reservation, in accordance with NRS 171.1255 when:
(1) an arrest warrant has been issued for the person by a Court having jurisdiction over non-Indians within the boundaries of the Reservation, and the officer has the warrant in his possession, or the officer knows for a certainty that a warrant has been issued and is outstanding; or,
(2) the offense is committed in the presence of the arresting officer; or,
(3) the officer knows that an offense has been committed and has probable cause to believe the person to be arrested has committed the offense, and obtaining a warrant from the Court having jurisdiction, would involve a dangerous delay, considering the likelihood of a breach of the peace, injury to persons or property, or escape of the accused
c. When a Tribal Police Officer arrests a non-Indian, either within the boundary of the Reservation, or outside the Reservation boundary when in fresh (hot) pursuit, in accordance with NRS 171.1255 (which gives Tribal Police Officer's and BIA Officer's the authority to arrest non-Indians), the officer will follow the rules and regulations of the Court having jurisdiction over non-Indians), will use the required county forms, and will book the non-Indian suspect into the county jail, if necessary. Because the Tribal Court has no jurisdiction over non-Indians, the officer will not use the Tribal Law and Order Code, but will, instead, use the appropriate Nevada Revised Statute (NRS) for the alleged offense, referencing to NRS 171.1255.
d. For the issuance of citations, for traffic offenses by non-Indians, Tribal police officer's will follow the provision set forth in Title Seven, Chapter D, Section 1, Subsection "d", of this Law and Order Code.
Sec. 2 Arrest by Private Citizen
A private citizen may arrest any person when he has probable cause to believe that an offense is being committed or attempted in his presence by the person to be arrested. When a felony in another jurisdiction has in fact been committed and he has probable cause to believe that the person to be arrested committed it
Sec. 3 Fresh (Hot) Pursuit
a. Fresh Pursuit Defined - The effort made to capture a person suspected of committing an offense, immediately pursued or without undue delay after the commission of the offense.
b. Fresh Pursuit by a Tribal Police Officer - A Tribal Police Officer may leave the tribe's jurisdiction in fresh pursuit of a person (Indian or non-Indian) suspected of committing an offense.
c. Fresh Pursuit by Outside Officers - Any officer of a Municipality, County, State, Federal or Tribal law enforcement agency who enters the tribe's jurisdiction in fresh pursuit of a person in order to arrest him on the grounds that he's believed to have committed a FELONY in another jurisdiction, shall have the same authority to arrest and hold such person in custody, as the officer has in his own jurisdiction. The suspect need not be held within the Reservation boundaries, but the arresting officer will advise a Tribal Police Officer of the arrest, as soon as possible. The Tribal Police Officer will make a written record and will notify the Tribal Court.
Sec. 4 Arrest Warrants
a. Power to Issue Arrest Warrant - Every Tribal Judge has the power to issue arrest warrants for Indian persons. The Tribal Council may issue an arrest warrant in accordance with Chapter D, Section 7, of this Title. An arrest warrant will be issued only upon a showing of probable cause in a Complaint meeting the requirements of this Code. The Tribal Court has no jurisdiction over non-Indians
b. Contents of Warrant - The arrest warrant will contain the following information:
(1) The name, if known, or description of the person to be arrested and his address, if known.
(2) The date warrant is issued.
(3) The Title, Chapter, Section, etc., Of the Code provision allegedly violated.
(4) The place and approximate time the alleged offense occurred.
(5) The signature of the issuing Judge or the signature of the Tribal Council Chairman on behalf of the Tribal Council.
c. Length of Time Warrant is Valid - An arrest warrant is valid and outstanding for five years from the date of the alleged offense unless the offense is for murder, which has no time limit, or unless the Tribal Judge specifically shortens the time limit.
d. Time of Executing Arrest Warrant - An arrest warrant may be executed only during reasonable hours unless the accused is apprehended in a public place or unless the Tribal Judge specifies other hours during which the warrant may be served.
Sec. 5 Arrest Warrant by Telephone
a. A Tribal Judge may issue an arrest warrant based upon the sworn oral testimony of a person who is not in the Judge's physical presence when it is not practical for the person to appear before the Judge and the immediate issuance of a warrant is necessary in order to permit an immediate arrest. The person giving the oral testimony must first be sworn and the information must be transmitted to the Judge by telephone or other electronic means of communication. The testimony must be recorded by either a tape recorder or other electronic means; or recorded by a certified shorthand reporter who is monitoring the conversation between the Judge and the person requesting the warrant. The testimony will be transcribed into written form and certified by the Judge, who Will file the statement With the Court Clerk.
b. After the Judge has issued an arrest warrant, whether based on an affidavit or an oral statement given under oath, the Judge may orally authorize a Tribal Police Officer to sign the Judge's name on a duplicate arrest warrant. A duplicate of the original arrest warrant shall be deemed to be a valid arrest warrant. It must be returned to the Judge who authorized the signing of his name to it. The Judge shall endorse his name and enter the date on the warrant when it is returned to him. Any failure of the Judge to make such an endorsement and entry does not, in itself, invalidate the warrant
c. The arrest warrant shall be directed to a Tribal Police Officer. It must state the grounds of probable cause for its issuance and the names of the person whose affidavit has been taken in support thereof. It will command the officer to arrest the name person forthwith.
d. The warrant must state the Title, Chapter, Section, etc., Of the Code provision allegedly violated, if possible.
Sec. 6 Return of Warrant
The officer who executed the warrant shall sign it, stating the time and place of the arrest and return the warrant to the Court Clerk for filing.
Sec. 7 Rights of the Accused at Time of Arrest
a. Upon arrest, the accused shall be advised of the following:
(1) That he has the right to remain silent and make no statements, concerning the alleged offense.
(2) If he makes a statement, he has the right to stop talking at any time.
(3) That any statements he makes concerning the alleged offense, may be used against him in court.
(4) He has the right to obtain a representative, at his own expense, and to consult in private with his representative before making a statement or answering any questions concerning the alleged offense.
b. Questions asked, that are necessary for the completion of booking forms, citations, etc., are not violations of the rights of the accused, unless the questions are used as a ruse to obtain information concerning the alleged offense.
Sec. 8 Telephone Calls
a. Any Indian person arrested has the right to make at least one completed telephone call to a relative or friend and at least one completed telephone call to a representative.
b. The accused shall be allowed to make these calls immediately after being booked into jail or sooner, if there is a delay in booking the accused into jail or in the jail processing. The delay should not be longer than three hours from the time of arrest, unless it is impossible to reach a telephone within the three hour time period.
c. A denial of the right to call a relative, friend, bondsman or representative, under this Section, may be grounds for dismissal of the case. However, it is recognized that once the accused is placed into the custody of the jail, the jail's procedures take precedence over the Tribes.
Sec. 9 Summons Instead of Arrest Warrant
a. Power to Issue Summons - Whenever authorized to issue an arrest warrant for an accused, the Judge may, instead, issue a summons commanding the accused to appear at the stated place, time and location to answer the charge. Factors to consider in issuing a summons are:
(1) Whether detention appears reasonably necessary to prevent injury to property, a breach of the peace, or imminent bodily harm to the accused or to another.
(2) His employment, residence, family ties and other relationships to the community.
(3) The nature of the crime charged and his prior criminal record, including the record of prior release on recognizance or bail.
(4) Any other factors bearing on the risk or willful failure to appear.
b. Contents of Summons - A summons shall contain the same information as a warrant
c. Failure to Answer Summons - If a defendant fails to appear in response to a summons, a Bench Warrant will be issued for his arrest.
d. Routine Issuance of Summons - The Tribal Judge may prepare a list of offenses for which a summons will routinely be issued instead of an arrest warrant.
Sec. 10 Citations
a. Issuing Citations:
(1) Any Tribal Police Officer who apprehends a Indian resident of the Reservation for an offense for which a citation may be issued, may issue said citation to the person and then release them upon the person signing the citation giving his written promise to appear before the Tribal Court on the date, time and location specified, to answer the charges or alleged violation. The officer will insure the persons understands that their signing of the citation is not an admission of guilt, but strictly their written promise to appear. The officer will file the citation with the Court Clerk, in effect making the citation a Complaint.
(a) If the Indian person receiving the citation refuses to sign the citation after it is explained to him, by the officer, the person may be required to post bail with the Court Clerk or other authorized official, before being released. The receipt number will be written on the line reserved for the person's signature.
(b) If the Indian person receiving the citation can not or refuses to post bail, the officer may arrest the person for the violation and bring the person before the Judge as soon as possible. If the Judge is unable to be contacted, after diligent effort by the officer, the officer may book the person into jail using the same procedures as for any other offense.
(c) If, while in route to the booking facility, the Indian person states he will sign the citation, the officer will advise the person that signing of the citation is no longer an option and that bail will have to be posted. If the person has the means to post bail, the officer will allow the person to post bail, in accordance with the provisions of this Section.
(2) Any Tribal Police Officer may issue a citation to a non-Indian for a offense for which a citation may be issued, under the following conditions:
(a) Because the Tribal Court has no jurisdiction over non-Indians (whether they reside on the Reservation or not), the officer will cite the person into the Nye County Justice Court, using that court's bail schedule, appearance date, etc., And citation forms complying with the requirements of the County and the State (because the current citation forms used by the Yomba Police Department do not conform with the State requirements, citation forms from the Nye County Sheriff's Office may be used by Tribal Police Officer's upon the approval of the Tribal Council and the Nye County Sheriff's Office and issued by the Nye County Sheriff's Office for that purpose, until new forms can be made that will meet the requirements of both the State and the Tribe). The officer will use the Nevada Revised Statute (NRS) appropriate for the violation, as well as NRS 171.1255 as a reference number (NRS 171.1255 is the State statute giving Tribal Police Officers and BIA Officers the authority to cite or arrest a non-Indian on a Reservation or, when in fresh pursuit, off the Reservation; under State law, a citation is a technical form of arrest even though the person is not placed under physical restraint).
(i) The officer will explain the citation to the non-Indian offender with a request that he signify his written promise to appear before the Nye County Justice Court, as specified, by signing the citation. If the non-Indian person refuses to sign the citation, the officer will follow the procedures set forth by the Nye County Justice Court.
(ii) If no procedures have been set forth by the Nye County Justice Court, and no arrangements have been made between the Tribe and Nye County Justice Court for the collecting of bail (such as issuing the officer's Nye County receipt forms so the officer may collect the bail for the County and issue the person a receipt therefrom), and the alleged offense is not one for which the officer would normally physically arrest and book the person into jail, then the officer will write "Refused to Sign" on the person's signature line of the citation, and release the person.
b. Contents for a Citation - The citation shall contain the same information as an arrest warrant and, upon approval of the Tribal Council, shall be formatted in such a manner as to comply with State requirements in order that Tribal Police Officers will be able to use a single citation form for both Indian and non-Indian offenders, as set forth in Subsection "a" of this Section. This shall include, but not necessarily limited to: a place for the issuing officer to sign, a place for the offender to sign, the name of the appropriate Court with the date, time and place to appear to answer the charge, and a statement that if the person posted bail, he may forfeit bail in lieu of appearing in Court unless the judgment upon conviction may impose a fine and imprisonment, in which case the accused must appear in the appropriate Court. If bail is posted, the receipt number goes on the signature line of the accused, rather than having the accused sign the citation.
c. Bail for a Citation - All criminal offenses for which citations may be issued shall be listed on a bail schedule as set forth by the Tribal Judge or the Nye County Justice Court. For Indian persons issued citations, bail shall be allowed to be posted. For non-Indian person's, the procedures set forth in Subsection "a", Paragraph (2), of this Section, shall be followed.
d. Bail Forfeiture and Failure to Appear (of Indian defendant's):
(1) If bail has been posted and the defendant does not appear, the Judge shall enter a judgment of conviction, imposing a fine equal to the amount of the bail and treating the bail as payment of the fine.
(2) If, however, the offense may include both a fine and imprisonment time upon conviction, the Judge may order the bail forfeited and a Bench Warrant issued for the arrest of the defendant for Failure to Appear. In this instance, a separate monetary fine may be imposed along with imprisonment time by the Court, upon conviction.
(3) If a person to whom a citation was issued with no bail being posted, fails to appear, a Bench Warrant will be issued for his arrest.
Sec. 1 Definitions
a. Where appearing in this Chapter:
(1) "Indian Tribal Government" means any existing American Indian Tribe recognized as a self-governing unit for the purpose of any Federal governmental agency and which has a duly organized Tribal Court, Court of Indian Offenses, or a traditional court.
(2) "Tribal Court" refers to any duly organized Indian Court enforcing the laws of any American Indian Tribe pursuant to a Constitution or Law and Order Code, or any Tribal Court operating under the Code of Indian Offenses or the custom and tradition of that Tribe.
(3) "Chief Executive Officer" includes the President, Governor, Tribal Chairman, or other chief administrative official who has been lawfully designated by the appropriate governmental agency.
(4) "Executive Authority" includes persons who are the Governor of a State, or any person duly performing the functions of a State Governor and the Chief Executive Officer of any Tribe
(5) "Tribe" in this Chapter is synonymous with "Indian Tribal Government".
(6) "State" includes any State or Territory, organized or unorganized, of the United States of America, including the District of Columbia.
(7) "Prosecuting Officer" includes any person duly designated by legal authority to attend to the prosecution of criminal offenses on behalf of the Government, including Attorney Generals, Prosecutors, Special Prosecutors, District Attorneys or Special Appointees.
(8) "Magistrate" refers to any Municipal, County, State or Federal judge.
Sec. 2 Fugitive From Justice: Duty of Tribal Council
Subject to the provisions of this Chapter, the controlling provisions of the United States Constitution, and any and all Acts of Congress enacted in pursuance thereof, it is the duty of the Yomba Shoshone Tribal Council to have arrested and delivered to the Executive Authority of any State or other Indian Tribe, any person charged in that jurisdiction with treason, a felony, or a gross misdemeanor, who has fled from justice and is found within Tribal jurisdiction.
Sec. 3 Form of Demand
a. No demand for the extradition of a person charged with a crime in a State or another Tribal jurisdiction shall be recognized by the Chief Executive Officer unless the demand is in writing alleging that:
(1) the accused was present in the demanding jurisdiction at the time of the commission of the alleged crime; and,
(2) that thereafter he fled from that jurisdiction.
b. Said demand must be accompanied by a copy of an affidavit made before a Tribal Court Judge or Magistrate from that jurisdiction, together with a copy of any warrant which was issued thereupon; or a copy of Judgment of Conviction or of a sentence imposed in execution thereof together with a statement by the Executive Authority of the demanding State or Tribe that the person sought has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, or information affidavit made before the Tribal Court Judge or Magistrate must substantially charge that the person has committed a crime under the laws of the State or Tribe; and the copy of indictment, information affidavit, Judgment of Conviction, or sentence must be authenticated by the Executive Authority making the demand.
Sec. 4 Tribal Council May Investigate Case
When a demand shall be made upon the Tribal Council by the Executive Authority of a State or another Indian Tribe for the surrender of a person charged with a crime, the Tribal Council may call upon any prosecuting officer to assist in investigating the demand, and to report to the Council the situation and circumstances of the person sought and whether he should be surrendered. The process of surrender must comply with the provisions of Section's 7 and 10, of this Chapter (D) and Title (4).
Sec. 5 Extradition of Persons Imprisoned or Awaiting
Trial in a State or Another Indian Tribe Who Have Left the Demanding
Jurisdiction Under Compulsion
a. When it is desired to have returned to this Tribe, a person who is charged in this jurisdiction with a crime, and that person is imprisoned or is held under criminal proceedings pending against him in a State or other Indian Tribe, the Tribal Council may agree with the Executive Authority of such State or Tribe for the extradition of that person before the conclusion of those proceedings or his term of sentence in the other State or Tribe, upon the condition that the person be returned to the other State or Tribe at the expense of the Yomba Shoshone Tribe as soon as the prosecution is terminated in this jurisdiction.
b. The Tribal Council may also surrender on the demand of the Executive Authority of any State or other Tribe, any person in this jurisdiction who 's charged in the manner provided in this Chapter, with having violated the laws of the State or Tribe whose Executive Authority is making the demand even though such person left the demanding jurisdiction involuntarily.
Sec. 6 Extradition of Person Not Present in Demanding
Jurisdiction at Time of Commission of Crime
The Tribal Council may also surrender on demand of the Executive Authority of any State or Tribe, any person in this jurisdiction who is charged in such other State or Tribe, in the manner provided in Section 3, of this Chapter, with committing an act in this jurisdiction or in another State or Tribe, which intentionally resulted in a crime occurring in the jurisdiction whose executive Authority is making the demand. The provisions of this Chapter not otherwise inconsistent, shall apply to such cases even though the accused was not in that jurisdiction at the time of the commission of the crime, and has not fled therefrom.
Sec. 7 Issue of Tribal Council's Arrest Warrant; Recitals
If the Tribal Council decides that the demand should be complied with, they shall sign an arrest warrant (warrant may be signed by the Tribal Chairman on behalf of and with the approval of all Council members) which shall be directed to any peace officer or other person whom they deem fit to entrust with the execution thereof. The warrant must substantially set forth the facts necessary to the validity of its issuance.
Sec. 8 Manner and Place of Execution
Such warrant shall authorize the peace officer to whom directed, to arrest the accused at any time and place where he may be found within the tribe's jurisdiction and to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to the provisions of this Title, to the duly authorized agent of the demanding State or Tribe.
Sec. 9 Authority of Arresting Officer
Every such officer or other person empowered to make the arrest, shall have the same authority in arresting the accused to command the assistance of other persons in making the arrest, as any peace officer has by law in commanding assistance, with like penalties against those who refuse to assist the officer when requested.
Sec. 10 Rights of the Accused Person: Application for
Writ of Habeas Corpus
a. No person arrested upon such warrant shall be delivered over to a duly designated agent of the demanding Executive Authority until:
(1) He shall first be taken forthwith before a Tribal Court Judge of this jurisdiction, who shall inform him of the demand for his surrender.
(2) Informed of the crime for which he is charged.
(3) And informed of his right to demand and procure legal counsel at his own expense.
b. If the prisoner or his counsel desire to test the legality of his arrest, the Tribal Court Judge shall fix a reasonable time for him to apply for a Writ of Habeas Corpus. When such a Writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer and to the said agent of the demanding State or Tribe. At the hearing, the Judge may inquire into whether the accused can receive a fair trail in the demanding jurisdiction. If the Judge determines that the accused can not receive a fair trial in the demanding jurisdiction, then he shall release the accused from custody.
Sec. 11 Confinement in Jail When Necessary
a. When necessary, the officer executing a Tribal Council's arrest warrant, or the agent of the demanding jurisdiction to whom the prisoner may have been delivered, may confine the prisoner in the Tribal jail or other detention facility and the jailer must receive and safely keep the prisoner until the custody officer proceeds on his way with his prisoner.
(1) The custody officer's or agent's parent organization is chargeable for the expense of keeping said prisoner in the Tribal jail or detention facility.
b. When necessary, a transporting officer or agent who is merely passing through this tribe's jurisdiction en route to the demanding jurisdiction, may confine a prisoner in the Tribal jail or other detention facility, upon showing the jailer satisfactory written evidence that he is actually transporting the prisoner to the demanding jurisdiction with legal authority. The jailer must receive and safely keep the prisoner until released to the transporting officer.
(1) The custody officer's or agent's parent organization is chargeable for the expense of keeping said prisoner in the Tribal jail or detention facility.
(2) The prisoner shall not be entitled to demand a new requisition while in this tribe's jurisdiction.
Sec. 12 Arrest Without a Warrant
Any Tribal Police Officer may lawfully arrest a person, without a warrant, upon reasonable grounds to believe that the person stands charged in the courts of a State or other Tribe with a crime punishable by death or imprisonment for a term exceeding one year. When arrested, the accused must be take before a Tribal Judge as soon as practicable and a complaint must be made against the accused, under oath, setting forth the grounds for the arrest. Thereafter, his answer shall be heard as if he had been arrested on a warrant.
Sec. 13 Commitment to Await Requisition: Bail
If, from the examination before the Tribal Judge, it appears that the person held is the same person who is charged with having committed the alleged crime and that he has fled from justice, the Tribal Judge must, by a warrant reciting the accusation, commit him to the Tribal jail or other detention facility for a period of not more than 30 days in order to enable the demanding jurisdiction to make proper requisition for the accused, subject to bail as provided in Section 14, of this Chapter, or until his legal discharge.
Sec. 14 Bail; In What Cases; Conditions of Bond
Unless the offense with which the prisoner is charged is punishable by death or life imprisonment under the laws of the State or Tribe in which it was committed, a Yomba Shoshone tribal Court Judge may grant the arrested person bail in such sum as the Judge deems proper, conditioned for the prisoner's appearance at a time and place specified in such bond, and for his surrender on arrest warrant issued by the Yomba Shoshone Tribal Council.
Sec. 15 Extension of Time of Commitment; Adjournment
If the accused has not been arrested under a Tribal Council warrant by the expiration date as specified by the Tribal Judge in accordance with Section 13, of this Chapter, such Tribal Judge may discharge the prisoner, recommit him for a period not to exceed 60 days, or grant bail for this recommitment period as provided herein.
Sec. 16 Bail Forfeiture
If the prisoner is admitted to bail, and fails to appear and surrender himself according to the conditions of his bond, the Tribal Judge, by proper order, shall declare the bond forfeited and order the prisoner's immediate arrest without warrant if he is within the tribe's Jurisdiction. Recovery may be had on such bond in the name of the Tribe as in the case of other bonds given by the accused in criminal proceeding.
Sec. 17 Request for Extradition After Criminal Prosecution
in Tribal Court has Been Instituted
If a criminal prosecution has been instituted against such person under the laws of this Tribe and is still pending the Tribal Council at their discretion, may either surrender the accused on demand of the Executive Authority of a State or other Indian Tribe, or hold the accused until he has been tried and discharged or convicted and punished by the Tribe.
Sec. 18 Guilt or Innocence of Accused; When Inquired
into
Neither the Tribal Council or the Tribal Court may inquire into the guilt or innocence of the accused, in any proceeding after the demand for extradition, except to identify the accused as the person who is charged with the crime and to ascertain if a reason exists for such extradition and to decide a Writ of Habeas Corpus, if applicable.
Sec. 19 Tribal Council May Recall Warrant
The Tribal Council may recall an arrest warrant or may issue another warrant whenever they deem proper.
Sec. 20 Fugitives From This Tribe; Duty of Tribal
Council
Whenever the Yomba Shoshone Tribal Council shall demand a person charged with a crime or with escaping from confinement or breaking the terms of bail, probation or parole in this Tribe, or from the Executive Authority of any State or other Tribe, or from the Chief Justice or Associate Justice of the United States Supreme Court, authorized to receive such demand under the laws of the United States, they shall issue a warrant to some agent commanding the agent to receive the person so charged and deliver him to a proper officer of this Tribe.
Sec. 21 Applicability for Issuance of Requisition; By
Whom Made; Contents
a. When a return to this Tribe of a person charged with a crime in this jurisdiction is required, the prosecuting officer shall present to the Chief executive Officer his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person charged, the crime charged, the approximate time, place and circumstances of its commission, the jurisdiction in which the person is believed to be, including his location at the time application is made, if known, and certifying that in the opinion of said prosecuting officer the ends of justice require the arrest and return of the accused to this Tribe for trial and that the proceeding is not instituted to enforce a private claim.
b. When the return to this Tribe is required of a person who has been convicted of a crime in this tribe's jurisdiction and has escaped from confinement, or broken the terms of bail, probation or parole, the prosecuting officer shall present to the Chief Executive Officer a written application for a requisition for the return of such person, setting forth the name of the person, the crime for which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation or parole, the jurisdiction in which he is believed to be including his location at the time application is made, if known.
c. the application shall be verified by affidavit, executed in duplicate and accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the Tribal Court Judge, stating the offense with which the accused is charged, or the Judgment of Conviction, or of the sentence. The prosecuting officer may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application. One copy of the application with the action of the Chief Executive Officer's endorsement thereon, and one of the certified copies of the indictment, complaint, information and affidavits, or of the Judgment of Conviction, or of the sentence shall be filed in the Office of the Tribal Secretary, to remain on record in that office. The other copies of all papers shall be forwarded with the Chief Executive Officer's requisition.
Sec. 22 Immunity From Service of Process in Certain
Civil Actions
A person returned to this Tribe, by or after waiver of extradition based on a criminal charge shall not be subject service of personal process in civil actions arising out of the same facts as the criminal proceedings for which he has returned, until he has been convicted in the criminal proceeding for which he has returned, or if acquitted, Until he has had a reasonable opportunity to return to the State or Tribe from which he was extradited.
Sec. 23 Written Waiver of Extradition Proceedings
a. Any person arrested within this tribe's jurisdiction for a warrant from another jurisdiction may waive extradition proceedings by executing or subscribing in the presence of this tribe's Tribal Court Judge a writing stating that he consents to return to the demanding jurisdiction; provided however, that before such waiver shall be executed or subscribed by such person, it shall be the duty of the Tribal Judge to inform the person of all his rights including the right to the issuance or service of a warrant of extradition and his right to obtain a Writ of Habeas Corpus as provided therein.
b. If and when such consent has been duly executed, it shall be forwarded to the Office of the Tribal Council of this Tribe and filed therein. The Judge shall direct the custody officer to deliver forthwith such person to the duly accredited agent of the demanding State or Tribe. Nothing in this action shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding jurisdiction, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights, or duties of the officers of the demanding jurisdiction or of this Tribe.
Sec. 24 Non-Waiver by This Tribe
Nothing in this Chapter shall be deemed to constitute a waiver by the Tribe of its sovereignty, or rights, powers or privileges to try such demanded person for crimes committed within this jurisdiction, or of its rights, powers or privileges to retain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentencing or punishment for any crime committed within this tribe's jurisdiction. Nor shall any proceedings under this Title which result in or fail to result in extradition be deemed a waiver by this Tribe of any of its sovereignty, or rights, privileges, or jurisdiction in any manner whatsoever.
Sec. 25 No Right of Asylum; No Immunity for Other
Criminal Prosecutions While in This Jurisdiction
After a person has been brought back to this Tribe by, or after waiver of extradition proceeding, he may be tried in this jurisdiction for other crimes which he may be charged with having committed here as well as those specified in the requisition for his extradition.
Sec. 26 Interpretation
The provisions of this Chapter shall be interpreted and construed as to effectuate the general purpose to make uniform the law of the tribe's which enact it.
Sec. 27 Reciprocity
Reciprocity shall only apply to States and Tribes which grant to the Yomba Shoshone Tribe the right to request and obtain extradition of persons charged with violating Tribal laws and ordinances.
Sec. 28 Constitutionality
If any provision of this Chapter or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or application of the Chapter which can be given affect without the invalid provision or application, and to this end the provisions of this Chapter are declared to be severable.
Sec. 29 Repeal
All other provisions of this Code that are inconsistent with the provisions of this Chapter which have not been expressly repealed herein, are so expressly repealed.
Sec. 30 Short Title
This Chapter may be cited as the Tribal Uniform Criminal Extradition Code.
Sec. 1 Definition of Property
The term "property" includes documents, books, papers and any other tangible or physical objects.
Sec. 2 Authority to Issue a Search Warrant
An authorized search warrant may be issued by every Tribal Judge for the search and seizure of any property or premises, within the jurisdiction of the Tribal Court.
Sec. 3 Grounds for Issuing a Search Warrant
a. A search warrant may be issued to search and seize property:
(1) stolen or embezzled in violation of the laws of the Yomba Shoshone Tribe, or in violation of the laws of the State of Nevada, of any other State or of the United States; or,
(2) designed or intended for use of which is, or has been used as the means of committing a criminal offense; or,
(3) when the property or things to be seized consists of any item(s) or constitute any evidence which tends to show that a criminal offense has been committed, or tends to show that a particular person has committed a criminal offense (i.e. - fruits of a crime).
Sec. 4 Issuance and Contents of Search Warrant
a. A search warrant may be issued only on affidavits sworn to, before the Tribal Judge and establishing the grounds for issuing the warrant or as provided in Subsection "b" or "c", of this Section. If the Tribal Judge is satisfied that grounds for the application exist, he shall issue a warrant by identifying the property and naming or describing the person or place to be searched.
b. In lieu of the affidavit requirement, the Tribal Judge may take an oral statement given under oath, which must be recorded by electronic means or by a certified shorthand reporter in the presence of the Judge or his immediate vicinity, with the transcription certified by the person who recorded it and by the Tribal Judge. If it was recorded by the Tribal Judge using electronic means only, then the Judge, only, will certify the transcription. The statement will be filed with the Court Clerk.
c. A Tribal Judge may issue a search warrant based upon the sworn oral testimony of a person, not in his physical presence, when it is not practical for the person presenting the testimony to personally appear before the Judge, such as when the immediate issuance of a search warrant based upon such oral testimony, is necessary in order to permit an immediate search and there is significant danger that failure to grant a search warrant will result in the concealment or destruction of the object sought. The person giving the oral testimony must first be sworn and the information must be transmitted to the Judge via telephone or other electronic means, transcribed and certified by the person recording it and by the Judge. The statement will be filed with the Court Clerk
d. After the Tribal Judge has issued a search warrant whether it is based on an affidavit or an oral statement given under oath, the Judge may orally authorize a Tribal Police Officer to sign the Judge's name on a duplicate of the original search warrant. The duplicate search warrant shall be deemed to be a legal search warrant. It must be returned to the Tribal Judge who authorized the signing of his name on it. The Tribal Judge shall endorse his name and enter the date the warrant was returned to him.
(1) Failure of the Judge to make such an endorsement and entry does not, in itself, invalidate the search warrant
e. The warrant shall be directed to a Tribal Police Officer. It must state the grounds of probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. It shall command the officer to search forthwith the person or place named for the property specified.
f. If applicable, the search warrant must state the Title number, Chapter heading and Section number of the provision allegedly violated.
g. The warrant must direct that it be served during reasonable hours unless the Tribal Judge, upon a showing of good cause therefore, inserts a direction that it be served at any time.
h. The warrant must designate the Tribal Judge to whom it is to be returned.
Sec. 5 Use of Reasonable and Necessary Force; Evidence
of Another Criminal Offense
a. After knocking and identifying himself, a Tribal Police Officer may use all reasonable and necessary force to affect entry into any building· property, or part thereof to execute a search warrant. In the execution of the search warrant the officer(s) executing it may detain and search any person in the place at the time in order to protect themselves from attack, or to prevent the destruction, disposal or concealment of any instruments, articles or things particularly described in the search warrant.
b. Evidence of another criminal offense discovered during the legal execution of a search warrant, may also be seized and is admissible in Tribal Court. The person from whom it was seized may also be arrested and charged with that particular criminal offense.
Sec. 6 Execution and Return of Warrant With Inventory
a. The warrant shall be executed and returned within 10 days after its issue date to the Tribal Judge, along with an inventory of property seized or, if no property was seized, a statement to that affect
b. The officer seizing property, under the warrant, shall give to the person from whom or from whose premises the property was taken, a copy of the warrant and a receipt for the property seized or shall leave the copy and receipt at the place from which the property was seized.
c. If possible, a disinterested witness should observe the property being seized and more than a single officer should execute the search warrant (for officer safety). However, this is not mandatory and a single officer may execute the search warrant. Upon the completion of the inventory, the executing officer will sign the inventory form, retain a copy for his records, retain a copy with the property seized in the custody room or in a suitable secured place to insure there is no tampering with the seized property, forward one copy to the Tribal Judge as detailed in Subsection "a", of this Section, and forward a copy of the Inventory form, search warrant, receipt and other related reports to the Tribal Prosecutor.
d. The Tribal Judge shall, upon request, deliver a copy of the inventory to the person from whom or from whose premises the property was taken.
e. In the execution of any search warrant, no person or place other than those specifically described in the warrant shall be searched and no property other than that specified in the warrant shall be seized, except:
(1) the executing officer(s) may seize property that is in plain view or otherwise plainly noticeable to the physical senses of the officer(s), if they have probable cause to believe that the item(s) is evidence, contraband, or a fruit or instrumentality of a crime, whether or not it is related to the item(s) named in the search warrant.
Sec. 7 Motion for Return of Property and to Suppress
Evidence
a. Any person aggrieved by an unlawful search and seizure may move to suppress the use of anything so obtained on the grounds that:
(1) the property was illegally seized without warrant; or,
(2) the warrant was insufficient on its face; or,
(3) there was no probable cause for believing the existence of the grounds on which the warrant was issued; or,
(4) the warrant was illegally executed.
b. The Judge shall receive evidence on any issue of fact necessary to the decision of the motion.
c. If the motion is granted, the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible evidence at any hearing or trial.
d. The motion to suppress evidence may also be made in the Court where the trial is to be held. The motion should be made before the trial or hearing unless the opportunity did not exist or the defendant was unaware of the grounds for the motion. The Court, in its discretion, may entertain the motion at the trial or hearing.
Sec. 8 Return of Papers to Court Clerk
The Tribal Judge who issued a search warrant shall attach to the warrant the duplicate original, if any, and a copy of the return, a copy of the inventory, and all other related papers and shall file them with the Court Clerk.
Sec. 9 Retention of Property and Return of Property;
Technical Irregularities not to Invalidate Warrant
All property, etc. seized on a search warrant must be retained by the executing officer in his custody, or released to a custody officer (if applicable), with a Chain of Evidence form being completed and attached to each item seized. A copy of the inventory sheet will also be maintained at the location of the property room, or in the officer's control. The Court, with subject matter jurisdiction may order the seized property to be restored to the person from whom it was taken, if the Judge later determines that probable cause did not exist for the grounds on which the search warrant was issued. However, no search warrant shall be quashed by any Tribal Judge nor shall any evidence, based upon a search warrant, be suppressed in any criminal action or proceeding because of mere technical irregularities which do not affect the substantial rights of the accused.
Sec. 10 Searches Without a Warrant
a. Warrant to be Obtained - It is Tribal policy that a search warrant be obtained prior to conducting a search unless exigent circumstances make it impossible to do so or as outlined in Subsection "b", of this Section.
b. Searches Without a Warrant - A Tribal Police Officer may conduct a search and seize property, without a warrant, when:
(1) incidental to making a lawful arrest, limited to the individual's person (body) and the surrounding area within the person's immediate control. The search is for weapons the person might use against the officer, and for evidence which the person might destroy before the officer could prevent it.
(2) the search is with the consent (verbal or written) of the person to be searched or with the consent of the person who has legal standing over the place to be searched, after that person has been informed of his right to require the officer to obtain a search warrant, unless exigent circumstances dictate otherwise.
(3) conducting a frisk search, for officer safety, if the officer believes a crime is in progress or has just been committed or if he reasonably feels the person may be armed and dangerous. Usually, a frisk search is limited to the person's outer clothing unless an object is detected which the officer feels may be a weapon, warrants a more thorough search. Areas such as wallets, purses, waist packs or pouches, etc., that are in the person's control, may also be searched. Any item such as sharp pointed combs, ink pens, pencils, keys, etc. may be temporarily removed from the person, as well as wallets, purses, etc. If an arrest is not forthcoming, all removed items will be returned to the person.
c. Arrest After Frisk/vehicle Search
If, in the course of a frisk or vehicle search, an officer finds probable cause to arrest, he may do so.
Sec. 11 Search Warrants for Other Jurisdictions
a. Requirement - Except as otherwise provided by Federal law or this Code, no search or seizure of any person or property within Tribal jurisdiction shall take place without a valid search warrant issued by the Tribal Court even though the involved offense may have occurred in another jurisdiction.
b. Application - An application by law enforcement officers of another jurisdiction for a search warrant within Tribal jurisdiction shall be in basically the same format complying with this Code.
c. Issuance and Execution - If the application and accompanying documents give the Judge probable cause to believe that a felony has occurred, over which the Government agency requesting the search warrant has jurisdiction, and that the search will discover property which will basically aid the requesting agency and which is stolen, illegal to possess or is the instrument, evidence or fruit of a crime, then the Judge shall issue a Tribal search warrant to be executed and returned in the same manner as other Tribal search warrants.
d. Disposition of Seized Items - Items seized under Subsection "c" of this Section, may be relinquished by the Judge to the custody of the other jurisdiction upon the condition that that said items be returned to the Tribe when they are no longer necessary for the criminal prosecution of the other jurisdiction, and that the return is not illegal to do so under any applicable law. Said items are to be disposed of in accordance with this Code or as instructed by the Tribal Judge or Tribal Council.
e. Reciprocity for Search Warrants - None of the provisions of this Code will apply on the behalf of any jurisdiction which does not consent, in writing to applying its search warrant procedures on the behalf of the Tribe.
Sec. 1 Confessions
a. Illegal Confessions - It is illegal to obtain a confession from an accused by means of fraud, force, threats or denial of rights listed in this Code or under the Indian Civil Rights Act.
b. Excluding Confessions - Any confession, illegally obtained,shall be excluded from use as evidence in any hearing or trial following the same procedures used for excluding other types of evidence.
Sec. 2 Presence of Defendant Required
The defendant shall be present at the arraignment and sentencing, but may choose to be absent from other portions of the proceedings as long as a representative for the defendant is present and the defendant's absence does not delay or interfere with the orderly progress of the case.
Sec. 3 Bail Release by Tribal Police Officer
a. Bail Schedule for Specific Offenses - The Judge may prepare a bail schedule specifying the amount of money to be posted for specific offenses. The accused may post that amount and be released without appearing before the Judge to have bail set.
b. General Bail Schedule - Where no specific bail has been set, the Judge may establish a maximum bail for each class of listed offense, with this amount to be posted in order for the accused to be released.
c. Right to Release - Unless specifically ordered otherwise by the Judge, any person is entitled to be released upon posting bail with the Court Clerk or other designated person.
Sec. 4 First Appearance; Bail Hearing
a. Defined - First Appearance is the bringing of an accused before the Court, informing him of his rights, the charge for which he was arrested, and setting bail.
b. Any person who does not post bail, arrested for an offense for which no bail has been set, or for which the Judge has ordered bail to be set at a first appearance hearing, shall be brought before the Judge for said first appearance hearing and setting of bail by:
(1) physically bringing the accused before the Judge within 72 hours after arrest, or, if no Tribal working day occurs within that time, then on the next Tribal working day; or,
(2) having their first appearance and bail set via telephone or other electronic means.
c. A person denied a hearing under Subsection "a", of this Section, shall be released from custody after the 72 hour time period, if he has not received his first appearance.
Sec. 5 Setting Bail and Conditions of Release by
the Tribal Judge
a. Personal Recognizance:
(1) Every Indian defendant who is not issued a citation and summons and is not released under the bail schedule is entitled to a hearing on the issue of release as specified. He may be eligible for release from custody on personal recognizance. That is, upon giving his written promise to appear for trial, unless the Judge determines that such a release would not reasonably assure the appearance of the accused at the required time.
(2) Addition bail review hearings may be held at any time, and persons released on bail may also apply to the Court for a bail hearing under this Section.
b. Maximum Bail - Except for murder for which there is no bail, the maximum bail shall not exceed $25,000.00.
c. Factors in Setting Bail - In determining the risk of non-appearance and in setting bail, the Judge shall take into account the following factors concerning the accused:
(1) Whether detention appears reasonably necessary to prevent injury to property, a breach of the peace, or bodily harm to the accused or to another.
(2) His employment, residence, family ties, and other relationships to the community.
(3) The nature of the offense charged, and his prior criminal record including the record of prior release on recognizance or bail.
d. Conditions of Release - In addition to or instead of a release on personal recognizance or on money bail, the Judge may release the accused under any one or more of the following conditions as necessary to assure the appearance of the accused at the required time and to assure the behavior of the accused while out on bail:
(1) Release to the custody of a designated person or organization agreeing to assure the appearance of the accused.
(2) Release with reasonable restrictions on the travel, association, place of residence, drinking of intoxicating beverages, etc., Of the accused during the release period.
(3) Release after deposit by the accused of a bond, that is a partial or zero payment of the bail plus a promise to pay the full bail if the accused fails to appear as ordered.
(4) Release after execution of an agreement by two responsible members of the community to pay and forfeit bail of the accused if he fails to appear.
e. Denying Bail - If the Judge has reason to believe that no condition of release will reasonably assure the appearance of the accused or is likely to pose a danger to the community, the accused, or to any other person, the Judge may order detention of the accused.
Sec. 6 Arraignment
a. Defined - Arraignment is the bringing of an accused before the Court, informing him of his rights, the formal charges against him, giving him a copy of the complaint and receiving his plea (answer) to the charge.
b. Time Limits:
(1) Arraignment shall be held:
(a) in open Court within 10 Tribal working days, if the accused is in custody, or, at the next appropriate Court date if the accused is not in custody; or,
(b) by telephonic or other electronic means with the proceedings being recorded (by tape recorder or other electronic means, or by use of a certified shorthand reporter who can hear all of the proceedings), with the defendant's responses being witnessed by a law enforcement officer who is present with the defendant during the telephonic arraignment
(2) A bail hearing to set or review bail may be held at the same time as the arraignment.
(3) A person whose arraignment is delayed past the time limit shall have those rights and remedies as provided for in this Code and in the Indian Civil Rights Act.
c. Rights of Accused at Arraignment - Before an accused is required to plead to any criminal charge, the Judge shall:
(1) Read the complaint and the section of the Tribal Law and Order Code the defendant is charged with violating, including the maximum authorized penalty.
(2) Determine that the defendant understands the charge against him and the penalty which may be imposed.
(3) Provide the defendant with a copy of the complaint.
(4) Advise the defendant that he has the right to remain silent; the right to a jury trial; the right to a representative, at his own expense; and the right to have the arraignment postponed should he desire to consult with a representative prior to entering his plea.
(5) If the case is one in which it is permitted, the Judge must ask the defendant if he wishes a jury trial and record his answer for the record.
d. Receipt of Plea at Arraignment:
(1) A defendant may plead either "guilty", "not guilty", or "no contest". If the defendant refuses to plead of if the Court refuses to accept a plea of "guilty", the Court shall enter a plea of "not guilty".
(2) If the defendant pleads "not guilty", the Judge shall set a trial date, and shall establish the conditions of bail prior to trial and inform the defendant in writing of those conditions.
e. Procedures Upon a Guilty Plea - If the defendant pleads "guilty" or "no contest", either at arraignment or at a later hearing, the following procedures shall be followed:
(1) The Judge shall determine whether the plea of "guilty" was made voluntarily and because the defendant is actually guilty or desires not to contest the charges. The judge shall personally address the defendant to assure that no person threatened the defendant, made improper promises or misled the defendant as the consequences of his plea, or otherwise improperly induced him to plead "guilty" or "no contest". If coercion or other improprieties exists, the Judge shall reject the plea and enter a plea of "not guilty".
(2) The Judge shall determine that the defendant understands the consequences of the plea, including the maximum penalty to which he may be subjected, the waiver of his right to a jury trial (if applicable), his right to confront and cross-examine his accusers, and his right to avoid self-incrimination.
(3) The Judge may impose sentence immediately after a "guilty" or "no contest" plea or may defer sentencing for a reasonable time in order to obtain any information he deems necessary for the imposition of a just sentence.
(4) Before a sentence is imposed, the defendant shall be allowed to address the Court and present facts relevant to sentencing.
f. Withdraw of Guilty Plea:
(1) The Judge may allow the defendant to withdraw a plea of "guilty" or "no contest" at any time before a sentence is imposed.
(2) The Judge, in response to a written motion, in his discretion may set aside a conviction upon a plea of "guilty" or "no contest" and allow the defendant to withdraw his plea when it appears that the interest of justice and fairness would be served by doing so.
g. A "no contest" plea shall not be admissible as an admission in a civil action.
h. Trial Date; Dismissal for Delay:
(1) The date set for trial, and the actual beginning of trial shall be within 60 days of arraignment unless the case is continued at the request of the defendant or for other very good cause. It is not sufficient for a continuance that the Court or the Prosecutor finds the delay convenient.
(2) Denial of the right to a speedy trial under this Subsection shall require dismissal, with prejudice, of the case. An order for the dismissal of the action under this Subsection is a bar to another prosecution for the same offense based on the same set of facts and evidence.
Sec. 7 Pre-trial Motions
a. Types of Motions - Before a trial, a defendant may make a motion to suppress evidence,a motion to dismiss the case, or any other motion appropriate to meet the ends of justice.
b. Motions to be in Writing - A pretrial motion shall be in writing, unless allowed to be made orally by the Court, or by a specific provision of this Code.
c. Time of motions - Motions made prior to trial shall be made no less than five days prior to the date set for trial, except that motions asserting lack of Tribal Court jurisdiction may be made at any time. The Judge may permit an untimely motion to be made when good cause is shown for the delay.
d. Ruling Upon Motions - All pre-trial motions shall be heard and ruled upon as soon as possible unless, for good cause, the Judge postpones the hearing and ruling until trial or another time.
e. Motion to Dismiss the Complaint:
(1) A motion to dismiss a complaint may be made upon the following grounds:
(a) Failure to arraign within five years, except for murder.
(b) Denial of a defendant's rights.
(c) A defective complaint.
(d) Failure to file a complaint before or at the time of arraignment.
(e) A finding that the defendant has been charged with or arrested without probable cause.
(f) Violation of the fresh pursuit rules.
(g) A defect in the arrest warrant or its service, or the summons, or the citation.
(h) A denial of the defendants rights at the time of arrest.
(i) A defect in the extradition procedure.
(j) A violation of bail procedures.
(k) A violation of any other provision of this Code or the Indian Civil Rights Act.
(2) The decision to grant the motion to dismiss shall be discretionary with the Judge, based on the harm the violation did to the defendant or to his ability to present his case, unless some other provision of this Code absolutely requires the granting of the motion to dismiss.
(3) In addition to absolute requirements of dismissal stated elsewhere in this Code, the Complaint must be dismissed in the following situations:
(a) Upon a finding that the defendant has been charged or arrested without probable cause.
(b) Upon a finding that the Court has no jurisdiction over the person or the offense.
(4) An order dismissing a Complaint is not a bar to subsequent prosecution for the same offense unless:
(a) The dismissal is for a violation occurring after jeopardy has been attached.
(b) This Code or the Indian Civil Rights Act specifically provides that dismissal for the particular reason involved shall be a bar.
(c) The grounds for the dismissal was lack of Tribal Court jurisdiction over the person or offense, except that prosecution may be renewed if jurisdiction is later acquired.
f. Motions for Disqualification of a Judge:
(1) Disqualification for interest in a Case - A Judge shall not hear any portion of a case when the Judge has a blood or marriage relationship to the defendant, the Prosecutor, or a complaining witness. Refusal of the Judge to disqualify himself shall require reversal of conviction on appeal.
(2) Disqualification for Bias:
(a) The defendant may move to disqualify the Judge at any stage of the proceedings prior to sentencing if, in his opinion, he can not receive a fair and impartial hearing by reason of bias or prejudice of that Judge.
(b) Upon a motion under this Subsection, the Judge shall consider whether granting the motion would be in the best interest of justice. If the motion is granted, the Judge shall cease to participate in the case except to call another Judge to hear the case. An abuse of discretion in the denial of a motion shall require reversal of conviction on appeal.
Sec. 8 Subpoenas; Requests for Evidence Outside the
Tribal Court's Jurisdiction
a. Subpoenas; Issuance, Contents:
(1) Upon request of any party or upon the Tribal Court's own initiative, the Court shall issue subpoenas to compel the testimony of witnesses, the presence of jurors or the production of books, records, documents, or any other physical evidence which is relevant to the determination of the case and is not an undue burden on the person possessing the evidence. If empowered by the Tribal Judge, the Court Clerk may issue subpoenas.
(2) The Tribal Prosecutor is also empowered to issue investigative subpoena's as detailed in Title One, Chapter 1, Section 7, Subsection "a", Paragraph (4).
(3) A subpoena shall bear the name of the person or description of the physical evidence being subpoenaed, the name of the person who has custody of, and the obligation to deliver the physical evidence, the Title of the proceeding and the date, time and place the person is to appear or the evidence is to be produced. If the subpoena is for a particular office within a company, firm, etc. (i.e. - Finance, Administration, etc.), the subpoena may be addressed to that particular office and, in lieu of a specific name of a person, state "To Any Person Employed Within Said Office". It may also give a specific name of a person as well as addressing any person within said office
b. Subpoena; Service, Failure to Obey:
(1) A subpoena may be served at any place within Tribal jurisdiction.
(2) A subpoena may be served by any Tribal Police Officer, Tribal Prosecutor or any other person appointed by the Court for such purpose. In a civil action, one party may serve a subpoena upon another party of the action, without using a Tribal Police Officer to serve same. Service of a subpoena shall be made by delivering a copy of the subpoena to the person named, company office named, or by leaving a copy at the person's place of residence with any person 16 years of age or older who appear to reside therein or to be a responsible recipient.
(3) Proof of service of the subpoena shall be filed with the Court Clerk by completing the Return of Service information (also known as the Certification of Service) on the subpoena, if applicable, or by noting on the back of a copy of the subpoena the date, time, place, and name of the person to whom it was delivered. Proof of service shall be signed by the person who actually served the subpoena.
(4) In the absence of a justification satisfactory to the Court, a person who fails to obey a subpoena within Tribal jurisdiction, upon which proof of service has been filed, may be deemed to be in Contempt of Court and a Bench Warrant may be issued for the person's arrest, incarceration, and/or fine, at the discretion of the Judge. Failure to obey a subpoena, either from the Court or the Tribal Prosecutor, is a Class A offense.
c. Requests for Evidence Outside the Jurisdiction of the Tribal Court:
(1) When a subpoena would be proper under Subsection "a", of this Section, except that the person or items desired are outside the jurisdiction of the Tribal Court, then, upon the request of any party or upon the Tribal Court's own initiative, the Judge may issue a signed Request for Evidence.
(2) A Request for Evidence shall be in basically the same form as a subpoena and shall be served and returned in the same manner, except that a Request for Evidence shall state on its face that it is a "REQUEST ONLY" and that there are no sanctions for failure to comply with the request.
Sec. 9 Discovery and Inspections
a. Both the defense and the prosecution are entitled to each others relevant reports, documents, photographs, physical evidence lists, witness lists, and so on.
b. Each part is also entitled to inspect and/or photograph, copy, etc., the others physical evidence, if such inspection will not contaminate said evidence.
(1) The custody officer shall be present during the inspection of such evidence and maintain control of said evidence to insure the evidence remains uncontaminated during the inspection, when said evidence is part of the prosecutor's case. If necessary, the Tribal Prosecutor will also be present
c. If a Court Order is necessary to inspect evidence, under Subsection "a" or "b", above, the Court shall specify the time, place and manner of making the inspection, and may prescribe such terms and conditions as are just, in addition to the conditions set forth in Paragraph (1), Subsection "b", of this Section.
d. Upon sufficient showing, the Court may at any time order that the discovery and/or inspection of evidence be denied, restricted, deferred, or make such other order as may be appropriate. Upon motion by the Tribe, the Court may permit the Tribe to make such showing, in whole or in part, in the form of a written statement to be inspected by the Court in its chambers. The defense may also make such a motion. If the Court enters an order granting relief following a showing in chambers, the entire text of the tribe's statement or of the defense's statement, shall be sealed and preserved in the Court records to be made available to the Appellate Court in the event of an appeal by the defendant.
e. Time of Motions - A motion, under this Section, may be made only within 10 days after arraignment or at such reasonable later time as the Court may permit The motion shall include all relief sought under the relevant Subsections, etc., Of this Section. A subsequent motion may be made only upon a showing of cause that such motion would be in the best interest of justice.
f. Continuing Duty to Disclose; Failure to Comply - If subsequent to compliance with an order issued pursuant to this Section, and prior to or during the trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under this Section, he shall notify the other party or his representative or the Court of the existence of the additional material. If, at any time during the course of the proceedings, it is brought to the attention of the Court that a party has failed to comply with this Section or with an order pursuant to such, the Court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing into evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.
g. Witness List - If requested, each party shall furnish the other party with a list of witnesses which the party will call to testify. The list shall be provided at least five Tribal working days before the trial date. Failure to provide a list, if requested, will prevent the use of such witnesses unless it can be shown that no unfairness in the case has resulted, or that other good cause existed. The Judge may order the trial delayed or make such other orders as will assure a just determination of the case.
Sec. 1 Who May be a Witness
Any person who understands his responsibility to tell the truth may be a witness.
Sec. 2 Expert Witness and Interpreters
a. At any time in the criminal process, if scientific, technical, or other specialized knowledge will assist the jury in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by special knowledge, experience, or training, may testify to matters within the scope of that knowledge, experience or training.
b. At any time in the criminal process, the Judge may appoint an interpreter of his own selection and each party may provide its own interpreter at its own expense. An interpreter through whom testimony is communicated shall be put under oath to faithfully and accurately translate and communicate as required by the Judge. With the consent of all parties, the Judge or Clerk may act as interpreter.
c. Immunity of Witness From Prosecution:
(1) In any trial, the Judge, on motion of any party or on his own initiative, may order that any witness be released from all liability to prosecution or punishment on account of any testimony or other evidence he may be required to produce.
(2) Such an order of immunity shall forever prohibit prosecution of the witness for any offense shown in whole or in part by such testimony or other evidence, except for perjury committed in giving such testimony.
(3) The Judge shall deny the motion under Paragraph (1), of this Section, if it reasonably appears to the Judge that such testimony or evidence would subject the witness to prosecution under the laws of another jurisdiction.
(4) Any witness who, having been granted immunity, refuses to testify or produce other evidence as required is in Contempt of Court.
d. Fees:
Each witness answering such subpoena shall be entitled to a fee not less than the Federal minimum hourly wage, plus actual cost of travel. Each witness testifying at a hearing shall receive pay for time actually spent in complying with said subpoena, plus travel allowance.
Sec. 3 Jury Trial
a. Right to a Jury Trial - A defendant has a right to a jury trial in all cases where the offense charged 's a Class A, B, C, or D offense, unless the Judge states before trial that the punishment, if any, shall not include jail time.
b. Request for a Jury Trial - Unless a defendant claims his right to a jury trial by oral or written request at arraignment or by written request at least 15 days before the date set for trial, the case shall be tried by a Judge without a jury. If a person cancels a jury trial less than 15 days prior to trial, he shall be responsible for jury fees and costs.
c. Size of Jury - A jury shall consist of six persons selected at random from a list of eligible jurors prepared each year by the Council or other body as directed by the Council. When a trial is expected to take more than four days, and alternate juror or jurors may be selected, who shall replace any juror who is unable to perform his duties.
d. Eligibility of jurors in criminal cases shall be governed in accordance with this Code.
e. Examination of Prospective Jurors - Prospective jurors shall be questioned for impartiality and other qualifications either by the Judge or by each party if the Judge allows.
f. Challenges of Jurors:
(1) During questioning of the jury, each party shall have the right to challenge an unlimited number of prospective jurors for cause on the basis of lack of eligibility, prejudice, or other demonstration of a likelihood that the prospective juror would not be able to make an impartial decision. Either party may challenge any prospective juror for cause at any time during the examination of prospective jurors. The Judge shall decide if a prospective juror is ineligible for cause.
(2) After examination and challenges for cause, when six prospective jurors and alternates, if any, have been selected each party shall have the right to a maximum of two peremptory challenges of jurors. Peremptory challenges are requests to remove a prospective juror for which no reason need be given and which the Judge must grant. If alternate jurors are chosen, each party shall have the right to one peremptory challenge of a prospective alternate juror. Neither of the two regular peremptory challenges may be used against a prospective alternate juror.
(3) Peremptory challenges, if used, shall be exercised one at a time, alternating between the prosecution and the defense, the prosecution going first. When all peremptory challenges have been exercised, replacements for those peremptorily challenged shall be examined for bias and may be challenged for cause.
(4) Any remaining peremptory challenges may be exercised against the new prospective jurors chosen and so on until a jury and alternates, if any, are chosen.
g. Swearing in the Jury - After the final jury and alternates, if any, have been chosen, the Judge shall have them swear to fully consider all evidence and to render an impartial verdict, and shall declare that a jury has been selected.
h. Jury Instructions - The jury shall deliberate in secret and shall return a verdict of "guilty" or "not guilty". All verdicts shall be by majority vote. The Judge shall render judgment in accordance with the jury verdict.
i. Hung Jury:
(1) If the jury is unable to reach a majority verdict, the Judge shall declare a mistrial and dismiss the jury.
(2) The case may be reset for trial upon an immediate oral motion by the prosecution or upon a written motion within 15 days. As no verdict was reached, the provisions of double jeopardy do not apply.
(3) If a motion to reset for trial is not immediately made, the defendant shall be released from custody and from all conditions of bail except personal recognizance. At the end of 15 days, if the motion to reset has not been filed, the Judge shall dismiss the case and prosecution may not be renewed.
k. Jury Fees - Each juror who serves upon a jury shall be entitled to a fee not less than the Federal minimum hourly wage scale. Each juror shall receive pay for any portion of a day served, plus travel allowance. Total pay, excluding travel allowance, shall not exceed eight hours per day.
Sec. 4 Misconduct by the Prosecutor
If the prosecutor purposely does or causes to be done any act of misconduct intended to prejudice the case against the defendant, the Court may dismiss the case upon its own or the defendant's motion.
Sec. 5 Fees and Expenses
a. Payment by Tribe or Defendant:
(1) Fees and expenses established in this Code and designated as payable by the Tribe shall be paid by the Tribe. However, such expenses in an amount up to $50.00 may be charged to the defendant as costs. If he's adjudged guilty, and if the Judge finds that the imposition of costs are proper.
(2) Costs shall be enforced against a defendant in the same manner as a fine imposed upon conviction. No defendant shall be jailed because of his inability to pay costs immediately. Defendants shall be given a reasonable time to pay costs or shall be allowed to make installment payments.
Sec. 6 Order of Trial
a. Reading Complaint and Receiving Defendant's Plea - When the jury has been sworn, or if there is no jury, when the Judge is ready, the complaint shall be read, the defendant shall be advised of his right to change his "not guilty" plea at any time, and the defendant shall state his plea.
b. Opening Statements - The prosecution shall present an opening statement The defendant or his representative may then make an opening statement or reserve the statement to be made immediately prior to the presentation of evidence on behalf of the defendant.
c. Presenting Evidence:
(1) The prosecution shall first present its evidence in support of the charge and, when finished, rest its case
(2) The defendant may then offer evidence in his defense.
d. Instructing the Jury - Following presentation of evidence in a jury trial, the Judge shall instruct the jury.
e. Closing Arguments - When all evidence has been presented, the prosecution may make the first closing argument. The defense may then make a closing argument
f. Verdict by Judge or Jury - At the end of closing arguments and after any motions the Judge allows, the Judge shall make his findings and decision, or if there is a jury, the jury shall deliberate in secret, and shall report its decision to the judge.
g. Verdict - Upon receiving the decision of the jury, the Judge shall enter judgment upon the verdict, if any, or shall proceed if the jury is unable to agree by majority vote.
Sec. 7 Burden of Proof
A defendant, in a criminal proceeding, is presumed innocent and the charges against him must be proven beyond a reasonable doubt in order to find him guilty.
Sec. 8 Rules of Evidence
In any trial pursuant to this Code, the Rules of Evidence as set forth in this Code shall apply.
Sec. 9 Regulation of Conduct in the Courtroom
a. Disruptive Conduct:
(1) Any person, including the defendant, who repeatedly interferes with the orderly course of a proceeding by disorderly or disruptive conduct, may be ordered removed from the courtroom, cited for contempt, or both, by the Judge
(2) No such order or citation shall be issued until after the person has been fully and fairly informed that his conduct is unacceptable and has been warned of the consequences of continued misconduct.
(3) A person who has been removed from the courtroom may return upon his promise of good conduct. If his misconduct continues after his return, the Court may proceed as provided in Paragraph (1) of this Subsection.
b. News Coverage - The taking of photographs in the courtroom during judicial proceedings, or the radio or television broadcasting of judicial proceedings from the courtroom, shall not be permitted unless there are special circumstances, all of the parties consent, and the judge feels that the purpose of justice will not be thwarted.
Sec. 10 Disability of a Judge.
a. Trial by Another Judge - If the presiding Judge at a criminal trial determines on his own motion that he is unable to proceed, or if the Council determines the Judge is unable to proceed with a trial by reason of death, sickness, or other disability, any other Tribal Judge may proceed with the trial, upon certifying in writing as part of the record, that he has familiarized himself with the record of the trial
b. New Trial - If a substitute Judge feels that he can not fairly proceed with the trial, a new trial may be ordered.
c. Sentencing - If the only responsibility of the substitute Judge is the sentencing of the defendant, a new trial shall not be ordered, but the Judge may hold a sentencing hearing at which he will receive and consider evidence relating to sentencing. Any sentencing hearing shall comply with all procedural requirements of this Code.
d. Delay - If the disability of the Judge and finding a replacement causes a delay in the trial of more than 10 days for a defendant in custody or of more than 30 days for a defendant not in custody, the case may be dismissed upon finding that substantial rights of the defendant have been prejudiced by the delay.
H. PROCEDURE AFTER A VERDICT OR AFTER TRIAL
Sec. 1 Judgment and Sentence
a. Judgment - In every case, upon a conviction, a verdict of "not guilty", a failure to reach a verdict, or any other disposition of the case, the Judge shall sign a judgment which the Court Clerk shall file as part of the record. The Clerk shall give a copy of the judgment to the defendant.
b. Contents of Judgment - The judgment shall set forth at least:
(1) The names of the parties and the case number.
(2) The offense(s) charged.
(3) The plea.
(4) The disposition.
(5) The verdict returned by the jury or the Court.
(6) Terms of the sentence or discharge.
(7) The signature of the Judge.
c. Sentence:
(1) Sentence shall be imposed as soon as possible, but in no case more than 30 days after the date of conviction. Before sentencing, the Judge may commit the defendant to jail or may continue or alter the bail. Before imposing sentence, the Judge shall address the defendant personally and ask him if he or his representative wish to make a statement or to present any information relevant to sentencing.
(2) At the time of sentencing, in a case which has gone to trial on a plea of "not guilty", the Court shall orally advise the defendant of his right to appeal.
(3) the determination and imposition of sentence shall be in accord with the provisions on sentencing set forth.
(4) A defendant held in jail pending the imposition of sentence shall earn credit toward the sentence imposed at the rate of two days for each one day served, when the time is in excess of 10 days served while awaiting sentencing, unless the delay is for the purpose of preparing a presentence report or as a result of some action of the defendant.
Sec. 2 Appeal
a. Right to Appeal; Time for - Subject to the provisions of Title One of this Code, an appeal may be taken by any person convicted upon a plea of "not guilty", who files a written notice of appeal with the Court Clerk within 30 days after judgment is filed. The time for appeal shall not begin to run against a defendant until reasonable effort has been made to serve the defendant with a copy of the judgment
b. Bail on Appeal - Any person convicted of an offense under this Code, who has filed a timely appeal, shall be considered for release pending hearing of the appeal.
c. Appeal by the Prosecution - the prosecution has no right to appeal a judgment of acquittal. The prosecution may appeal decisions upon pretrial motions and all other orders of the Court that allegedly deny the prosecution its rights under this Code and may continue to renew a prosecution when doing so does not place the defendant in double jeopardy and is not otherwise prohibited.
Sec. 3 Granting of a New Trial
a. Grounds - The Judge may grant a convicted defendant a new trial if justified on the grounds of newly discovered evidence, jury misconduct, or for other good reasons when a new trial will serve the purpose of justice.
b. Procedure - If the trial was by the Judge without a jury, the Judge may vacate any judgment filed, take additional testimony and make a new disposition and a new judgment. If the trial was by jury, a new trial may be held either by the Judge or a jury as requested by the defendant
c. Time - A motion for a new trial based on the grounds of newly discovered evidence may be made before the final judgment is filed or within three months after filing of judgment. If an appeal is pending, the Trial Court may not consider a motion for a new trial until the case has been returned to it by the Appeals Court. The three months time for filing a motion for a new trial shall not run while the case is being appealed.
Sec. 4 Illegal Sentences and Clerical Mistakes
a. Illegal Sentences - The Court may correct a sentence that is in violation of this Code at any time, on its own motion or on the motion of any party
b. Clerical Mistakes - Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission, may be corrected by the Court at any time and after such notice, if any, as the Judge orders
Sec. 5 Effect of Irregularities
a. In Substantial Mistakes - Neither a failure to follow the rules of this Code as to form or content of any pleading or proceeding, nor an error or mistake in the form or content shall render a pleading or proceeding invalid, unless the defendant has been prejudiced or unless this Code requires otherwise.
b. Denial of Rights and Prejudicial Error - Whenever the Court or any person denies to a defendant any right which is absolute under this Code or the Indian Civil Rights Act, or commits any error, makes any mistake or denies any right in such a way that is prejudicial to the defendant, the defendant shall have an immediate right to appeal. This right of appeal is in addition to any other remedy for the denial or error provided elsewhere in this Code or under the Indian Civil Rights Act.
Sec. 6 Sentencing in General
a. General Applicability - A person found guilty of an offense under this Code shall be sentenced in accordance with this Code.
b. Applicability of Later Laws - Laws relating to offenses enacted or adopted after the effective date of this Code shall be classified for sentencing purposes.
c. Class of Offenses - Offenses shall be designated as Class A, B, C, D, or E offenses.
d. Unclassified Offenses - My offense for which no penalty or sentence is specified or which is not specifically designated as a certain class of offense shall be treated for purposes of sentencing and punishment as a Class D offense, unless a different class is more appropriate as determined by the Judge.
Sec. 7 Maximum Find and Sentences of Imprisonment
a. Punishment for Each Class of Offense - As adopted by the Tribal Council on 12 October 2000, a person convicted of an offense may be sentenced as specified for the specific offense as follows:
(1) Class A - A fine not to exceed $5,000.00, or imprisonment not to exceed one year, or both fine and imprisonment.
(2) Class B - A fine not to exceed $5,000.00, or imprisonment not to exceed nine months, or both fine and imprisonment.
(3) Class C - A fine not to exceed $5,000.00, or imprisonment not to exceed six months, or both fine and Imprisonment.
(4) Class D - A fine not to exceed $5,000.00, or imprisonment not to exceed 30 days, or both fine and imprisonment.
(5) Class E - A fine not exceed $100.00, with no imprisonment time.
b. In addition to the sentences listed, any further punishment or penalty specifically established for a particular offense may be imposed.
c. Imprisonment Limits Apply to all Restraints of Liberty - The limits on terms of imprisonment listed Subsection "a", of this Section, apply to imprisonment in any detention facility and also to full or part time residents or to confinement in a medical or rehabilitative facility as required as a condition of probation or parole or otherwise ordered by the Court.
d. Additional Costs and Restitution - In addition to the fines listed in Subsection "a", of this Section, the Court may assess costs as outlined in Chapter G, Section 4, Subsection "a", Paragraph's (1) and (2), of this Title. The Court may also order the defendant to make restitution to the victim to compensate the victim for damages from the commission of the offense.
e. Work for Tribe; Credit Toward Fines and Costs:
(1) The Tribal Judge may sentence a defendant to work for the benefit of the Tribe (commonly referred to as "community service") for credit against a fine or imposition of costs, instead of or in addition to any other sentence which might be imposed. Credit shall be granted at the rate of five dollars ($5.00) per eight (8) hour day worked.
(2) The credit provided under Paragraph (1), of this Subsection, shall also apply for any work the defendant performs during his status as a defendant, whether while imprisoned or not and whether part of a sentence or not, and whether performed before or after a finding of "guilty". Work the defendant performs for himself is excluded from this provision.
Sec. 8 Payment of Fines and Other Monies
a. Cash or Equivalent - Fines shall be paid in cash, unless upon request of the defendant the Judge allows payment by goods of like value, or by other means.
b. Installments - The Judge may, upon the request of a defendant or upon his own motion, allow any fines or other required payments to be paid in installments or on conditions tailored to the means of the defendant
c. Imprisonment After Failure to Pay - If the defendant willfully fails to pay the fine or installments on a fine, the Judge may find him in Contempt of Court
d. Canceling Fines - When justice requires, the Judge may modify the terms and conditions of any required payment
e. Use of Fines - Fines and other monies collected as a result of the commission of a criminal offense under this Code, shall go into the general uncommitted funds of the Tribe and shall not be specifically designated for the expense of law enforcement. This Subsection shall not apply to restitution ordered paid to the victims of an offense, which is the property of the recipient.
Sec. 9 Factors to be Considered When Imposing Sentence
The sentence imposed in each case should be the minimum penalty consistent with the protection of the public, the seriousness of the offense and the rehabilitative needs of the defendant. In determining the nature and duration of the penalty to be imposed, the Court shall take into consideration the previous conduct of the defendant, the circumstances under which the offense was committed, whether the offender has attempted to make amends, and the state of the offender's mental health at the time of the offense. The Court should also give consideration to the extend of the defendant's resources and the needs of his dependents. However, the Judge has the final determination on the sentence to be imposed.
Sec. 10 Credit for Time Served
a. Amount of Credit Earned - Credit against a term of imprisonment imposed follow a judgment of "guilty" shall be given to a defendant at the rate of two days for each day spent in custody as a result of the criminal charge for which the sentence is imposed, for time spent in custody prior to trial or pending sentencing, in accordance with Section 1, Subsection "c", Paragraph (4), of this Chapter.
b. Credit for Work - For each day the defendant performs Tribal work, while in custody, he shall be entitled to two days credit on his sentence. However, if the defendant is performing Tribal work to pay a monetary fine as well as jail time, credit shall only be applied to one portion of the sentence at a time, unless ordered otherwise by the Judge.
c. When Computed - Credit as provided in this Section should be computed and considered by the Court at the time of sentencing and at other times as appropriate.
Sec. 11 Probation
a. Power to Grant Probation - After a judgment of "guilty" has been entered where a sentence of imprisonment has been imposed, the Judge may, at his discretion, suspend the serving of such sentence and release the defendant on probation, on that person's signed pledge of good conduct for the duration of the probation.
b. Conditions of Probation - The Judge may attach further and reasonable conditions of probation, including but not limited to a requirement that the defendant do one or more of the following:
(1) Serve a lesser period of imprisonment.
(2) Undergo available medical, psychiatric, or other rehabilitative treatment, and enter and remain in a specified institution when required for that purpose, for a period not to exceed the maximum possible imprisonment time.
(3) Refrain from all use of intoxicants, narcotics, or drugs unless taken under a written doctor's order.
(4) Report as directed to a probation officer and permit the officer to visit his home.
(5) Remain within the jurisdiction of the Court, and to notify the probation officer of any change of address or employment.
(6) Not to associate with certain persons or frequent certain establishments.
(7) Satisfy any other conditions reasonably related to the rehabilitation of the defendant and not incompatible with his freedom of conscience or unduly restrictive of his liberty.
c. Notice of Probation Conditions - the defendant shall be given a written statement of the requirements of his probation, stated with sufficient specificity to enable him to act accordingly.
d. Length of Probation - The length of the period of probation shall not exceed one year.
Sec. 12 Revocation of Probation
a. Probation Violators to Serve Sentence - Any person who violates the terms of his probation shall be required by the Judge to serve the sentence originally imposed.
b. Arrest for Probation Violation - A defendant may be taken into custody for a violation of probation as follows:
(1) Upon a showing of probable cause that a violation has occurred, the Judge may summon the defendant to appear before him or may issue a warrant for his arrest.
(2) A probation or law enforcement officer, having probable cause to believe that the defendant has failed to comply with a requirement imposed as a condition of probation, or that the defendant has committed another offense, may arrest defendant without a warrant
c. Hearing on Probation Violation - Probation shall not be revoked except after a hearing held following written notice to the defendant on the grounds on which the revocation is proposed. At the hearing, the defendant shall have the right to confront and cross-examine witnesses against him, to offer evidence on his behalf, and to have a representative.
d. Time for Hearing - Whenever a defendant is taken into and held in custody for probation violation, he is entitled to a bail hearing and to a hearing on the revocation of his probation within 10 Tribal working days of his arrest, unless he requests further time to prepare his defense, or unless he is being held for the commission of another and separate offense.