Laws of the Confederated Salish and Kootenai Tribes, Codified

TITLE II, CHAPTER 2 - CRIMINAL PROCEDURE

Part 1
General Preliminary Provisions

2-2-101. Purpose and construction. The provisions of this chapter shall be construed in accordance with Tribal custom as well as to achieve the following general goals:

(1) to provide for the just determination of every criminal proceeding;

(2) to protect the rights of individuals; and

(3) to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.

2-2-102. General definitions. Unless otherwise specified in a particular section, the following definitions shall apply to this chapter:

(1) "Arraignment" means the formal act of calling a defendant into open court in order that the defendant may enter a plea on the charge(s) against her or him.

(2) "Arrest" means formally taking a person into custody in accordance with the manner authorized by law.

(3) "Bail" means the security given, in the form of cash, stocks, bonds, real property, or any other form of approved collateral, for the primary purpose of insuring the presence of the defendant in a pending criminal proceeding.

(4) "Charge" means a written statement presented to the Court accusing a person of commission of an offense, and includes a complaint or information.

(5) "Citation" means a written direction that is issued by a law enforcement officer and that requests a person to appear before the court at a stated time and place to answer a charge for the alleged commission of an offense.

(6) "Conditional release" means releasing a defendant from lawful custody, pending a criminal proceeding, after placing specific restrictions or regulations on the activities and associations of the defendant.

(7) "Contents", when used with respect to oral, wire, radio, television, satellite, or computer communications, means not only the actual words or substances of the communication, but any information concerning the implied or intended meaning of the communication, the existence of the communication, and the identities of the parties to the communication as well.

(8) "Contraband" means any property which is unlawful in itself, used for any unlawful purpose, or used in connection with or derived from any unlawful property or transaction.

(9) "Conviction" means a judgment or sentence entered upon a plea of guilty or no contest, or upon a verdict or finding of a defendant's guilt rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury. Once a conviction has been expunged, it is no longer considered a conviction under Tribal law.

(10) "Coroner" means a law enforcement officer, or other person designated by the Tribal Council, to inquire into the causes and circumstances of any death occurring due to violence or unexplainable causes.

(11) "Counsel" means an attorney or a Tribal Advocate.

(12) "Defendant" means a person who has been charged by the Tribes of allegedly violating a Tribal law and is appearing before the Tribal Court as a result of the charge or charges.

(13) "Elder" or "older person" means a Tribal member or other individual residing on the Reservation who is

(a) 60 years of age or older;

(b) determined by the Court to be an elder, or

(c) at least 45 years of age and unable to protect himself or herself from abuse, neglect, or exploitation because of a mental disorder or physical impairment or because of frailties or dependencies brought about by age or disease or alcoholism.

(14) "Family member" or "household member" means a spouse, former spouse, person related by blood or marriage, person residing with the offender due to adoption or foster placement, any person currently cohabiting with the offender at any time during the year immediately preceding the commission of any alleged abuse.

(15) "Frisk" means an external patting of a person's outer clothing.

(16) "Included offense" means an offense that:

(a) is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(b) consists of an attempt to commit the offense charged or to commit an offense otherwise included in the offense charged; or

(c) differs from the offense charged only in the respect that a less serious injury or risk to the same person, property, or Tribal interest or a lesser kind of culpability suffices to establish its commission.

(17) "Indian" means a person who is enrolled in a federally recognized Indian tribe or who is recognized as a Canadian Indian.

(18) "Judgment" means an adjudication by the Tribal Court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, the judgment includes the sentence pronounced by the Court.

(19) "Law enforcement officer" means any person who by virtue of his or her office or employment by the Tribes or by another government is vested by law with a duty to

(a) enforce Tribal or federal civil regulatory laws,

(b) maintain public order, or

(c) make arrests for offenses while acting within the scope of his or her authority.

(20) "Mental disorder" means any organic, mental, or emotional impairment which has substantial adverse effects on an individual's cognitive or volitional functions. It does not include an abnormality manifested only by repeated criminal or other antisocial behavior.

(21) "Notice to appear" means a written document, issued by a clerk of the Tribal Court or a law enforcement officer, requesting the named person to appear before a judge at the stated time and date in Tribal Court to answer a charge for the alleged commission of an offense.

(22) "Offender" means a person who has been convicted of an offense enumerated in Chapter 1 of this Title.

(23) "Offense" means a violation of a penal statute contained in the Code of Criminal Offenses, Chapter 1, Title II, of the CSKT Laws, Codified.

(24) "Parole" means the release from jail of a prisoner by the Court prior to the expiration of the prisoner's term, subject to any conditions imposed by the Court and the supervision of the Tribal Probation Officer.

(25) "Personal recognizance" means the release from lawful custody of a defendant upon his or her promise to appear in court at all appropriate times.

(26) "Probation" means the release by the Tribal Court without imprisonment, of an offender a defendant found guilty of a crime upon verdict or plea, subject to conditions imposed by the Tribal Court, and subject to supervision by the Tribal Probation Officer or his or her designee upon direction of the Court.

(27) "Sentence" means the punishment imposed on an offender by the court and may include incarceration, labor on Tribally-owned property while incarcerated, restitution, or any combination thereof, together with participation in any rehabilitative programs ordered by the court.

(28) "Statement" means

(a) a writing signed or otherwise adopted or approved by a person;

(b) a mechanical, electronic, or other recording of a person's oral communications or a transcript thereof; or

(c) a writing containing a verbatim record as a summary of a person's oral communication(s).

(29) "Subpoena" means a court order commanding a person to:

(a) appear at a certain time and place to give testimony upon a certain matter; or

(b) produce specific books, records, papers, documents, or other objects as may be necessary and proper; or

(c) do both (a) and (b).

(30) "Summons" means a written order issued by the court that commands a person to appear before the court at a stated time and place to answer a charge for the offense set forth in the order.

(31) "Temporary roadblock" means any structure, device, or other method used by law enforcement officers to control the flow of traffic through a point on a highway or road whereby all vehicles may be slowed or stopped.

(32) "Witness" means a person whose testimony is desired in a criminal action, prosecution or proceeding.

2-2-103. Criminal jurisdiction. (1) An Indian defendant is subject to prosecution in Tribal Court for any offense enumerated in Chapter 1 of this Title or another Tribal statute committed totally or partially within the exterior boundaries of the Flathead Reservation.

(2) An offense is committed partially within the Flathead Reservation if either the conduct which is an element of the offense or the result which is an element occurs within the exterior boundaries of the Flathead Reservation.

(3) An offense based on an omission to perform a duty imposed by Tribal law is committed within the exterior boundaries of the Flathead Reservation, regardless of the location of the defendant at the time of the omission.

2-2-104. Rights of defendant. (1) In all criminal proceedings, the defendant shall have the following rights:

(a) to be released from custody pending trial upon payment of reasonable bail;

(b) to appear and defend in person, by Tribal Defender, by tribal member, or by private counsel obtained at defendant's own expense, as provided in Section 2-2-504.

(c) to be informed of the nature of the charges pending against her or him and to have a copy of those charges;

(d) to confront and cross examine all prosecution or hostile witnesses;

(e) to compel by subpoena:

(i) the attendance of any witnesses necessary to defend against the charges; and

(ii) the production of any books, records, documents, or other things necessary to defend against the charges;

(f) to have a speedy public trial by judge or a jury, unless the right to a speedy trial is waived or the right to a jury trial is waived by the defendant, as provided in Section 2-2-1001;

(g) to appeal any final decision of the Tribal Court to the Tribal Court of Appeals;

(h) not to be twice put in jeopardy by the Tribal Court for the same offense; and

(i) not to be required to testify.

(2) No inference may be drawn from a defendant's exercise of the right not to testify.

2-2-105. Subsequent prosecutions. (1) A subsequent prosecution will not constitute double jeopardy when the previous prosecution was properly terminated under any of the following circumstances:

(a) the defendant consents to the termination or waives, by motion an appeal upon a judgment of conviction or otherwise, the right to object to the termination of the prosecution;

(b) the Tribal Court finds that a termination, other than by acquittal, is necessary because:

(i) it is impossible to proceed with the trial in conformity with the law;

(ii) there is a legal defect in the proceeding that would make any judgment entered upon a verdict reversible as a matter of law;

(iii) prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the Tribes;

(iv) the jury cannot agree upon a verdict; or

(v) a false statement of a juror on voir dire prevents a fair trial;

(c) the former prosecution occurred in a court which lacked jurisdiction over the defendant or the offense;

(d) the subsequent prosecution was for an offense which was not completed when the former prosecution began; or

(e) there was a transfer of jurisdiction to another authority.

(2) The following actions will not constitute an acquittal of the same offense if the complaint was:

(a) dismissed for insufficiency in form or substance;

(b) dismissed without prejudice upon a pretrial motion; or

(c) discharged for want of prosecution without a judgment of acquittal.

Part 2
Investigative Procedures

2-2-201. Investigative subpoenas. (1) Whenever the Tribal Prosecutor has a duty to investigate alleged unlawful activity, a judge may cause a subpoena to be issued commanding a specified person to appear before the Tribal Prosecutor or a designated agent of the Prosecutor and give testimony and produce such books, records, papers, documents, and other objects as may be necessary and proper to the investigation.

(2) No person subpoenaed under this provision is required to give testimony or produce any evidence which may incriminate her or him, unless granted immunity.

(3) An investigative subpoena may only be issued by a judge when supported by an affidavit of the Prosecutor sufficient to show that the administration of justice requires the testimony or information being sought.

2-2-202. Relief from improper subpoena. A person aggrieved by a subpoena issued pursuant to this part may, within a reasonable time, file a motion to dismiss the subpoena and, in the case of a subpoena duces tecum, to limit its scope. The motion must be granted if the subpoena was improperly issued or, in the case of a subpoena duces tecum, if it is overly broad in its scope.

2-2-203. Conduct of investigative hearing. (1) Before a judge, the prosecutor may examine under oath all witnesses subpoenaed pursuant to this part. Testimony must be recorded. The witness has the right to have counsel present at all times. If the witness is indigent as defined in Section 1-2-402, the witness entitled to representation by the Tribal Defenders Office. Failure to obey, without just cause, a subpoena served under this part is punishable for contempt of court.

(2) Proceedings conducted under this part are secret except to the extent that they supply probable cause for arresting or charging a defendant in a subsequent criminal action or are admissible in a later criminal trial. A person who divulges the contents of the Prosecutor's affidavit or the proceedings without legal privilege to do so is punishable for contempt of court.

(3) All penalties for perjury or preparing, submitting, or offering false evidence apply to proceedings conducted under this part.

2-2-204. Self-incrimination -- immunity. (1) No person subpoenaed to give testimony pursuant to this part may be required to make a statement or to produce evidence that may be personally incriminating.

(2) The prosecutor may, with the approval of the judge who authorized the issuance of the subpoena, grant a person subpoenaed immunity from the use of any compelled testimony or evidence or any information directly or indirectly derived from the testimony or evidence against that person in a criminal prosecution.

(3) Nothing in this part prohibits a prosecutor from granting immunity from prosecution for or on account of any transaction, matter, or thing concerning which a witness is compelled to testify if the prosecutor determines, in the prosecutor's sole discretion, that the best interest of justice would be served by granting immunity.

(4) After being granted immunity, no person may be excused from testifying on the grounds that the testimony may be personally incriminating. Immunity may not extend to prosecution or punishment for false statements given pursuant to the subpoena.

(5) Nothing in this part requires a witness to divulge the contents of a privileged communication unless the privilege is waived as provided by law.

2-2-205. Authorization for search and seizure. A search of a person, object, or place may be made and evidence, contraband, and persons may be seized when a search is made:

(1) by the authority of a search warrant; or

(2) in accordance with federally judicially recognized exceptions to the warrant requirement.

2-2-206. Scope of search after arrest. When a lawful arrest is effected, a law enforcement officer may make a reasonable search of the person arrested and the area within such person's immediate presence, without a search warrant, for the purpose of:

(1) protecting the officer from attack;

(2) discovering and seizing the fruits of the crime;

(3) discovering and seizing instruments, articles, or other property which may have been used in the commission of the offense, or which may constitute evidence of the offense, in order to prevent its destruction; or

(4) preventing the person from escaping.

2-2-207. Execution of a search warrant. (1) A "search warrant" is a court order:

(a) in writing;

(b) in the name of the Tribes;

(c) signed by a judge;

(d) particularly describing the premises, property, place, or person to be searched and the instruments, articles, or items to be seized; and

(e) directed to a specific law enforcement officer commanding the officer to search for and seize the person or property designated in the warrant and bring the person or property before a judge.

(2) Every judge has the authority to issue warrants for the search of persons, premises, and property and the seizure of goods, instruments, articles, or items.

(3) Search warrants shall only be executed by law enforcement officers between the hours of 6:00 a.m. and 10:00 p.m., unless the issuing judge otherwise authorizes the warrant to be served anytime day or night.

(4) Before entering the premises named in a search warrant, the law enforcement officer shall give appropriate notice of her or his identity, authority and purpose to the person to be searched, or to the person in apparent control of the premises to be searched.

(5) Before undertaking any search or seizure pursuant to the warrant, the executing law enforcement officer shall read and give a copy of the original or duplicate original warrant to the person to be searched, or to the person in apparent control of the premises to be searched. If the premises are unoccupied or there is no one in apparent control, the law enforcement officer shall leave a copy of the warrant suitably affixed to the premises.

(6) If the warrant is executed, a duplicate copy and a receipt for all articles taken shall be left with any person at the place from which any items were seized. The inventory of the items shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if present, or in the presence of at least one credible person other than the applicant for the warrant.

(7) Failure to give or leave a receipt of all items seized shall not render the seized property inadmissible at any subsequent trial.

(8) Only reasonable and necessary force may be used to execute a search warrant.

(9) The executing officer shall return the warrant to the Tribal Court within the time limit shown on the face of the warrant. A warrant is only effective within 10 days of the date of issuance. Warrants not executed within such time limits are void.

(10) A warrant issued under this section shall not be held invalid due to minor irregularities in the warrant which do not substantially affect any rights of a person named in the warrant.

2-2-208. Grounds for a search warrant. (1) No search warrant shall issue except upon a written or oral sworn statement of a law enforcement officer or Tribal prosecutor, based upon reliable information and stating facts sufficient to support probable cause to believe that an offense has been committed, particularly describing the place, object or persons to be searched and who or what is to be seized, which sufficiently shows probable cause exists to indicate a search will discover:

(a) stolen property, embezzled property, contraband or otherwise criminally possessed property;

(b) property which has been or is being used to commit a criminal offense; or

(c) property which constitutes evidence of the commission of a criminal offense.

(2) When a warrant is requested based on oral testimony, communicated by telephone or otherwise, a judge shall:

(a) immediately place the requesting person(s) under oath;

(b) record by voice recording device if available, or otherwise make a verbatim record, of the requesting person's statement and certify the accuracy of this record;

(c) enter on an original warrant the grounds indicating probable cause exists to issue a warrant and the scope of the search warrant as requested or as modified;

(d) sign the original warrant and enter on the face of the original warrant the exact time when the warrant was ordered to be issued; and

(e) direct the requesting party to:

(i) prepare a document identical to the original warrant to be known as a duplicate original warrant;

(ii) sign the duplicate original warrant on behalf of the judge; and

(iii) enter the exact time of execution on the face of the duplicate original warrant.

(3) A judge may require the applicant to furnish further testimony or documentary evidence in support of the application for the warrant.

2-2-209. Scope of search. (1) The scope of any search shall only include those areas specifically authorized by the warrant and is limited to the least restrictive means reasonably necessary to discover the persons or property specified in the warrant.

(2) Upon discovery of the person or property named in the warrant, the law enforcement officer shall take possession or custody of the person or property and search no further under the authority of the warrant.

(3) If, in the course of an authorized search, the law enforcement officer discovers property not specified in the warrant and the officer has probable cause to believe the discovered property constitutes evidence of the commission of a criminal offense, the officer may also take possession of that property.

2-2-210. What may be seized with search warrant. A warrant may be issued under this section to search for and seize any:

(1) evidence;

(2) contraband; or

(3) person for whose arrest there is probable cause, for whom there has been a warrant of arrest issued, or who is unlawfully restrained.

2-2-211. Seizures related to controlled substances. (1) As used in this statute "controlled substance" means any substance designated as a dangerous drug pursuant to Section 2-1-1401.

(2) The following are subject to forfeiture:

(a) all controlled substances that have been manufactured, distributed, prepared, cultivated, compounded, processed, or possessed in violation of 2-1-1401;

(b) all money, raw materials, products and equipment of any kind that are used or intended for use in manufacturing, preparing, cultivating, compounding, processing, delivering, importing, or exporting any controlled substance in violation of 2-1-1401 except items used or intended for use in connection with quantities of marijuana in amounts of less than 60 grams;

(c) all property that is used or intended for use as a container for anything enumerated in subsection (a) or (b) of this section;

(d) all books, records, research products and materials, including formulas, microfilm, tapes and data, that are used or intended for use in violation of 2-1-1401; and

(e) all drug paraphernalia as defined in 2-1-1402(1).

(3) All property subject to forfeiture under subsection (2) of this section may be seized by an officer under a search warrant. Seizure without a warrant may be made if:

(a) the seizure is incident to an arrest or a search warrant issued for another purpose;

(b) the property subject to seizure has been the subject of a prior judgment in favor of the Tribes in a criminal proceeding or a forfeiture proceeding based on this chapter;

(c) the officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

(d) the officer has probable cause to believe that the property was used or is intended to be used in violation of 2-1-1401.

(4) Controlled substances that are possessed, transferred, offered for transfer, manufactured, prepared, cultivated, compounded, or processed in violation of 2-1-1401 and that are seized under the provisions of this part are contraband and shall be summarily forfeited to the Tribes. Controlled substances which are seized or come into the possession of the Tribes and the owners of which are unknown are contraband and shall be summarily forfeited to the Tribes.

2-2-212. Procedures for seizures related to controlled substances. (1) Property seized pursuant to Section 2-2-211 (2)(a), (c), (d), or (e) is subject to summary forfeiture.

(2) Property seized pursuant to Section 2-2-211 (2)(b) is subject to the following procedure. An officer who seizes such property shall, within 45 days of the seizure, file a petition to institute forfeiture proceedings with the Clerk of the Court. The Clerk shall issue a summons at the request of the petitioner, who shall cause the same to be served upon all owners or claimants of the property as provided by the civil procedures of this Code.

(3) Within 14 days after the service of the petition and summons, the owner or claimant of the seized property shall file a verified answer to the allegations concerning the use of the property described in the petition to institute forfeiture proceedings. No extension of the time for filing the answer may be granted and failure to answer within 14 days bars the owner or claimant from presenting evidence at any subsequent evidentiary hearing unless extraordinary circumstances exist.

(a) If a verified answer to the petition is not filed within 14 days after the service of the petition and summons, the court upon motion shall order the property forfeited to the Tribes.

(b) If a verified answer is filed within 14 days, the forfeiture proceeding must be set for hearing without a jury no sooner than 60 days after the answer is filed. Notice of the hearing must be given in the manner provided for service of the petition and summons.

(c) An owner of property who has a verified answer on file may prove that the use of the property occurred without his or her knowledge or consent;

(d) A claimant of a security interest in the property who has a verified answer on file must prove that his security interest is bona fide and that it was created after a reasonable investigation of the moral responsibility, character, and reputation of the purchaser and without knowledge that the property was being or was to be used for the purpose charged. However, no person who has a lien dependent upon possession for compensation to which he is legally entitled for making repairs or performing labor upon, furnishing supplies or materials for, or providing storage, repair, or safekeeping of any property and no person doing business within the Flathead Reservation under any applicable law relating to financial institutions, loan companies or licensed pawnbrokers or regularly engaged in the business of selling the property or of purchasing conditional sales contracts for the property may be required to prove that his security interest was created after a reasonable investigation of the moral responsibility, character, and reputation of the owner, purchaser, or person in possession of the property when it was brought to such person.

(4) If the court finds that the property was not used for the purpose charged or that the property was used without the knowledge or consent of the owner, it shall order the property released to the owner of record as of the date of the seizure.

(5) If the court finds that the property was used for the purpose charged and that the property was used with the knowledge or consent of the owner, the property shall be disposed of as follows:

(a) If proper proof of his claim is presented at the hearing by the holder of a security interest, the court shall order the property released to the holder of the security interest if the amount due him is equal to or in excess of the value of the property as of the date of seizure, it being the purpose of this part to forfeit only the right, title, or interest of the owner. If the amount due the secured creditor is less than the value of the property, the property, if it is sold, must be sold at public auction by the Tribal police, or the police may return the property to the secured creditor without an auction.

(b) If no claimant exists and the Law and Order Department wishes to retain the property for its official use, it may do so. If such property is not to be retained, it must be sold.

(c) If a claimant who has presented proper proof of his or her claim exists and the Law and Order Department wishes to retain the property for its official use, it may do so provided it compensates the claimant in the amount of the security interest outstanding at the time of the seizure.

(6) In making a disposition of property under this part, the court may take any action to protect the rights of innocent persons.

(7) Whenever property is seized, forfeited and sold under the provisions of this part, the net proceeds of the sale must be distributed as follows:

(a) to the holders of security interests who have presented proper proof of their claims, if any, up to the amount of their interests in the property,

(b) the remainder, if any, to the Tribal Police Drug Enforcement Fund, and

(c) if the property was seized as a result of the cooperative efforts of the Tribal police and the Mission Mountain Drug Task Force, the remainder, if any, to the funds of the respective agencies in proportion to their involvement.

2-2-213. Disposition of seized property not associated with a drug-related crime. (1) A hearing may be requested before the Tribal Court within 10 working days of any seizure to determine the disposition of all property seized by law enforcement officers.

(2) Upon satisfactory proof of ownership, the property shall be delivered to the owner, unless such property is contraband or is to be used as evidence in a pending case.

(3) Non-contraband property taken as evidence shall be returned to the owner after final judgment has been rendered.

(4) Non-contraband property may be returned to the owner prior to final judgment upon application to and at the discretion of the court.

(5) Property confiscated as contraband or taken as evidence and of unknown ownership and unclaimed for six months shall become the property of the Tribes and may be:

(a) destroyed;

(b) sold at public auction;

(c) retained for the benefit of the Tribes;

(d) lawfully disposed of as ordered by the Tribal Court; or

(e) otherwise disposed of in accordance with Tribal Law.

2-2-214. Investigative stop. In order to obtain or verify an account of the person's presence or conduct or to determine whether to arrest the person, a law enforcement officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

2-2-215. Stop and frisk. A law enforcement officer who has lawfully stopped a person under Section 2-2-214:

(1) may frisk the person and take other reasonable steps necessary for protection if the officer has reasonable cause to suspect that the person is armed and presently dangerous to the officer or another person present;

(2) may take possession of any object that is discovered during the course of the frisk if the officer has probable cause to believe the object is a deadly weapon;

(3) may demand the name and present address of the person; and

(4) shall inform the person, as promptly as possible under the circumstances and in any case before questioning the person, that the officer is a law enforcement officer, that the stop is not an arrest but rather a temporary detention for an investigation, and that upon completion of the investigation, the person will be released if not arrested.

2-2-216. Roadblocks. (1) Law enforcement officers may use a temporary roadblock in order to apprehend a person suspected of committing a criminal offense.

(2) Unless exigent circumstances exist justifying a departure from the requirements given below, the minimum requirements to be met by law enforcement officers when establishing roadblocks include:

(a) establishing a roadblock at a point on the highway clearly visible at a distance of not less than 100 yards in either direction;

(b) placing a sign on the center line of the highway at the point of the roadblock displaying the word "stop" in letters of sufficient size and luminosity to be readable at a distance of not less than 50 yards in both directions either in daytime or darkness;

(c) placing a flashing or intermittent beam of light, which is visible to oncoming traffic for at least 100 yards, on the side of the road at the point of the roadblock; and

(d) placing warning signs, which will attract an oncoming driver's attention, at least 200 yards prior to the roadblock indicating that all vehicles should be prepared to stop.

2-2-217. Duration of stop. A stop authorized under Section 2-2-214 and Section 2-2-216 may not last longer than is necessary to effectuate the purpose of the stop.

Part 3
Commencing Prosecution

2-2-301. Citation. Prosecution for all Class A offenses shall be initiated by citation issued by a law enforcement officer upon Probable cause where the officer has attested to the truth of the allegations contained in the citation under oath.

2-2-302. Complaint. (1) All criminal prosecutions for Class B, Class C, Class D, and Class E offenses shall be initiated by complaint.

(2) The complaint is a written statement of the essential facts constituting the offense charged.

(3) Application for leave to file a complaint shall be made by a Tribal prosecutor to a judge. An application shall either be by affidavit supported by such evidence as the judge may require or be based on the sworn oral statement of a Tribal prosecutor made on the record. When leave to file a complaint has been granted, a warrant or summons may issue for the defendant's arrest or appearance. The Tribal prosecutor shall file the complaint within 30 days after leave of court is granted.

(4) The complaint shall contain:

(a) the name of the person accused, if known, or a description sufficient to identify the person accused of committing the alleged offense;

(b) the general location where the alleged offense was committed;

(c) the name and code citation of the alleged offense;

(d) a short, concise statement of the specific acts or omissions to act constituting an offense;

(e) the person, if any, against whom the alleged offense was committed, if known, except in the case of a sexual offense or an offense involving a minor;

(f) the date and approximate time of the commission of the alleged offense, if known; and

(g) the signature of a Tribal prosecutor.

(5) No minor omission from or error in the form of the complaint shall be grounds for dismissal unless the defendant is shown to be significantly prejudiced by the omission or error.

(6) A specific Class of an offense need not be included in the complaint. If a factual allegation is contained in the complaint which will supply the information needed to determine the degree of the offense, the Judge may use that information to determine bail. If no factual allegation is made, the offense shall be considered the least degree possible under the offense charged, for the purposes of setting bail.

(7) The judge issuing the complaint shall examine the complainant under oath to:

(a) ascertain the validity of the complaint;

(b) determine whether probable cause exists to believe that the defendant has committed the crime alleged; and

(c) decide whether an arrest warrant or a summons should issue.

2-2-303. Amending the complaint. (1) A complaint may be amended in matters of substance at any time prior to arraignment without leave of the Tribal Court.

(2) A complaint may be amended in matters of substance at any time not less than 5 days before trial with leave of the Tribal Court.

(3) When the prosecution seeks leave to amend a complaint as to a matter of substance, the prosecutor shall file:

(a) a motion for leave to amend stating the nature of the proposed amendment;

(b) a copy of the proposed complaint, as amended; and

(c) an affidavit setting forth facts and circumstances sufficient to show probable cause exists to justify the amended complaint.

(4) If the motion is timely filed and the amended complaint is supported by probable cause, the court shall grant leave to amend.

(5) The defendant shall be arraigned on the amended complaint without unreasonable delay.

(6) The defendant shall be given a reasonable period of time to prepare for trial on the amended complaint.

(7) The court may permit a complaint to be amended as to form at any time before a verdict or a finding if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.

(8) No charge may be dismissed because of a formal defect which does not tend to prejudice any substantial right of the defendant.

2-2-304. Joinder and severance of offenses and defendants. (1) Two or more offenses or different statements of the same offense may be charged in the same complaint in separate counts, or alternatively, if the offenses charged are of the same or similar character and are based on the same transactions connected together or constituting parts of a common scheme or plan. Allegations made in one count may be incorporated by reference in another count.

(2) The Tribal Court may order that different offenses or counts set forth in the complaint be tried separately or consolidated.

(3) The prosecution is not required to elect between the different offenses or counts set forth in the complaint and the defendant may be convicted of any number of the offenses charged, except as provided in section 2-2-306. Each offense of which the defendant is convicted must be stated in the verdict or the finding of the Tribal Court.

2-2-305. Discharge of codefendant. (1) When two or more persons are included in the same charge, the Tribal Court may, at any time prior to the defendants presenting their cases and upon application of the prosecutor, direct any defendant be discharged so that the defendant may be a witness for the prosecution.

(2) When two or more persons are included in the same complaint and the Tribal Court determines that there is insufficient evidence to prosecute one of the named defendants, the Tribal Court must discharge that defendant before the evidence is closed so that the discharged defendant may be a witness for the codefendant.

2-2-306. Multiple charges from the same transaction. (1) When the same transaction may establish the commission of more than one offense, a person charged with conduct may be prosecuted for each offense.

(2) A person may not, however, be convicted of more than one offense if:

(a) one offense is included in the other;

(b) one offense consists only of a conspiracy or other form of preparation to commit the other;

(c) inconsistent findings of fact are required to establish the commission of the offenses;

(d) the offenses differ only in that one is defined to prohibit a specific instance of conduct; or

(e) the offense is defined to prohibit a continuing course of conduct, and the defendant's course of conduct was interrupted, unless the law provides that the specific periods of the conduct constitute separate offenses.

Part 4
Arrest and Related Procedures

2-2-401. Method of arrest. (1) An arrest is made by actually restraining the person to be arrested or by that person voluntarily submitting to the custody of the person making the arrest.

(2) All necessary and reasonable force may be used in making an arrest, but the person arrested shall not be subject to any greater restraint than is necessary to hold or detain the person.

(3) All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to make an authorized arrest.

2-2-402. Time of making arrest. An arrest may be made any day of the week and at any time of the day or night. A person, however, cannot be arrested in her or his home or private dwelling at night for a Class A, Class B, or Class C offense without an arrest warrant specifically permitting arrest at night except for an offense involving damage to a person and the provisions of 2-2-403 are followed.

2-2-403. Arrest by law enforcement officer. (1) A law enforcement officer may arrest a person within the exterior boundaries of the Flathead Reservation under the following circumstances:

(a) when the officer has a warrant commanding that the person be arrested or when the officer believes on reasonable grounds that a warrant for the person's arrest has been issued by the Tribal Court or that a warrant for the person's arrest has been issued in another jurisdiction;

(b) when the person has committed an offense in the officer's presence; or

(c) when the officer has probable cause, as reflected by stated and provable facts, to believe the person to be arrested has committed an offense and exigent circumstances require an immediate warrantless arrest in order to prevent the person from

(i) fleeing the jurisdiction or concealing himself or herself to avoid arrest;

(ii) destroying or concealing evidence of the commission of an offense;

(iii) injuring another person; or

(iv) damaging property belonging to another.

(2) When an arrest is made without an arrest warrant, the arresting officer must inform the person to be arrested, as soon as practicable, of his or her authority to make the arrest and the reasons for making the arrest.

(3) A law enforcement officer may arrest a person, including at her or his place of residence, without an arrest warrant if the officer has probable cause to believe the person is committing or has committed abuse against an elder, family member, or household member, regardless of whether the offense took place in the responding law enforcement officer's presence.

(4) Arrest is the preferred response in situations:

(a) involving bodily harm to an elder, family member or household member;

(b) involving use or threatened use of a weapon against an elder, family member or household member; or

(c) where there appears to be imminent danger of bodily harm to another.

(5) If an arrest is made without a warrant, the Court shall make a determination of the existence of probable cause for the arrest within 48 hours of the arrest.

(6) For any class of offense, in lieu of making a custodial arrest, a law enforcement officer may issue a citation requiring the defendant to appear in Tribal Court at a designated time and on a designated date.

(7) An arrest made outside the boundaries of the Flathead Reservation shall be valid if made pursuant to the laws of the jurisdiction where the arrest occurred.

2-2-404. Arrest warrants. (1) An arrest warrant shall be issued by a judge, based on a sworn complaint or affidavit showing there is probable cause to believe an offense has been committed and the named person has committed the offense. The warrant shall:

(a) be in writing in the name of the Tribes;

(b) set forth the nature of the offense;

(c) command the person against whom the sworn complaint or affidavit was made be arrested, or a description of the person as well as any alias used by the person;

(d) be signed by a judge; and

(e) include any bail amount, if deemed appropriate by the issuing judge.

(2) A law enforcement officer shall, as soon as practicable, inform the person named in the arrest warrant of:

(a) her or his authority to make the arrest;

(b) the intention to arrest the person;

(c) the grounds for the arrest;

(d) the existence of an arrest warrant; and

(e) the amount of bail, if specified in the warrant.

(3) A copy of the arrest warrant must be shown to the person arrested, as soon as practicable.

(4) An arrest made pursuant to a warrant shall not be dismissed due to minor irregularities in the warrant which do not substantially affect any rights of the arrested person.

2-2-405. Notice of rights prior to interrogation. (1) Prior to questioning any person in custody, a law enforcement officer must inform the person in clear and unequivocal terms of the following rights:

(a) that the person has the right to remain silent;

(b) that anything said by him or her can and will be used against the person in any subsequent court proceedings;

(c) that the person has the right to legal counsel or representation as provided in Sections 2-2-503, prior to answering any questions; and

(d) that if, at any point during questioning, the person indicates that she or he wishes to remain silent the questioning will cease.

(2) Any statement obtained in violation of these rights may not be admitted into evidence.

(3) The fact that a person chooses to remain silent cannot be used against her or him in any subsequent criminal proceedings.

2-2-406. Summons. (1) The Tribal Court may or, upon request of a prosecutor, shall issue a summons instead of an arrest warrant.

(2) The summons may be served personally or by first-class mail.

(3) A summons shall:

(a) be in writing in the name of the Tribes;

(b) state the name of the person summoned, along with that person's address, if known;

(c) set forth the nature of the offense charged;

(d) set the date issued;

(e) command the person to appear in Tribal Court at a specified date and time; and

(f) be signed by a judge.

2-2-407. Written report when no arrest made in abuse situation. When a law enforcement officer is called to the scene of a reported incident of elder or domestic abuse but does not make an arrest, the officer shall file a written report with the commanding officer stating the reasons for deciding not to make an arrest.

2-2-408. Notice of rights in abuse situation. (1) Whenever a law enforcement officer is called to the scene of a reported incident of domestic abuse, the officer shall advise the injured party, if present, of the availability of services in the community and give the injured party immediate notice of legal rights and remedies available.

(2) The notice given by the law enforcement officer must include furnishing the injured party with a copy of the following statement:

IF YOU ARE THE VICTIM OF DOMESTIC ABUSE, the Tribal Prosecutor's Office can file criminal charges against your abuser. You also have the right to go to court and file a petition requesting:

(a) that your abuser be restrained from further abuse;

(b) that the abuser leave the household and stay away for a period of time;

(c) that your abuser be restrained from transferring any property except in the usual course of business;

(d) that you be granted temporary custody of your child or children; or

(e) that your abuser be restrained from interfering with your custody of your child or children;

2-2-409. Extradition. (1) If a Tribal law enforcement officer arrests an individual based on a warrant issued by the State of Montana, or a reasonable belief that a warrant has been issued by the State of Montana, the Tribes may hold such individual for up to forty-eight hours, after any Tribal sentence has been served, for transport by State officials. If State officials do not retrieve the defendant within that time, he or she shall be released. The defendant shall be entitled to bail at the amount set in the State warrant.

(2) If a Tribal law enforcement officer arrests an individual pursuant to Section 2-2-403 above based on a warrant from a jurisdiction other than the State of Montana, or based on a reasonable belief that a warrant has been issued by a jurisdiction other than the State of Montana, he shall be entitled to a hearing before the Tribal Court on the following issues:

(a) whether such warrant exists; and

(b) whether the individual arrested is the person named in the warrant; and

(c) whether the court issuing the warrant had jurisdiction to issue the warrant; and

(d) whether the arrest by Tribal law enforcement was lawful.

After being fully informed of his or her rights, the defendant may, in writing, waive the right to a hearing. If not waived, the hearing shall be held within two days of the arrest, and the defendant shall have the right to be represented by the Tribal Defenders Office. Prior to the hearing the defendant shall be entitled to bail at the sum set in the warrant.

(3) If at the hearing the Court does not find these factors to be established by the Tribal Prosecutor by clear and convincing proof, it shall order the defendant immediately released. If at the hearing the Court finds these factors to be established by the Tribal Prosecutor by clear and convincing proof, it shall order the defendant held for a reasonable time not to exceed ten days, after any Tribal sentence has been served, for the other jurisdiction to retrieve the defendant. After the hearing the defendant may be admitted to bail in an amount set by the Tribal Court, on the condition that he or she surrender himself or herself at a specified time, and on such additional restrictions as the Court deems appropriate. If such other jurisdiction does not retrieve the defendant within that time, the defendant shall be released.

(4) Nothing in this section shall be considered to limit or restrict an individual's right to seek a writ of habeas corpus under Section 1-2-722.

Part 5
Initial Appearance, Presence of Defendant, and Right to Counsel

2-2-501. Initial appearance. (1) A person arrested, whether with or without a warrant, must be taken before a judge of the Tribal Court for an initial appearance within two working days following the arrest.

(2) A person not arrested shall appear for an initial appearance at the time and place designated in the citation or summons. (Rev. 1-27-00.)

2-2-502. Duty of court at initial appearance. (1) The judge shall inform the defendant of:

(a) the charge or charges against him or her;

(b) the maximum penalty allowed under Tribal Law for the offense;

(c) the defendant's right to counsel provided by the Tribal Defender's Office pursuant to Section 2-2-504 or to obtain private counsel at her or his own expense.

(d) the right to call any witness on her or his behalf;

(e) the right to request a jury trial;

(f) the right to remain silent and that any statement made by her or him may be used in evidence against her or him at any subsequent court proceedings;

(g) the general circumstances under which the defendant may obtain pretrial release;

(h) the right to cross-examine the Tribes' witnesses; and

(i) the right to have up to 10 working days before arraignment.

(2) The judge shall admit the defendant to bail as provided by Section 2-2-602 of this Code.

2-2-503. Presence of defendant. Unless otherwise set forth in this chapter, a defendant shall be present at all stages of the proceedings. The Court in its discretion may allow the defendant to appear through counsel.

2-2-504. Right to counsel. (1) During the initial appearance before the court, every defendant must be informed of the right to have counsel, and must be asked if the aid of counsel is desired.

(2) If the defendant desires counsel and is indigent as defined in Section 1-2-402, and if the court desires to retain imprisonment as a sentencing option or if the interests of justice so require, the court shall assign the Tribal Defender's Office to provide counsel to the defendant.

(3) If the defendant wishes to obtain private counsel, the court shall grant a reasonable time prior to arraignment for defendant's attorney to enter an appearance in the cause.

(4) A defendant may waive the right to counsel when the court ascertains that the waiver is made knowingly, voluntarily, and intelligently in writing.

 

Part 6
Bail

2-2-601. Release prior to criminal proceedings. A person charged with any offense is bailable before conviction and shall be released from custody by the court upon reasonable conditions that ensure the appearance of the defendant and protect the safety of the community or of any person.

2-2-602. Release or detention. (1) The release or detention of the defendant must be determined immediately upon the defendant's initial appearance.

(2) The criteria for determining the conditions of release include, but are not limited to the following:

(a) defendant's employment status and work history;

(b) defendant's financial condition;

(c) the nature and extent of defendant's family relationships and ties to the Reservation community;

(d) defendant's past and present residences;

(e) names of individuals personally agreeing to assure defendant's court appearance;

(f) the nature and circumstances of the current charge, including whether the offense involved the use of force or violence;

(g) the defendant's prior criminal record, if any, and whether, at the time of the current arrest or offense, the defendant was on probation, on parole, or on other release pending trial, sentencing, or appeal for an offense;

(h) the defendant's record of appearance at court proceedings; and

(i) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release.

(3) The Court may in its discretion grant temporary release from custody under any conditions the Court deems appropriate.

2-2-603. Release on own recognizance and reasonable bail. (1) Any person in custody, if otherwise eligible for bail, may be released on his personal recognizance subject to such conditions as the court may reasonably prescribe to assure his appearance when required.

(2) In all cases, the amount set for bail must be reasonable.

(3) Reasonable bail reflects an amount which is:

(a) sufficient to ensure the presence of the defendant in any pending criminal proceeding;

(b) sufficient to assure compliance with the conditions set forth in a bail or release order; and

(c) not oppressive.

2-2-604. Conditions upon defendant's release. (1)The court may impose any condition that will reasonably ensure the appearance of the defendant as required or that will ensure the safety of any person or the community, including, but not limited to the following conditions:

(a) the defendant shall remain in the custody of a designated person who agrees to supervise the defendant and report any violation of a release condition to the court, if the designated person is reasonably able to assure the court that the defendant will appear as required and will not pose a danger to the safety of any person or the community;

(b) the defendant may not commit an offense during the period of release;

(c) the defendant shall maintain employment or, if unemployed, actively seek employment;

(d) the defendant shall abide by specified restrictions on the defendant's personal associations, place of abode, and travel;

(e) the defendant shall avoid all contact with an alleged victim of the crime and any potential witness who may testify concerning the offense;

(f) the defendant shall comply with a specified curfew;

(g) the defendant may not possess a firearm, destructive device, or other dangerous weapon;

(h) the defendant may not use or possess alcohol, or any dangerous drug or other controlled substance without a legal prescription;

(i) the defendant shall report on a regular basis to a designated agency or individual, or both;

(j) the defendant shall furnish bail; or

(k) the defendant shall return to custody for specified hours following release from employment, schooling, or other approved purposes.

(2) The court shall subject the defendant to the least restrictive condition or combination of conditions that will ensure the defendant's appearance and provide for protection of any person or the community. At any time, the court may, upon a reasonable basis, amend the order to impose additional or different conditions of release upon its own motion or upon the motion of either party.

2-2-605. Bail schedule. (1) The Chief Judge of the Tribal Court shall establish and post a schedule of bail for offenses to be used by law enforcement officers.

(2) A law enforcement officer may accept bail on behalf of the Tribal Court whenever the amount of bail is specified in the warrant of arrest or in accordance with the posted bail schedule.

(3) When a law enforcement officer accepts bail, based on an arrest warrant or current bail schedule, the officer shall give a signed receipt to the offender setting forth the bail received and the name of the person posting the bail. At the earliest time practicable, the law enforcement officer shall deliver the bail and duplicate copy of the bail receipt to the Tribal Court; obtaining a receipt for the bail delivered from a Clerk of Court.

(4) The Chief Judge of the Tribal Court shall replace any existing bail schedule with a revised bail schedule by January 31 of each year.

(5) Bail may be specifically set by a judge for any offense not listed on the posted bail schedule.

2-2-606. Changing bail or conditions of release. (1) Upon application by the Tribes or the defendant, the Tribal Court may increase or reduce the amount of bail, alter the conditions in the bail or release order, or revoke bail.

(2) Reasonable notice of such application must be given to the opposing parties or their attorneys by the applicant.

2-2-607. Forms of bail. (1) Bail may be furnished in the following ways, as the court may require:

(a) by a deposit with the court of an amount equal to the required bail of cash or other personal property approved by the court;

(b) by pledging real estate situated within the Reservation with an unencumbered equity, not exempt, owned in fee simple by the defendant or sureties at a value double the amount of the required bail;

(c) by posting a written undertaking by the defendant and by two sufficient sureties; or

(d) by posting a commercial surety bond executed by the defendant and by a qualified agent for and on behalf of the surety company.

(2) The amount of the bond must ensure the appearance of the defendant at all times required through all stages of the proceeding and remain in effect until final sentence is pronounced in open court.

(3) Nothing in this part prohibits a surety from surrendering the defendant in a case in which the surety feels insecure in accepting liability for the defendant.

2-2-608. Property and surety bonds. (1) If property posted as a condition of release is personal property, the defendant or sureties shall file a sworn schedule that must contain a list of the personal property, including a description of each item, its location and market value, and the total market value of all items listed.

(2) If the property is real estate the defendant or sureties shall file a sworn schedule that must contain a legal description of the property, a description of any encumbrance on the property, including the amount of each encumbrance and its holder, and the market value of the unencumbered equity owned by the defendant or sureties;

(3) If the property is a written undertaking with sureties, each surety must be a Reservation resident and worth the amount specified in the undertaking, exclusive of property exempt from execution; but the court may allow more than two sureties to justify severally and in amounts less than that expressed in the undertaking if the whole justification is equivalent to the amount required.

(4) If the property posted is a commercial bond, it may be executed by any domestic or foreign surety company that is qualified to transact surety business in Montana. The undertaking must state the following:

(a) the name and address of the surety company that issued the bond;

(b) the amount of the bond and the unqualified obligation of the surety company to pay the court should the defendant fail to appear as guaranteed; and

(c) a provision that the surety company may not revoke the undertaking without good cause.

(5) The court may examine the sufficiency of an undertaking and take any action it considers proper to ensure that a sufficient undertaking is posted.

2-2-609. Release of bail. When all conditions of release have been satisfactorily performed and the defendant has been discharged from any obligations imposed by the Tribal Court, the court shall return any security posted by the defendant to satisfy bail requirements.

2-2-610. Violation of a release order. (1) If a defendant violates a condition of release, including failure to appear, the prosecutor may make a motion to the court for revocation of the order of release. The court may issue a warrant for the arrest of a defendant charged with violating a condition of release and declare the bail to be revoked. Upon arrest, the defendant must be brought before the court without unnecessary delay and the court shall conduct a hearing and re-determine bail. On finding probable cause that the defendant has violated a tribal, state, or federal law, or on finding a violation of any other release condition by clear and convincing evidence, the Court may:

(a) reinstate the original release order on the same conditions and amount of bail; or

(b) revoke the original bail, increase the amount of the bail and modify the conditions of release; or

(c) at the defendant's request, revoke the defendant's release for any period of time, up to 10 days, and then reinstate release on the original conditions and bail or on such conditions and bail as the Court deems appropriate. Such time shall not be credited as time served under Section 2-2-1210 or 2-2-1211.

(2) This section provides the exclusive remedy for a violation of a release order. A defendant may not be charged with contempt or found in contempt for violation of