Laws of the Confederated Salish and Kootenai Tribes, Codified

TITLE II, CHAPTER 1 - TRIBAL OFFENSES

Part 1
General Preliminary Provisions

2-1-101. Purpose and construction. The provisions of this Chapter shall be construed in accordance with Tribal customs as well as to achieve the following general principles and purposes:

(1) to forbid and prevent the commission of offenses and give fair warning of conduct which is declared to be an offense;

(2) to adequately define the conduct and mental state which constitute an offense and to safeguard permitted conduct;

(3) to prescribe penalties which are proportionate to the seriousness of the offense and which permit recognition of differing rehabilitative needs of individual offenders while at the same time recognizing the need of the entire Reservation Community to protect itself from offenders;

(4) to prevent arbitrary and oppressive treatment of persons accused or convicted of offenses and to promote the correction and rehabilitation of such persons; and

(5) to protect any Tribal member or other person residing on the Reservation whose health or welfare may be adversely affected or threatened due to abuse, neglect or exploitation by family, household members, or other person in a legal or contractual position of providing physical, mental, or medical assistance and support to the affected person.

2-1-102. Civil actions not barred. The Code of Tribal Offenses does not bar, suspend, or otherwise affect any right or liability to damages, penalty, forfeiture, or other remedy authorized by law to be recovered. Civil injury is not merged into the criminal offense.

2-1-103. Exclusiveness of offenses. No conduct constitutes an offense unless so declared by this Code of Tribal Offenses, by any Tribal ordinance, or by specific Montana law incorporated by reference into this Code of Tribal Offenses. The elements of any offense as contained in this code are the sole elements required for conviction in Tribal Court. Extraneous elements required by other jurisdictions shall not be considered by the judge or jury in reaching a verdict of guilt or innocence. However, this provision does not affect the power of the Tribal Court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order, civil judgment, or decree.

2-1-104. Prosecution for multiple offenses. When the conduct of an offender establishes the commission of more than one offense, the offender may be prosecuted separately for each offense. The offender, however, may not be convicted of more than one offense if:

(1) one offense is included in the other;

(2) one offense consists only of conspiracy or some other form of preparation for committing the offense;

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

(4) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or

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

2-1-105. Limitation on prosecutions based on same transaction. No person, once convicted of a crime falling within the jurisdiction of the State of Montana or the Tribes shall be punished for the identical act in the courts of the other jurisdiction, but shall be accorded the doctrine of former jeopardy as if the separate jurisdictions were one.

2-1-106. Lesser included offenses.

(1) An offender may be convicted of an offense included in an offense charged without having been specifically charged with the lesser included offense. An offense is included when:

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

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

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

(2) The Tribal Court need not charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting the defendant of the lesser included offense.

2-1-107. Burden of proof. The defendant in a criminal proceeding is presumed to be innocent until each element of the offense with which the defendant is charged is proved beyond a reasonable doubt. In the absence of such proof, the defendant shall be acquitted.

2-1-108. Classification of offenses: exclusive and concurrent jurisdiction. Offenses shall be designated as Class A, Class B, Class C, Class D, or Class E offenses. The Tribes shall exercise exclusive jurisdiction over Class A, Class B, Class C, and Class D offenses. The Tribes shall exercise concurrent jurisdiction with the State of Montana over Class E offenses where the State has a comparable offense in its code, and exclusive jurisdiction if the State has no comparable offense.

2-1-109. Time limitations.

(1) Unless otherwise specified by statute:

(a) prosecution for any Class A, Class B, Class C, or Class D offense must be commenced within one year after the alleged offense is committed;

(b) prosecution for any Class E offense must be commenced within two years after the alleged offense is committed;

(c) if the victim is a minor or has a mental disorder at the time the offense occurred, prosecution must be commenced within one year after the legal disability terminates.

(2) The period of limitation does not run under the following conditions:

(a) during any period in which the offender is not usually and publicly residing within this Reservation or is beyond the jurisdiction of the Tribal Court;

(b) during any period in which the offender is a public officer and the offense charged is theft of public funds while in public office; or

(c) during a prosecution pending against the offender for the same conduct even if the prosecution is dismissed.

(3) An offense is committed either when every element occurs or, if the offense is based upon a continuing course of conduct, when the course of conduct is terminated. The time starts to run on the day after the offense is committed.

(4) A prosecution is commenced when a complaint is filed.

2-1-110. Sentencing.

(1) A person convicted of an offense may be sentenced as follows:

(a) for a conviction of a Class A offense heard in Tribal Traffic Court, the offender may only be sentenced to pay a fine or some other sentence not involving imprisonment;

(b) for a conviction of a Class B offense, the offender may be sentenced to imprisonment for a period not to exceed 10 days, or a fine not to exceed $100, or both, unless another sentence is specified by statute;

(c) for a conviction of a Class C offense, the offender may be sentenced to imprisonment for a period not to exceed 60 days, or a fine not to exceed $250, or both, unless another sentence is specified by statute;

(d) for a conviction of a Class D offense, the offender may be sentenced to imprisonment for a period not to exceed 180 days, or a fine not to exceed $500, or both, unless another sentence is specified by statute; or

(e) for conviction of a Class E offense, the offender may be sentenced to imprisonment for a period not to exceed one year, or a fine not to exceed $5,000, or both, unless another sentence is specified by statute;

(2) The fines listed above may be imposed in addition to any amounts ordered paid as restitution.

(3) Any person adjudged guilty of an offense under this Code shall be sentenced in accordance with this section and Section 2-2-1203, unless otherwise specified.

2-1-111. Mental state. A person is not guilty of an offense unless the person acts purposely, knowingly, or negligently, as the Code may provide, with respect to each element of the offense, or unless the person's acts constitute an offense involving strict liability.

2-1-112. Strict liability. A person may be guilty of an offense without having the requisite mental state only if the Code provision defining the offense clearly indicates the Council's purpose to impose strict liability for the conduct described.

2-1-113. Temporary orders of protection.

(1) Whether or not the Tribal Prosecutor files a complaint charging the offense, a person may apply to the Tribal Court for an order of protection if the Prosecutor has reason to believe that a person is a victim of one of the following offenses committed by a person over whom the Tribal Court has jurisdiction: abuse of an elderly or vulnerable person, assault, aggravated assault, intimidation, domestic abuse, criminal endangerment, negligent endangerment, unlawful restraint, kidnaping, aggravated kidnaping, arson, stalking, sexual assault, incest, or sexual intercourse without consent.

(2) The petition for a protective order against a suspected offender shall be accompanied by an affidavit of the alleged victim setting out facts constituting sufficient reason to believe that the suspected offender has committed one of the offenses listed in subsection (1).

(3) The petition may request an order of protection containing any or all of the following provisions for relief of the alleged victim:

(a) prohibiting the suspected offender from assaulting, threatening, abusing, harassing, following, stalking, or disturbing the peace of the alleged victim;

(b) directing the suspected offender to avoid any contact with the alleged victim by staying at least 500 yards from the person, residence, work place, or vehicle of the alleged victim and from the children of the alleged victim and the children's school or daycare facility;

(c) directing the suspected offender to avoid any contact with identified family members of the alleged victim or any identified witness to or other identified victim of the suspected offense;

(d) directing the suspected offender to refrain from taking, hiding, selling, transferring, or disposing of any property in which the alleged victim has an interest;

(e) directing the suspected offender to give the alleged victim possession of necessary personal property;

(f) prohibiting the suspected offender from removing any children of the alleged victim from the jurisdiction of the Court; or

(g) granting temporary custody of children of the alleged victim solely to the alleged victim.

(4) Upon a finding that the alleged victim is in danger of harm if the Court does not act immediately, the Court shall issue a temporary order of protection granting some or all of the relief requested and such other relief as may be appropriate in the circumstances. The protective order shall not apply to contacts initiated by the petitioning alleged victim.

(5) Within 14 days from the date the Court issues a temporary protection order, a hearing must be conducted. At the hearing, the Court shall determine whether good cause exists for the temporary order of protection to be continued, amended, or made permanent.

2-1-114. Definitions. Unless otherwise specified in a particular section, the following general definitions shall apply in this Chapter:

(1) "Abuse" includes, but is not limited to:

(a) the infliction of physical or mental injury; or

(b) the deprivation of food, shelter, clothing, or services necessary to maintain the physical or mental health of a person.

(2) "Acts" has its usual and ordinary meaning and includes any voluntary bodily movement, any form of communication, and when relevant, a failure or omission to take action.

(3) "Another" means a person or persons, as defined in this Code, other than the offender.

(4) "Benefit" means gain or advantage or anything regarded by the beneficiary as gain or advantage.

(5) "Bodily harm" or "bodily injury" means physical pain, illness or any impairment of physical condition.

(6) "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.

(7) "Cohabit" means to live together in an arrangement whereby the parties voluntarily assume the rights, duties and obligations which are normally manifested by married persons.

(8) "Common scheme" means a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan which results in the repeated commission of the same offense or affects the same person or persons, or the same property.

(9) "Conduct" means an act or series of acts and the accompanying mental state.

(10) "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.

(11) "Deceit" means:

(a) creating or confirming in another an impression which is false and which the offender does not believe to be true;

(b) failing to correct a false impression which the offender previously had created or confirmed;

(c) preventing another from acquiring information pertinent to the disposition of the property involved;

(d) selling or otherwise transferring or encumbering property, failing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of the property whether such impediment is of value or is not a matter of official record; or

(e) promising performance which the offender does not intend to perform or knows will not be performed. Mere failure to perform, without additional evidence, is not conclusive proof that the offender did not intend to perform.

(12) "Deprive" means to withhold the property of another:

(a) permanently;

(b) for such a period as to appropriate a portion of its value; or

(c) with the purpose to restore it only upon payment of a reward or other compensation.

(13) "Felony" means a Class E offense.

(14) "Force" means the infliction, attempted infliction, or threatened infliction of bodily harm by a person, or the commission or threat of any other crime by a person against the complainant or another which causes the complainant to reasonably believe that the person has the present ability to execute the threat, thereby causing the complainant to submit.

(15) "Harm" means the loss, disadvantage, or injury or anything so regarded by the individual affected, including loss, disadvantage, or injury to any person or entity in which the individual has a recognized interest.

(16) "Intoxicating substance" means any drug or any alcoholic beverage, including but not limited to any beverage containing 1/2 of 1% or more of alcohol by volume, which, when used in sufficient quantities, ordinarily or commonly produces intoxication.

(17) "Involuntary act" means any act which is:

(a) a reflex or convulsion;

(b) a bodily movement during unconsciousness or sleep;

(c) conduct during hypnosis or resulting from hypnotic suggestion; or

(d) a bodily movement that otherwise is not consciously or habitually a product of the effort or determination of the actor.

(18) "Knowingly" - A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when the person is aware of the person's own conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when the person is aware that it is highly probable that the result will be caused by the person's conduct. When knowledge of the existence of a particular fact is an element of an offense, knowledge is established if a person is aware of a high probability of its existence. Equivalent terms, such as "knowing" or "with knowledge", have the same meaning.

(19) "Law enforcement officer" means any person who by virtue of his or her office of public or Tribal employment is vested by law with a duty to maintain public order or to 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) "Misdemeanor" means a Class A, Class B, Class C, or Class D offense.

(22) "Negligently" A person acts negligently with respect to an element of an offense when the person should be aware of a substantial and unjustifiable risk that the element presently exists or will result from his or her conduct. The risk must be of such a nature and degree that the person's failure to perceive it involves a gross deviation from the standard of care that a reasonable person would observe in the same situation, considering the nature and purpose of the person's conduct and the circumstances known to her or him.

(23) "Obtain or exert unauthorized control" means a person acting without lawful authority:

(a) tries to bring about a transfer of interest or possession in property, whether to the offender or to another; or

(b) tries to secure the performance of labor or services, whether for the offender's benefit or the benefit of another; or

(c) takes, carries away, sells, conveys or transfers title to, interest in or possession of property.

(24) "Occupied structure" means any building, vehicle or other place suited for human occupancy or night lodging of persons or for carrying on business regardless of whether a person is actually present. Each unit of a building consisting of 2 or more units separately secured or occupied is a separate occupied structure.

(25) "Offense" means a crime for which a sentence of labor, time in jail, a fine, restitution, or other penalty provided by law may be imposed.

(26) "Official detention" means arrest, detention in any facility for custody of persons under charge or conviction of a crime, or any other detention for law enforcement purposes.

(27) "Owner" means a person, other than the offender, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.

(28) "Person" an individual, association, corporation, partnership, or other legal entity.

(29) "Possession" is the knowing control of anything for a sufficient time to be able to terminate control.

(30) "Premises" includes land, buildings, and appurtenances thereto.

(31) "Property" means anything of value to the owner. Property includes but is not limited to:

(a) real estate, money and commercial instruments;

(b) written instruments representing or embodying rights concerning anything of value, including labor or services, or that are otherwise of value to the owner;

(c) things growing on, or affixed to, or found on land, or part of or affixed to any building;

(d) birds, fish, livestock and other animals ordinarily kept in a state of confinement; and

(e) electronic impulses, electronically processed or produced data or information, commercial instruments, computer software or computer programs, in either machine-or-human-readable form, computer services, any other tangible or intangible item of value relating to a computer, computer system, or computer network, and any copies thereof.

(32) "Property of another" means real or personal property in which a person other than the offender or a government has an interest that the offender has no authority to defeat or impair, even though the offender may have an interest in the property.

(33) "Protective order" is a court order restraining a person from engaging in the commission or continuance of some act which may result in irreparable harm to another.

(34) "Public place" means any place to which the public has access.

(35) "Purposely". A Person acts purposely with respect to a result or to conduct described by a statute defining an offense when:

(a) if the element of the offense involves the nature of his or her conduct or a result thereof, it is his or her conscious object to engage in conduct of that nature or to cause such a result; and

(b) if the element of the offense involves the attendant circumstances, he or she is aware of the existence of such circumstances or he or she believes or hopes that they exist.

(36) "Reasonable apprehension" is deemed to exist in any situation where a person knowingly points a firearm at or in the direction of another person, whether or not the offender believes the firearm to be loaded. In all other circumstances, "reasonable apprehension" is a question of fact to be determined by the trier of fact.

(37) "Restitution" means a requirement, as a condition of a sentence, that an offender repay the victim or the Tribes in money or services.

(38) "Serious bodily harm" or "serious bodily injury" means bodily injury which creates a risk of death, causes serious permanent or protracted loss or impairment of the function or process of any bodily member or organ, causes permanent disfigurement, or causes a serious mental disorder.

(39) "Sexual contact" means any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party or for the purpose of satisfying the defendant's aggressive impulses.

(40) "Sexual intercourse" means penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by any body member of another person, or penetration of the vulva or anus of one person by any foreign instrument or object manipulated by another person for the purpose of arousing or gratifying the sexual desire of either party or for the purpose of satisfying the defendant's aggressive impulses. Any penetration, however slight, is sufficient.

(41) "Solicit" or "solicitation" means to command, authorize, urge, incite, request or advise another to commit an offense.

(42) "Statute" means any Tribal Code section, Tribal ordinance, or adopted section of the Montana Code Annotated.

(43) "Tamper" means to interfere with something improperly, make unwarranted alterations in its existing condition, or deposit refuse upon it.

(44) "Threat" means a menace, however communicated, to:

(a) inflict physical harm on any person, or on the property of another;

(b) subject any person to physical confinement or restraint;

(c) commit any criminal offense;

(d) falsely accuse any person of a criminal offense;

(e) expose any person to hatred, contempt, or ridicule;

(f) harm the credit or business reputation of any person;

(g) reveal any information sought to be concealed by the person threatened;

(h) take an unauthorized action as an official against anyone or anything, withhold an official action, or cause the withholding of an official action; or

(i) testify or provide information or withhold testimony or information with respect to another's legal claim or defense.

(45) "Tribes" refers to the Confederated Salish and Kootenai Tribes of the Flathead Reservation.

(46) "Underage person" means a person who is below the age designated by the particular section of the statute.

(47)

(a) "Value" means the market value of the property at the time and place of the crime or, if the market value cannot be satisfactorily ascertained, the cost of the replacement of the property within a reasonable time after the crime. If the offender appropriates a portion of the value of the property, the value must be determined as follows:

i) The value of an instrument constituting an evidence of debt, such as a check, draft, or promissory note, is considered the amount due or collectible. The figure is ordinarily the face amount of the indebtedness less any portion of the indebtedness that has been satisfied.

ii) The value of any other instrument that creates, releases, discharges, or otherwise affects any valuable legal right, privilege, or obligation is considered the amount of economic loss that the owner of the instrument might reasonably suffer by virtue of the loss of the instrument.

iii) The value of electronic impulses, electronically produced data or information, computer software or programs, or any other tangible or intangible item relating to a computer, computer system, or computer network is considered to be the amount of economic loss that the owner of the item might reasonably suffer by virtue of the loss of the item. The determination of the amount of economic loss includes but is not limited to consideration of the value of the owner's right to exclusive use or disposition of the item.

(b) When it cannot be determined if the value of the property is more or less than $1,000 by the standards set forth in subsection (a), its value is considered to be an amount less than $1,000.

(c) Amounts involved in thefts committed pursuant to a common scheme or the same transaction, whether from the same person or several persons, may be aggregated in determining the value of the property.

(48) "Vehicle" means any device for transportation by land, water, or air or mobile equipment with provisions for transport of an operator.

(49) "Weapon" means any instrument, firearm, article, or substance which, regardless of its primary function, is readily capable of being used to produce death or serious bodily harm.

(50) "Witness" means any person whose testimony is desired in any official proceeding or in any investigation. (Rev. 1-27-00.)

Part 2
Liability Principles

2-1-201. Conduct and result.

(1) Conduct is the cause of a result if:

(a) without the conduct the result would not have occurred; and

(b) any additional causal requirements imposed by the specific code provision are satisfied.

(2) If knowingly or purposely causing a result is an element of an offense and the result is not within the contemplation or purpose of the offender, either element can nevertheless be established if:

(a) the final result differs from the contemplated result only in the respect that a different person or different property is affected or that the injury or harm caused is less than originally contemplated; or

(b) the result involves the same kind of harm or injury as contemplated but the precise harm or injury is different or occurred in a different way, unless the actual result is too remote or accidental to have a bearing on the offender's liability or on the gravity of the offense.

(3) If negligently causing a particular result is an element of an offense and the offender is not aware or should not have been aware of the probable result, negligence can nevertheless be established if:

(a) the actual result differs from the probable result only in the respect that a different person or different property is affected or that the actual injury or harm is less; or

(b) the actual result involves the same kind of injury or harm as the probable result, unless the actual result is too remote or accidental to have a bearing on the offender's liability or the gravity of the offense.

2-1-202. Voluntary act. An element of every offense is a voluntary act, which includes an omission to perform a duty which the person is mentally, physically and financially capable of performing.

2-1-203. Responsibility. A person who is in an intoxicated or drugged condition is criminally responsible for her or his conduct unless such conduct is involuntarily produced and deprives the person of the capacity to appreciate the criminality of the conduct or to conform her or his conduct to the requirements of the law.

2-1-204. Accountability.

(1) A person is legally accountable for the conduct of another when:

(a) having a mental state described by the code provision defining the offense, the person causes another to perform the conduct, regardless of the legal capacity or mental state of the other person;

(b) the code provision defining the offense makes the person accountable;

(c) either before or during the commission of an offense with the purpose to promote or facilitate such commission, the person solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.

(2) However, a person is not accountable if:

(a) the person is a victim of the offense committed; or

(b) before the commission of the crime the person terminates her or his efforts to promote or facilitate the commission of the crime and takes steps to negate the effect or otherwise prevent the commission of the offense.

(3) A person may not be found guilty of an offense on the testimony of one responsible or legally accountable for the same offense unless that testimony is corroborated by other evidence that in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense, tends to connect the defendant with the commission of the offense.

Part 3
Affirmative Defenses and Justifiable Use of Force

2-1-301. Consent.

(1) The complainant's or victim's consent to the performance of the conduct constituting an offense or to the result is an affirmative defense which must be proved by the defendant by a preponderance of the evidence.

(2) Consent is ineffective if:

(a) it is given by a person who is not legally authorized to approve of the conduct constituting an offense;

(b) it is given by a person who by reason of youth, mental impairment, or mental incapacitation is unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged;

(c) it is induced by force, duress, or deception; or(d) it is against public policy to permit the conduct or the resulting harm, even though consent was given.

2-1-302. Compulsion. A person is not guilty of an offense by reason of conduct which he or she performs under the compulsion of threat or menace of the imminent infliction of death or serious bodily harm if he or she reasonably believes that death or serious bodily harm will be inflicted upon him or her if he or she does not perform such conduct. Compulsion is an affirmative defense which must be proved by the defendant by a preponderance of the evidence.

2-1-303. Entrapment. A person is not guilty of an offense if his or her conduct is incited or induced by a public servant or his or her agent for the purpose of obtaining evidence for the prosecution of such person. However, this section is inapplicable if a public servant or his or her agent merely affords to such person the opportunity or facility for committing an offense in furtherance of criminal purpose which such person has originated. Entrapment is an affirmative defense which must be proved by the defendant by a preponderance of the evidence.

2-1-304. Self-defense.

(1) A person is justified in the use of force or threat to use force against another when and to the extent the person reasonably believes that such conduct is necessary to:

(a) defend herself or himself or another against such other's imminent use of unlawful force;

(b) prevent or terminate such other's unlawful entry into or attack upon an occupied structure; or

(c) prevent or terminate the offender's trespass on, or other tortious or criminal interference with, either real or personal property lawfully in the person's possession, or which the person has a legal duty to protect, or in the possession of another who is a family or household member.

(2) A person is justified in the use of force likely to cause death or serious bodily harm only if the person reasonably believes such force is necessary to prevent imminent death or serious bodily harm to herself or himself or another person.

(3) The defendant has the burden of producing sufficient evidence to raise a reasonable doubt of his or her culpability when the defendant raises self-defense as an affirmative defense.

2-1-305. Use of force by aggressor. Self-defense is not available to a person who (1) is attempting to commit, committing, or escaping after the commission of an offense; or

(2) knowingly or purposely provokes the use of force against herself or himself, unless:

(a) such force is so great that the person reasonably believes there is imminent danger of death or serious bodily harm and the person has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or serious bodily harm to the assailant; or,

(b) in good faith, the person withdraws from physical contact with the assailant and clearly indicates to the assailant the desire to withdraw and terminate the use of force but the assailant continues or resumes the use of force.

2-1-306. Use of deadly force. A law enforcement officer, or any person acting under the officer's command to aid and assist, is justified in using deadly force when the officer is performing a legal duty or the execution of legal process and reasonably believes the use of force is necessary to protect herself or himself or others from imminent danger to life.

2-1-307. Resisting arrest. A person is not authorized to use force to resist arrest which the person knows is being made by a law enforcement officer or by a private person summoned and directed by a law enforcement officer to make the arrest, even if the person believes the arrest is unlawful and the arrest is in fact unlawful.

Part 4
Inchoate Offenses

2-1-401. Conspiracy. (1) A person commits the offense of conspiracy when, with the purpose that an offense be committed, the person agrees with another to the commission of the offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement has been committed by the person or by a co-conspirator.

(2)

(a) "Act in furtherance" is any course of conduct which makes it more probable than not that an act towards the commission of an offense will occur and the person's present conduct is not terminated.

(b) Proof of an "act in furtherance" may be drawn from the circumstances surrounding the involved parties' actions and does not require direct proof of an agreement.

(3) It shall not be a defense to conspiracy that the person or persons with whom the accused has conspired:

(a) has not been prosecuted or convicted;

(b) has been convicted of a different offense;

(c) is not amenable to justice;

(d) has been acquitted; or

(e) lacked the capacity to commit the offense.

(4) A person convicted of conspiracy shall be punished not to exceed the maximum sentence provided for the offense which is the object of the conspiracy.

2-1-402. Solicitation. (1) A person commits the offense of solicitation when, with the purpose that an offense be committed, he commands, encourages, or facilitates the commission of that offense.

(2) A person convicted of solicitation shall be punished not to exceed the maximum provided for the offense solicited.

2-1-403. Attempt. (1) A person commits the offense of attempt when, with the purpose to commit a specific offense, the person does any act towards the commission of such offense.

(2) It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.

(3) A person convicted of attempt shall be punished not to exceed the maximum sentence provided for the offense attempted.

(4) A person shall not be liable under this section if, under circumstances manifesting a voluntary and complete renunciation of the criminal purpose, the person avoided the commission of the offense attempted by abandoning the criminal effort.

(5) Proof of the completed offense does not bar conviction for the attempt.

Part 5
Offenses Involving Damage to the Person

2-1-501. Homicide. (1) A person commits the offense of homicide by purposely, knowingly, or negligently causing the death of another human being.

(2) Homicide is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-502. Aiding or soliciting suicide. (1) A person commits the offense of aiding or soliciting a suicide by purposely aiding or assisting another in taking his or her own life.

(2) The fact suicide was not successfully carried out is not a defense.

(3) Aiding or soliciting suicide is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-503. Assault. (1) A person commits the offense of assault by:

(a) knowingly or purposely causing bodily harm to another;

(b) negligently causing bodily harm to another with a weapon;

(c) knowingly or purposely making physical contact of an insulting or provoking nature with an individual; or

(d) knowingly or purposely causing reasonable apprehension of bodily harm in another.

(2) "Reasonable apprehension" is deemed to exist in any situation where a person knowingly points a firearm at or in the direction of another person, whether or not the person pointing the firearm believes the firearm to be loaded. In all other circumstances "reasonable apprehension" is a question of fact to be determined by the trier of fact.

(3) Except as provided in subsection (4), assault is a Class D offense over which the Tribes have exclusive jurisdiction.

(4) If the victim is less than 14 years old and the offender is an adult, the assault is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-504. Aggravated assault. (1) A person commits the offense of aggravated assault by knowingly or purposely causing:

(a) serious bodily harm to another;

(b) bodily harm to another with a weapon;

(c) reasonable apprehension of serious bodily harm in another by use of a weapon; or

(d) bodily harm to a law enforcement officer or a person who is responsible for the care or custody of a prisoner.

(2) Aggravated assault is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-505. Intimidation.

(1) A person commits the offense of intimidation by attempting to have another person perform or refrain from performing a specific act by threatening, under circumstances producing a fear that the threat will be carried out, to:

(a) inflict bodily harm on the person threatened or any other person;

(b) subject any person to physical confinement or restraint; or

(c) commit any Class E offense.

(2) Intimidation is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-506. Mistreating prisoners.

(1) A person commits the offense of mistreating prisoners, if, being responsible for the care or custody of a prisoner, he purposely or knowingly,

(a) assaults or otherwise injures a prisoner; or

(b) intimidates, threatens, endangers, or withholds reasonable necessities from the prisoner; or

(c) violates any civil right of a prisoner.

(2) Mistreating prisoners is a Class D offense over which the Tribes have exclusive jurisdiction.

2-1-507. Negligent vehicular assault. (1) A person who negligently operates a motor vehicle under the influence of alcohol, a dangerous drug, any other drug, or any combination of the three, and who causes bodily injury to another, commits the offense of negligent vehicular assault.

(2) Negligent vehicular assault is a Class D offense over which the Tribes have exclusive jurisdiction.

2-1-508. Negligent endangerment. (1) A person who negligently engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of negligent endangerment.

(2) Negligent endangerment is a Class D offense over which the Tribes have exclusive jurisdiction.

2-1-509. Criminal endangerment. (1) A person who knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminal endangerment.

(2) For the purposes of this Section, "knowingly" means that the person is aware of the high probability that the conduct in which he or she is engaging, whatever that conduct may be, will cause a substantial risk of death or serious bodily injury to another.

(3) Criminal endangerment is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-510. Stalking.

(1) A person commits the offense of stalking if the person purposely or knowingly causes another person substantial emotional distress or reasonable apprehension of bodily injury or death by repeatedly:

(a) following the stalked person; or

(b) harassing, threatening, or intimidating the stalked person, in person or by phone, by mail, or by other action, device, or method.

(2) This section does not apply to an activity protected by the Tribal Constitution or the Indian Civil Rights Act.

(3) For the first offense, a conviction of stalking is a Class D offense over which the Tribes have exclusive jurisdiction. A second or subsequent offense or a first offense against a victim who was under the protection of a protective order directed at the offender, is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana. A person convicted of stalking may be sentenced to pay all medical, counseling, and other costs incurred by or on behalf of the victim as a result of the offense.

(4) Upon presentation of credible evidence of violation of this section, a protective order may be granted restraining a person from engaging in the activity described in subsection (1).

(5) For the purpose of determining the number of convictions under this section "conviction" means:

(a) a conviction as defined in Section 2-1-113(9).

(b) a conviction for violation of a statute of a state or tribe similar to this section.

(6) Attempts by the accused person to contact or follow the stalked person after the accused person has been given actual notice that the stalked person does not want to be contacted or followed constitutes prima facie evidence that the accused person purposely or knowingly followed, harassed, threatened, or intimidated the stalked person.

2-1-511. Abuse of an elderly or vulnerable person.

(1) A person commits the offense of abuse of an elderly or vulnerable person by knowingly or purposely, physically or mentally, abusing or exploiting an elderly or vulnerable person.

(2) "Exploiting" means the unjust use of an individual's money or property for another's advantage by means of duress, menace, fraud, or undue influence.

(3) "Elderly or vulnerable person" means a Tribal member or other person residing on the Reservation who is:

(a) 60 years of age or older;

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

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

(4) Abuse of an elderly or vulnerable person is a Class D offense over which the Tribes have exclusive jurisdiction.

2-1-512. Robbery.

(1) A person commits the offense of robbery if, in the course of committing a theft, the person:

(a) inflicts bodily harm upon another;

(b) threatens to inflict bodily harm upon any person;

(c) purposely or knowingly puts any person in fear of immediate bodily harm; or

(d) commits or threatens to commit any Class E offense other than theft.

(2) "In the course of committing a theft" includes acts which occur in an attempt to commit theft, in the commission of a theft, or in flight after the attempt or commission of a theft.

(3) Robbery is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-513. Unlawful restraint. (1) A person commits the offense of unlawful restraint by knowingly or purposely, and without lawful authority, restraining another so as to interfere substantially with another's liberty.

(2) Unlawful restraint is a Class C offense over which the Tribes have exclusive jurisdiction.

2-1-514. Kidnapping. (1) A person commits the offense of kidnapping by knowingly or purposely, and without lawful authority, restraining another person by:

(a) secreting or holding the person in a place of isolation; or

(b) using or threatening to use physical force against the other person.

(2) Kidnapping is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-515. Aggravated kidnaping. (1) A person commits the offense of aggravated kidnaping if he or she knowingly or purposely and without lawful authority restrains another person by either secreting or holding him or her in a place of isolation or by using or threatening to use physical force, with any of the following purposes:

(a) to hold for ransom or reward or as a shield or hostage;

(b) to facilitate commission of any felony or flight thereafter;

(c) to inflict bodily injury on or to terrorize the victim or another; or

(d) to interfere with the performance of any governmental or political function.

(2) Aggravated kidnaping is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-516. Terrorism. (1) A person commits the offense of terrorism when he or she knowingly or purposely:

(a) threatens to destroy or damage any structure, conveyance, or other real or personal property within the Reservation Boundaries;

(b) attempts or conspires to destroy or damage any structure, conveyance, or other real or personal property within the Reservation Boundaries; or

(c) creates a substantial risk of serious bodily injury to any other person by destroying or damaging any structure, conveyance, or other real or personal property within the reservation boundaries.

(2) Terrorism is a Class E offense over which the Tribes have exclusive jurisdiction.

Part 6
Sex Crimes

2-1-601. Sexual assault. (1) A person commits the offense of sexual assault by knowingly making sexual contact with another without consent.

(2) "Without consent", as used in this section and in section 2-1-602, means:

(a) the victim is compelled to submit by force against himself, herself, or another, or

(b) the victim is incapable of consent because he or she is:

(i) mentally defective or incapacitated;

(ii) physically helpless; or

(iii) less than 16 years old.

(c) As used in subsection (2)(a), the term "force" means:

(i) the infliction, attempted infliction, or threatened infliction of bodily injury or the commission of a forcible felony by the offender; or

(ii) the threat of substantial retaliatory action that causes the victim to reasonably believe that the offender has the ability to execute the threat.

(3) Except as provided in subsection (4), sexual assault is a Class D offense over which the Tribes have exclusive jurisdiction.

(4) If the victim is less than 16 years old and the offender is 3 or more years older than the victim or if the offender inflicts bodily injury upon anyone in the course of committing sexual assault, the offender commits a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

(5) An act "in the course of committing sexual assault" shall include an attempt to commit the offense or flight after the attempt or commission.

2-1-602. Sexual intercourse without consent. (1) A person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent.

(2) Sexual intercourse without consent is a class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-603. Indecent exposure (1) A person who, for the purpose of arousing or gratifying the person's own sexual desire or the sexual desire of any person, exposes the person's genitals under circumstances in which the person knows the conduct is likely to cause affront or alarm commits the offense of indecent exposure.

(2) Indecent exposure is a Class C offense over which the Tribes have exclusive jurisdiction.

2-1-604. Sexual abuse of children.

(1) As used in this section, the following definitions apply:

(a) "Sexual conduct" means actual or simulated:

(i) sexual intercourse, whether between persons of the same or opposite sex;

(ii) penetration of the vagina or rectum by any object, except when done as part of a recognized medical procedure;

(iii) bestiality;

(iv) masturbation;

(v) sadomasochistic abuse;

(vi) lewd exhibition of the genitals, breasts, pubic or rectal area of any person; or

(vii) defecation or urination for the purpose of the sexual stimulation of the viewer.

(b) "Simulated" means any depicting of the genitals or pubic or rectal area that gives the appearance of sexual conduct or incipient sexual conduct.

(c) "Visual medium" means;

(i) any film, photograph, videotape, negative, slide, or photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide; or

(ii) any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite, transmission, or other method.

(2) A person commits the offense of sexual abuse of children if he or she knowingly:

(a) employs, uses, or permits the employment or use of a child in an exhibition of sexual conduct, actual or simulated;

(b) photographs, films, videotapes, or records a child engaging in sexual conduct, actual or simulated;

(c) persuades, entices, counsels, or procures a child to engage in sexual conduct, actual or simulated;

(d) processes, develops, prints, publishes, transports, distributes, sells, possesses with intent to sell, exhibits, or advertises material consisting of or including a photograph, photographic negative, undeveloped film, videotape, or recording representing a child engaging in sexual conduct, actual or simulated; or

(e) finances any of the activities described in subsections (1)(a) through (1)(d) knowing that the activity is of the nature described in those subsections.

(3) Sexual abuse of children is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

(4) For purposes of this section, "child" means any person less than 16 years old.

2-1-605. Incest. (1) A person commits the offense of incest if he or she has sexual contact as described in section 2-1-113(39) or sexual intercourse with an ancestor, a descendant, a brother or sister of the whole or half blood, or any stepson or stepdaughter.

(2) Consent is a defense under this section to incest with or upon a stepson or stepdaughter, but consent is ineffective if the victim is less than 18 years old.

(3) Incest is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-606. Provisions generally applicable to sexual crimes. (1) When criminality depends on the victim being less than 16 years old, it is a defense for the offender to prove that he or she reasonably believed the child to be above that age. Such belief shall not be deemed reasonable if the child is less than 14 years old.

(2) No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except evidence of the victim's past sexual conduct with the offender or evidence of specific instances of the victim's sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.

(3) If the defendant proposes for any purpose to offer evidence described in subsection (2), the trial judge shall order a hearing out of the presence of the jury to determine whether the proposed evidence is admissible under subsection (2).

(4) Evidence of failure to make a timely complaint or immediate outcry does not raise any presumption as to the credibility of the victim.

(5) Resistance by the victim is not required to show lack of consent. Force, fear, or threat is sufficient alone to show lack of consent.

 

Part 7
Offenses Against the Family

2-1-701. Domestic abuse.

(1) A person commits the offense of domestic abuse by if the person:

(a) knowingly or purposely causes bodily injury to a family member, or partner;

(b) knowingly or purposely causes reasonable apprehension of bodily injury to a family member, or partner;

(c) negligently causes bodily injury with a weapon to a family member, or partner; or

(d) knowingly violates a protective order issued by the Tribal Court regarding a family member, or partner.

(2) "Family member" means mothers, fathers, children, brothers, sisters, and other past or present family members of a household. These relationships include relationships created by adoption and remarriage, including stepchildren, stepparents, and adoptive children and parents. These relationships continue regardless of the ages of the parties and whether the parties reside in the same household.

(3) "Partner" means spouses, former spouses, and persons who have been or are currently in a dating or ongoing intimate relationship.

(4) For a first conviction for domestic abuse, the offense is classified as a Class D offense over which the Tribes have exclusive jurisdiction.

(5) For a second conviction for domestic abuse, the offense is classified as a Class D offense over which the Tribes have exclusive jurisdiction.

(6) For a third or subsequent conviction for domestic abuse, the offense is classified as a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana. (Rev. 1-27-00.)

2-1-702. Prostitution. (1) A person commits the offense of prostitution if such person knowingly engages in or agrees or offers to engage in sexual intercourse with another person, not his or her spouse, for compensation, whether such compensation is paid or to be paid.

(2) Prostitution is a Class B offense over which the Tribes have exclusive jurisdiction.

2-1-703. Aggravated promotion of prostitution. (1) A person commits the offense of aggravated promotion of prostitution if he or she purposely or knowingly commits any of the following acts:

(a) compels another to engage in or promote prostitution;

(b) promotes prostitution of a child under the age of 18 years, whether or not he or she is aware of the child's age;

(c) promotes the prostitution of one's child, ward, or any person for whose care, protection, or support he or she is responsible.

(2) Aggravated promotion of prostitution is a Class E offense over which the Tribes have concurrent jurisdiction with the State of Montana.

2-1-704. Bigamy. (1) A person commits the offense of bigamy if, while married, the person knowingly contracts or purports to contract another marriage unless at the time of the subsequent marriage:

(a) the person believes on reasonable grounds that the prior spouse is dead;

(b) the person and the prior spouse have been living apart for 5 consecutive years throughout which the prior spouse was not known by the person to be alive;

(c) a court has entered a judgment purporting to terminate or annul a prior marriage and the person does not know the judgment to be invalid; or