Law and Order Code of the Fort McDowell Yavapai Community, Arizona
Adopted by Resolution No. 90-30, July 9, 1990 and subsequently amended. [Includes amendments dated 2000.]
CHAPTER 1 - THE COURT AND PROCEDURE
Article I. DefinitionsSection 1-1. Definitions.
means the Fort McDowell Yavapai Community Council as the governing
body of the Fort McDowell Yavapai Indian community.
means the appropriate court(s) of the Fort McDowell Yavapai Indian
Community as the context of this Code requires.
means he or she, his or her, and the singular includes the plural.
means any person:
is enrolled or eligible for enrollment in any federally recognized
Indian tribe; or,
no less than one-fourth (1/4) degree Indian blood, who can document
direct lineal descent from a person, who is enrolled or eligible
for enrollment in any federally recognized Indian Tribe; or,
any verifiable quantum of blood of any federally recognized Indian
tribe who holds himself out to society to be an Indian and who is
generally recognized as an Indian, whether by a tribe, by society,
or by the federal government.
and Order Code" or "Code" means the Law and Order Code of the Fort
McDowell Yavapai Community, Arizona adopted by Resolution No. 90-30,
means the President of the Fort McDowell Community Council.
means the Fort McDowell Yavapai Reservation.
- "Tribe" means the Fort McDowell Yavapai Indian Community.
(Sec. 1-2. through 1-4. Reserved.)
l-5. Establishment of Court.
Article II. Establishment of Court, Jurisdiction
In accordance with the powers of the Tribe and the constitutional authority of the Council, there are established tribal judicial forums to be referred to generally as the Courts of the Fort McDowell Yavapai Indian Community. The Courts of the Fort McDowell Yavapai Indian Community shall be the courts of original and appellate jurisdiction for the Fort McDowell Yavapai Indian Community and shall be courts of record. The Courts shall be composed of three divisions: the Appellate Division to be called the Fort McDowell Tribal Court of Appeals; the Juvenile Division to be called the Fort McDowell Juvenile Court; and the Trial Division to be called the Fort McDowell Tribal Court. These divisions shall have such powers and duties as provided in the Law and Order Code.
(Sec. 1-5 added by Resolution No. Ft McD. 97-93, effective August 23, 1997.)
Section 1-6. Territorial Jurisdiction.
The territorial jurisdiction of the Court includes: all land within the exterior boundaries of the Reservation including fee patented land, rights-of-way, roads, waters, bridges, and land used for schools, churches, hospitals, or federal departmental or agency use; all lands purchased by the Tribe or held in trust by the United States government for the Tribe; all allotments, the Indian title to which has not been extinguished or which have or may be converted to trust or restricted status through purchase, devise, gift, or escheat; and, such other lands without the exterior boundaries of the Reservation that have been or may be added to the Reservation or held is trust for the Tribe, or to which alienation has been restricted under any lawful authority of the United States, and any other lands over which the Tribe may lawfully exert jurisdiction.
(Sec. 1-6 added by Resolution No. Ft. McD. 97-93, effective August 23,1997.)
Section 1-7. Civil Jurisdiction.
Court may exercise personal and subject matter jurisdiction in all
cases consistent with the inherent sovereign powers and federally-delegated
powers of the Tribe, as well as the constitution, laws and ordinances
of the Tribe, subject to the provisions of this Law and Order Code.
- 1. Bases
for personal jurisdiction shall include, but are not limited to:
domicile or residence on the Reservation or other tribal lands;
in the Tribe;
whether by contract, implication or otherwise, including marriage
to a tribal member;
in the Courts of the Fort McDowell Yavapai Indian Community other
than a special appearance for the sole purpose of contesting jurisdiction;
or attempting to contract to insure any person, property or risk
located within the Reservation;
business or attempting to do business on the Reservation whether
in person or by any other method of communication, including entering
or attempting to enter into a contract for the sale, lease, use,
or purchase of any property or services; when such contract is
entered into or is to be performed within the exterior boundaries
of the Reservation;
or attempting to use or purchasing or attempting to purchase any
resource or service of the Tribe or the Reservation;
is any act on the Reservation;
a foreseeable effect or result on the Reservation by an act or
use, or possession of personal property on the Reservation; or,
- committing any tortious act on the Reservation.
- presence, domicile or residence on the Reservation or other tribal lands;
Court may exercise subject matter jurisdiction:
provided in subsection A of this section, regardless of whether
the parties are Indian or non-Indian;
all real and personal property located on the Reservation to determine
the application of such property to the satisfaction of a claim
relating to the property;
actions brought before the Court with the consent of all parties;
actions arising from an event which has occurred within the territorial
jurisdiction of the Court.
- as provided in subsection A of this section, regardless of whether the parties are Indian or non-Indian;
- Nothing in this section shall be construed to effect a waiver of the sovereign immunity of the Tribe or limit the tribe's inherent jurisdiction
Sec. 1-8. Criminal Jurisdiction.
Court shall have criminal jurisdiction over all actions or conduct
that constitutes a violation of any provision of this Law and Order
Code or any tribal ordinance which either:
designated as a prohibited criminal act; or,
for incarceration as a penalty,
- For the purpose of exercising criminal jurisdiction over offenses contained in Chapter 6 of this Code, the jurisdiction of the Fort McDowell Yavapai Indian Community shall extend to any jail, prison, or other secure adult or juvenile detention facility utilized by the Fort McDowell Yavapai Indian Community pursuant to a contract or intergovernmental agreement between the Fort McDowell Yavapai Indian Community and any state, county, municipality, or other Indian Tribe or Tribal entity.
when such actions or conduct occur within the territorial jurisdiction of the Court. Nothing in this Code shall be construed as limiting the jurisdiction of the Tribe over non-Indians subject to express limitations imposed by the laws of the United States or the Tribe.
Section 1-9. Powers and Duties of the Courts of the Fort McDowell Yavapai Indian Community
Each Court of the Fort McDowell Yavapai Indian Community shall have
the following powers:
preserve and enforce order in its immediate presence.
enforce order in the proceedings before it, or before a person empowered
to conduct a judicial investigation under its authority.
provide for the orderly conduct of proceedings before it and its
compel obedience to its judgments, orders, and process, and to the
orders of a judge or commissioner of the court, in any action or
proceeding pending therein.
control in furtherance of justice the conduct of its officers, and
of all other persons in any manner connected with a judicial proceeding
before it in every matter pertaining thereto.
issue subpoenas either on the court's own motion or upon motion
of a party to a case to compel the attendance of persons to testify
in any action or proceeding pending therein.
administer oaths in an action or proceeding pending therein, and
in all other cases where it may be necessary in the exercise of
its powers and duties.
control its procedures and amend its orders so as to make them conformable
to law and justice.
- To devise, craft, and approve new procedures and forms of proceedings, consistent with the law, necessary to carry into effect its powers, duties, and jurisdiction.
- Nothing in subsection A of this section shall be construed to abrogate or limit any inherent power of the Court, and all such powers shall remain vested in the Court unless clearly, specifically, and unequivocally abrogated or limited by federal statute or tribal law.
(Sec. 1-10 through 1-14. Reserved.)
Article III. Judges; Officers; Staff; PractitionersSection 1-15. Composition of Court; Judges; Commissioners; Judges Pro Tempore.
Court shall be composed of one Chief Judge, such Associate Judges
as may be deemed necessary by the Council, and one Juvenile Court
Chief Judge may appoint such Court Commissioners as may be deemed
necessary. Court Commissioners shall have the same powers, privileges
and duties as a judge for the limited purposes of issuing:
orders of protection; and
orders for custody or searches and seizures regarding minors or
Commissioners shall have such other powers and duties as the Chief
Judge may prescribe on a case by case basis upon appointment.
- The Chief Judge may appoint judges pro tempore from a list of qualified persons approved by the Council to preside over civil, criminal, or juvenile cases before the Court in cases where the judges of the Courts of the Fort McDowell Yavapai Indian Community have been disqualified from presiding over a case or when any such judge has disqualified himself. Judges pro tempore shall be authorized to perform any judicial function of a judge of the Tribe relative to the assigned case while presiding over that case. Judges pro tempore shall be compensated in an amount to be set by the Council.
Section 1-16. Appointment of Judges and Commissioners; Filling of Vacancies; Salaries
Chief Judge, Associate Judges, and Juvenile Court Judge shall be appointed
by the Council. Should a vacancy occur for Chief Judge, Associate
Judge or Juvenile Court Judge through death, prolonged infirmity,
physical or mental incapacity, resignation, removal or otherwise,
the Council shall appoint such person as deemed qualified and appropriate
to fill such vacancy.
Commissioners shall be appointed by the Chief Judge. The Chief Judge
shall appoint such persons as deemed qualified and appropriate to
serve as Court Commissioners.
- Salaries for judges, commissioners, and all other court personnel shall be fixed by the Council.
Section 1-17. Term of Office.
judge shall hold office for a period of two years unless sooner removed
for cause pursuant to Sec. 1-20, or by reason of the abolition of
said office, provided, however that each judge shall be eligible for
reappointment at the expiration of his term.
- Each Court Commissioner shall serve until he resigns, is removed by the Chief Judge, or as provided by the appointment.
Section 1-18. Qualifications for Judges.
- No person
shall be eligible for judicial office unless all of the following
qualifications are met:
is Thirty (30) years of age or older.
is a graduate from high school or has obtained a GED and is proficient
in reading, writing and speaking the English language.
has never been convicted of a felony in any court in any jurisdiction,
and, within one (1) year of the date of an application filed with
the Council, has not been convicted of a serious misdemeanor in
any court of any jurisdiction. A serious misdemeanor shall be considered
to be, for purposes of this section, behavior proscribed by Chapter
6 of this Code or equivalent proscribed behavior in any other jurisdiction.
is of good moral character.
consents to undergo such training as the Council or the President
person shall be eligible to serve as Chief Judge, Associate Judge
or Juvenile Court Judge, whether or not he is a resident of the
- The Council shall have the power to set additional qualifications for judicial office above the minimum qualifications enumerated in subsection A of this section
Sec. 1-19. Disqualification to Act.
judge or court commissioner who believes that, in the course of executing
any of his official duties, any of the grounds delineated in subsection
C of this section applies to him shall recuse himself from any action
or further action in any matter over which he may preside or has presided
immediately upon discovery by such judge or court commissioner of
the applicability of any such ground.
- In any
action pending in any Fort McDowell Court, any party may request the
disqualification of the judge assigned to hear the case for any of
the grounds delineated in subsection C of this section by filing an
Affidavit of Disqualification of Judge stating the specific grounds
involved, and stating with particularity the facts upon which the
requesting party relies in support of the request.
purposes of this section, grounds for the disqualification of a Tribal
Court judge are that the judge:
1. was counsel at any time in the action presently before the court;
- An affidavit
pursuant to subsection B of this section shall be filed with the Clerk
of the Court and copies served on the presiding judge and all other
- An affidavit
pursuant to subsection B of this section shall be timely filed and
served within ten (10) days after discovery that grounds exist for
the disqualification of a judge.
- The Clerk of the Court shall schedule a hearing to determine the issues connected with the affidavit. A hearing judge or commissioner other than the challenged Judge shall decide the issues by the preponderance of the evidence and, depending on his findings, may assign a different judge.
a material interest in the action;
3. is kin or related to any party in the action presently before the court;
4. is a material witness in the action presently before the court; or
5. is believed to be biased and prejudiced.
For the purposes of this section, bias and prejudice means a hostile feeling or spirit of ill-will, or undue friendship or favoritism, towards one of the parties. The bare fact that a judge may have an opinion as to the merits of the cause or a strong feeling about the type or subject of the litigation involved does not in itself constitute bias or prejudice.
Sec. 1-20. Removal of Judges.
judge of any Court of the Fort McDowell Yavapai Indian Community may
be suspended, dismissed or removed by the Council for any of the following
of a felony in any court.
in any court of bribery, embezzlement, extortion, fraud, forgery,
perjury, theft, any alcohol related driving offense, or contributing
to the delinquency or dependency of a minor.
under the influence of alcohol, narcotics or other controlled substances
without a prescription, or any other intoxicating substance or vapor
while presiding during open court.
conduct unbecoming to a judge or which might foster disrepute of
or disrespect for the Court, or otherwise adversely affect the integrity
of the Court.
misfeasance, or malfeasance with regard to official duties.
- A judge
shall be given full and fair opportunity to reply to any and all charges
for which he may be removed from his judicial office. Such judge shall
be given a written statement of the charges against him at least ten
(10) days prior to any meeting of the Council where a vote is scheduled
to be taken pursuant to subsection C of this section. Such judge shall
have the opportunity at any such meeting of the Council to answer
any and all charges, to present documentation and to call witnesses
in his behalf.
- Removal from office of any judge shall require a majority vote of those Council members voting at any regular or special meeting where a quorum is present.
Sec. 1-21. Duties of Judges.
The Chief Judge and Associate Judges shall have original jurisdiction and a duty to hear and decide all cases, civil or criminal, in law and equity, in a fair and impartial manner when such cases are properly before the Court, and to exercise the inherent and lawfully delegated powers of a judge and the Court to the end that justice may be administered and law and order maintained. In order to expedite the handling of judicial work, the Chief Judge may assign any judge or court commissioner to aid in the work of another judge.
(Sec. 1-21 added by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)
Sec. 1-22. Officers of the Court.
Officers of the Court shall include, but are not limited to:
of the Court and any deputy clerks, probation officers, mediators,
conciliators, and arbitrators.
persons properly authorized to enforce the laws and ordinances of
the Tribe as well as resolutions of the Council when applicable.
counsel, attorneys, and non-attorney advocates.
- Tribal Prosecutor, Assistant Prosecutors, and Juvnile Officer.
(Sec. 1-22 added by Resolution No. Ft McD. 97-93, effective 13, 1997.)
Sec. 1-23. Clerk of the Court; Duties.
Chief Judge shall appoint a qualified person as Clerk of the Court.
Clerk or his deputy shall process all court filings by marking such
filings to show the date and time of day each such filing was received,
along with the initials, signature or other identifying mark of the
clerk or deputy who received and marked each such filing.
- The Clerk or his deputy shall assign a number to each case upon the initial filing of such case. Such number shall include the designation "CR" for criminal cases, "DR" for domestic relations actions pursuant to Chapter 10 of the Code, "CV" for all other civil cases, JV" for all juvenile delinquency actions, and "CC" for all other actions filed pursuant to Chapter 11 (Juvenile Code), and "TR" for all citations issued pursuant to Chapter 16 of this Code, followed by the last two digits of the calendar year in which each case is filed, followed by the sequential number of the case within each designation in the order filed during each calendar year, e.g., for calendar year 1992:
Clerk or his deputy shall attend all proceedings and keep a record
and verbatim account by shorthand, mechanical, electronic, or electromagnetic
means of all proceedings of the Courts of the Fort McDowell Yavapai
Indian Community, administer oaths to witnesses, and mark exhibits.
Clerk shall be the custodian of all court records.
Clerk or his deputy shall collect all bonds, bail monies, filing fees
and fines required by law or by order of the Court to be paid to the
Court; provide a monthly accounting of all such monies collected to
the proper tribal officials; and, provide a full accounting to the
Council upon request.
Clerk shall be the custodian of the Seal of the Court.
Clerk shall also act as the Clerk of Court for the Fort McDowell Tribal
Court of Appeals.
Clerk shall prepare all transcripts necessary for appellate purposes.
- The Clerk shall perform all other related duties as assigned by the Chief Judge.
1-23 added by Resolution
No. Ft. McD. 97-93, effective August 23, l997.)
Sec. 1-24. Tribal Prosecutor; Authority; Duties.
shall appoint a person of suitable education, training, knowledge and
experience to act as the Tribal Prosecutor. The Tribal Prosecutor and
any duly appointed Assistant Prosecutors shall have the power and authority
to sign, file, present, and prosecute on behalf of the Tribe any and
all complaints and other papers necessary, and to appear on behalf of
the Tribe, in any criminal proceeding properly before the Court pursuant
to this Code.
(Sec. 1-24 added by Resolution No. Ft McD. 97-93, effective August 23, 1997.)
Sec. 1-25. Legal Counsel.
person may represent himself in any civil or criminal action unless
the judge presiding over that action determines that such person cannot
adequately and competently protect his own interests.
attorney licensed to practice law in any state or territory of the
United States, who is in good standing with the Bar of that jurisdiction
at the time of initial appearance and at all times thereafter during
the pendency of any cause in which he is counsel of record, may serve
as legal counsel in any criminal proceeding before any court of the
Fort McDowell Indian Community upon filing a notice of appearance
in writing with the Clerk of the Court. If the Court determines that
the civil rights of any person appearing before the Court in any proceeding
before the Court pursuant to Chapter 11 of this Code include the right
to have the assistance of a licensed attorney, or if Chapter 11 of
this Code so requires or permits, the Court shall permit a licensed
attorney to appear before the Court as legal counsel to represent
that person. Attorneys shall not be permitted to appear as legal counsel
in any civil action or proceeding except as provided in Chapter
11, section 11-27(g) as amended.
Indian person who is not licensed to practice law in any state or
territory of the United States, or in the Federal Court system, shall
be permitted to practice before any court of the Fort McDowell Yavapai
Indian Community. The requirement of Indian heritage shall not apply
to any person employed by a governmental department, agency, commission
or other subordinate entity of the Council as a non-attorney advocate.
Non-attorney advocates shall enter their appearance by filing an action
or a notice of appearance in writing with the Clerk of the Court.
Non-attorney advocates shall be held to the same standards of knowledge
and ability as are expected of attorneys. A person who retains the
services of a non-attorney advocate in his defense of a criminal charge
against him thereby exercises his rights to the assistance of counsel.
Any person who retains the services of a non-attorney advocate does
so at his own risk regarding the competence of the advocate.
person who practices as legal counsel before any Court of the Fort
McDowell Yavapai Indian Community shall be required to have adequate
knowledge of substantive and procedural tribal law as set forth in
the Law and Order Code and Rules of Court to prosecute or defend their
persons practicing as legal counsel in the Tribal Court shall conform
to the standards of the Model Rules of Professional Conduct of the
American Bar Association or such standards as may be established by
tribal law or court rule in performance of their duties as legal counsel.
Chief Judge shall have the duty and authority to:
or receive comments, inquiries, or complaints regarding the competence
or professional conduct of any person serving as legal counsel in
any action before any court of the Fort McDowell Yavapai Indian
implement and conduct proceedings to determine whether there exists
any factual basis to substantiate a complaint regarding the competence
or professional conduct of any person serving as legal counsel in
any action before any court of the Fort McDowell Yavapai Indian
an appropriate sanction (including, but not limited to temporary
suspension or permanent revocation of the privilege of practicing
before the courts of the Fort McDowell Yavapai Indian Community)
against any person serving as legal counsel who the Chief Judge
determines has failed to comply with any applicable rule or standard
of ethics or professional conduct, or who is found not to have exhibited
reasonable competence in the provision of services as legal counsel
to his client. Suspension or revocation of the privilege to practice
as legal counsel before any court of the Fort McDowell Yavapai Indian
Community shall be by written order to the court, signed by the
Chief Judge, stating with particularity the reasons(s) for such
person adversely affected by the application of the provisions of
this section may petition the Fort McDowell Tribal Court of Appeals
for review of the action. Such person shall file a memorandum of points
and authorities, which shall address only those issues contained in
the Order of the Chief Judge issued pursuant to subsection F(3) of
this section. After consideration of the Order, pertinent court records,
and the memorandum of points and authorities, the Court of Appeals
shall affirm, modify or vacate such order.
- In the event that an attorney or advocate is held in contempt before any Court of the Fort McDowell Yavapai Indian Community, the tribal judge or Court commissioner may levy a penalty for said contempt not to exceed the sum of five hundred dollars ($500), and that tribal judge or court commissioner may recommend that the Chief Judge suspend or revoke the privilege to practice before any tribal court. If an attorney or advocate fails to pay a fine for contempt within a reasonable time after exhausting all available appeals or administrative remedies, the Chief Judge shall permanently revoke the privilege of such attorney or advocate to practice before any court of the Fort McDowell Yavapai Indian Community.
(Sec. 1-26, through 1-39. Reserved.)
Article IV. Operation of Court; Procedures
1-40. Hours of the Court.
The Court shall be open and available for regular judicial business from 8:00 a.m. to 12:00 noon and from 1:30 p.m. to 5:00 p.m. Monday through Thursday and 8:00 a.m. to 12:00 noon on Friday of each week, excepting only those legal holidays observed by the Tribe or as otherwise ordered by the President or Council.
(Sec. 1-40 added by Resolution No. Ft. McD. 97-93, effective August 23,1997.)
Sec. 1-41. Court Records.
Clerk of each Court of the Fort McDowell Yavapai Indian Community
shall keep and maintain a record of all proceedings of that Court
which record shall reflect the title of the case, the names of the
parties, the substance of the complaint, the names and addresses of
all witnesses, the date of each hearing or trial and by whom conducted,
the findings and orders of the Court, the judgment, originals of all
documents filed with the Court, and all other appropriate facts or
- Except for records of actions fled pursuant to Chapter 11 or Article III of Chapter 10 of this Code, all court records shall be open for inspection by the public. However, the Court, on its own motion or upon request by either party, for good cause and not otherwise in violation of any applicable law, may declare the record of any particular case to be sealed and issue a written order setting forth a basis for that order.
Sec. 1-42. Rules of Court; Promulgation.
details of judicial procedure not otherwise prescribed in this Law
and Order Code shall be set forth in formal rules of procedure.
Chief Judge shall have the authority and duty to promulgate such rules
of procedure or other rules of court which he deems necessary or appropriate
for the effective administration of judicial business.
to the adoption of any court rule, the Chief Judge shall circulate
the proposed rule for comment by providing copies of the proposed
rule to the Council and posting a copy of the proposed rule in the
court facility for review by court practitioners and the public. Not
less than fifteen (15) days after posting the proposed rule, the Chief
judge, after consideration of comments submitted, shall declare by
court order that such rule is adopted and effective as of the date
of the order.
- Nothing in this section shall abrogate the authority of the Council to establish rules of court by amendment or revision of the Law and Order Code.