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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. Definitions

Section 1-1. Definitions.
  1. "Council" means the Fort McDowell Yavapai Community Council as the governing body of the Fort McDowell Yavapai Indian community.

  2. "Court" means the appropriate court(s) of the Fort McDowell Yavapai Indian Community as the context of this Code requires.

  3. "He/His" means he or she, his or her, and the singular includes the plural.

  4. "Indian" means any person:

    1. who is enrolled or eligible for enrollment in any federally recognized Indian tribe; or,

    2. of 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,

    3. of 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.

  5. "Law and Order Code" or "Code" means the Law and Order Code of the Fort McDowell Yavapai Community, Arizona adopted by Resolution No. 90-30, as amended.

  6. "President" means the President of the Fort McDowell Community Council.

  7. "Reservation" means the Fort McDowell Yavapai Reservation.

  8. "Tribe" means the Fort McDowell Yavapai Indian Community.
(Sec 1-1 added by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

(Sec. 1-2. through 1-4. Reserved.)



Article II. Establishment of Court, Jurisdiction

Section l-5. Establishment of Court.

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.
  1. The 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.

  2. 1. Bases for personal jurisdiction shall include, but are not limited to:

    1. presence, domicile or residence on the Reservation or other tribal lands;

    2. membership in the Tribe;

    3. consent, whether by contract, implication or otherwise, including marriage to a tribal member;

    4. appearance in the Courts of the Fort McDowell Yavapai Indian Community other than a special appearance for the sole purpose of contesting jurisdiction;

    5. contracting or attempting to contract to insure any person, property or risk located within the Reservation;

    6. doing 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;

    7. using or attempting to use or purchasing or attempting to purchase any resource or service of the Tribe or the Reservation;

    8. engaging is any act on the Reservation;

    9. causing a foreseeable effect or result on the Reservation by an act or omission elsewhere;

    10. ownership, use, or possession of personal property on the Reservation; or,

    11. committing any tortious act on the Reservation.
2. Tribal Court jurisdiction shall extend to corporations, partnerships, associations, and governmental entities as well as to natural persons; and unless otherwise provided, the word person as used in this Code includes all of the above.
  1. The Court may exercise subject matter jurisdiction:

    1. as provided in subsection A of this section, regardless of whether the parties are Indian or non-Indian;

    2. over 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;

    3. over actions brought before the Court with the consent of all parties; and,

    4. over actions arising from an event which has occurred within the territorial jurisdiction of the Court.

  2. 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. 1-7 added by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)


Sec. 1-8. Criminal Jurisdiction.
  1. The 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:

    1. is designated as a prohibited criminal act; or,

    2. provides for incarceration as a penalty,

    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.

  2. 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.
(Sec. 1-8 added by Resolution No. Ft McD. 97-93, effective August 23, 1997.)


Section 1-9. Powers and Duties of the Courts of the Fort McDowell Yavapai Indian Community
  1. Each Court of the Fort McDowell Yavapai Indian Community shall have the following powers:

    1. To preserve and enforce order in its immediate presence.

    2. To enforce order in the proceedings before it, or before a person empowered to conduct a judicial investigation under its authority.

    3. To provide for the orderly conduct of proceedings before it and its officers.

    4. To 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.

    5. To 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.

    6. To 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.

    7. To 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.

    8. To control its procedures and amend its orders so as to make them conformable to law and justice.

    9. 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.
  1. 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. 1-9 added by Resolution No. Ft McD. 97-93, effective August 23, 1997.)

(Sec. 1-10 through 1-14. Reserved.)

 

 

Article III. Judges; Officers; Staff; Practitioners

Section 1-15. Composition of Court; Judges; Commissioners; Judges Pro Tempore.
  1. The Court shall be composed of one Chief Judge, such Associate Judges as may be deemed necessary by the Council, and one Juvenile Court Judge.

  2. The 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:

    1. search warrants;

    2. emergency orders of protection; and

    3. emergency orders for custody or searches and seizures regarding minors or incompetent persons.

  3. Court Commissioners shall have such other powers and duties as the Chief Judge may prescribe on a case by case basis upon appointment.

  4. 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.
(Sec. 1-15 added by Resolution No. Ft. McD. 97-93, effective August 23, 1997. Subsection (D) amended by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)


Section 1-16. Appointment of Judges and Commissioners; Filling of Vacancies; Salaries
  1. The 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.

  2. Court 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.

  3. Salaries for judges, commissioners, and all other court personnel shall be fixed by the Council.
(Sec. 1-16 added by Resolution No. Ft. McD. 97-93, effective August 13, 1997.)


Section 1-17. Term of Office.
  1. Each 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.

  2. Each Court Commissioner shall serve until he resigns, is removed by the Chief Judge, or as provided by the appointment.
(Sec. 1-l7 added by Resolution No. Ft McD. 97-93, effective August l3, 1997.)


Section 1-18. Qualifications for Judges.
  1. No person shall be eligible for judicial office unless all of the following qualifications are met:

    1. He is Thirty (30) years of age or older.

    2. He is a graduate from high school or has obtained a GED and is proficient in reading, writing and speaking the English language.

    3. He 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.

    4. He is of good moral character.

    5. He consents to undergo such training as the Council or the President specifies.

    6. Any person shall be eligible to serve as Chief Judge, Associate Judge or Juvenile Court Judge, whether or not he is a resident of the Reservation.

  2. 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. 1-18 added by Resolution No. Ft. McD. 97-93, effective August 13, 1997.)


Sec. 1-19. Disqualification to Act.
  1. Any 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.

  2. 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.

  3. For 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;

    4. 2. has 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.

  4. 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 parties.

  5. 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.

  6. 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.
(Sec. 1-19 added by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)


Sec. 1-20. Removal of Judges.
  1. Any 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 reasons:

    1. Conviction of a felony in any court.

    2. Conviction 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.

    3. Being 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.

    4. Any 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.

    5. Nonfeasance, misfeasance, or malfeasance with regard to official duties.

  2. 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.

  3. 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. 1-20 added by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)


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:
    1. Clerk of the Court and any deputy clerks, probation officers, mediators, conciliators, and arbitrators.

    2. All persons properly authorized to enforce the laws and ordinances of the Tribe as well as resolutions of the Council when applicable.

    3. Legal counsel, attorneys, and non-attorney advocates.

    4. Bailiff.

    5. 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.
  1. The Chief Judge shall appoint a qualified person as Clerk of the Court.

  2. The 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.

  3. 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:


    4.  

    CR-92-001

    JV-92-001

    DR-92-001

    CC-92-001

    CV-92-001

    TR-92-001


  4. The 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.

  5. The Clerk shall be the custodian of all court records.

  6. The 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.

  7. The Clerk shall be the custodian of the Seal of the Court.

  8. The Clerk shall also act as the Clerk of Court for the Fort McDowell Tribal Court of Appeals.

  9. The Clerk shall prepare all transcripts necessary for appellate purposes.

  10. The Clerk shall perform all other related duties as assigned by the Chief Judge.

(Sec. 1-23 added by Resolution No. Ft. McD. 97-93, effective August 23, l997.)


Sec. 1-24. Tribal Prosecutor; Authority; Duties.

The Council 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.

  1. Any 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.

  2. Any 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.

  3. Any 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.

  4. Any 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 claims.

  5. All 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.

  6. The Chief Judge shall have the duty and authority to:

    1. initiate 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 Community.

    2. develop, 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 Community.

    3. impose 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 action.

  7. Any 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.

  8. 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 1-25 added by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

(Sec. 1-26, through 1-39. Reserved.)


 

Article IV. Operation of Court; Procedures

Sec. 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.
  1. The 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 circumstances.

  2. 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. 1-41 added by Resolution No. Ft McD. 97-93, effective August 23,1997.)
Sec. 1-42. Rules of Court; Promulgation.
  1. All details of judicial procedure not otherwise prescribed in this Law and Order Code shall be set forth in formal rules of procedure.

  2. The 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.

  3. Prior 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.

  4. 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.

(Sec.1-42 added by Resolution No. Ft McD. 97-93, effective August 23, 1997.)

(Sec.1-43 through Sec. 1-99. Reserved.)


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