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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 4 - COURTS GENERALLY

ARTICLE I.

ARTICLE II.

Sec. 4-21. Reserved.

(Former Sec. 4-21 repealed by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

Sec. 4-22. Reserved.

(Former Sec. 4-22 repealed by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

Sec. 4-23. Reserved.

(Former Sec. 4-23 repealed by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

Sec. 4-24. Reserved.

(Former Sec. 4-24 repealed by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

Sec. 4-26. Reserved.

(Former Sec. 4-26 repealed by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

ARTICLE III. APPEALS

Sec. 4-31. APPELLATE DIVISION.

1. The Fort McDowell Court of Appeals shall consist of a panel of three (3) judges.
   
   
2. Every judge of the Courts of the Fort McDowell Yavapai Indian Community appointed pursuant to Sec. 1-16(A) of this Code shall serve as a judge of the Court of Appeals unless he presided over the case at the trial level, or is otherwise disqualified to serve pursuant to the provisions of Sec. 1-19(C) of this Code.
   
   
3. In the event there is an insufficient number of judges within the Community to serve on the appellate panel, judges for the Court of Appeals shall be selected at random by the Clerk of the Court of Appeals from a list of qualified persons approved by the Council and maintained by the Clerk to fill all necessary seats, provided that at least two of the necessary three judges on any panel shall be current or former judges who serve or have served as trial court judges in any tribal jurisdiction within the State of Arizona, and further provided that such persons are not disqualified pursuant to Sec.1-19(C) of this Code.
   
   
4. Compensation for Appellate Court judges who are not regularly appointed judges of the Community pursuant to Sec. 1-16(A) shall be set by the Council.

Sec. 4-32. Jurisdiction; Right to Appeal.

1. The Court of Appeals shall have original jurisdiction to hear all habeas corpus petitions and such other special actions consistent with the inherent power of the judiciary and the provisions of this Code.
   
   
2. The Court of Appeals shall have jurisdiction to hear appeals from any final judgment of the Courts of the Fort McDowell Yavapai Indian Community.
   
   
3. The Court of Appeals may, in its discretion, permit an interlocutory appeal of an order of a trial judge of this jurisdiction provided that:
   
   
   1. Application for such interlocutory appeal is made within ten (10) calendar days after entry of the order; and
      
      
   2. The applicant sufficiently alleges that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.
   
   
4. Appellate review of final judgments shall be limited to a review of the permanent record of the trial court. There shall be no de novo review, and no new evidence or testimony shall be presented except where no permanent record is available or when, in the discretion of the appellate court, the new evidence or testimony is necessary to assure a fair appeal.
   
   
5. Any party may appeal the verdict or judgment of the trial court in accordance with, and subject to, the provisions of this Code and all applicable Rules of Appellate Procedure.

Sec. 4-33. GROUNDS FOR APPEAL.

1. Findings of fact. The findings of fact shall be presumed to be without reversible error. The presumption may be overcome by a sworn written statement presented to the court at the time of the filing of the notice of appeal which establishes on the basis of the statement, any one of the following grounds:
   
   
   1. That a witness ready and willing to testify at the time of the trial on behalf of the appellant was not allowed by the trial judge to take the witness stand and testify, and such testimony would have materially altered the judgment of the trial court.
      
      
   2. That the trial judge refused to admit documentary or other physical evidence, and such evidence would have materially altered the judgment of the trial court.
      
      
   3. That after the trial, the appellant discovered material evidence which, with reasonable diligence, could not have been discovered and produced at trial, and such evidence would have materially altered the judgment of the trial court. In the event the appellate division finds the presumption is overcome pursuant to this subsection, the appellate division shall remand the case back to the trial court for the limited purpose of hearing only the excluded or new evidence and any evidence in rebuttal presented by the appellee to such evidence. At the conclusion of such remand hearing, the trial court shall, within ten (10) days of the hearings, make and enter such amended findings of fact, conclusions of law and judgment as the trial court deems necessary, or in the event the trial court determines that the evidence adduced at the remand hearing requires no amendment, the trial court will issue its order reaffirming its prior findings of fact, conclusions of law and judgment. The findings of fact, conclusions of law and judgment or order will be transmitted to the appellate division and such findings of fact, conclusions of law and judgment or order will not be subject to a separate appeal.
   
   
2. Conclusions of law. The appellate division shall determine whether the conclusions of law are correct based on the findings of fact or amended findings of fact and whether the judgment is supported by the facts and the law. Any party to the case may request an opportunity to appear before the court prior to its decision to give the court such party's view of the case. The other party or parties shall be given adequate notice of the hearing and an opportunity to present such party's or parties' view of the case. Such views shall be presented orally by the parties and shall only deal with the ground relied on by the appellant as set out in the notice of appeal. The hearing shall be limited to one hour and the time will be equally divided between the parties. If the appellate division finds that the conclusions of law are incorrect and that the judgment is incorrect, or that the conclusions of law are correct and the judgment is incorrect, it shall issue a new judgment correctly stating the conclusions of law and judgment. Such judgment shall be a final judgment not subject to rehearing, review or appeal. The appellant shall prevail only if two or more of the judges of the appellate division agree that the appellant's position is correct.
   

1. Notice of Appeal. Written notice of appeal shall be filed with the Clerk of the Court of Appeals no later than five (5) judicial days after the day the written judgment, signed by the presiding judge, is filed with the clerk of the court. The notice of appeal shall state all grounds for appeal relied on by the appellant, and shall not be amended once it is filed. A written brief providing points and authorities in support of the appeal shall be filed no later than ten (10) judicial days after the filing of the notice of appeal. Immediately upon filing, copies of the notice of appeal and supporting brief shall be sent to the opposing party by the appellant or his counsel.
   
   
2. Response. The appellee shall have ten (10) judicial days after receipt of the appellant's brief to file with the clerk of the court a written response thereto. The response brief shall provide points and authorities for any contested allegation contained in the appellant's brief. Any allegations in the appellant's brief not specifically contested shall be presumed admitted. Immediately upon filing, a copy of the response brief shall be sent to the opposing party by the appellee or his counsel.
   
   
3. Oral Argument. When either party to the appeal desires oral argument on the appeal, the brief of that party shall note that oral argument is requested. The court, on its own or at the request of either party, may, in its discretion, permit or require oral argument of the appeal.
   

1. Decisions of the Court of Appeals shall be in writing providing findings of fact and conclusions of law, stating with particularity the issues addressed on review and the majority's decision regarding those issues.
   
   
2. Any appellate court judge may file a dissenting opinion, which shall be a part of the appellate decision.
   
   
3. The Clerk of the Court of Appeals shall keep a permanent record of the written appellate decisions, and these written decisions shall be available for inspection by the public upon request.
   

ARTICLE IV. RULES OF COURT

1. Read the charge and the language of the ordinance establishing the offense and fixing the penalty.
   
   
2. Explain the charge in language the defendant can understand.

Sec. 4-43. ACTION IN CASES OF CONCURRENT JURISDICTION.

Whenever it appears that a defendant is charged with an offense under tribal ordinance which is also an offense under state or federal law, it shall be the duty of the community court to determine whether the appropriate state or federal authorities will consent to exercise the jurisdiction lawfully vested in them over said offense. In making such determination, the community court may use the following form or may rely on information obtained in any other manner:

To the United States Attorney at__________________________________

There has been duly arrested and brought before the community court of the Yavapai Indian Community a defendant charged with the offense ______________________ as noted in the attached criminal complaint.

ARTICLE V. LIMITATIONS OF ACTIONS

DIVISION 1. CIVIL ACTIONS

1. An action upon a written contract or other written agreement shall be brought within six (6) years after the cause of action accrues, and not afterward.
   
   
2. An action upon an oral contract or other oral agreement shall be brought within three(3) years after the cause of action accrues, and not afterward.
   

1. There shall be no tolling of the statute of limitations for any reason, including equitable reasons other than disability of a person as defined by this Section. Neither filing a notice of claim against the Tribe, nor the filing of a lawsuit in another jurisdiction shall interrupt the running of the statute of limitations.
   
   
2. If a person entitled to bring an action is at the time the cause of action accrues either less than eighteen years of age, of unsound mind, or a person who has been judged by a court to be an incompetent person, the period of such disability shall not be counted or taken as a part of the time limited by the provisions of this Article or any other time limitation under the laws of the Tribe. Such person shall have the same time after the disability ceases to exist which is allowed to others.
   
   
3. If a person entitled to bring an action is at the time the cause of action accrues imprisoned, the period of such disability shall exist only until such time as the person imprisoned discovers the right to bring the action or with the exercise of reasonable diligence should have discovered the right to bring the action, whichever occurs first, and such person shall have the same time after the disability ceases to exist which is allowed all others.

1. No action which arises in another jurisdiction outside the territory of the Tribe shall be maintained against a person if such action is barred by the law of limitations of such other jurisdiction, except in favor of a plaintiff who has been a resident of the Tribe, and who has held the cause of action from the time it accrued.
   
   
2. An action in this jurisdiction upon a judgment or decree rendered in another jurisdiction outside the territory of the Tribe shall be barred if by the laws of such other jurisdiction such action would have been barred there and the judgment or decree is incapable of being otherwise enforced there.
   

1. For purposes of meeting the limitations deadlines set in this Article, a suit is commenced when the complaint is filed with the clerk of the court.
   
   
2. If an action is timely commenced within the period of limitations prescribed for the action and the action is terminated in any manner other than by abatement, voluntary dismissal, dismissal for lack of prosecution, dismissal with prejudice, or a final judgment on the merits, the plaintiff, or a successor or personal representative, may commence a new action for the same cause of action within three (3) months after such termination.
   
   
3. If an action is commenced within the period of limitations prescribe[d] for the action and a judgment for the Plaintiff is reversed on appeal, other than on the merits, the Plaintiff or a successor or personal representative may commence a new action for the same cause of action within three (3) months after such termination.

1. Either parent may maintain an action for injury of a child, and a guardian may maintain an action for the injury of his ward.
   
   
2. Either parent may maintain an action for the death of a child, and a guardian may maintain an action for the death of his ward.
   
   
3. An action for wrongful death of a child shall be brought by and in the name of the personal representative of the deceased child on behalf of the decedent's estate in the event there exists no surviving husband, wife, children or parents of the deceased child.
   

DIVISION 2. CRIMINAL ACTIONS

Sec. 4-75. Limitations of Prosecution.

1. A prosecution for the misuse of public monies, the falsification of public records, homicide, and sexual offenses against minors may be commenced at any time.
   
   
2. Except as otherwise provided by the laws of the Tribe, prosecutions for other offenses must be commenced within one year after actual discovery by the Tribe or discovery by the Tribe which should have occurred with the exercise of reasonable diligence, whichever occurs first.
   
   
3. For the purposes of subsection (b) of this Section, a prosecution is commenced when an indictment, information or complaint is filed.
   
   
4. The period of limitation does not run during any time when the accused is absent from the territory of the Tribe or has no reasonable ascertainable place of abode within the territory of the Tribe.
   
   
5. If a complaint, indictment or information filed before the period of limitations has expired is dismissed without prejudice for any reason, a new prosecution may be commenced with three (3) months after the dismissal becomes final even if the period of limitation has expired at the time of the dismissal or will expire within three (3) months of such dismissal.

DIVISION 3. GENERAL PROVISIONS

ARTICLE VI. SOVEREIGN IMMUNITY

1. The Tribe shall be immune from suit in any action or other proceeding brought in or before any court, board, or other tribunal against the Tribe unless the Tribe expressly and unequivocally waived such immunity in writing or has expressly and unequivocally waived such immunity within this Code of the Tribe. The Tribe may grant limited waivers of its sovereign immunity. In order for the Tribe to waive its sovereign immunity, any writing or provision of this code must contain words "the Tribe expressly and unequivocally waives its sovereign immunity."
   
   

2. The immunity of the Tribe described in subsection (a) of this Section shall act as a bar to any suit, action, or other proceeding brought against the Tribe and shall prohibit the award of any damages of any kind against the Tribe.

3. Except as provided in Section 4-86(b), nothing in this Article shall be read, construed, or interpreted to, in any way, waive the sovereign immunity of the Tribe.

1. Except as provided by this section, the Tribal Employees, Officials and Officers shall be immune from suit, to the extent the Tribe is immune from such suit, in the performance of their official duties.
   
   

2. Tribal Employees, Officials and Officers shall not enjoy immunity from suit in an action for declaratory, injunctive, or other equitable relief brought for the sole purpose of compelling such employee, official or officer to comply with the Constitution or laws of the Tribe provided:

   1. that such waiver of immunity shall not extend to the discretionary actions of such employees or any claim or judgment for monetary damages, and
      
      
   2. that all available administrative remedies have been exhausted.

Ft. McDowell Mohave-Apache Indian Community
P.O. Box 17779 Fountain Hills, Arizona 85269-7779
Phone (602) 837-5121 Fax (602) 837-1630

CERTIFICATION

Ft. McDowell Mohave-Apache Indian Community
P.O. Box 17779 Fountain Hills, Arizona 85269-7779
Phone (602) 837-5121 Fax (602) 837-1630

CERTIFICATION

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