Law and Order Code of the Fort McDowell Yavapai Community, Arizona

CHAPTER 4 - COURTS GENERALLY

Art. I. §§ 4-1 - 4-20, Reserved.

Art. II. §§ 4-21 - 4-30, Reserved.

Art. III. Appeals, §§ 4-31 - 4-40

Art. IV. Rules of Court, §§ 4-41- 4-43

Art. V. Limitations of Actions, §§ 4-51 - 4-84

Art. VI. Sovereign Immunity, §§ 4-85 - 4-87

 

ARTICLE I.

Sec. 4-1. Reserved.

(Former Sec. 4-1 repealed by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

Sec. 4-2. Reserved.

(Former Sec. 4-2 repealed by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

Sec. 4-3. Reserved.

(Former Sec. 4-3 repealed by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

Sec. 4-4. Reserved.

(Former Sec 4-4 repealed by Resolution No. Ft.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

Sec. 4-5 - 4-20. Reserved.  

 

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(Former Sec. 4-21 repealed by Resolution No. Ft.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(Former Sec. 4-22 repealed by Resolution No. Ft.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(Former Sec. 4-23 repealed by Resolution No. Ft.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(Former Sec. 4-24 repealed by Resolution No. Ft.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. 4-25. Reserved.

(Former Sec. 4-25 repealed by Resolution No. Ft.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(Former Sec. 4-26 repealed by Resolution No. Ft.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.)

Sec. 4-27. Reserved.

(Former Sec. 4-27 repealed by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)

Sec. 4-28 - 4-30. Reserved.

 

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.

(Former Sec. 4-31 repealed and current Sec. 4-31 enacted by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)

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.

The appellate division shall determine the appeal upon the findings of fact, conclusions of law and judgment entered in the case by the judge of the community court who presided at the trial or other final proceeding in the case.

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.
   

(Subsection (b) of Sec. 4-33 amended by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)


Sec. 4-34. APPEALS PROCEDURE.

The following procedures shall be utilized regarding appeals taken from any judgment or appealable order of a trial court, although more specific and detailed procedures may be established by the Court, which procedures will control, provided they are not inconsistent with the Constitution or laws of the Community.

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.
   

(Former Sec. 4-34 repealed and current Sec. 4-34 enacted by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)


Sec. 4-35. DECISIONS ON APPEAL; RECORD.

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.
   

(Sec. 4-35 added by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)

(Sec. 4-36 - 4-40. Reserved.)

 

ARTICLE IV. RULES OF COURT

(Sec. 4-41. Reserved.)

(Former Sec. 4-41 repealed by Resolution No. Ft. McD. 97-93, effective August 23, 1997.)


Sec. 4-42. PROTECTION OF DEFENDANT'S RIGHTS.

Before any defendant is asked to plead to any criminal charge, the judge before whom he appears shall do the following:

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.

(Sec. 4-44 - 4-50. Reserved.)

 

ARTICLE V. LIMITATIONS OF ACTIONS

DIVISION 1. CIVIL ACTIONS

Sec. 4-51. Accrual of Actions.

For purposes of this Article, a cause of action accrues when the damaged party knows or reasonably should have known he or she has been damaged and knows or reasonably should have known the cause, source, act, event, instrumentality, or condition which caused or contributed to the alleged injury.

(Sec. 4-51 added by Resolution No. Ft. McD. 97-45, effective May 29,1997.)


Sec. 4-52. Contracts and Agreements.

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.
   

(Sec. 4-52 added by Resolution No. Ft. McD. 97-45, effective May 29,1997.)


Sec. 4-53. Torts.

An action for tortious conduct shall be brought within [two] (2) years after the cause of action accrues, and not afterward.

(Sec. 4-53 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)


Sec. 4-54. Actions Against the Tribe.

All actions against the Tribe or any of its agencies, enterprises, divisions, departments, officials, officers, or employees shall be brought within one (1) year after the cause of action accrues, and not afterward.

(Sec. 4-54 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)


Sec. 4-55. General Limitation.

Actions for which no limitation is otherwise prescribed shall be brought within two (2) years after the cause of action accrues, and not afterward.

(Sec. 4-55 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)


Sec. 4-56. Tolling; Effect of Minority, Insanity, Imprisonment.

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.

(Sec. 4-56 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)


Sec. 4-57. Tacking of Disabilities Prohibited.

The period of limitation shall not be extended by the connection of one disability to another. When the law of limitation begins to run, it shall continue to run notwithstanding a supervening disability of the party entitled to sue or liable to be sued.

(Sec. 4-57 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)


Sec. 4-58. Foreign Judgments and Causes of Action.

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.
   

(Sec. 4-58 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)


Sec. 4-59. Commencement, Saving of Action Timely Commenced.

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.

(Sec. 4-59 added by Resolution No. Ft. McD. 97-45, effective May 29,1997.)


Sec. 4-60. Presumption of Death.

For purposes of this Article, a person who is absent from the place of his last domicile for five successive years shall be presumed dead in any action wherein his death comes in question, unless proof by clear and convincing evidence is made that he was alive within that time.

(Sec. 4-60 added by Resolution No. Ft. McD. 97-45, effective May 29,1997.)


Sec. 4-61. Exemption of Tribe from Limitations.

Except as otherwise provided by the laws of the Tribe, the Tribe shall not be barred by the limitations of actions prescribed is this Article or any other time limitation under the laws of the Tribe.

(Sec. 4-61 added by Resolution No. Ft. McD. 97-45, effective May 29,1997.)


Sec. 4-62. Effect of Absence from Territory of Tribe.

When a person against whom there is a cause of action is absent from the territory of the Tribe at the time the cause of action accrues or at any time which the action might have been maintained and service of process cannot be accomplished on that person, such action may be brought against such person after his return to the territory of the Tribe. The time of such person's absence 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. A Plaintiff must use reasonable efforts to effectuate service on the absent defendant for this exception to apply.

(Sec. 4-62 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)


Sec. 4-63. Persons Who may Maintain Action for Injury or Death of a Child or Ward.

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.
   

(Sec. 4-63 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)

(Sec. 4-64 - 4-74. Reserved.)

 

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.

(Sec. 4-75 added by Resolution No. Ft. McD 97-45, effective May 29, 1997.)

 

DIVISION 3. GENERAL PROVISIONS

Sec. 4-76. Severability.

If any section or provision of this Article or amendment made by this Article is held invalid, the remaining sections or provisions of this Article and amendments made by this Article shall continue in full force and effect.

(Sec. 4-76 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)

(Sec. 4-77 - 4-84. Reserved.)

 

ARTICLE VI. SOVEREIGN IMMUNITY

Sec. 4-85. Sovereign Immunity of the Tribe.

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.

(Sec. 4-85 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)


Sec. 4-86. Immunity of Officials, Officers, and Tribal Employees

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.

(Sec. 4-86 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)


Sec. 4-87. Severability.

If any section or provision of this Article or amendment made by this Article is held invalid, the remaining sections or provisions of this Article and amendments made by this Article shall continue in full force and effect and such invalidity shall not effect [sic] the sovereign immunity of the Tribe, its Officials, Officers, or Employees.

(Sec. 4-87 added by Resolution No. Ft. McD. 97-45, effective May 29, 1997.)

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

WHEREAS, the Fort McDowell Mohave-Apache Indian Community is committed to the development of its court system; and

WHEREAS, the Community wishes to pass laws governing statutes of limitations for bringing actions in the Tribal Court and a law reserving its sovereign powers; and

WHEREAS, the passage of these laws will further the development of the court system by providing guidance and firm rules of law for parties; and

NOW THEREFORE BE IT RESOLVED, that Fort McDowell Mohave-Apache Indian Community Council hereby adopts the attached ordinances: Chapter 4, Article V, Limitation of Actions and Chapter 4, Article VI, Sovereign Immunity.

BE IT FURTHER RESOLVED, that these ordinances shall be inserted in all copies of the current Tribal Code.

CERTIFICATION

Pursuant to the authority contained in Article IV, Section 2(h) of the Constitution and Bylaws of the Fort McDowell Mohave-Apache Community, ratified by the Tribe on October 3, 1936, and approved by the Secretary of Interior on November 24, 1936, the foregoing Resolution No. Fort McD 97-45 was adopted on this 24th of May, 1997, at a Special Community Council meeting held at the Fort McDowell Mohave-Apache Community, at which a quorum of 5 members were present and 0 were absent by a vote of 4 for and 0 opposed and 0 abstained.

Gilbert Jones, Sr.
President, Tribal Council

Rozelda Duenas
Secretary, Tribal Council

Date: 05-29-97

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

WHEREAS, the Fort McDowell Mohave-Apache Indian Community (Community) has jurisdiction over cases and controversies arising on the Reservation; and

WHEREAS, the Fort McDowell Mohave-Apache Indian Community Council (Council) has established Tribal Courts of its own on the Community's Reservation; and

WHEREAS, the Council wishes to enact legislation to establish the Community's Tribal Courts' procedure and administration; and

WHEREAS, the Council wishes to amend the Community's Law and Order Code (Code) established pursuant to Resolution No. 90-30 as previously amended;

NOW THEREFORE BE IT RESOLVED, the Council hereby adopts Chapter 1 of the Code a copy of which is attached as Appendix A.

NOW THEREFORE BE IT RESOLVED, the Council hereby repeals Sections 4-1 through 4-4, 4-21 through 4-27 and 4-41 of Chapter 4.

NOW THEREFORE BE IT RESOLVED, the Council hereby adopts 4-31 of Chapter 4 a copy which is attached as Appendix B.

NOW THEREFORE BE IT RESOLVED, all references to the Salt River Courts shall be substituted with the Fort McDowell Mohave-Apache Indian Community Courts.

CERTIFICATION

Pursuant to the authority contained in Article IV, Section 1 (e), (f), (h), (I) and Section 2 (c), (h) and (I) of the Fort McDowell Mohave-Apache Community, ratified by the Tribe on October 3, 1936, and approved by the Secretary of Interior on November 24, 1936, the foregoing Resolution No. Fort McD 97-93 was adopted on this 23rd of August, 1997, at a Special Community Council meeting held at the Fort McDowell Mohave-Apache Community, at which a quorum of 5 members were present and 0 were absent by a vote of 4 for and 0 opposed and 0 abstained.

Gilbert Jones, Sr.
President, Mohave-Apache Community Council

Rozelda Duenas
Secretary

08-23-97
Date

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