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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 5 - CIVIL AND CRIMINAL PROCEDURE




Art. I. In General, §§ 5-1 - 5-10

Art. II. Civil Procedure, §§ 5-11 - 5-30

Art. III. Criminal Procedure, §§ 5-31 - 5-49

Art. IV. Receivers, §§ 5-50 - 5-60



ARTICLE I. IN GENERAL

Sec. 5-1. APPLICATION OF LAW.

In all actions before the courts of the Fort McDowell Yavapai Indian Community, the law of the Fort McDowell Community shall be controlling. The law of the Community consists of the Law and Order Code and the common law of the Community. The common law of the Community is composed of both the customary law of the community and the rules of law and decisions of the Community Court.

In cases where the Law and Order Code is silent as to an issue of procedural law, the court may, in its discretion, use procedural rules or laws of the United States to fashion a remedy.

In determining issues of law the Community Court may use as a resource cases decided by the courts (1) of the Indian tribes, (2) of the United States, and (3) of the several states and territories of the United States.

(Sec. 5-1 amended by Resolution No. Ft. McD. 93-12, Feb. 24, 1993.)

(Sec. 5-2 - 5-10. Reserved.)


Sec. 5-2. CRIME VICTIMS' RIGHTS

1. Definitions

 

  1. Victim. As used in this section, a "victim" is defined as a person against whom a criminal offense as defined by § 5-2(1)(b) has allegedly been committed, or the spouse parent, lawful representative, or child of someone killed or incapacitated by the alleged criminal offense, except where the spouse, parent, lawful representative, or child is also the accused. With regards to the rights to be notified and to be heard pursuant to this section, a person ceases to be a victim upon the acquittal of the defendant or upon the dismissal of the charges against the defendant as a final disposition. If a victim is in custody for an offense, the victim's right to be heard pursuant to this section is satisfied through affording the victim the opportunity to submit a written statement, where legally permissible and in the discretion of the court. A victim not in custody may exercise his or her right to be heard pursuant to this section by appearing personally or, where legally permissible and in the discretion of the court, by submitting a written statement, an audiotape or videotape. The victims' rights of any corporation, partnership, association, or other similar legal entity shall be limited as provided by statute.

  2. Criminal offense. As used in this section, a "criminal offense" is defined as conduct that gives a peace officer or prosecutor probable cause to believe that an adult or child has violated any one of the ordinances in Chapter 6, Articles III, IV, V, VII, §§ 6-3, 6-5, 6-31, 6-36, 6-37 or 6-111.

  3. Criminal proceedings. As used in this section, a "criminal proceeding" is defined as a trial, hearing (including hearing before trial), oral argument, or other matter scheduled and held before a trial court at which the defendant has the right to be present, or any post-conviction proceeding.

  4. Custodial agency. As used in this section, a "custodial agency" is defined as a tribal law enforcement officer or tribal detention facility having custody of a person who is arrested or is in custody for a criminal offense.
2. Victims' Rights. These provisions shall be construed to preserve and protect a victim's rights to justice and due process. This section does not limit any rights guaranteed in section 11-83. A victim shall have and be entitled to assert each of the following rights:
  1. Victims' responsibility. Victims have the right to be notified of the status of any criminal proceedings and to have the right to be heard at such proceedings. The crime victim advocate must inform the victim of the rights available. The rights are invoked by the victim, who must maintain an updated address and/or contact information with the relevant agency in order for the rights to apply.

  2. Notice of initial appearance. The victim has the right to be notified of the date, time and place of the initial appearance.

  3. Notice of terms and conditions of release. Upon request, the custodial agency or the prosecutor shall give the victim notice of the terms and conditions of release of the accused.

  4. Pretrial notice. The prosecutor shall give the victim notice of her victim rights, the charge(s), the procedural steps, what the victim must do and a contact person. If the prosecutor decides to drop the case, she must notify the victim and tell her why. The victim can request to confer with the prosecutor prior to dismissing the charges.

  5. Notice of criminal proceedings. The prosecutor shall pass on notice of proceedings as received from the court.

  6. Notice of conviction, acquittal or dismissal and impact statement.
    Within 15 days of the conviction, acquittal or dismissal, the prosecutor shall notify the victim. If the defendant is convicted, the prosecutor shall notify the victim of the right to submit an impact statement and what it should contain.

  7. Notice of post-conviction review and appellate proceedings.
    Within 15 days, the prosecutor shall notify the victim of the sentence and give them a form to request release information. Any change in the sentence due to post-conviction proceedings or appellate review must be passed on to the victim.

  8. Notice of release on bond or escape. The custodial agency shall, on request, notify the victim of release or escape and recapture of the defendant.

  9. Notice of prisoner's status. The custodial agency shall, on request, notify the victim of the release date.

  10. Notice of post-conviction release. The victim has, on request, a right to be notified of and heard at any meeting of the parole board concerning the defendant.

  11. Notice of probation modification. The victim has, on request, a right to be notified of any probation revocation hearing.

  12. Notice of release, discharge or escape from a mental health treatment agency. Upon notice of such release, discharge or escape, the tribal agency or crime victim advocate must, on request, give the victim ten days notice of the release or immediate notice of escape of a patient.

  13. Victim's property. The victim's property that is being used as evidence shall be returned as soon as possible after final disposition of the criminal proceeding.

  14. Privileged information.

    1. A crime victim advocate shall not disclose as a witness or otherwise any communication except compensation or restitution information between herself and the victim unless the victim consents in writing to the disclosure.

    2. Unless the victim consents in writing to the disclosure, a crime victim advocate shall not disclose records, notes, documents, correspondence, reports or memoranda, except compensation or restitution information, that contain opinions, theories or other information made while advising, counseling or assisting the victim or that are based on the communication between the victim and the advocate.

    3. The communication is not privileged if the crime victim advocate knows that the victim will give or has given perjured testimony or if the communication contains exculpatory material.

    4. A defendant may make a motion for disclosure of privileged information. If the court finds there is reasonable cause to believe the material is exculpatory, the court shall hold a hearing in camera. Material that the court finds is exculpatory shall be disclosed to the defendant.

    5. If, with the consent of the victim, the crime victim advocate discloses to the prosecutor or a law enforcement agency any communication between the victim and the crime victim advocate or any records, notes, documents, correspondence, reports or memoranda, the prosecutor or law enforcement agent shall disclose such material to the defendant's attorney only if such information is otherwise discoverable.

    6. Notwithstanding the provisions of subsections 1 and 2, if a crime victim advocate is employed or authorized by a prosecutor's office, the advocate may disclose information to the prosecutor with the oral consent of the victim.

  15. Victim protections. The court shall provide appropriate safeguards to minimize contact between the victim and the accused. The protection extends to witnesses and family and covers the defendant's family and witnesses as well. The victim can petition to revoke the bond of the accused if he is harassing her or her immediate family. The victim has the right to refuse an interview with the defendant or his attorney or to set limits on the interview. After charges are filed, defense initiated requests to interview the victim shall be communicated to the victim through the prosecutor. The victim's response to such requests shall also be communicated through the prosecutor. At any interview or deposition to be conducted by defense counsel, the victim has the right to specify a reasonable date, time, duration and location of the interview or deposition, including a requirement that the interview or deposition be held at the victim's home, at the prosecutor's office, or in an appropriate location in the courthouse. The victim does not have to divulge her address, phone number, employment or other locating information in court.

 

 

ARTICLE II. CIVIL PROCEDURE

Sec. 5-11. COMMENCEMENT OF ACTION.

Actions shall be commenced in the Fort McDowell Tribal Court by filing of a claim, in concise form and free of technicalities. The plaintiff or his lay advocate shall verify the claim by oath or affirmation in the form provided by the clerk of the court or its equivalent, and shall sign it. When a claim is filed, the clerk of the community court shall write upon the original of it the day and hour on which it was filed and shall immediately issue a summons. The summons shall be in the form prescribed by the community court and shall be signed by the clerk and be under the seal of the court.


Sec. 5-12. PREPARATION OF CLAIM.

The clerk shall, at the request of any individual, give reasonable assistance in preparing the claim and other papers required to be filed in an action under this chapter.

Sec. 5-13. SERVICE OF PROCESS.

The summons and complaint shall be served together. Service shall be made as follows:

  1. Service upon individuals. Upon any individual by delivering a copy of the summons and of the complaint to him or her personally or by leaving copies of the summons and complaint at his dwelling, house or usual place of abode with some person of suitable age and discretion residing in such place.

  2. Service upon resident individuals, corporations, partnerships, etc. When the defendant is a resident of this community or is a corporation doing business in this community, or is a person, partnership, corporation or unincorporated association subject to suit in a common name which has caused an event to occur in this community out of which the claim which is the subject of the complaint arose, service may be made as herein provided, and when so made shall be of the same effect as personal service within the community.

    1. A copy of the summons and complaint shall be forwarded to the superintendent of the reservation where the defendant is enrolled or found to be residing and there the summons and complaint shall be served by an appropriate officer.

    2. A copy of the summons and complaint shall be mailed by certified mail, return receipt requested, to the defendant's last known post office address by the clerk of the community court.

  3. Time limit upon answer. The defendant shall have thirty (30) days in which to answer the complaint from the time of the completed service.

  4. Completion of service. Service of summons and complaint shall be attested to by an affidavit of the officer who personally served the summons and complaint or by affidavit of the clerk of the court who mailed the summons and complaint. Service shall be complete at the time personal service is made (or at the time of mailing, if mailing is the method of service) providing an affidavit of service or mailing is filed with the clerk within ten (10) days after service is made. If such an affidavit is not filed within ten (10) days after service is made, then service shall be deemed complete from the date of the filing of such affidavit.

  5. Delivery of papers to law department. Upon the issuance of a summons by the clerk of the court or upon the issuance of an order or notice of hearing by a judge of the court, the clerk of the court shall deliver the notice, order or summons and complaint to the chief officer of the law department of the Fort McDowell Yavapai Indian Community or his designated agent for service of said papers or to such other person appointed by the chief judge to serve process within the community.

  6. Personal service. The court bailiff, chief officer of the Fort McDowell Yavapai Indian Community Law Department or his designated agent or other duty designated process server shall personally serve the order, notice or summons and complaint received from the Fort McDowell Tribal Court, upon the person or persons designated.

  7. Time limit upon service of notice. Service of the notice of hearing must be completed at least forty-eight (48) hours prior to the scheduled hearing in proceedings before the juvenile division of the Courts of the Fort McDowell Yavapai Indian Community or as otherwise provided in Chapter 11 of this Code.

Sec. 5-14. SET-OFF OR COUNTERCLAIM.

A defendant may assert a set-off to the plaintiffs complaint in his answer and may file a counterclaim against the plaintiff with his answer. If a counterclaim is filed by the defendant, the plaintiff shall have ten (10) days to file a reply to the counterclaim.


Sec. 5-15. TITLE, PLEADING, FORMS.

There shall be a claim (or complaint) and an answer which may include a counterclaim; and there shall be a reply to a counterclaim. No other pleading may be allowed without special order of the community court, and no action shall be barred because it was not brought within the scope of the original action if such action could not have been brought under this rule without special order of the community court. The pleading permitted shall be in substantial compliance with the official foams adopted.


Sec. 5-16. JUDGMENT BY DEFAULT.

Upon failure of the defendant to answer the complaint within the time permitted by law, the plaintiff shall be entitled to a judgment for the amount claimed in the complaint upon proof satisfactory to the court that the amount is correct. The court may give judgment in any lesser proved amount.


Sec. 5-17. NOTICE OF TRIAL.

Within ten (10) days after the final pleading is filed in an action, the clerk shall furnish the parties with a memorandum of the hour and day set for the trial, which time shall be not less than thirty (30) days nor more than sixty (60) days from the date of the filing of the final pleading in the action. The court may extend the time of the trial for good cause, upon request of one or more parties to the case, or upon its own motion.


Sec. 5-18. DISCOVERY OF INFORMATION.

Either party may, by notice to the other party, request the other party to answer questions presented in writing, to turn over copies of documents or photographs, or to admit or deny statements made in writing. Such questions, requests for production of documents, and requests for admission or denial shall be made by filing an original of the question or request with the clerk of the community court and by mailing a copy to the other party. The party receiving such copy shall have ten (10) days from the time of receipt to make reply. If no reply is made within the time required, the community court may, upon request of the party applying and notice given to the other party, grant judgment for the moving party, subject to proof as required in section 5-16.


Sec. 5-19. WITNESSES.

The clerk of the community court shall, at the request of the party, cause a subpoena to be issued to produce a witness at the time of trial of any case. Upon similar request, the clerk of the community court shall cause a subpoena duces tecum to be issued to require the presence of documents at the trial of the case. The community court shall adopt a uniform form of subpoena and subpoena duces tecum. The subpoena or subpoena duces tecum shall be served by the community police in the same manner as a summons and complaint are served. Witnesses subpoenaed shall be paid ten dollars ($10.00) per day and traveling expenses as determined by the court. Payment of witness fees and expenses shall be borne by the party requesting issuance of the subpoena.


Sec. 5-20. SERVICE OF ANSWER, COUNTERCLAIM, REPLY AND REQUESTS.

All papers required to be filed with the clerk, except summonses and complaints, shall be served upon the other party by mailing such papers at the time of filing to the other party by ordinary mail. All papers which may be served by ordinary mail shall have noted on the originals filed by the party a statement that copies were mailed, the date mailed, to whom mailed and at what address and signed by the party filing the paper.

Sec. 5-21. CONCILIATION AND SETTLEMENT OF DISPUTE.

Immediately before the trial of any case, the community judge shall make an earnest effort to settle the controversy by conciliation. If the community judge fails to induce the parties to settle their difference without a trial, he shall proceed with the trial upon the merits, or set a date for trial within thirty (30) days.


Sec. 5-22. FAILURE OF PARTIES TO APPEAR.

If at the time set for trial the defendant fails to appear, judgment may be entered for the plaintiff by default as above provided. If at the time set for trial the plaintiff fails to appear, the suit may be dismissed for want of prosecution or defendant may proceed to a trial on the merits, or the case may be continued for further proceedings on a later date, as the community judge may direct. If both parties fail to appear, the community judge may continue the case for further proceedings at a later date, or order the same dismissed for want of prosecution, or make any other just and proper disposition thereof as justice may require.


Sec. 5-23. PROCEDURE.

The parties with witnesses shall be sworn. The community judge shall conduct the trial in such manner as to do substantial justice between the parties and according to the rules of the court.


Sec. 5-24. JUDGMENTS AND DAMAGES.
  1. Time of making judgment. The court shall make and enter findings of fact, conclusions of law and a judgment within ten (10) days after trial has been concluded. The court may, on its own motion, extend the time for the making and entering of findings of fact, conclusions of law, and judgment in those situations in which the court in writing determines that a post-trial investigation or supplementary hearing or proceedings are required. An extension of time within which to make and enter findings of fact, conclusions of law and judgment shall not exceed thirty (30) days.
  2. Judgments in civil actions generally. In civil cases, judgments may consist of an order of the court awarding money damages to be paid to the injured party, or directing the surrender of certain property to the injured party, or the performance of some other act for the benefit of the injured party. In actions for divorce, annulment or separate maintenance, the court may enter such judgments as are consistent with Chapter 10 of this Code.

  3. Damages in cases of bodily injury or property damages. Where the injury inflicted was the result of negligence of the defendant, the judgment shall fairly compensate the injured party for the loss he has suffered.

  4. Damages in cases involving contracts. The common law is adopted in assessing damages in cases involving contracts as modified by traditional understanding of justice in the community.

  5. Mitigated damages. Where both the complainant and the defendant were at fault, the judgment shall compensate the injured party for a reasonable part of the loss he has suffered.

  6. Costs. The court may assess the accruing costs of the case based on a cost statement prepared by the prevailing party, against the party or parties against whom judgment is entered, such costs are limited to fees paid to the clerk of the court, service of process, jury fees, witness fees, and deposition transcript charges.

  7. Payment of judgments from individual Indian moneys. Whenever the Fort McDowell Tribal Court shall have ordered payment of money damages to a party and the losing party refuses to make such payment within the time set for payment by the court and when the losing party has sufficient funds to his credit at the agency office to pay all or part of such judgment, the superintendent may certify to the Commissioner of Indian Affairs the record of the case and theamount of the available fiends. If the Commissioner of Indian Affairs so directs, the disbursing agent shall pay over to the party entitled by judgment to it, the amount of the judgment or such lesser amount as may be specified by the Commissioner of Indian Affairs from the account of the delinquent party. A judgment shall be considered a lawful debt in all proceedings to distribute decedent's estate.

  8. Stay of entry and of execution; installment payment. When judgment is to be rendered and the party against whom it is to be entered requests it, the community judge shall inquire fully into the earnings and financial status of such party and shall have full discretionary power to stay the entry of judgment, and to stay execution, except in cases involving wage claims, and to order partial payments in such amounts, over such periods and upon such terms as shall seem just under the circumstances and as will ensure a definite and steady reduction of the judgment until it is finally and completely satisfied. Upon a showing that such party has failed to meet any installment payment without just excuse, the stay of execution shall be vacated. When no stay of execution has been vacated as provided herein, the party in whose favor the judgment has been entered shall have the right to avail himself of all remedies otherwise available in the community court for the enforcement of judgments, including the issuance of a writ of execution.

  9. Judgment for wages; examination; payment. In all cases in which the judgment is founded in whole or in part on a claim for wages or personal services, the community judge shall, upon motion of the party obtaining judgment, order the appearance of the party against whom such judgment has been entered, but not more often than once every four (4) weeks for oral examination under oath as to his financial status and his ability to pay such judgment and the community judge shall make such supplementary orders as may seem just and proper to effectuate the payment of the judgment upon reasonable terms.
(Sec. 5-24, subsec. (f) amended by Resolution No. Ft McD. 93-12, Feb. 24, 1993.)


Sec. 5-25. JURIES.
  1. Jury trials in Civil Cases. Jury trials may be ordered by the court in civil cases only upon the stipulation in writing of all of the plaintiffs and defendants. The court shall have the discretion in cases where such a stipulation is filed with it to either order a jury trial or not. The court's order shall not be subject to appeal.

  2. Jury Trials in Traffic Violation Cases. There shall be no jury trials in cases where a person is charged with a traffic violation (1) when the exclusive penalty is a fine, or (2) when the court determines after a request for jury trial is made that no penalty of imprisonment shall be imposed in the event the defendant is found guilty. In cases where the possibility of imprisonment exists, the defendant shall have the right to elect a trial by jury.

  3. Jury Procedure. All procedures concerning trial by jury as found in Article III of this Chapter shall apply to this section.
(Subsections (a) through (c) of Sec. 5-25 amended by Resolution No. A McD. 93-12, effective February 24, 1993; Subsection (c) of Sec. 5-25 subsequently amended by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)

(Sec. 5-26 - 5-30. Reserved.)

 

 

ARTICLE III. CRIMINAL PROCEDURE

Sec. 5-31. CRIMINAL COMPLAINTS.
  1. Any misdemeanor action alleging a violation of tribal criminal law (except traffic offenses pursuant to Chapter 16) shall be commenced by criminal complaint. The criminal complaint is a written statement of the essential facts constituting the offense charged, which shall include the name of the defendant, a description of the offense, and the approximate date and time of the offense, and shall list the code provision which defines the prohibited conduct.

  2. A criminal complaint may be signed by an authorized representative of the Tribal Prosecutor's Office or a duly authorized law enforcement officer who certifies that he/she has reasonable grounds based on information and belief that an offense has been committed and that the named defendant committed the offense.

  3. A criminal complaint may be signed by a complaining witness who observes the commission of an offense in his/her presence and such criminal complaint must also be signed by an authorized representative of the Tribal Prosecutor's Office.
(Sec. 5-31 (a)-(c) amended by Resolution No. Ft. McD. 95-34, effective Apr. 24, 1995.)


Sec. 5-32. WARRANTS TO APPREHEND; SUSPENSION OF PER CAPITA PAYMENTS PENDING OUTSTANDING WARRANT
  1. Any judge of the Fort McDowell Tribal Court shall have the authority to issue warrants to be issued at his discretion after a written complaint has been filed. Service of warrants shall be made by an officer of the community police, an officer of the Bureau of Indian Affairs or by a bailiff of the community court appointed by the chief judge to serve warrants. Warrants to apprehend shall bear the signature of a duly qualified judge of the Fort McDowell Tribal Court.

  2. Whenever a judge of the Fort McDowell Tribal Court issues a warrant, if the offender is a member of the Fort McDowell Yavapai Nation and is currently receiving per capita payments from the Fort McDowell Yavapai Nation, the judge may issue an order to the Nation suspending per capita payments to the offender until such time as the offender surrenders himself or herself to the tribal police and/or has appeared before the court. Reasonable efforts shall be taken to execute the arrest warrant. If those reasonable efforts are not successful, then the Fort McDowell Trial Court or its designee shall send by regular mail a notice to the person's address as listed in the tribal membership roll stating that the person's per capita payments will be Suspended unless the person surrenders himself or herself to the tribal police or appears before the Fort McDowell-Trial Court within ten (10) days from the date of the notice. At the expiration of ten (10) day notice period, the judge may issue the order suspending the her capita payments. Once the offender addresses the warrant, the offender's per capita payments may resume and he/she will be entitled to collect the per capita payments that were suspended while the warrant was outstanding.
(Sec. 5-32 amended by Resolution No. Ft. McD. 2000-55, effective May 30, 2000.)


Sec. 5-33. ARRESTS
  1. Authority to arrest. An officer of the Fort McDowell Police Department or of the Bureau of Indian Affairs shall have the authority to arrest any person for any violation of an ordinance of the Fort McDowell Yavapai Indian Community or a federal law when such offense shall occur in the presence of the arresting officer, when the arresting officer shall have reasonable cause to believe that person has committed such offense or when the officer has a warrant commanding him to apprehend such person.

  2. Custodial arrest. When a person is arrested for any violation of the criminal code of the fort McDowell Yavapai Indian Community, the arrested person shall be immediately taken into custody in any of the following cases:

    1. When a person arrested demands an immediate appearance before a judge.

    2. When the person is arrested upon a charge which involves endangerment to any person or destruction of property.

    3. When it reasonably appears to the arresting officer that the person arrested is about to leave the jurisdiction of the community.

    4. In any other event when the person arrested refuses to give his written promise to appear in court as provided in this section.

  3. Noncustodial arrest; notice to appear.

    1. In any situation not governed by subsection (b) hereof,the arresting officer may make a noncustodial arrest by use of the procedures set out in this subsection.

    2. When a person is arrested for any violation of the criminal code of the Fort McDowell Yavapai Indian Community and that person is not immediately taken into custody, the arresting officer shall prepare in quadruplicate written notice to appear in court, containing the name and address of the person, the offense charged and the time and place when and where the person shall appear in court. Traffic citation forms may be used as such notice.

    3. The time specified in the notice to appear shall be at least five (5) days after the arrest unless the person arrested demands an earlier hearing.

    4. The place specified in the notice to appear shall be before a judge of the Fort McDowell Tribal Court.

    5. The arrested person, in order to secure release as provided in this section, shall give his written promise so to appear in court by signing at least one copy of the written notice prepared by the arresting officer. The officer shall deliver a copy of the notice to the person promising to appear. Thereupon, the officer shall forthwith release the person arrested from custody.

  4. Violation of promise to appear, counsel.

    1. Any person willfully violating his written promise to appear in court, given as provided for in this section, is guilty of the charge upon which he was originally arrested and upon conviction shall be sentenced to imprisonment for a period not to exceed six (6) months or a fine not to exceed five hundred dollars ($500.00), or to both such imprisonment and fine with costs.

    2. A written promise to appear in court may be complied with by an appearance by counsel.

  5. Procedure nonexclusive.

    1. The provisions of this section, subsections (a) through (d), shall govern all law enforcement officers in making arrests without a warrant for violations of this chapter, but the procedure prescribed in this section shall not otherwise be exclusive to any other method prescribed by law for the arrest and prosecution of a person for offense of like grade.

    2. For any criminal violation alleged to have been committed in violation of the criminal code of the Fort McDowell Yavapai Indian Community wherein an officer is not authorized to arrest without a warrant, the officer may present such alleged violation before a judge in the same manner as any other misdemeanor and proceed either under a warrant of arrest or a summons and notice to appear.

Sec. 5-34. SEARCH WARRANTS.

Any judge of the Fort McDowell Tribal Court shall have the authority to issue warrants for search and seizure of the premises and property of any person under the jurisdiction of said court. However, no warrant of search and seizure shall be issued except upon a duly signed and written affidavit based upon reliable information or belief charging that an offense has been committed. No warrant for search and seizure shall be valid unless it contains the name or description of the person or property to be searched and describes the articles or property to be seized and bears the signature of a duly qualified judge of the Fort McDowell Tribal Court. Service of warrants of search and seizure shall be made only by officers of the Bureau of Indian Affairs or the community police. No policeman shall search or seize any property without a warrant unless he shall know, or have reasonable cause to believe that the person in possession of such property is engaged in the commission of an offense under this Code. Unlawful search and seizure will be deemed trespass and punished in accordance with section 6-111 of this Code.


Sec. 5-35. ARRAIGNMENT.

Within forty-eight (48) hours after arrest, excluding Friday afternoons, Saturday, Sundays and holidays, the defendant shall be brought before a judge who shall inform the defendant of the charges against him and advise him of his legal rights, including right to counsel and trial by jury and to confront the witnesses against him. No defendant shall be required to testify against himself. The defendant shall be given an opportunity to make a plea of "guilty" or "not guilty." If no plea is made by the accused, the court shall enter a plea of "not guilty."
  1. Plea of "guilty." If the defendant shall make a plea of "guilty," the judge shall inquire if the defendant has any reason for not being sentenced at that time. If no reason is advanced, the judge shall pass sentence forth-with. If the defendant shows good cause why sentence should not be passed at that time, the judge shall give due consideration and act thereon within his discretion, considering his oath to uphold the laws.

  2. Plea of "not guilty." The plea is "not guilty," the case will be set for trial within ten (10) days. The judge shall set an appearance bond or release the defendant on his own recognizance. If an appearance bond is required and the defendant fails to post the required security, the judge shall place the defendant in custody of the keeper of the community jail until the date set for the hearing of said case. Upon the request of the defendant, the court shall continue the time for trial for the period of time requested by the defendant, but not to exceed thirty (30) days unless justice requires a longer continuance. The community may request a continuance of a trial date which may be granted by the court only if justice requires and the defendant is not in custody for the offense for which the trial is set, during the continuance.
(Sec. 5-35 amended by Resolution No. Ft. McD. 2000-55, effective May 30, 2000.)


Sec. 5-36. COMMITMENTS.

Except in the case of an emergency or extraordinary circumstances, no person shall be detained, jailed or imprisoned under this Code for a longer period than forty-eight (48) hours unless there is issued a commitment bearing the signature of a judge of the Fort McDowell Tribal Court. There shall be issued for each person held for trial a temporary commitment and for each person held after sentence a final commitment on the forms prescribed. A temporary commitment shall include a probable cause determination by the judge and the judge shall make an initial determination for bail or bond pursuant to section 5-37 of this Code.

(Sec. 5-36 amended by Resolution No. Ft. McD. 2000-55, effective May 30, 2000.)


Sec. 5-37. BAIL OR BOND.

No person charged with an offense before any Fort McDowell Court shall be denied bail Two (2) reliable members of the Fort McDowell Yavapai Indian Community may appear before a judge of the Fort McDowell Tribal Court where complaint has been filed and there execute an agreement to guarantee the appearance of the defendant at trial by posting a security bond. The defendant may deposit with the court cash or property to secure his appearance at trial. In no case shall the penalty or deposit specified in the agreement exceed twice the maximum penalty set by these ordinances for violation of the offense with which the accused is charged. A judge may, in his discretion, release a defendant on his own recognizance.


Sec. 5-38. WITNESSES' SUBPOENAS.
  1. Issuance. The clerk of the Fort McDowell Tribal Court may issue subpoenas for the attendance of witnesses on the request of any of the parties to the case, which subpoenas shall bear the signature of the clerk issuing it. Any witness subpoenaed shall be paid ten dollars ($10.00) per day and traveling expenses as are determined by the court. Payment of witness fees and expenses shall be borne by the party requesting the issuance of the subpoena, except that if the court finds that the defendant is unable to bear such cost, it will be borne by the community court.

  2. Service. Subpoenas shall be served by the community police or such other person appointed by the chief judge or in his absence any judge of the court to serve process within the community in the same manner as civil summons and complaints are served.

  3. Failure to obey subpoenas. Failure to obey such subpoena shall be deemed an offense as provided in section 6-42 of this Code.

Sec. 5-39. TRIAL PROCEDURE.
  1. Reading of complaint; choice to change plea or stand trial. The date having been set for the hearing, the defendant shall be brought before the court, with witnesses as subpoenaed, on said appointed day. The complaint shall then be read to the defendant and an opportunity there given the defendant to:

    1. Change his plea; or

    2. Stand trial and produce evidence in his behalf. If the defendant changes his plea from "not guilty" to "guilty," the sentence may be passed and the case closed.

  2. Swearing in of witnesses; presentation of evidences. If the defendant chooses to stand trial, the judge shall require the witnesses to be sworn and shall hear evidence. The prosecution shall present evidence to support the complaint and be followed by evidence in behalf of the defendant.

  3. Rights of defendant. The defendant shall have the right to argue his case and cross examine the witness. The defendant shall have the right to counsel as provided for by section 4-4 of this Code.
  4. Rendering of verdict; sentencing. After evidence has been submitted, the judge or jury shall render a verdict. If the defendant is found "not guilty," the defendant shall be released forthwith. If the defendant is found "guilty," the judge shall determine if there is good cause why sentence should not there and then be imposed. If the defendant advances such good cause, the judge shall defer sentence for not more than five (5) days during which time defendant shall remain in the status as to his personal liberty as shall be determined by the judge.

Sec. 5-40. JURIES.
  1. Right to jury in criminal cases. Any person prosecuted for any criminal offense or any alleged violation of any provision of this Code punishable by imprisonment shall have the right to a trial by jury upon request. Where a request for jury trial has not been made prior to or at the time of the pre-trial hearing in the case, all requests for a jury trial must be made in writing no later than seven (7) calendar days after the pre-trial hearing.

  2. How constituted. A jury shall consist of six (6) persons whose names shall be drawn by the clerk of the court at random from the list of eligible jurors maintained by the clerk of the court.

  3. Eligible jurors. Every enrolled Fort McDowell tribal member who has reached the age of twenty-one (21) years, and every employee of the Tribe and all tribal enterprises whose regular work location is within the exterior boundaries of the reservation and who has reached the age of twenty-one (21) years, shall be eligible for jury service provided each such person is not otherwise unqualified for jury service according to standards established by the Council.

  4. Preparation of list. No later than five (5) days following the beginning of each calendar quarter, the tribal enrollment office, the tribal Human Resources Department and the human resources official of each tribal enterprise shall submit to the clerk of the court a list of persons eligible for jury service pursuant to subsection (C) of this section. Such lists shall include the name and mailing address of each tribal member or employee and shall be triple spaced between each entry so as to facilitate the drawing of names pursuant to subsection (E) of this section.
  5. Drawing of names. The clerk of the court shall prepare separate name tickets for each person named in the jury list. The tickets shall be placed in a drawing box, shall be thoroughly mixed, and the clerk of the court shall draw no less than fifteen (15) names at random. The persons so selected shall be summoned by the clerk of the court to appear for jury service.
(Former Sec. 5-40 repealed and current Sec. 5-40 enacted by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)


Sec. 5-40.01. CHALLENGE TO THE PANEL.

Any party may challenge the panel on the ground that there has been an error in the procedure used in selecting or summoning the prospective jurors. Challenges to the panel shall specify the facts on which the challenge is made, and shall be made and decided before any individual prospective juror is examined.

(Sec. 5-40.01 added by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)


Sec. 5-40.02. PEREMPTORY CHALLENGES TO INDIVIDUAL PROSPECTIVE JURORS.

Each party, including the Tribe in criminal cases, shall be entitled to two (2) peremptory challenges of prospective jurors for which no reason need be given by the challenging party.

(Sec. 5-40.02 added by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)


Sec. 5-40.03. CHALLENGES FOR CAUSE.
  1. Any party in an action may challenge a prospective juror for cause. Challenges for cause shall be tried by the Court.

  2. The Court shall administer an oath or examination of all prospective jurors that they will answer truthfully all questions concerning their qualifications and eligibility for jury service.

  3. The Court shall initiate the examination of the prospective jurors by identifying the parties and their counsel, briefly outlining the nature of the case, and explaining the purposes of the examination.

  4. The Court shall conduct the voir dire examination, putting to the jurors all appropriate questions regarding each prospective juror's qualifications, including questions requested by any party or their counsel which the court deems appropriate. The Court may permit a party or his counsel to examine a prospective juror.

  5. Challenges to prospective jurors for cause may be taken on any one or more of the following grounds:

    1. Standing in relation of guardian and ward, master and servant, employer and employee, or principle and agent to any party; or being a partner in business with any party; or a member of the immediate family of any party, subject to the provisions of subsection (E)(4) of this section.

    2. Having served as a juror or been a witness in a previous civil or criminal trial regarding the basis or the subject matter of the present litigation.

    3. Having been a party adverse to any instant party in a civil action, or having complained against or been accused by any instant party in a criminal action.

    4. Having formed or expressed an unqualified opinion or belief as to the merits of the action, or showing such a state of mind as will preclude the juror from rendering a just verdict, but in the trial of any action, the fact that a person called as a juror has formed an opinion or impression based only upon rumor or news media statements shall not disqualify that person to serve as a juror in the action if the person, upon oath, states that he believes he can fairly and impartially render a verdict therein in accordance with the law and evidence, and the Court is satisfied or the truth of such statement.

    5. The existence of a state of mind evincing enmity or bias for or against any party.

    6. Lack of any qualifications pursuant to Sec. 5-40(C) to render a person competent as a juror.
(Sec. 5-40.03 added by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)


Sec. 5-40.04. JURY INSTRUCTIONS AND VERDICT.
  1. The judge shall instruct the jury in the law governing the case. Prior to trial, any party may file written requests that the Court instruct the jury on the law as set forth in the request. The Court shall inform the parties or their counsel of its proposed action upon such request prior to trial. No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds for the objection. Opportunity shall be given to make the objection out of the hearing of the jury. The Court shall either give or refuse the instruction as requested, or may modify the instruction indicating on the record the modifications made, and give it as modified.

  2. In a civil case, a majority vote of at least four (4) of the six (6) jurors is necessary for a verdict.

  3. In criminal cases, a unanimous jury vote is necessary for a verdict.

  4. In any criminal case, if the jury cannot reach an unanimous verdict, a mistrial shall be declared by the judge who shall advise the Tribal Prosecutor that within thirty (30)calendar days he may request a new trial.

  5. The judge in all cases shall announce and enter a judgment in accordance with the verdict and existing law.
(Sec. 5-40.04 added by Resolution No. Ft. McD. 98-02, effective January 5, 1998.)


Sec. 5-41. LIABILITY FOR PAYMENT OF FINES.

In the event a person is granted an installment plan for the payment of a fine, the judge shall set a reasonable time for the payment of said fine, and, in the event the installment plan is not adhered to by the defendant, the clerk of the community court shall advise the judge and a bench warrant shall be issued for the arrest of said defendant.

(Sec. 5-42 - 5-49. Reserved.)

 

 

ARTICLE IV. RECEIVERS

Sec. 5-50. APPLICATION FOR APPOINTMENT.

Application for the appointment of a receiver shall be in the form of a verified petition filed in the Fort McDowell Tribal Court. The petition shall set forth the facts supporting the application. The petition shall be accompanied with affidavits concerning the debts of the entity that is the subject of the receivership.


Sec. 3-51. HEARING ON APPLICATION.

The Fort McDowell Tribal Court shall hold a public hearing within thirty (30) days of the filing of the petition. Notice of the hearing shall be given to all interested parties by registered mail or in such other manner as the court may by order provide.


Sec. 5-52. FINDINGS OF FACT.

The judge of the Fort McDowell Indian Community presiding at the hearing shall make findings of fact concerning the eligibility of the receiver, the scope of the receiver's duties, any bond required to be posted by the receiver, compensation to the receiver and requirements concerning periodic accountings to the community court.


Sec. 5-53. QUALIFICATIONS OF RECEIVER.
  1. The community court shall not appoint as a receiver a member of the immediate family of any owner of the subject matter of the receivership, any employee or officer of the Fort McDowell Yavapai Indian Community, or any person otherwise interested in the subject matter of the receivership except under the provisions of subsection (b) of this section.

  2. After such notice as the community court shall find is adequate, and if no party shall have objected, the court may appoint a person interested in the subject matter of the receivership if the court finds the subject matter of the receivership has been abandoned or that the duties of the receiver will consist chiefly of physical preservation of the property (including crops growing thereon), collection of rents or the maturing, harvesting, and disposition of crops then growing thereon.

Sec. 5-54. BOND.

Before entering upon his duties, the receiver, if the community court so requires, shall file a bond to be approved by the community court. The bond shall be in the amount fixed by the order of appointment and conditioned that the receiver shall faithfully discharge his duties and obey orders of the community court. The receiver shall make an oath to the same effect, which oath shall be endorsed on the bond. The clerk of the community court shall thereupon deliver to the receiver a certificate of his appointment. The certificate shall contain a description of the property involved in the action.


Sec. 5-55. REMOVAL OR SUSPENSION OF RECEIVER; TERMINATION OF RECEIVERSHIP.
  1. Dismissal of action. An action wherein a receiver has been appointed shall not be dismissed except by order of the community court.

  2. Termination of receivership. A receivership may be terminated upon motion served with at least ten (10) days notice upon all parties who have appeared in the proceedings. In the notice of hearing the community court shall require that a final account and report be filed and served upon all parties served with the notice. The final account and report shall include an audit of the books and records of receivership. An opportunity for written objections to said account shall be provided. In the termination proceedings the court shall take such evidence as is appropriate and shall make such order as is just concerning its termination, including all necessary orders in regard to the fees and costs of the receivership.
  3. Suspension; removal of receiver. The community court may at any time suspend a receiver and may, upon notice, remove a receiver and appoint another.




Fort McDowell Yavapai Nation
P.O. Box 17779, Fountain Hills, Arizona 85269
Phone (480) 837-5121 Fax (480) 837-1630

President Dr. Clinton M. Pattea Vice President Robin Russell Treasurer Larry Doka

Council Member Gwen Bahe Council Member Benedict Smith, Sr.

Resolution No. Ft. McD 2000-55

WHEREAS the Fort McDowell Yavapai Nation Tribal Council (Tribal Council) has the power "[t]o govern the civil and criminal conduct of persons within the jurisdiction of the Nation." Article V, Section 13(A)(2), 1999 Constitution of the Fort McDowell Yavapai Nation.

WHEREAS the Tribal Council has the power "[t]o enact and enforce ordinances regulating ...crimes, law enforcement...." Article V, Section 13(A)(3), 1999 Constitution of the Fort McDowell Yavapai Nation.

WHEREAS the Tribal Council has the power "[t]o establish law enforcement agencies." Article V, Section 13(A)(4), 1999 Constitution of the Fort McDowell Yavapai Nation.

WHEREAS the Tribal Council has the power "[t]o protect and regulate the public health, safety and morals of the Nation." Article V, Section 13(A)(5), 1999 Constitution of the Fort McDowell Yavapai Nation.

WHEREAS the Tribal Council has the power "[t]o enact laws, ordinances, resolutions and take such actions as shall be necessary or incidental to the [above-stated] legislative powers." Article V, Section 13(8)(1), 1999 Constitution of the Fort McDowell Yavapai Nation.

IT IS RESOLVED THAT the Tribal Council enacts the following laws:
  1. Amends Sections 5-32, 5-35, and 5-36, Law and Order Code.

  2. Sections 8-3, Law and Order Code. This newly enacted section repeals former section 8-3.

  3. Section 8-6, Law and Order Code. This newly enacted section repeals former section 8-6.

  4. The above-stated enacted laws shall take effect immediately.

CERTIFICATION

Pursuant to the authority stated in Article V, Section 13(A)(2) & (3) and (B)(1) & (2), Constitution of the Fort McDowell Yavapai Nation, revised by the Nation on October 19, 1999 and approved by the Secretary of Interior on November 12, 1999, the foregoing Resolution was adopted the 30th of May, 2000, by the Tribal Council of the Fort McDowell Yavapai Nation, at which a quorum of 5 members were present and 0 were absent, by a vote of 3 for and 1 opposed and 0 abstained.

Dr. Clinton M. Pattea
President
Fort McDowell Yavapai Nation

Mona Nunez
Secretary

May 30, 2000
Date


Fort McDowell Yavapai Nation
P.O. Box 17779, Fountain Hills, Arizona 85269
Phone (480) 837-5121 Fax (480) 837-1630

President Dr. Clinton M. Pattea Vice President Robin Russell Treasurer Larry Doka

Council Member Gwen Bahe Council Member Benedict Smith, Sr.

Resolution No. Ft. McD 2000-144

WHEREAS the Fort McDowell Yavapai Nation Tribal Council (Tribal Council) has the power "[t]o govern the civil and criminal conduct of persons within the jurisdiction of the Nation." Article V, Section 13(A)(2), 1999 Constitution of the Fort McDowell Yavapai Nation.

WHEREAS the Tribal Council has the power "[t]o enact and enforce ordinances regulating ...crimes, law enforcement...." Article V, Section 13(A)(3), 1999 Constitution of the Fort McDowell Yavapai Nation.

WHEREAS the Tribal Council has the power "[t]o protect and regulate the public health, safety and morals of the Nation." Article V, Section 13(A)(5), 1999 Constitution of the Fort McDowell Yavapai Nation.

WHEREAS the Tribal Council has the power "[t]o enact laws, ordinances, resolutions and take such actions as shall be necessary or incidental to the [above-stated] legislative powers." Article V, Section 13(B)(1), 1999 Constitution of the Fort McDowell Yavapai Nation.

WHEREAS the Tribal Council has determined that victims of crimes are entitled to and need certain protections.

IT IS RESOLVED THAT the Tribal Council enacts the following laws:
  1. Adopting Section 5-2 of the Law and Order Code, a copy of which is attached as Appendix A

CERTIFICATION

Pursuant to the authority stated in Article V, Section 13(A)(2) & (3) and (B)(1) & (2), Constitution of the Fort McDowell Yavapai Nation, revised by the Nation on October 19, 1999 and approved by the Secretary of Interior on November 12, 1999, the foregoing Resolution was adopted the 13th of December, 2000, by the Tribal Council of the Fort McDowell Yavapai Nation, at which a quorum of 4 members were present and 1 was absent, by a vote of 3 for and 0 opposed and 0 abstained.

Dr. Clinton M. Pattea
 President
Fort McDowell Yavapai Nation

Mona Nunez
Secretary

December 13, 2000
Date

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