Chapter
3. Criminal Proceedings
Legislative History.
This revised chapter was enacted by the Tribal Council on September
13, 1988.
Sec. 1. Jurisdiction of Court.
The Fort McDermitt Tribal Court shall have exclusive criminal jurisdiction
over all tribal law criminal offenses occurring within Fort McDermitt
Nevada Indian Country except that prohibited by federal law. Until such
time as Public Law 280 criminal jurisdiction is retroceded by the State
of Oregon, the State of Oregon will continue to exercise exclusive criminal
jurisdiction over criminal acts occurring within the Oregon lands. However,
when the State of Oregon retrocedes criminal jurisdiction over the Oregon
lands, the Tribal Court will assume exclusive criminal jurisdiction
except that prohibited by federal law.
Sec. 2. Complaints; Form; Requirements.
No complaint filed with the Fort McDermitt Tribal Court shall be valid
unless its form meets the requirements of the Rules of Court and shall
have been witnessed by either a judge of the court, the Court Clerk
or a police officer or similar tribal official assigned to work within
Fort McDermitt Indian Country.
Sec. 3. Juries.
(a)
Right to Jury; Number of Jurors. In any case where a defendant is
accused of any tribal offense punishable by imprisonment, that person
shall have the right, upon request, to a trial by jury of not less
than six persons.
(b) Juror
Lists. The Court Clerk shall obtain a list of all tribal members from
the Chairman of the Enrollment Committee each year and shall call
prospective jurors from such list in sufficient number to ensure that
a jury shall be available at each jury trial. The Court Clerk may
also obtain a list of non Indians residing in the vicinity of the
Old Reservation and call willing persons to sit on prospective juries.
(c) Juror
Pay. Each juror who sits on a jury and hears testimony shall be entitled
to at least four hours pay at the prevailing minimum wage pay scale.
Sec. 4. Witnesses.
(a) Issuance
of Subpoenas. The several judges of the Fort McDermitt Tribal Court
are authorized to issue subpoenas for the attendance of witnesses
either on their own motion or on the request of any party. All subpoenas
shall bear the signature of the judge issuing it.
(c) Witness
Pay. Witnesses answering subpoenas issued to the party calling them
by the Tribal Court on its own motion or those witnesses considered
hostile shall be entitled to at least four hours pay at the prevailing
minimum wage pay scale paid by the court. Witnesses who testify voluntarily
and who are not hostile to the party calling them, with or without
the issuance of a subpoena, shall be paid by the party calling them.
Any party paying any witness more than the prevailing minimum wage
scale shall advise the court of such by sworn affidavit.
Sec. 5. Arrests.
No police
officer or other law enforcement officials of the Fort McDermitt Tribe
or Bureau of Indian Affairs shall arrest any person for any offense
defined in Chapter 7 of this Law & Order Code unless the offense
shall occur in the presence of the arresting officer or he shall have
reasonable evidence that the person arrested has committed an offense
or the officer shall have an arrest warrant commanding him or her to
apprehend such named or described person.
Sec. 6. Citation in Lieu of Arrest.
All police
officers or other law enforcement officials of the Fort McDermitt Tribe
or Bureau of Indian Affairs may, in their discretion, when circumstances
warrant it, issue a citation, approved by the Tribal Council, in lieu
of incarcerating such person. The person offered the opportunity to
sign an approved citation shall sign their name agreeing to appear in
Tribal Court at the time and date so stated without pleading guilty
by affixing their signature.
Sec. 7. Arrest Warrants.
(a) Conditions
for Issuance. Every judge of the Fort McDermott Tribal Court shall
have the authority to issue arrest warrants only after a valid written
complaint has been filed with the court, bearing the signature of
the tribal member who is the complaining witness. Telephonic arrest
warrants may be granted any Bureau of Indian Affairs Police Officer
only after sufficient information is presented the judge verbally
and the officer takes an oath, subject to criminal punishment in the
Tribal Court or Federal Court, for presenting false or misleading
information to the judge which causes a violation of the Indian Civil
Rights Act of 1968.
(b) How
Served. Service of Warrants shall be conducted by a Police Officer
of the Bureau of Indian Affairs.
Sec. 8. Search Warrants.
(a)
Conditions for Issuance. Every judge of the Fort McDermitt Tribal
Court shall have the authority to issue search warrants for specific
locations, premises and property of any person under the jurisdiction
of the court. No warrant shall issue except upon a duly signed and
written complaint based upon reliable information or belief and charging
the commission of tribal law against the dignity of the people of
the Fort McDermitt, Tribe. All search warrants shall contain the name
and description of the person or property to be seized.
(b) How
Served. Service of Search Warrants shall be conducted by a Police
Officer of the Bureau of Indian Affairs.
Sec. 9. Bail or Bond; Form; Requirements.
(a)
Right to Bail or Bond. Every person charged with an offense before
the Fort McDermitt Tribal Court, except in the case of Murder, Rape,
or Robbery with a deadly weapon, shall be admitted to bail or bond.
(b) Method
of Bail or Bond. Bail shall be by either cash bond or by the signing
of an agreement by two reliable members of any Indian tribe who shall
appear before a judge of the Tribal Court where the complaint has
been filed and there execute an agreement in an acceptable form.
(c) Form;
Requirements. The form utilized by any judge of the Fort McDermitt
Tribal Court to allow two Indians to be responsible for the person
arrested shall require the persons to be responsible for the actions
of the person arrested until such time that they notify the court
that they no longer wish to be responsible. The form shall also specify
that the penalty for violating conditions of release shall not exceed
twice the maximum penalty set by the violation in Chapter 7 of the
Law & Order Code with which the accused is charged.
Sec. 10. Appeals
(a)
Court of Appeals. The Court of Appeals of the Fort McDermitt Tribe
is hereby abolished. All appeals shall be made to the Court of Appeals
for Western Nevada established by the Bureau of Indian Affairs, Western
Nevada Agency, Carson City, through the Court Clerk, Fort McDermott
Tribal Court. At such time as the State of Oregon shall retrocede
Public Law 280 criminal jurisdiction to the Fort McDermitt Tribe,
appeals shall be made to either the Court of Appeals established by
the Warm Springs Agency or the Western Nevada Agency, whichever proclaims
jurisdiction over the Oregon lands of the Fort McDermitt Tribe by
its Rules of Court and/or Criminal Procedures.
(b) Method
of Appeal; Cash Bond; Time Limit. The party wishing to appeal from
a decision of the Fort McDermitt Tribal Court shall do so according
to the Rules of Court and Criminal Procedures of the BIA, Western
Nevada Agency, Court of Appeals. Absent such Rules of Court or Criminal
Procedure, all appeals shall be made, in writing, to the Court Clerk
of the Tribal Court within 20 working days of the decision by 3:00
P.M. of the final day. A bond of $50.00 shall be paid in cash, Money
Order or Cashier's Check at the time the appeal is filed with the
Clerk of the Tribal Court.
(c) Travel
and Related Expenses of Witnesses. Because there are no known written
Rules of Court or Criminal Procedures of the BIA, Western Nevada Agency,
Court of Appeals, the party appealing the decision of the Fort McDermitt
Tribal Court shall either seek reimbursement for expenses of getting
witnesses to the site of the BIA, Western Nevada Agency, Court of Appeals
from the Superintendent of the Agency or the Court of Appeals in its
plea or shall bear all costs themselves whichever is the stated policy
of the BIA Court of Appeals. In no event shall the Fort McDermitt Tribe
or Tribal Court be financially responsible for such costs or any other
costs of appeal.
Sec. 11. Sentencing; Nature; Probation; Parole.
(a)
Sentencing; Nature. Any person who has been convicted in a proceeding
before the Fort McDermitt Tribal Court shall be sentenced to either
work for the benefit of the Tribe and its members and elders, fined
in an amount appropriate for the offense, and/or incarcerated for
an appropriate time limit.
(b) Probation.
Any person who has been convicted in a proceeding before the Fort
McDermitt Tribal Court shall be entitled to have a sentencing report
completed by the court personnel, law enforcement officials, social
services staff of the Tribe and others to assist the court in determining
whether or not probation, in the specific case, would be a viable
alternative form of punishment or rehabilitation.
(c) Parole.
Any person who has been convicted in a proceeding before the Fort McDermitt
Tribal Court shall be entitled to have their request for parole heard
by the judge originally sentencing them or the Chief Judge every 90
days if the sentence runs longer than 90 days or after 60 days of time
served if the sentence is less than 90 days but more than 60 days.
Sec. 12. Incarceration Prior to Arraignment; Time Limit.
No person arrested and incarcerated shall be held for violating tribal
law longer than 72 hours unless an order, duly signed by a judge of
the Fort McDermitt Tribal Court, is issued. If no order has been issued,
the person having custody of the person incarcerated shall release them
upon their request.
Sec. 13. Credit for Time Served Prior to Arraignment.
In determining the sentence to be served for violating tribal law, the
judges of the Tribal Court may grant credit for time served prior to
arraignment or afterwards if the person is not released pending trial.
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