Hoopa Valley Tribal Code

Title 4B - E:sdo’ NA:NA: Xi:nay Code

[Juvenile Rehab Code] E:sdo’ NA:NA: Xi:nay Code of the Hoopa Valley Tribe

TITLE 4B

Hoopa Valley Tribal Code

Approved October 24, 2002
Ordinance No. 02-02

1. SHORT TITLE, PURPOSE AND DEFINITIONS

A. Short Title

This title shall be known as "The Hoopa Valley Tribe E:sdo’ NA:NA: XI:nay Code.”

B. Purpose

The E:sdo’ NA:NA: XI:nay Code shall be liberally interpreted and construed to fulfill the following expressed purposes:

1. To preserve and retain the unity of the family whenever possible and to provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this code;

2. To recognize that alcohol and substance abuse is a disease which is both preventable and treatable and to recommend or court order participation in the Hoopa Valley Tribe Juvenile Wellness Court;

3. To remove the legal consequences of criminal behavior from children committing delinquent acts, and to substitute therefore a program of supervision, care, and rehabilitation consistent with the protection of the Hoopa Valley Tribal Community;

4. To achieve the purposes of this code in a family environment whenever possible, separating the child from the child's parents only when necessary for the child's welfare or in the interests of public safety;

5. To provide judicial and other procedures through which the provisions of this code are executed and enforced and in which the parties are assured a fair hearing and their civil and other legal rights recognized and enforced;

6. To provide a continuum of services for children and their families from prevention to residential treatment, with emphasis whenever possible on prevention, early intervention and community-based alternatives; and;

7. To provide a forum where an Indian child complained or alleged to be "delinquent" or as having committed a "status offense" in other jurisdictions may be referred for adjudication and/or disposition.

C. Definitions

1. "Adjudicatory Hearing": A proceeding in the E:sdo’ NA:NA: XI:nay Court to determine whether a child has committed a specific "delinquent act" as set forth in a petition.

2. "Adult": An individual who is eighteen (18) years of age or older or a person that has been declared legally emancipated by a Court of competent jurisdiction.

3. “Alcohol, Intoxicating Beverages, or Liquor”: All forms of alcohol that are manufactured, sold, and commonly used for human consumption.

4. "Alcohol or Substance Abuse Emergency Shelter or Halfway House": An appropriately licensed and supervised emergency shelter or halfway house for the care and treatment of juveniles with regard to alcohol and/or substance abuse problems.

5. “Child”: A person under 18 years of age and not an adult. Whenever necessary, the singular form shall be interpreted as the plural, i.e., child interpreted as children.

6. "Child-Indian" or “Indian Child”: A child who is an enrolled member of a federally recognized tribe or a child who is eligible for membership in a federally recognized Tribe.

7. “Community Service”: A dispositional or consent decree option that requires an individual to donate time and labor for the betterment of the Hoopa Valley Tribal Community.

8. "Consent Decree": A court order which suspends a "juvenile delinquent" proceeding prior to adjudication and continues the child or the family under supervision under terms and conditions agreed to by all parties.

9. "Controlled Substance": The controlled substances referenced by this code are defined by Schedules I through V of the State of California Health and Safety Code, Sections 11054, 11055, 11056, 11057, and 11058 that are in effect at the time of the offense.

10. "Counsel": An advocate, spokesperson or attorney.

11. "Court" or "E:sdo’ NA:NA: XI:nay Court”: The E:sdo’ NA:NA: XI:nay Court of the Hoopa Valley Tribe.

12. "Curriculum Change": Includes but is not limited to: (a) a change in a child's instructor, if available; (b) a change in the scheduling of a child's classes, if available; (c) reassignment of a child into another class section, if available; (d) a change in the content of a child's course of instruction, if available; and (e) a change in the child's school, if available. (See the definition of "family in need of services.")

13. "Custodian": A person, other than a parent or guardian, who cares for, controls, and maintains a child.

14. "Delinquent Act": Any one of the acts listed in sections 2, 3, or 4 of this code, committed by a child.

15. "Detention": Exercising authority over a child by physically placing the child in any juvenile facility designated by the court and restricting the child's movement in that facility.

16. "Dispositional Hearing": A proceeding in the E:sdo’ NA:NA: XI:nay Court to determine how to resolve a case after it has been determined at the adjudicatory hearing that the child has committed a specific "delinquent act(s)."

17. “Diversion Program”: An informal or formal plan or therapeutic course with the goal of treating alcohol, substance abuse, behavioral problems, or another malady.

18. "Domicile": A person's permanent home, legal home or main residence. The domicile of a child is generally that of the custodial parent or guardian. Domicile includes the intent to establish a permanent home or where the parent or guardian consider to be their permanent home. Domicile for purposes of jurisdiction is established at the time of the alleged acts.

19. “Drugs”: See the definition of "Controlled Substance."

20. “Eligible Family Member”: A family member of an admitted or court ordered NA:tini-x’we’ NA:xo’-xi-nayi-din court participant.

21. “Eligible Household Member”: A member of the household of an admitted or court ordered NA:tini-x’we’ NA:xo’-xi-nayi-din court participant.

22. "Emergency Foster Home": A home that is licensed to accept emergency placements of children at any hour of the day or night.

23. “Extended Family”: Any person related by blood or marriage to the family or any individual who is viewed by the family as a relative (including legal guardian or custodian) or in accordance with the customs of the Hoopa Valley Tribe.

24. “Immediate Family”: Any spouse, parent, child, any person related by blood or marriage within the second degree.

25. "Family in Need of Services" Means:

a) a family whose child commits a delinquent act when the family consents (consent of one family member shall not be valid on family members that do not consent) in writing to the intervention of the court to provide the treatment, rehabilitation or services needed by the child and his/her family; or

b) a family of a child who commits a delinquent act, where the child’s physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of the person(s) or family members responsible for the child’s welfare.

(See chapters 18 through 19 of this code for specific "family in need of services" procedures).

26. “Fine”: A dispositional option that requires financial payment ordered by the Court.

27. "Foster Home": Placement with a family whose home has been licensed to accept placement of children under the age of eighteen (18). Placement must comply with Title 14 of the Hoopa Valley Tribal Code.

28. "Guardian": A person assigned by a court of law, other than a parent, having the duty and authority to provide care, shelter, and control of a child.

29. "Group Home": A residential detention facility which is licensed to care for children under the age of eighteen (18).

30. “Harm to a child's physical or mental health or welfare”: occurs in a case where there exists evidence of injury to the child, including but not limited to:

A. Any case where the child exhibits evidence of:

(1) skin bruising or any other internal bleeding,

(2) any injury to skin causing bleeding,

(3) burn or burns,

(4) poisoning,

(5) fracture of any bone,

(6) subdural hematoma,

(7) soft tissue swelling,

(8) extreme pain,

(9) death, or

(10) disfigurement or impairment of any bodily organ, and such injury is inflicted by other than accidental means, by excessive corporal punishment or where the history given concerning such condition or death is inconsistent or at variance with the degree or type of such condition or death; or

B. Any case where the child has been the victim of a sexual offense; or

C. Any case where there exists injury to the psychological capacity of a child such as failure to thrive, extreme mental distress, or gross emotional or verbal degradation as is evidenced by an observable and substantial impairment in the child's ability to function within a normal range of performance with due regard to the child's culture or medically determinable impairments and disabilities; or

D. Any case where the physical health of the child is visibly bad because the person responsible for the child's welfare has not regularly or in a timely manner provided the child with adequate food, clothing, shelter, physical or mental care, health care or supervision, when financially able to do so or if not financially able to do so, after having been offered financial assistance or health care or other reasonable means to do so and such person refuses such assistance or continues to fail to adequately care for the child. For purposes of this section “health care" means any medical or non-medical health care permitted or authorized under laws applying within the Hoopa Valley Indian Reservation; provided, however, that a person responsible for the child's welfare who, while legitimately practicing his or her religious beliefs, does not specify medical treatment for a child shall not for that reason alone be considered as harming or threatening harm to the child; or

E. Any case where the child is provided with a controlled substance. However, this paragraph shall not apply to a child's family who provides such drugs to the child pursuant to the direction or prescription of a licensed health practitioner;

31. "He/His": The use of he/his means he or she, his or her, and singular includes plural.

32. “House Arrest”: A dispositional option that confines a juvenile to remain on the property of his domicile.

33. "Interim Care": The status of temporary physical control of a child whose family is "in need of services" (see the definition of "family in need of services").

34. “Intoxicated”: Visible lack of body control and slurred speech under circumstances that would indicate to a reasonable person it is more likely than not the conditions are not natural and are caused by drugs or alcohol. The strong odor associated with alcohol on the person’s breath may be an additional factor if present.

35. "Juvenile Facility": Any juvenile facility (other than a school) that cares for juveniles or restricts their movement, including secure juvenile detention facilities, alcohol or substance abuse emergency shelter or halfway houses, foster homes, emergency foster homes, group homes, and shelter homes (see individual definitions).

36. “Juvenile Delinquent": A child who commits a "delinquent act".

37. "Juvenile Shelter Care Facility": Any juvenile facility other than a secure juvenile detention facility (see the definitions of "juvenile facility" and "secure juvenile detention facility").

38. “Juvenile Wellness Court” or “Wellness Court”: The Hoopa Valley Tribe NA:tinix’we’ NA:xo’-xi-nayi-din Court.

39. "Parent": Includes a natural or adoptive parent, but does not include persons whose parental rights have been legally terminated, nor does it include the unwed father whose paternity has not been acknowledged in writing by both parents or established.

40. “Participant”: A child, eligible family member, or eligible household member admitted or court ordered to participate in the judge supervised treatment plan of the Juvenile Wellness Court.

41. "Presenting Officer": The person who performs the duties and responsibilities set forth in section 8C of this code.

42. "Probation": A legal status created by court order whereby a "juvenile delinquent" is permitted to remain in his home or free from detention under prescribed conditions and under the supervision of a person designated by the court. A "juvenile delinquent" on probation is subject to return to court for further proceedings in the event of his failure to comply with any of the prescribed conditions of probation.

43. "Probation Officer": The person who performs the duties and responsibilities set forth in section 8B of this code.

44. "Protective Supervision": A legal status created by court order under which a "juvenile delinquent" is permitted to remain in his home or is placed with a relative or other suitable individual under supervision and assistance is provided by the court, a health or social services agency or some other agency designated by the court.

45. "Restitution": Financial or other reimbursement by the child to the victim, limited to easily ascertainable damages for injury to or loss of property, actual expenses incurred for medical, psychiatric or psychological treatment for injury to persons, and lost wages resulting from injury, which are a direct and proximate result of the delinquent act. Restitution does not include reimbursement for damages for mental anguish, pain and suffering, or other intangible non economic losses.

46. “Restorative Justice”: The settlement of a dispute and/or the repairing of relationships in accordance with Hoopa Tribal law and custom, pursuant to Title 2 of the Hoopa Valley Tribal Code.

47. "Secure Juvenile Detention Facility": A facility which (a) contains locked cells or rooms which are separated by sight and sound from any adult inmates; (b) restricts the movement of those placed in the locked cells or rooms, and (c) complies with the other requirements of the Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. 5601 et. seq to the full extent it applies to Indian Tribes.

48. "Shelter Home": A residential facility which is licensed to care for children under the age of eighteen (18) in an unrestricted setting.

49. "Transfer to Tribal Court": Transferring a child from the jurisdiction of any county or state court to the jurisdiction of any tribal court according to chapter 7D of this code which results in the termination of the previous court’s jurisdiction over that act.

50. "Tribal Council": The Tribal Council of the Hoopa Valley Tribe.

51. "Tribal Court": The Tribal Court of the Hoopa Valley Tribe.

52. “NA:tini-x’we’ NA:xo’-xi-nayi-din Consent Decree”: An agreement which suspends a E:sdo’ NA:NA: XI:nay Court proceeding before adjudication and continues the supervision of the child, his eligible family member, and/or his eligible household member, under the terms and conditions mandated by the juvenile NA:tini-x’we’ NA:xo’-xi-nayi-din court.

53. “NA:tini-x’we’ NA:xo’-xi-nayi-din Court Team”: The NA:tini-x’we’ NA:xo’-xinayi-din court team is comprised of the NA:tini-x’we’ NA:xo’-xi-nayi-din court judge, court coordinator, probation officer/police department representative, alcohol and drug counselor, social services worker, school district representative, and other representatives as designated by the Chief Judge of the court.

2. DELINQUENT ACTS [SUBJECT TO SECURE DETENTION]

A. Acts Against the Person

1. Assault:
An assault is a threat or volitional act by a child, coupled with a present ability, to commit a violent physical contact with the person of another.

2. Battery:
A battery is any willful and unlawful use of force or violence by a child making physical contact with the person of another.

3. Harassment:

(a) Every child who, with intent to annoy, telephones or makes contact including by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, commits harassment.

(b) Every child who makes repeated telephone calls or makes repeated contact including by means of an electronic communication device with intent to annoy another person at his or her residence or place of work, whether or not conversation ensues from making the telephone call or other contact, commits harassment.

(c) For purposes of this Section 3 the following provisions will apply:

(1) Any act committed by use of a telephone may be deemed to have been committed where the telephone call or calls were made or received.

(2) Any act committed by use of an electronic communication device or medium, including the Internet, may be deemed to have been committed when the electronic communication or communications were originally sent or first viewed by the recipient.

(3) "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term is defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

(4) Nothing in this section shall apply to telephone calls or electronic contacts made in good faith which are reasonable under the circumstances and non threatening.

4. Stalking:

(a) Any child who willfully and maliciously follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, commits the act of stalking.

(b) For the purposes of this section, "harasses" means a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person.

(c) The E:sdo’ NA:NA: XI:nay Court shall consider issuing an order restraining the delinquent from any contact with the victim. The length of any restraining shall order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family.

(d) For purposes of this Section 4 the following will apply:

(1) "course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct."

(2) "credible threat" means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a child making the threat shall not be a bar to adjudication under this section.

(3) "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

B. Acts Against Property

1. Destruction of Signs:
Any child who maliciously pulls down or defaces any sign of the Hoopa Valley Tribe, State, Federal Government, or any advertisement authorized by law commits the act of destruction of signs.

2. Destruction of Fences:
Any child who willfully destroys or, in any manner renders ineffective, a lawfully erected fence belonging to another person or the Hoopa Valley Tribe commits the act of fence destruction.

3. Joyriding:

(a) A child commits the act of joyriding, if he drives or takes away any motor vehicle without the consent of the owner or lawful possessor, or participates with any other person in such conduct, with the intent of temporarily depriving the owner or rightful possessor of the use of the same, or of temporarily making use of the motor vehicle.

(b) For purposes of this section, a motor vehicle may include, but is not limited to, automobiles, two and four-wheel all-terrain vehicles, snowmobiles, lawn mowers, boats, personal watercraft, canoes and bicycles.

4. Destruction of Property and Vandalism:

(a) Every child who maliciously commits any of the following acts with respect to any real or personal property not his or her own, commits the act of vandalism:

(1) Defaces with graffiti or other inscribed material.
(2) Damages.
(3) Destroys.

(b) Whenever a child violates this section with respect to real property, vehicles, signs, fixtures, furnishings, or property belonging to any public entity including tribal government it shall be a permissive inference that the person neither owned the property nor had the permission of the owner to deface, damage, or destroy the property.

(c) As used in this section, the term "graffiti or other inscribed material" includes any unauthorized inscription, word, figure, mark, or design, that is written, marked, etched, scratched, drawn, or painted on real or personal property.

5. Theft of Property:

(a) Every child who shall steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, commits the act of theft.

(b) One who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him, commits the act of theft.

6. Receiving Stolen Property:

(a) Every child who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any property from the owner, knowing the property to be so stolen or obtained, commits the act of receiving stolen property.

(b) Every child who, in another state, country, or reservation steals or embezzles the property of another, or receives such property knowing it to have been stolen or embezzled, and brings the same into the Hoopa Valley Indian Reservation, may be convicted and punished in the same manner as if such larceny, or embezzlement, or receiving had been committed in this reservation.

7. Burglary:

(a) Every child who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, sealed cargo container (whether or not mounted on a vehicle), mine or any underground portion thereof, with intent to commit theft or any other delinquent act commits burglary.

C. Acts Involving Animals

1. Cruelty to Animals:

(a) Every child who maliciously and intentionally maims, mutilates, tortures, or wounds a domesticated living animal, or maliciously and intentionally kills any domesticated animal, commits the act of cruelty to animals.

(b) In this title the word "animal" includes every domesticated dumb creature; the words "torment," "torture," and "cruelty" include every act, omission, or neglect whereby unnecessary or unjustifiable physical pain or suffering is caused or permitted; the word “domesticated” includes any living animal a person owns.

D. Acts Involving Conduct

1. Aiding and Abetting:

(a) Every child who assist or facilitates the commission of a crime or delinquent act, or promotes accomplishment of a crime or delinquent act is guilty of aiding and abetting.

(b) A child shall not be adjudicated as committing aiding and abetting if no person is adjudicated guilty of committing the underlying delinquent act or crime.

2. Brandishing a Deadly Weapon:

(a) Every child who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded or any other deadly weapon in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm or other deadly weapon in any fight or quarrel has committed the act of brandishing a deadly weapon.

(b) As used in this code, "firearm" means any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.

(c) As used in this code, “deadly weapon” shall be defined as one likely to produce death or great bodily injury, including but not limited to firearms, bows, slingshots and knives.

3. Brandishing Imitation Firearms:

(a) Every child who, except in self-defense, draws or exhibits an imitation firearm in a threatening manner against another in such a way as to cause a reasonable person apprehension or fear of bodily harm.

(b) For purposes of this section, an imitation firearm means a replica of a firearm that is so substantially similar in physical properties to an existing firearm as to lead a reasonable person to conclude that the replica is a firearm.

(c) As used in this section, "firearm" means any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion.

4. Concealed Weapons:

(a) Any child who shall go about in public places armed with a deadly weapon concealed upon his person unless he shall have a valid permit commits the act of concealed weapons.

(b) The court, in addition to any other disposition authorized by law, may confiscate and dispose of the weapons so carried.

(c) As used in this section, “deadly weapon” shall be defined as one likely to produce death or great bodily injury, including knives and firearms.

5. Loaded Firearm in Vehicle:

(a) Any child who has a loaded firearm, in a vehicle within one mile of the Trinity River commits the act of a loaded firearm in vehicle.

(b) As used in this section, "firearm" means any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion and “loaded” means a firearm with a cartridge in the chamber, magazine, clip or cylinder.

6. Disorderly Conduct:

(a) Disorderly conduct includes the following types of conduct:

(1) Any child who unlawfully fights in a public place or challenges another person in a public place to fight;

(2) Any child who maliciously and willfully disturbs another person by loud and unreasonable noise;

(3) Any child who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction; or

(4) A child and at least one other person who assemble for the purpose of disturbing the public peace, or committing any unlawful act, and do not disperse on being requested or commanded to do so by a public officer.

(b) Any child who, as a result of violating subsection (4), personally causes damage to real or personal property, which is either publicly or privately owned, shall make restitution for the damage he or she caused, including, but not limited to, the costs of cleaning up, repairing, replacing, or restoring the property. Any restitution required to be paid pursuant to this subdivision shall be paid directly to the victim. If the court determines that the delinquent is unable to pay restitution, the court shall order the delinquent to perform community service, as the court deems appropriate, in lieu of the direct restitution payment.

(c) This section shall not preclude the court from imposing restitution in the form of a penalty assessment if the court, in its discretion, deems that additional restitution appropriate.

(d) The burden of proof on the issue of whether any child personally caused any property damage shall rest with the presenting officer or claimant. In no event shall the burden of proof on this issue shift to the child or any of several children to prove that he or she was not responsible for the property damage.

7. Removal or Destruction of Graves and Antiques:

(a) Any child who shall willfully and knowingly remove or desecrate in any manner
whatever any burial site or deface, alter, or destroy any cultural items, sacred objects, or items of cultural patrimony located within the exterior boundaries of the Hoopa Valley Reservation shall be deemed to have committed the removal or destruction of graves and antiquities.

(b) For purposes of this section, the term –

(1) ''Burial site'' means any natural or prepared physical location, whether originally below, on, or above the surface of the earth, into which as a part of the death rite or ceremony of a culture, individual human remains are deposited.

(2) ''Cultural items'' means human remains and:

(A) ''Funerary objects'' which shall mean objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later;

(B)”Sacred objects'' which shall mean specific ceremonial objects which are used or possessed by Indians for traditional cultural religious purposes; and

(C) ''Cultural patrimony'' which shall mean an object having ongoing historical, traditional, or cultural importance central to the Indian group or culture itself, rather than property owned by an individual Indian, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian Tribe and such object shall have been considered inalienable by such Indian group at the time the object was separated from such group.

8. Intimidation:

(a) Any child who willfully threatens to commit an act which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her family's safety, commits the act of intimidation.

For purposes of this section "Electronic communication device" includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.

9. Possession of Destructive Devices:

(a) Every child who recklessly or maliciously has in his possession any destructive device or any explosive on a public street or highway, in or near any theater, hall, school, college, church, hotel, other public building, or private habitation, in, on, or near any aircraft, railway passenger train, car, cable road or cable car, vessel engaged in carrying passengers for hire, or other public place ordinarily passed by human beings commits the act of possession of destructive devices.

(b) The term "destructive device," as used in this chapter, shall include any of the following weapons:

(1) Any projectile containing any explosive or incendiary material or any other chemical substance, including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns.

(2) Any bomb, grenade, explosive missile, or similar device or any launching device therefor.

(3) Any weapon of a caliber greater than 0.60 caliber which fires fixed ammunition, or any ammunition therefor, other than a shotgun (smooth or rifled bore).

(4) Any rocket, rocket-propelled projectile, or similar device of a diameter greater than 0.60 inch, or any launching device therefor, and any rocket, rocket-propelled projectile, or similar device containing any explosive or incendiary material or any other chemical substance, other than the propellant for such device, except such devices as are designed primarily for emergency or distress signaling purposes.

(5) Any breakable container that contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination.

(6) Any sealed device containing dry ice (CO2) or other chemically reactive substances assembled for the purpose of causing an explosion by a chemical reaction.

(c) The term "explosive," as used in this chapter, shall mean any explosive defined in Section 12000 of the California Health and Safety Code.

10. Setting Fire to Wooded Areas:

(a) A child commits the act of setting fire to wooded areas when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property. This shall not include forest land burned at specific times pursuant to tribal cultural purposes.

(b) In this section, the following terms have the following meanings:

(1) "Structure" means any building, or commercial or public tent, bridge, tunnel, or powerplant.

(2) "Forest land" means any brush covered land, cut-over land, forest, grasslands, or woods.

(3) "Property" means real property or personal property, other than a structure or forest land.

(4) "Inhabited" means currently being used for dwelling purposes whether occupied or not. "Inhabited structure" and "inhabited property" do not include the real property on which an inhabited structure or an inhabited property is located.

(5) "Maliciously" imports a wish to vex, defraud, annoy, or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law.

(6) "Recklessly" means a child is aware of and consciously disregards a substantial and unjustifiable risk that his or her act will set fire to, burn, or cause to burn a structure, forest land, or property. The risk shall be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A child who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

E. Alcohol and Controlled Substances

1. Possession of Controlled Substances:
Except as otherwise provided in this division, every child who possesses (1) any controlled substance specified in subdivision (b) or (c), or paragraph (1) of subdivision (f) of Schedule I, specified in paragraph (14), (15), or (20) of subdivision (d) of Schedule I, or specified in subdivision (b) or (c) of Schedule II, or specified in subdivision (h) of Schedule III, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in this state commits the act of possession of controlled substances.

2. Sale of Controlled Substances:
Except as otherwise provided in this division, every child who transports, imports into the reservation, sells, furnishes, administers, or gives away, or offers to transport, import into the reservation, sell, furnish, administer, or give away, or attempts to import into the reservation or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Schedule I, specified in paragraph (14), (15), or (20) of subdivision (d) of Schedule I, or specified in subdivision (b) or (c) of Schedule II, or specified in subdivision (h) of Schedule III, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist, or veterinarian licensed to practice in the reservation.

F. Sexual Acts

1. Prostitution:
The act of prostitution consists of:

(a) Any child who solicits to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.

(b) Solicitation or an agreement to engage in or engagement in any act of prostitution. A person agrees to engage in an act of prostitution when, with specific intent to so engage, he or she manifests an acceptance of an offer or solicitation to so engage, regardless of whether the offer or solicitation was made by a person who also possessed the specific intent to engage in prostitution. No agreement to engage in an act of prostitution shall constitute a violation of this subdivision unless some act, in addition to the agreement, is done in furtherance of the commission of an act of prostitution by the person agreeing to engage in that act. As used in this subdivision, "prostitution" includes any lewd act between persons for money or other consideration.

2. Indecent Exposure:
Every child who willfully and lewdly, either: (1) Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or, (2) Procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts.

3. Rape:
Rape is an act of sexual intercourse accomplished by a child with a person not the spouse of the perpetrator, under any of the following circumstances:

(a) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the child committing the act. The presenting officer shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.

(b) Where the act or acts is/are accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person of another.

(c) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the child.

(d) Where a person is at the time unconscious of the nature of the act, and this is known to the child. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:

(1) Was unconscious or asleep.

(2) Was not aware, knowing, perceiving, or cognizant that the act occurred.

(3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.

(e) Where a person submits under the belief that the child committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the child, with intent to induce the belief.

(f) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.

(g) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.

As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the delinquent, are factors to consider in appraising the existence of duress.

As used in this section, "menace" means any threat, declaration, or act which shows an intention to inflict an injury upon another.

The essential guilt of rape consists in the outrage to the child and feelings of the victim of the rape. Any sexual penetration, however slight, constitutes sexual intercourse and is sufficient to complete the crime.

In adjudications under this section in which consent is at issue, "consent" shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.

A current or previous dating or marital relationship shall not be sufficient to constitute
consent where consent is at issue in an adjudication.

Nothing in this section shall affect the admissibility of evidence or the burden of proof on the issue of consent.

4. Unlawful Sexual Intercourse:

(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a child who is not the spouse of the child.

Any sexual penetration, however slight, constitutes sexual intercourse and is sufficient to complete the crime.

In adjudications under this section in which consent is at issue, "consent" shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.

A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in an adjudication.

Nothing in this section shall affect the admissibility of evidence or the burden of proof on the issue of consent.

5. Sexual Misconduct:
Any child who willfully and lewdly commits any lewd or lascivious act, including any of the other acts in this code, upon or with the body, or any part or member thereof, of a child or any person, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, commits sexual misconduct.

G. Acts Involving Tribal Government

1. Disturbance of Legal Proceedings:

(a) Disorderly, contemptuous, or insolent behavior committed, in immediate view and presence of the court, and directly tending to interrupt its proceedings or to impair the respect due to its authority.

(b) Behavior as specified in Section (a) committed while actually engaged in any trial or hearing, pursuant to the order of any court, or in the presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceedings authorized by law.

(c) Any breach of the peace, noise, or other disturbance intended to interrupt the proceedings of any court.

(d) Willful disobedience of the terms as written of any process or court order lawfully issued by any court, including orders pending trial.

(e) Resistance willfully offered by any child to the lawful order or process of any court.

(f) The contumacious and unlawful refusal of any child to be sworn as a witness; or, when so sworn, the like refusal to answer any material question.

(g) The publication of a false or grossly inaccurate report of the proceedings of any court.

(h) Presenting to any court having power to pass sentence upon any prisoner under conviction, or to any member of the court, any affidavit or testimony or representation of any kind, verbal or written, in aggravation or mitigation of the punishment to be imposed upon the prisoner, except as permitted by the Court.

2. Obstructing or Resisting Public Officer:
Any act intended to deter or prevent a public officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty.

3. Threatening a School Officer or Public Official:
Every child who, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an injury upon any person or property, when it reasonably appears to the recipient of the threat that such threat could be carried out, commits the act of threatening a school official or public officer.

3. DELINQUENT ACTS [NOT SUBJECT TO SECURE DETENTION]

A. Incorrigible Child:
Any child who persistently or habitually refuses to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian, or who is beyond the control of his or her parents, guardian, or custodian.

B. Youth Protection Curfew:
Pursuant to Title 41 of the Hoopa Valley Tribal Code, as amended, including its definitions and procedures, it is unlawful for child to loiter or remain in any public place within the exterior boundaries of the Hoopa Valley Indian Reservation during curfew hours, except as provided under Hoopa Valley Tribal Code §41.3.2.

C. Possession of Alcohol:
Any child who has any alcoholic beverage in his or her possession on any street or highway or in any public place or in any place open to the public commits the act of possession of alcohol.

Where a peace officer has lawfully entered the premises, the peace officer may seize any alcoholic beverage in plain view that is in the possession of, or provided to, child at social gatherings, when those gatherings are open to the public, 10 or more persons under the age of 21 years are participating, persons under the age of 21 years are consuming alcoholic beverages, and there is no supervision of the social gathering by a parent or guardian of one or more of the participants.

Where a peace officer has seized alcoholic beverages pursuant to this subdivision, the officer may destroy any alcoholic beverage contained in an opened container and in the possession of, or provided to, a person under the age of 21 years, and, with respect to alcoholic beverages in unopened containers, the officer shall impound those beverages for a period not to exceed seven working days pending a request for the release of those beverages by a person 21 years of age or older who is the lawful owner or resident of the property upon which the alcoholic beverages were seized. If no one requests release of the seized alcoholic beverages within that period, those beverages must be destroyed.

D. Possession of Tobacco:
Every child who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance commits the act of possession of tobacco.

4. ACTS BY A JUVENILE IN VIOLATION OF STATE LAW

Every child that commits an act in violation of the California state criminal or juvenile law may be deemed to have committed a delinquent act under this title.

5. JURISDICTION OF THE E:SDO’ NA:NA: XI:NAY COURT

There is hereby established for the Hoopa Valley Tribe of the Hoopa Valley Indian Reservation a court to be known as the E:sdo’ NA:NA: XI:Nay Court. The court has original jurisdiction over all proceedings established under this code in which any Indian child or any child residing in or domiciled on the reservation is:

A. Juvenile Delinquent

Alleged to be a "juvenile delinquent" as defined in section 1C of this code; or

B. Family In Need of Services

Alleged to be a child whose family is "in need of services" as defined in section 1C of this code.

6. E:SDO’ NA:NA: XI:NAY COURT PROCEDURE

A. Non-Criminal Proceedings

No adjudication upon the status of any child in the jurisdiction of the court shall be deemed criminal or be deemed a conviction of a crime or disqualify him from any tribal personnel system or military service application or appointment or from holding tribal office.

B. Use in Other Proceedings

The adjudication, disposition, and evidence presented before the court shall be inadmissible as evidence against the child in any proceeding in another court, including the tribal court except as may be necessary for Constitutional double jeopardy proceedings.

C. Rules of Procedure

The procedures in the court shall be governed by the rules of procedure for the tribal court that are not in conflict with this code.

7. RELATIONS WITH OTHER AGENCIES

A. Cooperation and Grants

The court is authorized to cooperate fully with any federal, state, tribal, public or private agency or person in order to participate in any diversion, rehabilitation or training program(s) and to receive grants-in-aid to carry out the purposes of this code. This authority is subject to the approval of the Tribal Council in accordance with the Hoopa Valley Tribe Budget Ordinance if it involves an expenditure of tribal funds.

B. Social Services

The court shall utilize such social services as may be furnished by any tribal, federal, or state agency provided that it is economically administered without unnecessary duplication and expense.

C. Contracts

The court may negotiate contracts with tribal, federal or state agencies and/or departments on behalf of the tribal council for the substance, mental health, or other treatment of children who have entered informal adjustments, consent decrees, juvenile wellness court decrees, or who have been adjudicated delinquent by the court. Placement of children pursuant to this section is subject to the approval of the tribal council before the expenditure of tribal funds.

D. Transfers from Other Courts

The court may accept or decline transfers from other state or tribal courts involving alleged delinquent children for the purposes of adjudication and/or disposition.

8. E:SDO’ NA:NA: XI:NAY COURT PERSONNEL

A. E:sdo’ NA:NA: XI:Nay and NA:tini-x’we’ NA:xo’-xi-nayi-din Court Judges

1. Appointment

The E:sdo’ NA:NA: XI:Nay and NA:tini-x’we’ NA:xo’-xi-nayi-din court judge(s) shall be appointed or elected in the same manner as the tribal court judge(s).

2. Qualifications

Each court shall be comprised of one judge who has training and/or experience in juvenile matters and in Indian Child Welfare Act matters.

3. Powers and Duties

In carrying out the duties and powers specifically enumerated under this code, the judge of the court shall have the same duties and powers as the judges of the tribal court.

4. Disqualification or Disability

The rules on disqualification or disability of a juvenile judge shall be the same as those rules that govern tribal court judges stated in 1 Hoopa Valley Tribal Code 1.2.07. A judge shall also be disqualified where he admits to, or is convicted of a alcohol or drug related act, or where he admits to any act against children and/or acts including crimes of violence where not more than ten years have passed since the date of such admission or conviction.

B. Probation Officer

1. Appointment

The court shall appoint probation officer(s) to carry out the duties and responsibilities set forth in the juvenile and wellness court codes. The chief judge of the tribal court shall certify annually to the Tribal Council the number of qualified probation officer(s) needed to carry out the purpose of this code. The person(s) carrying out the duties and responsibilities set forth in this section may be labeled “probation officers" or any other title which the court finds appropriate so long as they perform the duties and responsibilities set forth in this section.

2. Qualifications

The probation officer must have an educational background and/or prior experience in the field of delivering social services to youth.

3. Resource Development

The probation officer shall identify and develop resources on the reservation, in conjunction with the Court and the Tribal Council, to enhance each child's potential as a viable member of the tribal community.

4. Duties

(a) Receive and investigate reports of delinquency and/or family in need of services;

(b) Make investigations as provided in this code or as directed by the juvenile or NA:tini-x’we’ NA:xo’-xi-nayi-din court;

(c) Conduct legal and clinical screening for eligibility for NA:tini-x’we’ NA:xo’-xi-nayi-din court;

(d) Conduct weekly random and “for cause” alcohol and/or drug testing on all NA:tini-x’we’ NA:xo’-xi-nayi-din court participants;

(e) Conduct informal conferences with participants and their families;

(f) Promptly file a report of delinquency or family in need with the presenting officer where recommended or warranted;

(g) Make written reports to the E:sdo’ NA:NA: XI:nay Court judge as ordered;

(h) Make weekly written reports to the NA:tini-x’we’ NA:xo’-xi-nayi-din court team on needed services and how the NA:tini-x’we’ NA:xo’-xi-nayi-din court team can assist the participant and their family in accessing needed services, training, or employment;

(i) monitor compliance with consent decrees and dispositional orders; and

(j) Perform such other duties in connection with the care, custody or transportation of children as the courts may require.

5. Prohibited Duties

The probation officer shall not be employed as or be required to perform the duties of a Attorney for the Tribe, presenting officer other than those duties described above.

C. Presenting Officer/Attorney for the Tribe

1. Appointment

The court shall appoint a presenting officer(s) to carry out the duties and responsibilities set forth in the juvenile and wellness court codes. The chief judge of the tribal court shall certify annually to the Tribal Council the number of qualified presenting officers needed to carry out the purpose of this code. The person(s) carrying out the duties and responsibilities set forth in this section may be labeled "presenting officers" or "juvenile presenting officers" or "juvenile petitioners" or any other title which the court finds appropriate so long as they perform the duties and responsibilities set forth in this section. “Attorney for the Tribe” is any attorney employed by the Office of Tribal Attorney and may perform all duties and responsibilities as or with a presenting officer and/or may act separately in presenting and pursing adjudication of Tribal offenses in this code with the consent of the Chairman.

2. Qualifications

The qualifications of the presenting officer(s) shall be at least the same as the qualifications for spokesperson admission to the tribal court.

3. Duties

(a) File petitions with the court as provided in this code;

(b) Represent the tribe in all proceedings under this code; and

(c) Perform such other duties as the court may order.

D. Public Defender

1. Appointment

The court shall appoint a public defender(s) to carry out the duties and responsibilities set forth in this code. The chief judge of the tribal court shall certify annually to the tribal council the number of qualified public defenders needed to carry out the purpose of this code and the Tribal Council shall appropriate funds for such positions as it deems necessary and appropriate. The person(s) carrying out the duties and responsibilities set forth in this section may be labeled "public defenders" or "juvenile public defenders" or any other title which the court finds appropriate so long as they perform the duties and responsibilities set forth in this section.

2. Qualifications

The qualifications of the public defender(s) shall be the same as the qualifications for the official who acts as presenting officer.

3. Duties

(a) Represent the child throughout all court proceedings;

(b) Provide legal advice to the child; and

(c) Perform such other duties as the court may order.

E. Court Coordinator

1. Appointment

The judge shall appoint a court coordinator to carry out the duties and responsibilities set forth in the juvenile and NA:tini-x’we’ NA:xo’-xi-nayi-din court codes. The person(s) carrying out the duties and responsibilities set forth in this section may be labeled “court coordinator and/or NA:tini-x’we’ NA:xo’-xinayi- din court coordinator” or any other title which the court finds appropriate so long as they perform the duties and responsibilities set forth in this section.

2. Qualifications

The court coordinator shall have an educational background and/or prior experience in alcohol and substance abuse education and counseling, and/or juvenile probation, and/or court administration.

3. Duties

a. Set up and maintain the weekly docket case staffing conferences, and status hearings calendars;

b. Provide notices of such hearings to the judge, the presenting officer, the probation officer, the alcohol and drug counselor, the social worker, the child and his parent, guardian, or custodian, the child’s advocate or attorney and other individuals that the court requires to be present;

c. Set up a paper (questionnaires and forms) and computer data collection and management system (database) for court records;

d. Generate and work with the NA:tini-x’we’ NA:xo’-xi-nayi-din court team to analyze NA:tini-x’we’ NA:xo’-xi-nayi-din court and/or E:sdo’ NA:NA: XI:nay Court statistics bi-annually to improve court operations; and

e. Conduct court grant management, budget modification, and other required administrative duties.

F. Alcohol and Drug Counselor

1. Appointment

The Tribal Council shall appoint an alcohol and drug counselor to carry out the duties and responsibilities required pursuant to the juvenile rehabilitation and NA:tinix’we’ NA:xo’-xi-nayi-din courts. The chief judge of the court shall certify annually to the Tribal Council the number of qualified alcohol and drug counselors needed to carry out the purpose of this code. The person(s) carrying out the duties and responsibilities set forth in this section may be labeled “alcohol and drug counselors” or any other title which the council finds appropriate so long as they perform the duties and responsibilities set forth in this section.

2. Qualifications

The alcohol and drug counselor must have an educational background and/or prior experience in alcohol and substance abuse education and counseling.

3. Resource Development

Identify and develop resources in the community, in conjunction with the court and the tribal council, to enhance each child’s potential as a viable member of the tribal community.

4. General Duties

(a) Provide alcohol and drug education and counseling services;

(b) Promptly undertake a clinical assessment upon court order from the juvenile or NA:tini-x’we’ NA:xo’-xi-nayi-din court judge, draft a report recommending an individualized treatment plan for participants;

(c) Frequently review and amend treatment plan as necessary;

(d) Make weekly written reports to the court team on the attendance and progress of court participants in their individualized treatment plans;

(e) Attend weekly pre-hearing staffing conferences to update the court team on compliance and the treatment progress of each participant; and

(f) Perform such other duties in connection with the care, custody, or transportation of children as the court may require.

5. Prohibited Duties

The alcohol and drug abuse counselor shall not be employed as or required to perform the duties of a Attorney for the Tribe, presenting officer or law enforcement official.

G. Social Worker

1. Appointment

The tribal council shall appoint a tribal social worker to carry out the duties and responsibilities set forth in the juvenile rehabilitation and NA:tini-x’we’ NA:xo’- xi-nayi-din codes. The chief judge of the tribal court shall certify annually to the tribal council the number of qualified social workers needed to carry out the purpose of this code. The person(s) carrying out the duties and responsibilities set forth in this section may be labeled “social worker” or any other title which the court finds appropriate so long as they perform the duties and responsibilities set forth in this section.

2. Qualifications

The social worker must have an educational background and/or prior experience in social work and specialized training in Indian Child Welfare Act process.

3. Resource Development

Identify and develop resources in the community, in conjunction with the court and the tribal council, to enhance each child’s potential as a viable member of the tribal community.

4. Duties

a. Receive and investigate reports of harm to children;

b. Promptly file a report of delinquent act or family in need or services with the probation officer where recommended and warranted;

c. Conduct interviews, home visits, and other monitoring to assist juvenile delinquents and NA:tini-x’we’ NA:xo’-xi-nayi-din court participants and their families in identifying and obtaining financial, medical, educational, vocational, and other needed services;

d. Make written reports to the juvenile and NA:tini-x’we’ NA:xo’-xi-nayi-din court judges as ordered;

e. Attend weekly court case staffing meetings to update the NA:tini-x’we’ NA:xo’-xi-nayi-din court team on the home situations and needed services; and

f. Perform such other duties in connection with the care, custody, or transportation of children as the court may require.

H. NA:tini-x’we’ NA:xo’-xi-nayi-din Court Team

1. Appointment

The NA:tini-x’we’ NA:xo’-xi-nayi-din court team shall include the NA:tini-x’we’ NA:xo’-xi-nayi-din court judge, the court coordinator, probation officer, alcohol and drug counselor, social services worker, a school district representative, and a representative from the police department and may include the presenting
officer/Attorney for the Tribe.

2. General Duties

The duties of the NA:tini-x’we’ NA:xo’-xi-nayi-din court team include:

a. Providing status updates on participant progress to the NA:tini-x’we’ NA:xo’- xi-nayi-din court judge during weekly pre-hearing staffing conferences;

b. Making recommendations on the application of incentives and sanctions to participants; and

c. Attending weekly status hearings to support the participants and hold them accountable.

I. Juvenile Advisory Board Chairperson [RESERVED]

J. Additional Court Personnel

The court may set qualifications and appoint additional E:sdo’ NA:NA: XI:nay Court personnel such as guardians ad litem, court appointed special advocates (CASAs), advocates, and/or referees whenever the court decides that it is appropriate to do so.

9. RIGHTS OF PARTIES IN JUVENILE PROCEEDINGS

A. Privilege Against Self-incrimination

A child alleged to be a "juvenile delinquent" shall from the time of being taken into custody be accorded and advised of the privilege against self-incrimination and from the time the child is taken into custody shall not be questioned except to determine identity, to determine the name(s) of the child's parent or legal custodian, or to conduct legal and clinical screening for NA:tini-x’we’ NA:xo’-xi-nayi-din court eligibility and/ or medical assessment or treatment for alcohol or substance abuse under section 15C of this code when the child's health and well-being are in serious jeopardy or there is evidence of harm to the child’s physical or mental health or welfare.

B. Admissibility of Evidence

In a proceeding on a petition alleging that a child is a "juvenile delinquent":

1. an out-of-court statement that would be inadmissible in a criminal matter in tribal court shall not be received in evidence;

2. evidence illegally seized or obtained shall not be received in evidence to establish the allegations of a petition;

3. unless advised by counsel, the statements of a child made while in custody to a probation officer, including statements made during a preliminary inquiry, informal adjustment or predispositional study, shall not be used against the child in determining the truth of allegations of the petition;

4. a valid out-of-court admission or confession by the child is insufficient to support a finding that the child committed the acts alleged in the petition unless it is corroborated by other evidence;

5. neither the fact that the child has at any time been a party to a "family in need of services" proceeding conducted under Tribal law other than this code nor any information obtained during the pendency of such proceedings shall be received into evidence.

C. Fingerprinting and Photographs

A child in custody shall not be fingerprinted nor photographed for criminal identification purposes except by order of the court. If an order of the court is given, the fingerprints or photographs shall be used only as specified by the court.

D. Right to Retain Counsel

In "juvenile delinquent" and "family in need of supervision" cases under this code, the child and his parent, guardian or custodian shall be advised by the court and/or its representative that the child may be represented by counsel at all stages of the proceedings. If counsel is not retained for the child, or if it does not appear that counsel will be retained, the court in its discretion may appoint counsel for the child.

E. Explanation of Rights

At his first appearance before the court, and at each subsequent appearance before the court, the child alleged to be a "juvenile delinquent" or a child whose family is "in need of services" under this code and the child's parent, guardian or custodian shall be informed by the court of the following:

1. the nature and cause of the accusation against him;

2. the right to an advocate or attorney at his own expense;

3. the right to be secure in their person, houses, papers, and effects and against unreasonable search and seizures, and not to have a warrant issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;

4. the right not to be placed in jeopardy twice for the same offense;

5. the right not to testify against himself;

6. the right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor;

7. the right to a speedy and public trial;

8. the right to testify and to introduce evidence on his own behalf; and

9. the possible consequences if the allegations in the petition are found to be true.

10. TAKEN INTO CUSTODY

A. Taking A Child Into Custody

A law enforcement officer may take a child into custody when:

1. the child commits a "delinquent act" in the presence of the officer; or

2. the officer has a reasonable suspicion to believe a "delinquent act" has been committed by the child being detained; or

3. an appropriate custody order or warrant has been issued by the court authorizing the taking of a particular child into custody.

B. Provision of Rights

At the time the child is taken into custody as an alleged "juvenile delinquent," the arresting officer shall give the following warning:

1. the child has a right to remain silent;

2. anything the child says can be used against the child in court;

3. the child has a right to the presence of his parent, guardian, or custodian and/or counsel during questioning, and;

4. the child has a right to an advocate or attorney at his own expense.

C. Release or Delivery from Custody

A law enforcement officer taking a child into custody shall give the warnings listed in section 10B to any child he takes into custody prior to questioning and then shall do one of the following:

1. release the child to the child's parent, guardian or custodian and issue verbal counsel or warning as may be appropriate; or

2. release the child to a relative or other responsible adult if the child's parent, guardian or custodian consents to the release. (If the child is ten (10) years of age or older, the child and his parent, guardian or custodian must both consent to the release); or

3. deliver the child to the probation officer, or to a juvenile facility as designated by the court, or to a medical facility if the child is believed to need prompt medical treatment, or is under the influence of alcohol or drugs.

D. Review by Probation Officer or Juvenile Facility

The probation officer or juvenile official at the juvenile facility (as designated by the court) shall, immediately upon delivery of the child for custody, review the need for continued custody and shall release the child to his parent, guardian or custodian in order to appear at the hearing on a date to be set by the court, unless:

1. the act is serious enough to warrant continued detention and;

2. there is probable cause to believe the child has committed the act(s) alleged; and

3. there is reasonable cause to believe the child will run away so that he will be unavailable for further proceedings; or

4. there is reasonable cause to believe that the child will commit a serious act causing damage to person or property.

E. Notification of Family

If a child is taken into custody and not released to his parent, guardian or custodian, the person taking the child into custody shall immediately attempt to notify the child's parent, guardian or custodian. All reasonable efforts shall be made to advise the parent, guardian or custodian of the reason for taking the child into custody and the place of continued custody. Such reasonable efforts shall include telephone and personal contacts at the home or place of employment or other locations where the person is known to frequent. If notification cannot be provided to the child's parent, guardian or custodian, the notice shall be given to a member of the extended family of the parent, guardian or custodian and to the child's extended family.

F. Criteria for Selecting Juvenile Facility

If the probation officer or juvenile official at the juvenile facility (as designated by the court) determines that there is a need for continued custody of the child in accordance with section 9D of this code, then the following criteria shall be used to determine the appropriate juvenile facility for the child:

1. A child may be detained in a Secure Juvenile Detention Facility (as defined in section 1C of this code) as designated by the court only if one or more of the following conditions are met:

(a) the child is a fugitive from another jurisdiction wanted for a felony act; or

(b) the child is charged with a crime of violence with a deadly weapon or which has resulted in a serious bodily injury; or

(c) the child is uncontrollable and has committed a serious physical assault on the arresting officer or on other security personnel while resisting arrest or detention; or

(d) the child is charged with committing one of the following acts which would be a criminal act if the child were an adult: vehicular homicide, abduction, rape, arson, burglary or robbery or

(e) the child is already detained or on conditioned release for another "delinquent act,"

(f) the child has a demonstrable recent record of willful failures to appear at E:sdo’ NA:NA: XI:nay Court proceedings; or

(g) the child has made a serious escape attempt; or

(h) the child requests in writing that he be given protection by being confined in a secure confinement area and there is a present and immediate threat of serious physical injury to the child.

2. A child may be housed in a Juvenile Shelter Care Facility (as defined in section 1C of this code) as designated the court only if one of the following conditions exist:

(a) one of the conditions described in section 10F(l) above exists; or

(b) the child is unwilling to return home or to the home of an extended family member; or

(c) the child's parent, guardian, custodian, or an extended family member is unavailable, unwilling, or unable to permit the child to return to his home;

(d) there is an evident harm to the child’s physical or mental health or welfare in returning home, and all extended family members are unavailable, unwilling, or unable to accept responsibility for temporary care and custody of the child.

3. A child may be referred to an Alcohol or Substance Abuse Emergency Shelter or Halfway House (as defined in section 1C of this code) if it is determined that there is a need for continued custody of the child in accordance with section 10D of this code and (1) the child has been arrested or detained for a "delinquent act" relating to alcohol or substance abuse, (2) there is space available in an alcohol or subst