Makah Law and Order Code
TITLE 1: MAKAH RESERVATION COURT - GENERAL PROVISIONS
§1.1.01 Constitutional Authority
This Law and Order Code is adopted pursuant to the authority vested in the Makah Tribal Council under Article VI of the Constitution of the Makah Indian Tribe.
§1.1.02 Prior Inconsistent Codes and Ordinances Repealed
Any and all codes and ordinances of the Makah Tribal Council which conflict in any way with the provisions of this Law and Order Code are hereby repealed to the extent that they are inconsistent with or conflict with or are contrary to the spirit and/or purpose of this Law and Order Code.
§1.1.03 C.F.R. No Longer Applicable
Any and all provisions of the Code of Federal Regulations, Title 25, Part 11, as presently constituted or hereafter constituted which deal with subjects covered in this Law and Order Code or are otherwise inconsistent with or in conflict with the provisions of this Law and Order Code or the purpose and/or spirit of this Law and Order Code are declared to be no longer applicable to the Makah Indian Reservation.
§1.1.04 Amendment of Law and Order Code
and Order Code may be amended in the manner provided for the adoption
of tribal ordinances. Amendments and additions to this Law and Order
Code shall become a part of the Code for all purposes and shall be codified
and incorporated herein in a manner consistent with the numbering and
organization of this Code.
Establishment of Court
§1.2.01 Establishment of Court
It is hereby established for the Makah Indian Reservation, Washington, a Court to be known as the Makah Tribal Court, hereinafter referred to as the Tribal Court.
§1.3.01 "Makah Tribal Court Jurisdiction" Defined
The jurisdiction of the Tribal Court and the effective area of this Code shall include all territory within the Makah Reservation boundaries, including fee patent lands, allotments, assignments, roads, waters, bridges, and lands used for agency purposes, and lands outside the boundaries of the Reservation held in trust by the United States for individual Makah Indians or for the Makah Tribe, and it shall be over all persons therein, subject to the restrictions of federal law. It shall include jurisdiction over all persons subject by law to the jurisdiction of the Tribe when fishing at usual and accustomed grounds and stations recognized by the Treaty with the Makah of 1855, and when hunting or gathering roots and berries on open and unclaimed lands as guaranteed by the Treaty.
§1.3.02 Concurrent Jurisdiction
The jurisdiction invoked by this Code over any person, cause of action or subject shall be concurrent with any valid jurisdiction over the same of the courts of the United States, any state or political subdivision thereof; provided, however, this Code does not recognize, grant or cede Jurisdiction to any other political or governmental entity in which jurisdiction does not otherwise exist in law.
Appointment and Removal of Judges
§1.4.01 Number of Judges, Bonding
The Tribal Court shall consist of one Chief Judge whose duties shall be regular and permanent and Associate Judges who may be called into service when the occasion arises. All Judges shall be bonded.
§1.4.02 Appointment, Compensation and Term
Each judge shall be appointed by the Tribal Council and shall be compensated on a basis to be determined by the Council. Each judge appointed by the Council shall hold office for a period of six (6) years, unless sooner removed for cause as provided in this Chapter or by reason of the abolition of the office, but shall be eligible for reappointment.
To be eligible to serve as a judge of the Makah Tribal Court, a person must: (1) be an enrolled member of the Makah Indian Tribe of the Makah Indian Reservation, (2) be over 25 years of age, (3) never have been convicted or found guilty of a felony within one year last past or of a misdemeanor involving moral turpitude, (4) be of high moral character and physically sound, and (5) be a resident of the Makah Indian Reservation not less than three years immediately preceding appointment.
§1.4.04 Conflict of Interest
No judge shall be qualified to act as such in any cases wherein he has any direct interest.
All judges and personnel of the Tribal Court shall be authorized to cooperate with all branches of the BIA and with all federal, state, county and municipal agencies, when such cooperation is consistent with the Tribal Code, and when such agencies have indicated a mutual desire to cooperate with the Tribe, but such judges and personnel shall ever bear in mind that their primary responsibility is to the Makah People of the Makah Indian Tribe.
§1.4.06 Removal Of Judges
During their tenure in office, judges may be suspended, dismissed or removed for cause by the Tribal Council. Copies of a written statement setting forth the facts and the reasons for such proposed action must be delivered to the judge and to members of the Council at least ten days before the meeting of the Council before which he is to appear. A public hearing shall then be held by the Council wherein the accused judge shall be given an adequate opportunity to answer any and all charges. Causes judged sufficient for removal shall include, by way of example and not limitation: excessive use of intoxicants; immoral behavior; conviction of any offense other than minor traffic violations; use of official position for personal gain; desertion of office; or a failure to perform duties. The decision of the Council shall be final.
§1.4.07 Judges Pro-Tem
Council shall prepare a list of approved persons to act as Judges Pro-Tem
from time to time. Such persons may be judges from other Indian Reservations,
in which case they need not meet the requirements of paragraph 1.4.03(1)
and 1.4.03(5) above. Whenever the need arises, the Chief Judge may appoint
persons from the approved list to serve as Trial or Appellate Judges
General Court Procedures
§1.5.01 Sessions Of Court
Sessions of the Tribal Court for the trial of cases shall be held by the Chief Judge, or in the case of his disability, absence or unavailability, by an associate judge, provided however, that an associate judge may be called in to hear cases at any time for any reasonable cause by the Chief Judge or by the Chairman of the Tribal Council. Verbatim transcriptions or tape recordings shall be kept of all sessions of Tribal Court.
§1.5.02 Acting Chief Judge
The Chief Judge of the Tribal Court shall designate, in writing, one associate judge to act as Chief Judge whenever the Chief Judge is absent from the Reservation, is on vacation, ill, or otherwise unable to perform all the duties of his office. The acting Chief Judge may exercise all of the powers of the Chief Judge. The duly appointed Chief Judge may at any time change his designation of the judge empowered to act as Chief Judge. In the event that the Chief Judge fails to designate a judge to act in his absence, the Tribal Council shall designate an associate judge as acting Chief Judge.
§1.5.03 Rules Of the Court, Procedures
The time and place of court sessions, and all other details of judicial procedure not prescribed by the regulations of this Code shall be governed by the Rules of Court promulgated as herein provided. It shall be the duty of the judges of the Tribal Court to make recommendations to the Tribal Council for enactment or amendment of such Rules of Court as they believe to be in the interests of improved judicial procedures. In cases of failure of the Tribal Council to establish or approve Rules of Court, the judges acting jointly with the advice and consent of the Law and Order Committee appointed by the Council shall have the authority to establish such rules. Rules of Court, enacted or amended in the above manner, will be made a part of this Code, but failure to so code them shall not affect their validity.
§1.5.04 Disqualification of Judge
A defendant, or other party, to any legal proceedings may accomplish a change of assignment of his case from one judge to another upon filing an affidavit of prejudice with the Court, giving satisfactory reason for such change. Such affidavit shall be in written form and must be filed with the Court before any trial action whatsoever has been taken by the initial judge. The initial judge shall pass on the adequacy of the affidavit of prejudice and enter the appropriate order, either hearing the case or reassigning it to another judge. Such an order may be appealed immediately under the appellate procedures set out in this Code, and all further actions in such a case will be stayed pending the outcome of that appeal. Only one such change will be allowed.
§1.5.05 Means to Carry Jurisdiction Into Effect
is vested in the Court, all the means necessary to carry into effect
are also given; and in the exercise of this jurisdiction, if the course
of proceeding be not specifically pointed out by this Code, any suitable
process or mode of proceeding may be adopted which may appear most conformable
to the spirit of Tribal Law.
§1.6.01 Spokesmen Appearing ID Tribal Court
Any person appearing in Tribal Court shall have the right to a spokesman, at his own expense, to assist him in presenting his case, provided that such spokesman shall first have been admitted to the Tribal Court Bar. The Court may appoint a spokesman to assist any person if, In the discretion of the Court, it appears necessary to protect such person's rights. A spokesman need not be an attorney.
§1.6.02 Tribal Court Bar - Admission
To be admitted to the Tribal Court Bar, a person must: (1) be of good moral character, (2) be approved by the Tribal Court, (3) sign and take the Spokesman's Oath, (4) pay the Tribal Court Bar admission fee, (5) be at least 21 years of age, and (6) have a working knowledge of the Makah Law and Order Code, relevant Tribal ordinances, the Indian Civil Rights Act, the Makah Treaty, and other relevant federal statutes.
§1.6.03 Spokesman's Oath
which all persons desiring to appear as spokesmen in the Tribal Court
shall take is as follows:
I, __________________________________________________ do solemnly swear:
§1.6.04 Tribal Court Bar Roster
The Clerk of the Tribal Court shall maintain a roster of all spokesmen admitted to practice before the Tribal Court. The Clerk shall also keep on file the signed oaths of all such persons.
§1.6.05 Tribal Court Bar Admission Fee
Every person wishing to appear as a spokesman in the Tribal Court will pay an admission fee as established by the Tribal Court. Such fee is to be used for the purpose of maintaining a Tribal Court Law Library. A judge may waive the Tribal Court Bar admission fee for good cause shown.
§1.6.06 Tribal Court Bar - Disbarment
Any spokesman violating the Spokesman's Oath shall be subject to disbarment. A Tribal Court judge shall prepare in writing a complaint against such spokesman, including reasons for disbarment. Within ten days of receipt of such complaint, the Tribal Court shall hold a hearing at which time the spokesman involved may present witnesses and a defense of his actions. The Tribal Court judge who has prepared the complaint shall not sit as the judge at such hearing. There shall be no right to a jury at such hearing.
Any person denied admission to the Tribal Court bar or any person who is disbarred may appeal in accordance with the procedures established in this Code. Such person or spokesman shall have the right to a hearing within ten days of his denial or conviction and shall have the right to present witnesses and present a defense. The appellate decision shall be final.
§1.7.01 Eligibility of Jurors
A list of eligible jurors shall be prepared by the Council each year. The Rules of Court shall make provision for the drawing of names eligible for service as jurors. Any person who is at least 21 years of age and who has resided on the Reservation for at least one year shall be eligible to be a juror. A person may decline jury duty upon good cause shown to the Tribal Judge.
§1.7.02 Number of Jurors
In any case a jury shall consist of six jurors drawn from the current list of eligible jurors by the Court Clerk or Judge.
Any party to the case may challenge and have dismissed not more than three jurors selected from the list of eligibles without cause, but there shall be no limit to challenges for cause. The Judge shall decide as to the sufficiency of a challenge for cause.
The judge shall instruct the jury in the laws governing the case, and the jury shall decide in accordance with this Code. The judge will render judgment in accordance with the verdict and existing law.
§1.7.03 FeesEvery person who is required to attend Court for selection or service as a juror shall be entitled to a fee for each day his services are required in Court, to be set by the Tribal Council upon recommendation by the Tribal Court.
A judge of the Tribal Court shall issue subpoenas for the attendance of witnesses or for the production of documents, papers, records or other objects either on his own motion or on the request of the police chief or officer or any of the parties to the case which subpoena shall bear the signature of the judge issuing it. Failure to obey such subpoena shall be deemed an offense as provided in this Code. Service of such subpoena shall be by a regularly acting member of the Indian police or by a person appointed by the Court for that purpose. Subpoenas shall be served no less than five days before the witness is to appear, unless the Tribal Court, for good cause shown, reduces such time period.
answering such subpoena shall be entitled to a fee for each day his
services are required in Court in an amount to be set by the Tribal
Council upon recommendation by the Tribal Court. Witnesses who testify
voluntarily shall be paid their actual traveling and living expenses
incurred in the performance of their function by the party calling them,
if the Court so directs. The fees of witnesses in civil actions shall
be paid by the party calling theme
§1.9.01 Court of Appeals
A Court of Appeals shall sit at such times and places as is proper and necessary for the dispatch of any appeals, to hear appeals from final judgments, sentences and other final orders of the Tribal Court.
When there is need for a Court of Appeals to sit, the Tribal Council shall appoint as the Judge of the Court of Appeals any judge from any other Indian Reservation pursuant to Section 1.4.07 herein. Such judge shall constitute the Court of Appeals for such appeal. No person shall be qualified to sit on the Court of Appeals in any case wherein such judge: (a) sat as the original trial judge, (b) has any direct interest in the case, or, (c) is a relative by marriage or blood, in the first or second degree, to a party.
There may be established by Rule of Court the limitations, if any, to be placed on the right of appeal, as to the type of cases which may be appealed, as to the grounds of appeal, and as to the manner in which appeals may be granted, according to the needs of the jurisdiction.
§1.9.04 Notice of Appeal
Within ten days of the entry of judgment, the aggrieved party may file with the trial court written notice of appeal, and upon giving proper assurance to the Court that the judgment, if affirmed, will be satisfied, such parties shall have the right to appeal, provided the case to be appealed meets the requirements herein established or by Rules of Court. The giving of proper assurance is subject to the discretion of the Tribal Court, and may include the posting of a bond, the giving of collateral, third party guarantees, or any other method which the Tribal Court, in its discretion, determines to be satisfactory.
§1.9.05 Stay of Execution
In any case where a party has perfected his right of appeal as established herein or by Rules of Court, a stay of execution of judgment may be granted in the discretion of the Court of Appeals by request of the appellant, and, if granted, the sentence or judgment shall not be carried out unless and until affirmed by the Court of Appeals.
The Clerk of the Tribal Court shall also serve as the Clerk of the Court of Appeals. Within twenty (20) days after a Notice of Appeal is filed, the Clerk shall prepare, certify and file with the Court of Appeals all papers comprising the record of the case appealed, including the verbatim transcript or tape of the Tribal Court proceedings.
Briefs and Memoranda
Within thirty (30) days of the filing of the Notice of Appeal or within such longer time as the Court of Appeals shall allow, the appellant shall file three copies of a written brief, memorandum or statement in support of his appeal, including the reasons or grounds for the appeal. One copy shall be kept in the Court file, one copy shall be delivered to the Court of Appeals and one copy shall be mailed to each other party or such party's attorney or spokesman. The respondent shall have twenty (20) days after receipt of the appellant's brief, memorandum or statement within which to file a reply brief, memorandum or statement and shall file and serve such in the same manner as the appellant's brief, memorandum or statement. No further response shall be allowed either party without leave of Court.
§1.9.08 Appellate Review
The Court of Appeals shall decide all cases upon the briefs, memoranda and statements filed plus the record of the Tribal Court without oral argument unless either party requests oral argument and shows to the Court that such will aid the Court's decision or unless the Court decides on its own to hear oral argument. No new trial shall be held by the Court of Appeals.
The Court of Appeals shall issue a written decision and all judgments on appeal shall be final. The Court of Appeals shall have the power to affirm or reverse, in whole or in part, the decision of the Tribal Court below or to order that a new trial be held.
§1.9.10 Tax Appeals
contesting the assessment of any taxes owed to the Tribe, or any party
appealing a judgment for taxes owed or a judgment for any other remedy
provided under any tax ordinance of the Tribe, must pay the assessed
tax or judgment before he may appeal under this Chapter. Upon the payment
of such taxes and upon the posting of a $100.00 bond for cost, the appealing
party may be granted a stay of execution as to the part of the judgment
other than the taxes found to be owing, and that part of the judgment
shall not be carried out unless and until affirmed by the Court of Appeals.
Any forfeiture of seized goods shall be stayed pending the appeal, and
the Tribe shall hold the goods seized in a safe place until the final
resolution of the case. If the goods are perishable or threaten to decline
speedily in value, the Tribe may sell such goods in a commercially reasonable
manner and hold the amount realized until the final resolution of the
Clerk, Records and Probation Officers
The Chief Judge with the concurrence of the Tribal Council shall appoint a Clerk of the Court and such Assistant Clerks as deemed necessary. The Clerks of the Court shall be under the supervision of the Chief Judge. The Clerks shall render assistance to the Court, to the police force of the Reservation, and to individual members of the Reservation in the drafting of complaints, subpoenas, warrants, and commitments and any other documents incidental to the lawful function of the Court. It shall be the further duty of the Clerks to attend and keep a written record of all proceedings of the Court, to administer oaths to witnesses, and to perform such other duties as the Chief Judge shall designate. The Clerks, before entering upon their duties, shall, at Tribal expense, post bond in an amount determined by the Tribal Council, or shall be covered by the blanket bond provided for all Tribal employees.
The Tribal Court shall keep for its own information and for inspection by duly qualified officials, a record of all proceedings of the Court, which record shall reflect the title of the case, the names of the parties, the substance of the complaint, the names and addresses of all witnesses, the date of the hearing or trial, by whom conducted, the findings of the Court or jury, and the judgment, together with any other facts or circumstances deemed of importance to the case.
§1.10.03 Copies of Laws
The Tribal Court shall be provided with copies of this Tribal Code, all pertinent Resolutions, Ordinances or enactments of the Council, and such Regulations as may be applicable to the conduct of the business of the Court.
§1.10.04 Probation Officers
Council shall appoint one or more persons as probation officers to carry
out the duties of the probation officer under this Code. The probation
officers shall be supervised by the Chief of Police.
The terms "police", "Tribal police", "tribal officer", or "officer" as used in this Code shall refer to qualified Tribal Law Enforcement Personnel or police officers of the Bureau of Indian Affairs.
The term "signature" as used in this Code shall be defined as the written signature, official seal or the thumb print or mark of any individual.
§1.11.03 Tribal Council
The term "Tribal Council" or "Council" as used in this Code, shall refer to the Tribal Council of the Makah Indian Tribe of the Makah Indian Reservation, Washington.
The term "Agency" as used in this Code shall refer to the Western Washington Indian Agency of the United States Department of the Interior, Bureau of Indian Affairs, Everett, Washington.
The Law and Order Code now reads:
S. 1.10.04 Probation Officers
The Tribal Council shall appoint one or more persons as probation officers to carry out the duties of the probation officer under this code.
Pursuant to Resolution #45-94, the Law and Order Code has been amended to read;
S. 1.10.04 Probation Officers
The Tribal Council shall appoint one or more persons as probation officers to carry out the duties of the probation officer under this code. The Adult Probation Officer shall report to the Tribal Court Administrator and function as an officer of the Court. The Juvenile Officer shall report to the Department of Community Services. In emergent circumstances where a Juvenile Officer is not available, the Chief of Police shall have the authority to act pursuant to the duties of probation officers under §6.3.06.
The term "Tribe" as used in this Code refers to the Makah Indian Tribe of the Makah Indian Reservation.
The terms "Court", "Tribal Court", or "Reservation Court", as used in this Code shall refer to the Makah Tribal Court.
The term "Person" shall include any natural person, corporation, trust, unincorporated association, partnership, and federal, state or local governments, agencies or subdivisions thereof.
any period of time prescribed under this Code, the day of the act or
event from which the designated time runs shall not be included. The
last day of the period so computed shall be included, unless it is a
Saturday, Sunday or legal holiday, in which event the period runs until
the end of the next day which is neither a Saturday, Sunday nor a legal
holiday. When the period of time prescribed or allowed is less than
seven (7) days, intermediate Saturdays, Sundays and legal holidays shall
be excluded in the computation.
Relations with the Court
§1.12.01 BIA Employees
No field employee of the Bureau of Indian Affairs shall obstruct, interfere with or control the functions of the Tribal Court, nor shall he influence such functions in any manner except as permitted by this Code or in response to a request for advice or information from the Court. Employees of the Bureau of Indian Affairs, particularly those who are engaged in social service, health and education work, may assist the Court, upon its request, in the proper treatment of individual offenders.
Consent to Jurisdiction
§1.13.01 Implied Consent
as may be prohibited under applicable law, entrance by any person into
the Makah Reservation or Tribal Court jurisdiction as defined in this
Code shall be deemed equivalent to and construed to be an acceptance
of the jurisdiction of the Tribal Court and a consent to such jurisdiction
over his person concerning any legal action pursuant to this Code and
shall further be deemed a consent to service of summons or process by
registered mail with return receipt requested at his last known address.
Service of Process of Other Courts
Any person may apply to the Court by written application for an order enforcing process issued by another tribal court or a state or federal court including, by way of example but not limitation, search warrants, subpoenas, court orders, summonses, and other such matters, but excluding extradition matters which shall be acted upon pursuant to the provisions of Section 2.1.02.
§1.14.02 Review by Court
shall review the application within five (5) days of its filing. The
Court shall then decide whether or not to enforce the process of the
other court. The Court shall have full and total discretion regarding
this matter and shall be guided interests of the Makah Indian Tribe
and its Reservation.
§1.14.03 Enforcement of Process
Upon the entry of the order enforcing the other court's process, such process, along with a copy of the Court order enforcing such process, shall then be personally served on the appropriate party by a Tribal police officer. A law enforcement officer of the jurisdiction which originally issued the process may, at the Court's discretion, be permitted to accompany the Tribal police officer in serving the process.
Nothing contained in this Chapter shall be deemed to have increased or decreased the jurisdiction of the Tribe or of any other court as determined by applicable federal law.
§1.15.01 Contempt or Court Defined
The following acts or omissions, with respect to a Tribal Court or proceedings therein, are deemed to be contempt of court:
Disorderly, contemptuous or insolent behavior towards the judge
while holding court, tending to impair his authority, or to interrupt
the due course of a trial or other judicial proceeding.
breach of the peace, boisterous conduct or violent disturbance tending
to interrupt the due course of a trial or other judicial proceeding.
or abuse of the process or proceedings of the Court by a party to
an action or proceeding.
of any lawful judgment, decree, order or process of the Court.
to be a spokesman or other officer of the Court, and acting as such
without authority in a particular instance.
detaining a witness or party to an action, suit or proceeding while
going to, remaining at, or returning from the Court where the same
is in trial.
other unlawful interference with the process or proceedings of the
of a subpoena, duly served or refusing to be sworn of answer as
- When summoned as a juror, improperly conversing with a party to an action, suit or proceeding to be tried at Court, or with any other person in relation to the merits of such action, suit or proceeding, or receiving a communication from a party or other person with respect to it, without immediately disclosing the same to the Court.
§1.15.02 Punishment Contempt in Presence of Court - Summary Punishments
When a contempt is committed in the immediate view and presence of the Court, it may be punished summarily and immediately by a fine not to exceed Two Hundred Dollars ($200.00), or imprisonment not to exceed three (3) months, or both. An order shall be entered by the judge reciting the facts as occurring in such immediate view and presence and determining that the person proceeded against is guilty of contempt.
§1.15.03 Procedure in Other Cases
other than those described in section 1.15.02, a contempt proceeding
shall be commenced by the presentation to the Clerk of an affidavit
setting forth the facts constituting the contempt. Thereupon, the Court
may either make an order against the person charged to show cause why
he should not be arrested to answer, or may issue a warrant of arrest
to bring such person to answer in the first instance. The Court shall
then set a hearing to determine whether or not the person charged is
guilty of the contempt. The Court may release the person charged on
his personal recognizance, may order bail or may order detention in
accordance with the provisions of Chapter 2.5. If, after a hearing on
the contempt charge, the Court determines that the person charged is
guilty of the contempt, the Court may sentence him to a fine not to
exceed Two Hundred Dollars ($200.00), imprisonment for a period not
to exceed three months or both.
§1.15.04 Damages to Injured Party
If any loss to a party in an action, suit or proceeding prejudicial to his rights therein have been caused by the contempt, the Court, in addition to the punishment imposed for the contempt, may give judgment against the party committing the contempt sufficient to indemnify the party aggrieved and to satisfy his costs and disbursements.
§1.15.05 Imprisonment Until Act Performed
When the contempt consists of the omission or refusal to perform an act which is yet in the power of the person committing the contempt to perform, such person may be imprisoned until he shall have performed such act.
§1.15.06 Criminal Offense
Nothing contained herein shall be deemed to prevent a person proceeded against under the provisions of this Chapter from being charged with the commission of an offense under Title 5 of this Code.