Nez Perce Tribal Code

GENERAL PROVISIONS

§ 2-3-1 Definitions

(a) "Business day" means any day in which the business of the Nez Perce Tribe is normally conducted and excluding weekends and holidays.

(b) "Contraband" means any item which is unlawful to possess or produce.

(c) "Defendant" means the person against whom an action is filed under this chapter.

(d) "Infraction" means a civil offense in which the remedy involved shall be a civil fine. An infraction is not a crime and the punishment imposed therefor shall not be deemed for any purpose a penal or criminal punishment and shall not affect or impair the credibility of a witness or otherwise of any person convicted thereof.

(e) "Instrumentality" means any item used in connection with an infraction.

(f) "Probable cause" exists under this chapter when an officer has substantial objective basis for believing that a person has committed an infraction. In determining whether probable cause exists, the officer may take into account all information which a prudent officer would deem relevant to the likelihood that an infraction has been committed and that the person to be cited has committed it.

(g) "Personal delivery" means the physical presentation of a citation to a person accused of an infraction violation.

(h) "Notice" means to hand deliver notice to a party or mail such notice to the party's most recently known address.

(i) "Tribal Police Officer" means BIA law enforcement officers, tribal police officers, or other peace officers authorized by the Nez Perce Tribe to enforce the laws of the Tribe.

(j) "Tribe" means the Nez Perce Tribe.

§ 2-3-2 Application

The procedures in this chapter shall apply to any general or traffic infraction listed in this code. Unless otherwise provided, the sole remedy for a violation of a general or traffic infraction under this code shall be those which are provided herein.

§ 2-3-3 Rights of Defendant

A defendant charged with a general or traffic infraction, shall have the right to:

(a) present evidence and examine witnesses;

(b) compulsory process for obtaining witnesses in his favor and at his own expense; and

(c) have the assistance of counsel for his defense at his own expense.

INFRACTION PROCEDURES

§ 2-3-4 Citations

(a) Issuance of a Nez Perce Tribal infraction citation will initiate prosecution of an action under this chapter. An infraction citation may be issued by:

(1) a tribal police officer once the officer has probable cause to believe an infraction under this code has been committed;

(2) service by the Court clerk upon the filing of a complaint by the tribal prosecutor.

(b) A tribal police officer shall serve a copy of a tribal citation on the defendant by personal delivery to him when the defendant is present, or when the citation is for a traffic infraction and the defendant is not present, by issuing the citation to the registered owner of the vehicle involved and affixing it in plain view on the vehicle. Certification of service of a citation shall be indicated on the face of the citation by the issuing officer. The original citation shall be filed with the Tribal Court and a copy delivered to the tribal prosecutor within one (1) business day of serving.

(c) The filing of a complaint by the tribal prosecutor and service of a citation by the Court clerk shall be in accordance with the Rules of Civil Procedures except that a citation shall be served in lieu of a summons.

(d) The Tribal Court may permit the amendment of any process or pleading at any time so long as the substantial rights of the defendant are not prejudiced. If an amendment of a citation complaint is made, the Court may grant a continuance of the trial for good cause.

(e) Only one person and one violation may be charged by a complaint on a single citation. A citation shall require that the defendant appear in Tribal Court not less than five (5) nor more than fifteen (15) business days after the date of the citation.

(f) Any person charged with a violation of this chapter may pay the fine prior to the date set for trial by returning the citation and fine to the Tribal Court by mail or in person. Payment of the fine in such a manner shall constitute an admission of the charge. The payment must be received by the Court on or before the appearance date set forth in the citation.

§ 2-3-5 Preliminary Hearing/Trial (revised 6/22/99)

A. Preliminary Hearing

(a) Unless the defendant pays an infraction fine prior to a preliminary hearing, he shall appear before the tribal judge on the date listed in the citation. At the preliminary hearing the defendant shall admit or deny the allegations in the civil infraction citation. If the defendant admits the allegations the tribal judge may consider any evidence presented by the defendant in imposing an appropriate fine.

(b) If the defendant denies the allegations in the civil infraction citation the tribal judge shall schedule a trial date.

B. Trial

(a) If the defendant is not represented by counsel, the citing officer may present evidence on behalf of the Tribe. If the defendant is represented by counsel, the Court shall notify the tribal prosecutor who shall appear on the Tribe’s behalf.

(b) The burden of proof shall be on the tribe to establish the commission of the violation by a preponderance of the evidence. If the trier of fact does not find by a preponderance of the evidence that the defendant committed the infraction offense, the Court shall enter judgment for the defendant. If the trier of fact finds by a preponderance of the evidence, that the defendant committed the infraction, the Court shall enter judgment against the defendant.

(c) The Rules of Evidence shall apply to trial proceedings under this chapter.

§ 2-3-6 Remedies

(a) Unless otherwise provided, fines for individual infractions shall be fixed as determined by NPTEC and shall reflect the severity of the offense and the tribe's interest in protecting individuals and property. A list of such fines, which shall be updated periodically as the Court shall determine is necessary, shall be provided to the tribal police for use in issuing citations.

(b) A fixed fine shall be the primary remedy for a traffic infraction under this code. Fines for traffic infractions shall be in an amount equal to the total amount charged by the State of Idaho for the same offense as provided by the "Idaho Court Rules" as of the date of adoption of this chapter and as amended, less $5.00; provided, that no fine shall be reduced below the amount of $5.00. In addition to a fine, violators of the Nez Perce traffic laws may also be subject to the assessment of points, suspension or revocation of driving privileges and assessment of costs or fees related to revocation or suspension in accordance with the applicable law of the jurisdiction where the violator resides.

(c) For civil infractions other than traffic violations, the Nez Perce Tribal Court may apply any of the following remedies singularly or in combination:

(1) issue an injunction, by ordering the defendant to temporarily or permanently refrain from conducting the acts or actions that gave raise to the complaint;

(2) order the defendant to pay compensation or restitution to the tribe, an individual or any other entity injured by the actions of the defendant. In the event that evidence of damage or loss to an individual or entity other than the tribe arises in the course of an infraction proceeding, the victim shall be so notified by the citing officer. Compensation or restitution shall reflect the actual documented damages or loss suffered as determined by the Tribal Court at a separate hearing and shall not include compensation for emotional distress or other special damages. The victim shall bear the burden of proving damages in damage hearings and mitigating circumstances shall be taken into account. Once a damage determination is made the victim shall bear the burden of collecting any and all judgments;

(3) assess a fine; or

(4) order community service.

(d) In any proceedings in which the defendant is found to have committed an infraction, the Tribal Court may assess court costs against the defendant to be added to any fine, restitution or other remedy prescribed. The Court may also allow the assessment of attorneys fees against the defendant if the tribe is required to pursue the collection of a judgment under this chapter. Where the infraction involves a controlled substance or alcohol either as an element of the offense or as a factor contributing to the commission of the offense, the Court may impose a period of probation and order drug and/or alcohol evaluation, counseling and random testing as a condition of probation, the violation of which probation shall itself be an offense under § 4-1-33 of the Nez Perce Tribal Code punishable by up to sixty days in detention/jail and a fine up to $500. In the event of a repeated offense by a minor, the Court may require the family of the offender residing with the offender to participate in counseling.

(e) When in the judgment of the Prosecutor it would be appropriate, the Prosecution may also commence an action for forfeiture under Chapter 2-6 of the Nez Perce Tribal Code.

§ 2-3-7 Failure to Appear

(a) If the defendant fails to appear before the Court at or before the time stated in the infraction citation or to otherwise pay the fine in accordance with this chapter, the Court shall enter default judgment against the defendant.

(b) If a default judgment is entered against a defendant, the Court clerk shall issue notice of judgment to the defendant advising him that he must pay the judgment by a date certain which shall not be less than ten (10) business days after the date of the notice. The notice shall state that failure to pay the judgment will result in suspension of his driver's license and/or proceedings for contempt.

(c) If a defendant fails to pay a civil infraction fine or other penalty within the time allowed by a notice of default judgment under this section then the Court shall:

(1) for traffic infractions, sign a notice of nonpayment of traffic fine and send it to the Idaho Department of Transportation for suspension of defendant's driver's license; and

(2) find the defendant in contempt of court in accordance with this code.

§ 2-3-8 Method of Payment of Penalty and Costs

The judgment and court costs for an infraction offense shall be paid by cash, money order, cashier's check or other certified funds payable to the Nez Perce Tribe.

§ 2-3-9 Appeals

(a) Any party may appeal a final decision of the Tribal Court on an infraction violation. In addition, the victim of such violation may appeal the final judgment in a damages hearing.

(b) Upon review, the Appeals Court shall reverse the judgment of the Trial Court if it finds there are no facts to support the Trial Court's determination or the law was misinterpreted or misapplied.

(Chapter revised 8/24/99)

§ 2-4-0 Purpose

The purpose of this Chapter is to secure for each child coming before the Tribal Court, such care, guidance, and control preferably in his/her own home or with an extended family member, that will serve his/her welfare and the best interests of the Nez Perce Tribe; to preserve and strengthen family ties whenever possible; to preserve and strengthen the child’s cultural and ethnic identity whenever possible; to improve any home conditions or home environment which may be contributing to his/her delinquency; and, at the same time, to protect the peace and security of the Nez Perce Reservation and its individual residents from juvenile violence. To this end, this Chapter shall be liberally construed.

INTRODUCTORY PROVISIONS

§ 2-4-1 Definitions

(a) "Adult" means an individual who is eighteen (18) years of age or older or who is sixteen (16) years of age or older and has been married or who is sixteen (16) years of age or older and is the custodial parent of a child or who has been otherwise emancipated by the Court.

(b) "Child" or "minor" means an individual who is less than eighteen (18) years old who does not fall within the meaning of "Adult" as set out in §2-4-1(a).

(c) "Custodian" means a person, other than a parent or guardian, to whom custody of a child has been given.

(d) "Delinquent act" means an act which would be a crime if committed by an adult.

(e) "Detention" means exercising authority over a child by physically placing him in any juvenile facility designated by the Court and restricting the child's movement in that facility.

(f) "Domicile" means a person's residence in which they intend to remain indefinitely.

(g) "Emergency foster home" means a foster home which has been licensed to accept emergency placements of children at any hour of the day or night.

(h) "Foster home" means a home licensed by the tribe as provided in the Minor in Need of Care chapter.

(i) "Guardian" means a person, other than a parent, assigned by a court of law, having the duty and authority to provide care and control of a child.

(j) "Habitual status offender" means any minor who has been found to have committed three (3) status offenses within twelve months.

(k) "Home Detention" means a dispositional alternative available to the Court whereby a juvenile offender may be released to the parent or legal guardian provided that the juvenile offender may not be out between the hours of 6:00 P.M. and 6:00 A.M. nor go beyond fifty (50) yards of the residence in which the Court ordered them to be detained without twenty-four (24) hour prior approval of the Court.

(l) "Juvenile delinquent" means a child who commits a delinquent act.

(m) "Juvenile shelter care facility" means any juvenile facility (other than a school) that cares for juveniles, including alcohol or substance abuse programs, emergency shelter or halfway houses, foster homes, emergency foster homes, group homes, shelter homes and medical facilities.

(n) "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 who has not been acknowledged or established as the child's biological father.

(o) "Probable cause" exists under this chapter when a tribal police officer has substantial objective basis for believing that a minor has committed or will commit a delinquent act. In determining whether probable cause exists, the officer may take into account all information which a prudent officer would deem relevant to the likelihood that an act has or will be committed and that the juvenile involved has committed or will commit such act.

(p) "Probation" means a legal status created by court order whereby a juvenile delinquent is permitted to remain in his home 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.

(q) "Secure juvenile facility" means a facility which (1) contains locked cells or rooms which are separated by sight and sound from any adult inmates; (2) restricts the movement of those placed in the locked cells or rooms, and (3) complies with the other requirements of the Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. 5601 et. seq.

(r) "Status offense" means truancy, running away from or being beyond the control of parents, guardian or custodian and curfew violations.

§ 2-4-2 Personal Jurisdiction

(a) Except as otherwise specifically provided, the Nez Perce Tribal Court shall have jurisdiction over any child who is a member or eligible to become a member of the Nez Perce Tribe no matter where domiciled, residing, or found and any other Indian child domiciled or found within the territorial boundaries of the Nez Perce Tribe. The Court may decline jurisdiction where a forum with concurrent jurisdiction is exercising its authority or in cases where neither the child nor either parent is a Reservation resident in cases where justice may require declination.

(b) To the extent necessary to make a proper disposition of the case, the Nez Perce Tribal Court shall have authority to exercise jurisdiction over all persons having the care, custody or control of a child over whom the Court exercises jurisdiction. This authority shall include the power to punish for contempt whether or not such contempt is committed in its presence.

§ 2-4-3 Extension of Jurisdiction

Under this Chapter, the Court has exclusive jurisdiction to try a child under eighteen (18) limited jurisdiction between eighteen (18) and twenty-one (21), and none thereafter. If the child turns eighteen (18) before a Petition is filed but after offense is committed, the child shall be tried as a juvenile, subject to §2-4-6.

Jurisdiction can be extended to twenty-one (21) if done before the juvenile is eighteen (18) in order to retain jurisdiction to impose sentence or to have time to execute full sentence.

§ 2-4-4 Capacity

A child under the age of six (6) is deemed incapable of committing a crime. A child of six (6) and under ten (10) is presumed incapable of committing a crime, but the presumption is rebuttable. A child ten (10) or over is deemed to be capable of committing a crime for capacity purposes.

§ 2-4-5 Nature of Juvenile Cases

Adjudication of a juvenile matter by the court shall not under any circumstances be deemed a criminal conviction unless the minor is tried as an adult for the alleged act.

§ 2-4-6 Trial as Adult

(a) The Tribal Prosecutor or the child may file a petition requesting the court to try a child as an adult if the child is fourteen (14) years of age or older and is alleged to have committed an act which would have been considered a crime if committed by an adult. Once the petition is filed, the court shall conduct a hearing on the matter.

(1) The court may try the minor as an adult only if it:

(A) finds clear and convincing evidence that:

(i) there are no reasonable prospects for rehabilitating the child through resources available to the court; and

(ii) the act(s) allegedly committed by the child demonstrate conduct which constitutes a substantial danger to the public.

(B) issues a written order that the child shall be tried as an adult with respect to the delinquent acts alleged in the petition after the conclusion of the hearing.

(b) If the child is between the ages of sixteen (16) and eighteen (18) and is accused of a violent offense: Aggravated Assault §4-1-39, Aggravated Battery §4-1-40, Aggravated Stalking §4-1-42, Murder §4-1-43, Manslaughter §4-1-44, Kidnapping §4-1-45, False Imprisonment §4-1-46, Rape §4-1-48, Forcible Sexual Penetration with a Foreign Object §4-1-49,Unlawful Sexual Intercourse §4-1-50, Sexual Assault §4-1-51, Sexual Molestation of a Minor under Sixteen §4-1-52, Aggravated Arson §4-1-55, Extortion §4-1-68, Domestic Violence §4-1-88, Abuse of Vulnerable Adults §4-1-89, Child Abuse §4-1-90, Riot §4-1-121, Setting a Dangerous Device §4-1-125, Weapons Offense §4-1-126, or Committing an Offense While Armed §4-1-127, the child will automatically be tried as an adult.

(c) Once a juvenile is transferred to Adult Court he/she no longer meets the definition of a child or minor and all subsequent charges will be brought in Adult Court.

§ 2-4-7 Comity

State, federal or other Tribal Court orders involving children over whom the court has jurisdiction may be recognized by the court only after an independent review of such state proceedings has determined:

(a) the court has jurisdiction over the child;

(b) due process was provided to all participants; and

(c) the proceeding did not violate the public policies or law of the tribe.

§ 2-4-8 Juvenile Probation Officers

(a) Such Juvenile Probation Officers as may be required to carry out the purposes of this Chapter shall be appointed by the Tribe. Juvenile Probation Officers shall be chosen for their ability and special aptitude for working with children. In addition, any members of Tribal Law Enforcement assigned duties similar to those of Juvenile Probation officers shall be deemed "Juvenile Probation Officers" for all purposes under this Chapter.

(b) Juvenile Probation Officers shall have the power and duty to carry out the objectives and provisions of this Chapter with regard to juvenile offender cases and shall:

(1) make preliminary inquiries, social studies, and such other investigations as the Court may direct;

(2) keep written records of such inquiries, social studies, and such other investigations and shall make written reports to the Court;

(3) supervise and assist each child placed on probation or under his/her supervision;

(4) keep informed concerning the conduct and conditions of each person on probation or under protective supervision and shall report thereon to the Court as the Judge may direct;

(5) use all suitable methods to aid children on probation or under protective supervision to bring about improvements in their conduct or conditions;

(6) take children into custody when there is reasonable cause to believe that they have violated conditions of their probation; and

(7) perform such other duties in connection with the care, custody, or transportation of children as the Court may require;

(c) Juvenile Probation officers shall have the powers of Tribal Police Officers for purposes of this Chapter, but shall, whenever possible, refrain from exercising such powers except in urgent situations in which an on-duty Tribal Police Officer is not immediately available.

CUSTODY

§ 2-4-9 When Juvenile may be Taken into Custody

A Tribal police officer may take a child into custody when:

(a) the child commits a delinquent act in the presence of the officer;

(b) the officer has probable cause to believe the child has committed a delinquent act;

(c) a custody order or warrant for child has been issued by the court;

(d) when the officer has reasonable grounds to believe the child has committed a status offense; or

(e) when the juvenile probation officer has reasonable cause to believe that the child has violated conditions of their probation.

§ 2-4-10 Notification of Rights

A Tribal police officer taking a child into custody shall inform the child that:

(a) he has a right to remain silent;

(b) anything he says can be used against him in court;

(c) he has a right to the presence of his parent, guardian, or custodian and/or counsel during questioning; and

(d) he has a right to an attorney at his own expense.

§ 2-4-11 Custody Procedures

(a) While in custody, a child shall not be finger printed or photographed except by order of the court.

(b) After taking a child into custody the officer shall:

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

(2) release the child to a relative or other responsible adult if the child's parent, guardian or custodian consents to the release; or

(3) deliver the child to a juvenile shelter care facility or a secure juvenile facility. Status offenders shall not be placed in any secure juvenile facility, but instead, may be placed in a juvenile shelter care facility.

COURT PROCEDURES IN JUVENILE MATTERS

§ 2-4-12 Petition

An advisory hearing shall be initiated by a petition filed by the tribal prosecutor on behalf of the tribe. The petition shall set forth with specificity:

(a) the name, birth date, residence, and tribal affiliation of the child;

(b) the names and residences of the child's parent, guardian or custodian;

(c) a citation to the section containing the offense which the child is alleged to have committed;

(d) a plain and concise statement of facts upon which the allegations are based, including the date, time and location at which the alleged acts occurred; and

(e) whether the child is in custody and, if so, the place of detention, date and time he was taken into custody.

§ 2-4-13 Juvenile Proceedings (amendment authorized 10/9/01)

(a) During proceedings in juvenile matters:

(1) unless otherwise provided by this chapter, the rules of procedure shall be the same as that for adult criminal proceedings;

(2) the child and his parent, guardian or custodian present in court shall be informed by the court of the rights provided to the child by the arresting officer and the:

(A) allegations against the child;

(B) right to cross-examine witnesses;

(C) right of the child to subpoena witnesses and to introduce evidence on his own behalf;

(D) privilege against self-incrimination;

(E) there is no right to a jury trial; and

(F) possible consequences if the allegations in the petition are found to be true.

(3) the child has a right to an attorney at his own expense;

(4) the child has no right to a jury trial; and

(5) the general public shall be excluded.

(b) Discovery

(1) At the expense of the defendant and upon his request, the prosecutor shall permit the defendant to inspect and copy or photograph the following items which are within the possession, custody or control of the prosecutor and/or tribal police:

(A) relevant written or recorded statements made by the defendant or copies thereof;

(B) copies of the defendant's prior criminal record;

(C) books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof obtained in connection with the defendant's case;

(D) results or reports of physical or mental examinations, scientific tests or experiments, or copies thereof made in connection with the defendant's case.

(2) Regardless of a request by the defendant, the prosecution and/or tribal police shall at least fifteen (15) business days before the Adjudicatory Hearing if the defendant is not in custody and five (5) business days if defendant is in custody, provide the defendant with:

(A) any evidence of an exculpatory nature in their possession or of which they may be aware;

(B) written notice staling names and addresses of the witnesses the prosecution intends to call at trial.

(3) Upon the request of the prosecutor and at the expense of the tribe, the defendant shall permit the prosecutor to inspect and copy or photograph:

(A) results or reports of physical or mental examinations, scientific tests or experiments made in connection with the defendant's case;

(B) books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof obtained in connection with the defendant's case.

(4) Regardless of a request by the prosecutor, the defendant shall at least seven (7) business days before the Adjudicatory Hearing if defendant is not in custody and three (3) business days if the defendant is in custody, provide the prosecution with written notice of names and addresses of the witnesses it intends to call at the Adjudicatory Hearing.

(5) If, prior to or during trial, a party discovers additional evidence or material which is subject to discovery or inspection under this rule, such party shall promptly notify the other party or the court of the existence of the additional evidence or material.

(6) Except to the extent such material is otherwise subject to discovery, this rule shall not authorize the discovery or inspection of:

(A) reports, memoranda, or other internal documents made by the defendant, an attorney for either party or agents of the either party in connection with the investigation, prosecution or defense in the case;

(B) statements made by the defendant, witnesses or prospective witnesses in connection with the case.

(7) Upon motion by a party, the court may deny or restrict discovery or issue such other order as is appropriate. If the court enters an order granting relief all items or documents reviewed in camera shall be sealed and preserved in the record of the court to be made available to the appellate court in the event of an appeal.

(8) Once the court determines that a party has failed to comply with this rule, it may grant a motion to compel submitted by the opposing party, grant a continuance, prohibit the party from introducing evidence not disclosed or it may enter such other order as it deems just. In addition to any other action taken by the court upon a finding that a party has failed to comply with this rule, the court may award attorneys fees and costs to the prevailing party resulting from procedures to compel discovery.

§ 2-4-14 Detention Hearing

(a) When a child is placed into secured confinement upon being taken into custody, the court shall hold a detention hearing within one (1) business day of the initial detention. At such hearing, the court shall determine:

(1) whether probable cause exists to believe the child committed the alleged delinquent act; and

(2) whether continued detention is necessary pending further proceedings.

(b) If the court determines that there is a need for continued detention, it shall specify where the child is to be placed until the adjudicatory hearing.

INFORMAL ADJUSTMENT/ADVISORY HEARING

§ 2-4-15 Informal Adjustment (section amended effective 3/12/02)

(a) In the case of a minor who commits a status offense or is a first time offender, the Prosecutor may hold an informal conference with the child and the child’s parent, guardian or custodian, and/or other persons whose presence is considered appropriate to discuss alternatives to the filing of a petition for an adjudicatory hearing if:

(1) The admitted facts bring the case within the jurisdiction of the Court;

(2) An informal adjustment conference of the matter would be in the best interest of the child and the Tribe;

(3) The child and his parent, guardian or custodian consent to an informal adjustment conference; and

(4) An informal adjustment is not in conflict with §2-4-6.

(b) Notice of the informal adjustment conference shall be given to the child and his parent, guardian or custodian and their counsel as soon as the time for the conference has been established.

(c) Any statement made during the informal adjustment conference may be admitted into evidence at any adjudicatory hearing or any other proceeding under this Code. The child and his parent, guardian or custodian shall be informed of this provision.

(d) At the conclusion of the informal hearing the Prosecutor will:

(1) Refer the child and the parent, guardian or custodian to a community agency for needed assistance;

(2) Order, by agreement of the child and his/her parent(s,) terms of supervision calculated to assist and benefit the child which regulate the child’s activities and which are within the ability of the child to perform, such an order must be approved by the Court;

(3) Recommend restitution to be made by the child; or

(4) Make a decision to file a petition with the Court.

(e) Upon the successful completion of the informal adjustment, the case shall be closed and no further action taken. If the child fails to attend the informal adjustment conference, the Prosecutor shall file a petition for an adjudicatory hearing. If the child fails to successfully complete the terms of the agreement, the prosecutor shall file a petition for an adjudicatory hearing.

§ 2-4-16 Advisory Hearing

(a) After receipt of the petition, the Court shall schedule an advisory hearing and inform the parties of the date and time of the hearing in the summons. If a child is in custody the advisory hearing must be held within ten (10) business days after receipt of the petition or the petition shall be dismissed unless:

(1) The hearing is continued upon motion of the child;

(2) The hearing is continued upon motion of the Prosecutor by reason of the unavailability of material evidence or witnesses and the Court finds the Prosecutor has exercised due diligence to obtain the evidence or witnesses and reasonable grounds exist to believe that the evidence or witnesses will become available;

(3) The hearing is continued upon motion of the Prosecutor by reason of difficulty of serving the summons and upon a showing of due diligence in attempting to discover the address or whereabouts of the person(s) to be served; or

(4) The hearing is continued upon the Court’s determination that a continuance is in the best interest of the child.

(b) At the Advisory Hearing the Court shall:

(1) Read the Petition to the child and explain the allegation(s) in the petition;

(2) Explain the consequences of the Petition to the child;

(3) Give an explanation to the child of his rights in the proceedings, including the right to request a continuance to obtain counsel; and

(4) Offer the child the opportunity to admit or deny the allegation(s) in the petition.

(c) If the child admits to the allegation(s) in the petition, the Court shall schedule a Dispositional Hearing within ten (10) business days if the child is in custody. If the child is released from custody or was not taken into custody, then the dispositional hearing shall be held within twenty (20) business days thereafter, if the Court finds:

(1) The child fully understands his/her rights and the potential consequences of his/her admission.

(2) The child voluntarily, intelligently, and knowingly admits to all facts necessary to constitute a basis for the action; and

(3) The child has not, in his/her purported admission to the allegation(s), set forth facts which, if found to be true, constitute a defense to the allegation(s).

(d) If the child denies the allegation(s) in the petition, the Court shall schedule an Adjudicatory hearing.

ADJUDICATORY HEARING/DISPOSITIONAL HEARING

§ 2-4-17 Adjudicatory Hearing

(a) The court shall conduct the adjudicatory hearing to determine whether the child has committed a delinquent act or status offense. If the child remains in custody, the adjudicatory hearing shall be held within ten (10) business days after the advisory hearing. If the child is released from custody or was not taken into custody, the hearing shall be held within thirty (30) business days after the advisory hearing. If the Adjudicatory Hearing is not held within ten (10) business days after the advisory hearing when the child is in custody, the Petition shall be dismissed and cannot be filed again unless:

(1) The hearing is continued upon motion of the child;

(2) The hearing is continued upon motion of the Prosecutor by reason of the unavailability of material evidence or witnesses and the Court finds the Prosecutor has exercised due diligence to obtain the evidence or witnesses and reasonable grounds exist to believe that the evidence or witnesses will become available; or

(3) The hearing is continued upon the Court’s determination that a continuance is in the best interest of the child.

(b) The Court shall conduct the adjudicatory hearing for the sole purpose of determining the guilt or innocence of the child. The hearing shall be private and closed.

(c) The Court shall hear testimony concerning the circumstances which gave rise to the Petition. If the court finds beyond a reasonable doubt that the allegations contained in the juvenile delinquent petition are true it shall schedule a disposition hearing and specify whether the child is to be placed or continued in out-of-home placement pending the hearing. If the court finds that the allegations in the petition have not been established beyond a reasonable doubt it shall dismiss the petition and order the child released from any detention imposed in connection with the proceeding.

§ 2-4-18 Consolidation of Proceedings

When more than one child is alleged to be involved in the same delinquent act, the proceedings may be consolidated, except that separate hearings may be held with respect to disposition.

§ 2-4-19 Predisposition Report

(a) Once a juvenile is found to have committed a delinquent act or status offense, the Juvenile Probation Officer shall prepare a written report describing reasonable and appropriate alternative dispositions. The report shall contain specific recommendations for the care of and assistance to the child calculated to resolve the problems presented in the Petition. The Juvenile Probation Officer shall present the predispositional report to the Court, the child or his/her representative, and the Prosecutor at least two (2) days before the dispositional hearing.

(b) By motion of a party or by its own authority, the Court shall continue the dispositional hearing pending the receipt of a predispositional study and report.

(c) The Court may order a psychiatric examination of the child, parent, guardian or custodian. The parent, guardian or custodian may refuse to be examined but such refusal can be considered by the Court in making its determination on disposition.

§ 2-4-20 Dispositional Hearing

(a) A date for a dispositional hearing shall be set by the Court at the conclusion of the advisory hearing or the adjudicatory hearing as appropriate. The court shall conduct dispositional hearings to determine how to resolve a case after a finding that a child has committed a delinquent act or status offense. If the child remains in custody after the advisory hearing or adjudicatory hearing, the dispositional hearing shall be held within ten (10) business days thereafter. If the child is released from custody or was not taken into custody after the advisory hearing or adjudicatory hearing, then the dispositional hearing shall be held within twenty (20) business days thereafter.

(b) If a child has been adjudicated a juvenile offender, a habitual status offender or the child has admitted the allegation(s) in an advisory hearing, the Court may make the following dispositions:

(1) Place the child on probation subject to conditions set by the Court and subject to the probation requirements set by the Probation Officer;

(2) Place the child in an institution or agency designated by the Court for the purpose of treatment and/or rehabilitation;

(3) The Court may order home detention where such disposition is in the best interests of the child and the Tribe;

(4) The Court may order community service where appropriate supervision is available by any individual or organization duly authorized by the Court to supervise such community service;

(5) The child may be committed to a detention facility.

(6) The Court may order the child and/or the parent, guardian or custodian to attend any counseling or treatment that the Court finds is in the best interests of the child and the Tribe;

(7) The Court may order the child and the parent, guardian or custodian to pay any restitution for damages to person or property that have resulted from the actions of the child. Restitution shall include payment of money damages, surrender of property, or performance of any other act for the benefit of any person or party injured personally or in his property by the juvenile offender.

(8) The Court may order the child and the parent, guardian or custodian to pay Court costs not to exceed twenty-five dollars ($25.)

(9) The Court may enter any other order it deems appropriate.

§ 2-4-21 Jurisdiction Over Parents

Whenever a juvenile is found to come under the purview of this chapter, the court shall have jurisdiction and authority to have the juvenile and the juvenile’s parent(s), legal guardian or custodian sign a probationary contract with the court containing terms and conditions that the juvenile and the juvenile’s parent(s), legal guardian or custodian must adhere to as a condition of the juvenile’s probation. The probationary contract may provide that upon a violation or breach of the terms and conditions of the probationary contract the juvenile’s parent(s), legal guardian or custodian shall be liable to the court for a specific monetary sum not to exceed one thousand dollars ($1,000) for the breach of contract. All such monies received by the court pursuant to this section shall be paid to the Nez Perce Tribal Court. In lieu of or in addition to a monetary payment, the court may order that the parent(s), legal guardian or custodian provide community service, attend parenting classes or undergo other treatment or counseling.

§ 2-4-22 Status Offenses

(a) Truancy. Any minor who violates § 4-3-53(a) may be charged, petitioned and adjudicated with the status offense of being a Truant; (subsection amended eff. 11/12/02)

(b) Runaway. Any minor who violates § 4-3-53(c) Runaway may be charged, petitioned and adjudicated with the status offense of being a Runaway; (subsection amended eff. 11/12/02)

(c) Beyond Parental Control. Any minor who behaves in such a way as to be deemed by the court’s caseworker as beyond the control of his parent(s), guardian or custodian may be charged, petitioned and adjudicated with the status offense of being Beyond Parental Control;

(d) Curfew Violation. Any minor who violates §4-3-52 may be charged, petitioned and adjudicated with the status offense of Curfew Violation;

(e) Habitual Status Offender. Any juvenile who has been adjudicated for commission of two (2) status offenses within twelve (12) months may be charged, petitioned and adjudicated as an habitual status offender for the third status offense committed within that twelve (12) month period. (previous subsection (e) deleted eff. 11/12/02).

JUVENILE RECORDS

§ 2-4-23 Maintenance of Records/Confidentiality (section amended 4/10/01)

(a) A record of all hearings under this chapter shall be made and preserved. Law enforcement records and files concerning a child shall be kept separate from the records and files of adults. All court records and law enforcement records related to juveniles shall be confidential and shall not be open to inspection to any but the following:

(1) the child;

(2) the child's parent(s), guardian or custodian;

(3) the child's counsel;

(4) law enforcement, juvenile court, and social services personnel directly involved in the handling of the case;

(5) the tribal prosecutor;

(6) other prosecuting attorneys or courts of competent jurisdiction; and/or

(7) any other person by order of the court, upon a showing of extraordinary need.

(b) The victim of misconduct shall always be entitled to the name of the juvenile involved, the name of the juvenile's parents or guardian, and their addresses and telephone numbers, if available in the records of the court;

(c) Records or statistical information may be released for purposes of legitimate research or study upon order of the court as long as such information does not identify or tend to reveal the identity of any individual upon which it is based.

§ 2-4-24 Destruction of Records

The court may destroy the records of any juvenile once such person reaches the age of twenty one (21).

(amendments to chapter adopted by NPTEC 5/28-29/02)

§ 2-5-1 Definitions

(a) "Adjudication" means the process provided by this chapter for the formulation of an order through a hearing before the tribal agency.

(b) "Appellant" means a person who files an appeal under this chapter.

(c) "Commission" means any Nez Perce Tribal entity of appointed or elected members empowered with specific authority and duties in relation to particular subject matter such as the adoption of rules or regulations and conducting hearings on disputed matters.

(d) "Department" means a unit of Nez Perce tribal staff members established to implement the goals and objectives of the Nez Perce Tribe in a specific area and operating under the supervision and direction of NPTEC.

(e) "Ex Parte communication" means a communication between one party to a proceeding and the hearing officer, tribal agency staff or any other decision maker without notice to or participation by any other party to the proceeding.

(f) "Manager" means the highest ranking staff person in a department.

(g) "Order" means the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of a tribal agency in a matter other than rule making but including licensing.

(h) "Rule" means the whole or part of a tribal agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of a tribal agency.

(i) "Tribal agency" or "agency" for purposes of this chapter, includes a program, department, board, commission or other tribal entity authorized or mandated by this code or NPTEC to issue rules or hold hearings and issue orders.

§ 2-5-2 Procedural Rules/Policies

A tribal agency may adopt procedural rules or policies such as deadlines, hearing procedures and commenting criteria to assist in implementation of the provisions of this chapter. To the extent that either a tribal agency or NPTEC through ordinance or resolution has enacted procedures for rulemaking or adjudications which specifically address hearing procedures and other such matters in a manner more detailed than that of this Code, those procedures control to the extent that such rules or policies do not conflict with the provisions of this chapter.

RULE MAKING

§ 2-5-3 Rule Making Procedure

(a) At least fifteen (15) business days prior to tribal agency action on a proposed rule, such agency shall post in a conspicuous place in Lapwai, Kamiah, and Orofino and if possible, publish in the NPTEC minutes to be mailed to tribal members:

(1) a statement of the purpose and effect of the proposed rule;

(2) the reason for proposing adoption of the rule;

(3) reference to the legal authority under which the rule is adopted;

(4) that written comments may be submitted over the next fifteen (15) business days to a designated representative of the tribal agency; and

(5) that any comments submitted after the close of the fifteen (15) day comment period will not be considered in tribal agency action on the proposed rule.

(b) Following completion of the written comment period, the tribal agency may hold a public hearing. A decision to hold a public hearing may be based upon the written public comment received on the proposed rule, the potential controversy related to the proposal or whenever the tribal agency otherwise determines that additional public input would be useful and constructive. If such a hearing is held, the tribal agency shall post in a conspicuous place in Lapwai, Kamiah and Orofino and publish in the local newspapers:

(1) a statement of the purpose and effect of the proposed rule;

(2) references to the legal authority under which the rule is proposed;

(3) notice that on a specified date not less than five (5) but no more than ten (10) business days from the time of posting, a hearing will take place at a specified location for the purpose of taking public comment; and

(4) notice that the comment period on the proposed rule will be extended until the end of the hearing.

(c) This section shall not apply so long as the rule does not substantially affect the legal rights of, or procedures available to, the public and when the tribal agency finds and determines that:

(1) a proposed amendment is an interpretive rule, general statement of policy, or rule which addresses the internal management of the tribal agency; or

(2) for good cause, notice and public procedures are impracticable, unnecessary, or contrary to the public interest.

(d) The notice and comment provisions of this section shall not apply when the agency determines that prompt action is necessary for the preservation of life, health, property, order or natural resources.

(e) Following a tribal agency's final action on a rule it shall submit the rule to the NPTEC for review. Within five (5) business days of NPTEC approval, if any, the agency shall post a copy of the final rule in a conspicuous place in Lapwai, Orofino and Kamiah. The rule shall also be included with the NPTEC minutes mailed to tribal members.

(f) Posting of emergency rule shall clearly provide that such rule is an emergency and include the rational for the emergency. An emergency rule shall be effective immediately upon approval by the NPTEC and for a period of not longer than ninety (90) business days thereafter unless, during that time, the agency provides for regular notice and comment under this chapter.

(g) The notice and comment provisions of this section do not apply to agency rulemaking necessary for the exercise, protection, and enhancement of treaty reserved rights and resources.

ADJUDICATIONS

§ 2-5-4 Timing

Each tribal agency shall conduct an adjudication whenever this Code or NPTEC requires that such agency issue an order after opportunity for hearing on the record, or when a tribal employee is aggrieved by an employment action or a denial of license and seeks a hearing before the Board or hearings officer of a tribal agency. Immediately thereafter, the tribal agency shall designate a Board or hearings officer to schedule a hearing and resolve the dispute in the manner prescribed by this Chapter.

§ 2-5-5 Exhaustion of Other Remedies

Before seeking a hearing before the Board or hearings officer of a tribal agency, the party seeking a hearing must have exhausted all other available administrative remedies established by the tribal agency.

§ 2-5-6 Notice

Within ten (10) business days after the Code requires a hearing on the record or an employee has sought a hearing before the tribal agency, the Board or hearings officer of a tribal agency assigned to hear the dispute shall inform all persons known to have an interest in the hearing of:

(a) the time, place, and nature of the hearing;

(b) the legal authority under which the hearing is to be held; and

(c) the matters of fact and law asserted by the party seeking a hearing.

§ 2-5-7 Appearance by Parties

A party may appear in person or by or with counsel in a tribal agency adjudicatory proceeding.

§ 2-5-8 Submission of Evidence

Prior to the hearing, each party may submit such relevant documentary evidence in support of their position as necessary to assist the Board or hearing officer in making their decision. This documentary evidence shall serve as the basis of the Board or hearings officer’s decision.

§ 2-5-9 Hearings (amended by NPTEC 8/12/03)

(a) Each tribal agency may adopt their own hearing procedures provided that they conform with rules of evidence, due process, and any other applicable tribal or federal law. To the extent that a tribal agency fails to adopt specific hearing procedures, or those procedures are in conflict with this Code, the procedures of this Chapter shall apply.

(b) The Board or hearings officer presiding at the hearing may:

(1) administer oaths and affirmations;

(2) upon a showing of general relevance and reasonable scope of the evidence sought, issue subpoenas authorized by law and when requested by a party;

(3) rule on offers of proof and receive relevant evidence;

(4) take depositions or have depositions taken when the ends of justice would be served;

(5) regulate the course of the hearing;

(6) hold conference for the settlement or simplification of issues by consent of the parties;

(7) dispose of procedural requests or similar matters;

(8) directly question the parties to a hearing; and

(9) take other action consistent with this chapter.

(c) The party seeking the hearing has the burden of proof.

(d) The parties may present any additional oral or documentary evidence, but irrelevant, immaterial or unduly repetitious evidence shall be excluded. The parties may also submit rebuttal evidence, and conduct cross examination where the hearings officer determines such actions will produce evidence material to the resolution of the case.

(e) The Board or hearings officer shall issue a written opinion and order within ten (10) days of the hearing. The decision shall:

(1) be based solely on those issues properly raised to the hearings officer and on all oral and documentary evidence submitted by the parties that is supported by substantial evidence; and

(2) be in writing and include the findings and conclusions of law of the Board or hearings officer and the reason or basis for such conclusions on all material issues of fact, law or discretion as presented by the parties, and the appropriate rule, order, sanction, relief, or denial thereof.

(f) The decision of the Board or hearings officer shall be the final agency decision.

§ 2-5-10 The Record

(a) The exclusive record for hearings shall be compiled by the tribal agency and shall include:

(1) complete audio or written recorded transcripts of testimony provided at the hearing,

(2) all documents, papers, requests, and exhibits filed prior to and during hearing; and

(3) the written decision of the Board or hearings officer.

(b) The record shall provide the basis for any subsequent appeal of the Board or hearing officer’s decision to Tribal Court.

(c) The record shall be provided to a party upon request and payment of costs by such party.

§ 2-5-11 Ex Parte Contacts and Conflict of Interests

(a) No interested person outside a tribal agency involved in an adjudication shall make or knowingly cause to be made to any person in such tribal agency, a hearing officer or other tribal employee who is or may reasonably be expected to be involved in the decision making process of the proceedings an ex parte communication relevant to the merits of the proceeding.

(b) No member of the tribal agency, the hearing officer or tribal employee who is or may reasonably be expected to be involved in the decisional process related to an adjudication, shall make or knowingly cause to be made to any interested person outside the tribal agency an ex parte communication relevant to the merits of the proceeding;

(c) A member of the tribal agency, a hearing officer or other tribal employee who is or may reasonably be expected to be involved in the decisional process related to an adjudication who receives or who makes or knowingly causes to be made a communication prohibited by this subsection shall place on the record of the proceedings:

(1) all such written communications or memoranda stating the substance of such communications; and

(2) all written responses or memoranda stating the substance of responses, to the materials described above.

(d) Upon a violation of this section by a party and absent good cause shown to the contrary, the hearing officer may dismiss, deny, disregard or make other appropriate determinations in relation to such parties claim.

(e) Any member of the Board or a hearings officer who has an actual or potential personal, financial, or propriety interest in the outcome of a hearing or has a personal, financial, or propriety relationship with the employee seeking a hearing must disclose such interests and, if unable to act in a non-biased manner, must recuse himself from the hearing.

(f) The prohibitions of this section apply to any Nez Perce Tribal Executive Committee member who may sit on the Board or Commission of a tribal agency.

§ 2-5-12 Exclusion of Certain Employees From Decision

An employee or agent engaged in investigative or prosecuting functions for a tribal agency in a case may not, in that or a factually related case, participate or advise in the decision except as witness or counsel at the hearing unless the case involves the determination of an application for initial licenses.

JUDICIAL REVIEW

§ 2-5-13 Petition for Review

(a) Any party to a hearing before a Board or hearings officer may petition for review from the Nez Perce Tribal Court of a final decision by an agency for which there is no other adequate remedy by filing a written petition with the Court within thirty (30) business days after such final decision. A written notice of appeal must provide the Court with sufficient information and argument to show why the order or rule should be changed or reversed. At a minimum, a Petition for Review must:

(1) state that the document is an appeal;

(2) list the name, address and telephone number of the appellant;

(3) identify the decision or portion of a decision being appealed;

(4) identify by title and date, the written notice or posting in which the decision is found;

(5) state the reason for appeal including issues of fact, law, regulation, or policy;

(6) identify the authority for the Tribal Court to modify or set aside the decision; and

(7) identify the specific substantive or procedural errors of law or fact in the decision of the Board or hearings officer and the remedy sought.

(b) Within ten (10) business days after the filing of a Petition for Review, the Board or hearings officer shall submit to the Tribal Court the Record as described in §2-5-9. Should the Board or hearings officer fail to do so, the Tribal Court may order the Board or Hearings Officer to comply.

(c) Tribal Court may grant or deny the Petition for Review. The failure to include any of the items described in § 2-5-12(a) may be grounds for denying the Petition for Review. Should the Tribal Court grant the Petition, the Court shall establish a briefing schedule and set a date for a hearing.

§ 2-5-14 Appeal Record

(a) The appeal record shall provide the sole evidentiary record for the Tribal Court to review the decision of the Board or hearings officer. The record on appeal shall include:

(1) the Record as described in §2-5-9; and

(2) all appeal related documents filed with Tribal Court and any additional information requests by the Tribal Court.

(b) if an appeal of an adjudication, the record established in conducting the adjudication. Should the record from the hearing fail to include a recorded transcript, the Tribal Court may refuse to hear the petition for lack of evidence or decide, based on other evidence in the record, to hear the petition without the transcript.

§ 2-5-15 Scope and Standard of Review

(a) In reviewing the decision of the Board or hearings officer, the Tribal Court shall decide only those issues raised in the Petition for Review and developed within the Record, including all relevant questions of law and fact.

(b) The Tribal Court shall have exclusive jurisdiction to affirm, modify or set aside the decision of the Board of hearings officer; issue prohibitory or mandatory injunctions; issue declaratory judgments; or remand the matter to the tribal agency.

(c) If the Petition seeks review of a tribal agency rulemaking the Tribal Court shall review the action and compel tribal agency action unlawfully withheld or unreasonably delayed or hold unlawful and set aside agency action, findings, and conclusions found to be contrary to tribal or federal law or issued without observance of procedure required by law.

(d) If the Petition seeks review of a decision of a Board or hearings officer reached after a hearing on the record, the Tribal Court shall review the decision and hold unlawful and set aside agency action, findings, and conclusions found to be:

(1) arbitrary, capricious and an abuse of discretion, unsupported by substantial evidence or otherwise not in accordance with Tribal or federal law;

(2) contrary to constitutional right, power, privilege or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law.

(e) The Tribal Court shall render a decision on a petition for review no later than twenty (20) business days after the appeal is filed and shall set a date and time for hearing on the petition for review within the twenty (20) day time limit. The decision of the Tribal Court shall be based solely on those issues properly raised to the Court in the Petition for Review and on the appeal record as a whole.

(f) The decision of the Tribal Court shall be final, subject only to review by the Nez Perce Tribal Court of Appeals.

§ 2-5-16 Request for Stay

(a) Where a project or activity would be implemented before an appeal decision could be reached, the Court shall consider a written request to stay implementation of the order or rule pending such decision. The party requesting the stay shall send a copy of the request to any other party to the proceeding. Such request must:

(1) provide a description of the specific project(s), activity(s), or action(s) to be stopped;

(2) include specific reasons why the stay should be granted in sufficient detail to permit the Court to evaluate and rule upon the stay request.

(b) Within ten (10) business days of receipt of the request, the Tribal Court shall issue a written decision on a stay to the party requesting the stay and any other appellants or intervenors party involved in the appeal. The decision shall state:

(1) if the stay is granted, the specific activity(s) to be stopped, duration of the stay and reasons for granting the stay; or

(2) if the stay is denied, in whole or in party, the reasons for the denial.

(c) Should the Court grant the stay, the Court may require the prevailing party to post a bond, the amount of which shall be established at the Court’s discretion.

(d) This section shall not apply to employment related disputes.

§ 2-6-1 Definitions

(a) "Contraband" means any item which is unlawful to possess or produce.

(b) "Probable cause" exists under this chapter when the prosecutor has substantial objective basis for believing that a piece of property was used in association with an infraction or criminal offense as provided in this code. In determining whether probable cause exists, the prosecutor may take into account all information which a prudent prosecutor would deem relevant to the likelihood that the property was used in such a manner.

(c) "Proceeds" means any property obtained through the commission of a criminal offense under this code and includes any appreciation in value of such property or any secondary property obtained or gain realized by the sale or exchange of the original proceeds of a crime.

(d) "Instrumentality" means any item used in connection with an infraction or criminal offense under this code.

(e) "Real property instrumentality" means an interest in real property used in connection with a criminal offense under this code.

§ 2-6-2 Forfeiture Actions

(a) In addition to any remedy or penalty imposed against any person found to have committed a criminal offense or a civil infraction other than a traffic infraction under this code, the Nez Perce Tribe may bring a forfeiture action against any:

(1) property which constitutes contraband, the proceeds, instrumentalities, or real property instrumentalities associated with a criminal offense; or

(2) contraband or instrumentality used in connection with a civil infraction, other than a traffic infraction.

(b) Any action under this chapter shall be civil, remedial and in rem in nature and shall not be deemed to be a penalty for any purpose.

§ 2-6-3 Seizure

(a) If a tribal police officer finds or is made aware of evidence that a particular item other than a real property instrumentality or proceeds held in a checking, savings, or other account is subject to forfeiture under this chapter, he shall seize the item. Once seized, the tribal police shall notify the tribal prosecutor of the seizure and hold the item as evidence until forfeiture is declared or a release ordered.

(b) If a tribal police officer finds or is made aware of evidence that a real property instrumentality or proceeds held in a checking, savings, or other account are subject to forfeiture under this chapter, he shall notify the tribal prosecutor who shall determine whether probable cause exists to seize the item in question.

(c) The tribal prosecutor may file a notice of intention to institute forfeiture proceedings with the clerk of the Court. Within two (2) business days of receipt of the notice, the clerk shall:

(1) publish notice of the seizure and intent to institute forfeiture proceedings in a newspaper of general circulation in the area where the property is located or seized; and

(2) if the item to be seized constitutes real property, file a notice of seizure and intent to institute forfeiture proceedings with the appropriate county recorders office and post a copy upon the property involved; or

(3) if the item to be seized constitutes proceeds held in a checking, savings or any other account, file a notice of seizure and intent to institute forfeiture proceedings with the bank or any other person having in his possession or control the proceeds to be seized directing such person or bank to freeze the account and requesting copies of the account records.

(d) The notice of seizure and intent to institute forfeiture proceedings shall provide that any interested parties with potential claims to the item in question are required to file a request for hearing within twenty (20) business days of publication of the notice and that failure to do so will be deemed forfeiture by default.

§ 2-6-4 Forfeiture Determination (revised 6/22/99)

(a) If the Tribal Court determines that an infraction or criminal offense has been committed in relation to an item seized, the prosecutor may file an action for forfeiture. Subject to this section, the proceedings governing forfeiture shall be the same as that prescribed for civil proceedings under this code.

(b) If any interested party with potential claims to the property involved has contacted the Tribal Court within twenty (20) business days after publication of notice of seizure, a forfeiture hearing shall be held before the Court no later than thirty (30) business days after the date of judgment on the underlying infraction or offense. Such party shall have the right at hearing to present evidence and produce witnesses as to why such property should not be forfeited.

(c) There shall be no right to a jury in forfeiture hearings and the burden of proof shall be a preponderance of the evidence.

Following the hearing the Tribal Court shall determine whether the property in question shall be forfeited to the Tribal Law Enforcement.

(d) In the event that a forfeiture hearing is not requested by an interested party with potential claims to the property involved, such property shall be forfeited to the Tribal Law Enforcement.

(e) All property forfeited to Tribal Law Enforcement shall be placed into service, destroyed, or sold at auction as per Tribal Law Enforcement guidelines and policies.

§ 2-7-1 Definitions

(a) "Garnishee" means an employer, trustee, financial agency or institute, or other person found within the reservation boundaries who has in his possession or control any credits or other personal property belonging to the defendant, or owes any debt to the defendant.

(b) "Homestead" means a dwelling house or the mobile home in which the owner resides or intends to reside, with appurtenant buildings, and the land on which the same are situated and by which the same are surrounded, or improved; or unimproved land owned with the intention of placing a house or mobile home thereon and residing thereon. A mobile home may be exempted under this chapter whether or not it is permanently affixed to the underlying land and whether or not the mobile home is placed upon a lot owned by the mobile home owner. Property included in the homestead must be actually intended or used as a principal home for the owner. (added 6/22/99)

(c) "Owner" means, but is not limited to, a purchaser under a deed of trust, mortgage, or contract.

§ 2-7-2 Writ of Attachment/Hearing

If within sixty (60) days after entry of a judgment awarding money damages and/or costs against a party or within sixty (60) days after final resolution of an appeal to the appellate court from such a judgment, it is made to appear to the Court that the judgment debtor has not paid the judgment amount in full or commenced making installment payments in a manner agreed to by the parties, or is not current in such payments owed to the creditor, the Court shall upon motion of the judgment creditor, issue an order to the debtor to show cause why a writ of attachment should not issue. Such order shall fix the date and time for hearing, which shall be no sooner than five (5) business days from the issuance of the order. The order shall inform the debtor he may file an affidavit on his behalf with the Court and may appear and present testimony on his behalf at the time of such hearing and if he fails to appear, the writ of attachment shall issue. Following the hearing, the Court may have the property of the judgment debtor attached as security for satisfaction of the judgment.

§ 2-7-3 Intervening Creditors

Within two (2) business days after issuing the writ of attachment, the court clerk shall publish notice in a newspaper of general circulation in the area where the property is located or seized. Any creditor of the debtor, who, within twenty (20) business days after publication of the notice, shall commence and thereafter diligently prosecute to final judgment, his claim against the debtor, shall share with the attaching creditor in an amount as determined by the Court, the proceeds of debtor's property where there are not sufficient funds to pay all judgments in full against him.

§ 2-7-4 Execution of Writ

(a) Upon issuing a writ of attachment, the Court shall order the judgment debtor to appear before it and answer under oath regarding all his personal property. The Court shall then determine what property of the judgment debtor is available for execution and order the tribal police to seize as much of such property as reasonably appears necessary to pay any judgment meeting the standards for payment under this chapter.

(b) Failure of the judgment debtor to appear may be deemed a contempt of court and the Court may proceed without such appearance. Any sale of seized property shall be at public auction conducted by the tribal police after giving at least ten (10) business days public notice posted in at least three conspicuous public places on the reservation. Property shall be sold to the highest bidder who shall make payment for the property at the time of sale. The person conducting the auction such in his discretion if there is inadequate response to the auction or the bidding, and may reschedule such upon giving the required notice. The person conducting the sale shall give a certificate of sale to the purchaser and shall make a return to the Court reciting the details of the sale.

(c) Proceeds of the sale shall first go to satisfy the cost of the sale, second to any unpaid court costs, next to satisfy any portion of a judgment still owing and meeting the standards for payment under this chapter. Any amount remaining after the above has been paid shall be paid over to the debtor.

(d) The Court shall only order seizure and sale of such property of the judgment debtor to satisfy a money judgment the loss of which will not impose an immediate substantial hardship on the judgment debtor's immediate family.

(e) At any time within six (6) months after sale under this section, the judgment debtor may redeem his property from the purchaser by paying the amount such purchaser paid for the property plus eight (8) percent interest, plus any expenses actually incurred by the purchaser, such as taxes and insurance to maintain the property.

§ 2-7-5 Garnishment

(a) Upon receiving information in writing from the creditor or his attorney of the existence of a garnishee, the tribal police shall serve upon the garnishee, a copy of the writ and notice that any credits or debts which the garnishee owes to the debtor or any property of the debtor which the garnishee has in his possession, are attached to the writ. Upon attachment, the garnishee shall pay or deliver to the police all debts he owes to the debtor or any of the debtor's money in his possession, or any portion thereof sufficient to discharge the claim of the creditor. The police shall issue the garnishee a receipt for any funds or property delivered.

(b) A person who is a garnishee at the time of service upon them of a copy of the writ and notices, shall be liable to the creditor for the amount of any credits or debts which the garnishee owes to the debtor or any property of the debtor which the garnishee has in his possession until the attachment is discharged or any judgment recovered by the creditor is satisfied unless such property is delivered or such debts paid to the Court.

§ 2-7-6 Writ of Recovery

(a) Whenever the Court has issued a judgment ordering the party to deliver possession of real or personal property to another party and such delivery has not taken place within the time limit prescribed in the judgment, the Court shall upon motion of the aggrieved party, issue an order to the debtor to show cause why a writ of attachment should not issue. Such order shall fix the date and time for hearing, which shall be no sooner than five (5) business days from the issuance of the order. The order shall inform the debtor he may file an affidavit on his behalf with the Court and may appear and present testimony on his behalf at the time of such hearing and if he fails to appear, the writ of attachment shall issue. Following the hearing, the Court may issue a writ of recovery for the property involved.

(b) The writ shall describe the real or personal property involved in enough detail to enable the Tribal Police to locate such property, and shall authorize a Tribal Police Officer to take possession of specified real or personal property from a wrongful holder and deliver possession to the party indicated on the writ. If real or personal property is within the jurisdiction of the Court, it may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law.

§ 2-7-7 Specific Acts

If a judgment directs a party to perform any specific act and the party fails to comply within the time specified, the Court may direct the act to be done at the cost of the disobedient party by some other person appointed by the Court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment against the property of the disobedient party to compel obedience to the judgment. The Court may also in proper cases adjudge the party in contempt.

§ 2-7-8 Service of Writ

Service of a writ under this chapter shall be in accordance with service of process as provided in the Rules of Civil Procedure.

§ 2-7-9 Exempt Property

Any property, wages or other assets which are exempt from execution by federal law and any Indian regalia, relics and family heirlooms, as determined by the tribal court judge, are exempt from execution under this chapter.

§ 2-7-10 Homestead Exemption

A homestead is automatically protected by exemption, in addition to those exemptions set forth in § 2-7-9. If the homestead exemption is made by a married person from the community property, the property, on the death of either of the spouses, vests in the survivor, subject to no other liability; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, subject to the power of the Tribal Court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for