Chapter 4-1 - Criminal Offenses
GENERAL
PROVISIONS
Introductory
Provisions
§ 4-1-1
Definitions (revised 6/22/99)
(a) "Adult
household member" means spouses, former spouses, persons related by
blood or marriage, persons who reside or who have resided together,
and persons who have a child in common regardless of whether they have
been married or have lived together at any time.
(b) "Adulterated"
means varying from the standard of composition or quality prescribed
by any applicable law or commercial usage.
(c) "Affirmative
defense" means a new matter in the prosecution of an offense which assuming
the complaint to be true constitutes a defense to it.
(d) "Agent"
means any director, officer, servant, employee or other person authorized
to act in behalf of a corporation or association and, in the case of
an unincorporated association, a member of such association.
(e) " To
appropriate" when used as a verb means:
(1) to
exercise control over property, or to aid a third person to exercise
control over it, permanently or for so extended a period or under
such circumstances as to acquire the major portion of its economic
value or benefit; or
(2) to
dispose of the property for the benefit of oneself or a third person.
(f) "Corporation"
means any entity incorporated under state or tribal law but does not
include an entity organized as or by a governmental agency for the execution
of a governmental program.
(g) "Corruptly"
imports a wrongful design to acquire or cause some pecuniary or other
advantage to the person guilty of a forbidden act or omission, or to
another.
(h) "Course
of conduct" means a pattern of conduct composed of a series of acts
over a period of time, however short, evidencing a continuity of purpose.
Constitutionally protect activity is not included, within the meaning
of this definition.
(i) "Dangerous
device" means any device capable of causing serious bodily injury to
human beings.
(j) "Dangerous
weapon" means any item that in the manner of its use or intended use
is capable of causing death or serious bodily injury. On the issue of
whether an object not commonly known as a dangerous weapon is such a
weapon, the character of the object the character of the wound produced,
if any, and the manner in which the object was used shall be determinative.
(k) "Domestic
household member" means spouses, former spouses, persons related by
blood or marriage, persons who reside or who have resided together,
and persons who have a child in common or are expecting a child together,
regardless of whether they have been married or have lived together
at any time. For the purpose of this Title, "reside" shall mean ones
personal presence at some place of abode with no present intention of
leaving and with purpose to remain for an undetermined period of time,
but not necessarily combined with the design to stay permanently.
(l) "Domestic
violence" means the occurrence of one or more of the following:
(1) An
unlawful attempt, coupled with apparent ability, to commit a violent
injury on another domestic household member;
(2) An
intentional, unlawful threat by word or act to do violence to another
domestic household member, coupled with an apparent ability to do
so, and doing some act which creates a well-founded fear in such other
domestic household member that such violence in imminent;
(3) Willful
and unlawful use of force or violence upon the person of another domestic
household member;
(4) Actual,
intentional and unlawful touching or striking of another domestic
household member against their will;
(5) Unlawfully
and intentionally causing bodily harm to another domestic household
member; or
(6) Causing
an domestic household member to engage involuntarily in sexual activity
by force, threat of force, or duress.
(m) "Drug
paraphernalia" means any equipment, product, or material of any kind
which is primarily intended or designed for use in manufacturing, compounding,
converting, concealing, producing, processing, preparing, injecting,
ingesting, inhaling or otherwise introducing into the human body a controlled
substance, possession of which is unlawful under this code.
(l) "Element
of the offense" means:
(1) the
conduct, attenuated circumstances or result of conduct included in
the description of the forbidden act in the definition of the offense;
and
(2) the
establishment of the required mental state or culpability described
in the offense, if any; but
(3) an
"element of the offense" shall not relate exclusively to the statute
of limitations, jurisdiction, venue or to any other matter similarly
unconnected with the harm or evil, incident to the prohibited conduct,
or the existence of justification or excuse for such conduct.
(n) "Embezzlement"
means to willfully take or convert to one's own use, another's money
or property in which the wrongdoer lawfully acquired possession by reason
of some office, employment or position of trust.
(o) "Enter"
means an intrusion by any part of the body, or intrusion by any physical
object under control of the actor.
(p) "Fiduciary"
means a trustee, guardian, executor, administrator, receiver or any
person carrying on fiduciary functions on behalf of a corporation or
other organization.
(q) "Harass"
means a knowing and willful course of conduct directed at a specific
person which seriously alarms, annoys or harasses the person, and which
serves no legitimate purpose. The course of conduct must be such as
would cause a reasonable person to suffer substantial emotional distress.
(r) "High
managerial agent" means an officer of a corporation or an unincorporated
association, or, in the case of a partnership, a partner, or any other
agent of a corporation or association having duties of such responsibility
that his conduct may fairly be assumed to represent the policy of the
corporation or association.
(t) "Intoxication"
means a disturbance of mental or physical capacities resulting from
the introduction of substances into the body.
(u) "Knowingly"
means the knowledge that the facts exist which bring an act or omission
within the provisions of this chapter. A knowing mental state does not
require any knowledge of the unlawfulness of such act or omission.
(v) "Malice
aforethought" means an intent at the time of a killing, to willfully
take the life of a human being, or an intent to willfully act in callous
and wanton disregard of the consequences to human life.
(w) "Maliciously"
or "malice" means a wish to vex, annoy, or injure another person, or
an intent to do a wrongful act, established either by proof or presumption
of law.
(x) "Minor
or child" means a person who is less than eighteen (18) years old and
has not been emancipated by order of a court of competent jurisdiction.
(y) "Mislabeled"
means varying from the standard of truth or disclosure in labeling prescribed
by any applicable law or commercial usage.
(z) "Negligently",
"neglect", "negligence," or "negligent" means a want of such attention
to the nature of probable consequences of an act or omission as a prudent
person ordinarily bestows in acting in his own concerns.
(aa) "Obtain"
means:
(1) in
relation to property, to bring about a transfer of interest or possession,
whether to the offender or to another; and
(2) in
relation to labor or services, to secure the performance thereof.
(bb) "Owner"
means any person who has a right to possession of property superior
to that of the taker, obtainer or withholder.
(cc) "Possession"
means an act in which the possessor knowingly procured or received the
thing possessed or was aware of his control thereof for a sufficient
period to have been able to terminate his possession.
(dd) "Public
assistance" shall have the definition and meaning provided in Title
10, Section 56-201 of the Idaho State Public Assistance and Welfare
Code existing as of the date of adoption of this chapter by NPTEC or
hereafter amended.
(ee) "Public
monies" means all bonds and evidences of indebtedness, and all monies
belonging to the Tribe, and all monies, bonds and evidences of indebtedness
received or held by Tribal officials in their official capacity.
(ff) "Self-induced
intoxication" means intoxication caused by substances which the actor
knowingly introduces into his body, the tendency of which to cause intoxication
he knows or ought to know.
(gg) "Sexual
contact" means any intentional touching of the genitals, anus, groin,
breast, inner thigh or buttocks with intent to abuse, humiliate, harass,
degrade, arouse or gratify the sexual desires of any person.
(hh) "Social
game" means a game, other than a lottery, between players in a private
home or private business where no house player, house bank or house
odds exist and there is no house income from the operation of the social
game.
(ii) "Strict
liability" means an element of an offense that exists only when the
definition of the offense does not include or involve a culpable mental
state.
(jj) "Vulnerable
adult" means a person eighteen (18) years of age or older who is unable
to protect himself from abuse, neglect or exploitation due to physical
or mental impairment which affects the person's judgment or behavior
to the extent that he lacks sufficient understanding or capacity to
make, communicate or implement decisions regarding his person.
(kk) "Willfully"
implies a purpose or willingness to commit a forbidden act or make a
forbidden omission. A willful mental state does not require any intent
to violate law, or to injure another or to acquire any advantage.
(ll) "Writing"
includes printing or any other method of recording information, money,
coins, tokens, stamps, seals, credit cards, badges, trademarks and other
symbols of value, right, privilege, or identification.
§ 4-1-2 Scope
This chapter
shall apply to all criminal provisions of this code.
§ 4-1-3 Purpose and Construction
The purpose
of the criminal provisions of this code are to:
(a) forbid
and prevent the commission of offenses and give fair warning of conduct
which is declared to be an offense;
(b) define
adequately the conduct and mental state which constitute each offense
and safeguard conduct that is without fault from condemnation;
(c) prescribe
penalties which are proportionate to the seriousness of the offense;
and
(d) prevent
arbitrary and oppressive treatment of persons accused or convicted
of offenses and to promote the correction and rehabilitation of such
persons.
§ 4-1-4 Civil Remedies Preserved
This code
shall not affect any civil remedy available under the Nez Perce Tribal
Code which may arise from any act or omission which is punishable under
this chapter. The fact that conduct is found to be an affirmative defense
under this chapter does not abolish or impair any remedy for such conduct
available in any civil action.
Multiple
Prosecutions and Double Jeopardy
§ 4-1-5 Prosecution for Multiple Offenses
(a) When
the same conduct of a defendant may establish the commission of more
than one offense, the defendant may be prosecuted for each such offense.
He may not, however, be convicted of more than one offense if:
(1) one
offense is included in the other;
(2) one
offense consists only of a conspiracy or other form of preparation
to commit the other;
(3) inconsistent
findings of fact are required to establish the commission of the offenses;
(4) the
offenses differ only in that one is defined to prohibit a designated
kind of conduct generally and the other to prohibit a specific instance
of such conduct; or
(5) the
offense is defined as a continuing course of conduct and the defendant's
course of conduct was uninterrupted, unless this code provides that
specific periods of such conduct constitute separate offenses.
(b) Except
as provided by Subsection (c) of this section, a defendant shall not
be subject to separate trials for multiple offenses based on the same
conduct or arising from the same criminal episode.
(c) Upon
application of either party and when the defendant is charged with two
or more offenses based on the same conduct or arising from the same
criminal episode, the Court may order any such charge to be tried separately
if it is satisfied that justice so requires.
(d) A defendant
may be convicted of an offense included in an offense charged in the
complaint. An included offense may be:
(1) established
by proof of the same or less than all the facts required to establish
the commission of the offense charged;
(2) an
attempt or solicitation to commit the offense charged or to commit
an offense otherwise included therein; or
(3) different
from the offense charge only in the respect that a less serious injury
or risk of injury to the same person, property or public interest
or a lesser kind of culpability suffices to establish its commission.
(e) The
Court shall charge the jury with respect to an included offense if there
is a rational basis for a verdict acquitting the defendant of the offense
charged and convicting him of the included offense.
§ 4-1-6 Double Jeopardy
If a defendant
has been prosecuted in the Nez Perce Tribal Court for one or more offenses
arising out of the same conduct as the original prosecution, a subsequent
prosecution in the Nez Perce Tribal Court for the same or a different
offense arising out of the same conduct is barred. The initial prosecution
shall have been established in any proceeding in which the jury has
been impanelled and sworn in, or, if the matter was to be tried without
a jury, once the first witness is sworn.
Burden of Proof
§ 4-1-7
Burden and Presumption of Innocence
No person
may be convicted of an offense unless each element of such offense is
proven beyond a reasonable doubt. In the absence of such proof the defendant
shall be acquitted.
§ 4-1-8 Negating Defenses
The prosecution
need not negate any defense either in the complaint or by proof unless
the defense is in issue as a result of evidence presented at trial by
either party, or unless the defense is an affirmative defense and the
defendant has presented evidence of it.
GENERAL PRINCIPLES OF LIABILITY
§ 4-1-9
Acts and Omissions to Act
(a) A person
is not guilty of an offense unless his liability is based on conduct
which includes a voluntary act or the omission to perform an act of
which he is physically capable.
(b) The
following are not voluntary acts with the meaning of this section:
(1) a
reflex or convulsion;
(2) a
bodily movement during unconsciousness or sleep;
(3) conduct
during hypnosis or resulting from hypnotic suggestion;
(4) a
bodily movement that otherwise is not a product of the effort or determination
of the actor.
(c) Liability
for the commission of an offense may not be based on an omission unaccompanied
by action unless:
(1) the
omission is expressly made sufficient by the definition of the offense;
or
(2) a
duty to perform the omitted act is otherwise required by this code.
§ 4-1-10 Culpability
A person
is not guilty of an offense unless he acted with the requisite mental
state with respect to each material element of the offense or unless
his act constitutes an offense involving strict liability.
§ 4-1-11 Causal Relationships Between Conduct and Result
(a) Conduct
is the cause of a result when:
(1) the
result in question would not have occurred but for the conduct; and
(2) the
relationship between the conduct and result satisfies any additional
causal requirements imposed by the code or the definition of the offense.
(b) When
a particular mental state is an element of an offense the element is
not established if the actual result is not within the purpose or contemplation
of the actor or within the risk of which the actor is aware or should
be aware unless:
(1) the
actual result differs from that intended, contemplated or the probable
result only in the respect that a different person or different property
is injured or affected;
(2) the
injury or harm intended or contemplated or probable would have been
more serious or extensive than that caused; or
(3) the
actual result involves the same kind of injury or harm as that designed,
contemplated or probable and is not too remote or accidental in its
occurrence to have a just bearing on the actor's liability or the
gravity of his offense.
§ 4-1-12 Ignorance or Mistake
(a) Ignorance
or mistake as to a matter of fact or law is a defense if:
(1) it
negates the mental state for the offense; or
(2) this
code provides that the state of mind established by such ignorance
or mistake constitutes a defense.
(b) Although
ignorance or mistake would otherwise afford a defense to the offense
charged, the defense is not available if the defendant would be guilty
of another offense had the situation been as he supposed.
§ 4-1-13 Accomplices
(a) A person
is an accomplice of another person in the commission of an offense if:
(1) with
the purpose of promoting or facilitating the commission of the offense
he:
(A)
solicits such other person to commit it;
(B)
aids or agrees or attempts to aid such other person in planning
or committing it;
(C)
having a legal duty to prevent the commission of the offense, fails
to make proper effort to do so; or
(2) his
conduct is expressly declared by the code or the definition of the
crime to establish his complicity.
(b) When
causing a particular result is an element of an offense, an accomplice
in the conduct causing such result is an accomplice in the commission
of that offense, if he acts with the kind of culpability necessary for
the commission of the offense.
(c) A person
who is legally incapable of committing a particular offense may be guilty
thereof if it is committed by the conduct of another person for which
he is legally accountable.
(d) A person
is not an accomplice in an offense committed by another person if:
(1) he
is a victim of that offense; or
(2) he
terminates his complicity prior to the commission of the offense;
and
(A)
wholly deprives it of effectiveness; and
(B)
gives timely warning to the Tribal Police or otherwise makes proper
effort to prevent the commission of the offense.
(e) An
accomplice may be convicted on proof of the commission of the offense
and of his complicity therein, though the person claimed to have committed
the offense has not been prosecuted or convicted, has been convicted
of a different offense or degree of offense, has an immunity to prosecution
or conviction or has been acquitted.
§ 4-1-14 Corporations, Unincorporated Associations and Persons Acting,
or Under a Duty to Act, in Their Behalf
(a) A corporation
or unincorporated association may be convicted of the commission of
an offense if:
(1) the
offense is a violation or the offense is defined by law in which a
legislative purpose to impose liability on such entity plainly appears
and the conduct is performed by an agent of the corporation or association
acting in behalf of the entity within the scope of his office or employment,
unless the law defining the offense specifically designates the agents
for whose conduct the entity is accountable or the circumstances under
which it is accountable;
(2) the
offense consists of an omission to discharge a specific duty to act
imposed on such entities by the code or other law; or
(3) the
commission of the offense was authorized, requested, commanded, performed
or recklessly tolerated by the board of directors or by a high managerial
agent acting in behalf of the entity within the scope of his office
or employment.
(b) When
absolute liability is imposed for the commission of an offense, a legislative
purpose to impose liability on a corporation or association shall be
assumed.
(c) In
any prosecution of a corporation or an unincorporated association for
the commission of an offense under Subsection (a) of this section, other
than an offense for which absolute liability has been imposed, it shall
be a defense if the defendant proves by a preponderance of evidence
that the high managerial agent having supervisory responsibility over
the subject matter of the offense employed due diligence to prevent
its commission. This paragraph shall not apply if it is plainly inconsistent
with the legislative purpose in defining the particular offense.
(d) A person
is legally accountable for any conduct he performs or causes to be performed
in the name of the corporation or an unincorporated association or in
its behalf to the same extent as if it were performed in his own name
or behalf.
(e) Whenever
a duty to act is imposed by law upon a corporation or an unincorporated
association, any agent of the corporation or association having primary
responsibility for the discharge of the duty is legally accountable
for a reckless omission to perform the required act to the same extent
as if the duty were imposed by law directly upon him.
(f) When
a person is convicted of an offense by reason of his legal accountability
for the conduct of a corporation or an unincorporated association, he
is subject to the sentence authorized by law when a natural person is
convicted of an offense of the grade and the degree involved.
§ 4-1-15 Intoxication
(a) Except
for intoxication which is not self induced, intoxication of the actor
is not a defense unless it negates any particular purpose, motive or
intent which is a necessary element of the crime.
(b) Intoxication
does not, in itself, constitute mental disease within the meaning of
this code.
§ 4-1-16 Duress
(a) It
is an affirmative defense that the actor engaged in the conduct charged
to constitute an offense because he was coerced by the use of, or a
threat to use, unlawful force against his person or the person of another,
which a reasonable person in his situation would have been unable to
resist.
(b) The
defense provided by this section is unavailable if:
(1) the
actor knowingly, willfully or negligently placed himself in a situation
in which it was probable that he would be subjected to duress;
(2) the
coerced conduct threatens to cause death or serious bodily harm to
some person other than the actor.
§ 4-1-17 Consent
(a) The
consent of the victim to conduct constituting an offense or to the result
thereof is a defense if it precludes an element of the offense or the
infliction of the harm or evil sought to be prevented by the law defining
the offense.
(b) When
conduct constitutes an offense because it causes or threatens bodily
harm, consent to such conduct is a defense only if:
(1) the
bodily harm consented to or threatened is not serious;
(2) the
conduct and the harm are reasonably foreseeable hazards of joint participation
in a lawful athletic contest or competitive sport; or
(3) the
consent establishes a justification for the conduct.
(c) Assent
does not constitute consent if:
(1) it
is given by a person who is legally incompetent to authorize the conduct
charged to constitute the offense;
(2) it
is given by a person who by reason of youth, mental disease, defect
or intoxication is manifestly or known by the actor to be unable to
make a reasonable judgment as to the nature or harmfulness of the
conduct charged to constitute the offense;
(3) it
is given by a person whose consent is sought to be prevented by the
law defining the offense; or
(4) it
is induced by force, duress or deception of a kind sought to be prevented
by the law defining the offense.
§ 4-1-18 Entrapment
(a) It
shall be a defense if a Tribal Police Officer or a person acting in
cooperation with such an official for the purpose of obtaining evidence
of the commission of an offense, induces or encourages the defendant
to engage in conduct constituting such offense by either:
(1) making
knowingly false representations designed to induce the belief that
such conduct is not prohibited; or
(2) employing
methods of persuasion or inducement which create a substantial risk
that such an offense will be committed by persons other than those
who are ready to commit it.
(b) The
defense afforded by this section is unavailable when causing or threatening
bodily injury is an element of the offense charged and the prosecution
is based on conduct causing or threatening such injury to a person other
than the person perpetrating the entrapment.
(c) The
defendant shall have the burden of proving by a preponderance of evidence
the defense of entrapment under this section.
§ 4-1-19 Mental Disease or Defect Excluding Responsibility
(a) It
shall be an affirmative defense to prosecution of an offense if the
defendant at the time of the criminal conduct and as a result of mental
disease or defect lacks substantial capacity either to appreciate the
criminal nature of his conduct or to conform his conduct to the requirements
of law. A mental disease or defect does not include an abnormality manifested
only by repeated criminal or otherwise anti-social conduct, nor shall
it preclude a finding that the defendant is guilty but insane if the
possibility of intent is not completely eliminated by the mental disease
or defect.
(b) Evidence
of mental disease or defect is not admissible unless the defendant,
at the time of entering his plea of not guilty or within ten (10) business
days thereafter or at such later time as the Court may for good cause
permit, files a written notice of his intent to rely on such defense.
§ 4-1-20 Medical Examination and Institutionalization
(a) Whenever
there is reason to doubt the defendant's mental competency to stand
trial the Court shall designate a licensed psychiatrist to conduct a
competency determination. Upon completion of the evaluation a report
shall be submitted to the Court and shall include the following:
(1) a
description of the nature of the evaluation;
(2) a
diagnosis or evaluation of the mental condition of the defendant;
and
(3) an
opinion as to the defendant's capacity to understand the proceedings
against him and to assist in his own defense.
(b) In
the event that the Court determines that following trial the defendant's
condition requires commitment to a mental institution or in the event
the Court determines that the defendant lacks fitness to proceed, the
Court shall direct that the defendant be committed to an appropriate
facility for care and treatment.
JUSTIFICATION AND DEFENSES
§ 4-1-21
Justification Generally; Civil Remedies Unaffected
Justification
is an affirmative defense to the prosecution of any offense based on
such conduct and may be claimed:
(a) when
the harm or evil sought to be avoided is greater than that sought
to be prevented by the law defining the offense charged, no tribal
law exists which excludes the justification claimed, and the actor
does not knowingly, willfully or negligently bring about the situation
requiring his conduct; or
(b) if
the conduct is required or authorized by law.
§ 4-1-22 Force in Self-Protection or Protection of Others
(a) The
use of reasonable force upon or toward another person is justifiable
when the actor believes it is immediately necessary for the purpose
of protecting himself or a third person against the use of unlawful
force. The force used must be reasonably necessary to protect the actor
or a third person.
(b) The
use of force is not justifiable under this section:
(1) to
resist or assist another in resisting arrest which the actor knows
is being made by a peace officer, although the arrest is unlawful;
(2) if
the actor uses deadly force unless the actor believes that such force
is necessary to protect himself or a third person against death, serious
bodily harm, kidnapping or sexual intercourse compelled by force or
threat;
(3) if
the actor, with the purpose of causing death or serious bodily harm,
provoked the use of force against himself or a third person in the
same encounter; or
(4) if
the actor was the aggressor or was engaged in combat by agreement,
unless he withdraws from the encounter and effectively communicates
to the other person his intent to do so and the other notwithstanding
continues or threatens to continue the use of unlawful force.
§ 4-1-23 Force for the Protection of Property
(a) The
use of reasonable force upon or toward another is justifiable when the
actor believes that such force is immediately necessary to prevent unlawful
entry into or interference with real or personal property which is,
or is believed by the actor to be, in his possession or in the possession
of another person for whose protection he acts.
(b) The
use of deadly force is not justifiable under this section unless the
actor reasonably believes that the person against whom the force is
used attacks, enters or is attempting to enter the actor's place of
habitation and manifestly:
(1) intends
to commit an offense or other offense involving threat of serious
bodily injury therein and the force is necessary to prevent the offense
or such injury; or
(2) intends
and attempts in a violent, riotous or tumultuous manner, to attack
or enter the dwelling for the purpose of damaging or threatening to
damage the dwelling or to any person and the force is necessary to
prevent such assault or injury.
(c) The
justification afforded by this section extends to the use of a device
for the purpose of protecting property from entry or trespass only if:
(1) the
device is not designed to cause or known to create a substantial risk
of causing death or serious bodily harm;
(2) the
use of the device is reasonable under the circumstances, as the actor
believes them to be; and
(3) the
device is one customarily used for such a purpose or reasonable care
is taken to make known to probable intruders the fact that it is used.
§ 4-1-24 Force in Law Enforcement
(a) The
use of force upon or toward the person of another is justifiable when
the actor is making or assisting in making an arrest or preventing an
escape and the actor believes that such force is immediately necessary
to effect a lawful arrest, prevent an escape or defend himself or another
from bodily harm while making an arrest or preventing an escape.
(b) The
use of deadly force is justifiable if:
(1) the
person effecting the arrest is authorized to act as a police officer
or is assisting a person whom he believes to be authorized to act
as a police officer;
(2) the
actor believes that the force employed creates no substantial risk
of injury to innocent persons; and
(3) the
actor believes that there is a substantial risk that the person under
arrest or to be arrested will cause death or serious bodily harm if
his apprehension is delayed; or
(4) the
actor believes such force is necessary to protect himself or another
from death or serious bodily injury.
§ 4-1-25 Force by Persons with Special Responsibility or Care, Discipline
or Safety of Others
The use
of force upon or toward the person of another is justifiable if:
(a) the
force is used for the purpose of safeguarding or promoting the welfare
of a minor, including the prevention or punishment of his misconduct;
and
(b) the
force used is not designed to cause or known to create a substantial
risk of causing death, serious bodily harm, disfigurement, extreme
pain, or mental distress.
SENTENCES AND PUNISHMENTS
(section
amended 1/25/00)
§ 4-1-26
General Principles
In imposing
a sentence for a violation of this chapter, the Court in each case shall
consider the protection of the public, the gravity of the offense, the
impact of the crime on the victim, and the results of any pre-sentencing
reports.
§ 4-1-27 Sentences and Combinations of Sentences; Civil Penalties
(a) A court
may sentence a person adjudged guilty of an offense to any one of the
following sentences or a combination of such sentences:
(1) to
pay a fine not to exceed $5,000;
(2) imprisonment
not to exceed 1 year;
(3) to
probation and/or suspension of sentence on such terms and conditions
as the Court may direct, including payment of probation program costs;
(4) to
pay court costs;
(5) to
pay restitution or perform any other act for the benefit of any person
or party injured personally or in his property by the person adjudged
guilty provided such injuries are fairly attributable to the act or
failure to act constituting the offense for which guilt was adjudged;
(6) to
treatment, counseling and/or rehabilitation;
(7) to
perform community service or other work for the benefit of the Tribe,
through the Tribal Community Services Program, and pay program costs.
(b) This
section shall not deprive a court of authority to cite for contempt,
cancel or suspend a license, forfeit property, or do any other act or
make any other order authorized by law.
§ 4-1-28 Payment of Fines and Other Monies.
Fines
shall be paid in cash or certified check. The Court may allow that any
fines or other required payments be paid in installments and on conditions
tailored to the means of the defendant.
§ 4-1-29 Decision to Impose a Fine
In determining
whether to impose a fine and its amount, the Court should consider:
(a) the
nature of the offense committed and the impact of the offense on the
victim and the community;
(b) the
financial resources of the defendant.
§ 4-1-30 Community Service
The Court
may require any person who has been convicted of an offense under this
code to engage in community service for the benefit of the Tribe for
any period it determines to be appropriate. Defendants receiving community
service hours will be referred to the Tribal Community Services Program
(CSP) by the Tribal Court and/or Probation Officers within five (5)
days after being sentenced, and will follow all guidelines of the CSP.
Status reports on the defendants will be given to the Court and/or Probation
Officers by the CSP.
§ 4-1-31 Sentencing Proceedings
(a) Sentence
shall be imposed without unnecessary delay unless the Court postpones
the imposition of sentence in order to conduct a pre-sentencing determination
or for a reasonable time to resolve factors important to the sentencing
determination which cannot be immediately resolved.
(b) During
sentencing and in relation to the appropriate sentence, the Court shall
allow the counsel for either party to comment upon any matter including
information in mitigation and may allow counsel to call witnesses. The
defendant and any victim of the crime committed will be allowed to make
a statement before sentence is imposed if he so desires.
(c) After
imposing sentence in a case which has gone to trial on a plea of not
guilty, the Court shall advise the defendant of the defendant's right
to appeal. If the sentence is imposed after a plea of guilty, the Court
shall advise the defendant of the right to appeal the sentence.
§ 4-1-32 Probation
The Court
may suspend the defendant's sentence and allow probation upon the terms
and conditions determined by the Court. No suspension of a restitution
order will be allowed.
§ 4-1-33 Violation of Terms of Probation
(a) Upon
a report of a violation of probation from the Prosecutor or a tribal
police officer, the Court may summon the defendant to appear before
it or issue a warrant for his arrest. Upon a finding of a probation
violation the Court may revoke the probation and shall impose the original
sentence or another sentence which the Court deems appropriate.
(b) The
Court shall not revoke suspensions or probation except after a hearing.
The defendant shall have the right to hear and contest the evidence
against him, to offer evidence in his defense and to be represented
by counsel of his choice at his own expense.
(c) Whenever
a defendant is taken into custody for a violation of probation conditions
other than the alleged commission of an offense he shall be entitled
to have his sentence considered by the Court within three (3) business
days of his confinement, unless he requests further time to prepare
his defense.
INCHOATE OFFENSES
§ 4-1-34
Attempt
(a) It
shall be unlawful for any person acting with the kind of culpability
otherwise required for commission of the crime to:
(1) willfully
engage in conduct which would constitute the crime if the attendant
circumstances were as he believes them to be;
(2) do
or omit to do anything with the purpose of causing or with the belief
that it will cause such result without further conduct on his part
when causing a particular result is an element of the crime; or
(3) willfully
do or omit to do anything which, under the circumstances as he believes
them to be, is an act or omission constituting a substantial step
in a course or conduct planned to culminate in his commission of the
crime.
(b) Conduct
shall not be held to constitute a substantial step under this section
unless it is strongly corroborative of the actor's criminal purpose.
(c) No
defense to the offense of attempt shall arise:
(1) because
the offense attempted was actually committed;
(2) due
to factual or legal impossibility of consummating the intended offense
if the offense could have been committed had the facts been as the
actor believed them to be; or
(3) that
in attempting unsuccessfully to commit a crime, the person accused
actually accomplished the commission of another and different crime.
§ 4-1-35 Criminal Conspiracy
If two
(2) or more persons agree to engage in or cause conduct intending that
a crime be committed, and one or more of such persons does any act to
effect the object of the conduct each shall be punishable upon conviction
as if the crime had been committed.
§ 4-1-36 Solicitation
(a) It
shall be unlawful for any person to promote or facilitate the commission
of an offense by enticing, advising, inciting, commanding, encouraging
or requesting another person to engage in specific conduct which would
constitute an offense.
(b) It
is no defense to a prosecution for criminal solicitation that the person
solicited could not be guilty of the crime proposed due to:
(1) legal
incapacity or other exemption;
(2) unawareness
of the criminal nature of the conduct solicited or the defendant's
criminal purpose;
(3) other
factors precluding the mental state required for the commission of
the crime in question.
OFFENSES AGAINST THE PERSON
Assault
and Related Offenses
§ 4-1-37
Simple Assault
It shall
be unlawful for any person:
(a) with
apparent ability, to attempt unlawful contact with another; or
(b) to
intentionally threaten unlawful contact upon another, coupled with
an apparent ability to do so, and does some act which creates a well-founded
fear in such other person that such contact is imminent.
§ 4-1-38 Battery
It shall
be unlawful for any person to:
(a) willfully
and unlawfully use force or violence to another;
(b) actually,
intentionally and unlawfully touch or strike another person against
their will; or
(c) unlawfully
and intentionally causes bodily harm to an individual.
§ 4-1-39 Aggravated Assault
The act
of assault is aggravated if while committing assault a person uses:
(a) a
deadly weapon or instrument without intent to kill;
(b) any
means or force likely to produce great bodily harm; or
(c) any
corrosive acid or a caustic chemical of any kind.
§ 4-1-40 Aggravated Battery
The act
of battery is aggravated if while committing battery a person:
(a) causes
great bodily harm, permanent disability or permanent disfigurement
to any person;
(b) uses
a deadly weapon or instrument;
(c) uses
any corrosive acid, or a caustic chemical of any nature; or
(d) uses
any poison or other noxious or destructive substance or liquid.
§ 4-1-41 Stalking
It shall
be unlawful for any person to willfully, maliciously and repeatedly
follow or harass another person or member of that person’s immediate
family.
§ 4-1-42 Aggravated Stalking
It shall
be unlawful for any person to violate the provisions of § 4-1-41 when
there is a temporary restraining order or an injunction, or both, in
effect prohibiting the behavior described in § 4-1-41 against the same
party.
Murder and Related Offenses
§ 4-1-43
Murder
It shall
be unlawful for any person to kill a human being with malice aforethought.
§ 4-1-44 Manslaughter
It shall
be unlawful for any person to kill a human being:
(a) voluntarily
- upon a sudden quarrel or heat of passion; or
(b) involuntarily
-
(1)
in the perpetration of or attempt to perpetrate any unlawful act;
(2)
in the commission of a lawful act which might produce death, in
an unlawful manner;
(3)
without due caution or care; or
(4)
in the operation of any firearm or dangerous weapon in a reckless,
careless or negligent manner which produces death.
KIDNAPPING AND RELATED OFFENSES
§ 4-1-45
Kidnapping
It shall
be unlawful for any person to unlawfully seize, confine, entice, deceive,
abduct, or carry away any person for the purpose of holding such person
for ransom, reward or otherwise.
§ 4-1-46 False Imprisonment
It shall
be unlawful for any person to willfully and unlawfully restrain another
so that he substantially interferes with their personal liberty.
§ 4-1-47 Child Custodial Interference
(a) It
shall be unlawful for any person to intentionally and without lawful
authority take or entice away, keep or withhold any minor child from
a parent or another having custody, joint custody, visitation or other
parental rights, whether such rights arise from a temporary or permanent
custody order, or from the equal custodial rights of each parent in
the absence of such order.
(b) It
shall be an affirmative defense to a violation of the provisions of
this section that:
(1) the
action is taken to protect the child from imminent physical harm;
or
(2) the
action is taken by a parent fleeing from imminent physical harm to
himself.
SEXUAL OFFENSES
§ 4-1-48
Rape
(a) It
shall be unlawful for any person to engage in sexual intercourse with
another:
(1) who
is incapable, through mental defect or any other unsoundness of mind,
whether temporary or permanent, of giving legal consent;
(2) who
is prevented from resistance by force or threats of immediate bodily
harm, accompanied by an apparent ability to carry out such threats
or by any intoxicating narcotic, or anesthetic substance administered
by the accused;
(3) who
is at the time, unconscious of the nature of the act and this is known
to the accused; or
(4) against
the will or consent of the other.
(b) Sexual
intercourse occurs when any sexual penetration, however slight takes
place.
§ 4-1-49 Forcible Sexual Penetration with a Foreign Object
It shall
be unlawful for any person to intentionally cause the penetration, however
slight, of the genitals or anal opening of another person, with any
object, instrument or device, against the victim's will by use of force,
violence, duress or threats of bodily harm, accompanied by an apparent
power of execution.
§ 4-1-50 Unlawful Sexual Intercourse
It shall
be unlawful for any person who is over the age of sixteen (16) to:
(a) solicit
a minor under the age of sixteen (16) years to participate in a sexual
act; or
(b) engage
in sexual intercourse with a minor under the age of sixteen (16) years.
§ 4-1-51 Sexual Assault
It shall
be unlawful for any person to have sexual contact with another or cause
such other to have sexual contact with him, if:
(a) he
knows that the contact is offensive to the other person;
(b) he
knows that the other person suffers from a mental disease or defect
which renders him or her incapable of appraising the nature of his
or her conduct;
(c) he
knows that the other person is unaware that a sexual act is being
committed;
(d) he
has substantially impaired the other person's power to appraise or
control his or her conduct, by administering or employing without
the other's knowledge drugs, intoxicants or other means; or
(e) the
other person is in custody of law or detained in a hospital or other
institution and the actor has supervisory or disciplinary authority
over him.
§ 4-1-52 Sexual Molestation of Minor under Sixteen
It shall
be unlawful for any person to engage in sexual contact with another
who is under the age of sixteen (16); or involve such person in any
act of bestiality, sado-masochistic abuse or exhibition with intent
to abuse, humiliate, harass, degrade, arouse or gratify the sexual desires
of any person.
§ 4-1-53 Indecent Exposure
It shall
be unlawful for any person to exposes his genitals for the purpose of
arousing or gratifying his own sexual desire or of any person under
circumstances in which he knows his conduct is likely to cause affront
or alarm.
OFFENSES AGAINST PROPERTY
Property
Destruction
§ 4-1-54
Arson
It shall
be unlawful for any person to willfully and maliciously set fire to,
burn or cause to be burned any building or structure.
§ 4-1-55 Aggravated Arson
The act
of arson is aggravated if while committing arson:
(a) any
person knows or reasonably should know that one or more persons are
present inside of the structure involved or any structure adjacent
to the structure involved; or
(b) any
person suffers death, great bodily harm, permanent disability or disfigurement
as a result of the fire.
§ 4-1-56 Causing a Catastrophe
It shall
be unlawful for any person to knowingly or willfully by explosion, fire,
flood, avalanche, collapse of building, release of poison gas, radioactive
material or other harmful or destructive force or substance, or by any
other means cause wide spread injury or damage.
§ 4-1-57 Malicious Injury to Property
It shall
be unlawful for any person to:
(a) maliciously
injure or destroy any real or personal property not his own; or
(b) intentionally
and unlawfully tamper with the property of another and thereby:
(1)
endanger human life; or
(2)
cause or threaten a substantial interruption or impairment of any
public utility service.
§ 4-1-58 Aggravated Vandalism
It shall
be unlawful for any person to willfully and maliciously:
(a) cause
or threaten a substantial interruption or impairment of any public
utility service, including but not limited to transportation, water
supply, gas, or power; or
(b) cause
a substantial interruption or impairment in mass communications service,
police, fire, other public service communications or in amateur or
citizens band radio communications being used for public service or
emergency communications.
BURGLARY AND RELATED OFFENSES
§ 4-1-59
Burglary
It shall
be unlawful for any person to enter a building or occupied structure
with intent to commit an offense therein.
§ 4-1-60 Burglary of a Vehicle
It shall
be unlawful for any person to enter any vehicle with intent to commit
an offense therein.
§ 4-1-61 Trespass
It shall
be unlawful for any person to unlawfully:
(a) refuse
to depart from the real property of another, except under a landlord-tenant
relationship, after being notified in writing, or verbally by the
owner, lawful occupant or authorized agent of the owner of such property,
to immediately depart; or
(b) enter
without permission of the owner or the owner's agent, upon the real
property of another.
§ 4-1-62 Aggravated Trespass
The act
of trespass shall be aggravated if while committing trespass a person:
(a) accomplishes
entry on the property by an act of force or violence or the use of
a key or similar device which provides entry and which device the
actor is not authorized or privileged to use for such purpose;
(b) intends
to cause or causes annoyance or injury to any person thereon or damage
to any property thereon;
(c) intends
to commit or commits an offense thereon; or
(d) is
in possession of a deadly or dangerous weapon.
§ 4-1-63 Robbery
(a) It
shall be unlawful for any person to take personal property from the
possession of another or from the immediate area of another by means
of force or intimidation.
(b) As
used in this section, the term "intimidation" means the fear of an immediate
and unlawful injury to the person or property of the person robbed or
of anyone in the company of such person at the time of the robbery.
§ 4-1-64 Theft
It shall
be unlawful for any person if, with intent to deprive another of property
or to appropriate the same to himself or to a third person, he wrongfully
takes, obtains or withholds such property from its owner.
§ 4-1-65 Theft by Deception
It shall
be unlawful for any person if, with intent to deprive another of property
or to appropriate the same to himself or to a third person, he wrongfully
takes, obtains or withholds another's property by:
(a) creating
or confirming another's impression which is false and which the offender
does not believe to be true;
(b) failing
to correct a false impression which the offender previously has created
or confirmed;
(c) preventing
another from acquiring information pertinent to the disposition of
the property involved;
(d) selling
or otherwise transferring or encumbering property while failing to
disclose a lien, adverse claim, or other legal impediment to the enjoyment
of the property whether such impediment is or is not valid, or is
or is not a matter of official record.
§ 4-1-66 Acquiring Lost Property
It shall
be unlawful for any person if with the intent to deprive another of
such property or to appropriate such property to himself or a third
person, he exercises control over property of another which he knows
to have been lost or mislaid, or to have been delivered under a mistake
as to the identity of the recipient or the nature or amount of the property,
without taking reasonable measures to return such property to the owner.
§ 4-1-67 Theft by a False Promise
(a) It
shall be unlawful for any person to obtain property of another by means
of a representation, express or implied, that he or a third person will
in the future engage in particular conduct, and when he does not intend
to engage in such conduct or, as the case may be, does not believe that
the third person intends to engage in such conduct.
(b) In
any prosecution for theft based upon a false promise, the defendant's
intention or belief that the promise would not be performed may not
be established by or inferred from the fact alone that such promise
was not performed. Such a finding may be based only upon evidence establishing
that the facts and circumstances of the case are consistent with guilty
intent or belief and inconsistent with innocent intent or belief, and
excluding every reasonable hypothesis except that of the defendant's
intention or belief that the promise would not be performed.
§ 4-1-68 Extortion
It shall
be unlawful for any person to compel or induce another person to deliver
property to himself or to a third person by means of instilling in him
a fear that, if the property is not so delivered, the actor or another
will:
(a) cause
physical injury to some person in the future;
(b) cause
damage to property;
(c) engage
in conduct constituting a crime;
(d) accuse
some person of a crime or cause criminal charges to be instituted
against him;
(e) expose
a secret or publicize an asserted fact, whether true or false, tending
to subject some person to hatred, contempt or ridicule;
(f) cause
a strike, boycott or other collective labor group action injurious
to some person's business; unless the property is demanded or received
for the benefit of the group in whose interest the actor purports
to act;
(g) testify
or provide information or withhold testimony or information with respect
to another's legal claim or defense;
(h) use
or abuse his position as a public servant by performing some act within
or related to his official duties, or by failing or refusing to perform
an official duty, in such manner as to affect some person adversely;
or
(i) perform
any other act which would not in itself materially benefit the actor
but which is calculated to harm another person materially with respect
to his health, safety, business, calling, career, financial condition,
reputation or personal relationships.
§ 4-1-69 Receiving Stolen Property
It shall
be unlawful for any person to knowingly receive, retain, obtain control
over or possess, stolen property, knowing the property to have been
stolen by another or under such circumstances as would reasonably induce
him to believe that the property was stolen; and
(a) he
intends to deprive the owner permanently of the use or benefit of
the property; or
(b) he
knowingly uses, conceals or abandons the property in such manner as
to deprive the owner permanently of such use or benefit.
§ 4-1-70 Theft of Services
It shall
be unlawful for any person to obtain for himself or another the labor
or services of another which are available only for hire, by means of
threat or deception.
§ 4-1-71 Defenses to Theft and Related Offenses
(a) It
is no defense to a charge of theft of property that the offender has
an interest therein, when the owner also has an interest to which the
offender is not entitled.
(b) In
any prosecution for theft committed by trespassory taking or embezzlement,
it is an affirmative defense that the property was appropriated openly
and avowedly, and under a claim of right made in good faith.
§ 4-1-72 Theft of Telephone Services
It shall
be unlawful for any person to knowingly, and without consent, use or
receive another's telephone services in which a charge or fee is involved
with the intent to withhold compensation for the use of such services.
§ 4-1-73 Unauthorized Use of a Vehicle
It shall
be unlawful for any person:
(a) to
knowingly take, operate, exercise control over, ride in or otherwise
use another's vehicle, boat or aircraft without consent of the owner;
(b) having
custody of a vehicle, boat or aircraft pursuant to an agreement to
perform a specific service for the owner involving the maintenance,
repair or use of such vehicle, boat or aircraft, to intentionally
use or operate thereof, without consent of the owner, for his own
purpose in a manner constituting a gross deviation from the agreed
purpose; or
(c) having
custody of a vehicle, boat or aircraft pursuant to an agreement with
the owner thereof whereby such vehicle, boat or aircraft is to be
returned to the owner at a specified time, to knowingly retain or
withhold possession thereof without consent of the owner for so long
of time as to render such retention or possession a gross deviation
from the agreement.
FORGERY
§ 4-1-74
Forgery
It shall
be unlawful for any person if with intent to defraud or injure anyone,
he:
(a) alters
any writing of another without such person's authority;
(b) makes,
completes, executes, authenticates, issues or transfers any writing
so that it purports to be:
(1)
the act of another who did not authorize that act;
(2)
to have been executed at a time or place or in numbered sequence
other than was in fact the case;
(3)
to be a copy of an original when no such original existed; or
(c) utters
or attempts to circulate as genuine any writing which he knows to
be forged in the manner specified in this section.
FRAUD
§ 4-1-75
Criminal Simulation
It shall
be unlawful for any person if, with intent to defraud anyone or with
knowledge that he is facilitating a fraud to be perpetrated by anyone,
he makes, alters or utters or attempts to circulate or sell as genuine
any object so that it appears to have value because of antiquity, rarity,
source, or authorship which it does not possess.
§ 4-1-76 Fraudulent Handling of Recordable Instruments
It shall
be unlawful for any person if, with intent to deceive or injure anyone,
he destroys, removes or conceals any will, deed, mortgage, security
instrument or other writing for which the law provides public recording
or knowingly records a false or forged instrument.
§ 4-1-77 Tampering With Records
It shall
be unlawful for any person if, knowing that he has no privilege to do
so, he falsifies, destroys, removes or conceals any writing or record,
with intent to deceive or injure anyone or to conceal any wrong doing.
§ 4-1-78 Bad Checks
(a) It
shall be unlawful for any person to issue or pass a check or similar
sight order for the payment of money, for the purpose of obtaining any
money, property, or other thing of value or paying for any services,
rent, wages or salary, knowing or believing that it will not be honored
by the drawee.
(b) An
issuer is presumed to know that the check or order would not be paid
if:
(1) the
issuer had no account with the drawee at the time the check or order
was issued; or
(2) payment
was refused by the drawee for lack of funds, upon presentation for
payment within thirty (30) days of issue, and the issuer failed or
was intentionally unavailable to make good within ten (10) days after
such refusal and receipt of notice of refusal to pay.
§ 4-1-79 Deceptive Business Practices
(a) It
shall be unlawful for any person in the course of business to:
(1) use
or possess for use a false weight or measure, or any other device
for falsely determining or recording any quality or quantity;
(2) sell,
offer or expose for sale, or deliver less than the represented quality
or quantity of any commodity or service;
(3) take
or attempt to take more than the represented quantity of any commodity
or service when as buyer he furnishes the weight or measure;
(4) sell,
offer or expose for sale adulterated or mislabeled commodities;
(5) makes
a false or misleading statement in any advertisement with the intent
of promoting the purchase or sale of property or services;
(6) makes
a false or misleading statement for the purpose of obtaining property
or credit; or
(7) makes
a false or misleading written statement for the purpose of promoting
the sale of securities, or omits information required by law to be
disclosed in written documents relating to securities.
(b) It
is an affirmative defense to prosecution under this section if the defendant
proves by clear convincing evidence that his conduct was not intentionally,
knowingly or willfully deceptive.
§ 4-1-80 Fraudulent Use of Credit Card
It shall
be unlawful for any person to use with the intention of obtaining money,
goods, services or any other thing of value a credit card or credit
card account which he knows is forged, expired, canceled, revoked, stolen,
or retained without consent of the card or account holder.
§ 4-1-81 Rigging a Contest
It shall
be unlawful for any person who:
(a) with
a purpose to prevent a contest from being conducted in accordance
with the rules and usages purporting to govern it, he:
(1)
confers or offers or agrees to confer any benefit upon, or threatens
any injury to a participant, official or other person associated
with the contest;
(2)
tampers with any person, animal, or thing associated with the contest;
(3)
knowingly solicits, accepts or agrees to accept any benefit from
a participant, official or other person associated with the contest;
or
(b) knowingly
engages in, sponsors, produces, judges, or otherwise participates
in a contest knowing that the contest is not being conducted in compliance
with the rules and usages purporting to govern it, by reason of conduct
unlawful under this section.
§ 4-1-82 Defrauding Creditors.
It shall
be unlawful for any person:
(a) to
destroy, remove, conceal, encumber, transfer, or otherwise deal with
property subject to a security interest with purpose to hinder enforcement
of that interest;
(b) knowing
that proceedings have been or are about to be instituted for the appointment
of a receiver or other person entitled to administer property for
the benefit of creditors, to:
(1)
destroy, remove, encumber, transfer, or otherwise deal with any
property with purpose to defeat or obstruct the operation of any
law relating to administration of such property for the benefit
of creditors;
(2)
knowingly falsify any writing or record relating to the property;
or
(3)
knowingly misrepresent or refuse to disclose to a person entitled
to administer property for the benefit of creditors, the existence,
amount or location of the property, or any other information which
the actor is legally required to furnish in relation to such administration.
§ 4-1-83 Unlawful Dealing With Property By a Fiduciary
It shall
be unlawful for any person to deal with property that has been entrusted
to him as a fiduciary, or property of the Tribe or government or of
a financial institution, in a manner which he knows or should know is
a violation of his duty and which involves a substantial loss or risk
of loss to the owner or to a person for whose benefit the property was
entrusted.
§ 4-1-84 Making a False Credit Report
It shall
be unlawful for any person to knowingly make a materially false or misleading
statement to obtain property or credit for himself or another or to
keep some other person from obtaining credit.
OFFENSES AGAINST THE FAMILY
Marital
Violations
§ 4-1-85
Bigamy
It shall
be unlawful for any person if, knowing that he or she has a husband
or wife or knowing the other person has a husband or wife, he purports
to marry or cohabit with such other person. It shall be a defense to
bigamy if the defendant proves by a preponderance of the evidence that
he reasonably believed he and the other person were eligible to marry.
§ 4-1-86 Incest
(a) It
shall be unlawful for any parent and child, ancestor and descendant
of any degree, siblings of the half or whole blood, uncle and niece
or nephew, aunt and niece or nephew, or first cousins to intermarry
or to engage in sexual intercourse.
(b) Minors,
incompetents or non-consenting parties may not be found guilty of incest.
§ 4-1-87 Criminal Nonsupport
(a) It
shall be unlawful for any person:
(1) who
is the parent, guardian or legal guardian of any minor dependent upon
him or her for care, education or support, to desert such child in
any manner whatever with intent to abandon him or her;
(2) to
willfully omit, without lawful excuse, to furnish necessary food,
clothing, shelter, or medical attendance for his child, ward or spouse.
The practice of a parent or guardian who chooses for his child or
ward treatment by prayer or spiritual means alone shall not for that
reason alone be construed to be a violation of duty of care to such
child or ward.
(b) Proof
of the desertion of a spouse, child or children in destitute or necessitous
circumstances or of neglect to furnish such wife, child, or children
necessary and proper food, clothing or shelter is prima facie evidence
that such desertion or neglect is willful.
§ 4-1-88 Domestic Violence (revised 6/22/99)
(a) It
shall be unlawful for any domestic household member to commit:
(1) an
assault as defined in § 4-1-37 of the Nez Perce Tribal Code, upon
any other domestic household member;
(2) an
aggravated assault as defined in § 4-1-39 of the Nez Perce Tribal
Code, upon any other domestic household member;
(3) a
battery as defined in § 4-1-38 of the Nez Perce Tribal Code, upon
any other domestic household member;
(4) an
aggravated battery as defined in § 4-1-40 of the Nez Perce Tribal
Code, upon any other domestic household member;
(5) a
rape as defined in § 4-1-48 of the Nez Perce Tribal Code, upon any
other domestic household member.
(b) A conviction
for domestic violence is punishable by imprisonment for a term not to
exceed One (1) year or by a fine not to exceed Five Thousand Dollars
($5,000) or by both a fine and imprisonment or any other sentence the
Court may deem appropriate.
(1) Any
person who pleads guilty or is found guilty of a violation of this
section shall undergo, at the person’s own expense, an evaluation
by a person, organization, or agency approved by the Court to determine
whether the defendant should be required to obtain batterers treatment
or other appropriate treatment. If the evaluation recommends counseling
or other treatment, the evaluation shall recommend the type of counseling
and/or treatment considered appropriate for the defendant, and shall
recommend any other suitable alternative counseling or treatment programs.
(2) If
the evaluation recommends counseling or other treatment, the Court
shall order the person to complete the counseling or other treatment,
at the person’s own expense, in addition to any other sentence which
may be imposed. If the Court determines that counseling or treatment
would be inappropriate or undesirable, the Court shall enter findings
articulating the reasons for such determination on the record. The
Court shall order the defendant to complete the preferred counseling
or treatment program set forth in the evaluation within the time allowed
by the Court, at the person’s own expense.
(c) In
addition to any other penalty imposed for a violation of this section,
the Tribal Court may grant any other civil or equitable remedy.
§ 4-1-89 Abuse of Vulnerable Adults (amended 12/14/99)
(a) It
shall be unlawful for any person:
(1) to
willfully or negligently inflict physical or mental pain or injury
on a vulnerable adult;
(2) to
willfully or negligently misuse the funds, property or resources of
a vulnerable adult for profit or advantage; or
(3) who
is responsible for the care of a vulnerable adult, to willfully or
negligently fail to provide food, clothing, shelter, medical care
or other services reasonably necessary to sustain the life and health
of a vulnerable adult.
(b) In
addition to any other penalty imposed for a violation of this section,
the Tribal Court may grant any other civil or equitable remedy.
§ 4-1-90 Child Abuse (revised 6/22/99)
(a) It
shall be unlawful for any person:
(1) to
willfully cause or permit any child to suffer or inflict thereon unjustifiable
physical pain or mental suffering;
(2) having
the care or custody of any child, to willfully cause or permit the
person or health of such child to be injured; or
(3) to
willfully cause or permit any child to be placed in such situation
that his person or health is seriously endangered.
(4) To
commit a crime involving domestic violence in the presence of a child.
For the purpose of this subsection, "in the presence of a child" shall
mean in the physical presence of a child or knowing that a child is
present and may see or hear an act of domestic violence.
(b) The
practice of a parent or guardian who chooses for his child treatment
solely by prayer or spiritual means shall not for that reason alone
be construed to have violated the duty of care to such child.
§ 4-1-91 Endangering the Welfare of a Minor
(a) It
shall be unlawful for any person to knowingly:
(1) induce,
cause or permit an unmarried person under eighteen (18) years of age
to witness a sexual act;
(2) permit
a person under eighteen (18) years of age to enter or remain in a
place where unlawful narcotic or illicit drug activity is maintained
or conducted;
(3) induce,
cause or permit a person under eighteen (18) years of age to participate
in gambling other than a social game;
(4) sell,
cause to be sold or provide tobacco, alcohol or harmful drugs or narcotics
in any form to a person under eighteen (18) years of age; or
(5) sell,
cause to be sold or provide tobacco in any form to a person under
eighteen (18) years of age.
(6) otherwise
threaten serious harm to the physical, emotional or mental well being
of the minor.
(b) For
the purposes of this section, traditional Indian games including, but
not limited to, "Stick Games" shall be considered social games.
§ 4-1-92 Contributing to the Delinquency of a Minor
(a) It
shall be unlawful for any person by any act or omission to willfully
aid, encourage or cause or attempt to aid, encourage or cause any child
to:
(1) become
or remain delinquent;
(2) do
or perform any act or follow any course of conduct which would cause
or manifestly tend to cause such child to become or remain delinquent;
or
(3) cause
a child to become or remain a runaway.
(b) In
addition to any other penalties imposed for a violation of this section,
the Court may require the juvenile and his parent or guardian to perform
community service, participate in counseling, or issue such other orders
designed to contribute to the rehabilitation of the juvenile or to the
ability of the parent or guardian to provide proper parental care and
supervision.
OFFENSES AGAINST THE ADMINISTRATION OF GOVERNMENT
Bribery
and Corrupt Influences
§ 4-1-93
Definitions
As used
in this part:
(a) "Benefit"
means a gain or advantage, or anything regarded by the beneficiary
as a gain or advantage, including benefit to any other person or entity
in whose welfare he is interested, but not an advantage promised generally
to a group or class of voters as a consequence of public measures
which a candidate engages to support or oppose;
(b) "Government"
includes any branch, subdivision or agency of the government of any
state, the United States or any locality within such entities;
(c) "Harm"
means loss, disadvantage or injury, or anything regarded as such by
the person affected, including loss, disadvantage or injury to any
other person or entity in whose welfare he is interested;