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Nisqually Tribal Code

March 2003 Edition


TITLE 24 - JUDICIARY AND JUDICIAL PROCEDURE


SUBCHAPTER I - NISQUALLY TRIBAL COURT POWERS AND PROCEDURES

Section 24.01 - Establishment of Court


24.01.01 Establishment of Court

(a) The judicial power of the Nisqually Indian Community shall be vested in the Nisqually Tribal Court.

(b) The judicial power shall extend to all cases and controversies in law and equity arising under the laws of the Nisqually Indian Community.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

Section 24.02 - Jurisdiction


24.02.01 Nisqually Tribal Court Jurisdiction

The Nisqually Tribal Court shall have jurisdiction over:

(a) All offenses proscribed by tribal ordinance committed by an Indian within the Nisqually Reservation;

(b) All offenses proscribed by tribal ordinance or regulation governing the exercise of treaty hunting and fishing rights, which offenses are committed by enrolled members of the Nisqually Tribe within areas encompassing the Nisqually Tribe's usual and accustomed fishing grounds and ceded lands;

(c) All civil causes of action between Indians or to which Indians are parties which arise within the Nisqually Reservation;

(d) All Reservation exclusion proceedings; and

(e) All other matters which the Tribal Council may lawfully place within the jurisdiction of the Court.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.02.02 Consent to Jurisdiction

Any Indian entering the Nisqually Reservation shall be deemed thereby to consent to the laws of the Nisqually Tribal Community and the jurisdiction of the Tribal Court, to consent to the Court's exercise of jurisdiction over his or her person and property in legal actions arising pursuant to this ordinance, and to consent to service of summons or process by registered mail at his or her last known address.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.02.03 Tribal and State Concurrent Jurisdiction

(a) The Tribal Court's jurisdiction shall be concurrent with respect to any offense or civil cause of action over which the state may have lawful jurisdiction.

(b) The Tribal Court's jurisdiction shall exist for violations that are declined by federal authorities as a lesser offense.

(c) Where state law as amended does not conflict with the tribal code, the tribal court may resort to and enforce any state statute within tribal jurisdiction.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

Section 24.03 - Appointment of Judges


24.03.01 Number of Judges

The Nisqually Tribal Court shall consist of one (1) Chief Judge, and three (3) Associate Judges. The Associate Judges shall hear and determine cases with the specific designation of the Chief Judge.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.03.02 Appointment

Each judge shall be appointed by resolution of the Nisqually Tribal Council.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.03.03 Eligibility

The Judge of the Nisqually Tribal Court shall be a person who is over the age of twenty-one (21) years and who has never been convicted of a felony, or within one year past, a misdemeanor.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.03.04 Term of Office

Each judge shall hold office for a period of four years unless sooner removed for cause, but shall be eligible for reappointment. In the event of a vacancy, the Tribal Council may appoint a judge to serve during the remainder of the unexpired term.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.03.05 Conflict of Interest

No judge shall be qualified to act in any case wherein he has any direct interest or wherein any relative by blood or marriage, in the fifth degree or closer (as defined by the Civil Law System) is a party. In cases of conflict or exceptional complexity, the Chief Judge may appoint a Judge Pro Tem.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.03.06 Participation in Court Program

The Tribal Council may, by resolution, choose to participate in a Court program, including an Appellate Court Program, other than or in addition to the Nisqually Tribal Court.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

Section 24.04 - Removal of Judges


24.04.01 Petition for Removal

(a) A written petition signed by at least twenty (20) enrolled tribal members may request the removal of a tribal judge. Such petition shall set out with specificity the grounds on which it is based.

(b) Any judge of the Nisqually Tribal Court may be suspended or removed for good cause by a majority vote of the Tribal Council present at a meeting called for that purpose and at which a quorum of committee members is present. The Tribal Council's disagreement with a judge's decisions shall not constitute good cause for removal.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.04.02 Notice

Upon receipt of a valid petition, the Tribal Council shall cause to be delivered to the judge a written statement setting forth the proposed action, the reasons for the proposed action, and the time and location of the meeting of the Committee at which the judge may appear to respond to the charges against him or her.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.04.03 Meeting to Consider Removal

(a) The Committee meeting shall take place no sooner than five days and no later than twenty (20) days after notice is delivered to the Judge.

(b) At the meeting, the Judge shall be given adequate opportunity to answer any and all charges. Any vacancies shall be filled as provided in subsection 24.03.02 of this Title.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

Section 24.05 - Court Procedures


24.05.01 Court Sessions

(a) Sessions of the Nisqually Tribal Court for the trial of cases shall be called by the Chief Judge and presided over by him or her, or by one (1) of the Judges selected by the Chief Judge for a particular case.

(b) The time and place of court sessions, and all other details of judicial procedure not prescribed by this code shall be governed by Rules of Court approved by the Nisqually Tribal Council. It shall be the duty of the judges of the Tribal Court to recommend to the Committee rules and amendments thereto which promote fairness, simplicity and efficiency in the operation of the Court.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.05.02 Notice of Court Proceedings

Reasonable notice in writing of all court proceedings shall be given to all parties in each case.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

Section 24.06 - Juries


24.06.01 Demand for Jury Trial

(a) In the trial of any offense for which imprisonment may be penalty, a defendant may demand a trial by jury.

(b) Jury demands may be made orally or in writing and shall be submitted to the Court not later than ten (10) days before trial.

(c) In those cases where a jury is not demanded, trial may be to the judge alone.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.06.02 Jury List

A list of eligible jurors shall be prepared by the Nisqually Tribal Council or by the Enrollment Clerk if the Committee fails to do so.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.06.03 Eligibility of Jurors

Any qualified voter of the Nisqually Indian Community and any Indian or non-Indian resident of the reservation over the age of eighteen (18), who meets eligibility requirements prescribed by the Rules of the Court, shall be eligible for jury duty.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.06.04 Excusal from Jury Duty

A person may decline to serve as a juror only by demonstrating to the court clerk that he or she has good cause to be excused, as provided by the Rules of Court. Such demonstration is subject to review by the Judge.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.06.05 Jury Selection

In any case, a jury shall consist of six (6) persons selected by the trial judge at random from the list of eligible jurors. In appropriate cases the trial judge may select an alternate juror.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.06.06 Challenges

(a) Each party shall have the right to challenge an unlimited number of jurors on the basis of partiality or inability to judge the case fairly.

(b) The judge shall determine whether or not cause exists to dismiss a juror.

(c) When there are sufficient jurors available, any party to the case may challenge not more than three (3) members of the jury panel so chosen, without the establishment of cause.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.06.07 Compensation for Jurors

Each person summoned for jury duty shall be paid the sum specified by the Rules of Court for each day of service plus mileage for the juror's transportation costs to and from court.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

Section 24.07 - Witnesses


24.07.01 Authority to Issue Subpoenas

(a) The judges of the Nisqually Tribal Court shall have the authority to issue subpoenas, in order to compel the attendance of witnesses or the production in court of any records, documents or physical evidence which is necessary to the determination of a case.

(b) The judges acting alone or together may vest this authority in the court clerk when they deem it necessary.

(c) Such subpoenas shall be signed by the judge issuing them, or by the court clerk if the judge is not available or has delegated the signing to the court clerk.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.07.02 Service of a Subpoena

(a) Any person over the age of eighteen (18), who is not a party to the proceeding may serve a subpoena.

(b) A party may request the court clerk to appoint a person to serve the subpoena, or request that a tribal police officer serve the subpoena. Any party making such a request shall first deposit the sum of ten dollars ($ 10.00) with the court clerk to cover the cost of service.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.07.03 Contents of a Subpoena

A subpoena shall contain the name of the person subpoenaed or a description of the evidence subpoenaed together with the name of the person who has custody of such evidence, the title of the court proceeding, the time and place where the witness is to appear or the evidence is to be produced, and the signature of the person issuing the subpoena.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.07.04 Witness Fees

Each witness answering a subpoena issued on behalf of the Nisqually Tribe shall be entitled to a fee established in the Rules of Court for each day his or her services are required in Court.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.07.05 Failure to Answer a Subpoena

Failure to obey a subpoena shall be an offense as provided in Title 7, Section 7.12 of the Nisqually Tribal Code.

Historical and Statutory Notes

1. This section amended in 1991.

2. Originally created by Ordinance 1-1979.

3. The Tribe amended the Criminal Offenses code, Title 7 on April 26, 2000. That amendment eliminated section 7.12, referenced in this subsection. See however, 4 Tribal Code § 4.07.04 regarding the "Failure to Obey Subpoena" for analogue.

4. Title 7 recodified as Title 10, Subchapter II in 2003 Tribal Code Formatting Amendments.

 

Section 24.08 - Professional Attorney or Spokesperson


24.08.01 Representation by Attorney or Spokesperson

A person appearing in the Nisqually Tribal Court may, at his or her own expense, be represented by an attorney or spokesperson, provided that such representation shall first meet standards for admission to practice before the court.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.08.02 Admission to Tribal Court

The court shall prescribe rules setting out the conditions and standards for admission to practice of a professional attorney or spokesperson before the court.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.08.03 Appointment of Tribal Representative

The trial judge may appoint any member of the Tribe or other qualified person to act as prosecutor or representative of the Tribe when the Tribe has no other available representative.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.08.04 Court Appointment of Representative

The judge may appoint a spokesperson to assist any party if the judge determines that such appointment is necessary to protect the person's rights.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.08.05 Disbarment of Attorneys

(a) Any attorney or spokesperson may be disbarred for good cause by action of a majority of the judges of the tribal court acting as a body.

(b) The judges shall prescribe by rule the grounds for disbarment.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

Section 24.09 - Court Clerks


24.09.01 Appointment of Court Clerk

The Nisqually Tribal Council shall appoint a person to act as clerk of the Nisqually Tribal Court.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.09.02 Duties

(a) It shall be the duty of the clerk to keep the records of the Court, to attend and keep a written record of all court proceedings, and screen all criminal complaints as provided herein, and to perform such other duties as the Chief Judge may specify.

(b) If available, the clerk shall assist tribal police and members of the Nisqually Indian Community in the filling out of form complaints, subpoenas, warrants, oaths and any other documents incidental to the functioning of the court.

(c) The clerk shall further administer oaths of witnesses, collect all fines and bail forfeitures paid into the court, to pay out all fees authorized by these regulations, and to make an accounting thereof to the Tribal Council.

(d) The clerk shall be bonded in an amount established by the Tribal Council.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

Section 24.10 - Court Records


24.10.01 Requirement to Keep Records

(a) The Nisqually Tribal Court shall be required to keep, for inspection by duly qualified officials, a record of all proceedings of the court, which record shall reflect the title of the case, the names of the parties, the substance of the trial, by whom conducted, the findings of the court and the judgment, together with any other facts or circumstances deemed of importance to the case.

(b) Unless otherwise ordered by the Judge, such records shall be available to enrolled members of the Tribe on payment of reasonable search and duplication fees.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

Section 24.11 - Court Fees


24.11.01 Filing Fees

The Nisqually Tribal court clerk shall collect the following filing fees:

(a) Fifteen dollars ($ 15.00) for filing the initial pleading in any civil action;

(b) Thirty dollars ($ 30.00) for filing the initial pleading in an appeal from a final tribal court decree or order. This provision shall not apply to a defendant in a criminal case;

(c) Five dollars ($ 5.00) for filing a transcript or abstract of judgment or verdict from another court of competent jurisdiction;

(d) Fifty dollars ($ 50.00) for filing a petition for dissolution of marriage:

(i) Such fee shall not include the filing fee charged by the county auditor;

(ii) If the petition for dissolution is withdrawn prior to a final court order, the court shall have the discretion to refund up to twenty-five dollars; and

(e) Five dollars ($ 5.00) for filing a request for modification of a decree of dissolution.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.11.02 Miscellaneous Court Fees

The Nisqually Tribal Court clerk shall collect the following miscellaneous court fees:

(a) Five dollars ($ 5.00) per hour for researching and transcribing court records, plus ten cents per each copy requested;

(b) Ten dollars ($ 10.00) for each tape recording of any non-confidential tribal court proceeding;

(c) Fifteen dollars ($ 15.00) for admission to the Nisqually Tribal Court Bar;

(d) Ten dollars ($ 10.00) for a marriage license. Such fee shall not include the marriage license registration fee charged by the State of Washington;

(e) Twenty-five dollars ($ 25.00) for filing an appeal in a criminal case;

(i) The tribal court judge may require that appellant post a bond that is satisfactory to cover the costs of the appeal;

(ii) Any bond required to be posted by the appellant in a criminal case shall not exceed one thousand dollars;

(f) Ten dollars ($ 10.00) for service of a subpoena;

(g) Ten dollars ($ 10.00) for service of any other court document not listed in this section;

(h) Ten dollars ($ 10.00) shall be assessed by the tribal court against any defendant found guilty of any criminal charge;

(i) Ten dollars ($ 10.00) may be assessed, in the court's discretion, against the losing party in any civil case.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.11.03 Accounting for Tribal Court Fees

The Nisqually Tribal Court Clerk shall account for all tribal court fees collected in accordance with Section 24.09 of this title.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.11.04 Waiver of Fees

A judge of the Tribal Court may order that payment of the fees set forth in this Section be waived if the judge finds that a person is unable to pay a fee otherwise required to reimburse the Tribe for certain costs under this Section. The person may file with the court an Affidavit of Indigency setting forth his or her financial status, on a form provided by the clerk. Upon the execution of the Affidavit of Indigency, the clerk will proceed as if the fee has been paid, and will notify a Tribal Court judge of the filing within five working days. The judge will review the Affidavit and either grant the waiver, waive a portion of the fee, or order that the full fee be paid. The judge's decision shall be based on the information contained in the Affidavit.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

SUBCHAPTER II - INITIATION OF CRIMINAL AND CIVIL ACTION

Section 24.12 - Complaints


24.12.01 Requirements for a Complaint

(a) All prosecutions for violation of this code shall be initiated by written complaint filed with the clerk of the Tribal Court.

(b) A complaint is a written statement sworn to by the complaining witness and charging that a named individual has committed a particular offense or civil wrong.

(c) Standard complaint forms for criminal offenses shall be provided by the Tribal Court.

(d) No complaint filed in the Nisqually Tribal Court shall be valid unless it bears the signature of the complainant witnessed by a judge or clerk of the court.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.12.02 Limitations

(a) A complaint charging the commission of an offense or civil wrong defined in this Code shall be filed within one (1) year after the commission of such offense or civil wrong.

(b) Time periods during which the offender is beyond the jurisdiction of the Nisqually Tribal Court shall not be included in computing the one (1) year period.

(c) Time periods during which the complainant was not aware of the wrong, or would not have discovered the wrong using reasonable diligence shall not be included in computing the one (1) year period.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

SUBCHAPTER III - CIVIL PROCEDURES

Section 24.13 - Summons


24.13.01 Service of Summons in Civil Actions

(a) Notwithstanding any criminal conviction, acquittal or bail forfeiture under this code, the injured person may seek civil damages by initiating a complaint pursuant to Subchapter II of this Title.

(b) Said complaint shall be served as a summons in the same manner as the service of a subpoena and shall require the defendant to respond to the Tribal Court within twenty (20) days from receipt of service by either:

(i) Admitting the allegations of the complaint and paying the requested damages into Court in trust for the complainant; or

(ii) Requesting a trial.

(c) If the response is a request for trial, the Court will set a date for trial.

(d) If defendant fails to respond, the Court will enter a default judgment.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

Section 24.14 - Civil Trial Procedures


24.14.01 Rights of Defendant

In every civil trial brought under this Code, the defendant shall have a right to be present at all proceedings, to have a public trial, to question witnesses against him or her, and to subpoena witnesses in his or her favor.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.14.02 Burden of Proof

The burden shall be on the Tribe as represented by a tribal prosecutor or tribal law enforcement officer or upon the person initiating the action if initiated by other than the Tribe to prove that the defendant committed the alleged wrong.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.14.03 Standard of Proof

The standard of proof in a civil action shall be by a preponderance of the evidence.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.


24.14.04 No Right to Jury

There is no right to a jury trial in civil actions.

Historical and Statutory Notes

This section amended in 1991. Originally created by Ordinance 1-1979.

 

SUBCHAPTER IV - RULES OF CRIMINAL PROCEDURE

Section 24.15 - General Provisions


24.15.01 Title

This Subchapter shall be known and may be cited as the Nisqually Criminal Procedures Code.

Historical and Statutory Notes

Subchapter IV of this Title enacted April 23, 1997.


24.15.02 Purpose

The purpose of this Code is to provide rules of procedure to govern the prosecution of offenses in Tribal Court, to support and expedite the truth-finding mission at trial and to guarantee defendants those rights deemed essential to an accurate determination of guilt. These rules shall be construed to secure simplicity in procedure, fairness in judicial administration, and the elimination of unjustifiable expense and delay. The rules are to be in keeping with the spirit and plain meaning of the Tribal Constitution of the Nisqually Indian Tribe.


24.15.03 Severability

If any part of this Code or its application to any person or circumstance is held to be invalid, the remainder of this title or its application to other persons or circumstances is not affected.


24.15.04 Jurisdiction

The Nisqually Tribal Court shall have jurisdiction over cases arising under this Tribal Code. The jurisdiction of the Tribal Court over persons and territory is limited only by federal law and the Constitution of the Nisqually Indian Tribe. The Tribal Court shall have the power to decide questions of jurisdiction which may be raised under this Code.


24.15.05 Concurrent Prosecution

Any person charged with an offense for which he may be prosecuted under the laws of the Nisqually Indian Tribe and another jurisdiction may be prosecuted under Nisqually Tribal law whether or not the other jurisdiction prosecutes such person.


24.15.06 Repealer

This code is to be interpreted to supersede and replace any conflicting provisions of all prior criminal procedure codes and laws of the Nisqually Indian Tribe.


24.15.07 Statute of Limitations

No complaint shall be filed charging the commission of any criminal offense unless the offense charged was committed within the period of two (2) years prior to the date of the complaint, except, there shall be no time limit for filing complaints based on any sexual offense.


24.15.08 Tolling of Statute of Limitations

If the person accused of a criminal offense intentionally absents himself or herself from the jurisdiction of the Tribal Court, the time within which filing of the complaint is to be made is tolled for the duration of the time that the individual absents himself or herself from the jurisdiction of the court.


24.15.09 Time Computation

In computing any period of time prescribed or allowed by this ordinance, or by rules of the court, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday or Tribal holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays and Tribal holidays shall not be counted in the computation.


24.15.10 Definitions

(a) Arraignment -A hearing at which the accused is brought before the Tribal Court, informed of the charge and his or her civil rights, given an opportunity to enter a plea, and where bail is set.

(b) Arrest -The taking of a person into police custody and possibly held to answer for a criminal offense.

(c) Complaint -A written statement sworn to by the complaining witness and charging that a named individual has committed a particular criminal offense at a particular time and location.

(d) Contraband -All cigarettes and other items held for sales prohibited by tribal law.

(e) Controlled Substance -A drug or substance that has a stimulant or depressant effect on the central nervous system, or is an hallucinogenic substance, and which commonly becomes addictive after prolonged use. Examples of controlled substances include cocaine, heroin, marijuana, mescaline, opium, LSD and inhalants. Peyote is not considered controlled substances under this Code when used in connection with traditional Native American religious ceremonies.

(f) Criminal Complaint -A written statement sworn to by the complaining witness and charging that a named individual has committed a particular criminal offense at a particular time and location.

(g) Home Detention -A program of confinement and supervision that restricts the defendant to his or her place of residence permanently or during specified hours, and enforced by appropriate means of surveillance.

(h) Inhalant -Any solvent, material substance, chemical, or combination thereof, having the property of releasing toxic vapors which is intentionally smelled or inhaled for the purpose of inducing symptoms of intoxication, elation, euphoria, dizziness, excitement, irrational behavior, paralysis, stupefaction, dulling of the senses of the nervous system, or in any manner changing, distorting or disturbing the audio, visual or mental processes.

(i) Probable Cause -When an apparent set of facts are found to exist which would cause a prudent and cautious person to believe that the suspect committed a particular offense or that evidence of a crime would be found on the premise or person to be searched.

(j) Search Warrant -A written order signed by the Tribal Judge or Tribal Judicial Officer, and directed to a Tribal Law Enforcement Officer ordering the Officer to conduct a search and seize items or property specified in the warrant. A warrant shall describe the property or place to be searched, shall describe the items to be seized, and it shall specify the time the warrant is in effect.

(k) Vehicle -Any conveyance capable of movement. The term vehicle includes other conveyances such as tractors, wagons and sleds. It shall not include mobile homes which are secured on a foundation.


24.15.11 Assistance from Tribal, State and Federal Agencies

The Tribal Court may seek assistance from employees of the Bureau of Indian Affairs, State Department of Social and Health Services, and any other tribal, state, or federal agency necessary in the presentation of facts in a case and the determination of proper treatment of individual offenders.

 

Section 24.16 - Starting the Criminal Process


24.16.01 Complaint

(a) Defined -All criminal prosecutions for violation of the Tribal Code shall be initiated by complaint. A complaint is a written statement sworn to by the complaining witness and charging that a named individual has committed a particular criminal offense at a particular time and location.

(b) Complaints shall contain:

(i) The signature of the complaining witness or prosecutor sworn to before the Tribal Chief Judge or an individual designated by the Tribal Chief Judge; and

(ii) A written statement by the complaining witness describing in ordinary language the nature of the offense committed including the time and place as nearly as may be ascertained; and

(iii) The name or description of the person alleged to have committed the offense; and

(iv) The section of the Tribal Code allegedly violated; and

(v) The alleged grounds for Tribal Court jurisdiction.

(c) The Tribal Court Clerk or other person authorized by the court shall be available to assist persons in drawing up complaints and screen them for sufficiency. Complaints shall then be stamped received, dated and submitted by the Court Clerk without unnecessary delay to the Tribal Judge or Tribal Judicial Officer to determine whether a warrant or summons should be issued.

(d) If the complaint, together with other written sworn statements, is sufficient to establish probable cause to believe that a crime has been committed by the person charged, the Tribal Court shall issue a warrant pursuant to this Code instructing Tribal Law Enforcement Officers or other tribally authorized law enforcement officers to arrest the named accused or, in lieu thereof, the Tribal Court shall issue a summons commanding the accused to appear before the Tribal Court at a specified time and place to answer to the charge.

(e) When an accused has been arrested without a warrant, a complaint shall be filed immediately with the Tribal Court for review as to whether probable cause exists to hold the accused, and in no instance shall a complaint be filed later than at the time of arraignment.

(f) When an accused is charged with several violations, a separate complaint shall be made and filed for each violation.


24.16.02 Amendments to the Complaint

A complaint may be amended by the complaining witness or tribal prosecutor up to one week before trial without the defendant's consent, or at any time the defendant consents. The Tribal Court may refuse to allow an amendment requested by the complainant if the defendant objects and the court finds that allowing the amendment would cause an unfair prejudice to the defendant.


24.16.03 Dismissal or Withdrawal of Complaints

The Prosecutor may move to dismiss a case at any time. A complaining witness may withdraw a complaint, at any time prior to trial. Such withdrawal shall be in writing, filed with the court with a copy given to the Prosecutor. The Prosecutor may elect to prosecute a complaint in spite of complainant's withdrawal, if he or she deems it necessary for the protection or welfare of the tribal community.


24.16.04 Arrest

(a) Defined -Arrest is the taking of a person into police custody to answer for a criminal offense.

(b) No Tribal Law Enforcement Officer shall arrest a person for a criminal offense defined by the Tribal Law and Order Code or by other applicable law or custom except when:

(i) The officer has a warrant or a copy of an existing Tribal Court warrant commanding the arrest of such person; or

(ii) The offense occurred in the presence of the arresting officer; or

(iii) The officer has probable cause to believe that the person committed a felony offense; or

(iv) The officer has probable cause to believe that the person committed one of the following non-felony crimes:

(A) Any non-felony crime involving physical harm or threats of harm to any minor or adult person or property or the unlawful taking of property;

(B) Any non-felony crime involving the use or possession of marijuana;

(C) Illegal possession of a dangerous weapon;

(D) Indecent exposure;

(E) Violation of a restraining order;

(F) Any act of domestic violence;

(G) Any criminal traffic offense as defined in Title 10, Subchapter III of the Nisqually Tribal Code.

Historical and Statutory Notes

"Title 20A of the Nisqually Tribal Law and Order Code" changed to "Title 10, Subchapter III of the Nisqually Tribal Code" to ensure consistency with the 2003 Tribal Code Amendments.


24.16.05 Domestic Violence

(a) Law enforcement shall immediately arrest and take into custody any person whom the officer has probable cause to believe has committed an act of domestic violence. The victim of the domestic violence need not sign a complaint. Such person shall be charged with any appropriate crime and held without bail for a period not less than twenty-four (24) hours. No bail schedule shall be set until the "cooling off" period has expired.

(b) An officer is not required to arrest both parties when he or she believes the parties have assaulted one another. The officer shall arrest and take into custody the person he or she believes to have been the primary aggressor. In making this determination the officer shall consider (a) the intent of this Title to protect the victims of domestic violence; (b) the comparative extent of the injuries inflicted or the seriousness of the threats of physical injury; and (c) the history of domestic abuse between the persons involved.


24.16.06 Arrest Warrants

(a) The Tribal Judge or Tribal Judicial Officer of the Tribal Court shall have authority to issue warrants to arrest. Arrest warrants shall only be issued if the Tribal Court finds there is probable cause to believe:

(i) That an offense has been committed; and

(ii) That the person to be arrested committed the offense; and

(iii) That both elements (a) and (b) above are supported by substantial evidence.

(b) The arrest warrant shall contain the following information:

(iv) The name and address, if known, of the person to be arrested. If the name is unknown, then a description of the person to be arrested. This is often referred to as a "John Doe" warrant;

(v) The date of issuance of the warrant; and

(vi) A description of the offense charged or the reason that the warrant is issued; and

(vii) The signature of the issuing Tribal Judge or Tribal Judicial Officer.

(c) Arrest warrants may be executed only by a duly qualified and authorized law enforcement officer.


24.16.07 Bench Warrant

Every tribal judge has authority to issue a bench warrant when there is personal knowledge of probable cause to arrest.


24.16.08 Notification of Rights at Time of Arrest

(a) Upon arrest, the accused shall be advised of the following:

(i) That the suspect has the right to remain silent; and

(ii) That any statements made by the accused may be used against the accused in Tribal Court; and

(iii) The accused has the right to obtain counsel at the accused's own expense; and

(iv) That he or she may assert these rights at any time; and

(v) The nature of the complaint against the accused.

(b) If arrested pursuant to a warrant, the accused shall receive a copy of the warrant at the time of the arrest or as soon after as is possible.


24.16.09 Emergency Medical Care / Suicide Prevention

(a) Any time after a person is arrested until such time as the person has been released, law enforcement shall ensure that the person has access to any needed emergency medical care. When law enforcement knows, or should reasonably know, that emergency medical care is needed they shall transport the person to an Indian Health Services facility. If care is not available at an Indian Health Services facility, law enforcement shall transport the person to another facility where the person can receive medical attention. When a person is transported to a facility other than Indian Health Services, law enforcement shall make a reasonable effort to follow the procedures necessary to ensure that Indian Health Services will cover the financial costs of the medical treatment.

(b) If the person being arrested appears to law enforcement to be highly intoxicated because of alcohol or drugs, law enforcement shall transport the person to an appropriate facility for treatment (detox, the care unit, etc.).

(c) If the person being arrested appears to law enforcement to be mentally unstable or at risk of suicide, law enforcement shall transport the person to St. Peters Hospital or another appropriate facility for seventy-two (72) hour surveillance and a thorough evaluation. A person who threatens suicide shall be considered by law enforcement to be at risk of suicide.


24.16.10 Summons in Lieu of Warrant

(a) When otherwise authorized to arrest a suspect, a Tribal Judge or Judicial Officer may, in lieu of a warrant, issue a summons commanding the accused to appear before the Tribal Court at a stated time and place and answer to the charge.

(b) The summons shall contain the same information as a warrant, except that it may be signed by the Tribal Court Clerk.

(c) If an accused fails to appear in response to a summons, a warrant for the arrest of the accused shall be issued.


24.16.11 Search Warrant - Defined

A search warrant is a written order, signed by a Tribal Judge or Tribal Judicial Officer, and directed to the Tribal Law Enforcement Officer ordering him or her to conduct a search and seize items or property specified in the warrant. A warrant shall describe the property or place to be searched, describe the items to be seized, and shall specify the time the warrant is in effect.


24.16.12 Issuance of Search Warrant

(a) The Tribal Judge or Tribal Judicial Officer shall have the power to issue warrants for the search and seizure of property and premises of any person under the jurisdiction of the Tribal Court.

(b) A warrant for search and seizure shall be issued only if the Tribal Court finds there is probable cause to believe that a search will discover:

(i) Stolen, embezzled, or otherwise unlawfully possessed property;

(ii) Property which has been or is being used to commit a criminal offense;

(iii) Contraband or controlled substances as defined by this Title; or

(iv) Property which constitutes evidence of a criminal offense.

(c) Probable cause to search and seize shall be supported by a sworn written statement or an oral statement made in open court based upon timely and reasonably reliable information.


24.16.13 Emergency Search Warrants

The Court may issue an emergency search warrant by faxing a signed copy of the search warrant to the Court Clerk if the Court has received all the information required under subsection 24.16.12 and the Court determines that circumstances exist such that it is necessary to issue a warrant before the next scheduled court date.


24.16.14 Execution and Return of Search Warrant

Warrants for search and seizure shall be executed only by Tribal Law Enforcement Officers. The executing officer shall return the warrant to the Tribal Court within the time limit shown on the face of the warrant, which in no case shall be longer than ten (10) days from the date of issuance. Warrants not executed and returned within such time limits shall be void.


24.16.15 Search Without a Warrant

(a) No Tribal Law Enforcement Officer shall conduct a search without a valid warrant, except:

(i) The officer may conduct a search of the person incident to making a lawful arrest; or

(ii) If written, signed consent to the search is given by a person having authority to consent; or

(iii) When the officer has probable cause to believe that the person searched may be armed and dangerous; or

(iv) When the search is of a vehicle and the officer has probable cause to believe that it contains a controlled substance, contraband, evidence of a crime, or stolen, embezzled or otherwise unlawfully held property; or

(v) When the property seized is in plain view and the officer reasonable believes the property is a controlled substance, contraband, evidence of a crime, or stolen, embezzled or otherwise unlawfully held property; or

(vi) When the search is of a vehicle made incident to the completion of regular and routine inventory after impound; or

(vii) When emergency circumstances exist such as a situation where evidence might be destroyed or removed.

(b) This Code shall not prevent Tribal Fish and Game Officers from searching without a warrant pursuant to the provisions of the Nisqually Fishing and Hunting Code.


24.16.16 Disposition of Seized Property

(a) Tribal Law Enforcement Officers shall make an inventory of all property seized by warrant or otherwise and a copy of such inventory shall be left with the person from whom the property was taken.

(b) A hearing, after public notice when found appropriate by the court, shall be held by the court to determine the disposition of all property seized by law enforcement officers. Upon satisfactory proof of ownership, the property shall be delivered to the owner, unless such property is a controlled substance, an illegally owned deadly weapon, contraband, is to be used as evidence in a pending case. Property taken as evidence shall be returned to the owner after final judgment. Property confiscated as a controlled substance shall be destroyed. Property confiscated as contraband shall become the property of the community and may be either destroyed, sold at public auction, retained for the benefit of the tribe, or otherwise lawfully disposed of as ordered by the court after consultation with the Tribal Council.

(c) Within sixty (60) days of the court's order for disposition of the property, Law Enforcement shall provide the court with a signed document certifying that the property was disposed of as ordered. If the property has not been completely disposed of within sixty (60) days, the document shall explain the reason for the delay.

(d) If a presumption has been raised that property is contraband, the presumption can only be overcome by a preponderance of evidence to the contrary.

 

Section 24.17 - Speedy and Public Trial


24.17.01 Speedy and Public Trial

The Nisqually Tribal Court has the responsibility of insuring that each person charged with an offense under this Code receives a speedy and public trial.


24.17.02 Length of Time

(a) After the filing of a complaint against an individual, trial must be commenced within sixty (60) days unless a longer period is requested or consented to by the accused.

(b) If the accused is not in custody, the length of time for commencing the trial may be extended up to thirty (30) days to a total of ninety (90) days.

(c) The Tribal Court on its own motion may continue or postpone the case only when required in the administration of justice and so long as the defendant will not be substantially prejudiced in any way by the delay.

(d) Delays caused by a deferred prosecution, subject to Section 24.28 of this Code, shall not constitute impermissible or prejudicial delay.

 

Section 24.18 - Arraignment


24.18.01 Arraignment

(a) Defined. Arraignment is a hearing at which the accused is brought before the Tribal Court, informed of the charge and his or her civil rights, given an opportunity to enter a plea, and where bail is set.

(b) Arraignment shall be held in open court without unnecessary delay after the accused is taken into custody. In no case shall arraignment or a bail review hearing be held more than seventy-two (72) hours after an arrest if the person is still in custody.


24.18.02 Rights of Accused at Arraignment

Before an accused is required to plead to any criminal charge, the Tribal Judge or Tribal Judicial Officer shall:

(a) Read to the accused and determine that he or she understands the complaint and the section of the Tribal Code which he or she is charged with violating, including the maximum authorized penalty; and

(b) Advise the accused that he or she has the right to remain silent; to be tried by a jury if jail time is a possible penalty; the right to be represented by counsel at the accused's own expense; and that the arraignment may be postponed if the accused desires to consult with counsel before entry of a plea.

(c) Advise the accused that he or she has the right to plead not guilty, guilty, or no contest and ask the accused if he or she is ready to plead.

(d) Entertain motions to set aside the charges, such as: the complaint is insufficient on its face, probable cause is lacking, or there is a lack of jurisdiction. The court will rule from the bench on any motions to set aside charges.


24.18.03 No Motions for Disqualification at Arraignment

The court will not entertain motions for disqualification of the judge at arraignment. The procedural nature of the arraignment and the protections incorporated preclude the necessity for disqualification at this time.


24.18.04 Receipt of Plea at Arraignment

(a) If the accused pleads "not guilty" to the charge, the Tribal Judge or Tribal Judicial Officer shall then inform the accused of a trial date and shall set conditions for bail or other release prior to trial. The judge or judicial officer may ask the defendant whether he or she wishes to waive a jury trial, but a jury trial waiver shall be accepted in criminal cases only if the defendant signs a written waiver after questioning by the judge.

(b) If the accused pleads "guilty" to the charge, the Tribal Judge or Tribal Judicial Officer shall determine that the plea is made voluntarily and that the accused understands the consequences of the plea, including the rights which the accused is waiving by the plea. The judge may then reject or accept the guilty plea. If the guilty plea is accepted by the judge, he or she may then impose sentence or defer sentencing for a reasonable time in order to obtain any information deemed necessary for the imposition of a just sentence. The accused shall be afforded an opportunity to inform the Tribal Court of facts in mitigation of the sentence.

(c) A defendant may plead "no contest" only with the consent of the judge. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice. A plea of "no contest" shall be treated as a plea of "guilty" for the purposes of the entry of judgment. A no contest plea cannot be used against the defendant as an admission in any civil suit related to the same act.

(d) If the accused refuses to plead, the Tribal Judge or Tribal Judicial Officer shall enter a plea of not guilty on behalf of the accused.

(e) The court will not be bound by any plea resulting from a plea bargain agreement unless the judge has been fully advised of the agreement in open court and on the record.

(f) A plea bargain will not be accepted by the court if there is any doubt as to the defendant's full understanding of the agreement; the judge will determine the level of understanding by personal questioning of the defendant.

(g) A person charged with an alcohol or drug offense may request to be considered for a deferred prosecution or a deferred judgment program under this Code.


24.18.05 Copy of Complaint and/ or Citation and Order on Release

At arraignment, the defendant shall be given:

(a) A copy of the Tribal Court's order, setting forth the conditions of release, whether it be personal recognizance or something else, and including the time and date of trial; and,

(b) A copy of the complaint and/ or citation.


24.18.06 Withdrawal of Guilty Plea

(a) A guilty plea entered in compliance with this Code shall be presumed valid. A defendant may move for withdrawal of his or her guilty plea upon a showing that either his or her rights have been violated, or that the plea was involuntary.

(b) The Tribal Court may, in its discretion, allow an accused to withdraw a plea of guilty whenever it appears that the interest of justice and fairness would be served by doing so. Extraordinary circumstances must be present to withdraw a guilty plea after sentencing.


24.18.07 Appearance of Attorneys/ Counsel

Every defendant in a criminal proceeding has a guaranteed right to assistance of counsel, at his or her own expense. It is the personal responsibility of each defendant to obtain such representation if desired. Failure to obtain counsel before a scheduled hearing or trial will not normally be good cause to delay or continue a scheduled proceeding. Where no representative counsel has been retained before a proceeding commences, the court may require the defendant to represent himself or herself.


24.18.08 Joining or Separating Defendants' Trials

At arraignment, the judge may order two or more defendants to be tried together if they are charged with offenses based on the same event or interrelated series of events. All defendants shall be given adequate notice that they are to be tried together.

Defendants shall not be tried together if a joint trial would prejudice the ability of any defendant to present a defense or would prejudice the Tribe's ability to present its evidence.

 

Section 24.19 - Bail


24.19.01 Bail - Release Prior to Trial

(a) Every person charged with a criminal offense before the Nisqually Tribal Court shall be entitled to release from custody pending trial under whichever one or more of the following conditions is deemed necessary to reasonably assure the appearance of the person at any time lawfully required:

(i) Release on personal recognizance upon execution by the accused of a written promise to appear at trial and all other lawfully required times. The Tribal Court shall establish a list of factors to be considered when determining whether an accused in custody shall be granted release on personal recognizance.

(ii) Release after deposit into the Tribal Court of bond in either cash or other sufficient collateral by the accused, his family, a friend or a bondsman licensed by the State of Washington. The amount of bail shall be specified by the Tribal Judge, Tribal Judicial Officer, or bail schedule but in no case shall bail be set for more than five thousand dollars ($5,000.00) per offense.

(iii) Release upon any other condition deemed reasonably necessary to assure the appearance of the accused as required. Possible conditions include, but are not limited to, reasonable restrictions on the travel, association, or place of residence of the accused during the period of release.

(b) Tribal law enforcement officers may release persons from custody prior to arraignment when the requirements for release set forth in subparagraph (1) have been met.


24.19.02 Bail Schedule

The Tribal Court judiciary may, at his or her discretion, set a bail schedule for the use of Tribal police.


24.19.03 Forfeiture of Bail

If the defendant fails to appear before the court as ordered by the court, the court may direct an entry of such failure to be made in the record, order the forfeiture of the bond or cash deposit and issue a warrant for the arrest of the defendant.


24.19.04 Return of Surety

Any cash or other property given as security by the surety or defendant shall be returned by the court upon the entry of a not guilty verdict or the execution of sentence.


24.19.05 No Bail

The protection of individuals and the community demands that certain persons be held without bail or bond in exceptional circumstances. The Tribal Court, in its discretion, may refuse to provide release but only in the following situations:

(a) The person has been charged with a crime of violence; and

(i) The person has been recently convicted of another crime of violence; or

(ii) The person has committed this offense while on probation or other release for another crime of violence; or

(b) The person has been charged with obstructing justice by having threatened, injured or intimidated a Tribal Judge, witness or juror, or has attempted such threat, injury or intimidation; or

(c) There is strong likelihood of flight to escape trial. Such a finding requires a documented history of such flight, or evidence or circumstances indicating that such flight is likely; or

(d) The person represents a significant danger to the community. Such a finding requires a pattern of behavior evidenced by past and present conduct and a determination that no conditions for release are available which would reasonably assure the safety of the community.


24.19.06 No-Bail Hearings

(a) Denial of a right to bail or bond shall occur only after such request is made by the Tribal Prosecutor, and the Tribal Court has immediately held a pretrial detention hearing and determined by clear and convincing evidence that there is a substantial probability that the accused committed the offense.

(i) Where the Tribal Court finds that denial of bail or bond is proper, an order for detention shall be issued with the Tribal Court's findings of fact.

(ii) Where a person is held without bail or bond, his or her case shall be put on an expedited calendar and the trial shall be given priority over other pending cases. If a conviction results, the defendant shall be credited with the time served pending trial.


24.19.07 Bail -Release Pending Appeal

Every person who has been convicted of a tribal offense and who has filed an appeal or a petition for a writ of habeas corpus shall be treated in accordance with the provisions of this Section, unless the Trial Judge has substantial reason to believe that no conditions of release will reasonably assure the appearance of the accused or that release of the accused is likely to pose a significant danger to the community, to the accused or to any other person. If the Trial Tribal Judge finds such to be the case, the detention of the accused may be ordered.

 

Section 24.20 - Discovery


24.20.01 Discovery by Defendant

Upon request of the defendant, at or before trial, the Tribe shall give the defendant the following:

(a) The names of witnesses the Tribe intends to present;

(b) Copies of or access to any documents, photographs, results and reports of examinations or tests, and objects which are within the custody or control of the Tribe and which the Tribe intends to use as evidence against the defendant or which may be relevant to the accused person's defense;

(c) Copies or written summaries of any statement made by the defendant which the Tribe intends to offer as evidence against the defendant.


24.20.02 Discovery by the Tribe

If the defendant requests information as provided in subsection 24.20.01, then defendant shall give the Tribe, upon the Tribe's request, the names of defendant's witnesses, and copies or access to all evidence which the defendant intends to use.


24.20.03 Communications in Preparation for Trial

Nothing in this Section shall require a party to provide the other with reports, memoranda, or other internal communications which were made by the party or by his or her representative solely in preparation for trial, except items specifically listed in this rule.


24.20.04 Response to Discovery Request

(a) A party who receives a request for information under this rule shall respond either with the information, with an indication when and where the information will be made available, or with an objection to the request within ten days after he or she receives the request. Failure to respond is grounds for a court order requiring response.

(b) If the parties disagree about whether a party is required to provide information requested pursuant to this rule, the judge shall decide. The judge may impose reasonable conditions on the release of information requested under this rule.

 

Section 24.21 - Subpoena


24.21.01 Issuance of Subpoena

Upon request of any party to a case or upon the Tribal Court's own initiative, the Tribal Court shall issue a subpoena to compel the attendance of jurors, testimony of witnesses, or the production of books, records, documents or any other physical evidence which is relevant and necessary to the determination of the case, and where the production of which is not an undue burden on the person subpoenaed.


24.21.02 Contents of Subpoena

A subpoena shall bear the signature of a Tribal Court judge and it shall state the name of the court, the name of the person or description of the physical evidence to be subpoenaed, the title of the proceeding, and the time and place where the witness is to appear or the evidence is to be produced.


24.21.03 Service of Subpoena

(a) A subpoena may be served at any time and place within or without the confines of the reservation.

(b) A subpoena may be served by any tribal law enforcement officer or other person over eighteen (18) years of age appointed for such purpose. Service of a subpoena shall be made either:

(i) By delivering a copy to the person named; or

(ii) By leaving a copy at his or her residence with any competent person sixteen (16) years of age or older who resides there; or

(iii) By sending a copy to the person's last known address by certified mail, return receipt requested, and by regular mail.

(c) Proof of service of the subpoena shall be filed with the Tribal Court Clerk by noting on the back of a copy of the subpoena the manner, date, time and place that it was served and noting the name of the person to whom it was delivered. Proof of service shall be signed by the person who actually served the subpoena.


24.21.04 Failure to Obey Subpoena

In the absence of a justification satisfactory to the Tribal Court, a person who fails to obey a subpoena may be found to be in contempt of court, fined, and a bench warrant may be issued for his or her arrest.


24.21.05 Witnesses - Oath or Affirmation

All witnesses shall be administered an oath by the court as follows: "Do you swear (or affirm) to tell the truth in the matter now before you?"


24.21.06 Child Witnesses

Upon a specific finding by the court of potential trauma to a child witness, the court may order that the alleged child witness be examined on video tape in the physical presence of only the judge, prosecutor and defense counsel in a room separate from the courtroom. A video tape made in accordance with this section shall be admissible as evidence in the trial.

 

Section 24.22 - Mediation of Disputes


24.22.01 Request for Mediation

(a) At the time of arraignment or any time thereafter prior to trial, any party may request that a mediation hearing be held.

(b) The request shall be in the form of a motion to the court and shall include a proposed mediator for the hearing.

(c) The Tribal Judge shall allow a mediation hearing to be held if he or she finds that a mediator is available, that the parties are willing to attempt to resolve the dispute by informal means, and that the public interest will not be harmed by an informal resolution.


24.22.02 Mediator

(a) The court shall appoint a mediator to preside over the mediation hearing. A mediator must be over eighteen (18) years of age and must be able to preside over the mediation in an impartial manner. Preference should be given to Tribal elders or other members of the tribal community who have knowledge of informal dispute resolution procedures.

(b) The court shall take into consideration the views of the parties in selecting a mediator for the hearing.


24.22.03 Time of Hearing

The date and time of the mediation hearing shall be set by the mediator after consultation with the parties. The mediation hearing must be held prior to the date set for trial.


24.22.04 Hearing

(a) The complainant, the defendant and all other parties necessary for resolution of the matter shall be allowed to attend the mediation hearing. No person shall be compelled involuntarily to participate in the hearing.

(b) All persons involved in the mediation hearing shall be allowed to speak at the hearing and may present any relevant evidence.

(c) The mediator shall be responsible for keeping order during the hearing and shall determine if any informal resolution can be reached.


24.22.05 Results of Hearing

(a) The mediator shall present the results of the mediation hearing to the court at the time of trial or at any time prior to trial.

(b) If, after questioning the parties, the judge is satisfied that an informal resolution of the dispute has been reached, and that the defendant is willing to waive his or her right to a speedy trial, he or she may delay trial and order the parties to comply with the terms of the agreement. The Judge shall dismiss the charges after all the terms of the agreement have been satisfied.

(c) If an agreement was not reached at the hearing or if the parties do not comply with the terms of the agreement, the court shall proceed with trial. Anything spoken by the defendant at the mediation hearing or the results thereof may not be used as evidence at the time of trial or during sentencing without the defendant's consent.

 

Section 24.23 - Jury Trials


24.23.01 Right Preserved

The right to a trial by jury shall be preserved inviolate to the defendant.


24.23.02 Waiver of Jury Trial

(a) Unless one of the circumstances in subparagraph (b) exists, the action against the defendant shall be designated on the court calendar as a jury action.

(b) The trial of all issues shall be by jury unless:

(i) The defendant or his or her counsel of record waives the right to a jury trial by written stipulation filed with the court or by oral stipulation made in open Court and entered in the record prior to the beginning of the trial; or

(ii) The defendant is accused of a crime which is not punishable by imprisonment; or

(iii) The prosecutor, prior to plea, informs the defendant that there shall be no prison time imposed in the event of a successful prosecution.


24.23.03 Eligibility

(a) A list of eligible jurors shall be prepared by the Nisqually Tribal Council each year. Any tribal member who is at least eighteen (18) years of age and resides on the Reservation shall be eligible to be a juror.

(b) If required for a just determination of the case, or pursuant to an intertribal agreement, non-members who reside off the Nisqually Reservation may be impaneled on a jury.

(c) A jury shall consist of six jurors drawn from the current list of eligible jurors by the court clerk or judge.


24.23.04 Impaneling a Jury

(a) In cases to be tried by a jury, the court clerk shall draw by lot twelve (12) names from the eligible jurors list and issue each a summons directing him or her to appear for jury duty at the date and time set for trial of the case. The summons shall be sent no later than five (5) days before the trial date.

(b) On the day scheduled for impaneling a jury, six (6) members and two (2) alternates shall be seated. The parties shall then be permitted alternately to question the jurors as to their impartiality and fairness and the judge may excuse any juror if, in his or her judgment, that juror would not be completely fair and impartial.

(c) Each of the parties shall then have an opportunity to excuse three (3) jurors starting with the complainant and alternating until each has exercised as many challenges as he or she wishes not to exceed three (3). As a juror is excused, the clerk shall draw the name of another juror to take his place, and the parties shall alternately have an opportunity to examine such juror as to his fairness.

(d) The judge may excuse any person from jury service if the person demonstrates hardship or other good reason to be excused.


24.23.05 Alternate Jurors