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Oglala Sioux Tribe: Law and Order Code

Last amended: 1996; New Ordinances Received: 2002.

CHAPTER 14

RULES OF COURT



RULE 1. PROTECTION OF DEFENDANT'S RIGHTS.

Before any defendant is asked to plead to any criminal charge, the Judge before whom he appears shall do the following:

1. He shall read the charge and the language of the ordinance establishing the offense and fixing the penalty.

2. He shall explain the charge in language the defendant can understand.

3. He shall advise the defendant that he has the right to employ counsel for his defense before he pleads guilty or not guilty.

4. He shall advise the defendant that if he wishes to plead not guilty he demand a jury trial.

5. He shall advise the defendant that he may demand removal of the case to any Federal or State Court having jurisdiction over the offense.

RULE 2. ATTORNEYS.

Any party to any case before the Oglala Sioux Tribal Court may employ an attorney to present his case. Such attorney may or may not be a person admitted to any State or Federal Bar. An attorney shall have the right to appear before the Tribal Court upon subscribing to the following oath:

"I, the undersigned, do solemnly swear that I will support and defend the Constitutions and Law of the United States and the ordinances of the Oglala Sioux Tribe against all enemies, foreign or domestic, that I have studied and am familiar with the Code of Ordinances of the Oglala Sioux Tribe, and that I will conduct myself with honor towards those whom I represent and with respect towards the Oglala Sioux Tribal Court."

A list of persons signing the foregoing oath shall be kept by the Clerk of Court. A fee of five dollars ($5.00) shall be paid by each person upon subscribing the foregoing oath.

An attorney may be permitted to appear in a particular case without taking the prescribed oath in the discretion of the Tribal Court.

Any attorney may be stricken from the rolls of the Tribal Court and thereafter denied the privilege of appearing before the Tribal Court permanently, or for a stated period of time, on any of the following grounds:

1. Violation of his oath.

2. False swearing.

3. The commission of a serious criminal offense.

RULE 3. ACTION IN CASES OF CONCURRENT JURISDICTION.

Wherever it appears that a defendant is charged with an offense under Tribal ordinances which is also an offense under State or Federal law, it shall be the duty of the Tribal Court to determine whether the appropriate State or Federal authorities will consent to exercise the jurisdiction lawfully vested in them over the said offense. In making such determination the Tribal Court may use the following form, or may rely on information obtain in any other manner:

To the United States Attorney at _________________.

To the State District Attorney at _________________.

(Strike out those inapplicable)

There has been duly arrested and brought before the Tribal Court of the Oglala Sioux Tribe of the Pine Ridge Indian Reservation, a defendant charged with the offense of ____________ as noted in the attached criminal complaint.

Since it appears that the acts of the defendant constitute an offense under Federal or State law, as well as under the ordinances of the Oglala Sioux Tribe, I am authorized to turn the prisoner over to your custody if you are willing to accept responsibility for handling this case. Your prompt attention to this matter is respectfully requested. This action is taken pursuant to Section 1.1 of the Revised Code of the Oglala Sioux Tribe, as approved by the appropriate Federal authorities in August 4, 1947.

Hist: Res. No. 255-50.

RULE 4. PROSECUTING ATTORNEYS AND DEFENSE ATTORNEYS.

The Oglala Sioux Tribal Council shall appoint a Prosecuting Attorney and in the event of a suspension or a vacancy occurring therein between sessions of the Council, the Executive Committee shall appoint temporarily a Prosecuting Attorney until the next special or regular session, and the Trial Judge may appoint a Prosecuting Attorney in the absence of the duly appointed Prosecuting Attorney. The Trial Judge shall appoint a Defense Attorney if the defendant is unable to secure a Defense Attorney. The Prosecuting Attorney and the Defense Attorney shall be allowed a fee for his services in the discretion of the Trial Judge, which fee shall not be less than one dollar ($1.00) nor more than three dollars ($3.00) for each case. Such fee shall be assessed as a Court cost when the defendant is found guilty.

The term of office of the Prosecuting Attorney shall be two (2) years beginning at each new Administration.

Hist: Res. No. 5.51, as amended by Res. No. 55-2.

CHAPTER 14A

OGLALA SIOUX TRIBAL GRAND JURY ORDINANCE

SECTION 1. POLICY.

It is the policy of the Oglala Sioux Tribe that all litigants in Oglala Sioux Tribal Court who may be sentenced to more than thirty days imprisonment shall have the right to grand juries selected at random from a fair cross section of those members of the Oglala Sioux Tribe who are enrolled and eligible to vote in Oglala Sioux Tribal elections. It is further the policy of the Oglala Sioux Tribe that all said described members of the Oglala Sioux Tribe shall have the opportunity to be considered for service on grand juries in the Oglala Sioux Tribal Courts of the Pine Ridge Reservation, and shall have an obligation to serve as jurors summoned for that purpose.

SECTION 2. COMPOSITION OF JURORS.

The Oglala Sioux Grand Jury shall be comprised of one member, as described in Section 1, of each district that comprises the Pine Ridge Reservation: White Clay; Wakpamni; Lacreek; Wounded Knee; Porcupine; Medicine Root; Eagle Nest; Pass Creek; and Pine Ridge Village. Must be 25 years of age.

SECTION 3. OGLALA SIOUX TRIBAL COURT ORDER FOR GRAND JURIES SUMMONS OF JURORS.

The Oglala Sioux Tribal Court shall issue an order summoning a grand jury only when it appears to the judge's satisfaction that a grand jury is necessary or desirable for the investigation of public offenses. The Court shall direct that a sufficient number of legally qualified members as set forth in Section 1 be summoned to meet this requirement.

SECTION 4. MANNER OF SELECTION OF JURORS WHO SHALL SIT AS GRAND JURY.

Within fourteen days from the receipt of the order provided for in Section 3 of this chapter, the Oglala Sioux Tribal Court's Clerk of Courts and a delegate from the Oglala Sioux tribe's enrollment office or their substitute as designated by the court in case one of them is unable to serve shall meet at the clerk's office to select the grand jury master list. The master list shall consist of the first thirty six names drawn from the pool of members of the Oglala Sioux Tribe as described in Section 1 of this chapter. A person who serves on a grand jury shall be excused from future service for two years from the date his service ends. The clerk shall keep a record of all persons who actually serve and their term of service. The names that comprise the master list shall be drawn in rotation between the Clerk of Courts and the delegate from the Oglala Sioux tribe's enrollment office.

SECTION 5. NOTICE TO OFFICERS OF MEETING TO DRAW NAMES OF JURORS.

The meeting of such officers as set forth in Section 4 of this chapter shall be after notice in writing has been served upon them or their deputies, or by leaving a copy of the notice in their respective offices if any such officer or deputy is absent from the Pine Ridge Reservation. The notice must be served by the clerk of courts and jury, or if after such discharge a new indictment becomes requisite by reason of an arrest of judgment or by the setting aside of an indictment, or if for any other good and sufficient cause another grand jury may become necessary, a court may in its discretion order that another grand jury be summoned, and the court may to that end make an order to summon another grand jury according to the provisions of this chapter.

SECTION 12. CHALLENGES TO JURORS.

Either the prosecuting attorney or a defendant may challenge the array of grand jurors on the ground that a grand jury was not selected, drawn or summoned in accordance with law and may challenge an individual grand juror on the ground that the juror is not legally qualified. Challenges shall be made before the administration of the oath to the jurors and shall be tried by the Oglala Sioux Tribal Court.

SECTION 13. SUMMONS OF NEW JURORS AFTER CHALLENGE.

Whenever challenges to individual grand jurors are allowed, the court shall make an order to the chief of police of the Oglala Sioux tribe's Public Safety Commission, to summon without delay, from the members of the Oglala Sioux Tribe as described in Section 1, a sufficient number of persons to complete or to form a grand jury. A grand jury formed and impaneled as to and in a particular case, after a challenge or challenges to individual grand jurors have been allowed, shall be sworn to act only in such particular case, and as to all other cases at the same term of that grand jury, the grand jury shall be formed in the usual manner.

SECTION 14. DISMISSAL OF INDICTMENT BECAUSE GRAND JURORS NOT QUALIFIED.

A motion to dismiss an indictment may be based on objections to the array or on the lack of legal qualifications of an individual juror, if not previously determined upon challenge.

SECTION 15. GRAND JURORS' PER DIEM AND MILEAGE - APPEARANCE FEE - CERTIFICATION AND PAYMENT.

Each grand juror for each day's attendance shall receive $12 and $.205 (20.5 cents) for each mile actually and necessarily traveled, to be paid by the Oglala Sioux Tribe. However, any grand juror called but not impaneled shall receive an appearance fee of $12 and $.205 (20.5 cents) for each mile actually and necessarily traveled. Such grand juror's fees shall be paid by the Oglala Sioux Tribe, upon presentation of claims which shall be issued by the clerk of courts upon filing of each grand juror's certificate of attendance, which certificate shall bear the endorsement of the clerk of courts of the Oglala Sioux Tribal Court.

SECTION 16. PAYMENT OF GRAND JURORS.

Any grand juror having compensation or mileage or both due and owing him/her may receive payment for it every two weeks. Such payments shall coincide with the Oglala Sioux Tribal employee's pay days.

SECTION 17. PERMITTING IMPROPER COMMUNICATION WITH GRAND JURY AS CRIME.

Every officer to whose charge any grand jury is committed by the Oglala Sioux Tribal Court, who negligently or intentionally permits them or any one of them:

  1. To receive any communication from any person;
  2. To make any communication to any person;
  3. To obtain or receive any book or paper; or
  4. To leave the jury room without the leave of such court first obtained;

is guilty of a crime, and upon conviction shall be fined $120 and imprisoned for 30 days or both fine and imprisonment.

SECTION 18. FOREMAN AND DEPUTY FOREMAN OF GRAND JURY - POWERS AND DUTIES - CLERK OF GRAND JURY - RECORD OF PROCEEDINGS.

The court shall appoint one of the jurors to be foreman and another to be deputy foreman. The foreman shall have power to administer oaths and affirmations and shall sign all indictments. During the absence of the foreman, the deputy shall act as foreman and shall have the same powers and duties as the foreman.

The grand jury must appoint one of its members as clerk, who must preserve minutes of the proceedings and of the evidence given before it and shall keep a record of the number of the jurors concurring in the finding of every indictment, but not the votes of the individual members, and shall file the record with the clerk of court, but the record shall not be made public except on the order of the court.

SECTION 19. OATH ADMINISTERED TO GRAND JURORS.

The following oath must be administered to the foreman of the grand jury:

"You, as foreman of this grand jury, shall diligently inquire into, and true indictment make, of all public offenses committed or triable within the Oglala Sioux Tribal Court system, or which you shall have or can obtain evidence. You will keep your own counsel and that of your fellows, and of the Oglala Sioux Tribe, and will not, except when required in the due course of judicial proceedings, disclose the testimony of any witness examined before you, nor anything which you or any other grand juror may have said, nor the manner in which you or any other grand juror may have voted on any matter before you. You shall present no person through malice, hatred, or ill will, nor leave any unpresented through fear, favor, or affection, or for reward or the promise or hope thereof, but in all your indictments you shall present the truth, the whole truth and nothing but the truth, according to the best of your skill and understanding; so help you God."

The following oath must be immediately administered to the other grand jurors:

"The same oath which your foreman has now taken before you on his (her) own part, you and each of you shall well and truly observe on your part; so help you God."

SECTION 20. CHARGE TO GRAND JURY BY COURT - COMMENCEMENT OF INQUIRIES.

After the grand jury is impaneled and sworn, it must be charged by the court. In doing so, the court shall give the members such information as it may deem proper as to the nature of their duties, and as to any charges for public offenses returned to the court or likely to come before the grand jury. The grand jury must then retire to a private room and inquire into the offenses cognizable by it.

SECTION 21. GENERAL POWERS OF GRAND JURY.

The grand jury has power, and it is its duty, to inquire into all public offenses committed on the Pine Ridge Reservation, and to present them to the Oglala Sioux Tribal Court by indictment. A grand jury is entitled to the examination without charge, of all public records on the Pine Ridge Reservation. The grand jury is hereby authorized to issue subpoenas to insure the appearance of all individuals subject to the jurisdiction of the Oglala Sioux Tribal Court. The grand jury shall also be authorized to issue subpoenas for the production before the grand jury of any and all records kept by both public and private entities.

SECTION 22. ADVICE SOUGHT FROM COURT OR PROSECUTING ATTORNEY.

The grand jury may at all reasonable times ask the advice of the court or the prosecuting attorney.

SECTION 23. APPEARANCE BY PROSECUTING ATTORNEYS BEFORE GRAND JURY - PRESENCE OF OTHER PERSONS - COUNSEL ADVISING WITNESSES.

Prosecuting attorneys may at all times appear before the grand jury for the purpose of giving information or advice or interrogating witnesses relative to any matter cognizable by it. Prosecuting attorneys, the witness under examination and his counsel, interpreters when needed, and for the purpose of taking the evidence when authorized by the grand jury, a stenographer or operator of a recording device may be present when the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting. The role of counsel appearing with a witness shall be limited to advising the witness. The prosecuting attorney shall not be present during the consideration of any charge against himself, except that the grand jury may summon him as a witness.

SECTION 24. TESTIMONY BEFORE GRAND JURY BY SUBJECT OF INVESTIGATION - WAIVER OF IMMUNITY.

The subject of a grand jury investigation may, at the discretion of the grand jury or prosecuting attorney, be given the opportunity to testify before the grand jury, provided he waives immunity orally on the record or in writing.

SECTION 25. NOTICE OF RIGHTS TO SUBJECT APPEARING BEFORE GRAND JURY.

Before testifying or providing other evidence at any proceeding before a grand jury impaneled before the Oglala Sioux Tribal Court, the subject of the grand jury investigation shall be given adequate and reasonable notice of

  1. His right to counsel as provided in Section 23 of this chapter;
  2. His privilege against self-incrimination; and
  3. The fact that anything he says can and will be used against him in a court of law.

SECTION 26. REMOVAL AND REPLACEMENT OF ATTORNEY FOR WITNESS APPEARING BEFORE THE GRAND JURY.

The court shall have the power to remove a witness attorney and order the witness to obtain new counsel, when it finds that the attorney has violated Section 23 of this chapter or that such removal and replacement is necessary to ensure that the activities of a grand jury are not unduly delayed or impeded. Nothing in this section shall affect the power of the court to punish for the contempt or impose other appropriate sanctions.

SECTION 27. EVIDENCE HEARD BY GRAND JURY - ORDER FOR PRODUCTION OF EVIDENCE.

A grand jury is not bound to hear evidence for a defendant, but it is its duty to weigh all the evidence submitted to it. When it has reason to believe that there is other evidence, it may order such evidence to be produced, and for that purpose the grand jury may issue process for the witnesses.

SECTION 28. RESTRICTION ON DISCLOSURE OF GRAND JURY PROCEEDINGS - IMMUNITY OF JURORS - SEALING OF INDICTMENTS.

Disclosure of matters occurring before a grand jury, other than its deliberations and the vote of any juror, may be made to prosecuting attorneys for use in the performance of their duties. Otherwise a juror, attorney, witness, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when directed by the Oglala Sioux Tribal Court preliminary to or in connection with a judicial proceedings or when permitted by the Oglala Sioux Tribal Court at the request of a defendant upon a showing that grounds may exist for a motion to dismiss an indictment because of matters occurring before a grand jury. Any juror, attorney, witness, interpreter, stenographer, operator of a recording device or any typist who transcribes recorded testimony who discloses matters occurring before the grand jury without a court order allowing him/her to disclose shall be fined $120.00 and imprisoned for 30 days or both. A grand juror cannot be questioned for anything he/she may say or any vote he/she may give in the grand jury proceedings relative to a matter legally pending before it, except for perjury of which he/she may have been guilty in making an accusation or giving testimony to his fellow jurors. No obligation of secrecy may be imposed upon any person except in accordance with this section. A court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.

SECTION 29. PENALTY FOR FAILURE OF SUBPOENAED WITNESSES TO APPEAR OR FOR THEIR FAILURE TO COOPERATE WITH GRAND JURY.

Any witness who fails to appear when subpoenaed by the grand jury or any witness who fails to cooperate with a grand jury is guilty of a crime and upon conviction may be imprisoned until the term of the grand jury who subpoenaed the witness expires.

SECTION 30. DISCLOSURE BY PROSECUTING ATTORNEY OF EVIDENCE RECEIVED BY GRAND JURY.

The prosecuting attorney may disclose evidence received before the grand jury or heard before the grand jury in the performance of his/her official duties.

SECTION 31. QUORUM OF GRAND JURY - VOTES REQUIRED FOR INDICTMENT - WITNESSES NAMED ON INDICTMENT - DISMISSAL OF CHARGE ON FAILURE TO INDICT.

A quorum of nine grand jurors must be present before any evidence or testimony may be received or any other business conducted. An indictment may be found only when there is probable cause to believe that an offense has been committed and that the defendant committed it. An indictment may be found only upon the concurrence of nine jurors. The name of only those witnesses examined before the grand jury in relation to the particular indictment shall be listed on that indictment before it is presented to the court. An indictment shall be returned by the grand jury to a judge of the Oglala Sioux Tribal Court in open court, endorsed a true bill.

If nine grand jurors do not concur in finding an indictment against a defendant who is in custody but who has not had a preliminary hearing, the complaint or information and the certified record of the proceedings before the committing magistrate transmitted to them must be returned to the court, with the endorsement thereon, signed by the foreman, that the charge is dismissed. The dismissal of the charge does not prevent its being again submitted to a grand jury as often as a court may direct, but without such direction it cannot again be submitted.

SECTION 32. TERM OF SERVICE OF GRAND JURY - EXCUSE AND REPLACEMENT OF JURORS.

A grand jury shall serve until discharged by the court which convened it, but no grand jury may serve more than six months. the tenure and powers of a grand jury are not affected by the beginning or expiration of a term of court. At any time for cause shown the court may excuse a juror either temporarily or permanently, and in the latter event the court may impanel another person in place of the excused juror in the same manner as the original juror was impaneled.

Hist: Ordinance 84-11.

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