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Poarch Band of Creek Indians Tribal Code

[Includes amendments and additions dated through 2004]

§9 CRIMINAL PROCEDURE

Approved 8-24-97
Initials         
[Initials on original document.]
[Applies to §9-1-1 through §9-1-6]

§9-1-1 Style of Cases

All criminal cases shall be brought and prosecuted in the name of the Poarch Band of Creek Indians versus the person charged with a criminal offense, who shall be referred to as the defendant.

 

§9-1-2 Commencement of Criminal Cases

All criminal cases except as otherwise provided for herein, shall be commenced by the filing of an affidavit which shall be signed and sworn to by the complaining witness and signed by the Clerk of the Court. Affidavits for warrant of arrest or summons shall contain the following:

1) The name or alias of the person alleged to have committed the offense;

2) The place where the alleged offense was committed;

3) A brief statement of the facts, acts or omissions which constitute an alleged offense;

4) The date and approximate time of the commission of the alleged offense;

5) The criminal code section with which the person charged is alleged to have violated and the full text of said section or a paraphrased version thereof;

6) The signature of the complaining witness, attesting under oath to the truth of the matter stated in the affidavit;

7) The signature of the Clerk of the Court verifying that the complaining witness has sworn to the facts contained in the affidavit.

If it appears to the Tribal Court that a criminal complaint has set forth probable cause to believe that a crime has been committed and that the defendant named in the complaint has committed the offense, the Court may issue either a criminal summons or a warrant of arrest.

Summons

Issuance

The Court may issue a summons instead of a warrant of arrest where the Court in its discretion deems that arrest is not essential. The summons shall direct the defendant to appear before the Court at a stated time and place to plead in response to the complaint. All summons shall contain the following information:

1) the name and/or alias of the defendant;

2) the code section with which the defendant is charged or a paraphrased version of the same which shall be sufficient to apprise the defendant of the offense with which he is being charged;

3) the date of issuance of the summons;

4) the signature of the Tribal Court Clerk.

Execution

The summons, together with a copy of the complaint, shall be served by an authorized Tribal Police Officer by delivering a copy to the defendant or sent certified mail by the Tribal Court Clerk, return receipt requested.

Warrant of Arrest

Issuance

When the Court in its discretion deems that arrest is essential, the Court shall issue a warrant of arrest upon the written complaint. The warrant of arrest shall contain the following:

1) the name and/or alias of the defendant;

2) the code section with which the defendant is charged or a paraphrased version of the same which shall be sufficient to apprise the defendant of the offense with which he is being charged;

3) the date of issuance of the warrant;

4) the signature of the Tribal Court Clerk.

Execution

The warrant of arrest shall be executed by the arrest of the defendant. An arrest may be made within the jurisdiction of the Tribal Court by Tribal Police Officers or by federal law enforcement officers who are authorized by federal law to exercise their federal police powers on or within the reservation. The law enforcement officer may make arrests pursuant to a warrant of arrest or without a warrant under the following conditions and circumstances:

1) For any offense committed in the officer's presence.

2) When any officer has reasonable cause for believing the person to be arrested has committed an offense and there is reasonable cause for believing that said person before a warrant can be issued may:

a) flee the jurisdiction or otherwise attempt to avoid arrest; or

b) destroy or conceal evidence of the commission of an offense, or

c) injure or damage another person or damage property belonging to another.

3) Upon the verbal complaint of a tribal member that an offense has been committed and that the person to be arrested committed that offense in the complainant's presence and that the person to be arrested will be a danger to person or property if allowed to remain at liberty until a warrant of arrest could be secured pursuant to an affidavit.

 

§9-1-3 Defendant's Rights in all Criminal Proceedings

Every defendant who is arrested or taken into custody shall be advised of the following rights:

1) "You have the right to remain silent.

2) Anything you say will be used in court as evidence against you.

3) You are entitled to talk to an attorney now, at your own expense, and have him present now or at anytime during questioning.

4) If you want to be represented at your trial by an attorney, you should retain one at your own expense.

5) Do you desire to consult with an attorney first or to have one during this interview?

6) If, at anytime hereafter, you wish to remain silent or have an attorney present, all questioning will be stopped.

7) Do you understand these rights?

8) Do you wish to talk at this time?"

Failure to advise the defendant of the above rights prior to questioning the defendant when he/she is in custodial interrogation shall render any statements made after the defendant has been taken into custody and interrogated and before the defendant has been advised of the above rights inadmissible in court.

In all criminal proceedings, the defendant shall have the following rights:

1) The right to be present throughout the proceeding and to defend himself in person, provided defendant conducts himself with proper decorum, or at his own expense to be represented by an attorney who is licensed to practice law in the Tribal Court of the Poarch Band of Creek Indians.

2) To know the nature and cause of the charges against him.

3) The right to confront all witnesses who testify against the defendant and to cross examine the same.

4) The right to compulsory process through subpoena to obtain testimony of witnesses and physical evidence.

5) The right to speedy, public trial by an impartial judge and jury.

6) The right to refuse to testify in his own behalf and said refusal cannot be held against the defendant nor commented on by the prosecution.

7) The right to appeal to the Supreme Court.

8) The right to not be put in jeopardy or tried twice by the Tribal Court for the same offense.

9) All other rights and protections which the Tribal Court may find to have been conferred upon the defendant by the Indian Civil Rights Act of 1968, 25 USC §1301, et seq., or rights and protections conferred upon the defendant by the Constitution of the Poarch Band of Creek Indians.

10) Upon being arrested a defendant shall be advised that he is under arrest and the charge or offense for which the arrest is being made.

 

§9-1-4 Release

Prior to Trial

Every person charge with a criminal offense before the 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:

1) release on personal recognizance upon execution by the defendant of a written promise (appearance bond) to appear at trial and all other lawfully required times.

2) release after deposit by the defendant or a bail bondsman bond in either cash or other sufficient collateral in an amount specified by the Judge or a bail schedule.

3) release after execution of appearance bond by two responsible members of the community.

4) release upon any other condition deemed reasonably necessary to assure the appearance of the defendant as required.

By Tribal Police Officer

Any Tribal Police Officer authorized to do so by the Court may admit an arrested person to bail pursuant to the bail schedule or release upon personal recognizance. Tribal Police officers shall have available a bail schedule prepared by the Court which shall be used for setting money bond where such condition of release is deemed necessary. Any person arrested who is unable to be released under the above provisions shall be brought before the Tribal Judge within seventy-two (72) hours, excluding weekends and holidays.

 

§9-1-5 Arraignment

During arraignment proceedings, the Tribal Judge shall read the complaint to the defendant and determine that he understands the complaint and the section of the Code which he is charged with violating, including the maximum authorized penalty and advise him of his rights as set out in Section 9-1-3 hereof and calling on him to plead to the charge(s).

Receipt of Plea at Arraignment

If the defendant enters a plea of not guilty to the charge the Judge shall then inform him of a trial date. If the defendant refuses to enter a plea, a plea of not guilty shall be entered by the Court. If the defendant enters a plea of guilty to the charge, the Judge shall determine that the plea is made voluntarily and that the defendant understands the consequences of the plea, including the rights which he is waiving by the plea. The Judge may then impose sentence or defer sentencing for a reasonable time in order to obtain any information he deems necessary for the imposition of a dust sentence.

The Court may, in its discretion, allow the defendant to withdraw a plea of guilty whenever it appears that the interest of justice and fairness would be served by doing so.

 

§9-1-6 Trial

Presence of the defendant

The defendant in a criminal case shall be present in Court at all stages of the trial, including impaneling of the jury and return of the verdict where trial is by jury, and at the imposition of sentence.

Trial by the Court without a Jury

All trials shall be before the Court without a jury except in criminal cases as provided in Section 9-1-7 hereof, where defendant has demanded a jury trial. In trials without a jury, the Court shall hear and determine all issues of fact and law. Where there is a jury, the jury shall determine all issues of fact and the Court shall determine all issues of law.

Issuance of subpoenas

Upon receipt of any party to a case or upon the Court's own initiative, the Court shall issue subpoenas to compel the testimony of witnesses, or the production of books, records, documents or any other physical evidence which is relevant and necessary to the determination. The Clerk of the Court shall act on behalf of the Court and issue subpoenas as requested.

A subpoena shall bear the signature of the Clerk of the Court and 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.

Service of subpoenas

A subpoena may be served by any Tribal Police Officer or other person appointed by the Court for such purpose. Service of a subpoena shall be made by delivering a copy of it to the person named or by leaving a copy at his place of residence with any competent person sixteen (16) years of age or older who also resides there.

Proof of service of the subpoena shall be filed with the Clerk of the Court by noting on the copy of the subpoena the date and place that is was served and noting the name of the person to whom is was delivered. Proof of service shall be signed by the person who actually served the subpoena.

Failure to obey subpoena

In the absence of a justification satisfactory to the Court, a person who fails to obey a subpoena may be deemed to be in contempt of Court and a bench warrant may be, issued for his arrest.

Revised 11-22-87
Initials
         
[Initials on original document.]

§9-1-7 Jury Trials

A jury trial shall be held if requested by the defendant as to the question of guilt or innocence. Costs of jury trials shall be assessed against the Tribal Court when the defendant is acquitted and against the defendant when the defendant is convicted.

For all jury trials, it shall be the duty of the Clerk to provide twenty-five (25) randomly selected enrolled tribal members eighteen (18) years of age or older to serve as the jury venire for each case. From this venire the plaintiff/prosecution shall strike one (1) juror and the, defendant shall strike one (1) juror until there remains six (6) jurors and one (1) alternate to service as the trial jury.

Each party shall have the right to challenge an unlimited number of jurors for cause on the basis of lack of qualifications, partiality, or other acceptable reason. Whether or not cause exists shall be determined by the Judge in all instances.

In addition, each party shall have the right to a maximum of three (3) peremptory challenges for jurors, for which no reasons need be given and which the Judge may not refuse to grant.

The Judge shall instruct the jury with regard to the applicable law and the jury shall decide all questions of fact on the basis of that law.

Revised 6-12-94
Initials
         
[Initials on original document.]

Juror Compensation

Venire jurors shall be paid Five Dollars ($5.00) per day for service which costs shall be born by the Tribal Court System. Trial jurors shall be paid Fifteen Dollars ($15.00) per day which shall be taxed to the losing party as court costs.

Evidence

In all trials, the testimony of witnesses shall be given orally on oath in open court subject to the right of cross examination.

Documents and other tangible evidence, material and relevant to the case, may be received in evidence if properly identified.

Any and all witnesses testifying in a trial held before the Poarch Creek Indian Tribal Court shall be required to swear on his oath to tell the truth. In lieu of an oath, a witness may testify based on a solemn affirmation to tell the truth.

Revised 11-22-87
Initials
         
[Initials on original document.]

Procedures of Testimony

The party calling a witness to testify shall begin the examination of the witness by "direct examination." The opposing party may then examine the witness by "cross examination." If desired, the parties may then continue the testimony by "re-direct" and "re-cross" examination.

Final Arguments

At the completion of the cases for both the plaintiff/prosecution and the defendant, the Court shall allow the parties to present closing arguments. The plaintiff/prosecution shall open and close the arguments.

Instructions to Jury

After final arguments have been completed in all criminal trials by jury, the Court shall instruct the jury as to the law and the meaning of the law involved in the case up for consideration. Before the Court gives the instructions to the fury, the parties or their legal representatives may file written requests that the Court instruct the jury on the laws as set forth in their requests. Opportunity shall be given to each party to make objections to a failure to give a requested instruction. Said opportunity shall be given out of the hearing of the jury.

Burden of Proof

No person shall be convicted of a crime in the Poarch Creek Indian Tribal Court unless the Tribe has proved its case beyond a reasonable doubt. The jury shall be so instructed by the Court after the close of final arguments.

Revised 11-22-87
Initials
         
[Initials on original document.]

 

§9-1-8 Jury Verdict

Once a criminal case is given to the jury for its deliberation, it shall be required that a verdict to convict be arrived at unanimously.

Mistrial

Failure to reach a verdict within sixteen (16) hours of actual deliberation shall automatically result in a mistrial, provided however, that the Tribal Court may declare a mistrial if it determines earlier that a jury is hopelessly deadlocked.

Return of Verdict

Once a unanimous verdict is reached by a fury, a written report signed by the foreman, who is to be elected by each jury before beginning deliberation, shall be returned in open court with the defendant being present.

 

§9-1-9 Sentences

Except as otherwise provided hereunder, a person found guilty of violating a provision of the Code may be sentenced to the penalty provided in such offense. Sentences shall be imposed without unreasonable delay and shall not exceed the maximum penalties provided by law.

Restitution

In addition to any prescribed punishments, where the defendant's acts have injured the person or property of another, the Court may order restitution be made to the injured party.

Revised 11-22-87
Initials
         
[Initials on original document.]

Imprisonment

A person sentenced to imprisonment may work for the benefit of the Poarch Band of Creek Indians. Any work performed shall reduce the sentence at the rate of two days of incarceration for each day of work performed. "Day of work" shall mean at least four (4) hours of work performed in any 24-hour period. Any work performed shall be under the supervision of any person authorized by the Court.

Any sentence of imprisonment shall be reduced by any time spent in jail before judgment was entered.

Payment of Fines

Any person sentenced to pay a fine shall pay such fine in cash or money order to the Clerk of the Tribal Court who shall issue a receipt. If the full amount of the fine cannot immediately be paid, the Court may provide for the payment to be made in installments.

Failure or inability to pay fines

A sentence of imprisonment shall not be imposed upon any indigent person in the form of an alternative to a fine, i.e. "dollars or days."

Any person sentenced to pay a fine, shall not be imprisoned to work off such fine if, by reason of indigency, he is unable to pay the fine imposed.

Any person who is presently able to pay a fine or an installment of a fine and who willfully refuses to do so may be ordered imprisoned for, or allowed to work off, the unpaid amount of the fine at the rate of $5.00 per day for each day in jail or $10.00 for a day of work performed.

Commutation of sentence

The Judge of the sentencing Court may, at any time that one-half or more of an original sentence of imprisonment has been served, commute such sentence to a lesser period upon proof that the person sentenced has served without misconduct.

Suspension of sentence; probation

The Judge of the sentencing Court may suspend any sentence on such terms and conditions as are just and appropriate, taking into consideration the prior record of the defendant, his background, character, financial condition, family and work obligations, and any other pertinent circumstances.

Violation of suspended sentence

Any person accused of violating the terms or conditions of his suspended sentence shall be afforded a hearing before the sentencing Court to determine the truth of the accusations.

Where, by a preponderance of testimony, a person is found to have violated the terms or conditions of his suspended sentence, such person may be ordered to serve his original sentence or any portion thereof.

 

§9-1-10 Right of Appeal

Any defendant in a criminal case who is found guilty, sentenced and/or fined may appeal the finding of guilty, sentence, and/or fine to the Tribal Supreme Court.

The appealing party shall file with the Clerk of the Tribal Court a notice of appeal, along with a filing fee of $25.00 within fourteen (14) days after the entry of the final order or judgment from which appeal is taken. The filing fee may be waived in the appeal of a conviction if the defendant files an affidavit swearing that he is without funds to pay the filing fee.

 

§9-1-11 Search and Seizures

A search warrant is written authorization by the Tribal Court for any Tribal Law Enforcement Officer to enter the specified property or premises of a tribal member or the Tribe for purposes of conducting a search and seizing evidence to be used in a criminal prosecution.

No search warrant shall be issued except upon probable cause that a search will disclose stolen, embezzled, or contraband property; or property which has been used or is intended for use, or is being used to commit a criminal offense; or property constituting evidence of a criminal offense.

No search warrant shall be issued until the presentation to the Tribal Court of an affidavit for search warrant which shall contain the following:

1) the name, or a full description of the person or place to be searched;

2) the items or articles intended to be seized;

3) the factual reason or reasons to justify the search;

4) signature signed under oath of the person making application for the search warrant.

Search warrants shall be issued by the Tribal Court Judge or in his absence the Tribal Justice.

Upon presentation of a proper affidavit for search warrant the Tribal Judge shall determine whether or not grounds exist for the issuance of a search warrant and upon determining the same the Tribal Judge shall issue a search warrant which shall contain the following:

1) the name or full description of the person or place to be searched;

2) the articles or items to be seized;

3) the reason(s) for the issuance of the search warrant;

4) the date of the issuance of the warrant;

5) the signature of the Tribal Court Judge or in his absence the Tribal Justice.

All search warrants shall be executed and returned to the Tribal Court within the time limit shown on the face of the warrant, which in no case shall be longer than five (5) days from the date of issuance. Warrants not returned within such time shall be void. Warrants executed or returned shall contain a list of property seized and if no property is seized the same shall be indicated thereon.

 

§9-1-12 Warrantless Searches

No Tribal Police Officer shall conduct any search without a valid warrant except;

a) incident to making a lawful arrest; or

b) with consent of the person being searched; or

c) when he has probable cause to believe that the person searched may be armed and dangerous; or

d) when the search is of a moving vehicle and the officer has probable cause to believe that it contains contraband, stolen, or embezzled property.

 

§9-1-13 Disposition of Seized Property

The Law Enforcement Officer shall make an inventory of all property sized by warrant or otherwise, and a copy of such inventory shall be left with the person from whom the property was taken.

A hearing shall be held by the Court to determine the disposition of all property seized by the Officer.

Upon satisfactory proof of ownership, the property shall be delivered to the owner, unless such property is contraband or 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 contraband shall become the property of the Tribe and may be either destroyed, sold at public auction, retained for the benefit of the Tribe, or otherwise lawfully disposed of by the Court. Property delivered to the custody of the Court as property found abandoned by a private person shall become the property of such person not claimed by the true owner within thirty (30) days after the hearing. The Court shall issue an order conferring title to such property to the finder.

The Clerk of the Court shall keep written records of all transfers and dispositions of property taken into the custody of the Court.

Contraband shall mean any property, under this Code, which is illegal to possess.

Revised 11-22-87
Initials
         
[Initials on original document.]

§9-2 EXTRADITION

§9-2-1 General Provisions

(a) Subject to the constitution of the United States and all applicable federal law it shall be the duty of the Tribal Chairman to have arrested and delivered to the executive authority of any state or other Indian tribe upon written demand any person charged in that jurisdiction with treason, or any felony, or any offense committed within the jurisdiction of any other Indian tribe, who has fled from justice and is found in and subject to the jurisdiction of the Tribal Court of the Poarch Band of Creek Indians. No demand for extradition of any person subject to the jurisdiction of the Tribal court shall be recognized by the Tribal Chairman unless the demand for extradition is made in conformity with the law of the requesting state or other tribal jurisdiction. All extraditions must state that the accused was present in the demanding jurisdiction at the time of the commission of the alleged crime, that the accused thereafter fled from that jurisdiction. The demand must be accompanied by a copy of an affidavit or indictment substantially charging that person with a crime or crimes against the demanding jurisdiction, together with a copy of any warrant which was issued for the arrest of the accused, or a copy of a judgment of conviction or of a sentence imposed together with an authenticated statement by the executive authority of the demanding jurisdiction that the person sought has escaped from confinement or has broken the terms of bail, probation or parole.

 

§9-2-2 Investigation Upon Extradition Demand

(a) When a demand for extradition has been made upon the Tribal Chairman, the Tribal Chairman may in his discretion call upon the Director of the Department of Public Safety to investigate or assist in investigating the extradition demand and report to the Tribal Chairman all facts and circumstances surrounding the extradition request.

 

§9-2-3 Warrant of Arrest

(a) If the Tribal Chairman determines that the extradition request should be complied with, he shall sign a warrant of arrest directed to the Tribal Police. The warrant must substantially comply with the requirements of warrants as set out in the Tribal Code.

 

§9-2-4 Hearing

(a) No person arrested upon such warrants shall be delivered over to the demanding jurisdiction until he has been taken before the Tribal Court. The Tribal Court shall inform the accused of the demand made for his surrender. The accused must also be advised of the crime or crimes for which he is charged, and his right to demand and procure legal counsel. If the accused desires to test the legality of his arrest or any part of the extradition process it shall be done by filing a writ of habeus corpus. All writs of habeus corpus filed pursuant to this section shall be the paramount in continuing order of business of the Tribal Court until the same has been disposed of. The Tribal Court shall hear the writ of habeus corpus and determine whether or not all rights of the accused have been complied with and whether the accused should be delivered to the requesting jurisdiction. Neither the Tribal Chairman nor the Tribal Court may inquire into the guilt or innocence of the accused in any proceeding connected with the extradition demand except to identify the accused as the person sought to be extradited.

 

§9-2-5 Extradition By The Tribe

(a) When extradition of persons from other states or Indian tribes is fought by the Poarch Band of Creek Indians or a person charged with a crime or with escaping from confinement for breaking the terms of bail, probation or parole in the jurisdiction of the Tribal Court, the Tribal Chairman shall demand from the executive authority of the appropriate jurisdiction the delivery of the person sought to the custody of the Tribe.

(b) Extradition requests to bring persons into the jurisdiction of the tribe shall state the name of the person sought, the crime charged against the same, the approximate time, place and circumstances of its commission, the jurisdiction in which the person is believed to be and location therein and a verified statement that at the time the extradition request is being made in the opinion of the Tribal Chairman and the Tribal Court Judge the ends of justice require arrest and return of the accused to the jurisdiction of the tribe for trial and that the extradition proceeding is not being instituted to enforce a private claim.

(c) All applications for extradition shall be verified by affidavit, executed in duplicate and accompanied by two (2) certified copies of the affidavit, warrant of arrest, minute entry of conviction or other document which is the basis of seeking return of the person to the tribal jurisdiction.

 

§9-2-6 Waiver of Extradition

(a) Any person who is within the jurisdiction of the tribe who is sought to be extradited by another jurisdiction a may waive all rights and proceedings and voluntarily return to the jurisdiction in which he is sought.

(b) Waiver of extradition shall be accomplished by the accused signing in the presence of the Tribal Court Judge an affidavit which states substantially that the accused consents to return to the demanding jurisdiction, that he has been informed of all his rights available to him with respect to challenging the extradition and that being informed of his rights understands the same and now wishes to make an intelligent waiver thereof.

 

§9-2-7 Sovereign Immunity Not Waived

(a) No provision of the section of this code pertaining to extradition shall be deemed or construed to constitute a waiver by the tribe of its sovereign immunity, sovereignty rights, powers and privileges.

 

§9-2-8 Limitations of Extradition

(a) The Tribe shall enter into extradition proceedings at the request of only those jurisdictions who have, prior to or at the time of seeking extradition recognized the authority of the Tribe to extradite fugitives from the applying jurisdiction.

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