Ordinance
49 - Law & Order Code Titles 1-2
Title 1 - Tribal Court
Title 2 - Criminal and Traffic Procedure
Part
1 - General Preliminary Provisions
Part 2 - Investigative Procedures
Part 3 - Commencing Prosecution
Part 4 - Arrest and Related Procedures
Part 5 - Initial Appearance, Presence of Defendant,
and Right to Counsel
Part 6 - Bail
Part 7 - Arraignment of the Defendant
Part 8 - Pretrial Motions and Discovery
Part 9 - Trial
Part 10 - Juries
Part 11 - Sentence and Judgment
Part 12 - Traffic Infraction Procedures
TITLE I
Tribal
Court
1.1 Establishment of Court
There is
hereby established for the Tulalip Reservation in Washington a court
to be known as the Tulalip Tribal Court, hereafter referred to as the
Tribal Court.
1.2
1.2.1
The jurisdiction of the Tulalip Tribal Courts shall extend, except
as limited by federal or Tulalip tribal law, to (a) all persons natural
and legal of any kind and to (b) all subject matters which, now and
in the future, are permitted to be within the jurisdiction of any
tribal court of a sovereign Indian tribe or nation recognized by the
United States of America; and tribal territorial jurisdiction shall
extend, except as limited by federal law or Tulalip tribal law, to
all lands and waters , in trust or fee, within the Tulalip Indian
Reservation and outside the Tulalip Reservation to lands and waters
reserved or obtained by the Tribes and its people for their use by
any treaty or law or in any other manner, including, but not limited
to, court decision, purchase, established right of use, or gift.
The Courts
of the Tulalip Tribes shall have jurisdiction to hear and decide all
causes of action arising from activities within the boundaries of
the Consolidated Borough of Quil Ceda Village and shall hear and decide
all matters arising under the duly adopted ordinances and regulations
of the Consolidated Borough of Quil Ceda Village.
1.2.2
The Tulalip Tribes, its Board of Directors, its agencies, enterprises,
chartered organizations, corporations, or entities of any kind, and
its officers, employees, agents, contractors, and attorneys, in the
performance of their duties, shall be immune from suit; except where
the immunity of the Tribes or its officers and employees is expressly,
specifically and unequivocally waived by and in a Tulalip tribal or
federal statute, a duly executed contract approved by the Tulalip
Board of Directors, or a duly enacted ordinance or resolution of the
Tulalip Board of Directors.
1.2.3
The Tulalip Tribal Courts shall apply the laws and ordinances of the
Tulalip Tribes, including the custom laws of the Tribes, to all matters
coming before the Courts; provided, that where no applicable Tulalip
tribal law, ordinance, or custom law can be found, the Courts may
utilize, in the following order, the procedural laws of other federally
recognized Indian Tribes, federal statues, federal common law, state
common law, and state statutes as guides to decisions of the Courts.
In all
actions, and as to all claims or defenses, which concern or are based
upon any contract, lease, lease assignment, loan agreement, credit
agreement, a promissory note, assignment of rents, assignment of rental
income, assignment of income or revenue, mortgage, deed of trust,
any other agreement assigning, pledging or encumbering any collateral
as security, or any other agreement or instrument, which contains
a choice of law clause or provision that specifies or selects the
governing law, the Tulalip Tribal Courts shall apply the governing
law so specified or selected.
1.2.4
Long-Arm Jurisdiction: It has been and continues to be the intent
of the Board that the tribal court exercise long-arm jurisdiction
to the extent consistent with the due process protections provided
by 25 USC § 1302(8) and the limitations set forth in section
1.2.3 Unless prohibited by federal law or beyond the limitations of
1.2.3, a person, including any entity, who is a non-member of the
Tribe residing outside the Tribe’s territorial jurisdiction and/or
not present within such territory, submits to the jurisdiction of
the tribal court by doing any of the following acts:
a.
Transacting any business within tribal territory including but not
limited to construct to supply services or tangible items within
the reservation or off-Reservation trust lands and conveying any
interest in property located within such tribal territory;
b.
Committing any tortuous act within the Reservation or other tribal
territory
c.
Owning, using, possessing or having an interest in any property,
whether real or personal, situated within tribal territory.
d.
Contracting to insure any person, property or risk located within
the Reservation or other tribal territory at the time of contracting;
e.
Living in a marital relationship subject to the Tribe’s jurisdiction,
notwithstanding subsequent department from tribal territory, so
long as one party to the marriage continues to reside within tribal
territory.
f.
Is the parent, custodian, or other person with a legal interest
in an Indian child subject to the jurisdiction of the Tribe.
g.
Accepting a privilege from the Tribe, or entering a consensual relationship
or commercial transaction with a member, relating to the exercise
of tribal fishing or hunting rights.
Where
jurisdiction is based on an act listed in this section, the court
may exercise personal jurisdiction over the person who does such act,
directly or by an agent, as to any cause of action under tribal law
arising from such act. If an individual, the court’s jurisdiction
over the person also extends to his or her personal representative.
1.3 Appointment and Removal of Judges:
1.3.1
Judges:
a.
The Tulalip Tribal Court shall consist of at least three judges,
who shall be called the judicial officers.
b.
The judges shall be a judge from any federally recognized Indian
Tribe, lawyer licensed to practice before the Washington, State
Bar Association, or any other qualified person appointed by the
Tribal Board of Directors, or Commissioner from any Court of Indian
Offenses whose duties are regular and permanent in that court.
c.
A judge may sit as judge in all tribal matters wherein issues of
fact or law are contested in the Tulalip Tribal Court and shall
be compensated on a per diem basis therefore.
d.
A judge shall also be compensated for all travel, food, and lodging
associated with his duties as trial judge at the Tulalip Indian
Reservation.
e.
The Judge shall hold office for a term of four years, from the date
of their appointment unless sooner removed for cause or by reason
of abolition of said office, but shall be eligible for reappointment.
The Board of Directors may annually designated a Judge to hold the
office of Chief Judge and assign to same as it deems fit authority
over court administrative matters.
f.
The Judges shall be appointed by the Tulalip Board of Directors,
subject to the acceptance of the position by the judge so appointed,
which acceptance of the position by the judge so appointed, which
acceptance shall be evidenced by talking and signing the oath of
office attached hereto as Form 13.
g.
The judges and/or judicial officers of the Tulalip Tribal Court
shall have regular and permanent duties, as fixed and determined
by the Board of Directors
h.
The judges and/or judicial officers shall have the authority to
act in all matters within the jurisdiction of the Tulalip Tribal
Court. In addition, but not in limitation, such ones shall have
authority to determine the amount of or deny bail; to permit any
person charged with an offense pursuant to this code to be released
on his own recognizance; to conduct arraignments; to establishment
dates for trials, hearings, and other proceedings; to determine
the sentence of any person pleading or found guilty of an offense
pursuant to this code; to administer the general business of The
Tulalip Tribal Court; and to act as a judge pro-tem in contested
cases if the Chief Judge is disqualified or for any reason declines
to preside.
i.
Any act or omission which would result in ineligibility for appointments
shall be cause for removal of a judge already appointed and his
removal shall be effective upon notice such fact to the appointing
authority.
j.
In the event all the judges of the Tribal Court disqualified or
unable to hear a case, a judge secured from another tribal court
or any recognized inter-tribal court system shall sit as judge pro-tem
of the Tulalip Tribal Court.
k.
No judge shall be qualified to act as such in any case where he
has any direct interest or wherein any relative by marriage or blood,
in the first or second degrees, is a party.
1.3.2
Court Magistrate: The Board of Directors of the Tulalip Tribes
may appoint a Court Magistrate for the Tulalip Tribal Court. The qualifications,
eligibility, compensation, term and oath of office and conditions
of removal shall be the same as that for tribal judge. The Court Magistrate
shall not have the power, authority and jurisdiction in any matter
wherein issues of fact or law are contested, but shall have the power,
authority and jurisdiction, concurrent with the Tribal court, and
the judges thereof, in the following particulars:
a.
To grant and enter defaults and enter judgment thereon.
b.
To issue ex party temporary restraining orders and temporary injunctions
and to fix and approve bonds hereon.
c.
To hear and determine all proceedings supplemental to execution.
d.
To heat and determine ex party and uncontested civil matters of
any nature.
e.
To grant adjournments, administer oaths, preserve order, compel
attendance of witnesses and to punish for contempt’s in the
refusal to obey or the neglect of his lawful orders made in any
matter physically before his as fully as the judge of the Tribal
court.
f.
Hold arraignments, receive pleas there at, and sentence in the instance
of a guilty plea.
g.
Issue warrants and subpoenas.
Whenever
this Ordinance sets forth the procedures and substance governing any
of the above powers, authority and jurisdiction of the Tribal judges
and Tribal court, the same shall apply equally to the Court Magistrate;
provided, however it shall not serve to increase the power, authority
and/or jurisdiction of the Court Magistrate.
1.4 Eligibility. To be eligible to serve as judge of the Tribal
court, a person must:
1. be
over 21 years of age;
2. never
have been convicted or found guilty of a felony in any federal or
state court or within one year last past, of a misdemeanor in any
tribal, federal or state court, or offense under any tribal Ordinance
involving moral turpitude;
3. be
of high moral character and mentally and physically sound; and
4. be
a resident of the State of Washington at the time of appointment.
1.5 Removal of Judges
During
the tenure in office, Judges may be suspended, dismissed or removed
for cause by the Board of Directors. Copies of a written statement setting
forth the facts and the reasons for such proposed action must be delivered
to the judge and to members of the Board of Directors at lease ten (10)
days before the meeting of the Board of Directors before which he is
to appear. A public hearing shall then be held by the Board of Directors
wherein the accused judge shall be given an adequate opportunity to
answer any and all charges. Causes judged sufficient for removal shall
include, by way of example and not limitation: excessive use of intoxicants
or drugs, immoral behavior, conviction of any offense other than minor
traffic violations, use of official position for personal gain, desertion
of office, failure to perform duties, or conduct contrary to the American
Bar Association Code of Judicial Conduct, which code is incorporated
herein by reference as though set forth in full. The decision of the
Board of Directors shall be final.
1.6 Rules of Court - Procedures
1.6.1
The Time and place of court sessions and all other details of judicial
procedures not prescribed by the regulations and rules contained in
this Code shall be governed by the rules of court promulgated as herein
provided. The judges, by majority vote, are hereby empowered to recommend
adoption of new and additional rules; each of which shall become effective
upon approval by the Tribal Services Committee. Said Committee shall
submit the same forthwith for ratification, revision or rejection
to the Board of Directors. Failure of said Board to act within sixty
(60) days of submittal shall constitute and be equivalent to its ratification
of the Tribal Service Committee’s approval rule.
1.6.2
In the event of the failure of any submittal by the judges of recommended
court rules, rules of procedures of the North west Inter-Tribal Court
System, if any, are hereby adopted by reference as they now exist
or may hereafter be amended.
1.7 Disqualification of Judge
A defendant,
or other party, to any legal proceedings may accomplish one change of
assignment of his case from one judge to another upon filing an affidavit
of prejudice with the court, stating that the judge assigned to the
case is prejudiced against their case. Such affidavit shall be in written
form and must be filed with the court before any trial action whatever
has been by the initial judge. The second judge shall pass on the adequacy
of any further affidavits of prejudice and enter the appropriate order,
either hearing the case or reassigning it to another judge or judge
pro team.
1.8 Juries
1.8.1
Selection of Jurors. A list of eligible jurors shall be prepared
by the Court. The eligible juror list shall be updated from time to
time but no less than once in each year. The Court shall provide for
the selection of names of persons eligible for service as jurors.
Jurors
shall be eighteen years of age or older and, notwithstanding any other
law of the Tulalip Tribes or any of its agencies, shall be chosen
from the following classes of persons:
1.
Tribal members living on or near the Tulalip Indian Reservation;
and
2.
Residents of the Tulalip Indian Reservation; and
3.
Employees of the Tulalip Tribes or any of its enterprises, agencies,
subdivisions, or instrumentalities who have been employed by the
Tribes for at least one continuous year prior to being called as
a juror.
A person
may be excused from serving on a jury upon good cause shown under
oath to a judge.
Jurors
whose employers provide for compensated leave for serving on juries
shall not be excused by the Court from serving on a jury because of
work related responsibilities except under extraordinary circumstances.
The Court
shall consider the needs of the Court to maintain an adequate jury
pool and compensated employment leave for participating in a jury
pool, prior to allowing jurors to be excused for employment reasons.
Members of the Tulalip Board of Directors shall be exempt from serving
on juries during their terms of office.
1.8.2
Fees: Every person who is required to attend court for selection
or service as a juror shall be entitled to fees and mileage per diem
as set by resolution of the Tulalip Board of Directors.
1.8.3
Juror Conflict of Interest: No person shall be qualified to sit
on a jury panel in the Tribal Court in any case where that person
has a direct interest or wherein any relative, by marriage or blood,
in the first or second degree, is a party; nor shall any party be
required to use a challenge without cause to remove a person not qualified
to serve as a juror under this section. This section shall not be
construed as the sole cause upon which a juror may be challenged for
cause, and other conflict of interest shall be considered by the judge.
1.8.4
Emergency Additions — Jury Pool: In situations where there
is a shortage of jurors the Court may call upon tribal employees from
any agency, enterprise, division or subdivision of the Tribes to serve
as prospective jurors without giving an advance notice.
1.9 Subpoenas / Witnesses
1.9.1
Subpoenas: A judge of the Tribal Court shall issue subpoenas for
the attendance of witnesses, and the production of documents, either
on his own motion or on request of the Tribal police or any of the
parties to the case which a subpoena shall bear the signature of the
judge issuing it. Subpoenas under this section may be issued for purposes
of discovery, for pretrial hearing, or for a trial or post trial proceeding.
1.9.2
Witness Fees: Each witness answering such subpoena or appearing
voluntarily shall be entitled to fees and mileage as set by resolution
of the Tulalip Board of Directors.
1.9.3
Service of subpoenas: Service of subpoena shall be made by a tribal
police officer or other person appointed by the court for such purposes,
or by a competent person who is at least 18 years of age and not a
party to the action. Proof of service of subpoena shall be filed with
the Clerk of Court by noting on the subpoena the return date, time
and place that it was served.
1.9.4
Effect of failure to obey a subpoena. If a witness fails to obey
a subpoena, an order to show cause why the person should not be found
in contempt of Court shall immediately issue. In criminal cases, a
bench warrant for arrest may be issued pursuant to 2.8.11
1.9.5
Privileged confidentiality in certain relations. There are particular
relations in which it is the policy of the law to encourage confidence
and to preserve it inviolate; therefore, a person cannot be examined
as a witness in the following enumerated cases:
a.
Spousal privilege. A husband cannot be examined for or against
his wife without her consent or a wife for or against her husband
without his consent; nor can either, during the marriage or afterward,
be, without the consent of the other, examined as to any communication
made by one to the other during the marriage; but this exception
does not apply to a civil action or proceeding by one against the
other or to a criminal action or proceeding for a crime committed
by one against the other; and further does not apply to a criminal
action for a crime committed by said husband or wife against any
child of whom said husband or wife is the parent or guardian.
b.
Attorney-client privilege. (1) An attorney or Court advocate
cannot, without the consent of his client, be examined as to any
communication made by the client to him or his advice given to the
client in the course of professional employment. (2) A client cannot,
except voluntarily, be examined as to any communication made by
him to his attorney or Court advocate or the advice given to him
by his attorney or Court advocate in the course of the attorney's
or Court advocate's professional employment.
c.
Confessions made to member of clergy. A clergyman, priest,
or traditional spiritual advisor, cannot, without the consent of
the person making the confession, be examined as to any confession
made to him in his professional character in the course of discipline
enjoined by the church or religion to which he belongs.
d.
Doctor-patient privilege. Except as provided in Rule 35,
Federal Rules of Civil Procedure, a licensed physician, surgeon,
or dentist cannot, without the consent of his patient, be examined
in a civil action as to any information acquired in attending the
patient which was necessary to enable him to prescribe or act for
the patient. This Privilege shall not apply in the following situations:
A.
In any judicial proceedings regarding a child’s injury, neglect,
or sexual abuse or the cause thereof; and
B.
Ninety days after filing an action for personal injuries or wrongful
death, the claimant shall be deemed to have waived the physician-patient
privilege. Waiver of the physician-patient privilege for any one
physician or condition constitutes a waiver of the privilege as
to all physicians or conditions, subject to such limitations as
the court may impose.
e.
Psychologist-client privilege. The confidential relations
and communications between a psychologist and his client shall be
placed on the same basis as provided by law for those between an
attorney and his client.
f.
Information gathered by psychology teachers and observers.
Any person who is engaged in teaching psychology in any school or
who, acting as such, is engaged in the study and observation of
child mentality shall not, without the consent of the parent or
guardian of such child being so taught or observed, testify in any
civil action as to any information so obtained.
g.
Licensed Social Workers. A licensee may not disclose any
information acquired from clients consulting in the licensee's professional
capacity except:
(A)
with the written consent of the client or, in the case of the
client's death or mental incapacity, with the written consent
of the client's personal representative or guardian;
(B)
that he need not treat as confidential a communication otherwise
confidential that reveals the contemplation of a crime by the
client or any other person or that in his professional opinion
reveals a threat of imminent harm to the client or others;
C)
that if the client is a minor and information acquired by the
licensee indicates that the client was the victim of a crime,
the licensee may be required to testify fully in relation thereto
in any investigation, trial, or other legal proceeding in which
the commission of such crime is the subject of inquiry;
(D)
that if the client or his personal representative or guardian
brings an action against a licensee for a claim arising out of
the social worker-client relationship, the client is considered
to have waived any privilege;
(E)
to the extent that the privilege is otherwise waived by the client;
and
(F)
as may otherwise be required by law.
h.
Interpreters. Any information that an interpreter gathers
pertaining to any proceeding then pending shall at all times remain
confidential and privileged, on an equal basis with the attorney-client
privilege, unless such person desires that such information be communicated
to other persons.
1.9.6
Child Abuse Reporting/Proceedings. None of the privileges contained
in Sec. 1.9.5 shall apply to the extent reporting or testimony is
required by any law related to the mandatory reporting of child abuse
or neglect. All persons acting in good faith to report child abuse
and who provide testimony directly related to child abuse or neglect
in judicial proceedings shall be immune from liability for reporting
and/or testifying in good faith.
1.10 Counsel
1.10.1
Counsel Appearing in Tribal Court: Any person appearing as a party
in Tribal court shall have the right to counsel at his or her own
expense. The court or Tulalip tribal administration may appoint counsel
to assist any person appearing as a criminal defendant in the court
when the person is determined, after investigation by the court, to
be indigent based upon the standards of indigency established by the
Court with the approval of the Tulalip Board of Directors. Appointed
counsel may be: (1) an attorney admitted to practice before any state
bar, or (2) a student at, or graduate of any school of law accredited
by the American Bar Association, or (3) lay counsel admitted to practice
in the Tribal Courts appointed by the Tribes. The Tribes shall not
be obligated to pay for appointed counsel except in the circumstance
where the Tribes enacts a budget for such appointed counsel and defines
the basis upon which counsel shall be compensated.
1.10.2
The Tulalip Tribal Court, with the approval of the Tulalip Board of
Directors, may adopt such rules as it deems necessary and appropriate
for the licensing of members to the bar of the Tulalip Tribal Court.
1.10.3
Persons appearing in Tribal Court also have the right to lay counsel,
at his or her own expense, which counsel shall be of their own choosing
and need not be an attorney or admitted to practice before the bar
of any state.
1.11 Appellate Proceedings
1.11.1
Rights of Appeal: Any person who claims, in good faith, that the
Tulalip Tribal Court made a mistake in interpreting the law or a mistake
in procedure which affected the outcome. The Tribe, however, may not
appeal a jury of not guilty.
1.11.2
Notice of Appeal:
a.
Any person who wishes to appeal the judgment or appealable order
of the Tribal Court shall, within twenty (20) days after the judgment
is final or entry of the appealable order, (1) file a notice of
appeal with the clerk in writing, and (2) serve each party of record
with a copy of the notice of appeal. If a party first asks for a
new trial, rehearing, or reconsideration and the motion is denied
the twenty-day time limit shall be counted from the day when the
motion is denied.
b.
The notice of appeal must: (1) specify the party or parties taking
the appeal; and (2) designate the judgment, order, or part thereof
being appealed. The party filing the appeal should attach to the
notice of appeal the written order or judgment from which the appeal
is made. The party filing the notice of appeal shall also file with
the clerk a copy of proof of service on all parties. Service of
the notice of appeal may be made by personal service or certified
mail with return receipt.
1.11.3
Stay of Judgment Pending Appeal:
a.
When a party appeals the judgment of the trial court, the judgment
shall not be carried out until and unless the appeals court upholds
the judgment. Injunctions, however, shall take effect unless the
trial judge suspends them.
b.
Upon receipt of a notice of appeal and after the trial judge gives
the parties an opportunity to be heard, the judge may set terms
and conditions governing the release of a person convicted of a
crime, the disposition of property which has been used as evidence
or is the subject of the judgment, and other matters necessary to
preserve the court’s jurisdiction while the appeal is being
considered.
1.11.4
Bonds: The trial judge may require the party who appeals a judgment
to deposit cash or other security with the court while the appeal
is being processed if there is a clear showing that some security
is needed to guarantee that the court’s judgment will be enforceable
later. The security required shall not be greater in value than the
amount of the judgment of fine imposed by the trial court, plus costs.
1.11.5
Record on Appeal:
a.
The record on appeal shall be made up of all papers filed in a case
plus the tape recording and /or transcript made of all court hearings
in the case.
b.
Upon receipt of a notice of appeal, the clerk shall make sure that
the case record is complete and in order and shall make the record
available to all parties for inspection and for copying at the parties’
expense.
1.11.6
Appeal Judges:
a.
For each case which is appealed, a panel of three judges shall be
designated to hear the appeal. None of the judges should have participated
in the case at the trial level and none of then should have personal
knowledge of or interest in the ease. The clerk shall select the
name of three judges to hear an appeal by a system of rotation among
available judges.
b.
Of the three judges on an appeal panel, the judge who has served
longest as a tribal judge shall be designated senior judge.
1.11.7
Sending the Record to Appeal Judges:
a.
At the same time as the clerk sends or gives a copy of the notice
of appeal to the parties, the clerk shall also send a copy to each
of the three chosen to sit on the appeal panel.
b.
No longer than ten (10) days after the notice of appeal is delivered
to the appeal judges, the clerk shall deliver a copy of the case
record to each of the three judges.
1.11.8
Scheduling:
a.
After consulting with the two associate judges and the court clerk,
the senior judge of the appeal panel shall schedule a hearing at
which the parties’ arguments on appeal will be considered.
The hearing shall be scheduled no fewer than thirty (30) days and
no more than ninety (90) days after judge receive the notice of
appeal.
b.
The clerk shall immediately notify all parties of the time and place
of the hearing on appeal.
1.11.9
Brief: The parties may, but shall not be required to, make their
arguments on appeal in writing. If the party who appeals wishes to
submit written arguments, he or she shall tell the clerk within ten
(10) days after appealing. The judge shall then notify all parties
of a schedule for the filing of written arguments. The schedule shall
require the party appealing to file arguments. The schedule shall
require the party appealing to file written arguments first, giving
both sides equal time to prepare their arguments and leaving at least
ten (10) days between the deadline for submitted the last arguments
and the scheduled court hearing.
1.11.10
Additional Evidence: Cases appealed pursuant to there rules shall
be decided on the basis of the trial court record and any written
or oral arguments presented by the parties. The appeal judges shall
allow the parties to present additional evidence at or before the
hearing if refusal to consider the evidence would result in a clear
injustice.
1.11.11
Motions:
a.
A party who wishes to raise a question of procedures or request
court action during an appeal shall present the issue to the judge
in a written motion which the party files with a clerk. The clerk
may help any party put a motion in writing.
b.
The party who makes a motion pursuant to this rule shall give or
send a copy of the motion to all parties on the same day as the
motion is filed with the clerk. Other parties may respond to the
motion within five days after receiving a copy.
c.
The clerk shall immediately send a copy of a motion made pursuant
to this rule to the chief appeals judge who may rule on the motion
alone or after consulting with the associate judges.
1.11.12
Dismissal of an Appeal:
a.
On the request of the appealing party, an appeal shall be dismissed
at any time up to submission of respondent’s written arguments
or five (5) days before the scheduled hearing, whichever is sooner.
The court shall order the appealing party to pay all costs of a
dismissed appeal.
b.
If the appealing party requests that the appeal be dismissed after
the deadline set in Section 1.11.12(a) of this rule, the judges
may dismiss the appeal. Subject to the condition the appealing party
pay costs, if the dismissal will not prejudice any other party.
c.
If the judges determine that an appeal was filed frivolously and
without good faith, they shall dismiss the appeal and charge all
costs to appellant.
1.11.13
Hearing: At the time set for hearing on appeal, the parties may
present orally any arguments relevant to the issues raised by the
appeal. The party who appealed shall speak first and shall have a
chance later to respond briefly to any remarks made by the other parties.
The judges may set limit on the time each party is allowed to speak.
1.11.14
Judgment:
a.
The judges shall announce their decision of an appeal after discussing
the case with each other. The decision on appeal may be made by
a majority vote of the judges.
b.
The appeals judges shall put their decisions in writing and have
a copy of the decision delivered to all parties.
c.
The appeals court may dismiss an appeal, reverse the trial court
decision in whole or in part, order a new trial, or make and other
ruling which disposes of the issues raised by the appeal.
1.11.15
Costs: The appeals judges shall order the party who loses the
appeal to pay costs, unless it appears that such an order would result
in a clear injustice.
1.12 Clerk and Records
1.12.1
Clerk: The Board of Directors shall appoint a clerk of the court.
The clerk of the court shall be under the supervision of the Judicial
Officer. The clerk shall render assistance to the court, to the police
force of complaints, subpoenas, warrants, and commitments and any
other documents incidental to the lawful function of the court. It
shall be the further duty of the clerk to attend and to keep a written
record of all proceedings of the court, to administer oaths to witnesses,
to receipt and disburse all fees, fines, and charges, and to perform
such other duties as the Chief Judge and Judicial Officer shall designate.
The Clerk, before entering upon his duties, shall be covered by the
blanket bond provided for all tribal employees. The clerk shall receive
such compensation as set by resolution of the Tulalip Board of Directors.
1.13 Prosecuting Attorney
1.13.1
Appointment: The Board of Directors shall appoint person to act
as prosecuting attorney. Such one shall be over 25 years of age, of
good moral character, and without previous convictions for crimes.
He shall be paid at a rate per resolution established same by the
Tulalip Board of Directors. His duties shall be to prosecute all persons
against whom a complaint of an offense under this Ordinance has been
filed. He shall see that all judgments and sentences of the Court
and procedural requirements of this Ordinance are met and complied
with.
1.14 Costs
1.14.1
Fixing and Collection of Costs: Upon conviction of any offense
under this code, the judgment and sentence of the tribal court and
the appellate court shall carry and assess costs against the defendant
unless the same are expressly modified, reduced, or excluded by the
court. Such costs shall be payable to the Clerk and shall constitute
an obligation to pay as if the same were a civil debt owed to the
Tulalip Tribes of Washington. Such costs shall include the remuneration
paid by the Tulalip Tribes to the Judge, Clerk, and Prosecution Attorney,
plus witness fees and costs of service of court papers.
1.15
[Section
1.15.1 “Criminal Statute of Limitations” has been
repealed].
1.15.2
Civil Statute of Limitations: No complaint shall be filed alleging
a civil cause of action unless the civil cause of action arose and/or
accrued within six years prior to the date of the filing of the complaint
in a matter involving the breach of a written contract and in all
other matters within three years (3) years, unless otherwise specified
in a particular ordinance. This general statute of limitations shall
not apply to suits filed by the Tulalip Tribes to recover public moneys
or public property intentionally misspent, misappropriated or misused,
and further this general statute of limitations shall not apply to
any debt owed the Tulalip Tribes or any of its agencies, arms or instrumentalities.
1.16 [This section has been repealed].
1.17 Writ of Habeas Corpus.
1. Availability
of writ.
a.
Except as provided in subsection (1)(b), every person within the
jurisdiction of the Tulalip Tribes imprisoned or otherwise restrained
of liberty may prosecute a writ of habeas corpus to inquire into
the cause of imprisonment or restraint and, if illegal, to be delivered
from imprisonment or restraint.
b.
The writ of habeas corpus is not available to attack the validity
of the conviction or sentence of a person who has been adjudged
guilty of an offense by a court of competent jurisdiction and has
exhausted the remedy of appeal, nor is it available to attack the
legality of an order revoking a suspended or deferred sentence.
Moreover, a person may not be released on a writ of habeas corpus
due to any technical defect in commitment not affecting the person's
substantial rights.
c.
When a person is imprisoned or detained in custody by the Tribes
on any criminal charge for want of bail, such person is entitled
to a writ of habeas corpus for the purpose of giving bail upon averring
that fact in his petition, without alleging that he is illegally
confined.
2. Issuance
of writ.
a.
Application for a writ of habeas corpus is made by petition signed
either by the party for whose relief it is intended or be some person
on the petitioner's behalf. It must specify:
I.
that the petitioner is unlawfully imprisoned or restrained of
liberty;
ii.
why the imprisonment or restraint is unlawful; and
iii.
where or by whom the petitioner is confined or restrained.
b.
All parties must be named if they are known or otherwise described
so that they may be identified.
c.
The petition must be verified by the oath or affirmation of the
party making the application.
3. Granting
of the writ. Any Justice of the Court of Appeals may grant a writ
of habeas corpus upon petition by or on behalf of any person restrained
of liberty within the Justice's jurisdiction. If it appears to such
Justice that a writ ought to issue, it shall be granted without delay,
and may be made returnable to the Court of Appeals.
4. Time
of issuance and requirements for service.
a.
A writ of habeas corpus or any associated process may be issued
and served on any day, at any time.
b.
The writ must be served upon the person to whom it is directed.
If the writ is directed to a Tribal agency or employee, a copy of
the writ must be served upon the Tribal prosecutor.
c.
The writ must be served by a Tribal policeman, or any other person
directed to do so by the Justice or the Court, in the same manner
as a civil summons, except where otherwise expressly directed by
the Justice or the Court.
5. Return
of the writ, hearing, appeal.
a.
Return.
I.
The person upon whom the writ is served shall make a return and
state in that return:
A.
whether the petitioner is in that person's custody or under
that person's power of restraint; and
B.
if the petitioner is in custody or otherwise restrained, the
authority for and cause of the custody or restraint; or
C.
if the petitioner has been transferred to the custody of or
otherwise restrained by another, to whom the party was transferred,
the time and place of the transfer, the reason for the transfer,
and the authority under which the transfer took place.
ii.
The return must be signed and verified by oath unless the person
making the return is a sworn Tribal officer making a return in
an official capacity.
b.
Appearance and hearing.
I.
The person commanded by the writ shall bring the petitioner before
the Court as commanded by the writ unless the petitioner cannot
be brought before the court without danger to the petitioner's
health. Sickness or infirmity must be confirmed in an affidavit
by the person having custody of the petitioner. If the Court is
satisfied with the truth of the affidavit, the Court may proceed
and dispose of the case as if the petitioner were present or the
hearing may be postponed until the petitioner is present.
ii.
Unless the Court postpones the hearing for reasons of the petitioner's
health, the Court shall immediately proceed to hear and examine
the return. The hearing may be summary in nature. Evidence may
be produced and compelled as provided by the laws governing criminal
procedures and evidence.
c.
Refusal to obey the writ is contempt. If the person commanded
by the writ refuses to obey, that person must be adjudged to be
in contempt.
d.
Disposition of petitioner. If the Court finds in favor of
the petitioner; an appropriate order must be entered with respect
to the judgment or sentence in the former proceeding and any supplementary
orders as to reassignment, retrial, custody, bail, or discharge
as may be necessary and proper. If the Court finds for the prosecution,
the petitioner must be returned to the custody of the person to
whom the writ was directed.
TITLE II
CRIMINAL
AND TRAFFIC PROCEDURE
Part
1 - General Preliminary Provisions
2.1.1 Purpose and construction. The provisions of this chapter
shall be construed in accordance with Tribal custom as well as to achieve
the following general goals:
1. to
provide for the just determination of every criminal proceeding;
2. to
protect the rights of individuals; and
3. to
secure simplicity in procedure, fairness in administration, and the
elimination of unjustifiable expense and delay.
2.1.2 General definitions. Unless otherwise specified in a particular
section, the following definitions shall apply to this chapter:
1. "Arraignment"
means the formal act of calling a defendant into open court in order
that the defendant may enter a plea on the charge(s) against her or
him.
2. "Arrest"
means formally taking a person into custody in accordance with the
manner authorized by law.
3. "Bail"
means the security given, in the form of cash, stocks, bonds, real
property, or any other form of approved collateral, for the primary
purpose of insuring the presence of the defendant in a pending criminal
proceeding.
4. "Charge"
means a written statement presented to the Court accusing a person
of commission of an offense, and includes a complaint or information.
5. “Citation"
means a written direction that is issued by a law enforcement officer
and that requests a person to appear before the court at a stated
time and place to answer a charge for the alleged commission of an
offense.
6. "Conditional
release" means releasing a defendant from lawful custody,
pending a criminal proceeding, after placing specific restrictions
or regulations on the activities and associations of the defendant.
7. "Contents",
when used with respect to oral, wire, radio, television, satellite,
or computer communications, means not only the actual words or substances
of the communication, but any information concerning the implied or
intended meaning of the communication, the existence of the communication,
and the identities of the parties to the communication as well.
8. "Contraband"
means any property which is unlawful in itself, used for any unlawful
purpose, or used in connection with or derived from any unlawful property
or transaction.
9. "Conviction"
means a judgment or sentence entered upon a plea of guilty or no contest,
or upon a verdict or finding of a defendant's guilt rendered by a
legally constituted jury or by a court of competent jurisdiction authorized
to try the case without a jury. Once a conviction has been expunged,
it is no longer considered a conviction under Tribal law.
10. "Counsel"
means an attorney or a Tribal Spokesman.
11. "Defendant"
means a person who has been charged by the Tribes of allegedly violating
a Tribal law and is appearing before the Tribal Court as a result
of the charge or charges.
12. "Elder"
or "older person" means a Tribal member or other
individual residing on the Reservation who is
c.
62 years of age or older;
d.
determined by the Court to be an elder, or
e.
at least 45 years of age and unable to protect himself or herself
from abuse, neglect, or exploitation because of a mental disorder
or physical impairment or because of frailties or dependencies brought
about by age or disease or alcoholism.
13. "Family
member" or "household member" means a spouse,
former spouse, person related by blood or marriage, person residing
with the offender due to adoption or foster placement, any person
currently cohabiting with the offender at any time during the year
immediately preceding the commission of any alleged abuse.
14. "Frisk"
means an external patting of a person's outer clothing.
15. "Included
offense" means an offense that:
a.
is established by proof of the same or less than all the facts required
to establish the commission of the offense charged;
b.
consists of an attempt to commit the offense charged or to commit
an offense otherwise included in the offense charged; or
c.
differs from the offense charged only in the respect that a less
serious injury or risk to the same person, property, or Tribal interest
or a lesser kind of culpability suffices to establish its commission.
16. "Indian"
means a person who is enrolled in a federally recognized Indian tribe
or who is recognized as a Canadian Indian.
17. "Judgment"
means an adjudication by the Tribal Court that the defendant is guilty
or not guilty, and if the adjudication is that the defendant is guilty,
the judgment includes the sentence pronounced by the Court.
18. "Law
enforcement officer" means any person who by virtue of his
or her office or employment by the Tribes or by another government
is vested by law with a duty to
a.
enforce Tribal or federal civil regulatory laws,
b.
maintain public order, or
c.
make arrests for offenses while acting within the scope of his or
her authority.
19. "Mental
disorder" means any organic, mental, or emotional impairment
which has substantial adverse effects on an individual's cognitive
or volitional functions. It does not include an abnormality manifested
only by repeated criminal or other antisocial behavior.
20. "Notice
to appear" means a written document, issued by a clerk of
the Tribal Court or a law enforcement officer, requesting the named
person to appear before a judge at the stated time and date in Tribal
Court to answer a charge for the alleged commission of an offense.
21. "Offender"
means a person who has been convicted of an offense enumerated in
Title III of this code.
22. "Offense"
means a violation of a penal statute contained in the Code of Tribal
Offenses, Title III, Ordinance 49.
23. "Parole"
means the release from jail of a prisoner by the Court prior to the
expiration of the prisoner's term, subject to any conditions imposed
by the Court and the supervision of the Tribal Probation Officer.
24. "Personal
recognizance" means the release from lawful custody of a
defendant upon his or her promise to appear in court at all appropriate
times.
25. "Probation"
means the release by the Tribal Court without imprisonment, of an
offender a defendant found guilty of a crime upon verdict or plea,
subject to conditions imposed by the Tribal Court, and subject to
supervision by the Tribal Probation Officer or his or her designee
upon direction of the Court.
26. "Sentence"
means the punishment imposed on an offender by the court and may include
incarceration, labor on Tribally-owned property while incarcerated,
restitution, or any combination thereof, together with participation
in any rehabilitative programs ordered by the court.
27. "Statement"
means:
a.
a writing signed or otherwise adopted or approved by a person;
b.
a mechanical, electronic, or other recording of a person's oral
communications or a transcript thereof; or
c.
a writing containing a verbatim record as a summary of a person's
oral communication(s).
28. "Subpoena"
means a court order commanding a person to:
a.
appear at a certain time and place to give testimony upon a certain
matter; or
b.
produce specific books, records, papers, documents, or other objects
as may be necessary and proper; or
c.
do both (a) and (b).
29. "Summons"
means a written order issued by the court that commands a person to
appear before the court at a stated time and place to answer a charge
for the offense set forth in the order.
30. "Temporary
roadblock" means any structure, device, or other method used
by law enforcement officers to control the flow of traffic through
a point on a highway or road whereby all vehicles may be slowed or
stopped.
31. "Witness"
means a person whose testimony is desired in a criminal action, prosecution
or proceeding.
2.1.3 Criminal jurisdiction.
1. An
Indian defendant is subject to prosecution in Tribal Court for any
offense enumerated in Title III of this Ordinance or another Tribal
ordinance, which, is committed totally or partially within the exterior
boundaries of the Tulalip Reservation, or is committed on lands and
waters outside the Tulalip Reservation reserved or obtained by the
Tribes and its people for their use by any treaty or law or in any
other manner, except where such exercise of criminal jurisdiction
is limited by federal or tribal law.
2. An
offense is committed partially within the Tulalip Reservation or within
other Tribal lands as described above, if either the conduct which
is an element of the offense or the result which is an element occurs
within the exterior boundaries of the Tulalip Reservation or other
Tribal lands.
3. An
offense based on an omission to perform a duty imposed by Tribal law
is committed within the exterior boundaries of the Tulalip Reservation,
regardless of the location of the defendant at the time of the omission.
2.1.4 Rights of defendant.
1. In
all criminal proceedings, the defendant shall have the following rights:
to be
released from custody pending trial upon payment of reasonable bail;
a.
to appear and defend in person, or by counsel as provided in Section
1.10.1.
b.
to be informed of the nature of the charges pending against her
or him and to have a copy of those charges;
d.
to confront and cross examine all prosecution or hostile witnesses;
e.
to compel by subpoena:
i.
the attendance of any witnesses necessary to defend against the
charges; and
ii.
the production of any books, records, documents, or other things
necessary to defend against the charges;
f.
to have a speedy public trial by judge or a jury, unless the right
to a speedy trial is waived or the right to a jury trial is waived
by the defendant, as provided in Section 2.9.1;
g.
to appeal any final decision of the Tribal Court to the Tribal Court
of Appeals;
h.
not to be twice put in jeopardy by the Tribal Court for the same
offense; and
i.
not to be required to testify.
j.
No inference may be drawn from a defendant's exercise of the right
not to testify.
2.1.5 Subsequent prosecutions.
1. A
subsequent prosecution will not constitute double jeopardy when the
previous prosecution was properly terminated under any of the following
circumstances:
a.
the defendant consents to the termination or waives, by motion an
appeal upon a judgment of conviction or otherwise, the right to
object to the termination of the prosecution;
b.
the Tribal Court finds that a termination, other than by acquittal,
is necessary because:
i.
it is impossible to proceed with the trial in conformity with
the law;
ii.
there is a legal defect in the proceeding that would make any
judgment entered upon a verdict reversible as a matter of law;
iii.
prejudicial conduct, in or outside the courtroom, makes it impossible
to proceed with the trial without injustice to either the defendant
or the Tribes;
iv.
the jury cannot agree upon a verdict; or
v.
a false statement of a juror on voir dire prevents a fair trial;
c.
the former prosecution occurred in a court which lacked jurisdiction
over the defendant or the offense;
d.
the subsequent prosecution was for an offense which was not completed
when the former prosecution began; or
e.
there was a transfer of jurisdiction to another authority.
2. The
following actions will not constitute an acquittal of the same offense
if the complaint was:
a.
dismissed for insufficiency in form or substance;
b.
dismissed without prejudice upon a pretrial motion; or
c.
discharged for want of prosecution without a judgment of acquittal.
Part 2 - Investigative Procedures
2.2.1 Investigative subpoenas.
1. Whenever
the Tribal Prosecutor has a duty to investigate alleged unlawful activity,
a judge may cause a subpoena to be issued commanding a specified person
to appear before the Tribal Prosecutor or a designated agent of the
Prosecutor and give testimony and produce such books, records, papers,
documents, and other objects as may be necessary and proper to the
investigation.
2. No
person subpoenaed under this provision is required to give testimony
or produce any evidence which may incriminate her or him, unless granted
immunity.
3. An
investigative subpoena may only be issued by a judge when supported
by an affidavit of the Prosecutor sufficient to show that the administration
of justice requires the testimony or information being sought.
2.2.2 Relief from improper subpoena. A person aggrieved by a
subpoena issued pursuant to this part may, within a reasonable time,
file a motion to dismiss the subpoena and, in the case of a subpoena
duces tecum, to limit its scope. The motion must be granted if the subpoena
was improperly issued or, in the case of a subpoena duces tecum, if
it is overly broad in its scope.
2.2.3 Conduct of investigative hearing.
1. Before
a judge, the prosecutor may examine under oath all witnesses subpoenaed
pursuant to this part. Testimony must be recorded. The witness has
the right to have counsel present at all times. Failure to obey, without
just cause, a subpoena served under this part is punishable for contempt
of court.
2. Proceedings
conducted under this part are secret except to the extent that they
supply probable cause for arresting or charging a defendant in a subsequent
criminal action or are admissible in a later criminal trial. A person
who divulges the contents of the Prosecutor's affidavit or the proceedings
without legal privilege to do so is punishable for contempt of court.
3. All
penalties for perjury or preparing, submitting, or offering false
evidence apply to proceedings conducted under this part.
2.2.4 Self-incrimination -- immunity.
1. No
person subpoenaed to give testimony pursuant to this part may be required
to make a statement or to produce evidence that may be personally
incriminating.
2. The
prosecutor may, with the approval of the judge who authorized the
issuance of the subpoena, grant a person subpoenaed immunity from
the use of any compelled testimony or evidence or any information
directly or indirectly derived from the testimony or evidence against
that person in a criminal prosecution.
3. Nothing
in this part prohibits a prosecutor from granting immunity from prosecution
for or on account of any transaction, matter, or thing concerning
which a witness is compelled to testify if the prosecutor determines,
in the prosecutor's sole discretion, that the best interest of justice
would be served by granting immunity.
4. After
being granted immunity, no person may be excused from testifying on
the grounds that the testimony may be personally incriminating. Immunity
may not extend to prosecution or punishment for false statements given
pursuant to the subpoena.
5. Nothing
in this part requires a witness to divulge the contents of a privileged
communication unless the privilege is waived as provided by law.
2.2.5 Authorization for search and seizure. A search of a person,
object, or place may be made and evidence, contraband, and persons may
be seized when a search is made:
1. by
the authority of a search warrant; or
2. in
accordance with federally judicially recognized exceptions to the
warrant requirement.
2.2.6. Scope of search after arrest. When a lawful arrest is
effected, a law enforcement officer may make a reasonable search of
the person arrested and the area within such person's immediate presence,
without a search warrant, for the purpose of:
1. protecting
the officer from attack;
2. discovering
and seizing the fruits of the crime;
3. discovering
and seizing instruments, articles, or other property which may have
been used in the commission of the offense, or which may constitute
evidence of the offense, in order to prevent its destruction; or
4. preventing
the person from escaping.
2.2.7 Execution of a search warrant.
1. A
"search warrant" is a court order:
a.
in writing;
b.
in the name of the Tribes;
c.
signed by a judge;
d.
particularly describing the premises, property, place, or person
to be searched and the instruments, articles, or items to be seized;
and
e.
directed to a specific law enforcement officer commanding the officer
to search for and seize the person or property designated in the
warrant and bring the person or property before a judge.
2. Every
judge has the authority to issue warrants for the search of persons,
premises, and property and the seizure of goods, instruments, articles,
or items.
3. Search
warrants shall only be executed by law enforcement officers between
the hours of 6:00 a.m. and 10:00 p.m., unless the issuing judge otherwise
authorizes the warrant to be served anytime day or night.
4. Before
entering the premises named in a search warrant, the law enforcement
officer shall give appropriate notice of her or his identity, authority
and purpose to the person to be searched, or to the person in apparent
control of the premises to be searched.
5. Before
undertaking any search or seizure pursuant to the warrant, the executing
law enforcement officer shall read and give a copy of the original
or duplicate original warrant to the person to be searched, or to
the person in apparent control of the premises to be searched. If
the premises are unoccupied or there is no one in apparent control,
the law enforcement officer shall leave a copy of the warrant suitably
affixed to the premises.
6. If
the warrant is executed, a duplicate copy and a receipt for all articles
taken shall be left with any person at the place from which any items
were seized. The inventory of the items shall be made in the presence
of the applicant for the warrant and the person from whose possession
or premises the property was taken, if present, or in the presence
of at least one credible person other than the applicant for the warrant.
7. Failure
to give or leave a receipt of all items seized shall not render the
seized property inadmissible at any subsequent trial.
8. Only
reasonable and necessary force may be used to execute a search warrant.
9. The
executing officer shall return the warrant to the Tribal Court within
the time limit shown on the face of the warrant. A warrant is only
effective within 10 days of the date of issuance. Warrants not executed
within such time limits are void.
10. A
warrant issued under this section shall not be held invalid due to
minor irregularities in the warrant which do not substantially affect
any rights of a person named in the warrant.
2.2.8 Grounds for a search warrant.
1. No
search warrant shall issue except upon a written or oral sworn statement
of a law enforcement officer or Tribal prosecutor, based upon reliable
information and stating facts sufficient to support probable cause
to believe that an offense has been committed, particularly describing
the place, object or persons to be searched and who or what is to
be seized, which sufficiently shows probable cause exists to indicate
a search will discover:
a.
stolen property, embezzled property, contraband or otherwise criminally
possessed property;
b.
property which has been or is being used to commit a criminal offense;
or
c.
property which constitutes evidence of the commission of a criminal
offense.
2. When
a warrant is requested based on oral testimony, communicated by telephone
or otherwise, a judge shall:
a.
immediately place the requesting person(s) under oath;
b.
record by voice recording device if available, or otherwise make
a verbatim record, of the requesting person's statement and certify
the accuracy of this record;
c.
enter on an original warrant the grounds indicating probable cause
exists to issue a warrant and the scope of the search warrant as
requested or as modified;
d.
sign the original warrant and enter on the face of the original
warrant the exact time when the warrant was ordered to be issued;
and
e.
direct the requesting party to:
i.
prepare a document identical to the original warrant to be known
as a duplicate original warrant;
ii.
sign the duplicate original warrant on behalf of the judge; and
iii.
enter the exact time of execution on the face of the duplicate
original warrant.
3. A
judge may require the applicant to furnish further testimony or documentary
evidence in support of the application for the warrant.
2.2.9 Scope of search.
1. The
scope of any search shall only include those areas specifically authorized
by the warrant and is limited to the least restrictive means reasonably
necessary to discover the persons or property specified in the warrant.
2. Upon
discovery of the person or property named in the warrant, the law
enforcement officer shall take possession or custody of the person
or property and search no further under the authority of the warrant.
3. If,
in the course of an authorized search, the law enforcement officer
discovers property not specified in the warrant and the officer has
probable cause to believe the discovered property constitutes evidence
of the commission of a criminal offense, the officer may also take
possession of that property.
2.2.10 What may be seized with search warrant. A warrant may
be issued under this section to search for and seize any:
1. evidence;
2. contraband;
or
3. person
for whose arrest there is probable cause, for whom there has been
a warrant of arrest issued, or who is unlawfully restrained.
2.2.11 Seizures related to controlled substances.
1. As
used in this statute "controlled substance" means a drug,
substance, or immediate precursor in schedules I or II as specified
in Title III, part 14 of this Ordinance.
2. The
following are subject to forfeiture:
a.
all controlled substances that have been manufactured, distributed,
prepared, cultivated, compounded, processed, or possessed in violation
of sections 3.14.6 or 3.14.7 of this Ordinance;
b.
all money, raw materials, products and equipment of any kind that
are used or intended for use in manufacturing, preparing, cultivating,
compounding, processing, delivering, importing, possessing, or exporting
any controlled substance in violation of section 3.14.6 or 3.14.7
except items used or intended for use in connection with quantities
of marijuana in amounts of less than 60 grams;
c.
all property that is used or intended for use as a container for
anything enumerated in subsection (a) or (b) of this section;
d.
all books, records, research products and materials, including formulas,
microfilm, tapes and data, that are used or intended for use in
violation of 3.14.6; and
e.
all drug paraphernalia as defined in 3.14.5.
3. All
property subject to forfeiture under subsection (2) of this section
may be seized by an officer under a search warrant. Seizure without
a warrant may be made if:
a.
the seizure is incident to an arrest or a search warrant issued
for another purpose;
b.
the property subject to seizure has been the subject of a prior
judgment in favor of the Tribes in a criminal proceeding or a forfeiture
proceeding based on this title;
c.
the officer has probable cause to believe that the property is directly
or indirectly dangerous to health or safety; or
d.
the officer has probable cause to believe that the property was
used or is intended to be used in violation of 3.14 et. seq.
4. Controlled
substances that are possessed, transferred, offered for transfer,
manufactured, prepared, cultivated, compounded, or processed in violation
of 3.14.6 or 3.14.7 and that are seized under the provisions of this
part are contraband and shall be summarily forfeited to the Tribes.
Controlled substances which are seized or come into the possession
of the Tribes and the owners of which are unknown are contraband and
shall be summarily forfeited to the Tribes.
2.2.12 Procedures for seizures related to controlled substances.
1. Property
seized pursuant to Section 3.2.11(2)(a), (c), (d), or (e) is subject
to summary forfeiture.
2. Property
seized pursuant to Section 3.2.11(2)(b)is subject to the following
procedure. An officer who seizes such property shall, within 45 days
of the seizure, file a petition to institute forfeiture proceedings
with the Clerk of the Court. The Clerk shall issue a summons at the
request of the petitioner, who shall cause the same to be served upon
all owners or claimants of the property as provided by the civil procedures
of this Code.
3. Within
14 days after the service of the petition and summons, the owner or
claimant of the seized property shall file a verified answer to the
allegations concerning the use of the property described in the petition
to institute forfeiture proceedings. No extension of the time for
filing the answer may be granted and failure to answer within 14 days
bars the owner or claimant from presenting evidence at any subsequent
evidentiary hearing unless extraordinary circumstances exist.
a.
If a verified answer to the petition is not filed within 14 days
after the service of the petition and summons, the court upon motion
shall order the property forfeited to the Tribes.
b.
If a verified answer is filed within 14 days, the forfeiture proceeding
must be set for hearing without a jury no sooner than 60 days after
the answer is filed. Notice of the hearing must be given in the
manner provided for service of the petition and summons.
c.
An owner of property who has a verified answer on file may prove
that the use of the property occurred without his or her knowledge
or consent;
d.
A claimant of a security interest in the property who has a verified
answer on file must prove that his security interest is bona fide
and that it was created after a reasonable investigation of the
moral responsibility, character, and reputation of the purchaser
and without knowledge that the property was being or was to be used
for the purpose charged. However, no person who has a lien dependent
upon possession for compensation to which he is legally entitled
for making repairs or performing labor upon, furnishing supplies
or materials for, or providing storage, repair, or safekeeping of
any property and no person doing business within the Tulalip Reservation
under any applicable law relating to financial institutions, loan
companies or licensed pawnbrokers or regularly engaged in the business
of selling the property or of purchasing conditional sales contracts
for the property may be required to prove that his security interest
was created after a reasonable investigation of the moral responsibility,
character, and reputation of the owner, purchaser, or person in
possession of the property when it was brought to such person.
4. If
the court finds that the property was not used for the purpose charged
or that the property was used without the knowledge or consent of
the owner, it shall order the property released to the owner of record
as of the date of the seizure.
5. If
the court finds that the property was used for the purpose charged
and that the property was used with the knowledge or consent of the
owner, the property shall be disposed of as follows:
a.
If proper proof of his claim is presented at the hearing by the
holder of a security interest, the court shall order the property
released to the holder of the security interest if the amount due
him is equal to or in excess of the value of the property as of
the date of seizure, it being the purpose of this part to forfeit
only the right, title, or interest of the owner. If the amount due
the secured creditor is less than the value of the property, the
property, if it is sold, must be sold at public auction by the Tribal
police, or the police may return the property to the secured creditor
without an auction.
b.
If no claimant exists and the Tulalip Police Department wishes to
retain the property for its official use, it may do so. If such
property is not to be retained, it must be sold.
c.
If a claimant who has presented proper proof of his or her claim
exists and the Tulalip Police Department wishes to retain the property
for its official use, it may do so provided it compensates the claimant
in the amount of the security interest outstanding at the time of
the seizure.
6. In
making a disposition of property under this part, the court may take
any action to protect the rights of innocent persons.
7. Whenever
property is seized, forfeited and sold under the provisions of this
part, the net proceeds of the sale must be distributed as follows:
a.
to the holders of security interests who have presented proper proof
of their claims, if any, up to the amount of their interests in
the property,
b.
the remainder, if any, to the Tribal Police Drug Enforcement Fund.
2.2.13 Disposition of seized property not associated with a drug-related
crime.
1. A
hearing may be requested before the Tribal Court within 10 working
days of any seizure to determine the disposition of all property seized
by law enforcement officers.
2. 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.
3. Non-contraband
property taken as evidence shall be returned to the owner after final
judgment has been rendered.
4. Non-contraband
property may be returned to the owner prior to final judgment upon
application to and at the discretion of the court.
5. Property
confiscated as contraband or taken as evidence and of unknown ownership
and unclaimed for six months shall become the property of the Tribes
and may be:
a.
destroyed;
b.
sold at public auction;
c.
retained for the benefit of the Tribes;
d.
lawfully disposed of as ordered by the Tribal Court; or
e.
otherwise disposed of in accordance with Tribal Law.
2.2.14 Investigative stop. In order to obtain or verify an account
of the person's presence or conduct or to determine whether to arrest
the person, a law enforcement officer may stop any person or vehicle
that is observed in circumstances that create a particularized suspicion
that the person or occupant of the vehicle has committed, is committing,
or is about to commit an offense.
2.2.15 Stop and frisk. A law enforcement officer who has lawfully
stopped a person under Section 3.2.14:
1. may
frisk the person and take other reasonable steps necessary for protection
if the officer has reasonable cause to suspect that the person is
armed and presently dangerous to the officer or another person present;
2. May
take possession of any object that is discovered during the course
of the frisk if the officer has probable cause to believe the object
is a deadly weapon;
3. may
demand the name and present address of the person; and
4. shall
inform the person, as promptly as possible under the circumstances
and in any case before questioning the person, that the officer is
a law enforcement officer, that the stop is not an arrest but rather
a temporary detention for an investigation, and that upon completion
of the investigation, the person will be released if not arrested.
2.2.16 Roadblocks.
1. Law
enforcement officers may use a temporary roadblock in order to apprehend
a person suspected of committing a criminal offense.
2. Unless
exigent circumstances exist justifying a departure from the requirements
given below, the minimum requirements to be met by law enforcement
officers when establishing roadblocks include:
a.
establishing a roadblock at a point on the highway clearly visible
at a distance of not less than 100 yards in either direction;
b.
placing a sign on the center line of the highway at the point of
the roadblock displaying the word "stop" in letters of
sufficient size and luminosity to be readable at a distance of not
less than 50 yards in both directions either in daytime or darkness;
c.
placing a flashing or intermittent beam of light, which is visible
to oncoming traffic for at least 100 yards, on the side of the road
at the point of the roadblock; and
d.
placing warning signs, which will attract an oncoming driver's attention,
at least 200 yards prior to the roadblock indicating that all vehicles
should be prepared to stop.
2.2.17 Duration of stop. A stop authorized under Section 2.2.14
and Section 2.2.16 may not last longer than is necessary to effectuate
the purpose of the stop.
Part 3 - Commencing Prosecution
2.3.1 Citation. Prosecution for all Class A offenses and criminal
traffic violations may be initiated by citation issued by a law enforcement
officer upon probable cause where the officer has attested to the truth
of the allegations contained in the citation under oath. Civil traffic
infraction enforcement shall be initiated by Notice of Infraction pursuant
to Section 2.12.1.
2.3.2 Complaint.
1. All
criminal prosecutions for Class B, Class C, Class D, and Class E offenses
shall be initiated by complaint.
2. The
complaint is a written statement of the essential facts constituting
the offense charged.
3. The
complaint shall contain:
a.
the name of the person accused, if known, or a description sufficient
to identify the person accused of committing the alleged offense;
b.
the general location where the alleged offense was committed;
c.
the name and code citation of the alleged offense;
d.
a short, concise statement of the specific acts or omissions to
act constituting an offense;
e.
the person, if any, against whom the alleged offense was committed,
if known, except in the case of a sexual offense or an offense involving
a minor;
f.
the date and approximate time of the commission of the alleged offense,
if known; and
g.
the signature of a Tribal prosecutor.
4. No
minor omission from or error in the form of the complaint shall be
grounds for dismissal unless the defendant is shown to be significantly
prejudiced by the omission or error.
5. A
specific Class of an offense need not be included in the complaint.
If a factual allegation is contained in the complaint which will supply
the information needed to determine the degree of the offense, the
Judge may use that information to determine bail. If no factual allegation
is made, the offense shall be considered the least degree possible
under the offense charged, for the purposes of setting bail.
2.3.3 Amending the complaint.
1. A
complaint may be amended in matters of substance at any time prior
to arraignment without leave of the Tribal Court.
2. A
complaint may be amended in matters of substance at any time before
the commencement of trial with leave of the Tribal Court.
3. When
the prosecution seeks leave to amend a complaint as to a matter of
substance, the prosecutor shall file:
a.
a motion for leave to amend stating the nature of the proposed amendment;
b.
a copy of the proposed complaint, as amended; and
c.
an affidavit setting forth facts and circumstances sufficient to
show probable cause exists to justify the amended complaint.
4. If
the motion is timely filed and the amended complaint is supported
by probable cause, the court shall grant leave to amend.
5. The
defendant shall be arraigned on the amended complaint without unreasonable
delay.
6. The
defendant shall be given a reasonable period of time to prepare for
trial on the amended complaint.
7. The
court may permit a complaint to be amended as to form at any time
before a verdict or a finding if no additional or different offense
is charged and if the substantial rights of the defendant are not
prejudiced.
8. No
charge may be dismissed because of a formal defect which does not
tend to prejudice any substantial right of the defendant.
2.3.4 Joinder and severance of offenses and defendants.
1. Two
or more offenses or different statements of the same offense may be
charged in the same complaint in separate counts, or alternatively,
if the offenses charged are of the same or similar character and are
based on the same transactions connected together or constituting
parts of a common scheme or plan. Allegations made in one count may
be incorporated by reference in another count.
2. The
Tribal Court may order that different offenses or counts set forth
in the complaint be tried separately or consolidated.
3. The
prosecution is not required to elect between the different offenses
or counts set forth in the complaint and the defendant may be convicted
of any number of the offenses charged, except as provided in section
2.3.6. Each offense of which the defendant is convicted must be stated
in the verdict or the finding of the Tribal Court.
2.3.5 Discharge of codefendant.
1. When
two or more persons are included in the same charge, the Tribal Court
may, at any time prior to the defendants presenting their cases and
upon application of the prosecutor, direct any defendant be discharged
so that the defendant may be a witness for the prosecution.
2. When
two or more persons are included in the same complaint and the Tribal
Court determines that there is insufficient evidence to prosecute
one of the named defendants, the Tribal Court must discharge that
defendant before the evidence is closed so that the discharged defendant
may be a witness for the codefendant.
2.3.6 Multiple charges from the same transaction.
1. When
the same transaction may establish the commission of more than one
offense, a person charged with conduct may be prosecuted for each
offense.
2. A
person may not, however, be convicted of more than one offense if:
a.
one offense is included in the other;
b.
one offense consists only of a conspiracy or other form of preparation
to commit the other;
c.
inconsistent findings of fact are required to establish the commission
of the offenses; the offenses differ only in that one is defined
to prohibit a specific instance of conduct; or
d.
the offense is defined to prohibit a continuing course of conduct,
and the defendant's course of conduct was interrupted, unless the
law provides that the specific periods of the conduct constitute
separate offenses.
Part 4 - Arrest and Related Procedures
2.4.1 Method of arrest.
1. An
arrest is made by actually restraining the person to be arrested or
by that person voluntarily submitting to the custody of the person
making the arrest.
2. All
necessary and reasonable force may be used in making an arrest, but
the person arrested shall not be subject to any greater restraint
than is necessary to hold or detain the person.
3. All
necessary and reasonable force may be used to effect an entry into
any building or property or part thereof to make an authorized arrest.
2.4.2 Time of making arrest. An arrest may be made any day of
the week and at any time of the day or night. A person, however, cannot
be arrested in her or his home or private dwelling at night for a Class
A, Class B, or Class C offense without an arrest warrant specifically
permitting arrest at night except for an offense involving damage to
a person and the provisions of section 2.4.3 are followed.
2.4.3 Arrest by law enforcement officer.
1. A
law enforcement officer may arrest a person within the exterior boundaries
of the Tulalip Reservation under the following circumstances:
a.
when the officer has a warrant commanding that the person be arrested
or when the officer believes on reasonable grounds that a warrant
for the person's arrest has been issued by the Tribal Court or that
a warrant for the person's arrest has been issued in another jurisdiction;
b.
when the person has committed an offense in the officer's presence;
or
c.
when the officer has probable cause, as reflected by stated and
provable facts, to believe the person to be arrested has committed
an offense and exigent circumstances require an immediate warrantless
arrest in order to prevent the person from
i.
fleeing the jurisdiction or concealing himself or herself to avoid
arrest;
ii.
destroying or concealing evidence of the commission of an offense;
iii.
injuring another person; or
iv.
damaging property belonging to another.
2. When
an arrest is made without an arrest warrant, the arresting officer
must inform the person to be arrested, as soon as practicable, of
his or her authority to make the arrest and the reasons for making
the arrest.
3. A
law enforcement officer may arrest a person, including at her or his
place of residence, without an arrest warrant if the officer has probable
cause to believe the person is committing or has committed abuse against
an elder, family member, or household member, regardless of whether
the offense took place in the responding law enforcement officer's
presence.
4. Arrest
is the preferred response in situations:
a.
involving bodily harm to an elder, family member or household member;
b.
involving use or threatened use of a weapon against an elder, family
member or household member; or
c.
where there appears to be imminent danger of bodily harm to another.
5. If
an arrest is made without a warrant, the Court shall make a determination
of the existence of probable cause for the arrest at an initial appearance
within two working days following the arrest.
6. For
any class of offense, in lieu of making a custodial arrest, a law
enforcement officer may issue a citation requiring the defendant to
appear in Tribal Court at a designated time and on a designated date.
7. An
arrest made outside the boundaries of the Tulalip Reservation shall
be valid if made pursuant to the laws of the jurisdiction where the
arrest occurred.
2.4.4 Arrest warrants.
1. An
arrest warrant shall be issued by a judge, based on a sworn complaint
or affidavit showing there is probable cause to believe an offense
has been committed and the named person has committed the offense.
The warrant shall:
a.
be in writing in the name of the Tribes;
b.
set forth the nature of the offense;
c.
command the person against whom the sworn complaint or affidavit
was made be arrested, or a description of the person as well as
any alias used by the person;
d.
be signed by a judge; and
e.
include any bail amount, if deemed appropriate by the issuing judge.
2. A
law enforcement officer shall, as soon as practicable, inform the
person named in the arrest warrant of:
a.
her or his authority to make the arrest;
b.
the intention to arrest the person;
c.
the grounds for the arrest;
d.
the existence of an arrest warrant; and
e.
the amount of bail, if specified in the warrant.
3. A
copy of the arrest warrant must be shown to the person arrested, as
soon as practicable.
4. An
arrest made pursuant to a warrant shall not be dismissed due to minor
irregularities in the warrant which do not substantially affect any
rights of the arrested person.
2.4.5 Notice of rights prior to interrogation.
1. Prior
to questioning any person in custody, a law enforcement officer must
inform the person in clear and unequivocal terms of the following
rights:
a.
that the person has the right to remain silent;
b.
that anything said by him or her can and will be used against the
person in any subsequent court proceedings;
c.
that the person has the right to legal counsel or representation
as provided in Section 2.5.4 prior to answering any questions; and
d.
that if, at any point during questioning, the person indicates that
she or he wishes to remain silent the questioning will cease.
2. Any
statement obtained in violation of these rights may not be admitted
into evidence.
3. The
fact that a person chooses to remain silent cannot be used against
her or him in any subsequent criminal proceedings.
2.4.6 Summons.
1. The
Tribal Court may or, upon request of a prosecutor, shall issue a summons
instead of an arrest warrant.
2. The
summons may be served personally or by first-class mail.
3. A
summons shall:
a.
be in writing in the name of the Tribes;
b.
state the name of the person summoned, along with that person's
address, if known; set forth the nature of the offense charged;
c.
set the date issued;
d.
command the person to appear in Tribal Court at a specified date
and time; and
e.
be signed by a judge.
2.4.7 Written report when no arrest made in abuse situation.
When a law enforcement officer is called to the scene of a reported
incident of elder or domestic abuse but does not make an arrest, the
officer shall file a written report with the commanding officer stating
the reasons for deciding not to make an arrest.
2.4.8 Extradition.
1. If
a Tribal law enforcement officer arrests an individual based on a
warrant issued by the State of Washington, or a reasonable belief
that a warrant has been issued by the State of Washington, the Tribes
may hold such individual for up to forty-eight hours (48) after any
Tribal sentence has been served, for transport by State officials.
If State officials do not retrieve the defendant within that time,
he or she shall be released. The defendant shall be entitled to bail
at the amount set in the State warrant.
2. If
a Tribal law enforcement officer arrests an individual pursuant to
Section 2.4.3 above based on a warrant from a jurisdiction other than
the State of Washington, or based on a reasonable belief that a warrant
has been issued by a jurisdiction other than the State of Washington,
he shall be entitled to a hearing before the Tribal Court on the following
issues:
a.
whether such warrant exists; and
b.
whether the individual arrested is the person named in the warrant;
and
c.
whether the court issuing the warrant had jurisdiction to issue
the warrant; and
d.
whether the arrest by Tribal law enforcement was lawful.
After
being fully informed of his or her rights, the defendant may, in writing,
waive the right to a hearing. If not waived, the hearing shall be
held within two days of the arrest, and the defendant shall have the
right to be represented by the Tribal Defenders Office. Prior to the
hearing the defendant shall be entitled to bail at the sum set in
the warrant.
3. If
at the hearing the Court does not find these factors to be established
by the Tribal Prosecutor by clear and convincing proof, it shall order
the defendant immediately released. If at the hearing the Court finds
these factors to be established by the Tribal Prosecutor by clear
and convincing proof, it shall order the defendant held for a reasonable
time not to exceed ten days, after any Tribal sentence has been served,
for the other jurisdiction to retrieve the defendant. After the hearing
the defendant may be admitted to bail in an amount set by the Tribal
Court, on the condition that he or she surrender himself or herself
at a specified time, and on such additional restrictions as the Court
deems appropriate. If such other jurisdiction does not retrieve the
defendant within that time, the defendant shall be released.
4. Nothing
in this section shall be considered to limit or restrict an individual's
right to seek a writ of habeas corpus.
Part 5 - Initial Appearance, Presence of Defendant,
and Right to Counsel
2.5.1 Initial appearance.
1. A
person arrested, whether with or without a warrant, must be taken
before a judge of the Tribal Court for an initial appearance within
two working days following the arrest.
2. A
person not arrested shall appear for an initial appearance at the
time and place designated in the citation or summons.
3. A
person who is arrested without a warrant, shall have a judicial determination
of probable cause at the initial appearance. If probable cause is
not found, the person shall be released immediately without conditions.
2.5.2 Duty of court at initial appearance.
1. The
judge shall inform the defendant of:
a.
the charge or charges against him or her;
b.
the maximum penalty allowed under Tribal Law for the offense;
c.
the defendant's right to counsel at defendant's expense;
d.
the right to call any witness on her or his behalf;
e.
the right to request a jury trial where the crime charged carries
a possible jail sentence, unless the prosecutor, prior to plea,
informs the defendant that there shall no jail time imposed in the
event of a successful prosecution;
f.
the right to remain silent and that any statement made by her or
him may be used in evidence against her or him at any subsequent
court proceedings;
g.
the general circumstances under which the defendant may obtain pretrial
release;
h.
the right to cross-examine the Tribes' witnesses; and
i.
the right to have up to 5 working days before arraignment.
2. The
judge shall admit the defendant to bail as provided by Section 2-6-2
of this Code.
2.5.3 Presence of defendant. Unless otherwise set forth in this
chapter, a defendant shall be present at all stages of the proceedings.
The Court in its discretion may allow the defendant to appear through
counsel.
2.5.4 Right to counsel.
1. During
the initial appearance before the court, every defendant must be informed
of the right to have counsel at his or her own expense.
2. If
the defendant wishes to obtain counsel, the court shall grant a reasonable
time prior to arraignment for defendant's attorney to enter an appearance
in the cause.
Part 6 - Bail
2.6.1 Release prior to criminal proceedings. A person charged
with any offense is bailable before conviction and shall be released
from custody by the court upon reasonable conditions that ensure the
appearance of the defendant and protect the safety of the community
or of any person.
2.6.2 Release or detention.
1. The
release or detention of the defendant must be determined immediately
upon the defendant's initial appearance.
2. The
criteria for determining the conditions of release include, but are
not limited to the following:
a.
defendant's employment status and work history;
b.
defendant's financial condition;
c.
the nature and extent of defendant's family relationships and ties
to the Reservation community;
d.
defendant's past and present residences;
e.
names of individuals personally agreeing to assure defendant's court
appearance;
f.
the nature and circumstances of the current charge, including whether
the offense involved the use of force or violence;
g.
the defendant's prior criminal record, if any, and whether, at the
time of the current arrest or offense, the defendant was on probation,
on parole, or on other release pending trial, sentencing, or appeal
for an offense;
h.
the defendant's record of appearance at court proceedings; and
i.
the nature and seriousness of the danger to any person or the community
that would be posed by the defendant's release.
3. The
Court may in its discretion grant temporary release from custody under
any conditions the Court deems appropriate.
2.6.3 Release on own recognizance and reasonable bail.
1. Any
person in custody, if otherwise eligible for bail, may be released
on his personal recognizance subject to such conditions as the court
may reasonably prescribe to assure his appearance when required.
2. In
all cases, the amount set for bail must be reasonable.
3. Reasonable
bail reflects an amount which is:
a.
sufficient to ensure the presence of the defendant in any pending
criminal proceeding;
b.
sufficient to assure compliance with the conditions set forth in
a bail or release order; and
c.
not oppressive.
2.6.4 Conditions upon defendant's release.
1. The
court may impose any condition that will reasonably ensure the appearance
of the defendant as required or that will ensure the safety of any
person or the community, including, but not limited to the following
conditions:
a.
the defendant shall remain in the custody of a designated person
who agrees to supervise the defendant and report any violation of
a release condition to the court, if the designated person is reasonably
able to assure the court that the defendant will appear as required
and will not pose a danger to the safety of any person or the community;
b.
the defendant may not commit an offense during the period of release;
c.
the defendant shall maintain employment or, if unemployed, actively
seek employment;
d.
the defendant shall abide by specified restrictions on the defendant's
personal associations, place of abode, and travel;
e.
the defendant shall avoid all contact with an alleged victim of
the crime and any potential witness who may testify concerning the
offense;
f.
the defendant shall comply with a specified curfew;
g.
the defendant may not possess a firearm, destructive device, or
other dangerous weapon;
h.
the defendant may not use or possess alcohol, or any dangerous drug
or other controlled substance without a legal prescription;
i.
the defendant shall report on a regular basis to a designated agency
or individual, or both;
j.
the defendant shall furnish bail; or
k.
the defendant shall return to custody for specified hours following
release from employment, schooling, or other approved purposes.
2. The
court shall subject the defendant to the least restrictive condition
or combination of conditions that will ensure the defendant's appearance
and provide for protection of any person or the community. At any
time, the court may, upon a reasonable basis, amend the order to impose
additional or different conditions of release upon its own motion
or upon the motion of either party.
2.6.5 Bail schedule.
1. The
Chief Judge of the Tribal Court shall establish and post a schedule
of bail for offenses to be used by law enforcement officers.
2. A
law enforcement officer may accept bail on behalf of the Tribal Court
whenever the amount of bail is specified in the warrant of arrest
or in accordance with the posted bail schedule.
3. When
a law enforcement officer accepts bail, based on an arrest warrant
or current bail schedule, the officer shall give a signed receipt
to the offender setting forth the bail received and the name of the
person posting the bail. At the earliest time practicable, the law
enforcement officer shall deliver the bail and duplicate copy of the
bail receipt to the Tribal Court; obtaining a receipt for the bail
delivered from a Clerk of Court.
4. The
Chief Judge of the Tribal Court shall replace any existing bail schedule
with a revised bail schedule by January 31 of each year.
5. Bail
may be specifically set by a judge for any offense not listed on the
posted bail schedule.
2.6.6 Changing bail or conditions of release.
1. Upon
application by the Tribes or the defendant, the Tribal Court may increase
or reduce the amount of bail, alter the conditions in the bail or
release order, or revoke bail.
2. Reasonable
notice of such application must be given to the opposing parties or
their attorneys by the applicant.
2.6.7 Forms of bail.
1. Bail
may be furnished in the following ways, as the court may require:
a.
by a deposit with the court of an amount equal to the required bail
of cash or other personal property approved by the court;
b.
by pledging real estate situated within the Reservation with an
unencumbered equity, not exempt, owned in fee simple by the defendant
or sureties at a value double the amount of the required bail;
c.
by posting a written undertaking by the defendant and by two sufficient
sureties; or
d.
by posting a commercial surety bond executed by the defendant and
by a qualified agent for and on behalf of the surety company.
2. The
amount of the bond must ensure the appearance of the defendant at
all times required through all stages of the proceeding and remain
in effect until final sentence is pronounced in open court.
3. Nothing
in this part prohibits a surety from surrendering the defendant in
a case in which the surety feels insecure in accepting liability for
the defendant.
2.6.8 Property and surety bonds.
1. If
property posted as a condition of release is personal property, the
defendant or sureties shall file a sworn schedule that must contain
a list of the personal property, including a description of each item,
its location and market value, and the total market value of all items
listed.
2. If
the property is real estate the defendant or sureties shall file a
sworn schedule that must contain a legal description of the property,
a description of any encumbrance on the property, including the amount
of each encumbrance and its holder, and the market value of the unencumbered
equity owned by the defendant or sureties;
3. If
the property is a written undertaking with sureties, each surety must
be a Reservation resident and worth the amount specified in the undertaking,
exclusive of property exempt from execution; but the court may allow
more than two sureties to justify severally and in amounts less than
that expressed in the undertaking if the whole justification is equivalent
to the amount required.
4. If
the property posted is a commercial bond, it may be executed by any
domestic or foreign surety company that is qualified to transact surety
business in Washington. The undertaking must state the following:
a.
the name and address of the surety company that issued the bond;
b.
the amount of the bond and the unqualified obligation of the surety
company to pay the court should the defendant fail to appear as
guaranteed; and
c.
a provision that the surety company may not revoke the undertaking
without good cause.
5. The
court may examine the sufficiency of an undertaking and take any action
it considers proper to ensure that a sufficient undertaking is posted.
2.6.9 Release of bail. When all conditions of release have been
satisfactorily performed and the defendant has been discharged from
any obligations imposed by the Tribal Court, the court shall return
any security posted by the defendant to satisfy bail requirements.
2.6.10 Violation of a release order.
1. If
a defendant violates a condition of release, including failure to
appear, the prosecutor may make a motion to the court for revocation
of the order of release. The court may issue a warrant for the arrest
of a defendant charged with violating a condition of release and declare
the bail to be revoked. Upon arrest, the defendant must be brought
before the court without unnecessary delay and the court shall conduct
a hearing and redetermine bail. On finding probable cause that the
defendant has violated a tribal, state, or federal law, or on finding
a violation of any other release condition by clear and convincing
evidence, the Court may:
a.
reinstate the original release order on the same conditions and
amount of bail; or
b.
revoke the original bail, increase the amount of the bail and modify
the conditions of release; or
c.
at the defendant's request, revoke the defendant's release for any
period of time, up to 10 days, and then reinstate release on the
original conditions and bail or on such conditions and bail as the
Court deems appropriate. Such time shall not be credited as time
served under Section 2.11.10 or 2.11.11.
2. This
section provides the exclusive remedy for a violation of a release
order. A defendant may not be charged with contempt or found in contempt
for violation of a release order.
3. Neither
a cash bond nor a commercial bond may be forfeit for violation of
release conditions, except for failing to appear for court proceedings
without a lawful excuse.
4. Notice
of an order of forfeiture must be mailed to the defendant and the
defendant's sureties at their last-known address(es) within 10 working
days of the date of the order or the bond becomes void.
2.6.11 Forfeiture order.
1. If
within 90 days of the forfeiture order, the defendant, or the defendant's
surety, appears and presents evidence justifying the defendant's failure
to appear or otherwise meet the conditions found in the release order,
the Tribal Court may direct the forfeiture of the bail to be discharged
upon such terms as are just.
2. If
the forfeiture order is not discharged by the Tribal Court, the court
shall proceed with the forfeiture of bail as follows:
a.
if money has been posted as bail, the court shall pay the money
to the Tribal Board Treasurer; or
b.
if other property is posted as a condition of release, the property
must be sold in the same manner as property sold in civil actions.
The proceeds of the sale must be used to satisfy all court costs
and prior encumbrances, if any, and from the balance, a sufficient
sum to satisfy the forfeiture must be paid to the Tribal Board Treasurer.
3. If
a surety bond has been posted as bail, execution may be issued against
the sureties or the surety company in the same manner as executions
in civil actions.
2.6.12 Surrender of defendant.
1. At
any time before the forfeiture of bail:
a.
the defendant may surrender to the court or any Tribal law enforcement
officer; or
b.
the surety company may arrest the defendant and surrender the defendant
to the court or to any Tribal law enforcement officer.
2. The
law enforcement officer will detain the defendant in the officer's
custody and shall file a certificate, acknowledging the surrender,
in court. The court may then order the bail exonerated.
Part 7 - Arraignment of the Defendant
2.7.1. Joint defendants. Defendants who are jointly charged may
be arraigned separately or together in the discretion of the court.
2.7.2. Procedure on arraignment.
1. A
defendant shall be arraigned in open Tribal Court whenever a complaint
has been filed by a Tribal prosecutor. Arraignment consists of reading
the charge, unless the defendant waived the reading, and supplying
a copy of it to the defendant and calling on the defendant to plead
to the charge.
2. If
a defendant waives his or her right to counsel in writing, the court
may arraign the defendant at the initial appearance.
3. Prior
to accepting any plea at the time of arraignment, the presiding judge
must:
a.
verify that the person appearing before the Tribal Court is the
defendant named in the complaint, and that the defendant's true
name appears on the complaint and if different from the name used
on the complaint, order the complaint amended to reflect the true
name;
b.
determine whether the defendant has a mental disorder that would
prevent the defendant from understanding the charges, the penalties,
or the effects of a plea, and, if the determination is that defendant
has a mental disorder, the arraignment may be continued until the
defendant is able to proceed; and
4. If
the defendant is detained in jail or subject to conditions of release,
the defendant shall be arraigned not later than 14 days after the
date the complaint is filed in Tribal court, or 14 days after the
date of initial appearance if no complaint has been filed prior to
the initial appearance. If the defendant is not detained in jail or
subject to conditions of release, the defendant shall be arraigned
not later than 14 days after the appearance in Tribal court which
next follows the filing of the complaint. If the defendant is not
arraigned within the above time limits, the defendant shall be released
without conditions.
2.7.3 Plea alternatives.
1. A
defendant shall enter a plea of guilty, not guilty, or, if the judge
agrees, no contest, to all charges each charge contained in the complaint.
A plea of no contest may be accepted by a judge only after due consideration
of the views of the parties and interest of the Tribes in the effective
administration of justice.
2. The
court may not accept a plea of guilty or no contest without first
determining:
a.
that the plea is voluntary and not the result of force or threats
or of promises apart from a plea agreement. The court shall also
inquire as to whether the defendant's willingness to plead guilty
results from prior discussions between the prosecutor and the defendant
or the defendant's attorney;
b.
that the defendant understands the following: (i) the nature of
the charge for which the plea is offered, any mandatory minimum
penalty, the maximum penalty, and, when applicable, that the court
may require the defendant to make restitution to the victim; (ii)
the defendant will be giving up his or her right to a trial;
c.
that if the defendant pleads guilty in fulfillment of a plea agreement,
the court is not required to accept the terms of the agreement and
that the defendant may not be entitled to withdraw the plea if the
agreement is not accepted; and
d.
that, in charges for which imprisonment is a possible penalty, there
is a factual basis for the plea.
3. A
defendant pleading not guilty must inform the judge at the time of
arraignment if a jury trial is requested.
4. If
a defendant voluntarily enters a plea of guilty the judge may impose
a sentence at that time or, on the court's own motion or the request
of either party, schedule a sentencing hearing in order to allow sufficient
time for the involved parties to obtain any information deemed necessary
for the imposition of a just sentence.
5. Prior
to the imposition of any sentence, the judge shall allow the defendant
an opportunity to inform the court of any extenuating or mitigating
circumstances which should be considered by the court in imposing
penalties.
6. With
the approval of the court and the consent of the prosecutor, a defendant
may enter a plea of guilty or no contest, reserving the right, on
appeal from the judgment, to review the adverse determination of any
specified pretrial motion. If the defendant prevails on appeal, the
defendant must be allowed to withdraw the plea.
2.7.4 Record of arraignment. The Clerk of Court shall prepare
and keep a record of all arraignment proceedings.
2.7.5 Plea agreement procedure.
1. A
prosecutor and counsel for the defendant, or the defendant when acting
pro se, may engage in discussions with a view toward reaching an agreement
that, upon the entering of a plea of guilty to a charged offense or
to a lesser or related offense, the prosecutor will do one of the
following:
a.
move for dismissal of other charges; or
b.
make a recommendation, or agree not to oppose the defendant's request,
for a particular sentence, with the understanding that the recommendation
or request may not be binding on the court.
2. A
plea bargain agreement may be entered into anytime prior to a verdict
or finding of guilt by judge or jury.
3. Final
plea bargain offers shall be given to the defendant no later than
8 working days prior to trial. Plea bargains entered into up to 5
days prior to trial will be reviewed by the court and approved if
not unconscionable. After that time, plea bargains will receive heightened
scrutiny with no assurance being given of the acceptability of such
plea bargains.
4. If
a plea agreement has been reached by the parties, the court shall,
on the record, require a disclosure of the agreement in open court
at the time the plea is offered.
2.7.6 Telephonic change of plea. In exceptional circumstances and
at its discretion, the court may accept a defendant's change of plea
through a recorded telephonic proceeding.
Part 8 - Pretrial Motions and Discovery
2.8.1 Pretrial defenses and objections.
1. Except
for good cause shown, any defense objection, or request which is capable
of determination without trial on the general issues must be raised
before trial by motion to dismiss or for other appropriate relief.
All motions must be in writing and must be supported by a statement
of the relevant facts upon which the motion is being made unless otherwise
directed by the judge.
2. Failure
of a party to raise defenses or objections or to make requests that
must be made prior to trial, except lack of jurisdiction or the failure
of a complaint to state an offense which must be noticed by the court
at any time during the pendency of a proceeding, constitutes a waiver
of the defense, objection, or request. The court, for good cause shown,
may grant relief from any waiver provided in this section.
3. Motions
in Limine should be made at least 5 days before trial, unless good
cause is shown.
2.8.2 Suppression of evidence.
1. A
defendant aggrieved by an unlawful search and seizure may move to
suppress as evidence anything obtained by the unlawful search and
seizure. The motion must be filed at least 10 days before trial, unless
good cause is shown for waiving this time restriction.
2. The
motion must specify the evidence sought to be suppressed and the grounds
upon which the motion is based.
3. When
the motion to suppress challenges the admissibility of evidence obtained
without a warrant, the prosecution has the burden of proving, by a
preponderance of the evidence, that the search and seizure were valid.
4. If
the motion is granted, the evidence is not admissible at trial.
2.8.3 Motion to suppress confession or admission.
1. A
defendant may move to suppress as evidence any confession or admission
given by her or him on the ground that it was not voluntary or that
was otherwise obtained in violation of his or her rights.
2. The
motion must be filed at least 10 days before trial, unless good cause
is shown for waiving this time restriction.
3. If
the allegations of the motion state facts which, if true, show that
the confession or admission was not voluntarily made or was otherwise
obtained in violation of the defendant's rights, the Tribal Court
shall conduct a hearing on the merits of the motion. The prosecution
must prove by a preponderance of the evidence that the confession
or admission was not obtained in violation of the defendant's rights.
4. The
issue of admissibility of the confession or admission may not be submitted
to the jury. If the confession or admission is determined to be admissible,
the circumstances surrounding the making of the confession or admission
may be submitted to the jury as bearing upon the credibility or the
weight to be given to the confession or admission.
5. If
the motion to suppress is granted, the confession or admission may
not be admitted into evidence by the prosecution at the time of trial.
2.8.4 Disclosure by prosecution.
1. At
the time of the initial appearance, the prosecutor shall disclose
to the defendant the name of the person, if any, against whom the
offense was committed if not disclosed in the complaint.
2. At
the arraignment or as soon thereafter as practicable the defendant
may request notice of all evidence the prosecutor intends to use in
the prosecution case-in-chief at trial.
3. Upon
defendant's request, any of the following information or evidence
which is within the possession, custody, or control of the Tribal
Prosecutor is subject to disclosure and production and may be copied
or photographed, as appropriate for the item, by the defendant:
a.
any relevant written or recorded statement made by the defendant
while in the custody of the Tribes and of any person who will be
tried with the defendant;
b.
the names, addresses, and statements of all persons whom the prosecutor
may call as witnesses in the case in chief.
c.
the defendant's prior criminal record, if any;
d.
any books, papers, documents, photographs, tangible objects, drawings
of buildings or places, or other physical or demonstrative evidence
which is intended for use by the prosecution at trial;
e.
any written reports of or statements of experts who have personally
examined the defendant or any evidence in the particular case, together
with results of physical examinations, scientific tests or experiments,
or comparisons; and
f.
all material or information that tends to mitigate or negate the
defendant's guilt as to the offense charged or that would tend to
reduce the defendant's potential sentence.
4. At
the same time, the prosecutor shall inform the defendant of, and make
available to the defendant for examination and reproduction, any written
or recorded material or information within the prosecutor's control
regarding:
a.
whether there has been any electronic surveillance of any conversation
to which the defendant was a party;
b.
whether an investigative subpoena has been executed in connection
with the case; and
c.
whether the case has involved an informant and, if so, the informant's
identity.
5. Attorney
work product of the Tribal Prosecutor's office is not subject to disclosure
and production.
6. The
Prosecution shall provide written notice of any evidence of other
crimes, wrongs, or acts, that it intends to offer under Rule 404(b)
of the Federal Rules of Evidence, at least two weeks prior to the
close of discovery. The notice shall describe the evidence in sufficient
detail to inform the Defendant of the date, time, place, and witnesses
to the alleged incidents, and shall also state the purpose for which
such evidence shall be offered.
7. The
obligations imposed by this section are continuing.
2.8.5 Disclosure by defendant.
1. At
any time after the filing of a complaint, the defendant, in connection
with the particular offense charged, shall upon written request of
the prosecutor and approval of the court:
a.
appear in a lineup;
b.
speak for identification by witnesses;
c.
be fingerprinted, palm printed, footprinted, or voiceprinted;
d.
pose for photographs not involving reenactment of an event;
e.
try on clothing;
f.
provide handwriting samples;
g.
permit the taking of samples of the defendant's hair, blood, saliva,
urine, or other specified materials that involve no unreasonable
bodily intrusions; and
h.
submit to reasonable physical or medical examination where the examination
does not involve psychological or psychiatric evaluation.
2. Except
as provided in Section (4), not later than the close of discovery
upon request of the prosecution or at another time as the court for
good cause may permit, the defendant or defendant's counsel shall
make available to the prosecutor for testing, examination, or reproduction:
a.
the names, addresses, and statements of all persons, other than
the defendant, whom the defendant may call as witnesses in the defense
case in chief;
b.
the names and addresses of experts whom the defendant may call at
trial, together with the results of their physical examinations,
scientific tests, experiments, or comparisons, including all written
reports and statements made by these experts in connection with
the particular case;
c.
all papers, documents, photographs, and other tangible objects that
the defendant may use at trial.
3.a.
At the close of discovery as set forth in the Pre-Trial Order, or
at a later time as the Court shall so permit, the defendant shall
provide the prosecutor with a written notice of the defendant's intention
to introduce evidence at trial of good character or of any affirmative
defenses.
b.
The notice must specify for each defense the names and addresses
of the persons, other than the defendant, whom the defendant may
call as witnesses in support of the defense, together with all written
reports or statements made by them, including all reports and statements
concerning the results of physical examinations, scientific tests,
experiments, or comparisons, except that the defendant need not
include a privileged report or statement unless the defendant intends
to use the privileged report or statement, or the witness who made
it, at trial.
4. Attorney
work product of defense counsel is not subject to disclosure or production.
5. The
obligations imposed by this section are continuing.
2.8.6 Severance.
1. A
defendant may move for severance of defendants or charges. Such motion
shall be filed at least 10 days prior to trial unless otherwise directed
by the Tribal Court.
2. If
it appears that the defendant is prejudiced by a joinder of related
prosecutions or defendants in a single charge, or by a joinder of
separate charges or defendants for trial, the Tribal Court may order
separate trials, grant a severance of defendants, or provide any other
relief as justice may require.
2.8.7 Notice of alibi.
1. At
the time of the pretrial conference or order, the prosecutor shall
provide a written statement of the time, date, and place at which
the alleged offense was committed.
2. If
a defendant intends to rely upon a defense of alibi, the defendant
will so notify the prosecutor, in writing, within 10 days of receiving
the information required by subsection (1).
3. Defendant's
notice of alibi defense shall state the specific place or places where
the defendant claims to have been at the time of the alleged offense
and the names and addresses of the witnesses the defendant intends
to call to establish such alibi.
2.8.8 Motion for continuance. The defendant or the Tribes may file
a written motion for continuance, or the court may continue the proceedings
on its own motion. If a party so moves less than 10 days before a scheduled
hearing or trial, the Tribal Court may require that the motion be supported
by an affidavit, whether or not the motion is opposed by the adverse
party. This section, however, shall be applied in a manner which insures
criminal cases are tried with due diligence consistent with the rights
of the defendant to a speedy trial.
2.8.9 Pretrial conference.
1. Any
party may move the Tribal Court for one or more conferences to consider
such matters as will promote a fair and expedient trial.
2. In
the interest of justice, the Tribal Court may order a pretrial conference
based on its own motion.
3. At
the conclusion of any pretrial conference, the presiding judge shall
prepare and file a memorandum of the matters agreed upon. No admissions
made by the defendant or defendant's counsel at the conference shall
be used against the defendant unless the admissions are reduced to
writing and signed by the defendant and the defendant's counsel.
4. In
the interest of judicial economy, the Court may Order the parties
to prepare a proposed Pretrial Order, without a pretrial conference,
for the Court's signature.
2.8.10 Pretrial deferral.
1.a.
At any time, the prosecutor and a defendant who has counsel or who
has voluntarily waived counsel may agree to the deferral of a prosecution
for a specified period of time based on one or more of the following
conditions:
i.
that the defendant may not commit any offense;
ii.
that the defendant may not engage in specified activities, conduct,
and associations bearing a relationship to the conduct upon which
the charge against the defendant is based;
iii.
that the defendant shall participate in a supervised rehabilitation
program, which may include treatment, counseling, training, or
education;
iv.
that the defendant shall make restitution in a specified manner
for harm or loss caused by the offense; or
v.
any other reasonable conditions, including voluntary exclusion
from the reservation.
b.
The agreement must be in writing, must be signed by the parties,
and must state that the defendant waives the right to speedy trial
for the period of deferral. The agreement may include stipulations
concerning the admissibility of evidence, specified testimony, or
dispositions if the deferral of the prosecution is terminated and
there is a trial on the charge.
c.
The prosecution must be deferred for the period specified in the
agreement unless there has been a violation of its terms.
d.
The agreement must be terminated and the prosecution automatically
dismissed with prejudice upon expiration and compliance with the
terms of the agreement.
2.8.11 Subpoenas. A Judge of the Tribal Court has the power to
issue subpoenas to compel the attendance of witnesses and the production
of documents either on the Court's own motion or on the request of any
party to a case, which shall bear the signature of the Judge issuing
the subpoena. The subpoenas may direct the attendance of witnesses or
the production of documents or evidence at a specified date, time, and
location. Subpoenas under this section may be issued for purposes of
discovery, for pretrial hearing, or for a trial or post trial proceeding.
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 or her arrest.
2.8.12 Material Witness
1. Warrant.
On motion of the prosecuting authority or the defendant, the court
may issue a warrant, subject to reasonable bail, for the arrest of
a material witness. The warrant shall issue only on a showing, by
affidavit or on the record in open court, that the testimony of the
witness is material and that:
a.
The witness has refused to submit to a deposition ordered by the
court; or
b.
The witness has refused to obey a lawfully issued subpoena; or
c.
It may become impracticable to secure the presence of the witness
by subpoena.
Unless
otherwise ordered by the court, the warrant shall be executed and
returned as in 2.4.4.
2. Hearing.
After the arrest of the witness, the court shall hold a hearing no
later than the next court day after the witness is present in the
county from which the warrant issued. The witness shall be entitled
to be represented by a lawyer.
3. Release/Detention.
Upon a determination that the testimony of the witness is material
and that one of the conditions set forth in section 1 exists, the
court shall set conditions for release of the witness. A material
witness shall be released unless the court determines that the testimony
of such witness cannot be secured adequately by deposition and that
further detention is necessary to prevent a failure of justice. Release
of a material witness may be delayed for a reasonable period of time
until the testimony or deposition of the witness can be taken.
Part 9 - Trial
2.9.1 Right to a jury trial.
1. A
defendant charged with a Class B, Class C, Class D, or Class E offense
has a right to trial by jury of six fair and impartial jurors, unless
the prosecutor, prior to plea, informs the defendant that there shall
be no jail time imposed in the event of a successful prosecution.
2. A
defendant may waive the right to a jury trial in a written voluntary
statement to the Court.
3. A
defendant must maintain contact with his or her counsel. By failing
to maintain contact with counsel, a defendant waives his or her right
to a jury trial.
2.9.2 Time for Trial Priority on the Tribal Court calendar.
1. Prosecutions
against defendants held in custody must be disposed of in advance
of prosecutions against defendants released on bail, unless otherwise
directed by the Tribal Court. Criminal actions take precedence over
civil actions when determining a hearing or trial date.
2. A
defendant not released from jail pending trial shall be brought to
trial not later than 60 days after the date of arraignment. A defendant
released from jail whether or not subjected to conditions of release
pending trial shall be brought to trial not later than 90 days after
the date of arraignment.
3. The
following extensions of time limits apply notwithstanding the provisions
of section 2.
a.
Revocation of Release. A defendant who has been released
from jail pending trial, pursuant to an order imposing conditions
of release, but whose release is then revoked by order of the court,
shall be brought to trial within such a time period that the defendant
spends no more than a total of 60 days in jail following the date
of arraignment, and in any event within such a time period that
the defendant is tried not later than a total of 90 days after the
date of arraignment unless the time period is otherwise extended
by this rule.
b.
Failure To Appear. When a defendant who has already been
arraigned fails to appear for any trial or pretrial proceeding at
which the defendant's presence is required, the defendant shall
be brought to trial not later than 60 days after the date upon which
the defendant is located on the Reservation and the defendant's
presence has been made known to the court on the record, if the
defendant is thereafter detained in jail, or not later than 90 days
after such date if the defendant is not detained in jail whether
or not the defendant is thereafter subjected to conditions of release.
c.
Five-Day Extensions. When a trial is not begun on the date
set because of unavoidable or unforeseen circumstances beyond the
control of the court or the parties, the court, even if the time
for trial has expired, may extend the time within which trial must
be held for no more than 5 days exclusive of Saturdays, Sundays,
or holidays unless the defendant will be substantially prejudiced
in his or her defense. The court must state on the record or in
writing the reasons for the extension. If the nature of the unforeseen
or unavoidable circumstance continues, the court may extend the
time for trial in increments of not to exceed 5 days exclusive of
Saturdays, Sundays, or holidays unless the defendant will be substantially
prejudiced in his or her defense. The court must state on the record
or in writing the reasons for the extension arraigned.
d.
Excluded Periods. The following periods shall be excluded
in computing the time for arraignment and the time for trial: (1)
All proceedings relating to the competency of a defendant to stand
trial, terminating when the court enters a written order finding
the defendant to be competent; (2) Preliminary proceedings and trial
on another charge; (3) The time during which a defendant is detained
in jail or prison by authorities other than the Tulalip tribes and
the time during which a defendant is subjected to conditions of
release not imposed by a court of the Tulalip Tribes; (7) All proceedings
in juvenile court.
e.
Continuances. Continuances or other delays may be granted
as follows: (1) Upon written agreement of the parties which must
be signed by the defendant or all defendants. The agreement shall
be effective when approved by the court on the record or in writing.
(2) On motion of the Tribal prosecutor, the court or a party, the
court may continue the case when required in the administration
of justice and the defendant will not be substantially prejudiced
in the presentation of the defense. The motion must be filed on
or before the date set for trial or the last day of any continuance
or extension granted pursuant to this rule. The court must state
on the record or in writing the reasons for the continuance.
f.
Waiver. A defendant may waive his or her time for trial rights.
A waiver shall be in writing and shall be signed by the defendant.
The waiver shall be to a date certain beyond the current expiration
date as calculated pursuant to this rule or for a period of days
beyond the current expiration date.
2.9.3 Questions of law and fact.
1. Issues
of fact shall be submitted to the jury, unless a defendant has waived
the right to a jury trial. Where there is no jury, issues of fact
shall be submitted to the judge.
All questions
of law must be decided by the judge.
2.9.4 Rules of evidence in criminal cases. Unless otherwise directed
by a specific code provision, the Federal Rules of Evidence apply in
criminal actions. Privileges will be those recognized under Tribal Law.
For purposes of attacking the credibility of a witness under Federal
Evidence Rule 609, evidence of convictions of a crime in Tribal Court
may be admitted if the conviction was for a crime punishable by imprisonment
of 30 days or more.
2.9.5 Trial preparation time. The defendant is entitled to reasonable
time, as determined by the judge and consistent with Section 2.9.2,
to prepare for trial after entering a plea of not guilty.
2.9.6 Burden of proof. A plea of not guilty requires that the prosecution
prove beyond a reasonable doubt that the crime alleged was committed
and that the defendant committed every necessary element of it.
2.9.7 Order of trial.
1. In
a jury trial, after selecting and empaneling the jurors, the Tribal
Court shall state the nature of the charges and generally instruct
the jurors as to their duties.
2. Unless
waived, the prosecution and the defense will be afforded an opportunity
to make an opening statement, prior to the presentation of any evidence
or testimony. The defense may reserve her or his opening statement
until after the prosecution has presented its case in chief.
3. After
presenting the opening statement(s), the prosecution must offer evidence
supporting the allegations contained in the complaint. The defense
shall be given an opportunity to cross-examine any witness called
by the prosecution.
4. After
the prosecution has rested its case, the defense may give any reserved
opening statement and present any defenses or evidence relating to
the allegations contained in the complaint. The prosecution shall
be given an opportunity to cross-examine any witness called by the
defense.
5. Rebuttal
evidence may be presented by the prosecution after the conclusion
of the defense case when appropriate, and, if necessary, surrebuttal
evidence may be offered by the defense.
6. No
new evidence may be presented after the prosecution and the defense
have rested their cases, unless allowed by the judge in the interest
of justice.
7. In
a trial by jury, after the close of evidence and before the closing
statements arguments are given, the instructions on the law of the
case, as submitted in writing by the prosecution and defense shall
be considered singly by the court and each one shall be:
a.
given as requested or proposed by counsel,
b.
refused based on stated grounds, or
c.
given with modification by the judge to the jury.
All instructions
shall be in writing and filed as part of the record.
8. After
the judge reads the instructions to the jury and gives the jury a
copy of the same, the prosecution and the defense may make a closing
argument. The prosecution precedes the defense and may also make a
rebuttal closing argument.
9. The
jury, or the judge if the case is tried without a jury, shall render
a verdict upon the conclusion of the case. If the case is tried to
a judge, the verdict shall set forth the court's findings of fact,
conclusions of law and a judgment of guilty or not guilty. If the
case is tried to a jury, the verdict shall be guilty or not guilty
in accordance with the facts and the jury instructions.
2.9.8 Insufficient evidence. If the Tribal Court determines at
the close of the prosecution's case in chief, or at the conclusion of
the case, that the evidence presented is insufficient to sustain a conviction
for the charged offense or offenses, the Tribal Court may, on its own
motion or on the motion of the defense, dismiss the action and discharge
the defendant. No new trial may be granted unless the judgment of acquittal
is vacated or reversed on appeal.
Part 10 - Juries
2.10.1 Motion to discharge a jury panel.
1. Any
objection to the manner in which the venire has been selected or drawn
shall be raised by motion to discharge the jury. The motion shall
be made at least 7 days prior to the trial date.
2. The
motion shall be made in writing supported by an affidavit which shall
state facts which show that the venire was improperly selected or
drawn.
3. If
the motion states facts which would show that the venire was improperly
selected or drawn, it shall be the duty of the Tribal Court to conduct
a hearing. The burden of proof shall be on the movant.
4. If
the Tribal Court finds that the jury was improperly selected or drawn,
the court shall order the jury discharged and the selection or drawing
of a new jury.
2.10.2 Examination of prospective jurors.
1. After
summoning jurors and before trial, the Clerk of the Court shall notify
the Court and counsel of the names of the members of the jury pool
appearing for selection.
2. In
selecting a jury from among the panel members, the initial questioning
of the jurors shall be conducted by the judge in order to determine
whether each prospective juror is capable of being fair and impartial.
Questions to be asked by the court include whether a panel member:
a.
is directly related to any person involved in the action, including,
but not limited to, the defendant, defense counsel, arresting officer,
alleged victim, or any prospective witness;
b.
is or has been involved in any business, financial, professional,
or personal relationship with a party or alleged victim;
c.
has had any previous involvement in a civil or criminal lawsuit
or dispute with a party or alleged victim;
d.
has a financial or personal interest in the outcome of the action
before the court;
e.
has formed an opinion as to the defendant's guilt; or
f.
has a belief that the punishment fixed by law is too severe for
the offense charged.
3. Any
panel member whom the Tribal Court determines incapable of acting
with impartiality and without prejudice to the rights of either party
shall be excused.
4. After
questioning by the judge, the prosecutor and defendant or defense
counsel may question the jury panel members to determine impartiality.
Either party may question the panel members concerning the nature
of the burden of proof in criminal cases and the presumption of innocence.
The judge may limit the prosecutor's and defendant's or defense counsel's
examination of a panel member when the judge believes such examination
to be improper or when the judge determines that the examination is
or has become unacceptably time consuming.
2.10.3 Challenges.
1. The
prosecution and defense shall have unlimited challenges for cause.
Each challenge must be tried and determined by the Court at the time
the challenge is made.
2. The
prosecution and defense shall each have two peremptory challenges.
When defendants are tried together each additional defendant shall
entitle the prosecution and defense to one additional peremptory challenge
each.
3. All
challenges must be made to the Tribal Court before the jury is sworn.
When a potential challenge for cause is discovered after the jury
is sworn and before the introduction of any evidence, the Tribal Court
may allow a challenge for cause to be made.
2.10.4 Conduct of jury during trial.
1. Once
empaneled, jurors shall be instructed by the judge that it is their
duty not to converse among themselves or with anyone else on any subject
connected with the trial, or to form or express any opinion thereon,
until the issues of the case are finally submitted to them.
2. At
each adjournment recess prior to submission of the case to the jury,
the judge shall instruct the jurors as to whether they may separate
or must remain in the care of the bailiff or other proper officer
of the court.
2.10.5 View of relevant place or property.
1. Upon
request by the prosecution or defense, the Court may allow the jury
to view any place or property deemed pertinent to the just determination
of the case.
2. If
viewing of a place or property is deemed appropriate, the Court shall
place the jury under the custody of the bailiff, or other proper officer
of the court, who shall then transport the jury to the viewing place.
3. The
place or property will be shown to the jury by a person appointed
by the court for that purpose, and the jurors may personally inspect
the same.
4. The
bailiff, or other proper officer of the court, must insure that no
person speaks or otherwise communicates with the jury, on any subject
connected with the trial, while viewing the place or property or traveling
to or from the viewing site.
5. After
the jury has viewed the place or property, the bailiff, or other proper
officer of the court, shall return the jurors to the courtroom without
unnecessary delay or at a specified time, as directed by the court.
2.10.6 Jury instructions.
1. General
instructions may be furnished by the Tribal Court. When either the
defendant or the prosecutor desires a special instruction to be given
to the jury, such proposed instruction shall be reduced to writing,
signed by the party offering the instruction and delivered to the
judge at least 5 days before trial unless a different time is established
by the judge. For good cause shown, the parties may supplement or
withdraw instructions at the close of evidence.
2. All
jury instructions shall adequately inform the jurors of:
a.
which decisions are made by the jury and which by the presiding
judge;
b.
the issues of fact in the case;
c.
the rules of law to be applied to the issues of fact;
d.
the burden of proof with respect to each issue of fact; and
e.
the proof needed to discharge that burden.
3. The
party not offering a proposed instruction shall be allowed reasonable
opportunity to examine the proposed instruction and object to it.
The objection must specifically state on what grounds the instruction
is not an accurate statement of the law or is not an appropriate instruction
for this particular case and, therefore, should not be given.
4. A
dispute regarding a proposed jury instruction must be settled outside
of the jury's presence by the court which may hold a settlement hearing.
5. A
record must be made at a hearing to settle instructions.
6. A
party may not appeal as error any portion of the instructions or omission
from the instructions unless an objection was made specifically stating
the matter objected to, and the grounds for the objection, at the
settlement of instructions or in writing prior to a settlement hearing.
7. The
presence of the defendant is not required during the settlement of
instructions.
8 After
all evidence has been presented, and before closing arguments, the
court shall give both general and specific instructions to the jurors.
9. For
the record, but not for the jury, the court shall mark or endorse
each instruction in such a manner that it shall distinctly appear
what proposed instructions were rejected, what were given in whole
and what were modified, together with the court's reasons for giving
as requested, as modified, or refusing a proposed instruction.
10. All
proposed instructions are part of the court record. All objections
to jury instructions must be noted on the court record, as well as
the Tribal Court's reasons for either giving as requested, as modified,
or refusing a proposed instruction.
2.10.7 Jury deliberations.
1. After
closing arguments, the court shall commit the jury to the care of
a bailiff or other officer of the court who shall keep the jurors
together and prevent communication between the jurors and others.
2. Upon
retiring to deliberate, the jurors shall select a juror as foreperson.
3. After
the jury has retired for deliberation, if there is any disagreement
among the jurors as to the testimony or if the jurors desire to be
informed on any point of law arising in the cause, they shall notify
the bailiff or the officer appointed to keep them together, who shall
then notify the court. The information requested may be given, in
the discretion of the court, after consultation with the parties.
2.10.8 Items that may be taken into jury room. Upon retiring
for deliberation, the jurors may take with them the written jury instructions
read by the court, notes of the proceedings taken by themselves, and
all exhibits that have been received as evidence in the cause that in
the opinion of the court will be necessary.
2.10.9 Activity of the court during jury's absence. While the
jury is absent, the court may adjourn or conduct other business, but
it must be open for every purpose connected with the cause submitted
to the jury until a verdict is returned or the jury discharged.
2.10.10 Form of verdict.
1. The
jury shall return a verdict as instructed by the court and for each
offense charged. The verdict must be unanimous in all criminal actions.
The verdict must be signed by the foreperson and returned by the jury
to the judge in open court.
2. When
two or more defendants are involved in the case before the jury, the
jurors may reach a verdict regarding any one of the defendants. If
the jury cannot agree with respect to all the defendants, the defendant
or defendants as to whom it does not agree may be tried again.
2.10.11 Polling the jury. When a verdict is returned, but before
it is recorded, the jury shall be polled at the request of any party
or upon the court's own motion. If the results of the poll show that
the verdict does not reflect unanimous concurrence by each juror, the
jury may be directed to return for further deliberations or may be discharged
at the court's discretion.
2.10.12 Conviction of lesser included offense.
1. When
it appears to the jury beyond a reasonable doubt that the defendant
has committed an offense but there is reasonable doubt as to whether
he or she is guilty of a given offense or one or more lesser included
offenses as provided in subsections (2), (3), and (4) of this section,
he or she may only be convicted of the greatest included offense about
which there is no reasonable doubt.
2. The
defendant may be found guilty of an offense necessarily included in
the offense charged or of an attempt to commit either the offense
charged or an offense necessarily included in the offense charged.
3. A
lesser included offense instruction must be given when there is a
proper request by one of the parties and the jury, based on the evidence,
could be warranted in finding the defendant guilty of a lesser included
offense.
4. When
a lesser included offense instruction is given, the court shall instruct
the jury that it must reach a verdict on the crime charged before
it may proceed to a lesser included offense. Upon request of the defendant
at the settling of instructions, the court shall instruct the jury
that it may consider the lesser included offense if it is unable after
reasonable effort to reach a verdict on the greater offense.
2.10.13 Discharging jurors.
When the
jury has reached a verdict or has determined that it shall be is unable
to either acquit or find the defendant guilty, even with additional
deliberation, the court shall discharge the jurors from service.
2.10.14 Motion for a new trial.
1. Within
20 days of a guilty verdict, the defendant may file with the court,
and serve upon the prosecution, a written motion for a new trial.
The motion must specify the grounds for a new trial.
2. After
hearing the motion for a new trial, the court may, in the interest
of justice:
a.
deny the motion;
b.
grant a new trial; or
c.
modify or change the verdict or finding by finding the defendant
guilty of a lesser included offense or not guilty.
3. The
granting of a new trial places the parties in the same position as
if there had been no trial.
Part 11 - Sentence and Judgment
2.11.1 Rendering judgment and pronouncing sentence.
1. This
Part controls all sentencing in all circumstances. Changes in Washington
Law do not apply unless expressly adopted by the Board of Directors.
2. The
judgment shall be rendered in open court.
3. If
the verdict or finding is not guilty, judgment shall be rendered immediately
and the defendant shall be discharged from custody or from the obligation
of his or her bail bond.
4a. If
the verdict or finding is guilty, sentence shall be pronounced and
judgment rendered within a reasonable time.
b.
When the sentence is pronounced, the judge shall clearly state for
the record his or her reasons for the sentence imposed.
2.11.2 Sentencing considerations.
1. Sentences
imposed upon those convicted of crime must be based primarily on the
following:
a.
the crime committed;
b.
the prospects of rehabilitation of the offender, including the possible
resources and needs of the offender's dependents, if any;
c.
the circumstances under which the crime was committed;
d.
the criminal history of the offender; and
e.
alternatives to imprisonment of the offender.
f.
the ability of the defendant to pay a fine.
2.11.3 Imposition of sentence.
1. No
sentence shall be imposed until:
a.
the offender and the offender's counsel have had an opportunity
to examine any pre-sentence report and to cross-examine the preparer
of such report on the basis for any sentencing recommendations contained
in the report,
b.
the prosecution and defense have had an opportunity to present evidence,
witnesses, and an argument regarding the appropriateness of a sentencing
option; and
c.
the offender has had the opportunity to speak on his or her own
behalf and to present any information likely to mitigate the pending
sentence.
2. Sentencing
shall be imposed on all offenses pursuant to Tribal law. To the extent
that any Washington statute incorporated into Tribal law provides
a penalty that conflicts with Tribal sentencing law, Tribal sentencing
law will control.
3. An
offender found guilty of an offense may be sentenced to one or more
of the following penalties:
a.
deferred imposition of sentence with reasonable restrictions and
conditions monitored by the Tribal Probation Officer, and with the
following characteristics:
i.
the record of the offense shall be expunged upon satisfactory
performance by the offender of the restrictions and conditions
of deferral for a period not to exceed one year for Class A, Class
B, Class C, and Class D offenses and three years for a Class E
offense, and
ii.
imposition of sentence will occur immediately upon violation of
a restriction or condition of the deferral;
b.
suspended execution of all or part of a sentence for one year for
Class A, Class B, Class C, and Class D offenses and three years
for a Class E offense, with the offender being placed on probation
under reasonable restrictions and conditions for the period of suspension,
and with a violation of a restriction or condition resulting in
execution of the suspended portion of the sentence;
c.
imprisonment for a period of time not to exceed the maximum permitted
for the offense;
d.
a fine in an amount not to exceed the maximum permitted for the
offense;
e.
community service;
f.
any diagnostic, therapeutic, or rehabilitative measures, treatments,
or services deemed appropriate;
g.
restitution to a victim of an offense for which the offender was
convicted; or
h.
a person may be allowed to serve home arrest at the person's expense,
but will not be eligible for parole.
4. The
court may impose any or all of the following restrictions or conditions
as part of a sentence, suspended or otherwise, or a deferred imposition
of sentence, for rehabilitative purposes or to protect the Reservation
community:
a.
prohibiting the offender from owning or carrying a dangerous weapon;
b.
restricting the offender's freedom of movement;
c.
restricting the offender's freedom of association;
d.
requiring the offender, if employed, to remain employed and, if
unemployed, to actively seek employment; and
e.
any requirement or limitation intended to improve the mental or
physical health or marketable skills of the offender.
5. Unless
the Tribal Court otherwise directs in its pronouncement of sentence,
all sentences stemming from offenses occurring in the same transaction
or course of conduct shall run concurrently and not consecutively.
6. Any
monies paid to the Tribes or to the victim of an offense as a result
of this provision shall be paid through the Clerk of Court.
7. Where
the Court in its discretion deems it appropriate, a form of traditional
punishment may be imposed in addition to or in place of any punishment
provided in this Code.
2.11.4 Execution of sentence.
1. If
the offender is sentenced to imprisonment, the court shall deliver
a Detention Order or Judgment outlining the specific requirements
of detention to the Tribal law enforcement officers serving as Tribal
jailers. The offender shall be discharged from custody by the Tribal
law enforcement officers after satisfactorily fulfilling the conditions
of the imposed sentence or upon earlier order of the court.
2. If
judgment is rendered imposing a fine only, the offender must be discharged
after making acceptable arrangements to pay the fine within the period
of time specified by the court. The Tribal Court may also allow the
offender to perform community service to offset any fine or allow
the offender to be imprisoned until the fine is satisfied, applying
$50.00 for every day served, unless a different amount is otherwise
established by Board of Directors. If no such permission is included
in the sentence, the fine shall be paid prior to formal release.
3. If
judgment is rendered imposing both imprisonment and a fine, the offender
shall be discharged after fulfilling the requirements of subsections
(1) and (2) of this section.
4. The
Court may in its discretion grant temporary release from custody under
any conditions the Court deems appropriate.
2.11.5 Restitution.
1. When
restitution is ordered, the court shall specify the amount, method
and payment schedule imposed upon the offender. Before restitution
may be ordered, the defendant shall receive notice of the amount and
terms requested and shall be entitled to a hearing upon his or her
timely request.
2. The
fact that restitution was ordered is not admissible as evidence in
a civil action and has no legal effect on the merits of a civil action.
3. Except
as otherwise provided in this subsection, restitution paid by an offender
to an injured person must be deducted from any monetary award granted
to said injured person in a civil action arising out of the facts
or events which were the basis for the restitution. The court trying
the civil action shall determine the amount of any reduction due to
payment of restitution by an offender under this section. However,
in the event that criminal and civil actions against an offender arising
from the same transaction or events are heard in courts of different
jurisdictions, one of which is the Tribal Court, the Tribal Court
shall adjust offender's payments within its jurisdictional control
for restitution or otherwise to assure that an injured party does
not recover twice for the same harm.
4. An
offender may petition for modification of sentence imposing restitution
and request a hearing on the matter. The injured person shall be given
notice by the offender of any proposed modifications and afforded
an opportunity to be heard on the proposed modification.
2.11.6 Payment of fines and restitution.
1. All
monies collected as the result of a fine imposed by the Tribal Court
shall be paid through the Clerk of Court. Upon receiving the monies,
the Clerk shall:
a.
issue a receipt to the paying person;
b.
credit the account of the offender, noting whether the fine is paid
in full or what balance, if any, remains due; and
c.
transfer the monies to the general fund of the Tribes, unless otherwise
specifically directed by a provision of this Code.
2. All
monies collected for restitution shall be paid through the Clerk of
Court. Upon receiving the monies the Clerk shall:
a.
issue a receipt to the paying person;
b.
credit the account of the offender, noting whether the fine is paid
in full or what balance, if any remains due; and
c.
transfer the monies to the person to whom restitution is to be paid.
2.11.7 Revocation of parole or suspended or deferred sentence.
1. If
a petition requesting revocation has been filed and a revocation hearing
held, the Tribal Court may revoke a defendant's parole or suspension
or deferral of sentence if a preponderance of the evidence shows the
imposed conditions of the parole, or suspension, or deferral of sentence
have been violated.
2. A
petition seeking revocation of a parole or a suspended sentence or
imposition of a sentence previously deferred must be filed during
the period of parole, suspension or deferral, or within 5 days after
the period of parole, suspension, or deferral ends if the offender's
violation of a condition of parole or probation occurred within the
final 48 hours prior to the end of the period. Expiration of a parole
or the time ordered under a suspended or deferred sentence prior to
a hearing for revocation does not deprive the Tribal Court of jurisdiction
to rule on the revocation petition.
3. This
is the exclusive remedy for violation of a condition of parole, or
suspended or deferred sentence.
2.11.8 Dismissal and expungement after deferred sentence. Whenever
the court has deferred the imposition of sentence and after expiration
of the period of deferral and after the defendants successful completion
of any conditions of deferral, upon motion by the court, the defendant,
or the defendant's counsel, the court shall allow the defendant to withdraw
his or her plea of guilty or strike the verdict or judgment expunging
the court records of all record of the proceedings by entering an order
of dismissal of charges and expungement, inscribing each record of the
proceedings with the word "Expunged" and sealing the file.
2.11.9 Failure to pay a fine or restitution.
1. If
a defendant sentenced to pay a fine or restitution fails to make payment
as ordered, the Court or the Prosecutor may move that the offender
show cause why the offender's nonpayment should not be treated as
contempt of court. Notice of a show cause hearing on the contempt
charge shall be served on the offender by law enforcement officers
at least five days prior to the date set for hearing. Notice shall
also be served on the victim if the show cause was issued for failure
to pay restitution.
2. Unless
the offender shows that the nonpayment was not attributable to an
intentional refusal to obey a Tribal Court order or the offender's
failure to make a good faith effort to make the ordered payments,
the Tribal Court may find the offender in contempt and order the person
incarcerated until the fine or restitution is satisfied. Time served
shall be credited against the fine at the rate of $50.00 per day unless
otherwise set by the Board of Directors.
3. If
the Court determines that the offender's nonpayment does not constitute
contempt, the Court may modify the original sentence, judgment, or
order, allowing the offender additional time to pay the fine or restitution
or reducing the amount owed.
2.11.10 Credit for time served. If a defendant has served any
of the defendant's sentence under a commitment based upon a judgment
that is subsequently declared invalid or that is modified during the
term of imprisonment, the time served must be credited against any subsequent
sentence received upon a new commitment for the same criminal act or
acts. This does not include time served pursuant to Section 2.6.10(1)(c).
2.11.11 Credit for incarceration prior to conviction.
1. Any
person incarcerated on a bailable offense and against whom a judgment
of imprisonment is rendered must be allowed credit for each day of
incarceration prior to or after conviction, except that the time allowed
as a credit may not exceed the term of the prison sentence rendered.
This does not include time served pursuant to Section 2.6.10(1)(c).
2. Any
person incarcerated on a bailable offense who does not supply bail
and against whom a fine is levied on conviction of the offense must
be allowed a credit for each day of incarceration prior to conviction,
except that the amount allowed or credited may not exceed the amount
of the fine. The daily rate of credit for incarceration is $50.00
per day unless otherwise set by the Tribal Council. This does not
include time served pursuant to Section 2.6.10(1)(c).
Part 12 - Traffic Infraction Procedures
2.12.1 Notice of traffic infraction.
1. A
law enforcement officer has the authority to issue a notice of traffic
infraction:
a.
When the infraction is committed in the officer's presence;
b.
When the officer is acting upon the request of a law enforcement
officer in whose presence the traffic infraction was committed;
c.
When a law enforcement officer has probable cause to believe that
a person has committed or is committing a violation of any of the
following traffic infraction laws: (i) 3.13.6, relating to driving
a motor vehicle while operator's license is suspended or revoked;
(ii) 3.13.7, relating to operating a motor vehicle in a negligent
manner.
d.
If an officer investigating at the scene of a motor vehicle accident
has reasonable cause to believe that the driver of a motor vehicle
involved in the accident has committed a traffic infraction.
2. The
Tribal Court may issue a notice of traffic infraction upon receipt
of a written statement of the officer that there is reasonable cause
to believe that an infraction was committed.
3. If
any motor vehicle without a driver is found parked, standing, or stopped
in violation of this title or an equivalent administrative regulation
or local law, ordinance, regulation, or resolution, the officer finding
the vehicle shall take its registration number and may take any other
information displayed on the vehicle which may identify its user,
and shall conspicuously affix to the vehicle a notice of traffic infraction.
2.12.2 Response to notice.
1. Any
person who receives a notice of traffic infraction shall respond to
such notice as provided in this section within fifteen days of the
date of the notice.
2. If
the person determined to have committed the infraction does not contest
the determination the person shall respond by completing the appropriate
portion of the notice of infraction and submitting it, either by mail
or in person, to the Tribal Court. A check or money order in the amount
of the penalty prescribed for the infraction must be submitted with
the response. When a response which does not contest the determination
is received, an appropriate order shall be entered in the court's
records.
3. If
the person determined to have committed the infraction wishes to contest
the determination the person shall respond by completing the portion
of the notice of infraction requesting a hearing and submitting it,
either by mail or in person, to the court specified on the notice.
The court shall notify the person in writing of the time, place, and
date of the hearing, and that date shall not be sooner than seven
days from the date of the notice, except by agreement.
4. If
the person determined to have committed the infraction does not contest
the determination but wishes to explain mitigating circumstances surrounding
the infraction the person shall respond by completing the portion
of the notice of infraction requesting a hearing for that purpose
and submitting it, either by mail or in person, to the Tribal Court.
The court shall notify the person in writing of the time, place, and
date of the hearing.
5.a.
In hearings conducted pursuant to subsections (3) and (4) of this
section, the court may defer findings, or in a hearing to explain
mitigating circumstances may defer entry of its order, for up to one
year and impose conditions upon the defendant the court deems appropriate.
Upon deferring findings, the court may assess costs as the court deems
appropriate for administrative processing. If at the end of the deferral
period the defendant has met all conditions and has not been determined
to have committed another traffic infraction, the court may dismiss
the infraction.
b.
A person may not receive more than one deferral within a seven-year
(7) period for traffic infractions for moving violations and more
than one deferral within a seven-year period for traffic infractions
for nonmoving violations.
6. If
any person issued a notice of traffic infraction:
a.
Fails to respond to the notice of traffic infraction as provided
in subsection (2) of this section; or
b.
Fails to appear at a hearing requested pursuant to subsection (3)
or (4) of this section; the court shall enter an appropriate order
assessing the monetary penalty prescribed for the traffic infraction
and any other penalty authorized by this code.
2.12.3 Hearings -Counsel.
1. Any
person subject to proceedings under this chapter may be represented
by counsel, at his or her own expense.
2. The
attorney representing the Tribes may appear in any proceedings under
this chapter but need not appear, notwithstanding any statute or rule
of court to the contrary.
2.12.4 Hearings, Contesting determination that infraction committed,
Appeal.
1. A
hearing held for the purpose of contesting the determination that
an infraction has been committed shall be without a jury.
2. The
court may consider the notice of traffic infraction and any other
written report made under oath submitted by the officer who issued
the notice or whose written statement was the basis for the issuance
of the notice in lieu of the officer's personal appearance at the
hearing. The person named in the notice may subpoena witnesses, including
the officer, in accordance with the procedures in this code, and has
the right to present evidence and examine witnesses present in court.
3. The
burden of proof is upon the Tribes to establish the commission of
the infraction by a preponderance of the evidence.
4. After
consideration of the evidence and argument the court shall determine
whether the infraction was committed. Where it has not been established
that the infraction was committed an order dismissing the notice shall
be entered in the court's records. Where it has been established that
the infraction was committed an appropriate order shall be entered
in the court's records.
2.12.5 Hearings, Explanation of mitigating circumstances.
1. A
hearing held for the purpose of allowing a person to explain mitigating
circumstances surrounding the commission of an infraction shall be
an informal proceeding. The person may not subpoena witnesses. The
determination that an infraction has been committed may not be contested
at a hearing held for the purpose of explaining mitigating circumstances.
2. After
the court has heard the explanation of the circumstances surrounding
the commission of the infraction an appropriate order shall be entered
in the court's records.
3. There
may be no appeal from the court's determination or order.
2.12.6 Monetary penalties.
1. A
person found to have committed a traffic infraction shall be assessed
a monetary penalty in accordance with section 3.13.16 of this Ordinance
or any fine schedule adopted by the Tribal Court.
2. There
shall be a penalty of twenty-five dollars for failure to respond to
a notice of traffic infraction except where the infraction relates
to parking.
3. Whenever
a monetary penalty is imposed by a court under this chapter it is
immediately payable. If the person is unable to pay at that time the
court may, in its discretion, grant an extension of the period in
which the penalty may be paid.
2.12.7 Order of court - Civil nature - Waiver, reduction, suspension
of penalty.
1. An
order entered after the receipt of a response which does not contest
the determination, or after it has been established at a hearing that
the infraction was committed, or after a hearing for the purpose of
explaining mitigating circumstances is civil in nature.
2. The
court may include in the order the imposition of any penalty authorized
by the provisions of this chapter for the commission of an infraction.
The court may, in its discretion, waive, reduce, or suspend the monetary
penalty prescribed for the infraction. At the person's request the
court may order performance of a number of hours of community service
in lieu of a monetary penalty, at the rate of the then minimum wage
per hour.
2.12.8 Presumption regarding stopped, standing, or parked vehicles.
1. In
any traffic infraction case involving a violation of this title or
equivalent administrative regulation or local law, ordinance, regulation,
or resolution relating to the stopping, standing, or parking of a
vehicle, proof that the particular vehicle described in the notice
of traffic infraction was stopping, standing, or parking in violation
of any such provision of this title or an equivalent administrative
regulation or local law, ordinance, regulation, or resolution, together
with proof that the person named in the notice of traffic infraction
was at the time of the violation the registered owner of the vehicle,
shall constitute in evidence a prima facie presumption that the registered
owner of the vehicle was the person who parked or placed the vehicle
at the point where, and for the time during which, the violation occurred.
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