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