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Tulalip Tribes of Washington Codes and Regulations

Amended: 2004



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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