Yankton Sioux Tribal Code
TITLE III - YANKTON SIOUX TRIBE CRIMINAL CODE
Sec. 3-1-1 Interpretation
All of the criminal and penal statutes contained in this Criminal Code are to be construed according to the fair import of their terms, to be consistent with all other provisions of the Law and Order Code, and with a view to effect their objects and to promote justice.
Sec. 3-1-2 Amendments
No amendments shall be made to this Criminal Code by resolution. The only amendment which shall be effective and recognized by the Tribe and Tribal Court shall be that amendment which is made by ordinance pursuant to this Chapter.
Sec. 3-1-3 Reading, Passage and Publication of Amendments
Proposed changes to the amendments must be discussed and voted upon according to the Yankton Sioux Constitution and Bylaws.
Sec. 3-1-4 Publication and Effective Date of Ordinances
Following the adoption of an ordinance under this Chapter, the Secretary of the Business and Claims Committee shall within fifteen (15) days thereafter cause such ordinance to be published in a newspaper designated by the Business and Claims Committee for that purpose. The Secretary shall also, within that same fifteen (15) days period, submit the ordinance to the BIA Agency Superintendent, if BIA approval is required. If BIA approval is not required, the ordinance shall become effective fifteen (15) days after publication. If BIA approval is required, the ordinance shall become effective after completion of the approval process by the Bureau of Indian Affairs.
Sec. 3-1-5 Definition of Terms
Terms used in this Criminal Code, unless the context plainly requires otherwise, means:
1. When applied to the intent with which an act is done or omitted:
A. "Malice, maliciously" and all derivatives thereof import a wish to intentionally vex, annoy, or injure another person;
B. "Intent, intentionally" and all derivatives thereof import a specific design to cause a certain result, or when the material part of a charge is the violation of a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, a specific design to engage in conduct of that nature;
C. "Knowledge, knowingly" and all derivatives thereof import only a knowledge that the facts exist which bring the act or omission within the provisions of any statute. A person has knowledge when she or he is aware that the facts exist which bring the act or omission within the provisions of any statute. It does not require knowledge of the unlawfulness of such act or omission;
2. "Affirmative defense" - an issue involving a defense to which, unless the tribe's evidence raises the issue, the defendant must present some credible evidence to raise the issue. Once the issue is raised, the guilt of the defendant must be established by the Tribe beyond a reasonable doubt as to that defense issue;
3. "Antique firearm" - any firearm manufactured before 1899, and any replica of any firearm described in this section is such replica is not suitable for use as a firearm and is possessed as a curiosity or ornament or collector's item;
4. "Check" - a check, draft, or other commercial device which orders a financial institution to pay a sum certain of money on its presentment;
5. "Concealed" - any firearm that is totally hidden from view;
6. "Consideration" - any type of property or thing of legal value, whether delivered in the past, present, or to be delivered in the future. The term includes an unfulfilled promise to deliver. The term may also include an advantage or benefit to the promisor or a loss or detriment to the promisee. Any amount, advantage, or detriment is sufficient to constitute consideration;
7. "Controlled weapon" - includes a firearm silencer, machine gun, or short shotgun, as those terms are defined in this section;
8. "Dangerous weapon" or "deadly weapon" - any firearm, knife, or device, instrument, material or substance, whether animate or inanimate, which is calculated or designed to inflict death or serious bodily harm, or by the manner in which it is used is likely to inflict death or serious bodily harm;
9. "Deprive" - to take or withhold property of another or to dispose of property of another so as to make it unlikely that the owner will receive it;
10. "Destructive device" - any box, package, contrivance, bomb, grenade, explosive missile, launching device, or an apparatus containing an explosive, flammable, poisonous or other dangerous or harmful weapon or substance which is construed so as to explode, ignite or throw forth its contents after passage of time, when moved, handled, fired, or opened. The term does not include "permissible fireworks": any device (although originally designed for use as a weapon which is redesigned for use as a signaling, safety, or similar device), or any other device which is antique or is a rifle which the owner intends to use solely for sporting or collecting purposes;
11. "Explosive" - any substance that is used for the purpose of detonation and which, upon exposure to any external or internal force or condition, is capable of an instantaneous release of gas and heat. The term does not include "permissible fireworks" as defined in this section;
12. "Firearm" - any weapon from which a projectile may be discharged by gunpowder or propellant that is or may be used in firearm cartridges;
13. "Firearm silencer" - any instrument, attachment, or appliance intended to lessen or muffle the noise of the firing of any firearm;
14. "Family member" - Spouse, children, parents or guardian, or someone cohabitating with a person;
15. "Insanity" - the condition of a person deprived of reason and at the time of committing the act charged against the accused, he/she was incapable of knowing its wrongfulness;
16. "Intoxication" - a disturbance of mental or physical capacities, not a disease or defect in itself, resulting from the introduction of substances into the body;
17. "Law enforcement officer" - an officer or employee of the Tribe or Bureau of Indian Affairs, an officer of the State or any of its political subdivisions with authorization to perform duties within the Reservation, or an officer or employee of the United States, or, while on duty, a security employee who is responsible for the prevention or detection of crime, enforcement of hunting or wildlife laws, or the supervision of criminally charged or convicted persons;
18. "Machine gun" - any firearm that automatically discharges two or more cartridges by a single function of the firing device;
19. "Mental illness" - a substantial psychiatric disorder of thought, mood or behavior which affects a person at the time of the commission of offense and which impairs a person's judgment, but not to the extent that she/he is incapable of knowing the wrongfulness of the act;
20. "Motor vehicle" - an automobile, truck, motorcycle, house trailer, trailer coach, cabin trailer, or any vehicle propelled at least in part by motor power;
21. "Obtain" -
A. In relation to property, to bring about a transfer of a legal interest in the property, whether to the actor or another; or
B. In relation to labor or service, to secure performance thereof;
22. "Occupied structure" - any structure:
A. Which is the permanent or temporary habitation of any person, whether or not any person is actually present;
B. Which at the time is specially adapted for the overnight accommodation of any person, whether or not any person is actually present;
23. "Offense" - a crime, petty offense, or violation of a Tribal ordinance.
24. "Person" - a natural person, association, firm, corporation, organization, partnership or society. When the term is used to designate a party whose property may be the subject of a crime or ordinance, it shall also include the Yankton Sioux Tribe or any of its political subdivisions or agencies;
25. "Permissible fireworks" - Roman candles, skyrockets with sticks, helicopter-type rockets, cylindrical or cone fountains, spinning wheels, illuminating torches and colored fire, sparklers, firecrackers, and salutes with paper casings, novelties, and trick noisemakers, and others as approved for use by the Tribe;
26. "Pistol" - any firearm with a barrel less than sixteen (16) inches in length and which is designed to expel a projectile by the action of an explosive;
27. "Process" - a writ, warrant, summons, or order issued in the course of judicial proceedings;
28. "Property" - anything of value, including but not limited to motor vehicles, real estate, tangible and intangible personal property, contract rights, chooses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power, services, and signatures which purport to create, maintain, or extinguish any legal obligation;
29. "Property of another" - property in which any person other than the actor has an interest upon which the actor is not privileged to infringe, regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of an actor shall not be deemed property of another who has only a security interest herein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement;
30. "Public record" - any official book, paper, or record created, received, or used by or in any office of agency of the Yankton Sioux Tribe, United States Government, State of South Dakota, or any of their political subdivisions, subject to any privacy or confidentiality restrictions;
31. "Receive" - to acquire possession, control, or title, or to lend or borrow on the security of the property;
32. "Short rifle" - a rifle having a barrel less than eighteen (18) inches long or an overall length of less than twenty-eight (28) inches, except for a pistol with a shoulder extension, such as the Thompson Contender;
33. "Short shotgun" - a shotgun having a barrel less than twenty (20) inches long or an overall length of less than twenty-eight (28) inches;
34. "Steal" - to commit any act of theft;
35. "Structure" - any house, apartment, building, barn, outbuilding, warehouse, motor vehicle, watercraft, aircraft, railroad car, truck, trailer, tent, or other edifice, vehicle or shelter, or any portion thereof;
36. "Stun gun" - any battery-powered, electrical device of high voltage and low or no amperage that can disrupt the central nervous system and cause temporary loss of voluntary muscle control;
37. "Tribal employee" - anyone employed by the Yankton Sioux Tribe or any of its political subdivisions, who is not a tribal officer;
38. "Tribal office" - the position held by a tribal officer or employee;
39. "Tribal officer" - an individual who holds a position in tribal government or in any of its political subdivisions, by election or appointment, for a definite period, whose duties are fixed by law or contract, and who is invested with some portion of the sovereign functions of government;
40. "Unoccupied structure" - any structure which is not an occupied structure (See Subsection 22);
41. "Victim" - any natural person against whom the defendant in a criminal prosecution has committed or attempted to commit a crime;
42. "Voluntary intoxication" - intoxication caused by substances that an actor knowingly introduces into his or her body, the result of which may cause intoxication;
Sec. 3-1-6 Acts Constituting a Crime
A crime is an act or omission, other than a petty offense, which is forbidden by law, and to which is annexed, upon conviction, one or more of the following punishments:
1. Imprisonment or detention;
3. Disqualification to hold or enjoy any tribal office of honor, trust, or profit in the Yankton Sioux Nation.
Sec. 3-1-7 Misdemeanor and Petty Offenses Distinguished
Crimes are either a misdemeanor or a petty offense. A misdemeanor is a crime which is or may be punishable by up to one year of imprisonment in a jail or detention in a juvenile detention facility. A petty offense is a crime which is punishable by payment of a fine, but is not punishable by imprisonment or detention.
Sec. 3-1-8 Act Not Deemed Criminal Unless Prohibited by Statute
No act or omission shall be deemed criminal except as is prescribed or authorized by this Title or by some other statute or tribal ordinance.
Sec. 3-1-9 Official Possession of Prohibited Objects Permitted
When the possession of an object is made an offense, a law enforcement officer may not be convicted of that offense if she/he came into and retained possession of that object as part of her/his official duties.
Sec. 3-1-10 Victim or Witness Assistant
The Business and Claims Committee may appoint, a victim or witness assistant in order to assist victims of crime. The Business and Claims Committee shall set compensation for the victim or witness assistant.
CHAPTER II. PARTIES TO CRIME
Sec. 3-2-1 Persons Capable of Committing Crimes
Any person is capable of committing a crime, except those belonging to the following classes:
1. Children under the age of eight (8) years;
2. Children of the age of eight (8) years but under the age of twelve (12) years, in the absence of proof that at the time of the commission of the criminal act they knew its wrongfulness;
3. Persons who committed that act or made the omission charged under a mistake of fact which disproves any criminal intent, but ignorance of the law does not excuse a person from conviction and punishment for its violation; or
4. Persons who committed the criminal act charged without being conscious thereof.
Sec. 3-2-2 Aiding, Abetting or Assisting Criminal Conduct
Any person who, with the intent to promote or facilitate the commission of a crime, aids, abets, advises, or in any other manner assists another person in the planning or commission of a crime, is chargeable and punishable as a principal to said crime.
Sec. 3-2-3 Accessories to Criminal Conduct
A person is an accessory to a crime if, with intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction or punishment of another for the commission of a crime, he or she commits an act or omits to commit an act which renders assistance to the other person. There are no accessories to petty offenses. The term "renders assistance" includes, but is not restricted to, the following:
1. Harbor or conceal the other person;
2. Warn the other person of impending discovery or apprehension, except when done in an effort to bring the other person into compliance with the law;
3. Provide the other person with money, transportation, a weapon, a disguise or any other thing to be used in avoiding discovery or apprehension;
4. Obstruct anyone by force, intimidation, or deception in the performance of any act which might aid in the discovery, apprehension, prosecution, conviction, or punishment of the other person;
5. Conceal, destroy, or alter any physical evidence that might aid in the discovery, apprehension, prosecution, conviction or punishment of the other person.
A violation of this Section is a Class A misdemeanor.
Sec. 3-2-4 Accessory Punishable Though Principal Not Tried or Acquitted
An accessory to commission of a misdemeanor crime may be prosecuted and punished, even if the principal is not prosecuted or was acquitted of any crime.
Sec. 3-2-5 Liability to Punishment for Act Outside Yankton Sioux Nation Which Aids Injury Within the Nation
Any person who, while outside the external boundaries of the Yankton Sioux Nation, causes, aids, or encourages another person to injure any person or property inside the Yankton Sioux Nation by means of any act which is a crime, is liable to punishment under the laws of the Yankton Sioux Nation.
CHAPTER III. ATTEMPTS TO COMMIT CRIME
Sec. 3-3-1 Attempt Defined - Punishment
Any person who attempts to commit a crime and in the attempt does act toward the commission of the crime, but fails, is prevented or intercepted in the perpetration thereof, is punishable where no provision is made by law for the punishment of such attempt, as follows:
1. If the attempted crime is punishable by imprisonment in a state penitentiary, county or tribal jail, the person guilty of such attempt is punishable by imprisonment for a term not exceeding one-half the longest term of imprisonment prescribed upon a conviction of the attempted crime;
2. If the attempted crime is punishable by a fine, the person guilty of such attempt is punishable by a fine not exceeding one-half the largest fine which could be imposed upon a conviction of the attempted crime;
3. If the attempted crime is punishable by imprisonment and by a fine, the person guilty of such attempt is punishable by imprisonment and fine, not exceeding one-half of the longest term of imprisonment and one-half of the largest fine which may be imposed upon a conviction for the attempted crime.
Sec. 3-3-2 Attempt Resulting in Commission of Other Crime
Section 1-3-1 does not protect a person, who, in unsuccessfully attempting to commit a crime, accomplishes commission of another and different crime, whether greater or less in guilt, from suffering the punishment prescribed by law for the crime committed.
CHAPTER IV. DEFENSES
Sec. 3-4-1 Conduct Forced or Under Threat of Force
A person may not be convicted of a crime based upon conduct in which he/she engaged because of the use or threatened use of unlawful force upon such person or another person, which force or threatened use thereof a reasonable person, in such a situation, would not resist.
Sec. 3-4-2 Voluntary Intoxication
No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of having been in such condition.
Sec. 3-4-3 Resistance to Public Offenses Permitted
Any person may lawfully resist the commission of any public offense as follows:
1. A person about to be injured may resist to a degree sufficient to prevent an offense against his or her person or family member, or to prevent an illegal attempt by force to take or injure property in his or her lawful possession;
2. A person may, in aid or defense of another person, resist to a degree sufficient to prevent injury to such other person.
Sec. 3-4-4 Insanity as Affirmative Defense
Insanity is an affirmative to a prosecution for any criminal offense. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the affirmative defense of insanity by clear and convincing evidence.
CHAPTER V. SENTENCES, FINES AND RESTITUTION
Sec. 3-5-1 Misdemeanor Classes and Penalties
Except as otherwise provided by law, misdemeanors are divided into two classes which are distinguished from each other by the following maximum penalties which are authorized upon a finding of guilt:
1. Class A Misdemeanor: One (1) year of imprisonment in a county jail or one thousand dollars ($1,000.00) or both;
2. Class B Misdemeanor: Thirty (30) days imprisonment in a county jail or two hundred dollars ($200.00), or both;
Every offense declared to be a misdemeanor and not otherwise classified, it a Class A misdemeanor. If the defendant is willing to work during the period of incarceration, the Court may, in its discretion, grant work release under any terms and conditions which the Court may wish to impose.
In the event that a fine is imposed by the Court and the Defendant is unable to pay the fine, the Court, in its discretion, may order the fine be served out in jail at the rate of ten dollars ($10.00) per day.
In imposing sentence on a defendant who has been found guilty of a misdemeanor, the Court may also order that the following civil rights or privileges be forfeited or suspended:
1. Possess a weapon;
2. Drive or operate a motor vehicle, aircraft or watercraft.
Sec. 3-5-2 Restitution
In imposing a sentence on a defendant who has been found guilty of a misdemeanor, the Court may order, in addition to the penalty imposed, that the defendant make restitution to any victim in accordance with the provisions of this Title 2.
Sec. 3-5-3 Concurrent or Consecutive Sentences Authorized
If a defendant has been found guilty of two or more offenses, regardless of when the offenses were committed, a court may order that:
1. Imprisonment of the subsequent conviction or sentence may run concurrently with the imprisonment or any prior conviction or sentence, or
2. Imprisonment on the subsequent conviction or sentence may commence at the expiration of the imprisonment upon any other offense.
CHAPTER VI. RIOT AND UNLAWFUL ASSEMBLY
Sec. 3-6-1 Riot
Any person who:
1. When acting together with two or more persons, without authority of law, uses force or violence or any threat to use force or violence if accompanied by immediate power of execution; or
2. Knowingly or recklessly creates a substantial risk of causing public alarm by engaging in threatening or violet conduct is guilty of riot.
Riot is a Class A misdemeanor.
Sec. 3-6-2 Encouraging or Soliciting Riot
Any person who participates in a riot, or who directs, advises, encourages or solicits other persons who participate in riot to acts of force or violence is guilty of a Class A misdemeanor.
Sec. 3-6-3 Unlawful Assembly
Any person who assembles with two or more persons for the purpose of engaging in conduct constituting riot or who, if being present at an assembly that either has or develops such a purpose, remains there with intent to advance that purpose, is guilty of unlawful assembly.
Unlawful assembly is a Class B misdemeanor.
Sec. 3-6-4 Refusal to Disperse
Any person who willfully fails to obey an order to move, disperse, leave the immediate vicinity or refrain from specified activities, when the order is given by a law enforcement officer or fire fighter at the scene of a riot, fire, or other public disorder or when given in the course of executing or enforcing the law or in the course of investigating the scene of an accident, fire, crime, or suspected fire or criminal activity, is guilty of failure to disperse.
Failure to disperse is a Class B misdemeanor.
CHAPTER VII. OBSTRUCTION OF THE ADMINISTRATION OF GOVERNMENT
Sec. 3-7-1 Resisting Execution or Service of Process
Any person who resists the execution or service of any legal process is guilty of a Class B misdemeanor.
Sec. 3-7-2 Obstructing Law Enforcement Officer, Jailer, or Fire Fighter
Except as provided in Sections 1-7-3 and 1-7-4, any person who by threatening to use violence, force or physical interference or obstacle, intentionally obstructs, impairs or hinders the enforcement of the criminal laws or the preservation of the peace by a law enforcement officer or jailer acting under color of official authority, or intentionally obstructs, impairs or hinders the prevention, control or abatement of fire by a fire fighter acting under color or official authority, is guilty of obstructing a law enforcement officer or jailer or fire fighter, which is a Class A misdemeanor.
Sec. 3-7-3 Resisting Arrest
Any person who intentionally prevents or attempts to prevent a law enforcement officer or jailer, who is acting under color of authority, from effecting an arrest of the actor or another, by:
1. Threatening to use physical force or violence; or
2. Using any other means which creates a substantial risk of causing physical injury to any person is guilty of resisting arrest.
Resisting arrest is a Class A misdemeanor.
Sec. 3-7-4 Unlawful Arrest No Defense
It is no defense to a prosecution under 1-7-3 that the law enforcement officer or jailer was attempting to make an arrest which in fact was unlawful, if he/she was acting under color of official authority and in attempting to make the arrest, was not resorting to unreasonable or excessive force giving rise to the right of self-defense.
Sec. 3-7-5 Illegality of Officer's or Jailer's Acts No Defense
It is no defense to a prosecution under 1-7-2 that the law enforcement officer or jailer was acting in an illegal manner, if he/she was acting under color of official authority as defined in 1-7-4.
Sec. 3-7-6 Impersonation of Officer Causing Injury or Fraud
Any person who intentionally impersonates any public officer or employee or person having special authority by law to perform any act affecting the rights or interests of any other person, or assumes without authority, any uniform or badge by which such officer, employee or person is often distinguished, is guilty of a Class B misdemeanor.
Sec. 3-7-7 False Reporting to Authorities
Any person who:
1. Knowingly causes a false fire or other emergency alarm to be transmitted to any fire department, ambulance service, or other government agency which deals with emergencies involving danger to life or property;
2. Makes a report or intentionally causes transmission of a report to law enforcement authorities of a crime or other incident within their official concern, when the actor knows that information in the report is false, is guilty of a Class B misdemeanor.
Sec. 3-7-8 False Fire Alarm
Any person who intentionally gives any false alarm of fire, by any means, and bodily injury or death is sustained, is guilty of a Class A misdemeanor.
Sec. 3-7-9 Compounding
Any person who accepts, or offers or agrees to accept any pecuniary benefit as consideration for:
1. Refraining from seeking prosecution of an offender; or
2. Refraining from reporting to law enforcement authorities the commission or suspected commission of any crime or information relating to a crime is guilty of compounding. Compounding is a Class A misdemeanor.
However, it is an affirmative defense to prosecution for compounding, that the benefit offered or received by the defendant did not exceed an amount which the defendant reasonably believed to be due as a restitution or indemnification for harm caused by the crime.
Sec. 3-7-10 Misprision of Crime
Any person who, having knowledge which is not privileged, of the commission of a crime, conceals the same, or does not immediately disclose such crime, with the name of the perpetrator thereof and all the facts in relation thereto, to the proper authorities is guilty of misprision of a crime. Misprision of a crime is a Class B misdemeanor. There is not misprision of petty offenses.
Sec. 3-7-11 Threatening or Intimidating Judicial Officer
Any person who directly or indirectly utters or addresses any threat or intimidation to any judicial officer, juror or any other person authorized by law to hear or determine any controversy, with intent to induce him either to do any act not authorized by law or to omit or delay the performance of any duty authorized by law, or for having performed any duty authorized by law, is guilty of a Class A misdemeanor. A "judicial officer" includes any judge, justice of the peace, clerk of court, referee, arbitrator, or hearing officer.
Sec. 3-7-12 Threatening Person Who has Served as Juror
Any person who, directly or indirectly, threatens or intimidates any person who has served as a juror, because of such juror's jury service is guilty of a Class A misdemeanor.
Sec. 3-7-13 Threatening Tribal Officer
Any person who knowingly and intentionally makes any threat to take the life of or to inflict bodily harm upon a tribal officer is guilty of a Class A misdemeanor.
Sec. 3-7-14 Tampering With a Witness
Any person who threatens to injure any witness or prospective witness or member of such person's family, or the property of such person, or with intent to influence the witness or prospective witness, offers, confers or agrees to confer a benefit on such person in a legal proceeding or prospective legal proceeding, in order to induce the witness to:
1. Testify falsely;
2. Withhold any testimony, information, document or thing;
3. Elude legal process summoning him/her to testify or supply evidence; or
4. Absent him or herself from a legal proceeding is guilty of tampering with a witness.
Tampering with a Witness is a Class A misdemeanor.
Sec. 3-7-15 Solicitations and Agreements by Witnesses
A witness or prospective witness in a legal proceeding or prospective legal proceeding, who knowingly solicits, accepts or agrees to accept any benefit upon the representation or understanding that he/she will do any thing specified in subdivisions (1) to (4) of 1-7-16, is guilty of a Class A misdemeanor.
Sec. 3-7-16 Attempt to Influence Juror of Judicial Officer
Any person who attempts to influence a juror or any person drawn as a potential juror, in respect to his/her verdict in any pending case, except by means of communication had with him/her in the regular course of proceedings upon the trial of the cause, is guilty of a Class A misdemeanor.
Sec. 3-7-17 Agreement to Give Particular Verdict
Any juror or person drawn as a potential juror, or judicial officer, who makes any promise or agreement to give a verdict for or against any party is guilty of a Class A misdemeanor.
Sec. 3-7-18 Forged or Fraudulent Evidence
Any person who prepares for use, or actually uses, in any trial, proceeding, inquiry or investigation authorized by law, any tangible object, book, paper, document, record or other instrument in writing, knowing the same to have been forged or fraudulently altered, is guilty of a Class A misdemeanor.
Sec. 3-7-19 Falsification of Public Record
Any person who knowingly makes a false entry in, or falsely alters any public record, is guilty of a Class B misdemeanor, except when such action is done by a public officer or tribal employee having custody of or access to the record, then it is a Class A misdemeanor.
Sec. 3-7-20 Destruction or Impairment of Public Record
Any person who, knowing he/she lacks the authority to do so, intentionally destroys, mutilates, conceals, removes, or impairs the availability of any public record is guilty of a Class A misdemeanor.
Sec. 3-7-21 Alteration or Removal of Serial Number--Possession of Property with Altered Serial Number
Any person who, without consent of the owner, intentionally alters or removes a serial number or other identifying mark on personal property, or who knowingly possesses any personal property having a serial number of identifying mark which has been intentionally altered or removed, when such serial number or identifying mark may be used to determine ownership of such personal property is guilty of a Class A misdemeanor.
CHAPTER VIII. ESCAPES AND RELATED CRIMES
Sec. 3-8-1 Escape and Definition of Terms
It is unlawful for a prisoner to escape.
The term "prisoner" includes every person who is in custody by being convicted, under arrest or detention by a law enforcement officer, or is under process of law issued by a court of competent jurisdiction. At the time of an escape, the prisoner need not be in a place designated for the keeping of prisoners.
The term "escape" includes departure without lawful authority or a failure to return to custody following a temporary leave granted for a specific or limited purpose. A person who is on bail or work release, is under parole, or is on probation is in legal custody at all times.
Escape is a Class A misdemeanor. If a person escapes while serving a prior sentence on imprisonment, the sentence on conviction of escape shall commence immediately subsequent to the expiration of the term of the last of such prior sentence of imprisonment.
Sec. 3-8-2 Pursuit of Escaped Prisoner
If a prisoner escapes, a Yankton Sioux Tribal or BIA law enforcement officer may immediately pursue and retake the prisoner at any time and in any place within the external boundaries of the Yankton Sioux Nation. To retake a prisoner, the pursuing officer may, after giving notice of intention to gain admittance and a refusal thereto, break open an outer or inner door or window of a dwelling, house, building, car, or other structure.
Sec. 3-8-3 Providing Contraband to Prisoner
Any person who knowingly provides contraband to a prisoner is guilty of a Class A misdemeanor. The term "contraband," for purposes of this Chapter, includes alcoholic beverages, drugs or other controlled substances, weapons, firearms, any implement which could aid a prisoner to escape, or any other thing which the actor knows the detainee can't possess under the terms of the prisoner's custody.
CHAPTER IX. ABUSE OF JUDICIAL PROCESS
Sec. 3-9-1 Barratry
Barratry is the act of maliciously causing a groundless judicial proceeding. Barratry is a Class A misdemeanor.
Sec. 3-9-2 Malicious Executive of Search Warrant
Any person who maliciously, and without probable cause, procures a search warrant to be issued and executed is guilty of a Class A misdemeanor.
Sec. 3-9-3 Uttering Simulated Process
Any person who without legal authority and for the purpose of obtaining anything of value, shall create or circulate or offer for sale, any letter, paper, document, notice of intent to bring suit or other notice or demand which simulates a form of court or legal process or any official demand, notice or other paper of a federal, state or tribal agency, the intention of which is to lead the recipient to believe the same to be a genuine court or legal process or official demand, is guilty of a Class A misdemeanor.
Sec. 3-9-4 Arrest or Seizure of Person or Property Without Process
Any public or private person who, without due and legal authority, detains or arrests another person, or seizes or levies upon any property of another person, is guilty of a Class A misdemeanor.
CHAPTER X. IMPROPRIETIES AND BRIBERY IN TRIBAL OFFICE
Sec. 3-10-1 Bribery of Tribal Officer
Any person who gives or offers to give a bribe, or who attempts, by menace, deceit, suppression of the truth to any other corrupt means, in order to influence a tribal officer or employee with respect to any act or omission to act, decision, vote, opinion or other official duty for which the tribal officer or employee is responsible, is guilty of a Class A misdemeanor.
Sec. 3-10-2 Solicitation of Bribe by Tribal Officer
Any tribal officer or employee who asks for, receives, or agrees to receive a bribe with the understanding that his or her official vote, opinion, judgment, or act or omission to act will be influenced thereby, is guilty of a Class A misdemeanor, conviction for said offense shall be grounds for immediate forfeiture of his or her position.
It is an affirmative defense to a charge under this section that fees or consideration received or requested by the tribal official or employee were authorized by law or required to be collected by law.
Sec. 3-10-3 Unlawful Assumption of Office
Any person who gives or offers to give, any gratuity or reward in consideration that he or she shall be appointed to any tribal office or job, or shall be permitted to exercise, perform or discharge the prerogatives or duties of any tribal office or job is guilty of a Class A misdemeanor.
Sec. 3-10-4 Inability No Defense
It is no defense to prosecution under this Chapter that the person soliciting a bribe or the person sought to be influenced, was not qualified to act in the desired objective or the purported manner because such person had not yet assumed office, lacked authority, the objective was impossible to achieve, or for any other reason.
CHAPTER XI. WEAPONS AND DESTRUCTIVE DEVICES
Sec. 3-11-1 Spring Guns or Trip Devices
It is unlawful for any person to set up, or permit to be placed on his or her premises, a mechanism designed to activate a weapon or destructive device upon being tripped or approached. A violation of this section is a Class A misdemeanor.
Sec. 3-11-2 Possession of Controlled Weapon
Any person who knowingly possesses a controlled weapon is guilty of a Class A misdemeanor. This section does not apply to the following persons, who may lawfully possess a controlled weapon within the Yankton Sioux Nation:
1. A law enforcement officer acting in the lawful discharge of his or her duties;
2. A member of the Armed Forces of the United States or South Dakota National Guard who also has permission to be in the Yankton Sioux Nation;
3. A person who has a valid tribal license issued pursuant to law for such weapon or has registered such weapon with the proper federal authorities pursuant to law; or
4. Possesses a controlled weapon under circumstances which negate any likelihood that the weapon would be used unlawfully.
Sec. 3-11-3 Carrying Concealed Weapon
Any person, other than a law enforcement officer engaged in the discharge of his/her duties, who without an appropriate tribal license, carries a loaded or unloaded weapon concealed about his/her person, is guilty of a Class B crime.
Sec. 3-11-4 Sale, Transportation, Possession or Placement of a Destructive Device
Any person who knowingly sells, offers for sale, transports or possesses any destructive device, or who places a destructive device in any location which is calculated to endanger health, life or property, is guilty of a Class A misdemeanor. This section shall not apply to:
1. Any tribal law enforcement officer acting in the lawful discharge of his/her duties;
2. Any member of the Armed Forces of the United States or South Dakota National Guard who also has permission from the Yankton Sioux Nation to discharge his/her duties within the Nation; or
3. Any person who possesses a valid seller's or user's permit issued by the United States government for explosive or destructive devices.
Sec. 3-11-5 Unauthorized Possession of Substances With Intent to Make Destructive Device
Any person who, without first obtaining a permit from lawful authorities, possesses any substance or material with the intent to make a destructive device is guilty of a Class A crime.
Sec. 3-11-6 Possession of Firearm with Altered Serial Number
Any person who possesses any firearm on which the manufacturer's serial number has been changed, altered, removed or obliterated is guilty of a Class A crime.
Sec. 3-11-7 Discharge of Weapon in Public
Any person who willfully or recklessly discharges a firearm, air gun, bow and arrow, or other weapon in any public place, or in any place where a person is likely to be endangered thereby, is guilty of a Class A crime.
Sec. 3-11-8 Possession of Weapon of Destructive Device by Felon
Any person, who has been convicted in the Courts of the United States or any State or who has been convicted in a Tribal Court of any offense which would otherwise constitute a felony in any federal or state court, who has possession of or under his or her control a weapon or destructive device, is guilty of a Class A misdemeanor.
Sec. 3-11-9 Possession of Weapon by Intoxicated Person
Any person who is under the influence of an alcoholic beverage, controlled substance, or any other intoxicating medicine or substance, who has possession of or under his or her control a weapon or destructive device, is guilty of a Class A misdemeanor.
Sec. 3-11-10 Possession of Weapon by Minor
No person under the age of 18 years may possess or own a weapon without the consent of his or her parent or guardian and a license issued by the Yankton Sioux Nation. A violation of this section is a Class A misdemeanor.
Sec. 3-11-11 Antique Weapon and Weapons or Devices Incapable of Discharge Exempt
This Chapter does not apply to antique weapons or devices which have been permanently altered so that they are totally incapable of being discharged.
Sec. 3-11-12 Forfeiture of Weapon or Destructive Device
Any controlled weapon, destructive device, or substance used or possessed in violation of this Chapter shall be forfeited to the Tribe. The Tribe may order that the forfeited property be destroyed, sold, or kept for lawful use by Tribal law enforcement officers. Proceeds from a sale of such forfeited property shall go to building or funding the maintenance of a tribal jail or a juvenile detention facility. The Tribe shall also cancel any weapons or destructive devices permits which may have been issued on such weapon or destructive device.
Sec. 3-11-13 Licenses
For the sole purpose of carrying a weapon for hunting, the Chairman of the Tribe, with the approval of the chief of police of the Yankton Sioux Tribe or the chief of police of the Yankton BIA law enforcement, may issue a license to a person under the age of 18 but of the age of at least 14 years. The fee for the issuance of said license shall be $ 50.00. Said permit shall be effective through age 17.
The Tribe, with the approval of the Chief Judge and the chief of police of the Tribe or Yankton BIA law enforcement, may issue a license to a person to carry a pistol concealed on or about his person within the external boundaries of the Yankton Sioux Nation for a period of not more than one year from the date of issue, if it appears that the applicant has good cause to fear an injury to his/her person, family or property and that he/she is a suitable person to be so licensed. The Tribe will maintain a record of written applications for said licenses and each applicant will subscribe an oath before the acting chief law enforcement officer that the statements made in the application are true. The fee for issuing such license shall be $50.00.
CHAPTER XII. KIDNAPPING AND RELATED OFFENSES
Sec. 3-12-1 Kidnapping
Any person who shall seize, confine, decoy, abduct or carry away any person and hold or detain such person, except in the case of an unmarried minor by a parent or guardian thereof, for any of the following reasons is guilty of kidnapping:
1. To hold for ransom or reward, or as a shield or hostage;
2. To facilitate the commission of any crime or flight or apprehension thereafter;
3. To inflict bodily injury or to terrorize the victim or another person;
4. To interfere with the performance of any Tribal, governmental, political or religious function.
Kidnapping is a Class A misdemeanor.
Sec. 3-12-2 Custodial Interference
Any person, whether or not the parent of guardian of the minor child involved, is guilty of custodial interference if:
1. At that time and place, he or she has no legal right of custody or of visitation with a minor child and takes, entices, conceals or detains the child from any person having lawful custody of said child;
2. He/she has actual physical custody of a minor child pursuant to a judicial decree of a Court of competent jurisdiction which has granted to another person visitation or custody rights, and without legal cause, detains or conceals said child with the intent to deprive said other person of lawful visitation or custody rights; or
3. He/she, without legal cause, takes, entices, conceals or detains an incompetent or other person, who has been placed with or committed by lawful authority to the custody of a third person or institution, from said third person or institution knowing he/she has no legal right to do so.
Custodial interference is a Class A misdemeanor.
Sec. 3-12-3 Taking or Enticing Away an Unmarried Minor Child
Any parent who takes or entices away an unmarried minor child from the custody or visitation of the other parent or guardian in violation of a custody or visitation determination issued by the Yankton Sioux Tribal Court, and who the, without consent, causes said child to be removed from the Yankton Sioux Nation is guilty of a Class A crime. Any expenses incurred by the Tribe or other governmental unit in obtaining the return of the child shall be charged against the person who is found guilty of this section.
CHAPTER XIII. SEX OFFENSES
Sec. 3-13-1 Rape
Rape is an act of sexual penetration accomplished with any person under any one or more of the following circumstances:
1. Through the use of force, coercion or threats of immediate and bodily harm against the victims or other persons within the victim's presence, accompanied by apparent power of execution; or
2. Where the victim is the spouse of the actor, and at the time of the act, the actor and the spouse were not cohabiting or were legally separated, and a complaint to law enforcement is made within 30 days of the act; or
3. Where the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or
4. Where the victim is incapable of giving consent because of any intoxicating, narcotic or anesthetic agent or hypnosis; or
5. Where the victim is less than sixteen years of age.
Rape is a Class A misdemeanor. A charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes age twenty-one or within seven years of commission of the crime, whichever is longer.
Sec. 3-13-2 Sexual Contact with a Minor
Any person, aged sixteen years or older, who knowingly engages in sexual contact with a person, other than his/her spouse, under the age of sixteen (16) years is guilty of a Class A misdemeanor.
Sec. 3-13-3 Sexual Exploitation of Children
Any person who:
1. Causes, performs or knowingly permits the photographing or filming of a minor under the age of sixteen (16) years to engage in a prohibited sexual act or in the simulation of such act; or
2. Knowingly sells, displays, exhibits, distributes or possesses any book, magazine, pamphlet, slide, photograph or film depicting a minor under the age of sixteen (16) years engaging in a prohibited sexual act or in the simulation of such act; is guilty of a Class A misdemeanor. An exception to this section exists to the selling, lending, distributing, exhibiting, showing, possessing or making of films, photographs or other materials involving only nudity, if such material is made for and has an obvious serious medical, scientific, educational, literary or artistic value.
Sec. 3-13-4 Definitions
The following terms used in the Chapter are defined as follows:
1. "Penetration," an act, however slight, of vaginal or anal intercourse, cunnilingus, fellatio, or any intrusion, however slight, of any part of the body or of any object into the genital or anal opening of another person's body, except for:
A. A person acting pursuant to a recognized diagnostic practice of the healing arts or a recognized medical form of treatment, or
B. A practitioner of the healing arts who is lawfully practicing within the scope of such person's practice.
2. "Sexual contact," any touching, not amounting to rape, of the breast of the female or the genitalia or anus of any person with the intent to arouse or gratify the sexual desire of either party.
3. "Prohibited sexual act," as used in section 3 of this Chapter means vaginal or anal intercourse, incest, fellatio, cunnilingus, masturbation, bestiality, sadism, masochism, or any other sexual activity which is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.
Sec. 3-13-5 Indecent Exposure
A person who exposes his or her genitals to public view with the intent to arouse or gratify the sexual desires of any person.
Indecent exposure is a Class B misdemeanor.
Sec. 3-13-6 Incest
Any person who knowingly engages in sexual penetration or contact with another person who is an ancestor or descendent, step-parent, step-child, brother, sister, aunt, uncle, nephew, niece or first cousin, any of which are either whole or half blood, and without regard to legitimacy or adoption. A charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes age twenty-one (21) or within seven years of the commission of the offense, whichever is longer.
Incest is a Class A misdemeanor.
Sec. 3-13-7 Knowledge of Age of Victim Irrelevant
Whenever an element of any crime in this Chapter depends upon the age of the victim being less than sixteen (16) years, it is no defense that the perpetrator did not know the minor's actual age.
CHAPTER XIV. ASSAULTS
Sec. 3-14-1 Simple Assault
A person who:
1. Attempts to cause bodily injury to another; or
2. Negligently causes bodily injury to another with a dangerous weapon; or
3. Attempts by physical menace to put another in fear of imminent bodily harm, whether or not such harm actually occurs; or
4. Attempts to cause bodily injury to another which does not result in serious bodily injury, bruising cuts or scrapes more than superficial, or more than very minor bleeding is guilty of simple assault which is a Class B misdemeanor.
Sec. 3-14-2 Aggravated Assault
A person who:
1. Attempts to cause or causes serious bodily injury under circumstances manifesting extreme indifference to the value of human life; or
2. Attempts to cause or causes bodily injury to another with a dangerous weapon; or
3. Attempts to cause or causes any bodily injury to a law enforcement officer, judge, tribal prosecutor or tribal defender, or other public officer of the Yankton Sioux Tribe engaged in the performance of his or her duties; or
4. Attempts by physical menace with a deadly weapon to put another in fear of imminent bodily harm; or
5. Intentionally causes serious bodily injury or bruising, cuts or scrapes more than superficial, or the loss of more than a very minor amount of blood; is guilty of aggravated assault, which is a Class A misdemeanor.
Sec. 3-14-3 Justifiable Force
To use or attempt or offer to use a reasonable amount of force is not unlawful when:
1. Such force is exerted upon or toward another person by a law enforcement officer in the performance of any legal duty or by any other person assisting such law enforcement officer or officer or acting by his or her direction
2. Such force is exerted upon or toward another person when necessarily committed by any person in detaining or arresting one who has committed a Class A misdemeanor;
3. Such force is exerted upon or toward another person by a person about to be injured or by another person in his or her aid or defense, or in preventing or attempting to prevent a crime against his or her person or any trespass or unlawful interference with real or personal property lawfully possessed;
4. Such force is exerted upon or toward another person by a parent, guardian, teacher or other school official in the exercise of a lawful authority to restrain or correct his or her child or ward, provided the restraint or correction has been rendered necessary by the misconduct of such child or ward and the force used is moderate in degree.
A reasonable amount of force is the amount of force which is minimally sufficient to prevent the injury, Class A misdemeanor, trespass or interference with property, restraint or correction of a child discussed herein.
CHAPTER XV. DISORDERLY CONDUCT AND PUBLIC NUISANCES
Sec. 3-15-1 Disorderly Conduct
A person is guilty of disorderly conduct if he or she engages in acts which cause public inconvenience, annoyance or alarm or recklessly creates a risk thereof. Said acts include:
1. Engaging in fighting or threatening, or in violent or tumultuous behavior;
2. Making unreasonable noise or offensively coarse utterance, gesture or display, or addressing abusive language to any person present;
3. Invading the privacy of another by looking into any window, door or other aperture of an occupied structure;
4. Committing any other act of public indecency or immorality; or
5. Creating a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor. The term "public" means affecting or likely to affect persons in a place to which the public has access; among the places included are highways, schools, jails, tribally-owned housing areas, apartments, or any other neighborhood.
CHAPTER XVI. ARSON AND RELATED OFFENSES
Sec. 3-16-1 Arson
Any person who shall intentionally and without proper authority set fire to or burn or cause to be burned any occupied structure or any other real or personal property of another; or any real or personal property for the purpose of defrauding an insurer, shall be guilty of a Class A misdemeanor.
CHAPTER XVII. BURGLARY AND RELATED OFFENSES
Sec. 3-17-1 Burglary
Any person who enters or remains in an occupied structure with intent to commit any crime is guilty of a Class A misdemeanor.
Sec. 3-17-2 Possession of Burglary Tools or Weapons
Any person who has in his or her possession any weapon or instrument that could be used in the commission of a burglary, with the intent to commit a burglary, is guilty of a Class B misdemeanor.
CHAPTER XVIII. TRESPASS AND UNLAWFUL OCCUPANCY
Sec. 3-18-1 Trespass
Any person who shall enter or remain in any place without the proper authority to do so, and who shall refuse to go immediately therefrom on the request of the owner or occupant; or who shall willfully and knowingly allow livestock to occupy or graze on the real property of another, shall be guilty of a Class B misdemeanor.
Sec. 3-18-2 Unlawful Occupancy
Any person who, knowing that he or she is not privileged to do so, enters or remains in any building or structure, is guilty of a Class A misdemeanor.
CHAPTER XIX. ROBBERY
Sec. 3-19-1 Robbery
Any person who, through the use of force, fear or intimidation, shall intentionally take the property of another shall be guilty of a Class A misdemeanor.
CHAPTER XX. THEFT
Sec. 3-20-1 Theft
Any person who takes, or exercises control over the property of another, without lawful claim or right, shall be guilty of a Class A misdemeanor.
CHAPTER XXI. INVASION OF PRIVACY AND STALKING
Sec. 3-21-1 Stalking
Any person who willfully, maliciously, and repeatedly follows or harasses another person or who makes a credible threat to another person with the intent to place that person in reasonable fear of death or serious bodily injury is guilty of a Class A misdemeanor.
Sec. 3-21-2 Definitions
The following definitions shall apply to this Chapter:
1. "Harass" means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.
2. "Course of conduct" means a pattern of conduct over a period of time, however short, evidencing a continuity of purpose.
3. "Credible threat" means a threat made with the intent and apparent ability to carry out the threat. The threat need not be verbal.
Sec. 3-21-3 Order of Protection
Upon the filing of a complaint under this Chapter, the victim shall immediately be issued an Order of Protection from the actor named in the complaint.
CHAPTER XXII. VANDALISM, MALICIOUS MISCHIEF AND INJURY TO PROPERTY
Sec. 3-22-1 Vandalism
Any person who defaces or causes a detrimental change in the appearance of any property of another shall be guilty of a Class B misdemeanor.
Sec. 3-22-2 Malicious Mischief
Any person who maliciously disturbs, injures, or destroys any property of another shall be guilty of a Class B misdemeanor.
Sec. 3-22-3 Injury to Property
Any person who, without proper authority, uses or injures the property of another shall be guilty of a Class B misdemeanor.
CHAPTER XXIII. FORGERY AND COUNTERFEITING
Sec. 3-23-1 Forgery
Any person who, with intent to defraud, falsely signs, executes or alters any written instrument shall be guilty of a Class A misdemeanor.
CHAPTER XXIV. MISREPRESENTATION (reserved)
CHAPTER XXV. ILLEGAL POSSESSION OR SALE OF TRUST PROPERTY (reserved)
CHAPTER XXVI. BAD CHECKS
Sec. 3-26-1 Insufficient Funds in Account
Any person who shall pass a check without funds available in his/her bank account shall be guilty of a petty misdemeanor.
Sec. 3-26-2 No Account Checks
Any person who shall pass a check and who knew or should have known that his/her account had been closed or did not exist shall be guilty of a Class A misdemeanor.
CHAPTER XXVII. PROSTITUTION
Sec. 3-27-1 Prostitution
Any person who shall engage in the sale of sexual acts or intercourse for profit shall be guilty of a Class B misdemeanor.
CHAPTER XXVIII. OBSCENITY AND PUBLIC INDECENCY (reserved)
CHAPTER XXIX. INTERFERENCE WITH RELIGIOUS PRACTICES (reserved)
CHAPTER XXX. PERJURY AND FALSE OFFICIAL STATEMENTS
Sec. 3-30-1 Perjury
Any person who shall willfully and deliberately, in any judicial proceeding of the Yankton Sioux Tribal Court or Tribal election, falsely swear or interpret or make a sworn statement or affidavit knowing the same to be untrue, or induce or procure another person to do so, shall be guilty of a Class B Misdemeanor.
CHAPTER XXXI. NEGLECT OF CHILDREN
Sec. 3-31-1 Purpose
It is the policy of the Yankton Sioux Tribe to provide for the protection of children who have suffered abuse, and who, in the absence of appropriate reports concerning their condition and circumstances, may be further threatened by the conduct of those responsible for their care and protection.
Sec. 3-31-2 Neglect of Child
Any person who willfully, recklessly, negligently, or unnecessarily neglects, exposes, tortures or cruelly punishes any child under the age of eighteen (18), or deprives such child of necessary and adequate supervision, food, clothing, shelter, or medical attention shall be guilty of a Class A Misdemeanor.
Sec. 3-31-3 Corporal Punishment
Any person who willfully inflicts upon a child cruel or inhuman corporal punishment resulting in physical or emotional injury shall be guilty of a Class A Misdemeanor.
Sec. 3-31-4 Civil Violations
Nothing in this section shall preclude the Yankton Sioux Tribe from concurrently charging alleged violators of this chapter with civil violations under Title V of the Yankton Sioux Tribe Law and Order Code. Such separate civil charges do not constitute double jeopardy, and may be maintained in simultaneous actions, so long as the defendants in such actions are not compelled to testify against themselves in a civil action, if a criminal proceeding is pending at the time of the civil proceeding. If at all possible, the Court shall adjudicate criminal child abuse or neglect charges under this Chapter before adjudicating civil violations, except that the Court may make temporary placements of endangered children and hold periodic review hearings, if such is in the best interests of the children, during the pendency of a criminal proceeding.
CHAPTER XXXII. FAILURE TO SEND CHILDREN TO SCHOOL
Sec. 3-32-1 Failure to Send Children to School
Any person having under his or her control, a child under the age of eighteen (18) shall cause such child to attend regularly until completion of the eighth grade, some public or private school for the entire term during which school is in session, unless such child is excused from attendance. Failure to comply with this section shall be a petty misdemeanor.
CHAPTER XXXIII. CONTRIBUTING TO THE DELINQUENCY OF MINORS
Sec. 3-33-1 Contributing to the Delinquency of a Minor
Any person who shall willfully contribute to the delinquency of a minor shall be deemed guilty of a Class B Misdemeanor.
CHAPTER XXXIV. DRUGS AND CONTROLLED SUBSTANCES
Sec. 3-34-1 Definitions
The following terms used in this Chapter, unless the context plainly requires otherwise, are defined as follows:
1. "Controlled substance" - any drug, substance, or precursor listed in Scheduled I through V of this Chapter.
2. "Counterfeit substance" - any controlled substance which without authorization bears the trademark, trade name or other identifying mark, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person who manufactured, distributed or dispensed such substance and which thereby falsely purports or is represented to be the product of or to have been distributed by such other manufacturer, distributor or dispenser.
3. "Deliver" or "delivery" - the actual or constructive transfer of a controlled substance or marijuana, whether or not there exists an agency relationship.
4. "Dispense" - to deliver a controlled substance to the ultimate user or human research subject pursuant to the lawful directive or a practitioner.
5. "Distribute" - to deliver, other than dispensing, a controlled substance or marijuana. Distribution of a controlled substance or marijuana shall include delivery by gift or exchange without consideration.
6. "Drug paraphernalia" - equipment or materials of any kind which are primarily used or intended for use by the person in possession of them, in planting, cultivating, growing, harvesting, manufacturing, converting, processing, preparing, testing, storing, packaging, ingesting, inhaling, or otherwise introducing into the human body any controlled substance or marijuana in violation of Chapters 34 or 35.
7. "Manufacture" - the production, propagation, preparation or processing of a controlled substance or marijuana. A "manufacturer" does not include a practitioner who lawfully manufactures a controlled substance or marijuana.
8. "Narcotic drug" - means coca leaves, opium, heroin, isonipecaine, amidone, isoamidone, ketobemidone, lysergic acid diethylamide (LDS), any other drugs to which the Federal laws relating to narcotic drugs now apply, and every substance neither chemically nor physiologically distinguishable from them.
9. "Opiate" - any substance having, or capable of being converted into, an addiction-forming or addiction-sustaining substance similar to morphine.
10. "Person" - any individual, corporation, association, partnership, agency, or any other entity comprised of one or more individuals.
11. "Possession' - the actual care, custody, control or management of a controlled substance or marijuana.
12. "Practitioner" - any physician, podiatrist, dentist, pharmacist, scientific investigator, or other person licensed, registered, certified, or otherwise permitted to possess, manufacture, dispense, or conduct research with respect to a controlled substance or marijuana.
13. "Precursor" - a substance which is scientifically recognized as being a principal compound commonly used or produced primarily for use, or which is a chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail or limit such manufacture.
14. "Production" - includes planting, growing, harvesting, or manufacturing of a controlled substance or marijuana.
15. "Ultimate user" - a person who lawfully possesses a controlled substance or marijuana for his or her own use or for administration to an animal owned by him or her.
Sec. 3-34-2 Controlled Substances
The following substances, or unless otherwise excepted, their isomers, derivatives, esters, ethers, or salts, shall be controlled substances:
codeine- methybromide codeine-n-oxide
lysergic acid amide
lysergic acid- diethylamide
Sec. 3-34-3 Peyote Exemption
Peyote which is used by a member of the Native American Church in a bona fide religious service is lawful.
Sec. 3-34-4 Other Exceptions
The Tribe shall have no power to make unlawful the possession or consumption of:
1. A non-narcotic substance which may be lawfully sold over the counter without a prescription under the Federal Food, Drug, and Cosmetic Act; or
2. A substance which was obtained directly from or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice.
Sec. 3-34-5 Possession, Manufacture, Distribution, or Possession With Intent to Distribute
Except as authorized by this Chapter, it is unlawful for any person to knowingly possess, manufacture, distribute or possess with intent to manufacture or distribute a controlled substance listed in Section 3 herein. Violation of this Section is a Class A misdemeanor.
Sec. 3-34-6 Drug Paraphernalia
Any person who knowingly possesses drug paraphernalia is guilty of a Class B Misdemeanor.
Sec. 3-34-7 Keeping a Place Where Controlled Substances Are Sold, Stored or Used
Any person who inhabits, keeps or maintains a residence or room and who knows that any controlled substance is being illegally sold, used or stored therein, is guilty of a Class A Misdemeanor.
CHAPTER XXXV. MARIJUANA
Sec. 3-35-1 Definition
"Marijuana" for purposes of this Section shall be the only part of the Cannabis indica or Cannabis plant which is comprised of the leaves, buds, leaf and bud stems, and the seeds.
Sec. 3-35-2 Possession of Marijuana
No person may knowingly possess marijuana. It is a Class B misdemeanor to possess one ounce or less of marijuana. Possession of more than one ounce of marijuana is a Class A misdemeanor.
Sec. 3-35-3 Manufacture, Distribution, or Possession with Intent to Distribute
Any person who grows, harvests, packages manufactures, distributes or possesses with intent to distribute, marijuana is guilty of a Class A misdemeanor.
CHAPTER XXXVI. HUFFING
Sec. 3-36-1 Huffing
Any person who shall intentionally ingest, inhale, breathe or otherwise take into the body any substance, except alcoholic beverages or prescribed drugs taken as prescribed, for the purpose of becoming intoxicated is guilty of a Class A misdemeanor.
CHAPTER XXXVII. PROTECTIVE CUSTODY AND RELATED OFFENSES (reserved)
CHAPTER XXXVIII. DISOBEDIENCE TO AN ORDER OF THE COURT
Sec. 3-38-1 Disobedience To A Lawful Order of the Court
Any person who shall willfully disobey any lawful order, subpoena, warrant, or command duly issued by the Yankton Sioux Tribal Court or any officer thereof shall be guilty of a Class B misdemeanor.
Sec. 3-38-2 Contempt of Court
Any person who shall:
1. Display disorderly, contemptuous or insolent behavior toward the Judge while holding Court, tending to interrupt the judicial proceedings or impair the respect due the Judge's authority; or
2. Breach the peace through boisterous conduct or violent disturbance in the presence of the Judge or in the immediate vicinity of the Court, tending to interrupt the judicial proceedings; or
3. Use abusive language in the Court while the Court is in session; shall be guilty of a Class B misdemeanor.
CHAPTER XXXIX. ABUSE OR EXPLOITATION OF ELDERLY (reserved)
CHAPTER XL. FALSE ARREST
Sec. 3-40-1 False Arrest
Any person who shall willfully and knowingly make, or cause to be made the unlawful arrest detention or imprisonment of another person, shall be deemed guilty of a Class B misdemeanor.
CHAPTER XLI. CURFEW VIOLATIONS
Sec. 3-41-1 Curfew
Any person who has yet to reach their eighteenth (18th) birthday shall be in a regular place of abode not later than 9:30 p.m. each night proceeding a regular school day and 10:30 p.m. any other night, unless such person is accompanied by their parent or legal guardian.
CHAPTER XLII. DESECRATION OF RELIGIOUS OR SACRED SITES
Sec. 3-42-1 Desecration of Religious or Sacred Sites
Any person who shall vandalize, injure, desecrate or destroy any property used for religious purposes or having religious or traditional importance to the Yankton Sioux Tribe or its members shall be guilty of a Class A misdemeanor.
CHAPTER XLIII. CUTTING GREEN TIMBER
Sec. 3-43-1 Cutting Green Timber Without a Permit
Any person who, without first securing a proper permit, cuts any standing green timber off any Indian Trust Allotment except for the personal use of the allottee, or Tribal land, shall be deemed guilty of a Class B misdemeanor.
CHAPTER XLIV. EMBEZZLEMENT
Sec. 3-44-1 Embezzlement
Any person who shall, having lawful custody of property not his or her own, appropriate the same to his or her own use with intent to deprive the owner thereof shall be guilty of a Class A misdemeanor.
CHAPTER XLV. FAILURE TO SUPPORT DEPENDENT PERSONS
Sec. 3-45-1 Failure to Support Dependent Persons
Any person who shall, because of habitual intemperance or gambling, or for any other reason, refuse or neglect to furnish adequate shelter, food, clothing, support, care or any other basic necessity needed to ensure the health, safety and welfare of those dependent upon him or her, including any dependent children born out of wedlock, shall be deemed guilty of a Class B misdemeanor.
CHAPTER XLVI. SEXUALLY TRANSMITTED DISEASES AND RELATED OFFENSES
Sec. 3-46-1 Giving Sexually Transmitted Disease or Acquired Immune Deficiency Syndrome (AIDS) to Another
Any person who shall knowingly infect another person with a sexually-transmitted disease or through intentional conduct cause another person to test positive for HIV or AIDS shall be deemed guilty of a Class A misdemeanor.
CHAPTER XLVII. LIQUOR SALE OR TRADE
Sec. 3-47-1 Liquor Sale or Trade
Any individual who sells or trades any beer, ale, wine, whiskey, or any article which produces alcoholic intoxication without a validly issued license to do so by the Yankton Sioux Business and Claims Committee shall be deemed guilty of a Class A misdemeanor.
Any person charged with any alcohol related offense in this section, or any other section in the Criminal Code, shall be fined an additional twenty-five dollars ($25.00) in costs, which will be deposited in an Alcohol and Substance Abuse Treatment Fund established by the Yankton Sioux Tribe, to be used solely for the treatment of alcohol and substance abuse within the Yankton Sioux Reservation.
CHAPTER XLVIII. DOMESTIC ABUSE CODE
Sec. 3-48-1 Domestic Abuse Code
Subsection 1. Definitions
As used in this code, the following terms have the meanings given below:
A. "Abuse" means physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault.
B. "Spouse" means a person with whom the victim is currently living or who has lived with the victim in the past, regardless of whether they are/were married, or, a person with whom the victim has a child in common regardless of whether they have been married or have lived together at any time. Note, then that "spouse" is not restricted to the narrow sense implied by legal marriage for the purposes of this code .
Subsection 2. Mandatory Arrest Provision
A. An officer shall arrest and take into custody persons whom the officer has probable cause to believe assaulted another person with whom he/she is residing with or has formerly resided with. No warrant is required to make an arrest under Section 3 of this ordinance.
Note: Probable cause is defined as follows: Based on the officer's observations and statements made by the parties involved and witnesses (if any) the officer using reasonable judgment believes an assault did occur and the person to be arrested committed the assault. This mandatory arrest provision means that the victim need not sign a complaint for an arrest to occur. Further, under the provisions of (a) above, an officer shall arrest under probable cause even though it may be against the expressed wishes of the victim.
B. An officer shall arrest and take into custody a person whom the officer has probable cause to believe has violated an order for protection restraining the person from contact with the victim or excluding the person from the residence if the existence of the order can be verified by the officer.
Note: Regardless whether or not the person violating the order was invited back into the home, an arrest shall be made. Thus, when the court issues such an order it should inform the excluded party that the court must formally change the order in order for him/her to return to the residence.
C. An officer shall arrest if there was a threat with a dangerous weapon.
D. An officer may arrest when responding to a call involving persons (of any age) residing together or who have resided together in the past if the officer has probable cause to believe that the alleged assailant has within the past twenty-four (24) hours placed the alleged victim in immediate fear of bodily harm.
E. Whenever an officer investigates an allegation that an incident described in (A), (B), (C) or (D) above has occurred, whether or not an arrest is made, the officer shall make a written report of the alleged incident and submit that report to the Prosecutor. The Prosecutor shall forward copies of all written reports to a tribally-approved domestic abuse shelter within 48 hours of reports of domestic abuse.
F. In all domestic assault arrests, an attempt should be made as soon as possible to interview the Defendant. The interview will be done by an officer or criminal investigator or by other criminal justice official designated by the Prosecutor.
G. Immediately following a domestic related arrest, the officer shall advise victims of the availability of tribally-approved domestic abuse programs and give legal rights and service cards to victims. In addition, the officer shall advise the victim that an advocate will contact him/her to explain the legal and service options available. The officer shall also request that the jailer contact a tribally-approved domestic abuse program or Indian Health Service immediately following the booking procedure and inform them that an arrest has been made.
Subsection 3. Role of the Court in Regard to the Mandatory Arrest Provision (Sub-Section 2 Above)
A. Anyone arrested under this ordinance shall be held until arraignment.
B. Prior to the release of the defendant a community volunteer will talk with him/her and discuss the availability of domestic violence groups.
C. The defendant is arraigned.
D. If the defendant enters a not guilty plea, or any other plea other than guilty, an advocate for the victim will assist him/her in the preparation of an order for protection temporarily excluding the other from the home and restraining the defendant from any contact with the victim. If the defendant pleads guilty, a pre- sentence investigation is ordered and the victim, either personally or through the shelter advocate, communicates his/her concerns to the court.
E. Sentences shall be thirty (30) to sixty (60) days in jail. The judge may suspend imposition of sentence for the first offense. When sentences are suspended there must be complete cooperation with the orders of the court requiring cooperation with the domestic violence program.
F. If alcohol or drugs play a part in the abuse, a chemical dependency evaluation and complete cooperation with any recommendation for treatment made will be ordered.
G. The assailant shall be ordered to participate in the appropriate domestic violence program and must:
1. Attend an intake session for evaluation and placement in a group for domestic violence. This will be accomplished by an advocate of a tribally- approved domestic abuse program not later than 10 calendar days after sentencing.
2. Attend a minimum of twelve (12) re-education sessions out of fourteen (14) consecutive sessions and attend a minimum of twelve (12) counseling sessions out of fourteen (14) consecutive sessions. These sessions will begin immediately following the intake session (see (1) above). The counselor shall submit a record of attendance to the Clerk of Courts or a Court-Services officer, if one is so designated. The Clerk of Courts or Court Services officer shall maintain a record of attendance.
H. In cases of failure to comply, the court will find the assailant in contempt and shall impose all or some of the original suspended jail sentence and again require the assailant to complete the complete group program upon his release from jail. Failure to attend counseling, violation of an order for protection, or commission of a crime of violence during the order for protection period, will result in immediate review of the case by the Court.
I. Upon any second or subsequent offense offenders shall be sentenced to at least sixty (60) days in jail, not to exceed the maximum penalty the Yankton Sioux Tribe may apply. After serving their sentence, or during their time in jail if there is an available domestic abuse program, they must complete the domestic violence counseling as described in (G.2) above.
Subsection 4. Order for Protection
There will exist an order for protection in cases of domestic abuse.
A. A petition for relief under this section may be made by any family or household member on behalf of himself or herself or on behalf of minor family or household members.
B. A petition for relief shall allege the existence of domestic abuse, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.
C. A petition for relief may be made regardless of whether or not there is a pending lawsuit, complaint, petition or other action between the parties.
D. The court shall provide simplified forms and clerical assistance to help with the writing and filing of a petition under this section.
E. The court shall advise a petitioner of the rights to file a motion and affidavit and to sue without cost and shall assist with the writing and filing of the motion and affidavit. No one shall be denied the right to file because of inability to pay fees. All fees shall be waived if the petitioner indicates that he/she has no available funds .
Subsection 5. Hearing on Application, Notice
A. Upon receipt of the petition, the court shall order a hearing, which shall be held not later than 14 days from the date of the order. Personal service shall be made upon the respondent not less than five days prior to the hearing. In the event that personal service cannot be completed in time to give the respondent the minimum notice required under this paragraph, the court may set a new hearing date.
B. Notwithstanding the provisions of paragraph (A) above, service may be made by one week published notice provided the petitioner files with the court an affidavit stating that an attempt at personal service made by a law enforcement official was unsuccessful because the respondent is avoiding service by concealment or otherwise, and that a copy of the petition and notice of hearing has been mailed to the respondent at the respondent's residence or that the residence is not known to the petitioner. Service under this paragraph is complete seven days after publication. The court shall set a new hearing date if necessary to allow the respondent the five day minimum notice required under paragraph (a) above.
Subsection 6. Relief by the Court
A. Restrain the abusing party from committing acts of domestic abuse.
B. Exclude the abusing party from the dwelling which the parties share or from the residence of the petitioner and restrain the abusing party from any contact with the victim.
C. Award temporary custody or establish temporary visitation with regard to minor children of the parties on a basis which gives primary consideration to the safety of the victim and the children. If the court finds that the safety of the victim or the children will be jeopardized by unsupervised or unrestricted visitation, the court shall condition or restrict visitation as to time, place, duration or supervision or deny visitation entirely, as needed to guard the safety of the victim and the children. The court's deliberation under this section shall in no way delay the issuance of an order for protection.
D. Provide upon request of the petitioner counseling or other social services for the parties.
E. Order the abusing party to participate in treatment or counseling services.
F. Award temporary use and possession of property and restrain one or both parties from transferring, encumbering, concealing or disposing of property except in the usual course of business or for the necessities of life, and to account to the court for all such transfers, encumbrances, dispositions, and expenditures made after the order is served or communicated to the party restrained in open court.
G. Order, at its discretion, other relief as it deems necessary for the protection of a family or household member, including orders or directives to the public safety division of the Yankton Sioux Tribe. Any relief granted by the order for protection shall be for a fixed period not to exceed one year, except when the court determines a longer fixed period is appropriate.
Subsection 7. Standing Order For Protection
A. Where an application under this section alleges an immediate and present danger of domestic abuse a standing order for protection will exist, pending a full hearing, and granting relief as the court deems proper, including an order:
1. Restraining the abusing party from committing acts of domestic abuse;
2. Excluding the abusing party from the dwelling they share or from the residence of the other, and from any contact with the victim except by further order of the court.
B. A standing order for protection shall be effective for a fixed period not to exceed 14 days, except for good cause as provided under paragraph (c) below. A full hearing, as provided by this section, shall be set for not later than seven days from the issuance of the standing order. The respondent shall be served forthwith a copy of the standing order along with a copy of the petition and notice of the date set for the hearing.
C. When service is made by published notice, as provided under Section 5 (b) above, the petitioner may apply for an extension of the period of the standing order at the same time the petitioner files the affidavit required under that section. The court may extend the standing order for an additional period not to exceed 14 days.
The respondent shall be served forthwith a copy of the modified standing order along with a copy of the notice of the new date set for the hearing.
Subsection 8. Service Of Order For Protection
Orders are to be served personally upon the respondent by a police officer. If the respondent cannot be located the order shall be mailed by certified mail to the respondent's last known address, with a return receipt requested. The prosecutor must provide proof to the court that the order was received by the respondent.
Subsection 9. Assistance of Public Safety in Service or Execution
When an order for protection is issued, upon request of the petitioner, the court shall order the police to accompany the petitioner and to assist in placing the petitioner in possession of the dwelling or residence, or otherwise assist in execution or service to the order of protection. No person shall be denied protection or assistance because the accused perpetrator, or a relative of the accused perpetrator is a law enforcement officer, a police commissioner, or a member of the Business and Claims Committee of the Yankton Sioux Tribe. Any law enforcement officer who fails to assist in providing protection to a victim of family violence because of the foregoing reasons shall be subject to immediate suspension, or, in the case of a Bureau of Indian Affairs Officer, shall be subject to a tribal request to the Bureau of Indian Affairs for transfer and discipline of that officer.
Subsection 10. Right to Apply for Relief
A person's right to apply for relief shall not be affected by his or her leaving the residence or household to avoid abuse.
Subsection 11. Modification of Order for Protection
Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection.
Subsection 12. Copy to Law Enforcement Agency
An order for protection granted pursuant to this ordinance shall be forwarded by the Clerk of Courts within 24 hours to the tribal police with jurisdiction over the residence of the applicant. The Public Safety Commission shall make available to each officer information as to the existence and status of any order for protection issued under this section.
Subsection 13. Violation Of An Order For Protection
A. Violation of an order by a respondent who has had notice of the order for protection is a misdemeanor.
B. A police officer shall arrest without a warrant and take into custody a person whom the police officer has probable cause to believe has violated an order for protection, if the existence of the order can be verified by the officer.
C. A violation of an order for protection shall also constitute contempt of court and be subject to attendant penalties.
D. In the event of violation of a protection order, the mandatory arrest provision shall apply, where that provision is applicable. .
Subsection 14. Reporting Requirements
Any physician, physician's assistant, nurse, field health nurse, community health representative (CHR), social worker, parent aide, adult services worker, law enforcement officer, court worker, dentist, hospital intern or resident, alcohol program worker, or domestic violence program worker having reasonable cause to suspect that any person has been a victim of domestic abuse shall report or cause a report to be made in accordance with the provisions of Subsections 15 and 16, below. Any person hereinbefore described who fails to make a report required of him/her is guilty of an offense. Any person who knows, suspects or has reason to believe that a person has received physical or emotional injury or injuries as the result of domestic abuse shall make a report as is provided by law.
Any person convicted hereunder shall be sentenced to jail for a period not to exceed thirty (30) days or to a fine not to exceed one hundred dollars (100.00), or to both imprisonment and fine, with costs.
Subsection 15. Domestic Abuse Reports By Hospital Personnel
When the attendance of persons referred to in Subsection 14 above with respect to a person is pursuant to the performance of services as a member of a staff of a hospital or similar institution, such person shall forthwith notify the person in charge of the institution or his designated delegate, which person in charge or his delegate shall report or cause reports to be made in accordance with the provisions of Subsection 16 below. Any person in charge or delegate who knowingly and intentionally fails to make reports required of him/her is guilty of an offense and shall be sentenced for a period not to exceed thirty (30) days, or to a fine not to exceed one hundred dollars ($100.00) or to both such imprisonment and fine, with costs.
Subsection 16. Report to Law Enforcement Official or Tribal Court
The report required by Subsections 14 and 15, above, shall be made orally and immediately by telephone or otherwise to a law enforcement officer or to a Prosecutor for the Yankton Sioux Tribal Court. Any court official receiving such a report will make an immediate report to a law enforcement official so that an investigation can be carried out in accord with Subsection 18 below.
Subsection 17. Investigation And Prosecution
The Prosecutor of the Yankton Sioux Tribal Court, with the aide of tribal law enforcement officers, shall upon receipt of any report pursuant to Subsection 15 or 16 above, forthwith investigate. Such investigation shall not prohibit any other lawful action as may be provided by law.
Subsection 18. Immunity
Anyone participating in good faith in the making of a report pursuant to Subsections 14 through 17 above shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed, and shall have the same immunity with respect to participation in any court proceeding resulting from such a report.
Subsection 19. Contents Of Report
Any report required to be completed by this Ordinance shall consist of at a minimum:
A. Name, age and address of alleged victim of domestic abuse.
B. Name and address of alleged perpetrator.
C. Nature and extent of the injuries suffered by the alleged victim.
D. Name and address of any person(s) who might have been aware of the abuse.
E. Date(s) and location(s) of when and where the alleged abuse occurred.
F. Any other pertinent information known to the person making the report.
Subsection 20. Responsibilities Of Yankton Sioux Tribal Police Or Bureau Of Indian Affairs Officer
A. Written reports shall be filed on every domestic abuse report received (see Subsections 3 (e) and 18).
B. Copies of all written reports of domestic abuse shall be forwarded to a tribally approved domestic abuse program in addition to the Yankton Sioux Tribal Court, within 48 hours of initial reports of domestic abuse.
C. All judges, prosecutors, assistant prosecutors, and Yankton Sioux Tribal police officers shall be trained in domestic abuse work and shall be familiar with the Domestic Abuse and Elder Abuse Codes. There shall be a minimum of one semester hour equivalent of training in domestic abuse, conducted by a duly approved contracted training organization or other accredited institution. All personnel presently holding positions noted in this paragraph shall receive the training within thirty days from the effective date of this ordinance. All new personnel holding positions noted in this paragraph shall receive the training within three months of their employment. In addition, all personnel holding positions noted in this paragraph shall have a minimum of four hours of refresher training in domestic abuse once every year.
Subsection 21. Follow-Up Assessment
A. Follow-ups will be done at the end of the mandated 14 week session, 6 months after initial sentencing, and one year after initial sentencing.
B. Public Health Service/Indian Health Service Mental Health shall do the assessment and shall forward a written copy of findings to the Clerk of Courts and to a tribally-approved domestic abuse program. The Clerk of Courts shall place the assessment in the files.
Subsection 22. Appellate Review
The Appellate Court shall not stay the execution of sentences under this ordinance but may review legal issues under its review powers. EXCEPTION: If the Appellate Court determines that legal grounds exist for review then and only then may it stay the execution of sentence, pending its review. The Appellate Court shall limit its review to questions of law, leaving factual questions to the court of original jurisdiction .
Any person who willfully or knowingly commits any act of physical or mental abuse which results in injury upon his or her spouse, shall be deemed guilty of an offense and upon conviction thereof shall be ordered to seek counseling with a recognized counselor for a period of no less than ninety (90) days. At the end of the ninety (90) day period, a report must be submitted by the counselor to the Court. If no report has been made or no counseling has been sought the offender shall be sentenced to jail for a period not to exceed six (6) months or to a fine not to exceed three hundred and sixty dollars ($360.00), or to both such fine and imprisonment, with costs.
Subsection 23. Family Violence Task Force
A. The Yankton Sioux Tribe hereby establishes the Family Violence Task Force, which shall be empowered to act as the primary designated Domestic Violence Program of the Yankton Sioux Tribe. It shall be the duty of the Family Violence Task Force to assist in the protection of abused and battered family members, to be responsible for community education about abuse and family violence, and to assist law enforcement and the Social Services Department of the Yankton Sioux Tribe in enforcement of its Domestic Abuse Code. Other domestic violence programs may be used by Yankton Sioux Tribal and Court officials, but the Family Violence Task Force shall be the primary designated program, provided that it establishes and maintains a safe and secure shelter for battered and abused family members. If no such facility is available, then victims shall be referred to other qualified domestic violence programs until such time as such facilities are available.
B. The Family Violence Task Force shall be comprised of five members from the community, provided that three of the five members shall be counseling or other medical professionals, or have had equivalent experience working in the field of Domestic Abuse and Family Violence for at least one (1) year. Those individuals may be reappointed. The other two may be lay members of the community. All of the members shall be chosen by the Business and Claims Committee of the Yankton Sioux Tribe, and shall serve two year terms of office. One sixth ex-officio member shall be appointed to the Family Violence Task Force from the Business and Claims Committee of the Yankton Sioux Tribe. Such appointee shall serve during one term in office, but that appointee may be reappointed if such individual is reelected to the Business and Claims Committee.
CHAPTER IL. BRUTALITY BY LAW ENFORCEMENT
Sec. 3-49-1 Brutality by Police Officer, Jailer, or Other Person Employed by the Police Department
Any person employed as a police officer, jailer, or acting under authority of the Police Department who, not acting in self defense, forcefully beats or enforces any person or who molests any person taken into custody, shall be guilty of an offense, and upon conviction thereof shall be subject to not more than six (6) months in jail, or a fine of not more than five hundred dollars ($500.00), or to both, with costs. The fine and jail sentence shall be in addition to any disciplinary action required under federal law or P.L. 93-638 and any regulation promulgated thereunder and any other act of Congress which may be applicable. After conviction he/she will not be employed as a police officer, jailer, or act under the authority of the Yankton Sioux Tribal Police, or if Bureau of Indian Affairs Police, then that individual will not be allowed to engage in law enforcement activities within the confines of the Yankton Sioux Reservation.
This is a Class A misdemeanor.
CHAPTER L. FAILURE TO PROTECT UNBORN CHILD
Sec. 3-50-1 Failure to Protect Unborn Child
Any person who shall:
1. Strike the stomach of any female carrying an unborn child; or
2. Recklessly endanger the health, safety, welfare, or viability of an unborn child by ingesting alcohol, drugs, inhalants or other intoxicating substances;
shall be guilty of a Class A misdemeanor. This section shall not apply to legally-obtained abortions by the pregnant mother.
CHAPTER LI. REMOVAL OF NON-MEMBER
Sec. 3-51-1.1 Removal of Non-Members
Only the Tribal Court can determine when an emergency exists justifying the removal and exclusion of a non-member or person not legally entitled to reside on the Yankton Sioux Reservation. The procedure for such removal is set forth in Secs. 10-1-1 et.seq. of the Exclusion and Removal Code as set forth in this Law and Order Code.
Sec. 3-51-1.2 Persons Subject to Removal and Exclusion
A. Except as otherwise expressly provided in Subsection B of this Section, and Sec. 10-1-3 of the Exclusion and Removal Code, any non-member of the Yankton Sioux Tribe may be removed and excluded from all or any part of the lands within the exterior boundaries of the Yankton Sioux Reservation, when a non-Indian or a non-member Indian commits, or is alleged to have committed, a crime upon the Reservation, and the Yankton Sioux Tribe is unable to assert criminal jurisdiction over such person.
B. The provisions of this ordinance may not be invoked to exclude non-members:
1. From lands owned by, or held in trust for, the Yankton Sioux Tribe when such non-members are authorized by Federal treaty, statute or administrative regulations to be present on such Tribal lands; or
2. From individually owned lands, whether held in trust, restricted or fee patent, when such non-members are present thereon with the consent of the individual owner or owners thereof, unless such non-member or non-members are voted to be excluded by three-fourths of the General Tribal Council of the Yankton Sioux Tribe, in a General Tribal Council meeting duly advertised and public notice provided ten (10) days prior to such meeting.
[Source: New Mexico v. Mescalero Apache Tribe, 438 U.S. 696, 98 S.Ct. 3012, 57 L.Ed.2d 1052 (1978); Merrion v. Jicarilla Apache Tribe, 455 US 130, 102 S.Ct. 894, 71 L.Ed.2d 114 (1982); and Worcester v. State of Georgia, 31 US 515, 8 L.Ed. 483 (1832).]
CHAPTER LII. TRAFFIC VIOLATIONS
Sec. 3-52-1 Traffic Laws
The provisions of this chapter relating to the operation of vehicles refer exclusively to the operation of vehicles upon the highways and roads of the Yankton Sioux Reservation, including those highways running through the Yankton Sioux Reservation, even if maintained by other jurisdictions, unless a different place is specifically referred to in a given section. All non-Indians stopped by Yankton Sioux Tribal police or Bureau of Indian Affairs police shall be given the choice of voluntarily submitting to the jurisdiction of the Yankton Sioux Tribal Court, or they shall be held or restrained from continuing travel upon the roads within the Yankton Sioux Reservation until state or federal law enforcement authorities have been contacted and arrive to take custody of such individuals.
Subsection 1. Required Obedience To Traffic Laws And Police Officers
It is unlawful and, unless otherwise declared in this section with respect to particular offenses, it is a crime for any person to do any act forbidden or fail to perform any act required in this chapter. In addition, no person shall willfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control or regulate traffic.
Subsection 2. Speed Limits; Traffic Control Regulations; Violations
The Yankton Sioux Tribe may set speed limits and promulgate regulations governing uniform traffic control to comply with the provisions of this section for the reasonable and safe operation of motor vehicles on property situated within the Yankton Sioux Reservation. Speed limits and regulations so established shall be enforceable when appropriate signs giving notice thereof are erected. Any person driving on such property in violation of the speed limit or regulation so established shall, upon conviction, be punished in the same manner as provided for persons convicted of violating other provisions of this Title.
Subsection 3. Following Too Closely
The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.
Subsection 4. Right-Of-Way
The driver of a vehicle on a road approaching an intersection with a tribal, federal or state highway shall stop and yield the right-of-way to an vehicle which has entered the intersection or which is so close thereto as to constitute an immediate hazard. When two vehicles enter or approach an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.
Subsection 5. Operation of Vehicles on Approach of Authorized Emergency Vehicles
Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle, except when otherwise directed by a police officer. This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.
Subsection 6. Drivers to Exercise Due Care
Every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.
Subsection 7. Turning Movements and Required Signals
A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided in the event any other traffic may be affected by such movement.
B. Any stop or turn signal when required herein shall be given either by means of the hand or arm, or by signal lamps. All signals herein required given by hand and arm shall be given from the left (driver) side of the vehicle in the following manner and such signals shall indicate as follows:
1. Left turn. Hand and arm extended horizontally.
2. Right turn. Hand and arm extended upward.
3. Stop or decrease speed. Hand and arm extended downward.
Subsection 8. Certain Vehicles Must Stop At All Railroad Grade Crossings
The driver of any motor vehicle carrying passengers for hire, or of any school bus carrying any school child, or of any vehicle carrying explosive substances or flammable liquids as a cargo or part of a cargo, before crossing at grade any track or tracks of a railroad, shall stop such vehicle within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad and while so stopped shall listen and look in both directions along such track for any approaching train, and for signals indicating the approach of a train, except as hereinafter provided, and shall not proceed until he can do so safely.
Subsection 9. Stop Signs And Yield Signs
Preferential right-of-way at an intersection may be indicated by stop signs or yield signs. Except when directed to proceed by a police officer or traffic control signal, every driver of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering such intersection, at a clearly marked stop line, or if none, then at the point nearest the intersection roadway where the driver has a view of approaching traffic at the intersecting roadway before entering the intersection. The driver of a vehicle approaching a yield sign if required for safety to stop shall stop before entering the intersection in the same manner as is required for stop signs.
Subsection 10. Meeting Or Overtaking Stopped School Bus; Reporting Violations
A. The driver of a vehicle meeting or overtaking a school bus that is stopped to take on or discharge school children, and on which the red loading signals are in operation, is to stop his vehicle before it reaches the school bus and not proceed until the loading signals are deactivated and then proceed past such school bus at a speed which is reasonable and with due caution for the safety of such school children and other occupants. The driver of a vehicle upon a highway with separate roadways need not stop upon meeting or passing a school bus which is on a different roadway or when upon a controlled-access highway and the school bus is stopped in a loading zone which is a part of or adjacent to such highway and where pedestrians are not permitted to cross the roadway.
B. If the driver of a school bus witnesses a violation of the provisions of part A of this subsection, within twenty-four (24) hours of the alleged offense he shall report the violation, the vehicle color, license tag number, and the time and place such violation occurred to the law enforcement authorities of the Yankton Sioux Reservation.
Subsection 11. Penalties
Every person convicted of violating any enforceable and punishable provision of this Section shall be fined in a sum of not less than Ten Dollars ($10.00) and not more than Two Hundred Dollars ($200.00).
Sec. 3-52-2 Speed Restrictions
A. Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper; having due regard to the traffic, surface and width of the highway and any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assure clear distance ahead.
B. Except when a special hazard exits that requires lower speed for compliance with paragraph A of this section, the limits specified in this section shall be maximum lawful speeds, and no person shall drive a vehicle on a highway or road at a speed in excess of such maximum limits:
1. Fifty-five miles per hour upon all highways during the daytime and nighttime, unless otherwise marked.
2. No person shall drive a truck, truck tractor with semitrailer or pole-trailer attached or any other combination of vehicles at a speed greater than fifty-five miles per hour in the daytime, and fifty (50) miles per hour during the nighttime.
3. No person shall drive a school bus at a speed greater than a maximum of fifty (50) miles per hour.
4. On any highway outside of a town, village, or other municipality, the speed limit in a properly marked school zone shall be a maximum of twenty-five (25) miles per hour, unless otherwise marked.
5. The maximum speed limits set forth in this act may be altered by the Yankton Sioux tribe's Business and Claims Committee, as may become necessary when a danger or hazard becomes apparent, or whenever local authorities determine on the basis of an engineering and traffic investigation that the maximum permitted under this chapter is greater or less than is reasonable and safe under the conditions found to exist upon a highway or part of a highway. Such alterations to the maximum speed limits must be by ordinance, and shall be published in the tribal newspaper or other publication read by members of the Yankton Sioux Tribe prior to incorporation in any revised Law and Order Code.
C. In every charge of violation of any speed regulation in this section, the complaint, also the summons or notice to appear, shall specify the speed at which the defendant is alleged to have driven, also the maximum speed applicable within the district or at the location.
D. Every person convicted of violating any provision of this section shall be guilty of a crime and upon conviction shall be fined in a sum as follows:
1. One (1) to five (5) miles over the maximum speed limit--up to $10.00
2. Six (6) to ten (10) miles per hour over the maximum speed limit--up to $25.00
3. Eleven (11) to fifteen (15) miles per hour over the maximum speed limit--up to $40.00.
4. Sixteen (16) to twenty (20) miles per hour over the maximum speed limit --$50.00 to $75.00.
5. Twenty-one (21) miles per hour over the maximum speed limit and any speed greater than twenty-one (21) miles per hour--$80.00 to $300.00 and/or one (1) day in jail, depending upon the rate of speed, the location of the speeding violation, and the degree of safety hazard to others posed by the speeding violation.
Sec. 3-52-3 Reckless Driving, Driving While Intoxicated, and Negligent Homicide
Subsection 1. Reckless Driving
A. It shall be deemed reckless driving for any person to drive a motor vehicle in a careless or wanton manner without regard for the safety of persons or property.
B. Every person convicted of reckless driving shall be punished upon a first conviction by imprisonment for a period of not more than thirty (30) days, or by a fine of not less than twenty-five dollars ($25) nor more than five hundred dollars ($500), or by both such fine and imprisonment; on a second or subsequent conviction punishment shall be by imprisonment of not less than five 5) days or more than ninety (90) days, or by fine of not less than fifty dollars ($50) nor more than one thousand dollars ($1000), or by both such fine and imprisonment.
Subsection 2. Persons Under the Influence of Alcohol or Other Intoxicating Substance or Combination Thereof
A. It is unlawful and punishable as provided in paragraph C of this subsection for any person to drive, operate, or be in actual physical control of a motor vehicle within the Yankton Sioux Reservation who:
1. Has a blood alcohol concentration of ten-hundredths (0.10) or more at the time of a test of such person's blood administered within two (2) hours after the arrest of such person;
2. Is under the influence of alcohol to a degree which renders such person incapable of safely driving or operating a motor vehicle;
3. Is under the influence of any other intoxicating substance to a degree which renders such person incapable of safely driving or operating a motor vehicle; or
4. Is under the combined influence of alcohol and any other intoxicating substance to a degree which renders such person incapable of safely driving or operating a motor vehicle.
B. As used in this section, the term "other intoxicating substance" shall mean any controlled dangerous substance as defined in the Uniform Controlled Dangerous Substances Act, and any other substance, other than alcohol which is capable of being ingested, inhaled, injected, or absorbed into the human body and is capable of adversely affecting the central nervous system, vision, hearing or other sensory or motor functions.
1. Every person who is convicted of a violation of the provisions of this section shall be deemed guilty of a crime for the first offense and shall be punished by imprisonment in jail for not more than five (5) days; and a fine of not more than five hundred dollars ($500).
2. Any person who within five (5) years after a previous conviction of a violation of this section, violates this section shall be deemed guilty of a crime for the second offense, and shall be punished by mandatory imprisonment of thirty (30) days to forty-five (45) days; and a fine of not more than seven hundred and fifty dollars ($750.00). The fine and imprisonment on a second offense may be suspended by the Court upon condition that the person convicted of a second offense enter and successfully complete a 30 day in-patient treatment program approved by the Court, and provide such proof of successful completion of such treatment program to the Court.
3. Any person who within five (5) years after a second conviction of a violation of this section shall be deemed guilty of a crime for the third offense, and shall be punished by mandatory imprisonment of ninety (90) days to one-hundred eighty (180) days; and a fine of not less than seven hundred and fifty dollars ($750.00), and not more than one thousand dollars ($1000.00). One (1) to three (3) months of such imprisonment, and two hundred and fifty dollars ($250.00) of such fine may be suspended by the Court upon condition that the person convicted of a third offense enter and successfully complete a thirty (30) day inpatient treatment program approved by the Court, and cooperate in and complete all aftercare prescribed by such inpatient treatment program, and provide proof of successful completion of such treatment program and aftercare program to the Court.
Subsection 3. Negligent Homicide
A. When the death of any person ensues within one (1) year as a proximate result of injury received by the driving of any vehicle by any person sixteen (16) years of age or older in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.
B. Any person convicted of negligent homicide shall be deemed guilty of a crime, and shall be punished by imprisonment of not less than ninety (90) days and not more than one-hundred eighty (180) days; and a fine of one thousand dollars ($1000). Such individual's drivers license shall be revoked by the Court for a period of one (1) year after the release of such individual from his term of imprisonment.
Sec. 3-52-4 Miscellaneous Rules
Subsection 1. Following Fire Apparatus and Other Emergency Vehicles Prohibited
The driver of any vehicle other than one on official business shall not follow any fire apparatus traveling in response to a fire alarm, or any police or emergency vehicle, closer than five hundred (500) feet, or drive into or park such vehicle within the block where fire apparatus or police or emergency vehicle has stopped in answer to a fire alarm or other such emergency.
Subsection 2. Putting Glass, Etc. On Highway or Road Prohibited
A. No person shall throw or deposit upon any highway any glass bottle, glass, nails, tacks, wire, cans or other substances likely to injure any person, animal or vehicle upon such highway.
B. Any person who drops, or permits to be dropped or thrown, upon any highway any destructive or injurious material shall immediately remove the same or cause it to be removed.
C. Any person removing a wrecked or damaged vehicle from a highway shall remove any glass or other injurious substance dropped upon the highway from such vehicle.
D. No person shall throw any substance at a standing vehicle or any occupant thereof, nor shall any person throw any substance at a person on or adjacent to a highway.
E. Any person violating this subsection shall be deemed guilty of a crime, and if convicted shall be fined not more than one hundred and fifty dollars ($150.00).
Subsection 3. Child Passenger Restraint System Required for Certain Vehicles
Every driver when transporting a child under four (4) years of age in a motor vehicle operated on the roadways, streets, or highways of this state shall provide for the protection of said child by properly using a child passenger restraint system, or a properly secured seat belt in the rear seat of the motor vehicle. Child passenger restraint system means an infant or child passenger restraint system that meets the federal standards for crash-tested restraint systems as set by the United States Department of Transportation. A law enforcement officer is hereby authorized to stop a vehicle if it appears that the driver of the vehicle has violated the provisions of this action and to give a written warning to said driver. The warning shall advise the driver of the possible danger to children resulting from the failure to install or use a child passenger restraint system or seat belts in the motor vehicle. The written warning shall be kept as a part of the records of the police. A violation of the provisions of this subsection shall not be admissible as evidence in any civil action or proceeding for damages. Any person failing to heed the written warning of a police officer to obtain a child passenger restraint system shall be deemed guilty of a violation of this subsection, and shall be punished by a fine not to exceed twenty-five dollars ($25) upon the first offense, and not to exceed fifty dollars ($50) on the second and subsequent offenses.