WHITE MOUNTAIN APACHE

CRIMINAL CODE

Revised August 30, 1995


TABLE OF CONTENTS

CHAPTER ONE
DEFINITIONS

SECTION 1.1 DEFINITIONS

CHAPTER TWO
OFFENSES

SECTION 2.1 ABDUCTION
SECTION 2.2 ADULTERY
SECTION 2.3 ASSAULT
SECTION 2.4 ASSAULT WITH A DEADLY WEAPON
SECTION 2.5 ASSAULT WITH INTENT TO COMMIT RAPE
SECTION 2.6 ASSAULT WITH INTENT TO CAUSE SERIOUS BODILY INJURY
SECTION 2.7 ASSAULT WITH INTENT TO KILL
SECTION 2.8 BATTERY
SECTION 2.9 BEGGING OR SOLICITING
SECTION 2.10 BIGAMY
SECTION 2.11 BRANDING LIVESTOCK OF ANOTHER
SECTION 2.12 BRIBERY - GIVING
SECTION 2.13 BRIBERY - RECEIVING
SECTION 2.14 BRIBERY - SOLICITING
SECTION 2.15 CARRYING A CONCEALED WEAPON
SECTION 2.16 CHILD MOLESTING [REPEALED BY SECTION 4.9]
SECTION 2.17 CONTRIBUTING TO THE DELINQUENCY OF A MINOR
SECTION 2.18 CRIMINAL NEGLIGENCE
SECTION 2.19 CRIMINAL TRESPASS
SECTION 2.20 CRUELTY TO ANIMALS
SECTION 2.21 CUTTING GREEN TIMBER WITHOUT A PERMIT
SECTION 2.22 DEFAMATION
SECTION 2.23 DISOBEDIENCE TO A LAWFUL ORDER OF THE COURT
SECTION 2.24 DISORDERLY CONDUCT
SECTION 2.25 DISPOSING OF PROPERTY OF AN ESTATE
SECTION 2.26 ESCAPE
SECTION 2.27 EXTORTION
SECTION 2.28 FAILING TO SUBMIT TO TREATMENT FOR A CONTAGIOUS DISEASE
SECTION 2.29 FAILURE TO SEND CHILDREN TO SCHOOL
SECTION 2.30 FAILURE TO SUPPORT
SECTION 2.31 FORGERY
SECTION 2.32 FORNICATION
SECTION 2.33 FRAUD
SECTION 2.34 GAMBLING
SECTION 2.35 ILLICIT COHABITATION
SECTION 2.36 INCEST
SECTION 2.37 INDECENT EXPOSURES [REPEALED BY SECTION 4.21]
SECTION 2.38 INHALING TOXIC VAPORS
SECTION 2.39 INTERFERING WITH AN OFFICER
SECTION 2.40 JOYRIDING
SECTION 2.41 LITTERING
SECTION 2.42 MAINTAINING A PUBLIC NUISANCE
SECTION 2.43 MISUSING PROPERTY
SECTION 2.44 NARCOTICS AND DANGEROUS DRUGS
SECTION 2.45 PERJURY
SECTION 2.46 POSSESSION OF MARIJUANA
SECTION 2.47 PROSTITUTION
SECTION 2.48 REMOVAL OR DESTRUCTION OF ANTIQUITIES
SECTION 2.49 PUBLIC INTOXICATION
SECTION 2.50 RECEIVING STOLEN PROPERTY
SECTION 2.51 REFUSING TO AID AN OFFER WITH ARREST; FIRES
SECTION 2.52 SHOPLIFTING
SECTION 2.53 THEFT
SECTION 2.54 UNLAWFUL BURNING
SECTION 2.55 UNLAWFUL RESTRAINT

CHAPTER THREE
CRIMINAL EXTRADITION PROCEDURE

SECTION 3.1 DEFINITIONS
SECTION 3.2 FUGITIVES FROM JUSTICE; DUTY OF THE TRIBAL CHAIRMAN
SECTION 3.3 FORM OF DEMAND
SECTION 3.4 TRIBAL CHAIRMAN MY INVESTIGATE CASE
SECTION 3.5 WHAT PAPERS MUST SHOW
SECTION 3.6 ISSUE OF TRIBAL CHAIRMAN'S WARRANT OF ARREST; ITS RECITAL
SECTION 3.7 MANNER AND PLACE OF EXECUTION
SECTION 3.8 AUTHORITY OF ARRESTING OFFICER
SECTION 3.9 DUTY OF ARRESTING OFFICER; APPLICATION FOR WRIT OF HABEAS CORPUS
SECTION 3.10 COMMITMENT TO AWAIT REQUISITION; BAIL
SECTION 3.11 BAIL; IN WHAT CASES; FORFEITURE OF BAIL
SECTION 3.12 IF NO ARREST IS MADE ON TRIBAL CHAIRMAN'S WARRANT BEFORE THETIME SPECIFIED
SECTION 3.13 FUGITIVE UNDER CRIMINAL PROSECUTION BY THE WHITE MOUNTAIN APACHE TRIBE WHEN DEMAND IS MADE
SECTION 3.14 TRIBAL CHAIRMAN MAY RECALL WARRANT OR ISSUE ALIAS
SECTION 3.15 APPLICATION FOR ISSUANCE OF REQUISITION; BY WHOM MADE; CONTENTS
SECTION 3.16 WRITTEN WAIVER OF EXTRADITION PROCEEDINGS; PRIOR WAIVER
SECTION 3.17 CLOSE PURSUIT; DEFINITIONS
SECTION 3.18 AUTHORITY OF PEACE OFFICER ENTERING RESERVATION IN CLOSE PURSUIT
SECTION 3.19 ARREST AND HEARING; TRANSFER TO TRIBAL POLICE; TRIBAL JUDGE'S DETERMINATION
SECTION 3.20 INTERPRETATION
SECTION 3.21 SHORT TITLE

CHAPTER FOUR
COMPREHENSIVE SEX CRIMES ACT

SECTION 4.1 DEFINITIONS
SECTION 4.2 INDECENT EXPOSURE; CLASSIFICATIONS
SECTION 4.3 PUBLIC SEXUAL INDECENCY; PUBLIC SEXUAL INDECENCY TO A MINOR; CLASSIFICATION
SECTION 4.4 SEXUAL ABUSE; CLASSIFICATIONS
SECTION 4.5 SEXUAL CONDUCT WITH A MINOR; CLASSIFICATIONS
SECTION 4.6 SEXUAL ASSAULT; CLASSIFICATIONS; INCREASED PUNISHMENT
SECTION 4.7 SEXUAL ASSAULT OF A SPOUSE; DEFINITION; VIOLATION; CLASSIFICATION
SECTION 4.8 DEFENSES
SECTION 4.9 MOLESTATION OF CHILD; CLASSIFICATION
SECTION 4.10 CHILD ABUSE; DEFINITIONS; CLASSIFICATION
SECTION 4.11 JUSTIFICATION; USE OF PHYSICAL FORCE
SECTION 4.12 DUTY AND AUTHORIZATION TO REPORT NONACCIDENTAL INJURIES; PHYSICAL NEGLECT AND DENIAL OR DEPRIVATION OF NECESSARY MEDICAL OR SURGICAL CARE TO NOURISHMENT OF MINORS; DUTY TO MAKE MEDICAL RECORDS AVAILABLE; EXCEPTION; VIOLATION; CLASSIFICATION
SECTION 4.13 COMMERCIAL SEXUAL EXPLOITATION OF A MINOR; CLASSIFICATION
SECTION 4.14 SEXUAL EXPLOITATION OF A MINOR; CLASSIFICATION
SECTION 4.15 PORTRAYING ADULT AS MINOR; CLASSIFICATION
SECTION 4.16 PERMISSIBLE INFERENCES
SECTION 4.17 ADMITTING MINORS TO PUBLIC DISPLAYS OF SEXUAL CONDUCT; CONSTRUCTIVE KNOWLEDGE OF AGE; CLASSIFICATION
SECTION 4.18 DETENTION FOR OBTAINING EVIDENCE OF IDENTIFYING PHYSICAL CHARACTERISTICS
SECTION 4.19 DANGEROUS CRIMES AGAINST CHILDREN; SENTENCES; DEFINITIONS
SECTION 4.20 CLASSIFICATION OF SEXUAL OFFENSES; IMPRISONMENT AND FINES
SECTION 4.21 SENTENCING
SECTION 4.22 REGISTRATION OF SEX OFFENDERS
SECTION 4.23 EXCLUSION OF NON-MEMBERS

CHAPTER FIVE
VICTIMS' RIGHTS ACT

SECTION 5.1 VICTIMS' BILL OF RIGHTS


CHAPTER ONE

DEFINITIONS

[NOTE: Except as otherwise noted, Chapter One and Two are derived from Ordinance 96, enacted May 1, 1974]


SECTION 1.1 DEFINITIONS

In this Code, unless the context otherwise requires:
(1) "Adult" shall mean a person who is 18 years of age or older.
(2) "Bodily injury" shall mean impairment of physical condition or substantial pain.
(3) "Deadly weapon" shall mean any instrument used in such manner as to render it capable of causing death or serious bodily injury.
(4) "Dangerous weapon" shall mean an instrument of the type described in Section 2.15 of this Code.
(5) "Serious bodily injury" shall mean physical injury which creates a substantial risk of death or which causes serious and protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of any bodily organ.
(6) "Sexual contact" shall mean any contact of the sexual or other private parts of another for the purpose of arousing or gratifying sexual desire of either party.



CHAPTER TWO

OFFENSES



[NOTE: Except as otherwise noted, Chapter Two is derived from Ordinance No. 96: Chapter V. Part II offenses]


SECTION 2.1 ABDUCTION

A. A person who wilfully takes or entices away:
(1) any child under the age of 18 years from his parent, guardian or custodian, or
(2) any person from his lawful custodian, knowing he has no lawful right to do so, is guilty of offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or to pay a fine not to exceed One Hundred and Eighty Dollars ($180.00) or both.


SECTION 2.2 ADULTERY

A. A person who has sexual intercourse with another person, either of such persons being married to a third person, is guilty of an offense.

B. No persecution for adultery shall commence except upon the complaint of an aggrieved wife or husband.


SECTION 2.3 ASSAULT

A. A person commits assault by:
(1) Intentionally, knowingly, or recklessly causing any physical injury to another person; or
(2) Intentionally placing another person in reasonable apprehension of imminent physical injury; or
(3) Knowingly touching another person with the intent to injure, insult, or provoke such person.

B. A person found guilty under this section, may be sentenced for a period not to exceed thirty (30) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both, unless such assault is found to be committed pursuant to subsection C of this section.

C. A person found guilty of assaulting a member of the White Mountain Apache Tribal Council while such person is acting their official capacity as a member of the White Mountain Apache Tribal Council, shall be fined:
(1) not more than Two Thousand Five Hundred Dollars ($2,500.00), or imprisoned not more than six (6) months or both; and
(2) if personal injury results, shall be fined not more than Five Thousand Dollars ($5,000.00) or imprisoned for not more than one (1) year or both.

[NOTE: Section 2.3 was amended by Ordinance No. 166, enacted January 9, 1991]


SECTION 2.4 ASSAULT WITH A DEADLY WEAPON

A. A person who willfully causes, attempts to cause, or threatens to cause bodily injury to another by means of a deadly or dangerous weapon is guilty of an offense.

B. A dangerous weapon for the purposes of this section is an instrument of the type described under Section 2.15 of this Chapter, Carrying a Concealed Weapon.

C. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.


SECTION 2.5 ASSAULT WITH INTENT TO COMMIT RAPE

A. A person who:
(1) unlawfully attempts or threatens to cause bodily injury to a female person, or
(2) willfully and unlawfully uses force or violence upon the person of a female, with intent to induce, coerce, or force such female person to submit to sexual intercourse with a person not her spouse, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.


SECTION 2.6 ASSAULT WITH INTENT TO CAUSE SERIOUS BODILY INJURY

A. A person who willfully and unlawfully causes or attempts to cause serious bodily injury to another is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.


SECTION 2.7 ASSAULT WITH INTENT TO KILL

A. A person who willfully and unlawfully causes or attempts to cause bodily injury to another with intent to kill is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.


SECTION 2.8 BATTERY

A. A person who:
(1) willfully and unlawfully uses force or violence upon the person of another, or
(2) by threatening force or violence, causes another to harm himself, or
(3) recklessly causes physical injury to another, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.


SECTION 2.9 BEGGING OR SOLICITING

A. A person who begs or solicits gifts of money, property or other thing of value on the streets, sidewalks or other public places is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed five days or to pay a fine not to exceed Thirty Dollars ($30.00) or both.

C. This section shall not apply to any person acting in behalf of any civic, charitable, religious or social organization which is authorized by the Tribal Council to solicit gifts of money, property or other things of value on the Fort Apache Indian Reservation.


SECTION 2.10 BIGAMY

A. A person who marries another person while having a husband or wife living is guilty of an offense.

B. Subsection A shall not apply to any person whose husband or wife has been absent for five successive years, without being known to such person within that time to be living, not to any person whose former marriage has been dissolved by any court of competent jurisdiction.

C. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed ninety (90) days or to pay a fine not to exceed ninety Dollars ($90.00) or both.

[NOTE: Section 2.10 was amended by Ordinance No. 165, enacted January 25, 1991]


SECTION 2.11 BRANDING LIVESTOCK OF ANOTHER

A. A person who brands or marks an animal with a brand other than the recorded brand of the owner, or alters or obliterates any brand or mark on any animal not his own, with intent to convert the animal to his or some third person's use without consent of the owner is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or to pay a fine not to exceed Five Hundred ($500.00) Dollars or both.


SECTION 2.12 BRIBERY - GIVING

A. A person who gives or offers to give to another person money, property or other thing of value with intent to influence a public servant in the discharge of his public duties of guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or to pay a fine not to exceed Five Hundred ($500.00) Dollars or both.


SECTION 2.13 BRIBERY - RECEIVING

A. A public servant who asks, receives, or offers to receive from another, money, property, or other thing of value, with intent or upon a promise to be influenced in the discharge of his public duties, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.

C. In addition to any sentence imposed under subsection B, a person found guilty under this section forfeits his public office.


SECTION 2.14 BRIBERY - SOLICITING

A. A person who obtains or seeks to obtain money, property or other thing value, upon a claim or representation that he can or will improperly influence the action of a public servant in the discharge of his public duties is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.


SECTION 2.15 CARRYING A CONCEALED WEAPON

A. A person who has concealed on or about his person a dangerous weapon is guilty of an offense.

B. A dangerous weapon as used in subsection A of this section shall include any:
(1) airgun, blowgun, explosive device, pistol or other firearm;
(2) bayonet, dagger, switchblade, bowie knife or other kind of knife;
(3) sling shot, club, blackjack or chain;
(4) sword, sword cane or spear;
(5) metal knuckles; or
(6) any other instrument capable of lethal use, possessed under circumstances not appropriate for lawful use.

C. A folded pocket knife shall not be considered a dangerous weapon.

D. Subsection A shall not apply to any person authorized by the Tribal, State, Federal Governments or subdivision thereof to carry such weapon.

E. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed sixty (60) days or to any a fine not to exceed Sixty Dollars ($60.00) or both.

F. Any weapons concealed in violation of this section shall be subject to seizure and forfeiture as provided in Rule 2.5 of the White Mountain Apache Rules of Criminal Procedure.


SECTION 2.16 CHILD MOLESTING

[Section 2.16 - child molesting has been repealed and amended by Chapter Four - Section 4.9]


SECTION 2.17 CONTRIBUTING TO THE DELINQUENCY OF A MINOR

A. An adult person who:
(1) knowingly causes, encourages or advises a minor to commit an offense as defined under the provisions of the tribal law and order code; or
(2) knowingly causes, encourages or assists a minor to be delinquent as defined under the provisions of the Juvenile Code, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or pay a fine not to exceed Five Hundred Dollars ($500.00) or both.


SECTION 2.18 CRIMINAL NEGLIGENCE

A. A person who:
(1) recklessly endangers the safety of another, or
(2) act with carelessness disregard for the safety of another, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one sixty (60) days or pay a fine not to exceed Sixty Dollars ($60.00) or both.


SECTION 2.19 CRIMINAL TRESPASS

A. A person who:
(1) enters or remains upon any public property for an unlawful purpose; or
(2) without good cause enters, remains upon or traverses private lands or other property not his own, where notice against trespassing has been reasonably communicated by the owner; or
(3) knowingly allows his livestock or livestock under his control to occupy or graze on the lands of another, is guilty of an offenses.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed thirty (30) days or to pay a fine not to exceed Thirty Dollars ($30.00) or both.


SECTION 2.20 CRUELTY TO ANIMALS

A. A person who wantonly or maliciously inflicts pain, suffering, or death upon any animal is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed (30) days or to pay fine not to exceed Thirty Dollars ($30.00) or both.


SECTION 2.21 CUTTING GREEN TIMBER WITHOUT A PERMIT

A. A person who cuts or removes any green timber from tribal lands without a tribal permit is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed twenty (20) days or to pay a fine not to exceed Twenty Dollars ($20.00) or both.


SECTION 2.22 DEFAMATION

A. A person who with malice towards another publishes, declares or otherwise communicates to a third person in an unprivileged communication a statement,. knowing the statement is false or in reckless disregard of the truthfulness of such statement, which exposes such other person to public hatred, contempt, or ridicule, with intent to harm such other person in his relationship with others, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed fifty (50) days or to pay a fine not to exceed Fifty ($50.00) or both.


SECTION 2.23 DISOBEDIENCE TO A LAWFUL ORDER OF THE COURT

A. A person who willfully disobeys any order, subpoena, warrant, or command duly issued by the Tribal Court or any official thereof is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed fifty (50) days or to pay fine not to exceed Fifty Dollars ($50.00) or both.


SECTION 2.24 DISORDERLY CONDUCT

A. A person who:
(1) engages in fighting or provokes a fight;
(2) disrupts any lawful public or religious meeting;
(3) causes unreasonable noise; or
(4) uses language or gestures knowing them to be obscene of likely to provoke a fight, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed (60) days or to pay a fine not to exceed Sixty Dollars ($60.00) or both.


SECTION 2.25 DISPOSING OF PROPERTY OF AN ESTATE

A. A person who, without proper authority, uses, transfers or otherwise disposes of any property of an estate before the determination of devises, heirs, or other distributes, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed (90) days or to pay a fine not to exceed Ninety Dollars ($90.00) or both.


SECTION 2.26 ESCAPE

A. A person who willfully escapes, attempts to escape, or assists in an escape, from lawful custody, is guilty of an offense.

B. "Lawful custody" shall mean confinement by court order or actual or constructive restraint by a police officer pursuant to an arrest.

C. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred eighty (180) days or to pay a fine not to exceed One Hundred Eighty Dollars ($180.00) or both.


SECTION 2.27 EXTORTION

A. A person who compels or induces another person to deliver property to himself or to a third person by threatening that if the property is not delivered, the actor or another will:
(1) cause physical injury to some person;
(2) cause damage to property; or
(3) accuse some person of a crime or cause criminal charges to be instituted against some person; or
(4) expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule; or
(5) uses or abuses his position as a public servant by performing some act within or related to his official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.


SECTION 2.28 FAILING TO SUBMIT TO TREATMENT FOR A CONTAGIOUS DISEASE

A. A person who knows or has reason to know that he is infected with a venereal disease, active tuberculosis, or other contagious disease and who willfully exposes another to the disease, in a place other than a medical facility, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and twenty (120) days, provided that any such sentence shall be suspended if the offender agrees to medical treatment.

C. The court upon finding reasonable cause to believe that a person has any of the above diseases may order the person examined. If upon examination, the person is found to be infected with any of the diseases, the court may order the person to submit to medical treatment as prescribed by competent medical authority.


SECTION 2.29 FAILURE TO SEND CHILDREN TO SCHOOL

A. A person who, without good cause, fails to refuses to send his children or any other children under his care to school, while such children are between the ages of six and sixteen, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed sixty (60) days or to pay a fine not to exceed Sixty Dollars ($60.00) or both.


SECTION 2.30 FAILURE TO SUPPORT

A. A person who knowingly and without justification fails to support, care for, or protect a spouse, child, or other person for whose support he is responsible, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed (90) days or to pay a fine not to exceed Ninety Dollars ($90.00) or both.


SECTION 2.31 FORGERY

A. A person who, with intent to defraud
(1) falsely signs, completes or alters any written instrument, or
(2) passes as genuine that which he knows to be a forged instrument is guilty of an offense.

B. "Forged instrument" shall mean a written instrument which has been falsely signed, completed or altered.

C. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed (180) days or to pay a fine not to exceed One Hundred Eighty Dollars ($180.00) or both.


SECTION 2.32 FORNICATION

A. A person who engages in sexual intercourse with another person, neither of such persons being married, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed twenty (20) days or to pay a fine not to exceed Twenty Dollars ($20.00) or both.


SECTION 2.33 FRAUD

A. Fraud in General.
A person who obtains property:
(1) by willful misrepresentation of fact, or
(2) by failure to reveal facts which he knows should revealed, with intent to defraud another of such property, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed (180) days or to pay a fine not to exceed One Hundred Eighty Dollars ($180.00) or both.


SECTION 2.34 GAMBLING

A. A person who knowingly stakes or risks a thing of value in a game of chance upon a agreement understanding that he or some other person may receive some thing of value depending on the outcome is guilty of an offense.

B. under subsection A of this section, "bingo", raffles and lotteries shall not be considered games of chance when conducted by religious or charitable organizations authorized by the Tribal Council to conduct such games.

C. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed twenty days (20) or to pay a fine not to exceed Twenty Dollars ($20.00) or both.


SECTION 2.35 ILLICIT COHABITATION

A. A person who lives or cohabits as a man and wife with another person, while not being married to such person, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed sixty (60) days or to pay a fine not to exceed Sixty Dollars ($60.00) or both.


SECTION 2.36 INCEST

A. A person who has sexual intercourse with another person knowing that he and such person are related as either:
(1) parent and child, natural or adopted,
(2) grandparents and grandchild (any degree),
(3) brother and sister,
(4) uncle and niece,
(5) aunt and nephew, or
(6) first cousins, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred and eighty (180) days or to pay a fine not to exceed One Hundred Eighty Dollars ($180.00) or both.


SECTION 2.37 INDECENT EXPOSURES

[NOTE: Section 2.37 has been amended and rescinded by Chapter Four - Section 4.2]


SECTION 2.38 INHALING TOXIC VAPORS

A. A person who inhales the vapors or fumes of paint, gas, glue, or any other toxic product for the purpose of becoming intoxicated is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed sixty (60) days or to pay a fine not to exceed Sixty Dollars ($60.00) or both.


SECTION 2.39 INTERFERING WITH AN OFFICER

A. A person who willfully prevents or attempts to prevent a police officer from effecting an arrest or from otherwise discharging his official duty by:
(1) creating a substantial risk of bodily harm to the officer or any other person; or
(2) employing means of resistance which justify or require substantial force to overcome, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed sixty (60) days or to pay a fine not to exceed Sixty Dollars ($60.00) or both.


SECTION 2.40 JOYRIDING

A. A person who, without proper authority, drives, operates or otherwise uses any vehicle, not his own, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed thirty (30) days or to pay a fine not to exceed Thirty Dollars ($30.00) or both.


SECTION 2.41 LITTERING

A. A person who intentionally:
(1) discards or deposits any trash, garbage, debris or other refuse upon any highway, road or public place, or upon any land, not his own; or
(2) permits any trash, garbage, debris or other refuse to be thrown from a vehicle which he is operating is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed thirty (30) days or to pay a fine not to exceed Thirty Dollars ($30.00) or both.


SECTION 2.42 MAINTAINING A PUBLIC NUISANCE

A. A person who:
(1) endangers the health or safety of another, or
(2) interfers with the enjoyment of property by willfully or negligently permitting a hazardous, unsightly or unhealthy condition to exist on property under his possession or control, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed ten (10) days or to pay a fine not to exceed Ten Dollars ($10.00) or both.

C. In addition to any penalty imposed under subsection B, the court shall order that the nuisance be abated within a reasonable time.


SECTION 2.43 MISUSING PROPERTY

A. A person who, without proper authority, knowingly uses or damages any property not his own is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed twenty (20) days or to pay a fine not to exceed Twenty Dollars ($20.00) or both.


SECTION 2.44 NARCOTICS AND DANGEROUS DRUGS

A. A person who:

(1) knowingly possesses, sells, produces, trades, transports, gives away or uses any opium, cocaine, heroin, or any derivative thereof; or
(2) knowingly possesses, sells, trades, produces, transports, gives away or uses any drug scheduled as a "controlled substance" under the provisions of Title 21, Chapter 13, of the United States Code, as amended to the date of arrest, is guilty of an offense.

B. Subsection A of this section shall not apply to any transaction, possession, production, transportation, or use for medical purposes, under the prescription or supervision of a person licensed to administer, prescribe, control or dispense the prescribed substances in that subsection.

C. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.


SECTION 2.45 PERJURY

A. A person who knowingly makes a false statement while under oath, or induces another to do so, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed ninety (90) days or to pay a fine not to exceed Ninety Dollars ($90.00) or both.


SECTION 2.46 POSSESSION OF MARIJUANA

A. A person who plants, cultivates, harvests, sells, trades, gives away, or possesses marijuana is guilty of an offense.

B. A person found guilty under this section my be sentenced to imprisonment for a period not to exceed ninety (90) days or to pay a fine not to exceed Ninety Dollars ($90.00) or both.


SECTION 2.47 PROSTITUTION

A. A person who:
(1) solicits or practices prostitution, or
(2) knowingly provides, keeps, rents, leases, or otherwise maintained any place or premises for the purpose of prostitution, is guilty of an offense.

B. "Prostitution" shall mean engaging in sexual intercourse or sexual contact for a consideration.

C. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed seventy (70) days or to pay a fine not to exceed Seventy Dollars ($70.00) or both.


SECTION 2.48 REMOVAL OR DESTRUCTION OF ANTIQUITIES

A. A person who, without proper authority, removes, excavates, injures, or destroys any historic or prehistoric ruin or monument or any object of antiquity is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed ninety (90) days or to pay a fine not to exceed Five Hundred Dollars ($50.00) or both.


SECTION 2.49 PUBLIC INTOXICATION

A. A person who appears in a public place while under the influence of alcohol, marijuana, toxic vapors, or substances the use or possession of which is prohibited by this Code, not therapeutically administered, to the degree that he may reasonably endanger himself or other persons or property, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed sixty (60) days or to pay a fine not to exceed Sixty Dollars ($60.00) or both.


SECTION 2.50 RECEIVING STOLEN PROPERTY

A. A person who buys, receives, conceals or aids in concealing any property which he knows or should know has been obtained by theft, extortion, fraud or other means declared to be unlawful under the provisions of the tribal law and order code is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed sixty (60) days or to pay a fine not to exceed Sixty Dollars ($60.00) or both.


SECTION 2.51 REFUSING TO AID AN OFFER WITH ARREST; FIRES

A. A person who willfully refuses to assist a peace officer:
(1) in the lawful arrest of any person;
(2) in conveying a lawfully arrested person to the nearest place of confinement when such assistance is reasonably requested, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed fifty (50) days or pay a fine not to exceed Fifty Dollars ($50.00) or both.

C. Any able-bodied male Indian residing within the Fort Apache Indian Reservation who shall refuse without good reason to render assistance when summoned by any forest officer, Indian Police, peace officer or other authorized person to suppress forest or range fires or fires threatening the forest or range, within the boundaries of the Fort Apache Indian Reservation shall be deemed guilty of a misdemeanor and upon conviction thereof shall be sentenced to labor or imprisonment for not less than 25 days or more than 100 days or fined not less than $25.00 or more than $100.00 or both such fine and imprisonment.

D. Any able bodied person residing, hunting, fishing, camping, and/or traveling upon the Fort Apache Indian Reservation, who shall refuse without good reason to render assistance when summoned by any forest officer, Indian police or other authorized person to suppress range and forest fires within the boundaries of said reservation, shall by such refusal forfeit or cause to be revoked all rights, privileges, leases and/or permits granted to him the White Mountain Apache Indian Tribe, and such person may be punished by a fine of not less than $25.00 or more than $100.00 or confined not less than 24 or more than 100 days in jail, or both such fine and jail sentenced, and may at the discretion of the Fort Apache Indian Agency Superintendent be evicted from the Fort Apache Indian Reservation.

[NOTE: Subsection C and D are derived from Ordinance 17, enacted July 11, 1949. Since they are not in conflict with the provisions of Ordinance 96, they survived the enactment of that Ordinance.]


SECTION 2.52 SHOPLIFTING

A. A person who willfully takes possession of any good offered for sale by any mercantile establishment, without the consent of the owner or manager, with the intent to convert such goods to his own use without paying for them, is guilty of an offense.

B. A person who willfully conceals or attempts or conceal any goods offered for sale:
(1) on his person or among his belongings, or
(2) on the person or among the belongings of another, is presumed to have taken possession of such goods with the intent to convert them to his own without paying for them.

C. A police officer, merchant or merchant's employee who has reasonable cause to believe that a person has willfully taken possession of goods with the intent to convert them without paying for them may detain and interrogate the person in regard thereto in a reasonable manner and for a reasonable time.

D. If a police officer, merchant or merchant's employee detains and interrogates a person pursuant to subsection C, and the person thereafter brings a civil or criminal action against the police officer, merchant or merchant's employee, based upon the detention interrogation, such reasonable cause shall be a defense to the action if the detention and interrogation were performed in a reasonable manner and for a reasonable time.

E. A person found guilty this section may be sentenced to imprisonment for period not to exceed thirty (30) days or to pay a fine not to exceed Thirty Dollars ($30.00) or both.


SECTION 2.53 THEFT

A. A person who unlawfully takes or exercises control of property not his own, whether or not possession was originally obtained with consent of the owner, with the intent of permanently depriving the owner of the value or use of the property for the benefit of himself or another, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.


SECTION 2.54 UNLAWFUL BURNING

A. A person who:
(1) willfully and unlawfully causes or attempts to cause damage to any property by fire or explosion; or
(2) negligently causes damage to any property by fire or explosion; or
(3) sets fire to any forest, brush or grasslands, or sets a campfire, with careless disregard for the spread to escape of such fire, is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred twenty (120) days or to pay a fine not to exceed One Hundred Twenty Dollars ($120.00) or both.


SECTION 2.55 UNLAWFUL RESTRAINT

A. A person who unlawfully causes the removal, detention or confinement of another person so as to interfere with the person's liberty is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed one hundred eighty (180) days or to pay a fine not to exceed One Hundred Eighty Dollars ($180.00) or both.





CHAPTER THREE

CRIMINAL EXTRADITION PROCEDURE



[NOTE: Chapter Three is derived from Ordinance No. 168, enacted August 27, 1991]


SECTION 3.1 DEFINITIONS

A. In this procedure, unless the context otherwise requires:
(1) Tribal Chairman: shall be the Chief Executive Officer of the White Mountain Apache Tribe.
(2) Executive Authority: includes the Tribal chairman, or in his absence the Tribal Vice-Chairman, performing the functions of Chief Executive Officer of the White Mountain Apache Tribe.
(3) State: Shall mean any of the United States of America and the political subdivisions thereof.
(4) Commissioned Police Officer: Means any police officer who is commissioned by the White Mountain Apache Tribal Chief of Police to enforce federal, tribal and state laws within the White Mountain Apache Reservation.
(5) Fugitive: Means any enrolled member of the White Mountain Apache Tribe, or any non-member Indian, who is charged with a criminal offense and who has fled from justice and is found within the exterior boundaries of the Fort Apache Indian Reservation.
(6) Warrant of Extradition: Documents issued by any state or another Indian tribe in accordance with this extradition procedure, requesting the deliverance of a fugitive from justice.
(7) Extradition Waiver: Means a voluntary acknowledgment in written form, by the fugitive, that he/she is voluntarily willing to surrender to the demanding jurisdiction and waive this extradition procedure.
(8) Habeas Corpus: Shall mean 25 U.S.C. Section 1303.


SECTION 3.2 FUGITIVES FROM JUSTICE; DUTY OF THE TRIBAL CHAIRMAN

Subject to this procedure, the White Mountain Apache Constitution, the White Mountain Apache Tribal Law and Order Code, and the laws of the United States which are applicable to Indians or Indian Tribes, it is the duty of the Tribal Chairman to insure review and compliance with this extradition procedure and to order the arrest and delivery to the demanding jurisdiction a fugitive charged with a criminal offense who has fled from justice and is found within the exterior boundaries of the Fort Apache Indian Reservation.


SECTION 3.3 FORM OF DEMAND

A. No demand for the extradition of an Indian charged with a crime in a state or another Indian reservation shall be recognized by the Tribal Chairman unless the demand is in writing and accompanied by a copy of an indictment found or by an information supported by affidavit in the state or Indian reservation having jurisdiction of the crime, or by a copy of a complaint supported by affidavit made before a state magistrate or a Tribal Chief Judge.

B. The indictment, information, or complaint supported by affidavit made before a state magistrate or Tribal chief Judge must substantially charge the person demanded with having committed a crime under the laws of the state or other Indian reservation, and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.


SECTION 3.4 TRIBAL CHAIRMAN MAY INVESTIGATE CASE

When demand shall be made upon the Tribal Chairman by the Executive authority of the state or Indian reservation for the surrender of a person so charged with a crime, the Tribal Chairman may call on the White Mountain Apache Tribal Attorney to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he/she ought to be surrendered.


SECTION 3.5 WHAT PAPERS MUST SHOW

A. A warrant of extradition shall not be issued unless the documents presented by the executive authority making the demand show that:

SECTION 3.6 ISSUE OF TRIBAL CHAIRMAN'S WARRANT OF ARREST: ITS RECITAL

If the Tribal Chairman determines that the demand should be complied with, a warrant of arrest shall be signed, which shall be sealed with the Tribal Seal, and be directed to any commissioned police officer for the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issue.


SECTION 3.7 MANNER AND PLACE OF EXECUTION

Such warrant shall authorize any commissioned police officer to arrest the accused at any time and any place where the accused may be found on the Fort Apache Indian Reservation, and to deliver the accused, subject to the provisions of this Tribal Extradition Procedure, to the duly authorized agent of the demanding jurisdiction.


SECTION 3.8 AUTHORITY OF ARRESTING OFFICER

Every commissioned police officer shall have the authority to arrest the accused and to command assistance therein as empowered by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.


SECTION 3.9 DUTY OF ARRESTING OFFICER; APPLICATION FOR WRIT OF HABEAS CORPUS

No person arrested upon such warrant shall be delivered over to the demanding jurisdiction unless the accused has been informed of the demand made for his/her surrender and of the crime with which he/she is charged. The accused shall further be advised that he/she has the right to obtain counsel and may contest the legality of his/her arrest in accordance with the habeas corpus provisions of the Indian Civil Rights Act, 25 U.S.C. Section 1303. The accused may also waive extradition and voluntarily surrender himself/herself to the demanding jurisdiction. In either case, the accused, as soon as is practical after arrest, shall be taken before the White Mountain Apache Tribal Chief Judge who shall fix a reasonable time for the accused to apply for a writ of habeas corpus or record that the arrestee has waived extradition.


SECTION 3.10 COMMITMENT TO AWAIT REQUISITION; BAIL

If from the examination before the Chief Tribal Judge it appears that the person held is the person charged with having committed the crime alleged and that he/she has fled from justice, the Chief Tribal Judge must commit him/her to jail by virtue of the Tribal Chairman's warrant for such a time not exceeding thirty days, as will enable the appointed agent for the demanding jurisdiction to take personal charge of the prisoner, unless the accused gives bail as provided in Section 3.11 or until he/she is legally discharged.


SECTION 3.11 BAIL; IN WHAT CASES; FORFEITURE OF BAIL

The Chief Judge of the Tribal Court may admit the person arrested to bail or bond or undertaking for such time as will allow him/her to apply for a writ of habeas corpus as prescribed herein. If the prisoner is admitted to bail or fails to press his/her writ of habeas corpus within he time allowed, or fails to appear and surrender himself/herself according to the conditions of the bond, the court by proper order shall declare the bond forfeited and order the rearrest of the accused.


SECTION 3.12 IF NO ARREST IS MADE ON TRIBAL CHAIRMAN'S WARRANT BEFORE THE TIME SPECIFIED

If the accused is not arrested under the warrant of the Tribal Chairman by the expiration of the time specified in the warrant, only the Tribal Chairman may extend such time specification.


SECTION 3.13 FUGITIVE UNDER CRIMINAL PROSECUTION BY THE WHITE MOUNTAIN APACHE TRIBE WHEN DEMAND IS MADE

If a criminal prosecution has been instituted against a named fugitive by the White Mountain Apache Tribe, the Tribal Chairman may, in his discretion, either surrender him/her to the demand jurisdiction or hold the fugitive until he/she has been tried and discharged or convicted and punished on the Fort Apache Indian Reservation.


SECTION 3.14 TRIBAL CHAIRMAN MAY RECALL WARRANT OR ISSUE ALIAS

The Tribal Chairman may recall his warrant of arrest or may issue another warrant whenever he deems proper.


SECTION 3.15 APPLICATION FOR ISSUANCE OF REQUISITION; BY WHOM MADE; CONTENTS

When the return to the Fort Apache Indian Reservation of a person charged with crime on the reservation is required, the Tribal Attorney shall present to the Tribal Chairman his written application for the requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him/her and the state or other Indian Reservation in which he/she is believed to be, including the location of the accused therein at the time the application is made and certifying that, in the opinion of the Tribal Attorney, the ends of justice require the arrest and return of the accused to the reservation for trial and that the proceeding is not instituted to enforce a private claim. The application shall be verified by affidavit and shall be accompanied by a certified copy of the complaint made to the Tribal Judge stating the offense with which the accused is charged. The Tribal Attorney may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application.


SECTION 3.16 WRITTEN WAIVER OF EXTRADITION PROCEEDINGS; PRIOR WAIVER

A. Any person arrested on the Fort Apache Indian Reservation who is charged with having committed a crime in another state or another Indian reservation or alleged to have escaped from confinement or broken the terms of his/her bail, probation or parole may waive the issuance and service of the warrant provided for herein and all other procedures incidental to extradition proceedings by executing or subscribing in the presence of the Chief Tribal Judge a writing which states that he/she consents to return to the demanding jurisdiction, except that before the waiver is executed or subscribed to by the person it is the duty of the Chief Tribal Judge to inform the person of his/her right to the issuance or service of a warrant of extradition, the right to contest extradition by habeas corpus as provided for in 25 U.S.C. Section 1303, and the right to bail as provided in Section 3.11.

B. If the consent is duly executed, the Chief Tribal Judge shall direct the officer who has custody of the person to deliver the person promptly to the accredited agents or agents of the demanding jurisdiction and to deliver or cause to be delivered to the agent or agents a copy of the consent.

C. Notwithstanding subsection A of this section, a law enforcement agency holding a person who is alleged to have broken the terms of his probation, parole, bail or any other release shall immediately deliver the person to the duly authorized agent of the demanding jurisdiction without the requirement of a Tribal Chairman's warrant if the following apply:
(1) The person signed a prior waiver of extradition as a term of his/her current probation, parole, bail or other release in the demanding jurisdiction.
(2) The law enforcement agency holding the person has received both of the following:
(a) An authenticated copy of the prior waiver of extradition signed by the person; and
(b) A photograph and fingerprints properly identifying the person as the person who signed the waiver.

[NOTE: Sections 3.17 through Section 3.20 are derived from Ordinance No. 201, enacted August 2, 1995]


SECTION 3.17 CLOSE PURSUIT; DEFINITIONS

In this Chapter, unless the context otherwise requires:
(1) "Close pursuit" does not necessarily imply instant pursuit, but pursuit without unreasonable delay, and includes:
(a) Close pursuit as defined by the common law.
(b) Pursuit of a person who has committed a criminal offense, or who is reasonably suspected of having committed a criminal offense.
(c) Pursuit of a person suspected of having committed a supposed criminal offense, though no criminal offense has actually been committed, if there is reasonable grounds for believing that a criminal offense has been committed.
(2) "Criminal Offense" means any misdemeanor, felony, petty offense or other criminal act.
(3) "Fort Apache Indian Reservation" or "Reservation" includes all lands within the exterior boundaries of the Fort Apache Indian Reservation as defined in the Constitution of the White Mountain Apache Tribe, Article 1, Section 1.
(4) "Person" means any person over whom the White Mountain Apache Tribe may assert criminal jurisdiction.
(5) "Tribal Court" or "Court" means the courts of the White Mountain Apache Tribe.
(6) "Tribal Police Officer" means a duly sworn officer of the Whiteriver Police Department.


SECTION 3.18 AUTHORITY OF PEACE OFFICER ENTERING RESERVATION IN CLOSE PURSUIT

A member of a duly organized tribal, state, county or municipal law enforcement agency of a reservation or state who enters the Fort Apache Indian Reservation in close pursuit, and continues within the Reservation in close pursuit of a person in order to arrest him on the ground that he is believed to have committed a criminal offense in such other reservation or state shall have the same authority to arrest and hold the person in custody as has a Tribal police officer to arrest and temporarily hold a person in custody within the Reservation on the ground that he is believed to have committed a criminal offense within the Reservation.


SECTION 3.19 ARREST AND HEARING; TRANSFER TO TRIBAL POLICE; TRIBAL JUDGE'S DETERMINATION

A. Upon crossing into the Reservation, the officer in pursuit shall immediately notify and maintain contact with the Whiteriver Police Department until a Tribal police officer responds to the scene, or the arresting officer transports the person arrested pursuant to paragraph B.

B. If an officer of another jurisdiction makes an arrest within the Reservation in accordance with Section 3.18, he shall immediately deliver the person arrested to the custody of the Tribal police. If no Tribal police officer responds to the scene, the arresting officer shall immediately transport the person arrested to Tribal Police headquarters.

C. Upon taking custody of an arrested person, the Tribal police officer shall within 24 hours take the person arrested before a Tribal Court judge, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest.

D. If the judge determines that the arrest was unsupported by probable cause or was otherwise unlawful, the judge shall order the person released from custody.

E. If the judge determines that the arrest was lawful, the judge shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Tribal Chairman pursuant to this Chapter.


SECTION 3.20 INTERPRETATION

The provisions of this procedure shall be interpreted and construed so as to effectuate its general purpose to make uniform the law of the state and Indian reservations that are involved; provided that under no circumstances shall the provisions of this procedure be interpreted to authorize the extradition, pursuit, or arrest of any person within the exterior boundaries of the Fort Apache Indian Reservation without complying with this Chapter.


SECTION 3.21 SHORT TITLE

This procedure may be cited as the Tribal Criminal Extradition Procedure.





CHAPTER FOUR

COMPREHENSIVE SEX CRIMES ACT



[NOTE: CHAPTER FOUR IS DERIVED FROM ORDINANCE NO. 170, ENACTED JULY, 1991]


SECTION 4.1 DEFINITIONS

A. "Culpable mental state" means intentionally, knowingly, recklessly or with criminal negligence as those terms are thusly defined:
(1) "Intentionally" or "with the intent to" means, with respect to a result or to conduct described by a statute defining an offense, that a person's objectives is to cause that result or to engage in that conduct.
(2) "Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.
(3) "Recklessly" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.
(4) "Criminal negligence" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

B. "Oral sexual contact" means oral contact with the penis, vulva or anus.

C. "Producing" means financing, directing, manufacturing, issuing, publishing or advertising for pecuniary gain.

D. "Sexual conduct" means actual or simulated:
(a) Sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex.
(b) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.
(c) Sexual bestiality.
(d) Masturbation, for the purpose of sexual stimulation of the viewer.
(e) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer.
(f) Lewd exhibition of the genitals, pubic or rectal areas of any person.
(g) Defecation or urination for the purpose of sexual stimulation of the viewer.

E. "Sexual contact" means any direct or indirect fondling or manipulating of any part of the genitals, anus or female breast.

F. "Sexual intercourse" means penetration into the penis, vulva or anus by any part of the body or by any object or manual masturbatory contact with the penis or vulva.

G. "Simulated" means any depicting of the genitals or rectal areas which gives the appearance of sexual conduct or incipient sexual conduct.

H. "Spouse" means a person who is legally married and cohabiting.

I. "Visual or print medium" means:
(1) Any film, photograph, videotape, negative, slide or,
(2) Any book, magazine or other form of publication or photographic reproduction containing or incorporating in any manner any film, photograph, videotape, negative or slide.

J. "Without consent" includes the following:
(1) The victim is coerced by the immediate use or threatened use of force against a person or property.
(2) The victim is incapable of consent by reason of mental disorder, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant.
(3) The victim is intentionally deceived as to the nature of the act.

SECTION 4.2 INDECENT EXPOSURE; CLASSIFICATIONS

A. A person commits indecent exposure if he or she exposes his or her genitals or anus or she exposes the areola or nipple of her breast or breasts and another person is present, and the defendant is reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act.

B. Indecent exposure is a class 1 minor offense. Indecent exposure to a person under the age of fifteen years is a class 3 major offense.


SECTION 4.3 PUBLIC SEXUAL INDECENCY; PUBLIC SEXUAL INDECENCY TO A MINOR; CLASSIFICATIONS

A. A person commits public sexual indecency by intentionally or knowingly engaging in any of the following acts, if another person is present, and the defendant is reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act:
(1) An act of sexual contact.
(2) An act of oral sexual contact.
(3) An act of sexual intercourse.
(4) An act involving contact between the person's mouth, vulva or genitals and the anus or genitals of an animal.

B. A person commits public sexual indecency to a minor if he intentionally or knowingly engages in any of the acts listed in subsection A and such person is reckless whether a minor under the age of fifteen years is present.

C. Public sexual indecency is a class 1 minor offense. Public sexual indecency to a minor is a class 3 major offense.


SECTION 4.4 SEXUAL ABUSE; CLASSIFICATIONS

A. A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fourteen or more years of age without consent of that person or with any person who is under fourteen years of age if the sexual contact involves only the female breast.

B. Sexual abuse is a class 2 major offense unless the victim is under fourteen years of age which case sexual abuse is a class 1 major offense punishable pursuant to 4.19.


SECTION 4.5 SEXUAL CONDUCT WITH A MINOR; CLASSIFICATIONS

A. A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.

B. Sexual conduct with a minor under fourteen years of age is a class 2 major offense and is punishable pursuant to 4.19. Sexual conduct with a minor fourteen years of age or over is a class 3 major offense.


SECTION 4.6 SEXUAL ASSAULT; CLASSIFICATION; INCREASED PUNISHMENT

A. A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.

B. Sexual assault is a class 2 major offense, and the person convicted is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement until the sentence imposed by the court has been served. If the victim is under fifteen years of age, sexual assault is punishable pursuant to 4.19.

C. Notwithstanding the provisions of 4.19, if the sexual assault involved the use or exhibition of a deadly weapon or dangerous instrument or involved the intentional o knowing infliction of serious physical injury and the person has previously been convicted of sexual assault, or any offense committed outside the reservation which if committed on the reservation would constitute sexual assault, the person shall be sentenced to one year imprisonment and a $5,000.00 fine and is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement.


SECTION 4.7 SEXUAL ASSAULT OF A SPOUSE; DEFINITIONS; VIOLATION; CLASSIFICATION

A. A person commits sexual assault of a spouse by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with a spouse without consent of the spouse by the immediate or threatened use of force against the spouse or another.

B. A first offense sexual assault of a spouse is a class 3 major offense. The judge has discretion to enter judgement for conviction of a class 1 minor offense with mandatory counseling. Any subsequent sexual assault of a spouse is a class 2 major offense and the person convicted is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement until the sentenced imposed by the court has been served. Convictions for two or more major offenses not committed on the same occasion but consolidated for trial purposes shall not be counted as prior convictions for purposes of this section.

C. A person convicted under this section may, in the discretion of the court, be exempt from the registration requirements of 4.22 of this Chapter.


SECTION 4.8 DEFENSES

A. It is a defense to a prosecution pursuant to 4.4 and 4.5, involving a minor, if the act was done in furtherance of lawful medical practice.

B. It is a defense to a prosecution pursuant to 4.4 and 4.5, in which the victim's lack of consent is based on incapacity to consent because the victim was fourteen, fifteen, sixteen or seventeen years of age, if at the time the defendant engaged in conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim.

C. It is a defense to a prosecution pursuant to 4.2, 4.4, 4.5 and 4.6, if the act was done by a duly licensed physician or registered nurse or a person acting under his or her direction, or any other person who renders emergency care at the scene of an emergency occurrence, and consisted of administering a recognized and lawful form of treatment which was reasonably adapted to promoting the physical or mental health of the patient and the treatment was administered in an emergency when the duly licensed physician or registered nurse or a person acting under his or her direction, or any other person rendering emergency care at the scene of an emergency occurrence, reasonably believed that no one competent to consent could be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

D. It is a defense to a prosecution pursuant to 4.4, 4.5 or 4.6 that the person was the spouse of the other person at the time of commission of the act. It is not a defense to a prosecution pursuant to 4.7 that the defendant was not motivated by a sexual interest.

E. It is a defense to prosecution pursuant to 4.9 that the defendant was not motivated by a sexual interest. It is a defense to prosecution pursuant to 4.4 involving a victim under fourteen years of age that the defendant was not motivated by a sexual interest.

F. It is a defense to prosecution pursuant to 4.4 and 4.9 if both the defendant and the victim are of the age of fourteen, fifteen, sixteen or seventeen and the conduct is consensual.

SECTION 4.9 MOLESTATION OF CHILD; CLASSIFICATION

A person who knowingly molests a child under the age of fourteen years by directly or indirectly touching the private parts of such child or who causes a child under the age of fourteen years to directly or indirectly touch the private parts of such person is guilty of a class 2 major offense and is punishable pursuant to 4.19.


SECTION 4.10 CHILD ABUSE; DEFINITIONS; CLASSIFICATION

A. In this section, unless the context otherwise requires:
(1) "Abuse" means the infliction or allowing of physical injury, impairment of bodily function or disfigurement or the infliction of or allowing another person to cause serious emotional damage as evidence by severe anxiety, depression, withdrawal or outward aggressive behavior and which emotional damage is diagnosed by a medical doctor or psychologist and which is caused by the acts or omissions of an individual having care, custody and control of a child. Abuse shall include inflicting or allowing sexual abuse pursuant to 4.4, sexual conduct with a minor; pursuant to 4.5, sexual assault; pursuant to 4.6, molestation of a child; pursuant to 4.9, commercial sexual exploitation of a minor; pursuant to 4.13, sexual exploitation of a minor; pursuant to 4.14, incest; pursuant to Chapter 2 of the White Mountain Apache Criminal Code; or child prostitution.
(2) "Child, youth or juvenile" means an individual who is under the age of eighteen years of age.
(3) "Physical injury" the impairment of physical condition and includes but shall be limited to any skin bruising, bleeding, failure to thrive, malnutrition, burns, fracture of any bone, subdural hematoma, soft tissue swelling, injury to any internal organ or any physical condition which imperils a child's health or welfare.
(4) "Serious physical injury" means physical injury which creates a reasonable risk of death, or which causes serious or permanent disfigurement, or serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.

B. Under circumstances likely to produce death or serious physical injury, any person who causes a child to suffer physical injury or, having the care or custody of such child, causes or permits the person or health of such child to be injured or causes or permits such child to be placed in a situation where its person or health is endangered is guilty of an offense as follows:
(1) If done intentionally or knowingly, the offense is a class 1 major offense and if the victim is under fifteen years of age it is punishable pursuant to 4.19.
(2) If done recklessly, the offense is a class 2 major offense.
(3) If done with criminal negligence, the offense is a class 3 major offense.

C. Under circumstances other than those likely to produce death or serious physical injury to a child, any person who causes a child to suffer physical injury or abuse except for those acts in the definition which are declared unlawful by another section of this chapter or, having the care or custody of such child, causes or permits the person or health of such child to be injured or causes or permits such child to be placed in a situation where its person or health is endangered is guilty of an offense as follows:
(1) If done intentionally or knowingly, the offense is a class 2 major offense.
(2) If done recklessly, the offense is a class 3 major offense.
(3) If done with criminal negligence, the offense is a class 1 minor offense.


SECTION 4.11 JUSTIFICATION; USE OF PHYSICAL FORCE

The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under the following circumstance:

A. A parent or guardian and a teacher or other person entrusted with the care and supervision of a minor or incompetent person may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary and appropriate to maintain discipline, self defense, or to protect the child from injuring itself or others.


SECTION 4.12 DUTY AND AUTHORIZATION TO REPORT NONACCIDENTAL INJURIES; PHYSICAL NEGLECT AND DENIAL OR DEPRIVATION OF NECESSARY MEDICAL OR SURGICAL CARE TO NOURISHMENT OF MINORS; DUTY TO MAKE MEDICAL RECORDS AVAILABLE; EXCEPTION; VIOLATION; CLASSIFICATION

A. Any physician, hospital intern or resident, surgeon, dentist, osteopath, chiropractor, podiatrist, county medical examiner, nurse, psychologist, school personnel, social worker, peace officer, parent counselor, clergyman or priest or any other person having responsibility for the care or treatment of children whose observation or examination of any minor discloses reasonable grounds to believe that a minor is or has been the victim of injury, sexual abuse pursuant to 4.4, sexual conduct with a minor pursuant to 4.5, sexual assault pursuant to 4.6, molestation of a child pursuant to 4.9, or commercial sexual exploitation of a minor pursuant to 4.13, abuse or physical neglect which appears to have been inflicted upon such minor by other than accidental means or which is not explained by the available medical history as being accidental in nature or who has reasonable grounds to believe there has been a denial or deprivation of necessary medical treatment or surgical care or nourishment with the intent to cause or allow the death of an infant shall immediately report or cause reports to be made of such information to a peace officer or to the child protective services of the tribal social services.

B. A clergyman, priest, traditional medicine man or medicine woman who has received a confidential communication or a confession in his role as a clergyman, priest or a traditional medicine man or medicine woman, the course of the discipline enjoined by the church to which he or she belongs may withhold reporting of the communication or confession if the clergyman, priest, medicine man or medicine woman determines that it is reasonable and necessary within the concepts of the religion. This exemption applies only to the communication or confession and not to personal observations the clergyman, priest, traditional medicine man, or medicine woman may otherwise make of the minor.

C. No report is required under this section for conduct prescribed by 4.4 and 4.5 if the conduct involves only minors age fourteen, fifteen, sixteen or seventeen and there is nothing to indicate that the conduct is other than consensual. Such reports shall be made forthwith by telephone or in person forthwith and shall be followed by a written report within seventy-two hours. Such reports shall contain:
(1) The names and addresses of the minor and his parents or person or persons having custody of such minor, if known.
(2) The minor's age and the nature and extent of his injuries or physical neglect, including any evidence of previous injuries or physical neglect.
(3) Any other information that such person believes might be helpful in establishing the cause of the injury or physical neglect.

B. Any person other than one required to report or cause reports to be made in subsection A of this section who has reasonable grounds to believe that a minor is or has been a victim of abuse or neglect may report the information to a peace officer or to the child protective services of the tribal social services department.

C. A person having custody or control of medical records of a minor for whom a report is required or authorized under this section shall make such records, or a copy of such records, available to a peace officer or child protective services worker investigating the minor's neglect or abuse on written request for the records signed by the peace officer or child protective services worker. Records disclosed pursuant to this subsection are confidential and may be used only in a judicial or administrative proceeding or investigation resulting from a report required or authorized under this section.

D. When such telephone or in-person reports are received by the peace officer, they shall immediately notify the Tribal Social Services and make such information available to them. Notwithstanding any other statute, when the Tribal Social Services receives these reports by telephone or in person, it shall immediately notify the White Mountain Apache Tribal Police Department.

E. Any person required to receive reports pursuant to subsection A of this section may take or cause to be taken photographs of the child and the vicinity involved. Medical examinations including, but not limited to, radiological examinations of the involved child may be performed.

F. A person furnishing a report, information or records required or authorized under this section, or a person participating in a judicial or administrative proceeding or investigation result from a report, information or records required or authorized under this section, shall be immune from any civil or criminal liability by reason of such action unless such person acted with malice or unless such person has been charged with or is suspected of abusing or neglecting the child or children in question. Except as provided in subsection G of this section, the physician-patient privilege, provided for by professions such as the practice of social work or nursing covered by law or a code of ethics regarding practitioner-client confidences, both as they relate to the competency of the witness and to the exclusion of confidential communications, shall not pertain in any civil or criminal litigation or administrative proceeding in which a child's neglect, dependency, abuse or abandonment is an issue not in any judicial or administrative proceedings resulting from a report, information or records submitted pursuant to this section nor in any investigation of a child's neglect or abuse conducted by a peace officer or the child protective services of the Tribal Social Services Department.

G. In any civil or criminal litigation in which a child's neglect, dependency, abuse or abandonment is an issue, a clergyman, priest, traditional medicine man, or medicine woman shall not, without his or her consent, be examined as a witness concerning any confession made to him or her in his or her role as a clergyman, a priest, a traditional medicine man or medicine woman in the course of the discipline enjoined by the church or tradition to which he or she belongs. Nothing in this subsection discharges a clergyman, priest, traditional medicine man or medicine woman from the duty to report pursuant to subsection A of this section.

H. If psychiatric records are requested pursuant to subsection C of this section, the custodian of the records shall notify the attending psychiatrist, who may excise from the records, before they are made available:
(1) Personal information about individuals other than the patient.
(2) Information regarding specific diagnosis or treatment of a psychiatric condition, if the attending psychiatrist certifies in writing that release of the information would be detrimental to the patient's health or treatment.

I. If any portion of a psychiatric record is excised pursuant to subsection H of this section, a court, upon application of a peace officer or child protective services worker, may order that the entire record or any portion of such record containing information relevant to the reported abuse or neglect be made available to the peace officer or child protective services worker investigating the abuse or neglect.

J. A person who violates any provision of this section is guilty of a minor offense.


SECTION 4.13 COMMERCIAL SEXUAL EXPLOITATION OF A MINOR; CLASSIFICATION

A. A person commits commercial sexual exploitation of a minor by knowingly:
(1) Using, employing, persuading, enticing, inducing or coercing a minor to engage in or assist others to engage in sexual conduct for the purpose of producing any visual or print medium or live act depicting such conduct.
(2) Using, employing, persuading, enticing, inducing or coercing a minor to expose the genitals or anus or the areola or nipple of the female breast for financial or commercial gain.
(3) Permitting a minor under such person's custody or control to engage in or assist others to engage in sexual conduct for the purpose of producing any visual or print medium or live act depicting such conduct.
(4) Transporting or financing the transportation of any minor through or across this reservation with the intent that such minor engage in prostitution or sexual conduct for the purpose of producing a visual or print medium or live act depicting such conduct.

B. Commercial sexual exploitation of a minor is a class 2 major offense and if the minor is under fifteen years of age it is punishable pursuant to 4.19.


SECTION 4.14 SEXUAL EXPLOITATION OF A MINOR; CLASSIFICATION

A. A person commits sexual exploitation of a minor by knowingly:
(1) Recording, filming, photographing, developing or duplicating any visual or print medium in which minors are engaged in sexual conduct.
(2) Distributing, transporting, exhibiting, receiving, selling, purchasing, possessing or exchanging any visual or print medium in which minors are engaged in sexual conduct.

B. Sexual exploitation of a minor is a class 2 major offense and if the minor is under fifteen years of age it is punishable pursuant to 4.19.


SECTION 4.15 PORTRAYING ADULT AS MINOR; CLASSIFICATION

A. It is unlawful for any person depicted in a visual or print medium or live act as a participant in sexual conduct to masquerade as a minor.

B. It is unlawful for any person knowingly to produce, record, film, photograph, develop, duplicate, distribute, transport, exhibit, sell, purchase or exchange any visual or print medium whose text, title or visual representation depicts a participant in sexual conduct as a minor even though any such participant is an adult.

C. Any person who violates this section is guilty of a class 1 minor offense.


SECTION 4.16 PERMISSIBLE INFERENCES

In a prosecution relating to the sexual exploitation of children, the trier of fact may draw the inference that a participant is a minor if the visual or print medium or live act through its title, text or visual representation depicts the participant as a minor.


SECTION 4.17 ADMITTING MINORS TO PUBLIC DISPLAYS OF SEXUAL CONDUCT; CONSTRUCTIVE KNOWLEDGE OF AGE; CLASSIFICATION

A. It is unlawful for an owner, operator or employee to admit a person under the age of eighteen into any business establishment where persons, in the course of their employment expose their genitals or anus or the areola or nipple of the female breast.

B. An owner, operator or employee who admits a person to an establishment without evidence of the person's age is deemed to have constructive knowledge of the person's age.

C. A person who violates this section is guilty of a class 1 minor offense.


SECTION 4.18 DETENTION FOR OBTAINING EVIDENCE OF IDENTIFYING PHYSICAL CHARACTERISTICS

A. A peace officer who is engaged, within the scope of his authority, in the investigation of an alleged criminal offense punishable up to one year under this Chapter may make written application upon oath or affirmation to a tribal court judge for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the tribal court's jurisdiction. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. Such order may be issued by the tribal judge upon a showing of all of the following:
(1) Reasonable cause for belief that a specifically described criminal offense punishable under this Chapter has been committed.
(2) Procurement of evidence of identifying physical characteristics from an identified or particularly described individual may contribute to identification of the individual who committed such offense.
(3) Such evidence cannot otherwise be obtained by the investigating officer form either the law enforcement agency employing the affiant or the criminal identification division of the Bureau of Indian Affairs Police Federal Bureau of Investigation, or Whiteriver Police Department.

B. Any order issued pursuant to the provisions of this section shall specify the following:
(1) The alleged criminal offense which is the subject of the application.
(2) The specific type of identifying physical characteristic evidence which is sought.
(3) The relevance of such evidence to the particular investigation.
(4) The identity or description of the individual who may be detained for obtaining such evidence.
(5) The name and official status of the investigative officer authorized to effectuate such detention and obtain such evidence.
(6) The place at which the obtaining of such evidence shall be effectuated.
(7) The time that such evidence shall be taken except that no person may be detained for a period of more than three hours for the purpose of taking such evidence.
(8) The period of time, not exceeding fifteen days, during which the order shall continue in force and effect. If the order is not executed within fifteen days, a new order may be issued, pursuant to the provisions of this section.

C. The order issued pursuant to this section shall be returned to the court not later than thirty days after its date of issuance and shall be accompanied by a sworn statement indicating the type of evidence taken. The court shall give to the person form whom such evidence was taken a copy of the order and a copy of the sworn statement indicating what type of evidence was taken, if any.

D. For the purpose of this section, "identifying physical characteristics" includes, but is not limited to, the fingerprints, palm prints, footprints, measurements, handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, or photographs of an individual.


SECTION 4.19 DANGEROUS CRIMES AGAINST CHILDREN; SENTENCES; DEFINITIONS

A. "Dangerous crime against children" means of any of the following committed against a minor under fifteen years of age.
(a) Second degree murder.
(b) Aggravated assault resulting in serious physical injury or committed by the use of a deadly weapon or dangerous instrument.
(c) Sexual assault.
(d) Molestation of a child.
(e) Sexual conduct with a minor.
(f) Commercial sexual exploitation of a minor.
(g) Sexual exploitation of a minor.
(h) Child abuse as defined in 4.10.
(i) Kidnapping.
(j) Sexual abuse.
(k) Taking a child for the purpose of prostitution.
(l) Child prostitution.
(m) Involving or using minors in drug offenses.

B. Classification
(1) A dangerous crime against children is a class 1 major offense if it is a completed offense.
(2) A dangerous crime against children is a class 3 major offense if it is a preparatory offense.

C. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a dangerous crime against children shall be sentenced to a presumptive term of imprisonment for one year.

D. A person sentenced for a dangerous crime against children pursuant to this section is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release form confinement until the sentence imposed by the court has been served.

E. In addition to the term of imprisonment imposed pursuant to this section and notwithstanding any other law, the court shall order that a person convicted of any dangerous crime against children be supervised on parole after release from confinement on such conditions as the court deems appropriate.

F. The sentence imposed on a person by the court for a dangerous crime against children shall be consecutive to any other sentence imposed on the person at any time.


SECTION 4.20 CLASSIFICATION OF SEXUAL OFFENSES; IMPRISONMENT AND FINES

A. A sentence of imprisonment for sexual offenses shall be a definite term and the person sentenced, unless otherwise provided by law, shall be committed to the custody of the White Mountain Apache Tribal Police Department.

B. The term of imprisonment and fine for major sexual offenses shall be determined as follows for the first offense:
(1) Class 1 major offense: A person found guilty of a class 1 major offense may be sentenced to imprisonment for a period not to exceed one year and to pay a fine not to exceed Five Thousand Dollars ($5,000).
(2) Class 2 major offense: A person found guilty of a class 2 major offense may be sentenced to imprisonment for a period not to exceed eight (8) months and to pay a fine not to exceed Two Thousand Dollars ($2,000).
(3) Class 3 major offense: A person found guilty of a class 3 major offense may be sentenced to imprisonment for a period not to exceed four (4) months and to pay a fine not to exceed One Thousand Dollars ($1,000).

C. The term of imprisonment and fine for minor sexual offenses shall be determined as follows for the first offense:
(1) Class 1 minor offense: A person found guilty of a class 1 minor offense may be sentenced to imprisonment for a period not to exceed sixty (60) days and pay a fine not to exceed Two Hundred Dollars ($200.00).
(2) Class 2 minor offense: A person found guilty of a class 2 minor offense may be sentenced to imprisonment for a period not to exceed thirty (30) days and pay a fine not to exceed One Hundred Dollars ($100.00).
(3) Class 3 minor offense: A person found guilty of a class 3 minor offense may be sentenced to imprisonment for a period not to exceed twenty (20) days and pay a fine not to exceed Fifty Dollars ($50.00).


SECTION 4.21 SENTENCING

A. Increase in Sentencing: Sentencing provided in 4.20 for first conviction of a major or minor sexual offense, except those offenses involving a use or exhibition of a deadly weapon or dangerous instrument or when the intentional or knowing infliction of serious physical injury upon another has occurred, nay be increased by the court up to twenty-five per cent, not to exceed on year imprisonment or $5,00 fine. Said increase shall be based on the following circumstances.
(1) Infliction or threatened infliction of serious physical injury.
(2) Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of a crime.
(3) If the offense involves the taking of or damage to property, the value of the property so taken or damaged.
(4) Presence of an accomplice.
(5) Especially heinous, cruel or depraved manner in which the offense was committed.
(6) The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.
(7) The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.
(8) At the time of the commission of the offense, the defendant was a public servant and the offense involved conduct directly related to his office or employment.
(9) The physical, emotional and financial harm caused to the victim or, if the victim has died as a result of the conduct of the defendant, the emotional and financial harm caused to the victim's immediate family.
(10) During the course of the commission of the offense, the death of an unborn child at any stage of its development occurred.
(11) The defendant was previously convicted of a sexual offense within the ten years immediately preceding the date of the offense. A conviction outside the jurisdiction of the White Mountain Apache Tribe for an offense which if committed within the Tribe's jurisdiction would be punishable as a sexual offense is a sexual offense conviction for the purposes of this paragraph.
(12) If the victim of the offense is sixty-five or more years of age or is a handicapped person.
(13) Any other factors which the court may deem appropriate to the ends of justice.

B. Reduction in Sentencing: Sentenced provided in 4.20 for a first conviction of a major or minor sexual offense, except those offenses involving a use of exhibition of a deadly weapon or dangerous instrument or when the intentional or knowingly infliction of serious physical injury upon another has occurred, may be reduced by the court up to twenty-five per cent of the sentence and fine prescribed for said offense. Said reduction shall be based on the following circumstances:
(1) The age of the defendant.
(2) The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirement of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.
(3) The defendant was under unusual or substantial duress, although not such as to constitute a defense to prosecution.
(4) The degree of the defendant's participation in the crime was minor, although not so minor as to constitute a defense to prosecution.
(5) Any other factors which the court may deem appropriate to the ends of justice.

C. The upper or lower term imposed pursuant to this section may be imposed only if the alleged circumstances of the crime are found to be true by the tribal judge upon any evidence or information introduced or submitted to the court prior to sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support are set forth on the record at the time of sentencing.

D. The victim of any sexual offense or the immediate family of the victim if the victim has died as a result of the conduct to the defendant may appear personally or by counsel at any sentencing proceeding to present evidence and express opinions concerning the crime, the defendant or the need for restitution. The court in imposing sentence shall consider the evidence and opinions presented by the victim or the victim's immediate family at any sentencing proceeding or in the presentence report.

E. Notwithstanding any other provisions of this Chapter, if a person is convicted of any class 3 major offense not involving the intentional or knowing infliction of serious physical injury or the use of a deadly weapon or dangerous instrument if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a class 3 major offense, the court may enter judgment of conviction for a class 1 minor offense and make disposition accordingly or may place the defendant on probation and refrain form designating the offense as a major offense or minor offense until the probation is terminated. The offense shall be treated as a class 3 major offense for all purpose until such time as the court may actually enter an order designating the offense as a minor offense. The provisions of this subsection shall not apply to any person who stands convicted of a major offense and who has previously been convicted of two or more minor offenses. When a crime is punishable in the discretion of the court by a sentence as a class 3 major offense or a minor offense, the offense shall be deemed a class 1 minor offense if the prosecuting attorney files a complaint, with the consent of the defendant, amending the complaint to charge a minor offense.


SECTION 4.22 REGISTRATION OF SEX OFFENDERS

A. Person required to register; procedure:
(1) Any person eighteen years of age or older or who has been tried as an adult who has been convicted of a violation of this Chapter or who has been convicted of an offense committed in another state which committed on the Fort Apache Indian Reservation would be a violation of this chapter shall, within thirty days after the conviction or within thirty days after entering the Reservation for the purpose of residing, employment, or setting up a temporary domicile for the thirty days or more, shall register with the White Mountain Apache Police Department.
(2) At the time of registering, the person shall sign a statement in writing giving such information as required by the Chief of Police. The Police Department shall fingerprint and photograph the person and within three days thereafter shall send copies of the statement, fingerprints and photographs to Chief of Police.

B. Violation; classification: A person who, being subject to registration under the provisions of subsection A fails to register as prescribed, is guilty of a class 1 minor offense.


SECTION 4.23 EXCLUSION OF NON-MEMBER

Any non-member convicted for violation of this chapter may be excluded from the Fort Apache Indian Reservation in accordance with the Law and Order Code of the White Mountain Apache Tribe in addition to any other penalties provided herein.





CHAPTER FIVE

VICTIM'S RIGHTS ACT


[NOTE: CHAPTER FIVE IS DERIVED FROM ORDINANCE NO. 171, ENACTED JULY, 1991]

SECTION 5.1 VICTIM'S BILL OF RIGHTS

A. To preserve and protect victim's rights to justice and due process, a victim of crime has a right:
(1) To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.
(2) To be informed, upon request, when the accused or convicted person is released from custody or has escaped.
(3) To be present at and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present.
(4) To be heard at any proceeding involving a post-arrest release decision, a negotiated plea, and sentencing.
(5) To refuse an interview, deposition, or other discovery request by the defendant, the defendant's attorney, or other person acting on behalf of the defendant.
(6) To confer with the prosecution after the crime against the victim has been charged, before trial or before any disposition of the case and to be informed of the disposition.
(7) To read pre-sentence reports relating to the crime against the victim when they are available to the defendant.
(8) To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury.
(9) To be heard at any proceeding when any post-conviction release from confinement is being considered.
(10) To a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.
(11) To have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims' rights and to have these rules be subject to amendment or repeal by the Tribal Council to ensure the protection of these rights.
(12) To be informed of victims' constitutional rights.

B. A victim's exercise of any right granted by this section shall not be grounds for dismissing any criminal proceeding or setting aside any conviction or sentence.

C. "Victim" means a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person's spouse, parent, child or other lawful representative, except if the person is in custody for an offense or is the accused.

D. The Tribal Council, or the people by initiative or referendum have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section, including the authority to extend any of these rights to juvenile proceedings.

E. The enumeration in the constitution of certain rights for victims shall not be construed to deny or disparage others granted by the tribal council or retained by victims.


This page is maintained by:
Marilyn K. Nicely, American Indian Law Subject Specialist: nicely@www.law.ou.edu
Date Last Modified: 18 November, 1997
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