Chapter 1. GENERAL PROVISIONS
2.1.1 SIGNATURE. Defined. The act of putting a man's name at the end of an instrument to attest its validity. A signature may be written by hand, printed, stamped, typewritten, or engraved. And whatever mark, symbol, or device one may choose to employ as representative of himself is sufficient.
2.1.2 WORDS USED IN PRESENT TENSE. Unless otherwise provided, words used in this Ordinance in the present tense include the future as well as the present. Words used in the masculine include the feminine and the neuter, and plural includes the singular and vice-versa. The term "writing" includes the printing. The term "oath" includes affirmation.
2.1.3 SPECIAL PROVISIONS CONTROL GENERAL PROVISIONS. In constructing this Ordinance, each general provision shall be controlled by any special provision on the same subject if there be a conflict.
2.1.4 CONSTRUED ACCORDING TO THE PLAIN IMPORT OF ITS LANGUAGE. This Ordinance, together with any additions hereto which may be enacted, is to be construed according to the plain import of its language. No Indian shall be punished for an offense which is not made penal by the plain import of the words upon pretense that such person has offended against its spirit. Words not specifically defined herein areí to be. taker. according to their ordinary meaning.
2.1.5 STATUTE OF LIMITATIONS. No prosecution shall be maintained under this Ordinance unless the action shall have been commenced within one year after the commission of the offense. The one-year time limit does not include time spent outside of the jurisdiction-of the Tribal Courts for the purpose of avoiding prosecution. The burden of proving the reason for absence from the jurisdiction shall be upon the accused.
Chapter 2. COMMENCEMENT OF CRIMINAL PROCEEDINGS
2.2.1 COMPLAINT - Defined. A Complaint is a written charge by any person presented to the Hopi Trial Court judge having jurisdiction, that an Indian has committed a specified offense with an offer to prove the fact to the end that a prosecution may be instituted.
2.2.2 CONTENTS OF COMPLAINT.
Each Complaint must contain:
2.2.3 FILING OF COMPLAINT. The Trial Court judge must file such complaint and mark thereon the date of filing same.
Chapter 3. ARREST, DELIVERY ON WARRANT, AND HOT PURSUIT
2.3.1 ARREST - Defined; PERSONS QUALIFIED TO MAKE; AID MAY BE REQUIRED. Arrest is the taking of any Indian person in custody that he may be. held to answer far a Trial offense. An arrest may be made by:
2.3.2 ARREST, UNDER A WARRANT. A warrant of Arrest is an order in writing signed by a Trial Court judge commanding the arrest of the person. The Warrant must specify the name of the Indian person; or, if the name of the person is unknown, the Indian person may be designated by any name if the Warrant also contains a description by which the Indian person can be identified with reasonable certainty. It must also state the offense or offenses charged and the date of issuing it. A Warrant of Arrest shall be void outside the limits of the Hopi Tribe jurisdiction as defined in Section 1.7.2 of this Ordinance.
2.3.3 DIRECTION TO PEACE OFFICER; EXECUTION. The Warrant may be directed to any enforcement officer as defined in Section 1.9.1 of this Ordinance and shall be executed by any such officer to whom it may be delivered.
2.3.4 EXECUTION OF WARRANT. The Warrant shall be executed by the arrest of the Indian person. The peace officer need not have the Warrant in his possession at the time of the arrest; but upon request shall, as soon as possible, show it to the defendant. At the time of making the arrest, the arresting officer must inform the defendant that he has the right to remain silent; that anything he says may be used against him in Court; that he may cease talking at any time he desires; and that he has a right to counsel unless he voluntarily waives such right.
2.3.5 ARREST, WITHOUT A WARRANT. Any enforcement officer may, without a Warrant, arrest an Indian person:
2.3.6 BREAKING INTO DWELLING HOUSE OR OTHER STRUCTURE TO MAKE-ARREST; DEMAND FOR ADMITTANCE REQUIRED. Any enforcement officer having authority to make an arrest may, and in the case where a reasonable person has reason to believe that life or. limb is in immediate danger, break open. an outer or inner door or window of a dwelling house or other structure for the purpose of making the arrest if, after a notice of his intention, he is not allowed admittance within a reasonable time.
2.3.7 PROMPT APPEARANCE OF DEFENDANT BEFORE A TRIAL COURT JUDGE. An officer making an arrest shall take such Indian defendant without undue delay before a Trial Court judge of the Hopi Tribe for arraignment as provided herein. When an Indian defendant arrested without a warrant is brought before the Court, a complaint shall be filed forthwith. The Indian defendant arrested shall be arraigned at the next regularly scheduled session of the Court. Any person brought before the Court at the session immediately following the arrest shall be considered to have been presented before the Court without undue delay.
2.3.8 RETURN OF WARRANT. Upon service of the Warrant of Arrest, or upon failure to find and apprehend the accused, the officer to whom the Warrant is directed shall endorse and return it to the Hopi Trial Court for filing.
2.3.9 EXTRADITION. The Chairman of the Hopi Tribe is hereby empowered to negotiate with any state, county, or municipal jurisdiction or Indian Tribe, and to enter into reciprocal agreements, attached hereto and by reference made a part hereof, for the extradition, bath to and from the Hopi Reservation, of persons accused of criminal offenses. Such agreements shall, while in effect, be the law of the Hopi Tribe until the date or expiration thereof or until rescinded. The Tribal Chairman shall notify the Tribal Council of all such agreements and the Tribal Council may, by resolution, rescind any such agreements. (Amended H-69-76)
RECIPROCAL EXTRADITION AGREEMENT
This agreement, entered into this _______ day of _____, between the Hopi Tribe and _______________________, by and through their authorized representatives, is intended to provide a practical, workable framework in which said jurisdictions can obtain the extradition, for purposes of criminal prosecution, of persons violating the laws of either jurisdiction and fleeing to or found in the territory of the other.
Section 1. Definitions
(1) "Executive Authority" means the Chairman of the Hopi Tribe, in the case of the Hopi Tribe, and the __________________ in the case of ___________________________.
(2) "Territorial Jurisdiction" means all lands and property within the limits of the territorial jurisdiction of either party hereto.
(3) "Criminal offense" means any act or failure to act which i s defined by the law of the requesting jurisdiction to be criminal, and in the case of the Hopi Tribe shall include any act or failure to act made criminal by any ordinance of the Hopi Tribal Council, and in the case of , shall mean any act or failure to act which is declared to be, or punished as if it were, a felony. "Criminal offense" shall include a sentence of imprisonment for a criminal offense from which the accused person has fled or escaped before completing or being released by lawful procedure.
(4) Requesting jurisdiction" means the jurisdiction which initiates a request for the other jurisdiction to turn over a person accused of a criminal offense.
(5) "Responding jurisdiction" means the jurisdiction which receives a request to turn over a person accused of a criminal offense.
(6) "Prosecuting authority" means the officer of either jurisdiction charged with the duty to prosecute the criminal offense for which extradition is sought.
Section 2. Persons charged with criminal offense to be delivered upon demand.
Subject to the laws applicable to each party hereto, and except as otherwise provided in this agreement, the executive authority of each jurisdiction which is a party hereto shall cause to be arrested and delivered up to the executive authority of the requesting jurisdiction, any person within the territorial jurisdiction of the responding jurisdiction accused of committing a criminal offense within the territorial jurisdiction of the, requesting jurisdiction, upon receipt of a request for extradition as specified herein.
Section 3. Request for Extradition.
(1) The. request for extradition shall be in writing and addressed from the executive authority of the requesting jurisdiction to the executive authority of the responding jurisdiction, and shall request the extradition of a person charged with committing a criminal offense in the requesting jurisdiction and having thereafter fled from the requesting jurisdiction.
(2) The request for extradition must be accompanied by certified copies of- the ~f4llowing documents:
(a) The indictment, information, or criminal complaint, together with any affidavits relating thereto, or, in the case of the failure to serve or complete a sentence or imprisonment lawfully imposed, the judgement and sentence and any affidavits or documents relating thereto plus a certificate of the executive authority of the requesting jurisdiction that the person requested has escaped from the confinement, or has otherwise unlawfully failed to complete same.
(b) A warrant of arrest, issued by the requesting jurisdiction.
(3) The indictment, information or criminal complaint, together with supporting affidavits, must substantially charge the person requested with having committed a criminal offer-se under the law o-f the requesting jurisdiction.
(4) The authenticity of the documents submitted and the validity and good faith of the request for extradition must be certified to in the request by the executive authority of the requesting jurisdiction.
Section 4. Procedure Upon Receipt of a Request for Extradition
The executive authority of the responding jurisdiction shall, within 5 days after receipt of a request for extradition, do one of the following:
(1) Forward the request, with his approval endorsed thereon, to a judge of his jurisdiction empowered to issue warrants of arrest; or
(2) Return the request to the executive authority of the requesting jurisdiction with his reasons for not approving the request endorsed thereon, provided however, that the executive authority shall not inquire into the guilt or innocence of the accused as a condition to granting or withholding approval.
Section 5. Arrest of Accused Person
(1) Upon receipt of a request for extradition with the approval of the executive authority of the responding jurisdiction endorsed thereon, the judge of the responding jurisdiction shall issue a warrant of arrest for the person named in the request, and deliver said warrant of arrest to the law enforcement officers of the responding jurisdiction having authority to make arrests.
(2) The warrant of arrest so issued shall substantially conform to the requirements for such documents in the responding jurisdiction and shall recite the facts necessary to the validity of its issuance.
(3) Such warrants of arrest shall authorize the arrest of the accused at any time or place within the territorial jurisdiction of the responding jurisdiction in the manner provided for other arrests in that jurisdiction, and the authority of the officers executing said warrant shall be the same as when making other, arrests.
Section 6. Procedure upon Arrest
(1) As soon as practicable after the arrest of the accused, he shall be taken before the judge issuing the warrant of arrest and, after confirming his identity, there he shall be advised or the cause of the arrest, and, if he so desires, given an opportunity to obtain counsel.
(2) If the accused or his counsel desires to test the legality of the arrest, a hearing to determine such issue shall be scheduled and held as soon as is practicable. Notice of such hearing-shall be given to the prosecuting authority of the responding jurisdiction, and to the agent of the requesting jurisdiction into whose custody the accused would otherwise be delivered.
(3) No person arrested under this agreement shall be delivered up to the requesting jurisdiction until he has either had a hearing to test the legality of his arrest, or has, in oven court, made an informed waiver of such hearing.
(4) Persons arrested pursuant to this agreement shall be, incarcerated in the local jail of the respective jurisdiction, as in the case of regular arrests.
(5) Any person arrested pursuant to this ,agreement shall be given the opportunity to make bail in any case where his delivery to the requesting jurisdiction is not imminent. Such bail shall be in amount sufficient to reasonably assure the appearance of the accused at a time and place specified by the court. Forfeiture of bail and arrest for nonappearance, where appropriate, may be made as in other cases.
Section 7. Procedure if Prosecution is pending in the Responding Jurisdiction
If a criminal prosecution has been instituted in the responding jurisdiction against the person whose extradition is sought, the executive authority of the responding jurisdiction, in his discretion, may either surrender the accused to the requesting jurisdiction or hold him until he has been tried and discharged or convicted and punished in the responding jurisdiction.
Section 8. Manner of Initiating Requests far Extradition
The prosecuting authority of each jurisdiction shall have authority to initiate requests for extradition, to administer the details thereof, and to designate officers to receive persons extradited from the other jurisdiction.
Section 9. Prosecution in Requesting Jurisdiction
(1) A person extradited under this agreement shall be given the same rights and privileges under the laws of the requesting jurisdiction as any other person accused of a criminal offense by that jurisdiction.
(2) Criminal prosecution in the requesting jurisdiction shall not be limited to the criminal offense specified in the request for extradition.
Section 10. Sovereignty
Nothing in this agreement or in the implementation hereof shall be deemed to be a grant, cession or waiver of any of the sovereign governmental rights, powers, or jurisdiction of either party hereto.
Section 11. Duration of Agreement.
(1) This agreement shall become effective upon its execution by the executive authorities- of the parties hereto.
(2) This agreement shall remain in effect until canceled by notification from the executive authority of either jurisdiction to the other.
Done at ____________________ on the day and year first above written.
2.3.10 HOT PURSUIT - Defined. For the purpose of this Ordinance, the term "hot pursuit" shall mean the act of following by an enforcement officer to overtake an Indian person beyond the boundaries of the Hopi Tribal Courtsí jurisdiction whom the officer has reason to believe has committed a violation of the ordinances of the Hopi Tribe, intending to arrest such person for such violation. The term shall include and be limited to immediate and. uninterrupted chase. Any enforcement officer as defined in Section 1.9.1 of this ordinance shall have the authority to engage in hot pursuit to apprehend and return to this jurisdiction any alleged violator apprehended after this pursuit.
Chapter 4 . SEARCH WARRANT
2.4.1 SEARCH WARRANT - Defined. A search warrant is an Order in writing, signed by the Trial Court judge, directed to any enforcement officer, as designated by Section 1.9.1 of this Ordinance, commanding him to search for items or articles designated in the warrant and bring them before the Hopi Trial Court.
2.4.2 ISSUANCE & CONTENTS. A search warrant shall not be issued except upon probable cause, supported by oath or affirmation, naming or describing the person, and particularly describing the items or articles to be seized, the place to be searched, and the reason or reasons for its issuance.
2.4.3 EXECUTION OF WARRANT; OFFICERS AUTHORIZED; AUTHORITY TO BREAK IN STRUCTURE. A search warrant shall be served by any duly authorized enforcement officer during any time of the day or night unless the Trial Court finds sufficient reason to limit the time in which the warrant may be served and so endorses the warrant. The officer may break open any building, structure, or container.
2.4.4 TIME LIMIT; EXECUTION OF WARRANT; VOID AT EXPIRATION. A search warrant must be executed and returned within ten (10) days to the Trial Court judge by whom it was issued. After the expiration of such time, the warrant, unless the time is extended in the discretion of the Trial Court by endorsement, is void.
2.4.5 INVENTORY. The officer must immediately return the warrant to the Trial Court judge, as set forth in Section 2.4.4 of this Ordinance, together with a complete inventory of the items or articles taken. The inventory must be made before witnesses or in the presence of the person. from whose possession it was taken. The Trial court judge must deliver a copy of the inventory to the person from whose possession the items or articles were taken.
2.4.6 MUST BE TAKEN, REDUCED TO WRITING; FILED. If the grounds on which the warrant was issued be denied, the Trial Court judge must proceed to take testimony in relation thereto, reduce it to writing, authenticate it, and transmit it to the Court, which shall le the judge of the validity of the issuance of the search warrant.
2.4.7 SEARCH & SEIZURE INCIDENTAL TO ARREST. All reasonable searches and seizures which are incidental to a legal arrest are valid.
2.4.8 INADMISSIBLE EVIDENCE. All evidence unlawfully obtained shall be inadmissible.
Chapter 5. BAIL
2.5.1 BAIL - Defined. To set at liberty an Indian person arrested or imprisoned on security being taken for his appearance. His sureties shall be regarded as custodians of the principalís person. This provision is applicable only to offenses over which the Tribe has jurisdiction.
2.5.2 BAILABLE OFFENSES. All Indian defendants, as a matter of right, are bailable before conviction, by sufficient cash or surety bail bond, and after conviction if an appeal be pending. If bail is not met, the Indian defendant shall be committed until his case is heard.
2.5.3 TAKING OF BAIL DEFINED; ENTERED BY CLERK. The taking of bail consists in the acceptance by the Trial Court of sufficient cash or surety bond for the appearance of the defendant. Upon filing, the Clerk shall enter in the register of actions the date and amounts of the bond or name or names of the surety or sureties thereon and the amount of the bond.
2.5.4 BAIL SET; MAXIMUM AMOUNT. Bail shall be set by the judge upon the showing of probable cause by the prosecutor or complainant. Bail shall be fired in such amount and in such form as, in the judgment of the Court, will insure the presence of the defendant in Court at the time of trial, having due regard for the nature and circumstances of the offense charged the character and reputation of the defendant and the previous criminal record of the defendant. In no case shall the bail exceed four times the maximum cash penalty for each offense for which the defendant has been charged.
2.5.5 DISCHARGE OF DEFENDANT; BAIL FURNISHED; ORDER. Upon, the execution of the requisite recognizance or bail bond to the Tribe, the Court must, if the defendant is in custody, issue a written order for his discharge, upon the delivery of which to Ďthe proper officer the defendant must be discharged.
2.5.6 INCREASE OR DECEASE OF BAIL BOND; COMMITMENT ON DEFAULT. When proof is made to the Court having authority to commit on criminal charges that a person previously admitted to bail or. any such charge is about to abscond, or that his bail is insufficient, the Court may increase the amount of required bail or, in default thereof, cause him to be committed in jail. Upon good cause shown, the Trial Court may reduce the bail originally set.
2.5.7 ARREST OF DEFENDANT BY SURETY. For the purpose of surrendering the defendant, the surety, at any time before the defendant is required to appear and at any place within the Reservation, may himself arrest the defendant, or, by written authority endorsed on a certified copy of the bond, may empower any person of suitable age and discretion to do so and cause the delivery of the defendant before the Court forthwith, whereupon said bond shall be released.
2.5.8 FORFEITURE OF BAIL. If the defendant fails to appear for trial judgment or when his personal appearance in Court is lawfully required, the Court may direct an entry of such failure to be made in the record, and the surety bond, or the money deposited instead of the bond, may be forfeited without further proceedings, or the Court may thereafter issue a warrant for the arrest of the defendant.
2.5.9 RETURN OF CASH OR SURETY BOND. Any security given by surety or the defendant must be returned upon the return of a not guilty verdict or upon the execution of the sentence.
2.5.10 RELEASE ON RECOGNIZANCE. At arraignment, the Court, in its discretion, may release a defendant upon the defendantís own recognizance.
2.5.11 BAIL FOR JUVENILE PERSONS. No bail shall be required of any person who has not reached his sixteenth birthday. A person who has not reached his sixteenth birthday shall be released, pending trial, under the custody of a parent, guardian, or adult friend as may be determined by the Tribal Juvenile Court; provided, that such person shall guarantee in writing the appearance of the juvenile before the next regular session of the Tribal Juvenile Court; and provided further, that if no adult person as named above will accept the responsibility for the juvenile person, the Tribal Juvenile judge shall determine and order a proper disposition of the juvenile.
Chapter 6. ARRAIGNMENT
2.6.1 ARRAIGNMENT - Defined. The arraignment must be made by the Court, and consists in reading the complaint to the. defendant, and delivering to him a true copy thereof and of the endorsements thereon, and asking him whether he pleads guilty or . not guilty to the offense charged in the complaint.í
2.6.2 PROCEDURE AT ARRAIGNMENT. Arraignment shall be conducted in open Court, and shall consist of the following:
a. Reading the complaint to the accused.
b. Stating to him the substance of the charges and the language of the law establishing the offense and fixing the penalty.
c. Advising him of his rights to counsel at his own expense, if he so desires.
d. Calling on him to plead to the charges.
2.6.3 PLEAS. The defendant may plead, "guilty," "not guilty," "not guilty by reason of former jeopardy," or "not guilty by reason of insanity." If the Indian defendant wishes to plead "not guilty," he may demand a jury trial. After a plea of "not guilty," the Court shall set a date for trial which shall allow sufficient time for defendant to prepare his defense. In no case shall the time be less than seven (7) days unless waived .y the defendant. If the defendant refuses to plead, a plea of "not guilty" will be entered for him by the Court. If the defendant wishes to plead "guilty," ha may be sentenced immediately or within a reasonable time thereafter. A plea made to the Court must be made in open court with the defendant himself in Court. When the Indian defendant pleads a former jeopardy and shall have been acquitted or convicted upon complaint, the conviction or acquittal is a bar to another complaint for the offense charged in the former, or for aní attempt to commit the same, or an offense necessarily included therein of which he might have been convicted under that complaint.
Chapter 7. PRE-TRIAL MOTIONS
2.7.1 MOTIONS - Defined. A motion is the formal mode in which a party submits a proposed measure or resolution for the consideration and action of the Court.
2.7.2 MOTION TO SET ASIDE THE COMPLAINT. The complaint must be set aside by the Trial Court upon the defendantís motion in the following cases:
a. Where it is found not to comply with the requirements of Section 2.2.2 of this Ordinance.
b. That the defendant has been charged or committed without reasonable or probable cause.
c. Upon a determination that the Court has no jurisdiction over the person or the offense.
2.7.3 ORDER SETTING ASIDE COMPLAINT NOT BAR TO SUBSEQUENT PROSECUTION. An order to set aside the complaint, as provided far in this chapter, is no bar to future prosecution for the same offense, except in the case wherein the Trial Court has no jurisdiction.
2.7.4 MOTION WAIVED BY FAILURE TO MOVE TO SET ASIDE COMPLAINT. If the motion to set aside the complaint is not made before the Indian defendant pleads, the defendant is precluded from afterwards making the motion, except in the case wherein the Court has no jurisdiction.
2.7.5 PRE-TRIAL MOTIONS HEARD AT TIME MADE, EXCEPT GOOD CAUSE POSTPONEMENT. All pre-trial motions must be ruled upon at the time they are made unless for good cause the Trial Court postpones the hearing to another time.
2.7.6 MOTION FOR A BILL OF PARTICULARS. The defendant may, in order to obtain facts other than those specified in the complaint, make a motion for a bill of particulars.
2.7.7 MOTION TO SUPPRESS EVIDENCE. A defendant has the right to file with the Trial Court a motion to suppress evidence which he contends has been obtained from him in an unlawful manner. The evidence in question may be a tangible item or an intangible item. If the Trial Court is satisfied that the evidence has been unlawfully obtained, it shall order the evidence suppressed. If the Trial Court decides that the evidence was lawfully obtained, it may be used against the defendant.
Chapter 8. TRIAL, GENERAL PROVISIONS
2.8.1 CRIMINAL ACTION - Defined. A criminal action is prosecuted by the Tribe as a party against a person charged-with a Tribal offenses for the punishment thereof.
2.8.2 IRREGULARITIES, MISTAKES OMISSIONS HAVE NO LEGAL EFFECT UNLESS ACTUALLY PREJUDICIAL. Neither a departure from the_ form or mode prescribed in this chapter in respect to any pleading or proceedings nor an error or mistake therein renders it invalid, unless it has prejudiced, the defendant. i
2.8.3 SUMMONING JURORS & WITNESSES. The Trial Court shall have the power to issue summons to witnesses and jurors. The summons must contain the reason for summoning the person and the number of days the person will be required to be present. If the juror or witness is summoned ad appears in court as required, he shall receive the sum of Five Dollars ($5.00) for each day that he is required to attend as a juror or witness. Any fees paid to jurors or witnesses shall be taxed as costs against the defendant, if found guilty. Said juror and witness fees shall be paid by the Tribe.
2.8.4 TRIAL BY JURY OR BY THE COURT. Cases shall be tried by the Court unless the defendant shall file with the Clerk of the Court a written request nor a jury trial not less than ten (10) days prior to the date of the trial, which jury shall consists of six (6) in number aid shall be selected as hereinafter provided.
2.8.5 RIGHTS OF ACCUSED. In all criminal prosecutions, the accused Indian shall have the right to defend himself in person or, at his own expense, by counsel; to demand the nature and cause of the accusation against him face to face; to have compulsory process served for obtaining witnesses in his behalf; and to a speedy public trial by an impartial jury. No Indian person shall be compelled in any criminal case to give evidence against himself or be twice put in jeopardy for the same offense; upon request, the accused or a juror shall be entitled to an interpreter.
2.8.6 PRESENCE OF THE DEFENDANT. The Indian defendant in a criminal case shall be present in Court at every stage of the proceedings, including empanelling of the jury and the return of the verdict, where trial is by jury, and at the imposition of the sentence.
2.8.7 CALENDAR; CLERK OF COURTíS DUTIES. The Clerk of the Court must keep a calendar of all criminal actions pending in the Court, enumerating them according to the date of the filing of the complaint, specifying the offense charged and whether the defendant is in custody or on bail.
2.8.8 SETTING CASES FOR TRIAL; MAXIMUM TIME; CONTINUANCES; PROOF REQUIRED; LENGTH; PRECEDENCE OF CRIMINAL CASES. The Court shall set all criminal cases for trial as soon as possible after the date of entry of the plea of the defendant. No continuances of the trial shall be granted except upon affirmative proof in open court, upon reasonable notice, that the ends of justice require a continuance. The defendant shall be entitled to a reasonable continuance, but such continuance shall not exceed thirty (30) days, unless for good cause. Criminal cases shall be given precedence over civil cases.
2.8.9 DEATH, ILLNESS; SUBSTITUTIONS AUTHORITY OF SUBSTITUTE JUDGE. If, after the commencement of the trial of a criminal action or proceeding, the judge presiding at such trial shall die, become ill, or for any other reason be unable to proceed with and finish the trial, another judge may proceed with and finish the trial. If there be no other judge available, then the Clerk of-that Court shall adjourn the Court until such time as by stipulation in writing between the parties to the proceeding, a judge shall be agreed upon by them and such judge shall arrive to complete said trial. The judge authorized by the provision of this section to proceed with and complete the trial shall have the same power, authority, and jurisdiction as if the trial had been commenced before such judge.
Chapter 9. FORMATION OF THE JURY
2.9.1 QUALIFICATIONS OF JURORS. The basic qualifications of a juror shall be: Any person who is a duly enrolled member of the Hopi Tribe of Indians; who has reached his twenty-first. (21st) birthday; and has been a resident of the Hopi Reservation for ninety (90) days; and who is not under any legal disability; and who has not been convicted of a felony in any jurisdiction.
2.9.2 JURY DISMISSED; MATTER OF LAW. It shall be discretionary with the Court as to whether the jury empanelled for the trial prior to postponement shall remain seated or a new jury seated in its stead.
2.9.3 CHALLENGES; DEFINITION; KINDS. A challenge is an objection made to the trial jurors and is of two kinds:
2.9.4 PANEL - Defined. A panel is a list of jurors returned by the board of jury selectors.
2.9.5 CHALLENGE TO PANEL DEFINED; WHO MAY CHALLENGE: REASONFOR CHALLENGE. A challenge to the panel is an objection in writing made to all the jurors returned, and.-may be taken by either party. The panel may be challenged when: There is an error in the procedure used in summoning the jurors; bias can be shown; or there was an omission to summon one or more of the jurors drawn.
2.9.6 CHALLENGES TO INDIVIDUAL JURORS. A challenge to an individual juror is an objection which may be taken orally, and is either for cause or peremptory.
2.9.7 ORDER FOR EXERCISING CHALLENGES FOR CAUSE; PEREMPTORY AND TIME. All challenges for cause must be taken first by the defendant and then by the Tribe. Peremptory challenges may be taken by either party at any time during the seating of the jury and before the jury is sworn.
2.9.8 CHALLENGE FOR CAUSE. A challenge for cause may be made by the Tribe or by the defendant, and must specify the facts constituting the causes thereof. It may be made for any of the following causes:
a. Having served as a juror in a civil action brought against the defendant for the act charged as an offense.
b. Being a party adverse to the defendant in a civil action, or having complained against or been accused. by him in a criminal action.
c. Having formed or expressed an opinion as to the guilt or innocence of the defendant as would prevent him from rendering a fair verdict-upon the evidence submitted on the trial.
d. A relationship between the juror and the defendant that in the opinion of the judge would cause the juror to be unable to render an impartial decision.
2.9.9 FAILURE TO CHALLENGE FOR CAUSE. Failure to challenge for cause shall constitute a waiver of the basis for challenge.
2.9.10 JURY SELECTORS. "The Court Clerk or his/her assistant and the Enrollment Officer or a designated representative of the Enrollment Department shall constitute the Board of Jury Selectors for the Hopi Trial Court. It shall be the duty of the Board of Jury Selectors to select in closed session eligible and competent persons for jury service. If any selector be unable to serve by reason of absence or for other goad cause, then the Chief Judge of the Tribal Court shall appoint a substitute jury selector." (Revised H-68-76).
2.9.11 JURY LIST. The jury list shall contain the names of.
the eligible jurors on the Reservation selected by the Hopi Tribal Council. The jury list shall be compiled annually. Upon completion of the jury list, the Chairman of the Hopi Tribal Council shall sign and deliver the list to the Clerk of the Court.
2.9.12 DRAWING OF PROSPECTIVE JURORS. "The Board of Jury Selectors upon order of the Trial Court shall prepare separate name tickets for each person named in the list furnished by the Enrollment Department and verified by the Board of Jury Selectors. The tickets shall be placed in a drawing box or jury wheel, shall be thoroughly mixed, and the Clerk of the Court shall draw the number of names requested by the Tribal Court. These names shall then become the master jury list until a new master list. is prepared." (Revised H-68-76)
2.9.13 EXTRA JURORS. Where an insufficient number of jurors respond when summoned, or where by challenge the number of jurors is reduced below the number required for that case, the judge shall command the police to summon arid return forthwith with a sufficient number of eligible jurors to complete the panel.
2.9.14 PEREMPTORY CHALLENGE; PARTIES WHO MAY TAKE; FORM DEFINITION. A peremptory challenge can be taken by either party and may be oral. It is an objection to a juror for which no reason need be given, but upon which the Court may exclude him.
2.9.15 PEREMPTORY CHALLENGE; NUMBER JOINT DEFENDANTS. The defendant is entitled to two (2) and the Tribe to two (2) peremptory challenges. If two or more defendants are jointly tried for any public offense, the Tribe and the defendants shall be entitled to two (2) peremptory challenges and on the part of. the defendants must be exercised jointly.
2.9.16 JURY PANEL. "Within two (2) days after receipt of an order of the Trial Court Judge directing a jury to be summoned, the Clerk shall take the tickets with the names corresponding to those on the list as provided in Section 2.9.12 and they shall be placed in the jury wheel or drawing box, be thoroughly mixed, and shall be drawn one at a time by the Clerk of the Court in rotation, until ten (10) names have been drawn. The Clerk shall notify by mail or by service of notice in person by the Police Department, the chosen jurors, of the date, time, and place that the jury trials will be held. At the time of the trials from this list of names, the defendant or his attorney shall strike one (1) name and then the Tribe shall strike one (1) name and so on alternately until six (6) names remain. If either party neglects or refuses to aid in the striking of the jury, the judge shall strike in his behalf." (Revised H-68-76)
2.9.17 VACANCY FILLED. After each challenge, sustained forcause or made peremptorily, another juror shall be called, ,may be challenged for cause, and shall be subject to peremptory challenge.
2.9.18 JURY OATH. When the jury has been selected, the judge shall administer to the jurors the following oath:
"You and each of you do solemnly swear or affirm that you will well and truly try the issues relative to the cause now on trial according to the law and the evidence under the mains and penalties of Perjury."
2.9.19 CONTINUANCE. If a case be continued, the jury shall then be notified of the new date for trial and no further notice to them of such date is required. The penalty for failure to appear at the time to which the trial is continued is contempt of court.
2.9.20 JURY DUTY EXEMPTION. The following persons shall be exempt from jury service:
(2) Appointed officials and elected of the executive, legislative and judicial -branches of the government of the Hopi Indian.Tribe, as follows:
(a) Hopi Tribal Council Representatives
(b) Hopi Tribal Chairman
(c) Hopi Tribal Vice Chairman
(d) Hopi Tribal Secretary
(e) Hopi Tribal Treasurer
(f) Chief Judge, Associate Judges and Appellate Court Judges
Chapter 10. TRIAL PROCEDURE.
2.10.1 ORDER OF PROCEDURE. The jury having been empanelled and sworn, the trial must proceed in the following order:
a. The Clerk of the Trial Court judge must read the complaint, and state the plea of the defendant to the jury.
b. Opening statements shall be given by the Tribe followed by the defendant and his counsel.
c. The Tribe must open the case and offer evidence in support of the charge. The defendant or his counsel shall have the right to cross-examine any witness called to the stand by the Tribe.
d. The defendant or his counsel may than open the defense and offer evidence in support thereof. The Tribe shall have the right to cross-examine any witness called to the stand by the defendant or his counsel.
e. The parties may then respectively offer rebutting . testimony only, unless the Court, in furtherance of justice, permits them to offer evidence upon their original case.
f. When the evidence is concluded, the Tribe and the defendant or his counsel may argue the case to the Court and jury, the Tribe opening the argument and having the right to close same.
g. Upon the conclusion of the arguments, the Court shall charge the jury orally or in writing, stating the law of the case. However, at the beginning of the trial or from time to time during the trial and without any request from either party, the judge may give the jury such instructions on the law applicable to the case as he may deem necessary for their guidance on hearing the case.
2.10.2 PRESUMPTION OF INNOCENCE; EFFECT: REASONABLE DOUBT; DEFENDANTíS REFUSAL TO TESTIFY. A defendant in a criminal action seed not testify. He is presumed to be innocent until the contrary is- proven. The effect of this presumption is. only to place upon the Tribe the burden of proving him guilty beyond a reasonable doubt. The defendantís failure to testify on his own behalf shall in no way be construed against him nor commented upon by the Tribe.
2.10.3 JOINT DEFENDANTS TRIED JOINTLY; COURT MAY DIRECT. SEPARATE TRIALS. When two or more defendants are jointly charged with an offense, they shall be prosecuted jointly, provided that the Court. may, in its discretion, on application duly made prior to trial, direct that separate trials be had.
2.10.4 INTERPRETER. In the event that any party or witness or juror requests that an interpreter be present during the trial of the case, the Court shall appoint from a list supplied by the Tribal Council an interpreter who shall be paid at a rate fixed by the Court, and such sum shall be taxed as costs in the case.
2.10.5 VIEW OF THE PREMISES BY JURY. When the Court is of the opinion that it is proper for the jury to view the place in which the offense is charged to have been committed, or in which any other material fact occurred, it may order the jury to be conducted in a body in the custody of the proper officers to the place which shall be shown them by a person appointed by the Court for that purpose.
2.10.6 DISCHARGE OF JUROR FOR ILLNESS OR DISABILITY; NEW TRIAL. If, before the jury has returned its verdict into Court, a juror becomes sick, or upon other good cause shown to the Court is found to be unable to per-form his duty, the Court may order him to be discharged. When a juror is discharged for any of the above reasons, the Court may, upon stipulation, proceed in-the absence of said juror. In the absence of such stipulation, the jury shall be discharged and a new jury shall be empanelled to hear the case.
2.10.7 LAW QUESTIONS FOR COURT AND TACT QUESTIONS FOR JURY.
Questions of law are to be decided by the Court; questions of fact by the jury.
2.10.8 INSTRUCTIONS TO JURY. At the close of evidence or at such time during the trial as the judge directs, counsel for each party may file with the Trial Court judge written instructions on the law which the party requests the judge to deliver to the jury. At the same time, copies of such requests shall be furnished to opposing counsel. The judge shall inform counsel of his proposed action upon each request prior to the arguments to the jury, but the judge shall deliver his instructions to the jury after arguments are completed. No party may assign as error any portion of the judgeís charge or omission therefrom unless he makes his objection before the jury retires to consider its verdict. Objections must be given out of the hearing of the jury.
2.10.9 DECISION IN COURT; RETIREMENT. After hearing the charge, the jury shall retire for deliberation.
2.10.10 POLL OF JURY BEFORE RECORDING VERDICT; EITHER PARTY AUTHORIZED; DISSENTING JUROR FURTHER DELIBERATION; DISMISSAL OF JURY. When a verdict is rendered and before it is recorded the jury maybe polled on the request of either party or the Court, in which case each juror must be asked whether it is his verdict. If any juror answers in the negative, the jury must be sent out for further deliberation. If upon returning after further deliberation, the jury is polled again and a juror answers that the verdict is not his own, then the judge shall dismiss the jury and a new trial will be ordered.
2.10.11 DIRECTION OF VERDICT OF ACQUITTAL. At any time after the evidence on either side is closed, the Trial court may, upon motion of the defendant or upon its own motion, direct the jury to return a verdict of acquittal; and in the event of the failure of the jury to return such a verdict of acquittal, the Court may refuse to receive any other verdict and may discharge the jury and enter a judgment of acquittal. The denial of the motion may be reviewed upon appeal to the Appellate Court of the Hopi Tribe by the defendant.
Chapter 11. SUBMISSION TO THE JURY & VERDICT
2.11.1 PAPERS TAKEN BY JURY. Upon retiring for deliberation, the jury may take with it all instructions, exhibits, and papers which have been received in evidence. Also any notes of the testimony taken in the trial by the jurors may be taken.
2.11.2 INFORMED ON ANY POINT 0F LAW. After the jury has retired for deliberation, if there be any disagreement as to any part of the. testimony or if-it desires to be informed on any point of law arising in the case, it must require the officer to conduct it into Court; and upon its being brought in, the information required may be given at the discretion of the Trial Court.
2.11.3 JURY KEPT TOGETHER. The jury shall be under the charge of the bailiff or other officer appointed by the Court. The jury must be kept together after the cause is submitted to them by the Clerk of the Court until they have agreed upon and rendered a verdict, unless, for good cause, the judge sooner discharges them.
2.11.4 VERDICT. The jury must render a general verdict of "guilty" or "not guilty" which imports a conviction or acquittal on every material allegation in the complaint. The verdict in all criminal actions must be unanimous.
2.11.5 HUNG JURY. In the event the jury is unable to agree upon a verdict, the Judge shall dismiss the jury and order a new trial.
Chapter 12. JUDGMENT
2.12.1 JUDGMENT OF CONVICTION: TIME FOR. Upon a plea of guilty or a verdict of guilty, the Trial Court must fix a time for pronouncing judgment, which must be pronounced within a reasonable time after the verdict is rendered. Prior to pronouncing judgment, the Court may make a presentence investigation.
2.12.2 EXECUTION OF JUDGMENT; IMPRISONMENT; FINE; RECORD. When judgment of imprisonment is entered, a signed copy thereof must be delivered to the enforcement officer as defined in Section 1.9.1 of this ordinance, or other officer, which is a sufficient warrant for its execution. When a judgment is entered imposing a fine and ordering the defendant to be imprisoned until the fine and costs are paid, he may be held in custody during the time specified in the judgment in the discretion of the Court, unless the fine and costs are sooner paid. Upon the payment of a fine by the defendant, the defendant shall be immediately set tree unless detained for other legal cause.
2.12.3 PRESENCE OF DEFENDANT. When judgment is pronounced, the defendant must be personally present.
2.12.4 IMPRISONMENT OF FINE. A judgment that the defendant pay a fine and costs may also direct that he be imprisoned until the fine and costs are satisfied, specifying the extent of the imprisonment, which shall not exceed one day for every two dollars of fine. The defendant shall be imprisoned for failure to pay that part of the fine constituting Court costs.
2.12.5 SUSPENSION OF SENTENCE. The Court may, on such terms and conditions as the Court may impose, suspend the sentence and release a convicted person on probation upon that personís signed pledge of good conduct for the duration of the sentence.
2.12.6 COMMUTATION OF SENTENCE. If the Court is satisfied that justice will best be served by reducing a sentence, the Court may, at any time after one-half of sentence has been served, commute to a lesser period any sentence imposed upon a person, upon proof that during the period of sentence the person served without misconduct and did satisfactory work.
Chapter 13. PROBATION
2.13.1 CONDITION OF PROBATION. The Court may release on probation a convicted person on such terms and conditions as are just and appropriate, taking into consideration the prior criminal record of the defendant, his background, character, financial condition, family obligation, and any other pertinent circumstances.
2.13.2 VIOLATION OF CONDITIONS OF PROBATION. Any Indian person who violated the terms and conditions of his probation or suspension of sentence under Section 2.12.5 shall be required to serve the original sentence.
Chapter 14. NEW TRIAL
2.14.1 NEW TRIAL - Defined. Anew trial is a re-examination of an issue of fact in the same Court before another jury, after a verdict has been given.
2.14.2 APPLICATION. Application for a new trial may be made only by the defendant or his attorney and must be made before the completion of the sentence. Application must be made to the Court before which the case was tried.
2.14.3 GROUNDS. The Court, on application from the defendant or on its own motion, may grant a new trial based on the following cause or causes:
a. When proper evidence has been presented that the jury, has received any evidence, paper, or document out of Court not authorized by the Court.
b. When the verdict has been decided by lot or by means other than a fair expression of opinion on the part of all the jurors.
c. When the Trial Court, has refused to instruct the jury properly as to law.
d. When any other cause the defendant has not received a fair and impartial trial.
2.14.4 EFFECT OF A NEW TRIAL. The granting of a new trial places the parties in the same position as if no trial has been held; all testimony must be reproduced and the former verdict cannot be used or referred to either in the evidence or in argument.
2.14.5 STATUS OF THE ACCUSED PENDING NEW TRIAL. Pending a new -trial, the accused shall be entitled to bail the same as before the trial.
2.14.6 COURT COSTS IN CRIMINAL CASES. The judgment of conviction in criminal cases shall include costs of Court, not to exceed the following amounts:
a. Twenty-five Dollars ($25.00) where case is disposed of in original trial upon a plea of guilty, or
b. One Hundred Dollars ($100.00) if trial is requested and heard by a Trial judge upon a plea of not guilty, or
c. Two Hundred Dollars ($200.00) if trial by jury.
2.14.7 STAY OF EXECUTION. In the event the Court grants a stay of execution for a fine and/or Court costs imposed in a criminal case and the defendant fails to pay said sum in the period of time granted under the stay of execution, the Clerk may certify to the treasurer of the Tribe the amount of the said fine and/or costs which remain unpaid and the same shall be charged against any funds due or to became due to the defendant and the same shall, be credited as earning of the Trial Court. At the time that a defendant requests a stay of execution far a fine and/or costs imposed by the Court, the Court may in its discretion accept from the defendant an order far payment of said sum or sums executed by the defendant against any funds due and owing at the time to the defendant or which may, thereafter become due and outing to him.
2.14.8 FEE ASSESSED WHEINCRIMINAL ACTION WITHDRAWN. A minimum fee of Five Dollars ($5.00) shall be assessed against persons who have instituted criminal action in the Hopi Trial Court and later withdrawn the criminal complaint. Should the expenses incurred, as a result of this criminal action exceed Five Dollars ($5.00), the Court, as it deems necessary, may assess fees in addition to the Five Dollars ($5.00).
Chapter 15. CONTEMPT OF COURT
2.15.1 REASONS FOR CHARGE. A judge may punish as for contempt persons guilty of the following acts:
a. Disorderly, contemptuous, or insolent behavior toward the judge while holding Court, tending to interrupt the due course
b. A breach of the peace, boisterous conduct; or violent disturbance in the presence of the judge, or in the immediate vicinity of the Court held by him tending to interrupt the due course of a trial or other judicial proceeding.
c. Disobedience to a subpoena, duly served, or refusing to be sworn or to answer as a witness.
d. Disobedience or resistance to the carrying out oL a lawful order or process made or issued by the judge.
e. Rescuing or interfering with any person or property in the custody of an enforcement officer __ acting under an order of the Court or process of the Court.
f. Failure to appear for jury duty when properly notified.
g. Executing a complaint as a complaining witness and failing to appear or testify in support thereof.
2.15.2 CONTEMPT COMMITTED IN PRESENCE OF JUDGE. When a contempt is committed in the immediate view and the presence of the judge, it may be punished summarily. The judge must make an order reciting the facts as they occurred, and that the person proceeded against is guilty of contempt, and that he be punished as therein prescribed.
2.15.3 CONTEMPT COMMITTED NOT IN PRESENCE OF JUDGE. When the contempt is not committed in the immediate view and presence of the judge, a Warrant of Arrest may be issued by such -judge and the person so guilty may be arrested and brought before the judge immediately. The judge must give the arrested person an opportunity to make his defense or excuse. The judge may then discharge him or may convict him of the offense.
2.15.4 PUNISHMENT. A judge may punish for contempt by fine or imprisonment, or both; such fine not to exceed One Hundred Dollars ($I00.00) or imprisonment not to exceed forty-five (45) days plus Court costs.