COURT AND PROCEDURES
The Pine Ridge Court House shall be known, from this day forward, as the "MOSES TWO BULLS JUDICIARY BUILDING".
History: Ordinance 93-11.
SECTION 1. JURISDICTION OVER PERSONS.
The Oglala Sioux Tribal Court of the Pine Ridge Reservation shall have jurisdiction over all offenses when committed by a member of the Tribe, by non-member Indians who are members of any recognized Tribe under Federal jurisdiction, or by any other person consenting to jurisdiction, as hereinafter provided.
The Juvenile Court of the Oglala Sioux Tribal Court is hereby designated the Youth and Family Division of the Oglala Sioux Tribal Court. The Youth and Family Division of the Oglala Sioux Tribal Court shall have the primary jurisdiction of enforcing the juvenile code of the Oglala Sioux Tribe and associated family matters.
Hist: 1937 Code, Ch. 1, Sec. 1, amended by Ord.
48. Amended by Ordinance No. 91-03.
Annotations: Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978): Indian Tribes do not have inherent criminal jurisdiction over non-Indians absent Congressional authority. United States v. Wheeler, 435 U.S. 313 (1978): Indian Tribes have inherent powers to punish offenses against Tribal laws when committed by Tribal members. Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (1956): Indian Tribal Courts have inherent jurisdiction over all matters not taken over by the Federal government. United States v. Quiver, 241 U.S. 602 (1916): Congress left to the Indian Tribal Courts jurisdiction over all crimes not taken by the Federal government itself. U.S. Department of the Interior, Federal Indian Law (pp 319-20, (1958).
SECTION 1.1. CONSENT TO JURISDICTION OVER ALL INDIVIDUALS.
(a) All leases, permits, easements, or other official actions which authorize the residence of any person within the boundaries of the Pine Ridge Reservation or which authorize any person to do any business within the boundaries of the Pine Ridge Reservation, including all employment contracts with the Tribe or the United States, shall contain the following clause: "The undersigned hereby agrees to abide by the laws and ordinances of the Oglala Sioux Tribe and consents to the civil jurisdiction of the Oglala Sioux Tribal Courts."
(b) All leases, permits, or other contracts or grant agreements which authorize any person, including but not limited to, the Oglala Sioux Tribe and the United States, to employ employees for the performance of work within the boundaries of the Pine Ridge Reservation shall contain the following clause: "All contracts for employment to perform the work contemplated by this agreement shall contain the following clause: 'The undersigned employee hereby agrees to obey the laws and ordinances of the Oglala Sioux Tribe and consents to the civil jurisdiction of the Oglala Sioux Tribal Court.''
Hist: Ord. #77-13.
Annotations: Oliphant v. Suquamish Tribe, (supra) Section 1. Cowan v. Rosebud Sioux Tribe, 404 F. Supp. 1338 (1975): The fact that the lessees were non-tribal members did not remove jurisdiction of Tribal Courts over matters involving the use of Tribal lands. Parties may contractually agree to submit to the jurisdiction of a given court.
SECTION 1.2. CONCURRENT JURISDICTION.
With respect to any of the offenses enumerated in Chapter 6 over which Federal or State Courts may have lawful jurisdiction, the jurisdiction of the Oglala Sioux Tribal Court shall be concurrent and not exclusive. It shall be the duty of the said Oglala Sioux Tribal Court to order delivery to the proper authorities of the State or Federal government or of any other Tribe or Reservation, for prosecution, any offender, there to be dealt with according to law or ordinances authorized by law, where such authorities consent to exercise jurisdiction lawfully vested in them over the said offender.
Hist: 1937 Code, Ch. 1, Sec. 1.
Annotations: 18 U.S.C.A. Section 1153 (Major Crimes Act). 18 U.S.C. Section 13 (Assimilative Crimes Act). 18 U.S.C. 1152 (General Crimes Act). Luxon v. Rosebud Sioux Tribe, (337 F. Supp. 243, 1971): Federal District Court lacks jurisdiction to hear intratribal controversies unless jurisdiction is expressly authorized by Congress.
In Re Long Visitor, (524 F. 2d 443, 1975): Indian Reservation is no sanctuary from Federal subpoena to compel testimony before the Grand Jury on matters within the jurisdiction of Federal District Court. Pinnow v. Shoshone Tribal Council, (314 F. Supp. 1157, 1970): In an action against the Tribal Council and the Secretary of the Interior for review of the Tribe's enrollment procedure, the Court held that internal matters of Tribal government are not within the bounds of Federal jurisdiction unless jurisdiction is expressly conferred by Congressional enactment.
Kinnerly v. District Court, (400 U.S. 423, 1971): Unilateral action of Tribal Council in adopting as part of a Tribal law provision that Tribal Court and State should have concurrent and not exclusive jurisdiction of all suits wherein defendant is a tribal member and which is brought before Courts was insufficient to vest State, which had not taken affirmative legislative action, with jurisdiction over Indian country under Section 7 of August 15, 1953, 67 Stat. 590 (P.L. 280). Tribal consent, a prerequisite to assumption of State jurisdiction, must be approved or manifested by a majority vote of enrolled Indians within the affected area of Indian country. Poitra v. Demarrias, (502 F. 2d 83, 1974): Until the Tribe occupying an Indian Reservation consents to the jurisdiction of the State court, such jurisdiction may not be assumed by the State courts over any cause of action involving Indians and arising within the boundaries of the Indian Reservation. White v. Califano, (437 F. Supp. 543, 1974): State cannot extend its powers into Indian country if it will thereby infringe upon right of Indian people to govern themselves, and State cannot exercise power in Indian country if Federal government has preempted the particular field of activity, but if the exercise of State power over an Indian person in Indian country can be accomplished without infringing upon the Tribe's right to govern itself and without infringing upon an area of activity preempted by the Federal government, then exercise of State power is lawful.
SECTION 1.3. "INDIAN" DEFINED: TERRITORIAL JURISDICTION.
For the purpose of the enforcement of these ordinances an Indian shall be deemed to be any person of Indian descent who is a member of any recognized Indian Tribe now under Federal jurisdiction. The Pine Ridge Reservation shall be taken to include all territory within the original Reservation boundaries, including fee patent lands, roads, waters, bridges, and lands use for agency purposes.
Hist: 1937 Code, Ch. 1, Sec. 1.
Annotations: Mattz v. Arnett, (412 U.S. 481, 1973): Indian seeks return of gill nets confiscated by California Game Warden, seized within Indian country. Court held that the land within Klamath River Reservation is Indian country within the meaning of 18 U.S.C.A., Section 1151. Seymour v. Superintendent. (368 U.S. 351, 1962): Indian convicted in State court for attempted burglary alleged that he was an Indian and that the alleged offense was committed in "Indian Country" and therefore the U.S. had exclusive jurisdiction. The Court held that the land upon which the offense allegedly occurred is within the limits of the Reservation and that the State court did not have jurisdiction even though the land was held by a non-member under a patent in fee.
United States v. Erickson, (478 F. 2d 684, 1973): State had no jurisdiction to convict Indian for Rape within town which was within original boundaries of Reservation.
City of New Town v. United States, (454 F. 2d 121, 1972): An action by the town for judgment determining boundaries of Indian Reservation. The Court held that when Congress has once established a Reservation, all tracts included within it remain a part of the Reservation until separated therefrom by Congress.
SECTION 1.4. INDIAN SERVICE EMPLOYEES.
All Indians employed in the Indian Service shall be subject to the jurisdiction of the Oglala Sioux Tribal Court, but any sentence against an employee appointed by the Secretary of the Interior shall be suspended, if the employee so requests after exhausting all remedies under these ordinances, until the Court has certified the sentence to the Secretary of the Interior and received his approval or disapproval.
Hist: 1937 Code, Ch. 1, Sec. 1.
Stone v. United States, (506 F. 2d 561, 1974): "The Indian Service" was regularly substituted for "Bureau of Indian Affairs", located in Washington, D.C. in 1936. Non-Washington, D.C. offices used the term "Field Project" or "Field Operations". U.S. Dept. of the Interior, Federal Indian Law, 221 (1958).
SECTION 2. COMPOSITION OF THE COURT.
The Oglala Sioux Tribal Court shall be composed of one (1) Chief Judge, four (4) Associate Judges, one (1) Special Judge.
Hist: 1937 Code, Ch. 1, Sec. 2, amended by Ord. #35, 81, 65-7, Res. #79- 80.
SECTION 2.1. SALARY OF JUDGES.
The salaries of the Chief Judge and the Associate Judges shall be determined by the Tribal Council, provided that once established, a Judge's salary may not be reduced during his term of office.
Hist: 1937 Code, Ch. 1, Sec. 2, repealed by Ord. #35, reenacted by Ord. #49, repealed & amended by Ord. #81, Amended by Res. #58-5. Annotations: 25 U.S.C. Sec. 13.
SECTION 2.2. APPOINTMENT OF JUDGES.
Each Judge shall be appointed by a vote of two-thirds (2/3) of those voting at a meeting of the Tribal Council. Should a vacancy occur through death, resignation, or otherwise, for the position of Chief Judge, Associate Judge, or Special Judge, between sessions of the Oglala Sioux Tribal Council, the Executive Committee is authorized to fill such vacancy or vacancies subject to the confirmation of the said Oglala Sioux Tribal Council, at their next session.
Hist: 1937 Code, Ch. 1, Sec. 2, amended by Ord. #25, 30-48 and 81, Res. #65-7.
SECTION 2.3. TERM OF OFFICE.
Each Judge shall hold office for a period of four (4) years, unless sooner removed for cause, or by reason of abolition of the said office, or office vacated due to resignation or death.
Hist: Ord. #35, amended by Res. 65-7.
SECTION 2.4. QUALIFICATIONS OF JUDGES.
(a) No person shall be eligible to serve. as a Judge of the Oglala Sioux Tribe unless he or she:
(1) Is twenty-five (25) years of age or older.
(2) Has never been convicted of a felony.
(3) Has not been covicted of a misdemeanor within one year previous to assuming office.
(4) Is of good moral character.
(5) Can read, write, and understand the English language.
(6) Demonstrates a knowledge of the Oglala Sioux Code and court procedures and understanding of State and Federal law and court procedures.
Hist: 1937 Code, Ch. 1, Sec. 2, amended by
Res #60-26, 65-7.
Annotations: Fed. Reg. Vol. 40, No. 72, 4/14/75, p. 16702. Williams v. Sisseton-Wahpeton Sioux Tribal Council, (387 F. Supp. 1194, 1975): An individual who was under a suspended sentence by reason of having pled guilty to a felony charge in State Court was not convicted absent an entry of a judgment of guilty and thus, was not a convicted felon ineligible to run for Tribal office at the time of election.
SECTION 2.5. DISQUALIFICATION TO ACT.
No Judge shall be qualified to act in any case wherein he has any direct interest or wherein any relative by marriage or blood, in the first or second degree, is a party.
Hist: 1937 Code, Ch. 1, Sec. 2.
SECTION 2.6. LIABILITY FOR PAYMENT OF FINES.
Every Judge of the Oglala Sioux Tribal Court shall be personally liable for the payment of all fines levied where deferment has been granted and such fine has not been served in jail.
Hist: Ord. #35.
SECTION 2.7. JUDICIAL CODE OF ETHICS.
PART I. WHO IS BOUND BY THIS CODE. THIS CODE APPLIES TO THE FOLLOWING PERSONS:
Anyone, whether or not a lawyer, who is an officer of the Oglala Sioux Tribal judicial system and is performing judicial functions is a Judge for the purpose of, this Code. All Judges should comply with this Code except as provided below:
A. Part-time Judges. A part time Judge is a Judge who serves on a continuing or periodic basis, but is permitted by tribal law or custom to devote time to some other profession or occupation. A part-time Judge:
2. Should not practice law either as a lawyer or an
advocate: a. In the Tribal Court on which he/she serves; 3. Should not act as a lawyer or advocate in a proceeding
in which he/she has served on in any related proceedings. B. Judge Pro Tempore -- A Judge Pro Tempore is a person
who is appointed to act temporarily as judge. A temporary Judge: 1. Is required to comply with this Code unless otherwise
exempted. 2. Should not act as a lawyer or advocate in a proceeding
in which he/she has served or in any related proceedings. C. Special Judge -- A Special Judge is a person who is appointed
to act only on special cases. A Special Judge: 1. Is required to comply with this Code unless otherwise
exempted. 2. Should not act as a lawyer or advocate in a proceeding
in which he/she has served or in any related proceedings.
b. In any court subject to the Appellate jurisdicion of the Tribal Court or Council on which he/she serves.
2. Should not practice law either as a lawyer or an advocate:
a. In the Tribal Court on which he/she serves;
3. Should not act as a lawyer or advocate in a proceeding in which he/she has served on in any related proceedings.
B. Judge Pro Tempore -- A Judge Pro Tempore is a person who is appointed to act temporarily as judge. A temporary Judge:
1. Is required to comply with this Code unless otherwise exempted.
2. Should not act as a lawyer or advocate in a proceeding in which he/she has served or in any related proceedings.
C. Special Judge -- A Special Judge is a person who is appointed to act only on special cases. A Special Judge:
1. Is required to comply with this Code unless otherwise exempted.
PART II. HONESTY AND INDEPENDENCE OF INDIAN JUDICIARY
A Judge of the Oglala Sioux Tribal Court shall uphold the integrity and independence of the Indian Judiciary. An independent and honorable Indian Judiciary is essential to justice in the Tribal community. A judge of the Oglala Sioux Tribal Court should help create and maintain such a judiciary and should observe high standards of conduct toward achieving this goal.
A. A Judge should encourage separation between the judicial branch and other branches of tribal government, and should avoid any contact or duty that violates such a separation.
B. A Judge should not participate in legislative or executive decision making except where such participation is in accordance with the tradition of the Oglala Sioux Tribe. If a Judge serves on a Tribal Council or other legislative body, special care should be used to avoid conflict of interest or the appearance of conflict of interest.
PART III. IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY
A Judge of the Oglala Sioux Tribal Court should avoid impropriety and the appearance of impropriety in all his/her activities.
A. A Judge of the Oglala Sioux Tribal Court should respect and comply with the law and tradition of the Oglala Sioux Tribe and should at all times act in a manner that promotes public confidence in the honesty and impartiality of the indian Judiciary. A Judge should also respect and comply with all state and federal laws.
B. A Judge of the Oglala Sioux Tribe should not allow family, social or other personal relationships to influence his/her judicial conduct. He/she should not attempt to use the prestige of his/her office to advance the private interests of others; nor should he/she convey the impression that anyone has special influence on the Judge.
PART IV. DILIGENCE AND IMPARTIALITY
A Judge of the Oglala Sioux Tribal Court should perform the duties of the office impartially and diligently. The judicial duties of a Tribal Judge should take precedence over all other activities. The judicial duties of the judge include all the duties of the office prescribed by Tribal law, custom or tradition. In the performance of these duties, the following standards apply:
A. Adjudicate Responsibilities
1. A Judge of the Oglala Sioux Tribal Court should adhere to the laws, customs, and traditions of the Tribe. He/she should be unswayed by partisan interests, public clamor, political pressure, or by fear of criticism, and should resist influences on the Court by other Tribal officials, governmental officials or any other attempting to improperly influence the Court.
2. A Judge should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, advocates and others with whom he/she deals in his/her official capacity and should require similar conduct to other persons in court proceedings and those court personnel who are subject to the Judge's direction and control.
3. A Tribal Judge should give every person who is legally interested in a proceeding, or his/her representative, a full right to be heard according to tribal law and tradition. A Judge should avoid all out-of-court or other communications with tribal officials, agents, or others concerning a pending proceeding unless all parties to the proceeding are present or represented. A Judge may however, obtain the advice of a disinterested expert on federal law, or on tribal law, custom or tradition or on other sources of law applicable to a proceeding before the Court if the request for advice is limited to points of law or tradition and does not involve the particular merits of the case. Ordinarily the parties should be given a reasonable opportunity to respond to the information provided by the expert.
4. A Judge of the Oglala Sioux Tribe should maintain order in the court. He/she should not interfere in the proceedings except where necessary to protect the rights of the parties. A Judge should not take an advocate's role. Similarly, a Judge should rely on only those procedures prescribed by the laws and customs of the Oglala Sioux Tribe.
5. A Judge of the Oglala Sioux Tribal Court should dispose promptly of the business of the Court.
6. A Judge should not comment publicly on any proceeding pending in Court and should also prohibit other court personnel from making such public comment.
B. Administrative Responsibilities
1. A Judge should diligently perform his/her administrative responsibilities.
2. A Judge should require his/her staff and court officials to observe high standards of honesty and diligence.
3. A Judge should initiate appropriate disciplinary measures against a Judge or lawyer for unprofessional conduct of which the Judge may become aware.
1. A Judge of the Oglala Sioux Tribal Court should disqualify himself /herself in a proceeding in which his/her impartiality might be reasonably questioned, including instances where:
A. The Judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts;
B. The Judge served as lawyer, advocate, or personal representative in the matter before the Court or a person with whom the Judge has been associated in a professional capacity served as a lawyer, advocate or personal representative concerning the matter:
C. The Judge knows that he/she individually (or any member of the Judge's family), residing in his/her household has a financial interest in the subject matter in controversy or is a party to the proceeding, or has any other interest that could be substantially affected by the proceedings;
D. The Judge or his/her spouse, or a person in a reasonably close family relationship to either of them, or the spouse of such a person:
(1) is a party to the proceeding, or an officer, director, or trustee of a party;
(2) is acting as a lawyer or advocate in the proceeding;
(3) is known by the Judge to have an interest that could be substantially affected by the outcome of the proceeding;
(4) is to the Tribal Judge's knowledge, likely to be a material witness in the proceeding.
PART V. IMPROVEMENT OF THE LEGAL SYSTEM
A Judge of the Oglala Sioux Tribal Court may engage in activities to improve the law, the legal system and the administration of justice. A Judge may engage in the following activities, if in doing so, he/she does not cause doubt on his/her capacity to decide impartially on any issue that may come before the Court:
A. The Judge may speak, write, lecture, teach and participate in other activities concerning Tribal law and custom, the legal system of the Tribe and the administration of justice.
B. The Judge may appear at a public hearing before a Tribal Executive or Legislative body or official on matters concerning the Tribal legal system and the administration of justice, and he/she may otherwise consult with a Tribal executive or legislative body or official but only on matters concerning the general administration of justice.
C. The Judge may serve as a member, officer, or director of an organization or tribal government agency devoted to the improvement of tribal law, its legal system or the administration of justice. The Judge may assist such an organization in raising funds and may, participate in that management and investment. he/she may make recommendations to public and private fund-granting agencies on projects and programs concerning tribal law, its legal system and the administration of justice. A Tribal Judge may not serve as a member, officer, or director of any other tribal government entity.
PART VI. EXTRA JUDICIAL ACTIVITIES
A Tribal judge should regulate his/her extra-curricular activities to minimize the risk of conflict with judicial duties.
A. Advocational Activities
A Tribal Judge may write, lecture, teach and speak on non-legal subjects, and engage in the arts, sports, and other social and recreational activities of the Tribe, if these activities do not interfere with the performance of his/her duties.
B. Civic and Charitable Activities
A Tribal Judge may participate in civic, charitable and other tribal activities that do not reflect upon his/her impartiality or interfere with the performance of his/her judicial duties. A Tribal Judge may participate in any Tribal educational, religious, charitable or similar organization.
1. A Tribal judge should not participate if it is likely that the organization will be involved in proceedings which would ordinarily come before him/her or will be involved in adversary proceedings in any Tribal Court.
2. A Tribal judge may hold and manage investments, and engage in other activity for compensation, but should not ordinarily serve as an officer, director, manager, or employee of any on-reservation business.
3. Except as allowed by the laws and traditions of the Oglala Sioux Tribe, neither a Judge nor a member of his/her family residing in the household should accept a gift, bequest, favor or loan from anyone which would affect or appear to affect his/her impartiality in judicial proceedings, or on the Judge's appearance of fairness.
C. Extra-Judicial Appointments
Unless allowed by Tribal law or tradition, a Judge should not accept appointment to any Tribal governmental entity or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the Tribal legal system, or the administration of justice. A Judge, however, may represent the Tribe on ceremonial occasions or in connection with historical, educational and cultural activities.
PART VII. POLITICAL ACTIVITIES OF TRIBAL JUDGES
A Judge of the Oglala Sioux Tribe should refrain from political activity inappropriate to his/her judicial office.
A. Political Conduct in General
Unless authorized by tribal law or tradition, a Tribal Judge should not engage in any Tribal political activity except on behalf of measure to improve the law, the Tribal Legal system or the administration of justice.
B. Campaign Conduct
A candidate, including an incumbent Judge, for a Tribal Judicial office that is filled by Tribal election:
1. Should maintain the dignity appropriate to judicial office and should refrain from any political activity which might interfere with the performance of his/her judicial duties, furthermore, a Judge should encourage members of his/her family to adhere to the same standards of political conduct that apply to him/her.
2. Should not make pledges or promises of conduct in judicial office other than the faithful and impartial performance of the duties of the office, nor announce his/her views on disputed legal or political issues.
PART VIII. SANCTIONS FOR VIOLATION OF THIS CODE
Any Judge of the Oglala Sioux Tribe who violates this Code is answerable to the Oglala Sioux Tribal Council. Any person who has a complaint against a Judge must file a certified affidavit with the Secretary of the Oglala Sioux Tribe setting forth: Alleged violation; names of witnesses to violation; when it occurred; and any other information necessary. The Secretary of the oglala Sioux Tribe will inform the Judge in writing of the charge against him/her and set the matter up for the Oglala Sioux Tribal Council to hear the matter. Upon majority of the Oglala Sioux Tribal Council persons present finding merit to the charge the Council can after a hearing:
1. Suspend the Judge for a period of time withou pay;
2. Reprimand the Judge; or
3. Terminate the Judge from employment, but only upon a 2/3 vote of the Tribal Council present can a Judge be terminated.
Between sessions of the Oglala Sioux Tribal Council, the Oglala Sioux Tribe's Executive Board and the Oglala Sioux Tribe's Law and Order Committee shall have the power to suspend a Judge without pay after investigation and a hearing.
If no merit is found to the charge, it shall be dismissed.
Hist: Ordinances 84-16, 84-17
Previous Section 2.7 Hist: 1937 Code, Ch. 1, Sec. 3, amended Ord. #40 and 81.
Annotations: Stands Over Bull v. Bureau of Indian Affairs, (442 F. Supp. 360, 1977): Procedure followed in the impeachment and removal from office of Crow Tribal Chairman who was given notice of impeachment proceedings against him and afforded opportunity to rebut charges did not violate the due process clause of the Indian Civil Rights Act. Tribal Chairman's due process claims with respect to his impeachment were not be gauged against the U.S. Constitution and impeachment procedure set forth therein, but should be measured against Tribal custom and structure of government so long as that structure did not itself deny Tribal Chairman, it its implementation, due process.
Janis v. Wilson, (385 F. Supp. 1143, 1974): Action brought by former Tribal government employees against Tribal officers claiming employment termination violated Tribal ordinance, free speech, and due process rights. The Court held that the First and Fifth Amendment claims would be dismissed due to lack of jurisdiction; and the administrative procedures sufficiently complied with the requirements of equal protection and due process via the Indian Civil Rights Act. Title 25 U.S.C.A., Sec. 1302 (8).
SECTION 2.8. DUTIES.
(a) The Chief Judge, Associate Judges, and Special Judge shall have original jurisdiction to hear all cases, civil and criminal, arising under this Code.
(b) The Chief Judge shall hear all cases, except those which he has assigned to an Associate Judge or the Special Judge.
(c) It shall be the duty of all Judges to render fair and impartial judgments and imposition of sentences shall be in accordance with the law.
(d) Upon imposition of a judgment or a sentence by an Associate Judge only the Chief Judge may modify such judgment or sentence imposed, and then only for cause, and after a scheduled hearing in open court during a regular session. Such sentence cannot be increased but may be moderated by the Chief Judge in accordance with the aforementioned.
(e) Judgments and sentences imposed by the Special Judge shall not be subject to modification as in (d) above.
Hist: Res. 65-7.
Annotations: Tom vs. Sutton, (533 F. 2d 1101, 1976): Deference should be given to Tribal Courts in their interpretation of Tribal constitutions, and Federal Courts should accept their interpretations unless there are Federal questions involved. United States vs. Quiver, (supra Section 1). Iron Crow vs. Oglala Sioux Tribe, (supra Section 1).
SECTION 2.9. DUTIES - RECORDS AND FINES TO BE TRANSMITTED.
All actions shall be commenced before the Judge of the judicial district wherein the action arises. Within fifteen (15) days after the sentence, final judgment, or other final disposition of the case, the Judge shall transmit all papers including the information required by Section 11 of this Code and fines collected to the Clerk of the Court. It shall be the duty of the Judge to perform all the functions of the Clerk of Court required by Section 8 of this Code where the Clerk of Court is unable to personally attend the Court.
SECTION 3. JURY TRIAL.
In any case where a prisoner is accused of any offenses enumerated in Chapter 6 constituting the Penal Code of the Oglala Sioux Tribe, a trial by jury may be demanded by the defendant.
Hist: Ord. #37, amended by Ord. #51, Res.
60-26, Ord. #77-07.
Annotations: 25 U.S.C.A. 1302 (10) Indian Civil Rights Act.
SECTION 3.1. JURY LIST TO BE PREPARED.
A list of eligible jurors shall be prepared from the Pine Ridge Tribal Census Roll by the Tribal Council, or a committee thereof each year.
Hist: Ord. #37.
SECTION 3.2. JURIES - HOW CONSTITUTED.
In any case, a jury shall consist of six (6) residents of the vicinity in which the trial is held, drawn from the list of eligible jurors by some disinterested person or persons appointed by the Judge. Any party to the case may challenge not more than three (3) members of the panel so chosen.
Hist: Ord. #37 as amended by Ord. #51.
SECTION 3.3. VERDICT.
The Judge shall instruct the jury in the law governing the case; and the jury shall bring in a verdict for the complainant or the defendant. The Judge shall render judgment in accordance with the verdict and existing law. If the jury is unable to reach a unanimous verdict, verdict may be rendered as a majority vote.
Hist: Ord. #37
SECTION 3.4. JURORS' FEES.
Each juror who serves upon a jury shall be entitled to a fee of fifteen dollars ($15.00) plus mileage at twenty four cents ($.24) per mile to and from the location of the court proceedings for each day his or her services are required in Court.
Hist: Ord. #37, amended by Res. #60-26, amended by Ord. #77-07, 8/16/77.
SECTION 4. INDIAN SERVICE OFFICERS MAY ENFORCE TRIBAL ORDINANCES.
The regular Indian police force and other police officers of the United States Indian Service shall have authority to enforce all Tribal ordinances, but shall not receive the fees and compensation provided in Section 4.4.
Hist: 1937 Code, Ch. 1, Sec. 5.
SECTION 4.1. TRIBAL PUBLIC SAFETY COMMISSION.
There shall be a Tribal Public Safety Commission with the powers and authorities provided for in Ordinance No.76-12, as amended, including the authority to manage the Law Enforcement Program of the Oglala Sioux Tribe in accordance with the provisions of the Code and to exercise such other related powers as the Council may delegate to it by resolution.
ECTION 4.2. SELECTION OF LAW ENFORCEMENT PERSONNEL.
Tribal Police Officers and other Law Enforcement personnel shall be employed and shall be subject to removal, suspension, or other personnel action in accordance with personnel standards and procedures established by the Oglala Sioux Tribal Public Safety Commission and the provisions of Ordinance No. 76-12, as amended.
SECTION 4.3. COMMISSIONING OF TRIBAL OFFICERS.
The Oglala Sioux Tribal Public Safety Commission may, through its Chairman, issue commissions to duly qualified police officers employed by the Commission for the enforcement of all Tribal Ordinances an may also commission qualified officers of other Tribal entities to perform duties that the officers are qualified to perform, or any duly qualified police officer employed by any Federal agency, provided that such officer of another Tribal entity of Federal agency for whom he is employed, and not compensated by the Commission.
History: As enacted by Ord. #81-05,dtd. 2/26/81,
approved effective 3/6/81, which repealed Sections 4.1 through 4.9 and replaced
with Sections 4.1 through 4.3.
NOTE: See Ord. #76-12 and referred to in above Sections and also Ord. #77-155. which amends #76-12 in back of Code in Ordinance Section.
SECTION 4.4 Through 4.9 -- RESERVED SECTIONS
SECTION 4.10. JAILER / COURT BAILIFF.
There shall be one (1) regularly assigned Jailer/Court Bailiff assigned to the Jail section of the Tribal Branch of Law and Order who shall be responsible for the safekeeping of all persons committed to jail, the supervision and control of all persons confined, the supervision of other persons and their duties who are assigned to the Jail section, maintenance of required jail records and reports, coordination and cooperation with the Court in scheduling persons confined for court hearings, carrying out written orders issued by the Court relative to the custody of persons.
Hist: Res. #65-7.
SECTION 4.11. SALARIES FOR TRIBAL LAW AND ORDER PERSONNEL.
The salaries for Tribal Law and Order personnel shall be determined by the Tribal Council, which shall be equal to that of similar positions held by Bureau of Indian Affairs employees.
Hist: Ord. #81, amended by Res. 65-7.
SECTION 5. RULES OF COURT.
The time and place of court sessions, and all other details of judicial procedures shall be set out in Rules of Court approved by the Tribal Council. It shall be the duty of the Judges of each Oglala Sioux Tribal Court to make recommendations to the Tribal Council for the enactment or amendment of such Rules of Court in the interest of improved judicial procedure.
Hist: Ord. #81, amended by Res. #65-7.
Annotations: 25 U.S. C.A. 1302, Indian Civil Rights Act.
Federal Register, Vol. 40, No. 72, 4/14/75, p. 16698.
SECTION 6.0. CREATION OF THE SUPREME COURT.
There is hereby created the Supreme Court of the Oglala Sioux Nation.
SECTION 6.1. TITLE.
The title of this Court shall be THE SUPREME COURT OF THE OGLALA SIOUX NATION.
SECTION 6.2. COMPOSITION OF THE SUPREME COURT.
The Court shall consist of a Chief Justice, two Associate Justices and one Alternate Justice. At least two of the Justices sitting in review of any case shall be law-trained in an accredited law school and be a member in good standing of the Bar of any state or federal court.
SECTION 6.3. TERMS OF OFFICE.
The Supreme Court Justices shall serve four (4) year terms. The Chief Justice of the Supreme Court shall be appointed by the Oglala Sioux Tribal Council.
SECTION 6.4. JURISDICTION OF THE SUPREME COURT.
The Supreme Court shall have exclusive jurisdiction of all appeals from final Orders and Judgments of the Oglala Sioux Tribal Court.
SECTION 6.5. PROCEDURE.
1. Motion for Reconsideration - Prior to filing a Notice of Appeal, an aggrieved party must file a Motion for Reconsideration with the trial court if any of the following grounds exist:
(a) The Trial Court denied the aggrieved party the opportunity to file a petition or complaint in the matter;
(b) The Trial Court entered its order without providing the aggrieved party the opportunity to respond or to be heard in the matter;
(c) The aggrieved party did not receive Notice of Hearing or service of the petition or complaint.
2. Clerical Errors - Clerical mistakes in judgments, order or other parts of the record or errors therein arising from oversight or omission may be corrected by the chariot at any time on its own discretion or motion of any party.
3. Filing Motions for Reconsideration must be filed with the trial court within ten (10) working days after the court takes its action in either denying a petition or complaint or entering its order or sentence.
4. Service and Hearing - Upon filing the Motion for Reconsideration, the clerk of the trial court or the moving party, shall be caused to be served upon the nonmoving party or their attorney, the Motion for Reconsideration and the hearing date upon which the Motion for Reconsideration will be held. The non-moving party must be served with the Motion for Reconsideration and for hearing, which must be held within twenty (20) working days after the Motion for Reconsideration is flied. For purposes of this section, the date on which any action is taken or pleading filed shall not be considered in computing days.
5. Denial - Any Motion for Reconsideration not docketed for hearing within twenty (20) working days of filing or not ruled upon within the ten (10) working days after the hearing, shall be deemed denied and will be considered a final order from which an appeal may betaken. The Notice of Appeal must then be filed within thirty (30) working days.
6. Other Orders, Judgments or Sentences - Orders, Judgments or Sentences entered by the trial court and not subject to SECTION 6.5(1) may be appealed to the Supreme Court of the Oglala Sioux Nation within thirty (30) working days from the date of final order, judgment or sentence; The Clerk of the Trial Court shall transfer a certified copy of the Notice of Appeal to the Clerk of the Supreme Court within ten (10) working days of its filing. The Clerk of the Trial Court shall include with the Notice of Appeals certified copy of all papers comprising the record in the case; A transmittal of the file from the Trial Court to the Supreme Court shall constitute the designation of record for appellate purpose; A filing fee of twenty dollars ($20.00) shall be posted with the Clerk of the Supreme Court to cover costs and disbursements, unless a request to proceed in forma pauperis is received and granted.
SECTION 6.6. BOND ON APPEAL.
In criminal cases, the right of the person to have his/her sentence or fine held in abeyance and suspended pending the appeal shall be contingent on that person's settlement, with the Notice of Appeal, cash or posting of such bond as well, in the judgment of the trial judge, give adequate assurance of the serving of the sentence or the payment of the fine if the Supreme Court affirms or modifies the action of the trial.
In Civil cases, the party taking the appeal shall show proof with the Notice of Appeal, payment of cash or bond satisfactory to the Trial Court, in an amount sufficient to guarantee the satisfaction or performance of the judgment appealed from.
Such bond shall not exceed twice the amount of maximum fine and in the case of a jail sentence, a cash equivalent thereof.
Upon application to the clerk and in the discretion of the court, the Appellant (s) shall be allowed in forma pauperis and the Appellant shall be allowed to proceed without posting bond.
SECTION 6.7. INTERLOCUTORY APPEALS.
In addition to the jurisdiction provided for in Section 6.4 above, the Supreme Court shall also have jurisdiction to entertain Interlocutory Appeals, wherein, the Appellant seeks to challenge the personal and/or subject matter jurisdiction of the Trial Court. Interlocutory Appeals shall be taken from the Trial Court by utilizing the procedures for filing an appeal in accordance with Sections 6.5 and 6.7.
SECTION 6.8. CONTENTS OF NOTICE OF APPEAL.
Form of Notice: The Notice of Appeal shall be on the form presented by the Supreme Court and shall contain the following information:
(1) Name and address of the party taking the appeal and the attorney of record, if represented.
(2) Name of case and date on which the Final Judgment was issued.
(3) A brief statement of issues being appealed.
(4) A Certificate of Service indicating service of the Notice of Appeal upon all opposing parties and the date and manner of such service.
SECTION 6.9. STAY OF COURT JUDGMENTS AND ORDERS.
1. A Motion for Stay filed with the Supreme Court shall not be considered unless the moving party certified that a Motion for Stay was denied by the trial court. Motions for Stay shall be filed in conjunction with the Notice of Appeal as provided in Rule 6.5(1). Further, all Motions for Stay must state with specificity, the manner in which service of the motion was made upon the opposing party.
2. All Motions for Stay filed with the Supreme Court shall include a copy of the Trial Court's Order denying the Movant's request for stay. Motions for Stay shall be considered by the Supreme Court within five (5) working days after service on the opposing party is made. Unless objected to by the opposing party, the Chief Justice or his designee may rule on the motion without requiring a hearing. If the request for stay is objected to by the opposing party, the Court shall hold a hearing on the motion.
SECTION 6.10. BRIEFS AND MEMORANDA.
Upon filing Notice of Appeal with the Trial Court, the Appellant (s) shall have thirty (30) days within which to file with the Clerk of the Supreme Court, a brief, memoranda or statement in support of their appeal. The Clerk shall mail one copy, registered or certified, return receipt requested, to each Appellee. In addition, the Clerk shall mail each Justice a copy of the briefs or memoranda as they are filed.
The Appellee shall have fifteen (15) days after receipt of Appellant's brief, memoranda or statement. The Clerk shall mail one copy of the Appellee's Answer to the Appellant by registered or certified mail, return -receipt requested, and to each Justice of the Supreme Court.
The Appellant shall be entitled to file a Reply Brief within fifteen (15) days after receipt of Appellee's Answer. All briefs and notice filed with the Supreme Court shall be typed on standard 81/2" X 11" typing paper.
Extension of filing time may be granted at the discretion of the Supreme Court.
Parties who are not represented by legal counsel and who do not submit briefs, memoranda or other statement shall have their case considered from the record of the Trial Court.
SECTION 6.11. ORAL ARGUMENT.
Oral argument shall be requested by the Appellant(s) or the Appellee(s)in their opening briefs. The decision to grant oral argument shall be discretionary with the Supreme Court.
All arguments shall be limited to those issues to be addressed on appeal and neither party shall be permitted to attempt to try the case de novo.
Copies of transcripts shall be available through the Court Reporter of the Trial Court at the rate set by the Trial Court.
SECTION 6.12. ATTORNEYS AND COUNSELORS.
All attorneys and counselors admitted to practice in the Trial Court shall be eligible to practice in the Supreme Court.
SECTION 6.13. EX PARTE COMMUNICATIONS.
There shall be no ex parte communication between any Justice of the Supreme Court and any Counselor or attorney of record, or other interested party, in regards to any case on appeal. In addition, there shall be no ex parte communication between any member of the Oglala Sioux Tribal Council and any Justice of the Supreme Court in an attempt to influence, by any means, the outcome or decision of the Supreme Court of the Oglala Sioux Nation.
SECTION 6.14. REGULAR SESSIONS OF THE SUPREME COURT.
The Supreme Court of the Oglala Sioux Nation shall convene regularly on a quarterly basis at such place and time as the Chief Justice shall designate. The Court shall dispose of all appeals on the docket before it ends the session.
A session shall consist of one or two day meetings dependent upon the number of cases on the docket.
SECTION 6.15. SPECIAL SESSION.
The Chief Justice, upon consultation with the other Justices on the panel, shall have the authority to convene a Special Session for the purpose of considering Motions before the Supreme Court for expedited appeals. The Chief Justice shall designate the time and place of Special sessions.
SECTION 6.16. DUTIES OF CHIEF JUSTICE.
In addition to those powers enumerated in Sections 6.10 and 6.11, the duties of the Chief Justice shall include, but not be limited to: designating alternate Justices to hear cases in instances of conflict or unavailability of a permanent Justice; swearing in Associate Justices and elected Tribal Officials; appointed an Acting Chief Justice in his absence; assigning cases to individual Justices for opinion writing; scheduling and ordering of presentation of cases; and scheduling meetings or sessions of the Supreme Court of the Oglala Sioux Nation.
SECTION 6.17. COMPENSATION OF JUSTICES.
Compensation of the Chief Justice and the Associate Justices of the Supreme Court shall be fixed by the Oglala Sioux Tribal Council according to the budget of the Supreme Court. Justices of the Supreme Court shall receive compensation only for those cases in which they sit as members of the Supreme Court or otherwise perform duties of their office.
SECTION 6.18. PROCEDURAL ISSUES.
In deciding any procedural issues that raises defects either in the Trial Court or the Supreme Court process, not covered by the provisions of this Code or the Law and Order Code of the Oglala Sioux Tribe, the Supreme Court shall follow and apply the Federal Rules of Criminal and Civil Procedures, as applicable.
SECTION 6.19. REMOVAL OF JUSTICES.
Misconduct in office or inability to carry out the duties of office shall be grounds for removal of Justices from the Supreme Chariot [sic].
Misconduct shall mean conviction of a felony or misdemeanor involving dishonesty or acts offensive to the morals of the community; violation of the Judicial Code of Ethics.
All charges of misconduct or inability to perform the duties of office shall be specified in writing and filed with the Chairman of the Law and Order Committee of the Oglala Sioux Tribe.
All charges shall be served on the Justice personally or by registered mail within ten (10) days after they are filed with the Law and Order Committee. The Justice shall have ten (10) days after receipt of notice to answer the charges.
Within ten (10) days after receipt of the Answer, the Law and Order Committee shall conduct a hearing to determine whether sufficient grounds for removal exist.
All hearings and proceedings shall include the right of the Justice to present witnesses and evidence on his own behalf, cross examine witnesses and evidence on his own behalf, cross examine witnesses against him and be represented by counsel at his own expense.
Within ten (10) working days after receipt of filings, the Law and Order Committee shall issue its findings and recommendations to the Oglala Sioux Tribal Council. At its next regular meeting, the Oglala Sioux Tribal Council shall affirm or deny the recommendations of the Law and Order Committee by a two-thirds (2/3) vote of the full council. The decision of the Oglala Sioux Tribal Council shall be final.
SECTION 6.20. VACANCIES.
Should vacancies occur as a result of death, disability, resignation or removal, the Executive Committee is authorized to fill vacancies on the Supreme Court subject to confirmation of the Oglala Sioux Tribal Council at its next regular meeting.
SECTION 6.21. AMENDMENTS.
These rules may be amended or modified by the Justices of the Supreme Court and shall be subject to ratification of the Oglala Sioux Tribal Council.
SECTION 7. WITNESSES - SUBPOENAS.
(a) The Judges of the Oglala Sioux Tribal Court shall have the power to issue subpoenas for the attendance of witnesses either on their own motion or at the request of the Superintendent, or any of the parties to the case, which subpoenas shall bear the signature of the Judge issuing it, provided that all witnesses subpoenaed on behalf of the Oglala Sioux Tribe shall be entitled to payment of one dollar ($1.00) per diem and such other traveling expenses as may be determined by the Court.
Hist: 1937 Code, Ch. 1, Sec. 8, as amended
by Ord. #39.
Annotation: Fed. Reg., Vol. 40, No. 72, 4/14/75, p. 16697.
SECTION 8. CLERK OF COURT.
(a) A qualified Indian of the Pine Ridge Reservation shall be appointed as Clerk of the Court by the Tribal Council, (with the consent of the Superintendent, if the person appointed is an Agency, employee). He shall render assistance to the police force and to individual members of this Tribe in drafting complaints, subpoenas, warrants, commitments, and any other documents incident to the lawful functions of the Court. It shall be the further duty of said Clerk to attend and keep a record of all proceedings of the Oglala Sioux Tribal Court, to read the complaint to the defendants, to administer oaths to witnesses, to collect all fines paid by the order of the Court, and make an accounting of all fines collected to proper Tribal officials of the Pine Ridge Reservation and the Tribal Council, to receive the transcripts of cases and papers on appeal and make a permanent record, properly filed. A bond may be required.
(b) A qualified member of the Oglala Sioux Tribe shall be appointed as Clerk of Court for the Appellate Court. The Clerk of Court shall render assistance to the Appellate Court Judges, individual members of the Tribe who are appealing, drafting complaints, subpoenas, warrants, commitments and any other documents incidental to the lawful function of the Appellate Court. It shall be the further duty of said Appellate Clerk of Court to attend and keep record of all proceedings of the Oglala Sioux Tribal Appellate Court, to administer oaths to witnesses, to collect the appeal fee and make an accounting of all fees accepted to the proper Tribal official, namely the Oglala Sioux Tribal Treasurer, to receive the -transcripts of cases and other documents on appeal and make a permanent record, properly filed. A bond may be required.
(c) No person shall be considered for appointment of Clerk of Court or Clerk of Court for the Appellate Court until his qualifications and competence have been examined by the Tribal Court, Appellate Court and Police Personnel Board, created under Section 4.2 of this Code, and a report on such examination has been filed by the Board with final confirmation by the Tribal Council. Speaks the English and Sioux languages.
Hist: 1937 Code, Ch. 1, Section 10; Res. 60-26 and amended by Ord. 80-12.
SECTION 8.1. COMPENSATION FOR CLERK OF COURT.
The salary of the Clerk of Court shall be determined by the Tribal Council.
Hist: Ord. #81, 1951, as amended by 58-5, 1/24/58.
SECTION 9. PROSECUTOR.
(a) A qualified member of the Oglala Sioux Tribe shall be appointed as Prosecutor by the Tribal Council. He shall receive complaints from members of the public and shall have the power to file complaints on his own authority. It shall be the responsibility of the Prosecutor to present the case of the prosecution to the Court, but he shall present only those cases in which he finds upon investigation, that there was reasonable justification for the complaint. Complaints which he finds unjustified shall be marked by the Prosecutor "No Prosecution."
(b) No person shall be eligible to serve as Prosecutor of the Oglala Sioux Tribe, unless he:
(1) Is a member of the Oglala Sioux Tribe;
(2) Is twenty-five (25) years of age or older;
(3) Has made his home on the Pine Ridge Indian Reservation for at least five (5) years immediately prior to his appointment;
(4) Has never been convicted of a felony, or within one (1) year last past, a misdemeanor;
(5) Is a person of good moral character; and
(6) Speaks the English and Sioux languages fluently.
(c) No person shall be considered for appointment as Prosecutor unless his qualifications and competence have been examined by the Tribal Court and Police Personnel Board created under Section 4.2 of this Code, and a report on such examination has been filed with the Tribal Council.
(d) The compensation of the Prosecutor shall be determined by the Tribal Council.
Hist: Res. #60-46.
Annotations: Wounded Knee v. Andera, (416 F. Supp. 1236, D.S.D., 1976): Trial Court wherein one person served simultaneously as Tribal Judge and as Tribal Prosecutor was so inherently unfair as to violate due process of law as guaranteed to Indian persons by the Indian Civil Rights Act of 1968. 25 U.S. C. 1302(8), Indian Civil Rights Act.
SECTION 9.1 -- RESERVED SECTION
SECTION 9.2. PROSECUTORIAL INVESTIGATORS.
The Oglala Sioux Tribal Council establishes two (2) positions to be entitled "Prosecutorial Investigators."
Two Prosecutorial Investigator positions shall be fined on a full-time basis and appointed by the Prosecutor's office from the standards, resources, and financial guidelines to be developed by the Prosecutor's Office, Executive Board and Public Safety Director, recommended by same in writing to the Law and Order Committee, along with sufficient reasons for the recommendations, and then to come before the Council for its full consideration by the next regular council meeting.
Said Prosecutorial Investigators shall be selected from the most qualified of people and shall be provided with the necessary training materials and supplies, financial recompense, competitive payments, and whatever else is reasonably necessary in order for them to properly discharge their important functions.
Hist: Res. #77-158, 12/12/77.
SECTION 10. COURT RECORDS.
The Oglala Sioux Tribal Court shall be required to keep for inspection by duly qualified officials a record of all proceedings of the Court which record shall reflect the title of the case, the names of the parties, the substance of the complaint, the names and addresses of all witnesses, the date of the hearing or trial, by whom conducted, the findings of the Court, and the judgment, together with any other facts or circumstances deemed of importance to the case. A record of all proceedings shall be kept at the Agency, as required by the United States Code, Title 25, Section 200.
Hist: 1937 Code, Ch. 1, Sec. 11.
SECTION 11. COPIES OF LAWS - INTERPRETATIONS.
The Oglala Sioux Tribal Court of Appeals
shall endeavor to secure copies of all Federal and State laws and Indian office
regulations applicable to the conduct of Indians within the Reservation.
Whenever the Court is in doubt as to the meaning of the law, treaty, or ordinance, it may request the Superintendent to furnish an opinion on the point in question.
Hist: 1937 Code, Ch. 1, Sec. 12.
SECTION 12. COMPLAINTS.
Any complaint filed in the Oglala Sioux Tribal Court shall bear the signature of the complainant or complaining witness, witnessed by two (2) persons known to the complainant, or the complainant may swear and affirm that the allegations made in the complaint are true and correct to the best of his or her information and belief.
Hist: 1937 Code, Ch. 1, Sec. 13, as amended
by R es. #77-156, 12/12/77.
Annotations: Fed. Reg., Vol. 40, No. 72, 4/14/74, p. 16691.
SECTION 13. ARREST WARRANTS.
Every Judge of the Tribal Court shall have the authority to issue warrants to apprehend, said warrants to be issued at the discretion of the Court only after a written complaint shall have been filed. Service of warrants shall be made by a duly qualified member of the Indian Police or other police officer of the United States Indian Service or Tribal Police. Warrants to apprehend shall bear the signature of a duly qualified Judge of the Oglala Sioux Tribal Court.
Warrants shall be served between 7:00 a. m. and 7:00 p.m. unless the Judge issuing the warrant, for good reason, authorizes service at some other time and such authorization is noted on the warrant.
Hist: 1937 Code, Ch. 1, Sec. 14, and Para.
2 added by Res. #60-26.
Annotations: Fed. Reg., Vol. 40, No. 72, 4/14/75, p. 16692.
SECTION 13.1. PROTECTIVE CUSTODY.
Any person who appears to be intoxicated in a public place and to be in need of help, may be assisted to his home, or may be taken into protective custody by an officer of the Oglala Sioux Tribal Public Safety Commission and immediately be taken to a tribal treatment facility for treatment.
SECTION 13.2. PROTECTIVE CUSTODY NOT AN ARREST.
Any officer of the Oglala Sioux Tribal Public Safety Commission in detaining a person pursuant to Section 13.1 and in taking such person to a tribal treatment facility, is taking such person into protective custody and shall make every reasonable effort to protect his/her health and safety in taking the individual into protective custody, the detaining officer may take reasonable steps to protect himself /herself. A taking into protective custody under this section is not an arrest. No entry or other record shall be made to indicate that the person has been arrested or charged with a crime.
SECTION 13.3. IMMUNITY OF OFFICERS.
The officers of the Public Safety Commission who actin compliance with Section 13.1 and Section 13.2 are acting in the course of their official duty and are not criminally or civilly liable thereof.
SECTION 14. ARRESTS.
Any member of the Indian Police, Police Officer of the United States Indian Service, or Tribal Police shall arrest any person for any offense defined by these ordinances or by a Federal law when such offense shall occur in the presence of an arresting officer, or when the arresting officer shall have reasonable evidence that the person has committed an offense, or when the officer has a warrant commanding him to apprehend such person.
Hist: 1937 Code, Ch. 1, Sec. 14, and amended
by Res. #60-26.
Annotations: Federal Register, Vol. 40, No. 72, 4/14/75, p. 16694. 25 U.S.C. 1302(2), Indian Civil Rights Act.
SECTION I5. SEARCH WARRANT - DEFINED.
Every Judge of the Oglala Sioux Tribal Court of the Pine Ridge Indian Reservation shall have authority to issue warrants for search and seizure of the premises and property of any person under the jurisdiction of said Court. However, no warrant of search and seizure shall be issued except upon a duly signed and written affidavit based upon reliable information or belief charging that an offense has been committed against the Oglala Sioux Tribe. No warrant for search and seizure shall be valid unless it contains the name or description of the person or property to the searched and describes the articles) or property to be seized, and bears the signature of a duly qualified Judge of the Oglala Sioux Tribal Court. Service of warrants of search and seizure shall be made only by members of the Indian Police Force, Police Officers of the United States Indian Service or Tribal Police. Search warrants shall be served between 7:00 a. m. and 7:00 p. m. unless the Judge issuing the search warrant, for good reason, authorized service at some other time and such authorization is noted on the search warrant.
No policeman shall search or seize any property without a warrant unless he shall know, or have reasonable cause to believe that the person in possession of such property is engaged in the commission of an offense under these ordinances. Unlawful search and seizure will be deemed trespass and punished in accordance with Chapter 6, Section 101 of these ordinances.
Hist: 1937 Code, Ch. 1, Sec. 16, and amended
by Res. #60-26.
Annotations: Federal Register, Vol. 40, No. 72, 4/14/75, p. 166693. 23 U.S.C.13and 25 U.S.C.476. Ortiz-Barraza v. United States, 512 F2d. 1176 (9th Cir., 1975): A Tribal police officer employed by the Papago Tribe had authority to investigate within the Sells Reservation any on-Reservation violations of State and Federal law where the exclusion of the trespassing offender from the Reservation might be contemplated, and had power to stop and search vehicle coming from the direction Mexico and which might be used in smuggling marijuana.
SECTION 15.1. WARRANT UPON ORAL TESTIMONY. REPEALED BY ORDINANCE #86-13.
SECTION 15.2. ARRAIGNMENT.
Within thirty-six (36) hours after apprehension the defendant shall be brought before the Judge who will acquaint the defendant with the complaint filed against him, and advise him of his rights and the defendant shall be given an opportunity to make a plea of "Guilty" or "Not Guilty".
(a) If the defendant shall make a plea of "guilty" the Judge shall inquire if the defendant has any reason for not being sentenced at that time. If no reason is advanced, the Judge shall pass sentence forthwith. If the defendant advances reasons why the sentence should not be passed at that time, the Judge shall give due consideration and act thereon within his discretion, considering his oath to uphold the law.
(b) If the plea is "not guilty" the case will be set for hearing at next session of Court. The Judge shall prescribe the bond required for appearance of defendant on the date for hearing and the defendant shall be given opportunity to secure such bond in accordance with instructions issued then and there by the Judge; which instructions shall be made a matter of record. If the defendant fails to secure the required bond, the Judge shall issue a temporary commitment order to place defendant in custody of keeper of jail until date set for hearing of said case.
HISTORY: Ordinance No. 21.
ANNOTATIONS: Federal Register, Vol. 40, No. 72, 4/14/75, p. 16694. 25 US C 1302(6), Indian Civil Rights Act.
SECTION 16. COMMITMENTS.
No Indian shall be detained, jailed or imprisoned under these ordinances for a longer period than thirty-six (36) hours excluding Saturdays, Sundays, and legal holidays unless there is issued a commitment order bearing the signature of a duly qualified judge of the Oglala Sioux Tribal Court. There shall be issued, for each Indian held for a trial a temporary commitment, and for each Indian held after sentence a final commitment on the forms prescribed in these ordinances.
HISTORY: 1937 Code, Chapter 1, SECTION 17.
SECTION 16.1. TRIAL - CRIMINAL CASES.
The date having been set for the hearing, the defendant is to be brought before the court, with witnesses as subpoenaed on said appointed day. The complaint is then read to the defendant and an opportunity there given to the defendant to:
(a) change plea;
(b) to stand trial and produce evidence in his behalf.
If the defendant changes his plea from "not guilty" to "guilty", sentence may be passed and the case is closed.
If the defendant chooses to stand trial the judge shall then require the defendant, plaintiff and witnesses to be sworn and proceed to hear evidence from both defendant and plaintiff. In commencing the hearing the procedure shall be to permit plaintiff to present evidence to support complaint and followed by evidence in behalf of the defendant.
The defendant shall be given the right to argue his case and cross-examine the witnesses. The defendant shall be given the right to choose some member of the Tribe or an attorney to represent him, in which case the Judge of the Court may appoint some member of the Tribe or an attorney to represent the Tribe. After evidence has been submitted the Judge shall render his decision and if the defendant is found "not guilty" the defendant shall be released forthwith.
If the defendant is found "guilty" the Judge shall then ascertain if the defendant has any reason why the sentence should not then and there be imposed. If the defendant advances such reason the Judge shall give same due consideration. After weighing the reasons given, the Judge may follow these suggested courses:
(a) Defer sentence for not more than five (5) days for an opportunity to investigate, during which time the defendant shall remain in same status as to his personal liberty as prevailed immediately preceding his trial; or
(b) Render sentence in light of such reasons advanced and immediately impose sentence in accordance with his judgment.
HISTORY: Ordinance No. 21.
ANNOTATIONS: 25 US CA 1302 (4), (6), (8), Indian Civil Rights Act. Tom V. Sutton, 533 F2d 1101 (9th Cir. 1976): Constitution of Lummi Tribe wasn't intended to provide counsel at Tribal expense.
Under provisions of the 25 USCA 1302, concerning due process to be afforded in Indian Tribes, a criminal defendant, when criminal action is brought under Tribal law in the Tribal Court, may be represented by counsel, but only at his expense.
SECTION 17. BAIL OR BOND.
Every Indian charged with an offense before any Oglala Sioux Tribal Court shall be admitted to bail. Bail may be two (2) reliable members of the Oglala Sioux Tribe, who shall appear before a Judge of the Oglala Sioux Tribal Court where the complaint has been filed and there execute an agreement in compliance with the form provided therefore and made a part of these ordinances, or by a personal bond where the defendant deposits with the Court cash or property. In no case shall the penalty or deposit specified in the agreement exceed twice the maximum penalty set by these ordinances for violation of the offense with which the accused is charged. A Judge may, in his discretion, release a defendant on his own recognizance.
HISTORY: 1937 Code, Chapter 1, SECTION 18.
SECTION 18. DEFINITION OF SIGNATURE.
The term "signature" as used in these ordinances shall be defined as the written signature, official seal, or the witnessed thumbprint, or mark of any individual.
HISTORY: 1937 Code, Chapter 1, SECTION 19.
SECTION 19. RELATIONS WITH THE COURT.
No member of the Tribal Council shall obstruct, interfere with, or control the functions of any Oglala Sioux Tribal Court, or influence such functions in any manner in a case or cases then pending before the Courts. The committees of the Oglala Sioux Tribal Council shall have the authority to investigate Tribal Court matters notwithstanding this section, to the extent necessary to prepare legislation for future cases. The Court may request employees of the Indian Service, particularly those who are engaged in social work, health and education work, to assist in the preparation and presentation of the facts in the case and in the proper treatment of individual offenders.
HISTORY: 1937 Code, Chapter 1, SECTION 20; Resolution 68-16 (2-21-68); Ordinance 80-02 (6-20-80).