FLANDREAU SANTEE SIOUX TRIBE TRIBAL LAW AND ORDER CODE (2023)

FLANDREAU SANTEE SIOUX TRIBE TRIBAL LAW AND ORDER CODE

TITLE 3. CRIMINAL CODE

CHAPTER 1. GENERAL PROVISIONS

Section 3-1-1. Jurisdiction. The criminal jurisdiction of the Flandreau Santee Sioux Tribal Court

shall extend to all criminal offenses committed within the territorial boundaries of the reservation

as defined in Title 1, Chapter 4, section 1-4-4, by tribal members, non-member Indians and any

other individual or entity provided that individual or entity consents to such jurisdiction. The

criminal jurisdiction of the Flandreau Santee Sioux Tribal Court shall be concurrent with any

lawful jurisdiction of the federal government.

Section 3-1-2. Limitations of Actions. Except as otherwise specifically provided in this code,

the commission of a crime under this Title must be prosecuted within the following number of

years of the date the criminal act was committed or the last act in a series of acts which amount

to a criminal offense under this Code.

(1)

For all felonies, there is a seven (7) year limitation.

(2)

For all misdemeanors, there is a three (3) year limitation.

Section 3-1-3. Tolling of Statute of Limitations. If a defendant in a criminal action leaves the

jurisdiction of the reservation the limitation set out in 3-1-2 shall be tolled until such time as the

defendant returns to the reservation.

Section 3-1-4. Persons Capable of Committing Crimes-Exceptions. Any person is capable of

committing a crime, except those belonging to the following classes:

(1)

children under the age of ten years;

(2)

children of the age of ten years but under the age of fourteen years, in absence of

proof that at the time of the committing the act charged against them they knew of

its wrongfulness;

(3)

people who committed the act or made the omission charged under an ignorance or

mistake of fact which disproves any criminal intent, but ignorance of the law does

not excuse a person from punishment for its violation;

(4)

persons who committed the act charged without being conscious thereof; or

(5)

persons who committed the act charged while under involuntary subjection to the

power of superiors.

Section 3-1-5. Aiding, Abetting or Advising-Accountability as a Principal. Any person who,

with the intent to promote or facilitate the commission of a crime, aids, abets or advises another

person in planning or committing the crime, is legally accountable, as a principal to a crime.

Section 3-1-6. Accessories to Crime. A person is an accessory to a crime, if, with intent to

hinder, delay or prevent the discovery, detection, apprehension, prosecution, conviction or

punishment of another for the commission of a felony, he or she renders assistance to the other

person. There are no accessories to misdemeanors. Render assistance means to:

(1)

Harbor or conceal the other person;

(2)

Warn the other person of impending discovery or apprehension, except that this

does not apply to a warning given in an effort to bring the other person into

compliance with the law;

(3)

Provide the other person with money, transportation, a weapon, a disguise or any

other thing to be used in avoiding discovery or apprehension;

(4)

Obstruct anyone by force, intimidation or deception in the performance of any act

which might aid in the discovery, detection, apprehension, prosecution, conviction

or punishment of the other person; or

(5)

Conceal, destroy or alter any physical evidence that might aid in the discovery,

detection, apprehension, prosecution, conviction or punishment of the other person.

A violation of this Section is a Class 1 misdemeanor.

Section 3-1-7. Accessory Punishable Though Principal Not Tried or Acquitted. An accessory

to the commission of a felony may be prosecuted, tried, and punished, even if the principal is not

prosecuted or tried, and even if the principal was acquitted.

Section 3-1-8. Attempts to Commit a Crime. Any person who attempts to commit a crime and

in the attempt does any act toward the commission of the crime, but fails or is prevented or

intercepted in the perpetration thereof, is punishable where no provision is made by law for the

punishment of such attempt. Every attempted commission of a crime under this code shall be

classified and punished in accordance with the offense attempted.

Section 3-1-9. Conspiracy to Commit a Crime. If two or more persons conspire, either to

commit any offense against the laws of the Flandreau Santee Sioux Tribe, or to defraud the

Flandreau Santee Sioux Tribe, or any of its subdivisions, in any manner or for any purpose, and

one or more of the parties do any act to effect the object of the conspiracy, each of the parties to

such conspiracy shall be guilty of the crime of conspiracy. Conspiracy is a Class 1 misdemeanor.

Section 3-1-10. Definitions. Terms used in this Title, and in other statutes which prescribe a

penalty for a tribal offense, unless the context otherwise plainly requires, mean:

(1)

When applied to the intent with which an act is done or omitted:

Title 3, Criminal Law

2

(2)

(a)

The words “malice, maliciously” and all derivatives thereof import a wish

to intentionally vex, annoy, or injure another person, established either by

proof or presumption of law;

(b)

The words “intent, intentionally” and all derivatives thereof, import a

specific design to cause a certain result or, when the material part of a

charge is the violation of a prohibition against conduct of a certain nature,

regardless of what the offender intends to accomplish thereby, a specific

design to engage in conduct of that nature;

(c)

The words “knowledge, knowingly” and all derivatives thereof, import

only a knowledge that the facts exist which bring the act or omission

within the provisions of any statute. A person has knowledge when he is

aware that the facts exist which brings the act or omission within the

provisions of any statute. It does not require knowledge of the

unlawfulness of such act or omission;

(d)

The words “reckless, recklessly” and all derivatives thereof, import a

conscious and unjustifiable disregard of a substantial risk that the

offender’s conduct may cause a certain result or may be of a certain

nature. A person is reckless with respect to circumstances when he

consciously and unjustifiably disregards a substantial risk that such

circumstances may exist;

(e)

The words “neglect, negligently” and all words derived thereof, import a

want of attention to the nature or probable consequences of an act or

omission which a prudent man ordinarily bestows in acting in his own

concerns;

(f)

When the section defining an offense provides that negligence suffices to

establish an element thereof, then recklessness, knowledge, intent or

malice also constitutes sufficient culpability for such element. When

recklessness suffices to establish an element of the offense, then

knowledge, intent or malice also constitutes sufficient culpability for such

element. When knowledge suffices to establish an element of an offense,

then intent or malice also constitutes sufficient culpability for such

element. When intent suffices to establish an element of an offense, then

malice also constitutes sufficient culpability for such element;

“Abuse” is an act or series of acts, or omission thereof, intended to or resulting in

physical, mental, or emotional harm. Such acts may involve manipulation,

intimidation, or coercion; but this is not required. When acts of abuse involve

victims that are unaware an act (or omission) is occurring, harm may be implied.

Examples of abusive conduct includes, but is not limited to, isolation or

unreasonable confinement, financial exploitation, sexual acts, sexual contact, or

sexual exposure, or the willful deprivation by a caretaker of the basic necessities of

life;

Title 3, Criminal Law

3

(3)

“Actor,” the person who takes the active part in a transaction;

(4)

“Affirmative defense,” an issue involving an alleged defense to which, unless the

tribe’s evidence raises the issue, the defendant, to raise the issue, must present some

credible evidence. If the issue involved in an affirmative defense is raised, then the

guilt of the defendant must be established beyond a reasonable doubt as to that issue

as well as all other elements of the offense;

(5)

“Check,” a check, draft, order or other commercial device which orders a financial

institute to pay a sum certain of money on its presentment;

(6)

“Coercion” means threats of serious harm to or physical restraint against any

person; any scheme, plan, or pattern intended to cause a person to believe that

failure to perform an act would result in serious harm to or physical restraint against

any person; or the abuse or threatened abuse of law or the legal process;

(7)

“Commercial Sex Act” means any sex act, on account of which anything of value

is given to or received by any person;

(8)

“Concealed,” any firearm that is totally hidden from view. If any part of the

firearm is capable of being seen, it is not concealed;

(9)

“Consideration,” any type of property or thing of legal value, whether delivered in

the past, present or to be delivered in the future. The term includes an unfulfilled

promise to deliver. The term may include an advantage or benefit to the promisor

or a loss or detriment to the promisee. Any amount, advantage or inconvenience,

no matter how trifling, is sufficient to constitute consideration;

(10)

“Crime of violence,” any of the following crimes or an attempt to commit, or a

conspiracy to commit, any of the same: murder, manslaughter, rape, aggravated

assault, riot, robbery, burglary in the first or second degree, arson, kidnapping and

any other felony in the commission of which the perpetrator used force, or was

armed with a dangerous weapon, or used any explosive or destructive device;

(11)

“Dangerous weapon,” or “deadly weapon,” any firearm, knife or other instrument,

material or substance, whether animate or inanimate, which is calculated or

designed to inflict death or serious bodily harm, or by the manner in which it is

used to likely inflict death or serious bodily harm;

(12)

“Dealer in stolen property,” a person who:

(a)

Is found in possession or control of property stolen from two or more

persons on separate occasions; or

(b)

Has received stolen property in another transaction within the year

preceding the commencement of the prosecution; or

Title 3, Criminal Law

4

(c)

Trades in property similar to the type of stolen property received and

acquires such property for a consideration which he knows is substantially

below its reasonable value;

(13)

“Deprive,” to take or to withhold property of another or to dispose of property of

another so as to make it unlikely that the owner will receive it;

(14)

“Destructive device,”

(a)

Any bomb, grenade, explosive missile, or similar device or any launching

device therefore; or

(b)

Any breakable container which contains a flammable liquid with a

flashpoint of one hundred and fifty degrees Fahrenheit or less and has a

wick or similar device capable of being ignited;

The term does not include “permissible fireworks” defined by Title 14; any device

which is neither designed nor redesigned for use as a weapon; any device, although

originally designed for used as a weapon, which is redesigned for use as a signaling,

pyrotechnic, line throwing, safety or similar device; surplus ordnance sold, loaned

or given by the Secretary of the Army pursuant to the provisions of the United

States Code; or any other device which is an antique or is a rifle which the owner

intends to use solely for sporting purposes;

(15)

“Explosive,” any substance, or combination of substances, that is used for the

purpose of detonation and which, upon exposure to any external or internal force

or condition, is capable of a relatively instantaneous release of gas or heat. The

term does not include “permissible fireworks”;

(16)

“Firearm,” any weapon from which a projectile or projectiles may be discharged

by gunpowder. As used in this subdivision, the word “gunpowder” includes any

propellant that upon oxidization emits heat and light and is commonly used in

firearms cartridges;

(17)

“Identity” means any name, number, or data transmission that may be used, alone

or in conjunction with any other information, to identify a specific individual or

entity, including any of the following:

(18)

(a)

a name, Social Security number, date of birth, official government-issued

driver’s license or identification number, government passport number, or

employer or taxpayer identification number;

(b)

unique electronic identification number, address, account number, or

routing code; or

(c)

telecommunication identification information or access device;

“Immediate family,” spouse, children, parents or guardian of the victim;

Title 3, Criminal Law

5

(19)

“Insanity,” the condition of a person temporarily or partially deprived of reason,

upon proof that at the time of committing the act charged against him, he was

incapable of knowing its wrongfulness, but not including an abnormality

manifested only by repeated lawful or antisocial behavior;

(20)

“Intoxication,” a disturbance of mental or physical capacities resulting from the

introduction of substances into the body. Intoxication is not, in itself, a mental

disease or defect;

(21)

“Law enforcement officer,” any individual authorized by the Tribe to provide law

enforcement services on the reservation;

(22)

“Minor” means an individual under the age of 18 years;

(23)

“Moral turpitude,” an act done contrary to justice, honesty, principle or good

morals, as well as an act of baseness, vileness or depravity in the private and social

duties which a person owes to his fellow man or to society in general;

(24)

“Motor vehicle,” an automobile, motor truck, motorcycle, house trailer, trailer

coach, cabin trailer, or any vehicle propelled by power other than muscular power;

(25)

“Obtain,”

(26)

(a)

In relation to property, to bring about a transfer or purported transfer of a

legal interest in the property, whether to the actor or another; or

(b)

In relation to labor or service, to secure performance thereof;

“Occupied structure,” any structure:

(a)

Which is the permanent or temporary habitation of any person, whether or

not any person is actually present;

(b)

Which at the time is specially adapted for the overnight accommodation of

any person, whether or not any person is actually present; or

(c)

In which at the time any person is present;

(27)

“Offense” or “public offense,” a crime, petty offense, violation of an ordinance, or

act prohibited by tribal, state or federal law;

(28)

“Pass,” to utter, publish or sell or to put or send forth into circulation. The term

includes any delivery of a check to another for value with intent that it shall be put

into circulation as money;

(29)

“Person,” a natural person, association, corporation, firm, organization, partnership

or society;

Title 3, Criminal Law

6

(30)

“Private place,” a place where one may reasonably expect to be safe from casual or

hostile intrusion or surveillance, but does not include a place to which the public or

a substantial group thereof has access;

(31)

“Process,” a writ, warrant, summons or order issued in the course of judicial

proceedings;

(32)

“Property,” anything of value, including but not limited to, motor vehicles, real

estate, tangible and intangible personal property, contract rights, chooses-in-action

and other interests in or claims to wealth, admission or transportation tickets,

captured or domestic animals, food and drink, electric or other power, services, and

signatures which purport to create, maintain or extinguish any legal obligations;

(33)

“Property of another,” property in which any person other than the actor has an

interest upon which the actor is not privileged to infringe, regardless of the fact that

the actor also has an interest in the property and regardless of the fact that the other

person might be precluded from civil recovery because the property was used in an

unlawful transaction or was subject to forfeiture as contraband. Property in

possession of an actor shall not be deemed property of another who has only a

security interest therein, even if legal title is in the creditor pursuant to a conditional

sales contract or other security agreement;

(34)

“Prostitution,” means engaging in a commercial sex without being trafficked to do

so.

(35)

“Public officer,” an individual who holds a position in the tribal government or in

any of its political subdivisions, by election or appointment, for a definite period,

whose duties are fixed by law, and who is invested with some portion of the

sovereign functions of government;

(36)

“Public record,” any official book, paper, or record created, received, or used by or

in any office or agency of the tribe or of any of its political subdivisions;

(37)

“Publish,” to disseminate, circulate or place before the public in any way, other

than by speech which is not mechanically or electronically amplified;

(38)

“Receive,” to acquire possession, control or title, or to lend or borrow on the

security of the property;

(39)

“Serious harm” means any harm, whether physical or nonphysical, including

psychological, financial, or reputational harm that is sufficiently serious, under all

the surrounding circumstances, to compel a reasonable person of the same

background and in the same circumstances to perform or to continue performing

commercial sexual activity in order to avoid incurring that harm;

(40)

“Service,” labor that does not include a tangible commodity. The term includes,

but is not limited to: labor; professional advice; telephone, cable television and

other utility service; accommodations in hotels, restaurants or elsewhere;

Title 3, Criminal Law

7

admissions to exhibits and entertainments; the use of machines designed to be

operated by coin or other thing of value; and the use of rental property;

(41)

“Sexual penetration” means an act, however slight, of sexual intercourse,

cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part

of the body or force any object into the genital and anal openings of another

person’s body;

(42)

“Sexual contact” means any touching, not amounting to rape, of the breasts of a

female or the genitalia or anus of any person with the intent to arouse or gratify the

sexual desire of any party;

(43)

“Signature,” any name, mark or sign written with intent to authenticate any

instrument or writing;

(44)

“Special victim” means any minor as defined in section 3-1-10(22), elder as defined

in Title 8, section 21.0202, developmentally delayed, mentally disabled or

otherwise incapacitated person, or person who because of his or her current

situation is especially vulnerable to being the subject of harm as compared to other

tribal community members;

(45)

“Steal,” to commit any act of theft;

(46)

“Structure,” any house, building, outbuilding, motor vehicle, watercraft, truck,

trailer, tent, or other edifice, vehicle or shelter, or any portion thereof;

(47)

“Unoccupied structure,” any structure which is not an occupied structure;

(48)

“Victim,” any natural person against whom the defendant in a criminal prosecution

has committed or attempted to commit a crime;

(49)

“Voluntary intoxication,” intoxication caused by substances that an actor

knowingly introduces into his body, the tendency of which is to cause intoxication;

(50)

“Written instrument,” any paper, document, or other instrument containing written

or printed matter or the equivalent thereof, used for purposes of reciting,

embodying, conveying, or recording information, and any money, credit card,

token, stamp, seal, badge, trade mark, service mark or any evidence or symbol or

value, right, privilege or identification, which is capable of being used to the

advantage or disadvantage of some person.

CHAPTER 2. CLASSIFICATION OF OFFENSES AND AUTHORIZED SENTENCES

Section 3-2-1. Misdemeanor Classes. Misdemeanor offenses shall be divided into two classes

which are distinguished from each other by the maximum penalties authorized upon conviction.

Title 3, Criminal Law

8

The classes are as follows:

(1)

Class 1 misdemeanor: maximum one (1) year in jail or one thousand dollar fine,

or both;

(2)

Class 2 misdemeanor: maximum thirty days in jail or two hundred dollar fine, or

both.

Section 3-2-2. Felony Classes. There shall be two classes of felonies.

(1)

Class 1 felonies shall be punishable by a term of imprisonment greater than one (1)

year but not to exceed three (3) years for any one (1) offense, or a fine greater than

$5,000 but not to exceed fifteen thousand dollars ($15,000), or both.

(2)

Class 2 felonies shall be punishable by a maximum of one (1) year in jail or a five

thousand dollar fine ($5,000), or both.

Section 3-2-3. Other Authorized Penalties and Restorative Sentences. The court may issue to

the defendant any other sentence listed in Title 2, Chapter 19 of the Flandreau Santee Sioux Tribe

Tribal Law and Order Code; or as set forth in any relevant title.

CHAPTER 3. HOMICIDE

Section 3-3-1. Homicide Defined. Homicide is the killing of one human being by the act,

procurement, or omission of another.

Section 3-3-2. Homicide. A person is guilty of criminal homicide if he purposely, knowingly,

recklessly or negligently causes the death of another human being. Criminal homicide for purposes

of this Code includes murder, manslaughter or negligent homicide. Homicide is a Class 1 felony.

There is no limitation on the number of years barring the prosecution of homicide, or any offenses

related to the commission of such homicide.

Section 3-3-3. Upon probable cause that a homicide has occurred, the suspect is subject to a

mandatory arrest and 24-hour hold. A cash bond amount of $1000 or more must be posted before

the defendant can be released from jail.

CHAPTER 4. ASSAULTS AND ABUSE

Section 3-4-1. Verbal Assault. Any person who:

(1)

Makes verbal threats or sounds in an attempt to put another in fear of imminent

bodily harm, with or without the actual ability to seriously harm the other person;

or

Title 3, Criminal Law

9

(2)

Makes a statement with the intent to abuse another person, and such statement is

shocking to the conscious of a reasonable person;

shall be guilty of verbal assault. Verbal assault is a Class 2 misdemeanor.

Section 3-4-2. Simple Assault. Any person who:

(1)

Attempts to cause bodily injury to another and has the actual ability to cause the

injury;

(2)

Recklessly causes bodily injury to another;

(3)

Negligently causes bodily injury to another with a dangerous weapon;

(4)

Attempts by physical menace to put another in fear of imminent serious bodily

harm, with or without the actual ability to seriously harm the other person; or

(5)

Intentionally causes bodily injury to another which does not result in serious bodily

injury;

shall be guilty of simple assault. Simple assault is a Class 1 misdemeanor.

Section 3-4-3. Aggravated Assault. Any person who:

(1)

Attempts to cause serious bodily injury to another, or causes such injury, under

circumstances manifesting extreme indifference to the value of human life;

(2)

Attempts to cause, or knowingly causes, bodily injury to another with a dangerous

weapon;

(3)

Attempts to cause or knowingly causes any bodily injury to a law enforcement

officer or other public officer engaged in the performance of his duties;

(4)

Assaults another with intent to commit bodily injury which results in serious bodily

injury; or

(5)

Attempts by physical menace with a deadly weapon to put another in fear of

imminent serious bodily harm;

shall be guilty of aggravated assault. Aggravated assault is a Class 1 felony. Upon probable cause

that a violation of this Chapter has occurred, the suspect is subject to a mandatory arrest and 24hour hold. A cash bond amount of $1000 or more must be posted before the defendant can be

released from jail.

Section 3-4-4. Exposing Others to Communicable Diseases an Assault. Any person who

knows he has an illness or disease, or has reason to believe he may have an illness or disease, that

can be transmitted to another person, and intentionally or recklessly transmits such illness or

Title 3, Criminal Law

10

disease by way of:

(1)

Sharing intravenous needles,

(2)

Sexual act or contact, as defined in sections 3-7-2 or 3-7-3, or

(3)

Any other manner,

shall be guilty of an assault. The assault may be a simple assault or aggravated assault depending

on the bodily injury caused.

Section 3-4-5. Domestic Assault. Any person who:

(1)

Attempts to cause bodily injury or physical harm to a family or household member,

and has the actual ability to cause such injury;

(2)

Recklessly causes bodily injury to a family or household member;

(3)

Attempts by physical menace to put a family or household member in fear of

imminent harm, with or without the actual ability to harm the other person;

(4)

Intentionally causes bodily injury to a household or family member which does not

result in serious bodily injury; or

(5)

Threatens or harasses a family or household member in a willful or malicious

manner, shall be guilty of domestic assault.

Domestic assault is a Class 2 felony. Upon probable cause that a violation of this Chapter has

occurred, the suspect is subject to a mandatory arrest and 24-hour hold. A cash bond amount of

$1000 or more must be posted before the defendant can be released from jail.

Section 3-4-6. Aggravated Domestic Assault. Any person who:

(1)

Attempts to cause serious bodily injury to a family or household member, or causes

such injury, under circumstances manifesting an extreme indifference to the value

of human life;

(2)

Attempts to cause, or knowingly causes, bodily injury to a family or household

member with a dangerous weapon;

(3)

Assaults a family or household member with intent to commit bodily injury which

results in serious bodily injury; or

(4)

Attempts by physical menace with a deadly weapon to put a Household or family

member in fear of imminent serious bodily harm,

shall be guilty of aggravated domestic assault. Aggravated domestic assault is a Class 1 felony.

Upon probable cause that a violation of this Chapter has occurred, the suspect is subject to a

Title 3, Criminal Law

11

mandatory arrest and 24-hour hold. A cash bond amount of $1000 or more must be posted before

the defendant can be released from jail.

Section 3-4-7. Domestic Abuse. Any person who abuses a family or household member, other

than a child, shall be guilty of a Class 1 Misdemeanor. Child abuse is a separate offense in section

3-4-10 of this Title. Upon probable cause that a violation of this Chapter has occurred, the suspect

is subject to a mandatory arrest and 24-hour hold. A cash bond amount of $100 or more must be

posted before the defendant can be released from jail.

Section 3-4-8. “Family or Household Member” Defined. Means a spouse, former spouse,

persons related by consanguinity or adoption of law, persons living in the same household, persons

who have lived together, persons who have had a child together, dating, or intimate partners.

Section 3-4-9. The provisions of Title 6A, Domestic Violence Protection and Prevention Code

shall apply to the domestic offenses listed within this Chapter.

Section 3-4-10. Child Abuse. Any person who abuses a child in a manner that does not constitute

an assault shall be guilty of child abuse. Child abuse is a Class 1 misdemeanor or Class 2 felony,

depending on the severity of the offense. Upon probable cause that a violation of this Chapter has

occurred, the suspect is subject to a mandatory arrest and 24-hour hold. A cash bond amount of

$100 or more must be posted before the defendant can be released from jail.

Section 3-4-11. Elder Abuse. Any person who abuses an elder in a manner that does not

constitute an assault shall be guilty of elder abuse. Elder abuse is a Class 1 misdemeanor or Class

2 felony, depending on the severity of the offense. Upon probable cause that a violation of this

Chapter has occurred, the suspect is subject to a mandatory arrest and 24-hour hold. A cash bond

amount of $100 or more must be posted before the defendant can be released from jail.

CHAPTER 5. FALSE IMPRISONMENT AND KIDNAPPING

Section 3-5-1. False Imprisonment. Any person who shall seize, confine, decoy, abduct or carry

away any person and hold or detain such person, except in the case of an unmarried minor by a

parent thereof, for any of the following reasons.

(1)

To hold for ransom or reward, or as a shield or hostage;

(2)

To facilitate the commission of any felony or flight thereafter;

(3)

To inflict bodily injury on or to terrorize the victim or another;

(4)

To interfere with the performance of any governmental or political function;

(5)

To take or entice away a minor with intent to detain and conceal such minor; or

(6)

To engage in human trafficking.

is guilty of false imprisonment, a Class 1 felony.

Title 3, Criminal Law

12

Section 3-5-2. Parental Kidnapping. Any parent, who takes, entices away or keeps his

unmarried minor child from the custody or visitation of the other parent, or any other person having

lawful custody or right of visitation, in violation of a custody or visitation determination made by

the tribal court or state court, without prior consent is guilty of a Class 1 misdemeanor. A

subsequent violation is a Class 2 felony.

CHAPTER 6. HUMAN TRAFFICKING

Section 3-6-1. Trafficking In Persons Prohibited. Whoever knowingly, by any means, uses,

kidnaps, recruits, entices, buys, sells, harbors, houses, transports, provides, obtains, advertises,

maintains, patronizes, or solicits a person to engage any other person for peonage, slavery,

involuntary servitude, forced labor or services, or forced commercial sexual acts, shall be guilty

of a Class 1 felony.

Section 3-6-2. Upon probable cause that a violation of this Chapter has occurred, the suspect is

subject to a mandatory arrest and 24-hour hold. A cash bond amount of $1000 or more must be

posted before the defendant can be released from jail.

Section 3-6-3. “Forced Labor” Defined. For purposes of this Chapter, forced labor means labor

obtained by any of the following methods: the recruitment, harboring, transportation, provision, or

obtaining of a person for labor or services, through the use of force, fraud, or coercion for the

purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.

Section 3-6-4. “Victim” Defined. For purposes of this Chapter, the term “victim” means the

individual harmed as a result of a crime under this Chapter, including, in the case of a victim who

is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim

or a representative of the victim’s estate, or another family member, or any other person appointed

as suitable by the court, but in no event shall the defendant be named such representative or

guardian.

Section 3-6-5. Supporting Human Trafficking. No individual acting in his/her own capacity or

on behalf of an entity, whether governmental, private, for-profit or not-for-profit may engage in

conduct that supports trafficking in persons, procure a commercial sex act, use forced labor, or

commit acts that directly support or advance trafficking in persons, including but not limited to

acts such as:

(1)

Denying an employee access to the employee’s own identity or immigration

documents (including by destroying or confiscating such documents);

(2)

Without legally-sufficient justification, failing to provide (or pay for) return

transportation to an employee to the country from which the employee was

recruited (if other than the United States), if the employee requests such return

transportation upon the end of employment;

Title 3, Criminal Law

13

(3)

Using materially false or fraudulent pretenses, representations, or promises

regarding the employment to solicit a person for employment, or in an offer of

employment;

(4)

Charging recruited employees placement or recruitment fees; or

(5)

Providing or arranging housing, whether temporary or permanent, that is conducive

to the trafficking of a person.

A violation of this section is a Class 1 felony.

Section 3-6-6. Benefitting Financially From Trafficking in Persons. It is a Class 1 felony to

knowingly benefit financially or by receiving anything of value from participation in a venture

which has engaged in any act in violation of this Chapter, knowing or in reckless disregard of the

fact that the venture has engaged in such activity.

Section 3-6-7. Obstructing Efforts to Combat Trafficking. Whoever obstructs, attempts to

obstruct, or in any way interferes with or prevents the enforcement of this Chapter shall be guilty

of a Class 2 felony. Obstruction may include, but is not limited to, committing perjury, destroying,

concealing, removing or tampering with evidence, and tampering with witnesses.

Section 3-6-8. Mandatory Restitution. In addition to any other civil or criminal penalties

authorized by law, the court shall order restitution for any offense under this Chapter. The order

of restitution under this section shall direct the defendant to pay the victim (through the appropriate

court mechanism) the full amount of the victim’s losses, as determined by the court. The term

“full amount of the victim's losses” shall include the greater of the gross income or value to the

defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under

the minimum wage and overtime guarantees of the Fair Labor Standards Act.

CHAPTER 7. SEX OFFENSES

Section 3-7-1. Mandatory Tiering and Registration Required. Any and all convictions under

this Chapter shall include in its sentencing order the tier, if any, the convicted person is assigned.

The order will include sufficient instructions for a convicted person to comply with the FSST Sex

Offender Registry, found in Title 24. This section applies to adults over the age of 18 for any sex

offense; and to juveniles who were at least 14 years old at the time of a rape offense.

Section 3-7-2. Sexual Acts Defined. As used in this Chapter, “sexual acts” means making sexual

contact, intercourse, anal intercourse, other penetration, masturbation, bestiality, sadism,

masochism, fellatio, cunnilingus, nudity, other activity of a sexual nature and for the purpose of

sexual stimulation or gratification of any person.

Section 3-7-3. Sexual Contact Defined. The term “sexual contact” means any touching, not

amounting to rape, of the breasts of a female or the genitalia or anus of any person with the intent

Title 3, Criminal Law

14

to arouse or gratify the sexual desire of any party.

Section 3-7-4. No Statute of Limitations for Sex Offenses Committed Against Minors. There

is no limitation on the number of years barring the prosecution of a sex offense against a minor, or

any offenses related to the commission of such prohibited sex offense.

Section 3-7-5. Strict Liability for Sex Offenses Against Minors. Mistake as to age is not a

defense to prosecution under this Chapter.

Section 3-7-6. Sexual Assault. Any person who engages in sexual contact or other behavior for

the purposes of arousal or enticement for sexual acts with another person:

(1)

Without that persons consent; or

(2)

If the other person did consent, but would not have provided it at the time of the

contact or behavior, because the person willfully deceived the other person of a

material fact in order to obtain consent;

that person is guilty of sexual assault. Sexual assault is a Class 1 misdemeanor and a Tier I offense.

Section 3-7-7. Aggravated Sexual Assault. Any person who engages in sexual contact or other

behavior for the purposes of arousal or enticement for sexual acts with another person:

(1)

Without that persons consent; or

(2)

If the other person did consent, but would not have provided it at the time of the

contact or behavior, because the person willfully deceived the other person of a

material fact in order to obtain consent; and

(3)

Causes the victim serious emotional or physical harm; and/or

(4)

Commits this offense against a special victim;

is guilty of a Class 2 felony and a Tier II offense. Upon probable cause that this offense has

occurred, the person is subject to a mandatory arrest and 24-hour hold. A cash bond amount of

$1000 or more must be posted before the defendant can be released from jail.

Section 3-7-8. Rape. Any person who commits an act of sexual penetration with any person

under any of the following circumstances:

(1)

If the victim is less than fifteen years of age; or

(2)

Through the use of force, coercion or threats of immediate and great bodily harm

against the victim or other persons within the victim’s presence, accompanied by

apparent power of execution;

(3)

If the victim is incapable of giving consent because of any intoxicating, narcotic or

anesthetic agent or hypnosis;

Title 3, Criminal Law

15

(4)

If the victim is incapable, because of mental or physical incapacity, of giving

consent to such act;

(5)

If the person knowingly has a sexually-transmitted disease and does not disclose

the disease to a sexual partner, any sexual penetration shall be deemed without

consent of the victim; or

(6)

Knowing that he or she is without contraception or STD preventative measures, and

gives the victim the belief that these protective measures are in place, shall be

deemed to have done so without consent of the victim;

shall be guilty of rape. Rape is a Class 1 felony and Tier III offense. Upon probable cause that

this offense has occurred, the person is subject to a mandatory arrest and 24-hour hold. A cash

bond amount of $1000 or more must be posted before the defendant can be released from jail.

Section 3-7-9. Sexual Extortion. A person who compels another person to submit to a sexual

act or contact, directly or indirectly, is guilty of sexual extortion:

(1)

a threat to withhold or harm the victim’s trade, business, profession, position,

employment, or calling;

(2)

a threat to make or cause to be made a criminal charge against the victim, whether

true or false;

(3)

a threat to report the victim’s immigration status to immigration or law enforcement

authorities;

(4)

a threat to disseminate private sexual images which were taken with or without the

knowledge of the victim;

(5)

a threat to expose information that the actor knows the victim wishes to keep

confidential; or

(6)

a threat to withhold victim’s basic necessities such as food, housing, medicine, or

transportation.

Sexual extortion is a Class 1 felony and Tier II offense.

Section 3-7-10. Non-Forcible Sexual Act with a Minor. Any person that is less than three years

older than the minor, who knowingly engages in a sexual act shall be guilty of a Class 2

misdemeanor if the minor is between the ages of 16 and 18. If the minor is between the ages of

15 and 16, the offense is a Class 1 misdemeanor. These are both Tier I offenses.

There can be no non-forcible sexual act of a minor under the age of 15. In that instance the sexual

act is a sexual assault, rape, and/or sexual abuse of a minor.

Section 3-7-11. Sexual Abuse of a Minor or Ward. Sexual abuse means the sexual molestation,

sexual exploitation, use in a sexual performance, engagement in sexual contact, communication of

Title 3, Criminal Law

16

sexually explicit materials to a minor, or grooming of a minor or ward for the purpose of

committing any offense under this Chapter. Any person who subjects a minor, or a ward to which

the person is responsible for, to sexual abuse is guilty of a Class 1 felony and Tier III offense.

Upon probable cause that a violation of this Chapter has occurred, the suspect is subject to a

mandatory arrest and 24-hour hold. A cash bond amount of $1000 or more must be posted before

the defendant can be released from jail.

Section 3-7-12. Voyeurism. No person may observe or watch another without clothing or under

or through the clothing, or with another person depicted in a sexual act, for the purpose of viewing

the body of, or the undergarments worn by, that other person without the consent or knowledge of

that other person for the purpose of sexual stimulation or gratification. Voyeurism is a Class I

misdemeanor and Tier I offense.

Section 3-7-13. Voyeurism of a Minor. Any violation of section 3-7-12 against a minor is a

Class 2 felony and Tier I offense.

Section 3-7-14. Photographing or Recording a Person in the Nude or During a Sexual Act.

Any person who causes or knowingly permits the photographing, filming, or recording of any

other person that depicts the person as totally nude; in a state of undress to expose the genitals,

pubic area, buttocks, or female breast; or with another person in a sexual act, without that person’s

knowledge and for the purpose of sexual stimulation or gratification of any person, shall be guilty

of a Class 1 misdemeanor. If the victim is a minor, the offense is a Class 2 felony whether or not

the minor knew of the photographing or recording. This is a Tier I offense.

Section 3-7-15. Distributing Photographs or Recording of a Person in the Nude or During a

Sexual Act.

(1)

No person may disclose, disseminate, sell, or otherwise distribute by any means,

any recording or photograph; or

(2)

No person may intentionally manipulate a photograph or recording to create a

realistic but false image or recording that would cause a reasonable person to

mistakenly believe that the image or recording is authentic.

A violation of this section is a Class 2 felony and Tier I offense.

Section 3-7-16. Juvenile Sexting Prohibited. No minor may intentionally create, produce,

distribute, present, transmit, post, exchange, disseminate, or possess, through any computer or

digital media, any photograph or digitized image or any visual depiction of a minor in any

condition of nudity, or involved in any sexual act. A violation of this section is a Class 2

misdemeanor; and it is not tiered for purposes of adding the person to the FSST sex offender

registry.

Section 3-7-17. Defenses to Juvenile Sexting. It is an affirmative defense to the offense of

juvenile sexting that the minor has not solicited the visual depiction, that the minor does not

subsequently distribute, present, transmit, post, print, disseminate, or exchange the visual

depiction, and that the minor deletes or destroys the visual depiction within a reasonable time after

receipt. It is an affirmative defense to the offense of juvenile sexting that the visual depiction is of

Title 3, Criminal Law

17

a single minor, created by that minor, who does not subsequently distribute, present, transmit, post,

print, disseminate, or exchange the visual depiction.

Section 3-7-18. Depiction of Person Charged not a Defense to Juvenile Sexting. It is not a

defense to the offense of juvenile sexting that the visual depiction is of the person charged.

Section 3-7-19. Trafficking of Persons for Sex Acts. Any person who traffics, as defined by

section 3-6-1, another person for any sex act is guilty of a Class 2 felony. If the person who is

trafficked is a minor, it is Class 1 felony. This offense is a Tier II offense. Upon probable cause

that this offense has occurred, the person is subject to a mandatory arrest and 24-hour hold. A

cash bond amount of $1000 or more must be posted before the defendant can be released from jail.

Section 3-7-20. Patrons Engaged In Trafficking of Persons for Sex or Acts of Prostitution.

Whoever, while acting as a patron of sex trafficking or for prostitution, intentionally purchases a

sexual act or hires, offers to hire, or agrees to hire an individual to engage in a sexual act or sexual

contact is guilty of a Class 1 misdemeanor. If the patron engages a minor to perform the sexual

act, the offense is a Class 2 felony. This is a Tier I offense.

Section 3-7-21. Acts of Prostitution. No person may perform sexual acts as services in exchange

for money, benefits, or other compensation. A violation of this section is a Class 1 misdemeanor

and is not tiered for purposes of adding the person to the FSST sex offender registry.

Section 3-7-22. Engaging a Minor to Engage in a Sexual Act. A person who engages a minor

with intent to engage in a sexual act or to arouse the sexual desire of any person, is guilty of a

Class 2 felony. As used in this section, “engages” means solicits, commanding, coercing,

persuading, taking, enticing, falsely imprisoning, entreating, tricking, or attempting to do these

acts. Engaging can be facilitated in person, by telephone, by letter, or by computerized or other

means. This is act is a Class 2 felony and Tier II offense.

Any person who engages a minor between the ages of 16 and 18 to perform non-forcible sexual

acts and that is less than three years older than the minor shall be guilty of a Class 2 misdemeanor

and a Tier I offense.

Section 3-7-23. Housing or Transporting of Minors to Facilitate a Prohibited Sex Offense.

When the temporary or permanent housing or transportation of a minor child is conducted for the

facilitation of commercial or prohibited sexual offenses in this Chapter:

(1)

Any person who provides or arranges housing or a space for a prohibited sexual

offense to occur with a minor, and knows or has reason to know that such provision

will result in a commercial or prohibited sexual offense; or

(2)

Any person who provides or arranges transportation for a prohibited sexual offense

to occur, and knows or has reason to know that his or her participation will result

in a commercial or prohibited sexual offense against a minor;

shall be guilty of a Class 2 felony and a Tier I offense.

Section 3-7-24. Producing, Distributing, or Selling Child Sexual Abuse Materials “CSAM”.

Title 3, Criminal Law

18

Any person who knowingly produces, creates, sells, or distributes any image, whether physical,

electronic or other format, depicting a minor engaging in a sexual act or in the simulation of such

act or whose knowing possession encourages, aids, abets or entices any person to commit a sexual

act against a minor is guilty of a Class 1 felony and Tier II offense.

Section 3-7-25. Possession or Receipt of Child Sexual Abuse Materials “CSAM”. Any person

who knowingly possesses or receives any image, whether physical, electronic or other format,

depicting a minor engaging in a prohibited sexual act or in the simulation of such act or whose

knowing possession encourages, aids, abets or entices any person to commit a prohibited sexual

act is guilty of a Class 1 felony and Tier I offense.

Section 3-7-26. Indecent Exposure. Any person who intentionally and with an immoral purpose

exposes his or her genitalia in any place where there are present other persons to be annoyed or

offended thereby is guilty of a Class 1 misdemeanor, except for that if such exposure is made to

or in the presence of a minor under the age of 16 years it shall be a Class 2 felony. This is a Tier

I offense.

Section 3-7-27. Incest. No person, age sixteen years or older, shall engage in sexual contact with

another person, other than the person’s spouse, if the person is an ancestor or descendant, of the

half as well as the whole blood, whether the relationship is legitimate or illegitimate. The

relationships provided for in this section include such relationships that arise through foster care

and legal adoption.

Any person who commits incest with another person who is a parent/child, sibling, or

grandparent/grandchild, shall be guilty of a Class 2 felony. A violation of this section is not tiered

for purposes of adding the person to the FSST sex offender registry.

Section 3-7-28. Aggravated Incest. Any person who knowingly engages in sexual contact with

a minor and is the minor’s parent, adoptive parent, guardian, sibling, aunt or uncle, grandparent;

spouse or former spouse of these persons, or at the time of the offense, is providing a foster home

to the minor, is guilty of aggravated incest. Aggravated incest is a Class 1 felony and Tier I offense.

Section 3-7-29. Beastiality. No person, for the purpose of any person’s sexual gratification, may:

(1)

Engage in a sexual act with an animal; or

(2)

Coerce any other person to engage in a sexual act with an animal; or

(3)

Use any part of the person’s body or an object to sexually stimulate an animal; or

(4)

Videotape a person engaging in a sexual act with an animal; or

(5)

Kill or physically abuse an animal.

Any person who violates any provision of this section is guilty of the crime of bestiality. Bestiality

is a Class 2 felony and Tier I offense.

Section 3-7-30. Criminal Sexual Predatory Conduct. A person is guilty of criminal sexual

Title 3, Criminal Law

19

predatory conduct if the person commits an act or series of acts that was motivated by the

offender’s sexual impulses or was part of a predatory pattern of behavior that had criminal sexual

conduct as its goal. This is a Class 1 misdemeanor and Tier I offense.

Section 3-7-31. Violation of the Sex Offender Registry Ordinance and Mandatory

Sentencing Provision. Each violation of a provision of Title 24, the Sex Offender Registry

Ordinance, by a sex offender shall be guilty of a Class 2 felony.

A person previously convicted of a sex offense whose current sex offense conviction is punishable

as a Class 1 or Class 2 felony will be moved up a tier in accordance with the Sex Offender Registry

Ordinance, codified at Title 24.

Section 3-7-32. Harboring a Sex Offender. A person is guilty of harboring a sex offender if he

or she:

(1)

Knowingly harbors or knowingly attempts to harbor, or knowingly assists another

person in harboring or attempting to harbor a sex offender who is in violation of

Title 24;

(2)

Knowingly assists a sex offender in eluding a law enforcement agency that is

seeking to find the sex offender to question the sex offender about, or to arrest the

sex offender for, noncompliance with the requirements of Title 24; or

(3)

Provides information to law enforcement agencies regarding a sex offender which

that person knows to be false.

A violation of this section is a Class 2 felony; and it is not tiered for purposes of adding the person

to the FSST sex offender registry.

CHAPTER 8. OTHER OFFENSES AGAINST CHILDREN

Section 3-8-1. Child Neglect. Any person who fails or refuses to provide proper or necessary

subsistence, supervision, education, medical care or any other care necessary for the health, safety,

guidance and wellbeing of a child under that person’s custody, guardianship or control shall be

guilty of child neglect. Child neglect is a Class 1 misdemeanor.

Section 3-8-2. Child Abuse. It shall be either a Class 1 misdemeanor or Class 2 felony offense

to abuse a child, depending on the severity and ongoing nature of the abuse.

Section 3-8-3. Contributing to Dependency or Delinquency of a Child. Any person who, by

an act, causes, encourages or contributes to the abuse, the neglect or the delinquency of a child, or

any person, other than a parent who, by any act, causes a child to become a child in need of

supervision, as such phrases with reference to children are defined in Title 5 of this code, shall be

guilty of a Class 1 misdemeanor.

Section 3-8-4. Actual Abuse, Neglect, or Delinquency Not Required for Conviction. In order

Title 3, Criminal Law

20

to find any person guilty of violating this Chapter, it is not necessary to prove that the child has

actually become abused, neglected or delinquent, provided it appears from the evidence that

through any act of abuse, neglect or omission of duty or by any improper act or conduct on the

part of any such person the abuse, neglect or delinquency of any child may have been caused or

merely encouraged.

Section 3-8-5. Failure to Report Abuse. Any person who has reasonable cause to suspect or

who witnesses abuse or a crime against a child shall report the crime (or suspected crime) to the

Tribal Prosecutor, or in his/her stead, a tribal law enforcement officer or social worker

immediately. Any person who, without good cause, fails to report shall be guilty of a Class 2

misdemeanor.

Section 3-8-6. Taking or Enticing Away Child With Intent to Conceal. Any person who takes

or entices away any child under the age of eighteen years with intent to detain and conceal such

child from any person having the lawful charge of such child, except in the case of an unmarried

minor by a parent thereof, is guilty of a Class 2 felony. It shall be a Class 1 felony to take or entice

away a child with intent to conceal if it is done so for the purpose of committing a crime against

the child.

Section 3-8-7. Selling, Buying, or Trading of Children. It shall be a Class 1 felony offense for

a person to sell, buy, or trade a child.

Section 3-8-8. Criminal Proceedings Under Other Laws Not Prevented. Nothing in this

chapter or Chapter 7 may be construed to be in conflict with or to repeal or prevent proceedings

under any other tribal law which may have otherwise defined any specific act of any person as a

crime of any character, which act might also constitute contributory abuse, contributory neglect or

contributory delinquency, or to prevent or interfere with proceedings under any such law.

CHAPTER 9. PRIVACY VIOLATIONS

Section 3-9-1. Window Peeking. Any person who enters the private property of another and

peeks in the door or window of any inhabited building or structure located thereon, without having

lawful purpose with the owner or occupant thereof, shall be guilty of a Class 2 misdemeanor.

Section 3-9-2. Eavesdropping. Any person who enters the private property of another with the

intent to subject anyone to eavesdropping or other surveillance in a private place, shall be guilty

of a Class 2 misdemeanor.

Section 3-9-3. Installation of Recording Device. Any person who, without the consent of the

person or persons entitled to privacy, intends to install any device for observing, photographing,

recording, amplifying, or broadcasting sounds or events in such place, or uses any such

unauthorized installation to harass, or embarrass and invade the privacy of that other person, under

circumstances in which the other person has a reasonable expectation of privacy, shall be guilty of

a Class 1 misdemeanor.

Section 3-9-4. Stalking. Any person who willfully, maliciously, and repeatedly follows or

Title 3, Criminal Law

21

harasses another person or who makes a credible threat to another person with intent to place that

person in reasonable fear of death or great bodily injury shall be guilty of the crime of stalking.

Stalking is a Class 2 felony.

Section 3-9-5. Subsequent Conviction as a Felony. A second or subsequent conviction of

section 3-9-4 occurring within seven years of a prior conviction under this Chapter against the

same victim shall be a Class 1 felony. Upon probable cause that this offense has occurred, the

person is subject to a mandatory arrest and 24-hour hold. A cash bond amount of $1000 or more

must be posted before the defendant can be released from jail.

Section 3-9-6. “Harasses” Defined. For the purpose of this Chapter, “harasses” means a

knowing and willful course of conduct directed at a specific person which seriously alarms,

annoys, or harasses the person, and which serves no legitimate purpose.

Section 3-9-7. “Course of Conduct” Defined. For the purpose of this Chapter, “course of

conduct” means a pattern of conduct composed of a series of acts over a period of time, however

short, evidencing a continuity of purpose. Constitutionally protected activity is not included within

the meaning of “course of conduct”.

Section 3-9-8. “Credible Threat” Defined. For purposes of this Chapter, “a credible threat”

means a threat made with the intent and the apparent ability to carry out the threat. A credible

threat need not be expressed verbally.

Section 3-9-9. Violation of Order or Injunction a Felony. Any person who violates a

temporary or permanent restraining order, protection order, or an injunction prohibiting violent,

menacing, or other behavior that is harmful to another person, his or her property, family, or pets,

shall be guilty of a Class 2 felony. Upon probable cause that this offense has occurred, the person

is subject to a mandatory arrest and 24-hour hold. A cash bond amount of $1000 or more must be

posted before the defendant can be released from jail.

CHAPTER 10. ROBBERY

Section 3-10-1. Robbery. Robbery is the intentional taking of personal property, regardless of

value, in the possession of another from his person or immediate presence, and against his will,

accomplished by means of force or fear, unless the property is taken pursuant to process or

otherwise pursuant to law. Robbery is a Class 2 felony offense.

Section 3-10-2. Armed Robbery. Committing robbery while in the possession of a dangerous

weapon is a Class 1 felony offense. Upon probable cause that this offense has occurred, the person

is subject to a mandatory arrest and 24-hour hold. A cash bond amount of $1000 or more must be

posted before the defendant can be released from jail.

Section 3-10-3. Requisite Force or Fear Required. To constitute robbery, the force or fear must

be employed either to obtain or retain possession of the property or to prevent or overcome

Title 3, Criminal Law

22

resistance to the taking. If employed merely as a means of escape, it does not constitute robbery.

Section 3-10-4. Fear Necessary for Robbery. The fear which constitutes an element of the

offense of robbery may be either:

(1)

The fear of an injury, immediate or future, to the person or property of the person

robbed, or of any relative of his or member of his family; or

(2)

The fear of an immediate injury to the person or property of anyone in the company

of the person robbed at the time of the robbery.

Section 3-10-5. Taking Without Knowledge of Victim Not Robbery. The taking of property

from the person of another or in his immediate presence is not robbery when it clearly appears that

the taking was fully completed without his knowledge.

CHAPTER 11. BURGLARY AND UNLAWFUL OCCUPANCY

Section 3-11-1. Burglary. Any person, who enters an occupied structure with intent to commit

any crime other than shoplifting or retail theft, or remains in an occupied structure after forming

the intent to commit any crime other than shoplifting or retail theft, is guilty of burglary. Burglary

is a Class 2 felony.

Section 3-11-2. Entering or Remaining in Building. Any person who, knowing that he or she

is not privileged to do so, enters or surreptitiously remains in any building or structure, is guilty of

a Class 1 misdemeanor.

Section 3-11-3. Entering or Refusing to Leave Property After Notice. Any person who,

knowing that she or he is not privileged to do so, enters or remains in any place where notice

against trespass is given by:

(1)

Actual communication to the actor;

(2)

Posting in a manner reasonably likely to come to the attention of intruders; or

(3)

Fencing or other enclosures which a reasonable person would recognize as being

designed to exclude intruders;

shall be guilty of a Class II Misdemeanor, but if the person defies an order to leave personally

communicated to him by the owner of the premises or by any other authorized person, he is guilty

of a Class I Misdemeanor.

Section 3-11-4. Affirmative Defenses to Unlawful Occupancy.

defense under sections 3-11-2 and 3-11-3 that:

(1)

It shall be an affirmative

The premises were at the time open to members of the public and the actor complied

with all lawful conditions imposed on access to or remaining on the premises; or

Title 3, Criminal Law

23

(2)

The actor reasonably believed that the owner of the premises, or other person

permitted to license access thereto, would have permitted him to enter or remain.

CHAPTER 12. ARSON AND VANDALISM

Section 3-12-1. Arson. Any person who starts a fire or causes an explosion with the intent to:

(1)

destroy or damage a building or occupied structure of another;

(2)

destroy or damage the personal property of another; or

(3)

destroy a building or occupied structure or personal property, whether his own or

another’s, to collect insurance for such loss;

is guilty of arson. Arson is a Class 2 felony.

Section 3-12-2. Intentional Damage to Public Property. Any person who intentionally injures,

damages, or destroys public property without lawful consent of the Flandreau Santee Sioux Tribe

or the appropriate tribal agency having jurisdiction thereof, shall be guilty of intentional damage

to property in accordance with the schedule set out in Section 3-12-4.

Section 3-12-3. Intentional Damage to Private Property. Any person who intentionally

injures, damages or destroys private property in which other persons have an interest, other than

by arson, without consent of the other person, shall be guilty of intentional damage to property in

accordance with the schedule set out in Section 3-12-4.

Section 3-12-4. Degree of Offense According to Value. The maximum punishment for

intentional damage to property under sections 3-12-2 and 3-12-3 shall be determined by the value

of the property destroyed, in accordance with the following schedule:

(1)

Intentional damage to property in the first degree: If the damage to property is more

than five hundred dollars, the person shall be guilty of a Class 2 felony.

(2)

Intentional damage to property in the second degree: If the damage to property is

five hundred dollars or less but more than one hundred dollars, the person shall be

guilty of a Class 1 misdemeanor.

(3)

Intentional damage to property in the third degree: If the damage to property is one

hundred dollars or less the person shall be guilty of a Class 2 misdemeanor.

Section 3-12-5. Throwing Substance Upon Public Ways or at Vehicles. Any person who, with

intent to cause damage, deposits, throws or propels any substance upon any highway, roadway, or

street, or at any vehicle while such vehicle is in motion or stationary, shall be guilty of a Class 1

misdemeanor.

Section 3-12-6. Littering. Any person who throws, drops, casts, or deposits upon any street,

alley, sidewalk, yard, or premises, public or private, any kind of filth, cans, paper, trash, containers,

Title 3, Criminal Law

24

rubbish, bottles, or any other form of litter or waste shall be guilty of a Class 1 misdemeanor.

CHAPTER 13. THEFT

Section 3-13-1. Theft Defined. Any person who takes, or exercises control over the property of

another with the intent to permanently deprive that individual of such property shall be guilty of

theft.

Section 3-13-2. Theft by Deception. Any person who obtains property of another by deception

is guilty of theft. A person deceives, if with intent to defraud, the person:

(1)

Creates or reinforces a false impression, including false impressions as to law,

value, intention or other state of mind; but deception as to a person’s intention to

perform promise shall not be inferred from the fact alone that the person did not

subsequently perform the promise;

(2)

Prevents another from acquiring information which would affect his judgment of a

transaction;

(3)

Fails to correct a false impression which the deceiver previously created or

reinforced, or which the deceiver knows to be influencing another to whom he

stands in a fiduciary or confidential relationship; or

(4)

Fails to disclose a known lien, adverse claim or other legal impediment to the

enjoyment of property which he transfers or encumbers in consideration of property

he obtains, whether such impediment is or is not valid, or is or is not a matter of

official record.

The term “deceive” does not, however, include falsity as to matter having no pecuniary

significance, or statements unlikely to deceive reasonable persons.

Section 3-13-3. Theft by Threat. A person is guilty of theft if he obtains property of another by

threatening to:

(1)

Inflict bodily injury on anyone or commit any criminal offense;

(2)

Accuse anyone of a criminal offense;

(3)

Expose any secret tending to subject any person to hatred, contempt or ridicule, or

to impair any person’s credit or business repute;

(4)

Take or withhold action as an official, or cause an official to take or withhold action;

(5)

Testify or provide information or withhold testimony or information with respect

to another’s legal claim or defense; or

(6)

Inflict any other harm which would not benefit the person making the threat.

Title 3, Criminal Law

25

Section 3-13-4. Theft of Lost or Mislaid Property. Any person who comes into control of the

property of another that he knows to have been lost, strayed, mislaid, or delivered under a mistake

as to the nature or amount of the property or the identity of the recipient, is guilty of theft if, with

intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to

a person entitled to have it.

Section 3-13-5. Receiving Stolen Property. Any person who receives, retains or disposes of

property of another knowing that it has been stolen, or believing that has probably been stolen,

unless the property is received, retained or disposed of with the intent to restore it to the owner, is

guilty of theft.

Section 3-13-6. Obtaining Property or Services Without Paying.

Any person who

intentionally obtains property or services which he knows is available only for compensation by

threat, deception or other means to avoid payment shall be guilty of theft.

Section 3-13-7. Diverting Services of Another. Any person who, having control over the

disposition of services of others, to which he is not entitled, diverts such services to his own benefit

or to the benefit of another not entitled thereto, shall be guilty of theft.

Section 3-13-8. Embezzlement. Any person who willfully takes or converts to his or her own

use, the money or property of another, of which he or she acquired possession lawfully by reason

of some office or employment or position of trust, is guilty of theft by embezzlement. A distinct

act of taking is not necessary to constitute theft under this section.

Section 3-13-9. Unauthorized Possession or Distribution of US Department of Agriculture

Commodities. Any person who receives, retains, disposes, sells, barters or obtains by fraud any

USDA commodities or the benefits of any other tribal food assistance programs knowing that he

or she is not entitled to do so shall be guilty of theft. Theft under this section is a Class 2

misdemeanor unless the accused shall be accused of a subsequent offense under this section, then

it shall be a Class 1 misdemeanor.

Section 3-13-10. Conversion of Insurance Proceeds. Any person who, with intent to defraud,

converts to personal use the proceeds of an insurance check intended for services provided in the

Tribal Health Clinic shall be guilty of theft. For purposes of this section, the term “converts”

means endorsing and cashing an insurance check and retaining the proceeds thereof for the

personal use of the endorser.

Section 3-13-11. Notice Required Before Prosecution Under Section 3-13-10. The insured

shall provide notice by certified or registered mail, return receipt requested, to the accused before

presenting a violation of section 3-13-10 to the Tribal Prosecutor for prosecution. The notice shall

contain the following information:

(1)

That the individual has wrongfully retained insurance proceeds intended for

services provided in the tribal clinic;

(2)

That such wrongful retention is a violation of tribal law;

Title 3, Criminal Law

26

The full amount must be repaid within ten working days or the matter will be reported to the tribal

prosecutor for prosecution.

Section 3-13-12. Classifications of Theft. Under this Chapter, theft shall be classified and

punished as follows:

(1)

Grand Theft: Theft is grand theft if the value of the property stolen exceeds five

hundred dollars or if property of any value stolen is taken from the person of

another. Grand theft is a Class 2 felony.

(2)

Petty Theft: Any theft that is not grand theft is petty theft. Petty theft of less than

one hundred dollars is petty theft in the second degree and is a Class 2

misdemeanor. Petty theft of one hundred dollars or more is petty theft in the first

degree and is a Class 1 misdemeanor.

Section 3-13-13. Poaching. It shall be a class 1 misdemeanor to hunt, fish, or trap on the

Flandreau Santee Sioux Tribe reservation without a license issued pursuant to Title 12, Fish and

Game Laws.

Section 3-13-14. Return of Property Considered in Mitigation of Punishment but Not a

Defense. Return of appropriated property by the alleged wrongdoer before indictment or

information is laid before the court may be considered in mitigation of punishment but may not be

considered a defense to the charge.

Section 3-13-15. Disqualification From Tribal Office for Conversion of Public Property.

Any person, otherwise eligible to run for tribal office, who has been convicted for unlawfully

obtaining property of the Tribe or any of its subdivisions shall, in addition to the punishment

prescribed by this Chapter, be disqualified from holding any tribal office.

CHAPTER 14. FRAUD AND MISREPRESENTATION

Section 3-14-1. Passing Checks Against Insufficient Funds - Degrees According to Amount.

Any person who, for himself or as an agent or representative of another, for a present consideration

with intent to defraud, passes a check or other instrument drawn on a financial institution knowing

at the time of such passing that there are not sufficient funds in the account on which the check

was drawn in the financial institution for the payment of such check and all other checks upon

such funds then outstanding, in full upon its presentation, although no express representation is

made with reference thereto, shall be guilty of passing a check against insufficient funds.

Punishment for violation of this section shall be in accordance with the following classifications:

Passing check against insufficient funds in the first degree is a Class 1 misdemeanor when a check

or a series of checks is passed within a thirty-day period in the amount of one hundred dollars or

more.

Passing check against insufficient funds in the second degree is a Class 2 misdemeanor when a

check or a series of checks is less than one hundred dollars.

Title 3, Criminal Law

27

Section 3-14-2. Passing Check Against Nonexistent Account. Any person who, for himself or

as an agent or representative of another for present consideration with intent to defraud, passes a

check or other instrument drawn on a financial institution knowing at the time of such passing that

he or his principal does not have an account with such financial institution, shall be guilty of a

Class 1 misdemeanor.

It shall be a defense to this section that the actor’s or his principal’s account was closed

without the actor’s knowledge. Evidence that the financial institution mailed a notice by certified

or registered mail to the person in whose name the account was listed at the last known address

contained in the financial institution’s records shall be prima facie proof that the actor had

knowledge that the account had been closed.

Section 3-14-3. Return of Property or Payment of Check Not a Defense. If a person, who has

been accused of a violation of section 3-14-1 or section 3-14-2, restores or returns the property

allegedly obtained as consideration or makes payment of the check or other instrument before he

is charged with an offense, such fact may be considered in mitigation of punishment but shall not

be a defense to a violation of either section.

Section 3-14-4. Goods, Services, and Other Obligations as Present Consideration. Present

consideration includes goods which are delivered or constructively delivered, and services which

are completed. In addition, payment of any obligation due to the Tribe or any of its subdivisions

thereof and payment of child support is present consideration for the purposes of this Chapter.

Section 3-14-5. Notice of Dishonor Required Before Prosecution for Check Against

Insufficient Funds. The holder of an insufficient funds check shall, before presenting it to the

tribal prosecutor for prosecution, serve a notice of dishonor upon the writer of the check, by

registered or certified mail, return receipt requested. The holder of the dishonored check shall

upon return of the receipt hold it for a period of at least five days and upon the expiration of that

period shall present the check with the attached bank return, return receipt and copy of the dishonor

notice to the tribal prosecutor for prosecution.

Section 3-14-6. Contents of Notice of Dishonor. The notice of dishonor required by section 314-5 shall be in substantially the following form:

Date:

Name of issuer:

Bank on which drawn:

Date of Check:

Amount of Check:

Merchant holding the check:

You are hereby notified that your check described above has been dishonored and is now

being held by the above merchant for a period of five days from the above date.

Title 3, Criminal Law

28

Section 3-14-7. Proof of Notice Not Required. The service of notice of dishonor in accordance

with sections 3-14-5 and 3-14-6 is not an element of the crime of passing a check against

insufficient funds, nor is it an element of the proof thereof or defense to any prosecution thereof.

If the notice is returned undelivered, or if it appears to the tribal prosecutor that there is

reasonable cause to believe that the writer of the check intends to remove himself from the

jurisdiction of the court, the tribal prosecutor shall not require such notice.

Section 3-14-8. Limitation of Bad Checks Prosecution. A criminal prosecution for violation of

Section 3-14-1 or 3-14-2 shall be commenced within six months after the holder of a check receives

notice of its dishonor. Failure to prosecute a complaint within six months shall be a bar to any

criminal action under those sections. This statute shall be tolled if the accused leaves the

jurisdiction of the Tribe, and shall continue to be tolled until such time as the accused returns to

the jurisdiction of the Tribe.

Section 3-14-9. Obtaining Money, Property or Other Assistance From The Tribe By Fraud.

It shall be unlawful for any person to obtain money, property or other assistance from the Tribe or

any of its subdivisions, by knowingly making or executing a false statement, instrument,

document, or representation. A violation of this section shall be classified and punished in the

same manner as the classifications of theft in section 3-13-12.

Section 3-14-10. Failure to Report Changed Circumstances Affecting Eligibility for

Assistance. It shall be unlawful for any person to knowingly fail to report any change in

circumstances which would affect his eligibility for money, property, or other assistance, and

thereby obtain money, property, or other assistance to which he or she is not entitled from the

Tribe or any of its subdivisions thereof. Violation of this Section is a Class 2 misdemeanor.

Section 3-14-11. Forgery. Any person, who, with intent to defraud, falsely makes, completes or

alters a written instrument of any kind, or passes such an instrument shall be guilty of forgery.

Forgery is a Class 2 felony.

Section 3-14-12. Possession of Known Forged Instrument With Intent to Defraud. Any

person who possesses a forged instrument with knowledge that it is forged and with intent to

defraud shall be guilty of a Class 1 misdemeanor.

Section 3-14-13. Identity Theft. A person who transfers, possesses, or uses an identity that is

not the person’s own, with the intent to commit, aid, or abet any unlawful activity is guilty

of identity theft. This includes the use of a scanning device, reencoder, electronic communication,

advertisement, or any other means, Identity theft is a Class 2 felony.

Section 3-14-14. False Impersonation with Intent to Commit Fraud.

(1)

No person may impersonate any other person, which includes offering a fictitious

name or false date of birth, with intent to deceive.

(2)

No person may issue or misuse an identification card by:

Title 3, Criminal Law

29

(a)

Possessing any cancelled, fictitious, fraudulently altered, or fraudulently obtained

tribal identification card;

(b)

Lending the person’s tribal identification card to any other person or knowingly

permit its use by another;

(c)

Displaying or represent an identification card not issued to the person as being the

person’s card;

(d)

Photographing, duplicating, or in any way reproducing an identification card or

facsimile thereof in such a manner that it could be mistaken for a valid identification

card;

(e)

Using an identification card that was obtained by false swearing, fraud, or false

statement of any kind or in any form.

(3)

Engaging in a deceptive activity, commonly known as “catfishing” in which a

person creates a fictional persona or fake identity on a digital service which results

in the harm or humiliation of another.

(4)

Use misleading words, digital images, domain names, or other deceptive activity

on the internet with the intent to harm or humiliate another.

Any person who violates the provisions of subsections (1) through (2) is guilty of a Class 1

misdemeanor. Any person who violates the provisions of subsections (3) through (4) guilty of a

Class 2 misdemeanor.

Section 3-14-15. Defamation. It shall be a class 2 felony to communicate to a third party false

statements about a person, place or thing that results in damage to its reputation. It can be spoken,

slander; or written, libel. Prosecution of defamation under this section does not bar the victim

from seeking civil relief.

CHAPTER 15. PERJURY

Section 3-15-1. Perjury. Any person who, having taken an oath that he will testify, declare,

depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in

which such an oath may by law be administered, intentionally and contrary to such oath, states any

material matter which he knows to be false, shall be guilty of perjury. Perjury is a Class 1

misdemeanor.

Section 3-15-2. Statement Not Known to be True. An unqualified statement of that which one

does not know or reasonably believe to be true is equivalent to a statement of that which one knows

to be false.

Section 3-15-3. Lack of Knowledge of Materiality of Statement No Defense. It is no defense

to a prosecution for perjury that the accused did not know the materiality of the false statement

Title 3, Criminal Law

30

made by him, or that it did not in fact affect the proceeding in or for which it was made. It is

sufficient that it was material and might have been used to affect such proceeding.

Section 3-15-4. Subornation of Perjury. Any person who intentionally procures another person

to commit any perjury is guilty of subornation of perjury which is a Class 1 misdemeanor.

Section 3-15-5. “Oath” Defined. The term “oath” as used in this Chapter includes an

affirmation, and every mode of attesting oath was administered or taken in an irregular manner.

The term “oath” for purposes of this Chapter does not include an oath of office as relates to future

performance of official duty.

CHAPTER 16. IMPROPRIETIES AND BRIBERY IN PUBLIC OFFICE

Section 3-16-1. Unlawful Assumption of Public Office. Any person who gives, or agrees to

give, any gratuity or reward in consideration that he or another person be appointed to any tribal

office or employment, shall be guilty of a Class 1 misdemeanor.

Section 3-16-2. Receiving Consideration for Allowing Unlawful Assumption. Any person

who, directly or indirectly, asks or receives any consideration for appointing another person or

procuring the employment of another person in any tribal office or employment, or for permitting

or agreeing to permit any other person to exercise any of the prerogatives or duties of a public

office which the actor holds, shall be guilty of a Class 1 misdemeanor.

Section 3-16-3. Unlawful Appointments or Employments Void. Any appointment or

employment made in violation of section 3-16-1 or 3-16-2 shall be void, but official acts performed

prior to conviction of any offense prohibited by such sections are not invalid.

Section 3-16-4. Bribery of Tribal Officials and Tribal Employees. Any person who gives or

offers a bribe to a tribal official or a tribal employee with intent to influence the officer or employee

in respect to any act, decision, vote, opinion or other proceeding which the officer or employee is

responsible shall be guilty of a Class 2 felony.

Section 3-16-5. Solicitation of Bribes by Tribal Officials and Tribal Employees. Any tribal

official or employee, who asks, receives or agrees to receive a bribe upon agreement or

understanding that his vote, opinion, or action upon any matter then pending, or which may by law

be brought before him in his official capacity, may be influenced thereby, shall be guilty of a Class

2 felony.

Section 3-16-6. “Tribal Official” Defined. For purposes of this Chapter the term “tribal official”

includes but is not limited, to any member of the Executive Committee of the Tribe, any member

of a tribal board, or any other individual with the power and capacity to hear and determine a

controversy on behalf of the Tribe; and any candidate or applicant for these positions.

Section 3-16-7. Solicitation for Unauthorized Fee for Doing Official Act. Any tribal official

or employee who asks or receives any fee or consideration for any official service which has not

been rendered or who asks or receives any emolument, gratuity, reward or other consideration

Title 3, Criminal Law

31

except as authorized by law, for doing any official act shall be guilty of a Class 1 misdemeanor.

Section 3-16-8. Solicitation of Compensation for Omission of Official Duty. Any public

officer or employee who asks or receives any emolument, gratuity, reward or other consideration

for omitting or deferring the performance of any official duty shall be guilty of a Class 1

misdemeanor.

Section 3-16-9. Bribery of Judicial Officer or Juror. Any person who:

(1)

Gives or offers to give a bribe to any judicial officer or juror or to any person who

may be authorized by law to hear or determine any question or controversy, with

intent to influence his vote, opinion or decision upon any matter or question which

is or may be brought before him for decision; or

(2)

While acting as a judicial officer or juror asks, receives or agrees to receive a bribe

upon any agreement or understanding that his vote, opinion or decision upon any

matter or question which is or may be brought before him for decision shall be

influenced thereby,

shall be guilty of a Class 2 felony.

CHAPTER 17. OBSTRUCTION OF ADMINISTRATION OF GOVERNMENT

Section 3-17-1. Resisting Execution of Process. Any person who resists the execution or service

of any legal process shall be guilty of a Class 2 misdemeanor.

Section 3-17-2. Obstructing Tribal Officer. Any person who intentionally obstructs or attempts

to obstruct a public officer or employee, not a law enforcement officer, in the performance of any

official duty, or who resists a public officer in performance of his or her duty, is guilty of a Class

2 misdemeanor.

Section 3-17-3. Obstructing Law Enforcement Officer. Except as provided in sections 3-17-4

and 3-17-6, any person who, by threatening to use violence, force or physical interference or

obstacle, intentionally obstructs, impairs or hinders the enforcement of the criminal laws or the

preservation of peace by tribal law enforcement acting under color of official authority, shall be

guilty of obstructing a law enforcement officer which is a Class 1 misdemeanor.

Section 3-17-4. Resisting Arrest. Any person who intentionally prevents or attempts to prevent

a tribal law enforcement officer, acting under color of his authority, from effecting an arrest of the

person or another, by:

(1)

Threatening to use physical force or violence against the tribal law enforcement

officer or any other person; or

(2)

Using any other means which creates a substantial risk of causing physical injury

to the law enforcement officer or any other person;

Title 3, Criminal Law

32

shall be guilty of resisting arrest. Resisting arrest is a Class 1 misdemeanor.

Section 3-17-5. Unlawful Arrest No Defense if Officer Acting Under Color of Official

Authority. It is no defense to a prosecution under Section 3-17-3 that the law enforcement officer

was attempting to make an arrest which in fact was unlawful, if the officer was acting under color

of his official authority and, in attempting to make the arrest he was not resorting to unreasonable

or excess force giving rise to the right of self defense. A law enforcement officer acts “under color

of his official authority” when, in the regular course of assigned duties, he is called upon to make,

and does make, a judgment in good faith based upon surrounding facts and circumstances that an

arrest should be made by him.

Section 3-17-6. False Impersonation of Officer. Any person who intentionally impersonates

any public officer, employee, law enforcement officer, or any person having special authority by

law to perform any act affecting the rights or interests of another, and in such assumed character

does any act where another person is injured or defrauded, is guilty of a Class 2 misdemeanor.

Section 3-17-7. Making Intentionally False or Misleading Statements to Tribal Officials

Prohibited. Any person who intentionally makes any false, fraudulent, or misleading statement

or entry in any written statement to a tribal official acting within the scope of their authority is

guilty of a Class 2 misdemeanor.

Section 3-17-8. False Reporting to First Responders. Any person who:

(1)

Knowingly causes a false fire or other emergency alarm to be transmitted to, or

within, any fire department, ambulance service or other agency which deals with

emergencies on the reservation involving danger to life or property;

(2)

Makes a report or intentionally causes the transmission of a report to law

enforcement authorities of a crime or other incident within their official concern,

when he knows that it did not occur; or

(3)

Makes a report or intentionally causes the transmission of a report to law

enforcement authorities which furnishes information relating to an offense or other

incident within their official concern, when he knows that such information is false:

shall be guilty of false reporting to authorities. False reporting to authorities is a Class 1

misdemeanor.

Section 3-17-9. Misprison of Felony. Any person who, having knowledge, which is not

privileged, of the commission of a felony, conceals the same, or does not immediately disclose

such felony, with the name of the perpetrator thereof, and all facts in relation thereto, to the proper

authorities, shall be guilty of misprison of a felony. Misprison of a felony is a Class 1

misdemeanor. There is no misprison of misdemeanors.

Section 3-17-10. Threatening or Intimidating Officers of the Court. Any person who, directly

or indirectly, utters or addresses any threat or intimidation to any judicial officer, juror, referee,

arbitrator, umpire, or other person authorized by law to hear and determine a controversy;

probation or parole officer, prosecutor, law enforcement officer, or other officer of the court; with

Title 3, Criminal Law

33

intent to induce him either to do any act not authorized by law, or to omit or delay the performance

of any duty imposed upon him by law, or from having performed any duty imposed upon him by

law, shall be guilty of a Class 1 misdemeanor.

Section 3-17-11. Threatening or Intimidating Public Officials. Any person who, directly, or

indirectly, utters or addresses any threat or intimidation to an Executive Committee member,

appointed Board or Commission Member, or public officer or employee; or destroys the property

of said person or their immediate family, shall be guilty of a Class 1 misdemeanor.

Section 3-17-12. Aggravated Threats.

Any person who knowingly and intentionally

communicates a threat to take the life of or to inflict bodily harm upon an officer of the court as

defined in section 3-17-10; or public official as defined in section 3-17-11, or a member of his or

her family, is guilty of a Class 2 felony.

Section 3-17-13. Attempt to Influence a Juror. Any person who attempts to influence a juror,

or any person summoned or drawn as a juror, or chosen an arbitrator or appointed a referee, in

respect to his verdict or decision in any cause or matter pending, or about to be brought before

him:

(1)

By means of any communication, oral or written, had with him, except in the

regular course of proceedings upon trial of the cause;

(2)

By means of any book, paper or instrument exhibited otherwise than in regular

course of proceedings upon trial of the cause; or

(3)

By publishing any statement, argument or observation relating to the cause;

shall be guilty of a Class 1 misdemeanor.

Section 3-17-14. Agreement to Give Particular Verdict. Any juror, or person drawn or

summoned as a juror, or judicial officer, who makes any promise or agreement to give a verdict

for or against any party is guilty of a Class 1 misdemeanor.

Section 3-17-15. Tampering With a Witness. A person who threatens to injure any person or

property, or with intent to influence a witness, offers, confers or agrees to confer any benefit on a

witness or prospective witness in an official proceeding to induce the witness to:

(1)

Testify falsely;

(2)

Withhold any testimony, information, document or thing;

(3)

Elude legal process summoning him to testify or supply evidence; or

(4)

Absent himself from an official proceeding to which he has been legally

summoned,

shall be guilty of tampering with a witness. Tampering with a witness is a Class 1 misdemeanor.

Title 3, Criminal Law

34

Section 3-17-16. Solicitations and Agreements by Witness. A witness or prospective witness

in an official proceeding who knowingly solicits, accepts or agrees to accept any benefit upon the

representation or understanding that he will do any thing specified in section 3-17-14, shall be

guilty of a Class 1 misdemeanor.

Section 3-17-17. Falsification of Evidence. Any person who prepares any false book, paper,

record, instrument in writing or other matter or thing with intent to produce it or allow it to be

produced as genuine in any trial, proceeding, inquiry or investigation authorized by law, shall be

guilty of a Class 1 misdemeanor.

Section 3-17-18. Falsification of Public Record. Any person who knowingly makes a false

entry in, or falsely alters any public record is guilty of a Class II Misdemeanor, except that when

done by a Tribal Officer or employee having custody of the record it shall be a Class 1

misdemeanor.

Section 3-17-19. Filing False Instrument for Recording. Any person who knowingly offers a

false or forged instrument for filing, registering or recording in a public office, which instrument,

if genuine, could be filed, registered or recorded under any tribal law or law of the United States,

shall be guilty of a Class 1 misdemeanor.

Section 3-17-20. Destruction of Tribal Public Records. Any person who, knowing he or she

lacks the authority to do so, intentionally destroys, mutilates, conceals, removes or impairs the

availability of any tribal public record shall be guilty of a Class 1 misdemeanor.

Section 3-17-21. Insurrection. Whoever incites, assists, or engages in any rebellion or

insurrection against the authority of the Flandreau Santee Sioux Tribe, its officials, or the laws

thereof, or gives aid or comfort thereto, shall be guilty of a Class 2 felony; and shall be incapable

of holding any office under the Flandreau Santee Sioux Tribe. For purposes of this section,

insurrection means an organized attempt by a group of people to defeat the government and take

control of it, using violence or threats of violence.

CHAPTER 18. BREACH OF PEACE

Section 3-18-1. Rioting. Any use of force or violence or any threat to use force or violence if

accompanied by immediate power of execution, by three or more persons acting together and

without authority of law is a riot. Rioting is a Class I Misdemeanor, unless the riot results in injury

to person or damage to property, then it shall be a Class 2 felony.

Section 3-18-2. Encouraging or Soliciting Violence in Riot. Any person who participated in

any riot, and who directed, advised, encouraged or solicited other persons who participated in the

riots by acts of force or violence shall be guilty of a Class 1 misdemeanor.

Section 3-18-3. Unlawful Assembly. Any person who assembles with two or more persons for

the purpose of engaging in conduct constituting riot or who, if being present at an assembly that

either has or develops such a purpose, remains there with intent to advance that purpose shall be

Title 3, Criminal Law

35

guilty of unlawful assembly. Unlawful assembly is a Class 1 misdemeanor.

Section 3-18-4. Disorderly Conduct. Any person who intentionally causes serious public

inconvenience, annoyance, or alarm to any other person, or creates risk thereof by:

(1)

Engaging in fighting or in violent or threatening behavior;

(2)

Making unreasonable noise;

(3)

Disturbing any lawful assembly or meeting of persons without lawful authority;

(4)

Obstructing vehicular or pedestrian traffic;

shall be guilty of disorderly conduct. Disorderly conduct is a Class 2 misdemeanor.

Section 3-18-5. Disorderly Conduct on Tribal Premises or During Official Tribal

Proceedings. It shall be unlawful for any person to engage in any of the following conduct on

tribal premises or at any official tribal meeting or proceeding:

(1)

Threaten or harass tribal employees while on duty;

(2)

Loiter or cause a disturbance at tribal offices or businesses during working hours;

(3)

Disrupt any official proceeding by repeatedly vocalizing opinions or discussing

topics that are not at issue;

(4)

To cause disturbance by using threatening or violent behavior during official tribal

proceedings.

Violation of this Section is a Class 2 misdemeanor.

Section 3-18-6. Keeping a Place for Criminal Activity. Any person who keeps or maintains a

place which is resorted to by him or herself or other persons for the purposes of committing

repeated or ongoing felonious activity, is a class 1 misdemeanor offense.

CHAPTER 19. TRAFFIC OFFENSES

Section 3-19-1. Driving or Control of Vehicle Prohibited With Alcohol in Blood or While Under

Influence of Alcohol or Drug. A person may not drive or be in actual physical control of any

vehicle while:

(1)

There is 0.08 percent or more by weight of alcohol in his blood as shown by

chemical analysis of his breath, blood, or other bodily substance;

(2)

Under the influence of an alcoholic beverage;

Title 3, Criminal Law

36

(3)

Under the influence of marijuana or any controlled drug or substance to a degree

which renders him incapable of safely driving; or

(4)

Under the combined influence of an alcoholic beverage and marijuana or any

controlled drug or substance to a degree which renders him incapable of safely

driving.

Section 3-19-2. Punishment for Violation. If conviction for a violation of 3-19-1 is for a first

offense or a second offense on the reservation within a 5-year period the violation is a Class 1

misdemeanor. If conviction for a violation of 3-19-1 is for a number higher than a second offense

on the reservation within a 5-year period, the violation is a Class 2 felony.

Section 3-19-3. Submission to Breath Test Required By Officer - Chemical Test After

Positive Breath Test. Every person operating a motor vehicle which has been involved in an

accident or which is operated in violation of any of the provisions of this Chapter shall, at the

request of a law enforcement officer, submit to a breath test to be administered by such officer. If

such test indicates that such operator has consumed alcohol, the law enforcement officer may

require such operator to submit to a chemical test in the manner set forth in this Chapter.

Section 3-19-4. Presumptions Arising From Chemical Analysis of Body Fluids. In any

criminal prosecution for a violation of 3-19-1 relating to driving a vehicle while under the influence

of intoxicating liquor, the amount of alcohol in the defendant’s blood at the time alleged as shown

by chemical analysis of the defendant’s blood, breath, or other bodily substance shall give rise to

the following presumptions:

(1)

If there was at the time five hundredths percent or less by weight of alcohol in the

defendant’s blood, it shall be presumed that the defendant was not under the

influence of intoxicating liquor;

(2)

If there was at that time in excess of five hundredths percent but less than ten

hundredths percent by weight of alcohol in the defendant’s blood, such fact shall

not give rise to any presumption that the defendant was or was not under the

influence of intoxicating liquor, but such fact may be considered with other

competent evidence in determining the guilt or innocence of the defendant;

(3)

If there was at that time ten hundredths percent or more by weight of alcohol in the

defendant’s blood, it shall be presumed that the defendant was under the influence

of intoxicating liquor.

(4)

Percent by weight of alcohol in the blood shall be based upon milligrams of alcohol

per 1.0 cubic centimeters of whole blood or 2100 cubic centimeters of deep lung

breath.

Section 3-19-5. Operation of Vehicle as Consent to Withdrawal of Bodily Substances and

Chemical Test—Advice as to Right to Refuse Test. Any person who operates any vehicle on

the reservation is considered to have given his consent to the withdrawal of blood or other bodily

substance and chemical analysis of his blood, breath or other bodily substance to determine the

amount of alcohol in his blood, and to determine the presence of marijuana or any controlled drug

Title 3, Criminal Law

37

or substance. If any person refuses to submit to withdrawal of blood as required by this Chapter

his or her privilege to operate a motor vehicle on the reservation shall be revoked for a period of

one year.

The person shall be requested by the officer to submit to the withdrawal of blood or other

bodily substance for chemical analysis or chemical analysis of his breath and shall be advised by

the officer that:

(1)

If he refuses to submit to the withdrawal or chemical analysis, no withdrawal or

chemical analysis may be required, unless he has been arrested for a third violation

of 3-18-1, constituting a felony offense;

(2)

He has the right to have a chemical analysis performed by a technician of his own

choosing at his own expense, in addition to the test requested by the officer.

(3)

If he refuses to submit to chemical analysis as requested by the arresting officer his

privilege to operate a motor vehicle on the reservation shall be revoked for a period

of one year.

Section 3-19-6. Refusal to Submit to Chemical Test or Allow Withdrawal of Bodily

Substance Admissible into Evidence. If a person refuses to submit to chemical analysis of his

blood, urine, breath or other bodily substance, or allow the withdrawal of blood or other bodily

substance for chemical analysis as provided in 3-19-5, and that person subsequently stands trial

for violation of 3-19-1, such refusal may be admissible into evidence at the trial.

Section 3-19-7. Right to Have Technician of Own Choosing Make Separate Test. The person

tested pursuant to 3-19-5 shall be permitted to have a physician, laboratory technician, registered

nurse, physician’s assistant or medical technologist of his own choosing administer the chemical

analysis in addition to the one administered at the direction of the law enforcement officer.

Section 3-19-8. Results of Analysis Available to Accused or Attorney. Upon the request of the

person who was tested pursuant to 3-19-5, or upon the request of his attorney, the results of such

analysis shall be made available to him or his attorney.

Section 3-19-9. Withdrawal, Chemical Test and Witness Fees and Expenses. In the case of a

conviction under the Chapter the costs accrued for the withdrawal and chemical analysis of blood

or other bodily substance, and witness fees and expenses in connection therewith, shall be taxed

by the court as costs in the action.

Section 3-19-10. Reckless Driving. Any person who drives any vehicle upon the reservation

carelessly and needlessly in disregard of the rights or safety of others, or without due caution and

circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person

or property, is guilty of reckless driving. Reckless driving is a Class 1 misdemeanor.

Section 3-19-11. Careless Driving. Any persons who drives any vehicle upon the reservation

carelessly and without due caution, at a speed or in a manner so as to endanger any person or

property, not amounting to reckless driving as defined in 3-19-10 is guilty of careless driving.

Title 3, Criminal Law

38

Careless driving is a Class 2 misdemeanor.

Section 3-19-12. Mandatory Sentencing When Traffic Offenses are Committed While Under

the Influence of Alcohol or Controlled Substances. Any person who has been adjudicated guilty

of a traffic offense, and who had alcohol or controlled substances in his or her body at the time the

offense was committed, must obtain a treatment needs assessment and follow any

recommendations from it.

CHAPTER 20. CONTROLLED SUBSTANCES

Section 3-20-1. Definitions of Terms. Terms used in this Chapter, unless the context plainly

requires otherwise, mean:

(1)

“Controlled drug or substance” a drug or substance, or an immediate precursor of

a drug or substance, except for marijuana, that is defined as a controlled drug or

substance by federal or state law;

(2)

“Deliver” or “delivery” the actual or constructive transfer of a controlled drug,

substance or marijuana whether or not there exists an agency relationship.

(3)

“Distribute” to deliver a controlled drug, substance or marijuana.

(4)

“Manufacture” the production, preparation, propagation, compounding, or

processing of a controlled drug or substance, either directly or indirectly by

extraction from substances of natural origin, or independently by means of

chemical synthesis or by a combination of extraction and chemical synthesis. A

manufacturer includes any person who packages, repackages, or labels any

container of any controlled drug or substance, except practitioner who dispense or

compound prescription orders for delivery to the ultimate user.

(5)

“Marijuana” all parts of any plant of the genus cannabis. “Marijuana” includes a

product that contains marijuana or an extract thereof and is intended for use or

consumption other than by inhalation, including but not limited to foodstuffs,

extracts, oils, tinctures and other similar products.

(6)

“Practitioner” a doctor of medicine, osteopathy, podiatry, dentistry, optometry or

veterinary medicine licensed to practice his profession, or pharmacists licensed to

practice their profession and physicians certified to practice their profession.

Section 3-20-2. Manufacturing and Distribution of Controlled Substances Prohibited. No

person may manufacture, distribute, dispense, possess with intent to manufacture, distribute or

dispense a controlled substance as defined by section 3-20-1(1). Upon probable cause that this

offense has occurred, the person is subject to a mandatory arrest and 24-hour hold. A cash bond

amount of $1000 or more must be posted before the defendant can be released from jail. A

violation of this section is a Class 1 felony and is subject to mandatory sentencing. Every

sentencing order issued for a violation of this section shall confine the convicted person for at least

Title 3, Criminal Law

39

180 days. These days must be actually served and cannot be suspended or run concurrently with

a treatment program.

A practitioner while acting in the course of his professional practice shall be exempt from this

provision. Any distribution of a controlled substance under this section to a minor shall result in

a mandatory jail sentence of not less than 90 days.

Section 3-20-3. Unauthorized Possession of a Controlled Substance. No person may

knowingly possess a controlled drug or substance unless such drug or substance was obtained

directly or pursuant to valid prescription or order from a practitioner, while acting in the course of

his professional practice. A violation of this section is a Class 2 felony.

Section 3-20-4. Possession of Marijuana by Persons Aged 21 and Older. No person may

knowingly possess more than one ounce of marijuana unless that person is licensed to do so in

accordance with the Marijuana Ordinance, codified in the Flandreau Santee Sioux Tribal Law and

Order Code. It is a Class I misdemeanor to possess more than one ounce of marijuana otherwise.

Section 3-20-5. Possession of Marijuana by Persons Under the Age of 21. No person under

the age of twenty-one years may knowingly purchase, possess, or ingest any amount of marijuana.

No person shall sell, give, or otherwise provide marijuana to a person under the age of twenty-one.

A violation of this section shall be a Class 1 misdemeanor offense.

Section 3-20-6. There shall be a valid affirmative defense to the offenses listed in sections 3-204 and 3-20-5, above, if the marijuana was obtained pursuant to a prescription or medical

recommendation issued by a licensed medical provider and filled in accordance with the applicable

laws, rules, and regulations of the jurisdiction for which it was obtained.

Section 3-20-7. Distribution of Marijuana. No person may distribute marijuana without a

Marijuana Employee License. Without a license, the distribution of one ounce or less of marijuana

is a Class 1 misdemeanor and the distribution of more than one ounce of marijuana is a felony.

The distribution of any amount of marijuana to a minor is a Class 2 felony.

Section 3-20-8. Any person who knowingly obtains possession of a controlled substance by

misrepresentation, forgery, fraud, deception or subterfuge is guilty of a Class 1 misdemeanor.

Section 3-20-9. Unauthorized Ingestion of Controlled Drug or Substance. No person may

knowingly ingest a controlled drug or substance or have a controlled drug or substance in an altered

state in the body unless the substance was obtained directly or pursuant to a valid prescription or

order from a practitioner, while acting in the course of the practitioner’s professional practice or

except as otherwise authorized by law. A violation of this section is a Class 2 felony.

Section 3-20-10. Ingesting Substance, Except Alcoholic Beverages, for the Purpose of Being

Intoxicated. Any person who intentionally ingests, inhales, or otherwise takes into the body any

substance, except alcoholic beverages, for purposes of becoming intoxicated, unless such

substance is prescribed by a practitioner of the medical arts lawfully practicing within the scope

Title 3, Criminal Law

40

of the practitioner’s practice, is guilty of a Class 1 misdemeanor.

CHAPTER 21. DRUG PARAPHERNALIA

Section 3-21-1. Use or Possession of Drug Paraphernalia as Misdemeanor. It is unlawful for

any person, knowing the drug related nature of the object, to use or to possess with intent to use,

drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert,

produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale

or otherwise introduce into the human body any controlled substance in violation of this Chapter.

Any person who violates any provision of this Section is guilty of a Class 2 misdemeanor.

Section 3-21-2. “Drug Paraphernalia” Defined. The term “drug paraphernalia” means any

equipment, products and materials of any kind which are primarily used, intended for use or

designed for use by the person in possession of them, in planting, propagating, cultivating,

growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing,

testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting,

inhaling or otherwise introducing into the human body any controlled substance in violation of the

provisions of this Chapter. It includes, but is not limited to:

(1)

Kits used, intended for use or designed for use in planting, propagating, cultivating,

growing or harvesting of any species of plant which is a controlled substance or

from which a controlled substance can be derived;

(2)

Kits used, intended for use or designed for use in manufacturing, compounding,

converting, producing, processing, or preparing controlled substances;

(3)

Isomerization devices used, intended for use or designed for use in increasing the

potency of any species of plant which is a controlled substance;

(4)

Scales and balances used, intended for use or designed for use in weighing or

measuring controlled substances;

(5)

Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite,

dextrose and lactose, used, intended for use or designed for use in cutting controlled

substances;

(6)

Capsules, balloons, envelopes and other containers used, intended for use or

designed for use in packaging small quantities of controlled substances;

(7)

Containers and other objects used, intended for use or designed for use in storing

or concealing controlled substances;

(8)

Hypodermic syringes, needles and other objects used, or designed for use in

injecting controlled substances into the human body; and

Title 3, Criminal Law

41

(9)

Objects used, intended for use or designed for use in ingesting, inhaling or

otherwise introducing cocaine, hashish or hashish oil into the human body, such as:

(a)

Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with

or without screens, permanent screens, hashish heads or punctured

metal bowls;

(b)

Water pipes;

(c)

Carburetion tubes and devices;

(d)

Smoking and carburetion masks;

(e)

Roach clips: meaning objects used to hold burning material that has

become too small or too short to be held in the hand;

(f)

Miniature cocaine spoons and cocaine vials;

(g)

Chamber pipes;

(h)

Carburetor pipes;

(i)

Electric pipes;

(j)

Air-driven pipes;

(k)

Chillums;

(l)

Bongs; and

(m)

Ice pipes and chillers.

Section 3-21-3. Factors Considered in Determining Whether an Object is Drug

Paraphernalia. In determining whether an object is drug paraphernalia as defined in 3-21-2, the

court or other authority shall consider, in addition to all other logically relevant factors, the

following:

(1)

Statements by an owner or by anyone in control of the object concerning its use;

(2)

The proximity of the object, in time and space, to a direct violation of this article;

(3)

The proximity of the object to controlled substances;

(4)

The existence of any residue of controlled substances on the object;

(5)

Direct or circumstantial evidence of the intent of an owner, or of anyone in control

of the object, to deliver it to any person whom he knows, or should reasonably

know, intends to use the object to facilitate a violation of this article;

Title 3, Criminal Law

42

(6)

Instructions, oral or written, provided with the object concerning its use;

(7)

Descriptive materials accompanying the object which explain or depict is use;

(8)

National and local advertising concerning its use;

(9)

The manner in which the object is displayed for sale;

(10)

Whether the owner, or anyone in control of the object, is a legitimate supplier of

like or related items to the community;

(11)

Direct or circumstantial evidence of the ratio of sales of the object to the total sales

of the business enterprise;

(12)

The existence and scope of legitimate uses for the object in the community; and

(13)

Expert testimony concerning its use.

CHAPTER 22. WEAPONS

Section 3-22-1. Possession of a Firearm While Court Order in Place. It shall be unlawful for

any person to have a firearm in his possession while there is a court order in place which prohibits

the individual from possessing a firearm. Court orders include, but are not limited to, protection

orders, restraining orders, and orders related to mental health. Violation of this section is a Class

1 misdemeanor.

Section 3-22-2. Possession of a Firearm While Domestic Protection Order or Restraining

Order in Place. It shall be unlawful for any person to have a firearm in his possession while there

is a protection order or restraining order in place which prohibits the individual from possessing a

firearm. Violation of this section is a Class 1 misdemeanor.

Section 3-22-3. Possession of Firearm While Also in Possession of Controlled Substances.

Any person who has in his or her possession a loaded firearm while in possession of an illicit

controlled substance shall be guilty of a Class 1 misdemeanor.

Section 3-22-4. Possession of Firearm by Convicted Felon. Any person who has been

convicted in a court of competent jurisdiction of a felony crime of violence, who has in his

possession or under his control, a firearm, shall be guilty of a Class 1 misdemeanor.

Section 3-22-5. Possession of Firearm While Under the Influence. Any person who has in his

or her possession a loaded firearm while under the influence of alcohol, drug, or other controlled

substance shall be guilty of a Class 1 misdemeanor.

Section 3-22-6. Reckless Discharge of Firearm or Shooting of Bow and Arrow. Any person

who recklessly discharges a firearm or who recklessly shoots a bow and arrow shall be guilty of a

Title 3, Criminal Law

43

Class 1 misdemeanor.

Section 3-22-7. Discharge of a Firearm at an Occupied Structure or Motor Vehicle. Any

person who willfully, knowingly and illegally discharges a firearm at an occupied structure,

structure capable of being occupied, or an occupied motor vehicle, or motor vehicle capable of

being occupied shall be guilty of a Class 2 felony.

Section 3-22-8. Discharge of a Firearm From a Moving Vehicle. Any person who willfully,

knowingly and illegally discharges a firearm from a moving motor vehicle shall be guilty of a

Class 1 misdemeanor.

Section 3-22-9. Trip Devices. Any person who sets a device designed to activate a weapon upon

being trapped or approached, and leaves it unmarked or unattended by a competent person shall

be guilty of a Class 1 misdemeanor.

CHAPTER 23. NICOTINE AND ALCOHOL

Section 3-23-1. Furnishing Nicotine to a Person Under the Age of 21 Years. It shall be a Class

1 misdemeanor for any person to furnish any nicotine products including tobacco, cigarettes, ecigarettes, or cigars, to a person under the age of twenty-one.

Section 3-23-2. Furnishing Alcohol to a Person Under the Age of 21 Years. It shall be a Class

1 misdemeanor to sell or give for use as a beverage any alcohol beverage to any person under the

age of twenty-one years unless it is done in the immediate presence of a parent or guardian or

spouse over twenty-one years of age.

Section 3-23-3. Purchase, Possession or Consumption by Persons Under Age Prohibited. No

person under the age of twenty-one years may purchase, possess, ingest or consume alcohol or

nicotine except when it is done in the immediate presence of a parent, guardian or spouse over the

age of twenty-one years or when consumed in a religious ceremony and given to said person by

an authorized person. It shall be a Class 2 misdemeanor for any person between the ages of

eighteen and twenty-one years to violate this section. It shall be a Class 1 misdemeanor for any

person under the age of eighteen years to violate this section.

LEGISLATIVE HISTORY

Title 3 of the Flandreau Santee Sioux Tribal Law and Order Code was enacted by the Flandreau

Santee Sioux Executive Committee by Resolution Number 96-54, on September 3rd 1996; and

was approved by the Bureau of Indian Affairs on September 16, 1996. The Executive Committee

subsequently amended Title 3 by Resolution numbers 2011-52, passed on July 12, 2011; 2020-46

passed on March 20, 2020; 2020-24, passed on May 12, 2020; and 2022-19 passed on April 19,

2022. Title 3 was amended again by Resolution Number 2023-01 on February 27, 2023.

Title 3, Criminal Law

44