Section 2-1-1. Purpose. The purpose of this Title is to provide for the just determination (2023)

TITLE 2

CRIMINAL PROCEDURE

CHAPTER 1

GENERAL PROVISIONS

Section 2-1-1. Purpose. The purpose of this Title is to provide for the just determination

of every criminal proceeding. It shall be construed to secure simplicity in procedure,

fairness in administration, and the elimination of unjustifiable expense and delay.

Section 2-1-2. Scope. This Title shall be used in all criminal proceedings and in all

proceedings for violations of tribal ordinances.

Section 2-1-3. Definitions:

(1)

Arrest: Arrest is the taking of a person into custody so that he may be held

to answer criminal charges in tribal court;

(2)

Complaint: A complaint is a written statement, signed under oath, of the

essential facts constituting the offense charged.

(3)

Law Enforcement Officer: A law enforcement officer means only those

individuals authorized by the Tribe to provide law enforcement services on

the reservation.

(4)

Summons: A written order notifying an individual that he has been charged

with an offense and directing the person to appear in court to answer the

charge.

(5)

Warrant: A written order, issued in the name of the Tribe, and signed by a

tribal judge, directed to an authorized law enforcement officer, commanding

the officer to search before the Court.

Section 2-1-4.

Law Enforcement’s Duty to Report Crimes. It shall be the duty of

all tribal law enforcement officers to report the occurrence of all criminal activity within the

Reservation to the Tribe. Such reports shall be in writing and shall be made to the tribal

prosecutor.

CHAPTER 2

COMPLAINT, SUMMONS, WARRANT

Section 2-2-1. Complaint. All criminal proceedings shall be commenced by the filing of

a complaint by the tribal prosecutor. The complaint shall contain the name of the

1

defendant, the offense charged, and the facts which constitute the offense charged. The

complaint shall be signed under oath before a person authorized to administer oaths.

Section 2-2-2. Warrant or Summons. A warrant for arrest shall be issued if it appears

from a complaint, or from an affidavit filed with a complaint, that there is probable cause

to believe that an offense has been committed and that the person named in the complaint

committed it. Upon request of the tribal prosecutor, a summons may be issued in lieu of

a warrant. A warrant shall be issued if a defendant fails to appear in response to a

summons. Probable cause may be based on hearsay evidence.

Section 2-2-3. Contents of a Warrant. Every arrest warrant shall contain the name of

the defendant and date of issuance. The warrant shall be signed by a tribal judge or by

the tribal clerk of courts upon authorization of a tribal judge and command that the

defendant be brought before the Court. The judge who signs the warrant shall endorse

the amount of bail, if any, on the warrant.

Section 2-2-4. Contents of Summons. A summons shall be in the same form as a

warrant except that it shall summon the defendant to appear before the Court at a stated

time and place. The summons shall state that if the defendant fails to appear before the

Court, a warrant for arrest will be issued.

Section 2-2-5. Execution of Warrant and Summons. A warrant or summons shall be

executed by any law enforcement officer authorized by the Tribe to execute the same. A

warrant shall be deemed executed by the arrest of the defendant. A law enforcement

officer authorized to execute a tribal warrant need not have the warrant in his possession

to execute but if he does not have the warrant in his possession he shall inform the

defendant of the offense charged and of the fact that a warrant has been issued. A

summons shall be served upon a defendant at least five days before the day of

appearance fixed therein by delivering a copy of the summons to him personally or by

leaving it at his dwelling place or usual place of abode with some person over the age of

fourteen years then residing therein.

Section 2-2-6. Return of Warrant or Summons to Committing Judge. The law

enforcement officer executing a warrant shall make return thereof to the committing judge

before whom the defendant is brought. Any unexecuted warrant may be brought to the

committing judge and cancelled by him at the request of the tribal prosecutor.

CHAPTER 3

ARREST

Section 2-3-1. Arrest Under Warrant. Any arrest made under tribal warrant shall be

made in accordance with the provisions set out in Chapter 2 of this Title.

2

Section 2-3-2. Arrest Without Warrant. A law enforcement officer, authorized by the

Tribe to make arrests, may, without a warrant, arrest and take a person into custody,

pending release on bond or order of the Court,

(1)

For a tribal offense, other than a petty offense, committed or attempted in

the officer’s presence; or

(2)

Upon probable cause that a felony or Class I Misdemeanor has been

committed and that the person arrested committed it, although not in the

officer’s presence.

Section 2-3-3. Arrest Without Warrant in Domestic Situations. An authorized law

enforcement officer shall arrest and take into custody, pending release on bail, or other

court order, a person without a warrant if the officer has probable cause to believe that:

(1)

An order for protection has been issued by the Court under Title 6A

(Domestic Violence Protection and Prevention Code) or by another court of

competent jurisdiction protecting the victim and the terms of the order

prohibiting acts or threats of abuse or excluding the person from a residence

have been violated; or

(2)

The person within the preceding four hours has assaulted that person’s

spouse, former spouse, or a person with whom the person resides or has

formerly resided and the officer believes:

(a)

An assault has occurred and the arrested person has committed it;

or

(b)

An attempt by physical menace has been made to put another in fear

of imminent serious bodily harm.

Any law enforcement officer who is responding to a domestic abuse call shall arrest any

person who is suspected of committing a crime if the officer has probable cause to believe

that a tribal offense has been committed.

Section 2-3-4. Citizen’s Arrest. Any tribal member or other non-member Indian may

arrest another person:

(1)

For commission of a tribal offense, other than a petty offense, committed or

attempted in his presence; or

(2)

For a felony which in fact has been committed although not in that person’s

presence, if probable cause exists to believe the person arrested committed

it.

3

Section 2-3-5. Manner of Making Arrest. An arrest shall be made by an actual or

attempted restraint of the person arrested or by his submission to the custody of the

person making the arrest. No person authorized to make an arrest by this Chapter shall

subject an arrested person to more physical restraint than is reasonably necessary to

effectuate the arrest. A person authorized to make an arrest by this section may take

from the arrested person all dangerous weapons and evidence in the arrested persons

possession.

A law enforcement officer, authorized to make arrests, may break open an outer

or inner door or window of a dwelling house or other structure for the purpose of making

an arrest if, after giving reasonable notice of his intention, he is refused admittance, and

if:

(1)

The authorized law enforcement officer has obtained a warrant; or

(2)

Exigent circumstances justify a warrantless arrest.

Section 2-3-6. Aid to Law Enforcement Officer. Every person must aid an officer in

the execution of an arrest if the officer requests assistance.

CHAPTER 4

CITATIONS

Section 2-4-1. Citation in Lieu of Detention. Whenever a person is arrested for a

violation of this code, the arresting officer, or any other authorized law enforcement

officer, may service upon the arrested person a citation and notice to appear in court, in

lieu of keeping the person in custody or requiring bail or bond. In determining whether to

issue a citation and notice to appear, the officer may consider the following factors:

(1)

Whether the person has identified himself satisfactorily;

(2)

Whether detention appears reasonably necessary to prevent imminent

bodily harm to himself or to another, injury to property, or breach of peace;

(3)

Whether the person has ties to the Tribe or is a local resident, so as to

provide reasonable assurance of appearance before the Court, or whether

there is substantial likelihood that he will refuse to respond to the citation;

and

(4)

Whether the person has previously failed to appear in response to a citation

issued pursuant to this Section or to other lawful process of the Court.

Section 2-4-2. Citation Contents. A citation under this Section shall include the name

of the person, his or her address, date of birth and sex, the time, place and description of

4

the offense charged, the date of issuance of the citation and the name of the officer giving

the citation. The citation shall also state the time and place at which the person is to

appear in court to hear the charges against him and post bail, which shall not be less than

72 hours after the date of the citation nor more than 15 days after the date of the citation.

The individual cited shall sign and give a written promise to appear as required by the

citation.

Section 2-4-3. Citation; Effect, Procedure. The citation when completed shall serve

as the complaint for purposes of prosecution in court. If the defendant fails to appear, a

tribal judge may issue a warrant for arrest and may order bail.

CHAPTER 5

SEARCH AND SEIZURE

Section 2-5-1. Issuance of a Search Warrant. A search warrant authorized by this

Chapter may be issued by a tribal judge on the request of an authorized law enforcement

officer or the tribal prosecutor. A warrant shall be issued only upon the evidence set forth

in an affidavit or affidavits presented to a tribal judge, which establishes the grounds for

issuing the warrant. A tribal judge shall issue a warrant only upon showing that the

grounds for the application exist or that there is probable cause to believe that they exist.

The finding of probable cause may be based on hearsay evidence in whole or in part.

The warrant shall identify the property to be seized and name or describe the person or

place to be searched. The judge issuing the warrant may require the affiant to appear

personally and may examine the affiant under oath and any witness before a warrant is

issued.

Section 2-5-2. Execution of Warrant. The warrant shall be directed to an authorized

law enforcement officer, commanding the officer to search, within the time specified by

this Chapter, the person or place named for the property specified. The warrant shall be

executed in the daytime, unless the committing judge, by appropriate provision in the

warrant, and for reasonable cause shown, authorizes its execution at night.

Section 2-5-3. Time Limitation on Warrants. A search warrant shall be executed and

returned within ten days of its issuance to the tribal judge who issued it. After expiration

of such time, the warrant, unless time is extended by order of the Court, shall be void.

Section 2-5-4. Property for Which a Warrant May Be Issued. A warrant may be issued

under this Chapter to search for and seize any:

(1)

Property that constitutes evidence of the commission of a tribal criminal

offense;

(2)

Contraband, the fruits of a crime, or things otherwise criminally possessed;

or

5

(3)

Property designed or intended for use in, or which is or has been used as

the means of committing a tribal criminal offense.

Section 2-5-5. Oral Testimony as Basis for Warrant. A search warrant may be issued

upon sworn oral testimony of a person who is not in the physical presence of a committing

tribal judge when circumstances make it reasonable to do so, in the absence of a written

affidavit, if the committing judge is satisfied that probable cause exists for the issuance of

the warrant. The sworn oral testimony may be communicated to the judge by telephone

or other appropriate means and shall be recorded and transcribed. The statement shall

be deemed to be an affidavit for purpose of Section 2-5-1. The grounds for issuance of

a warrant pursuant to this Section shall be the same as are required by Section 2-5-1.

Prior to approval of a warrant issued pursuant to this Section, the committing judge shall

require the law enforcement officer or the tribal prosecutor who is requesting the warrant

to read to him verbatim the contents of the warrant. Upon approval, the judge shall direct

the law enforcement officer or tribal prosecutor who is requesting the warrant to sign the

judge’s name on the warrant. The warrant shall be called a duplicate original warrant and

is a warrant for purposes of this Chapter. In such case the judge shall cause an original

warrant to be made.

Section 2-5-6. Forcible Entry for Purposes of Executing a Warrant. Any law

enforcement officer authorized to execute a warrant may break open any building,

structure, or container or anything therein to execute a warrant if, after giving notice of the

officer’s authority and purposes, he is refused admittance.

Section 2-5-7. No Knock Warrant Authorized. A tribal judge may include in a warrant

a direction that the officer executing the warrant is not required to give notice required by

this Chapter under the following circumstances:

(1)

The judge is satisfied that there is probable cause to believe that if notice

were given prior to its execution:

(a)

The evidence sought in the case may be easily destroyed or

disposed of; or

(b)

That danger to the life of limb of the officer may result.

Under a warrant issued pursuant to this Section, an authorized law enforcement officer

may, without notice of his authority or purpose, enter any structure, portion of a structure

or vehicle, or anything therein, by whatever means, including breaking therein.

Section 2-5-8. Receipt and Copy of Warrant to Person from Whom Property is

Taken and Inventory. An officer authorized to take property under a search warrant

shall give the person from whom the property was taken a copy of the warrant and a

receipt for the property taken. The warrant shall immediately be returned to the judge

6

with an inventory of all property seized pursuant to the warrant. The inventory shall be

taken in the presence of the person who requested the warrant and in the presence of

the person from whose possession or premises the property was taken if they are present,

or in the presence of at least one credible person other than the applicant for the warrant.

Upon request, the person from whom the property was seized or from whose premises

the property was seized shall be given a copy of the inventory.

Section 2-5-9. Unlawful Searches and Seizures. Any search and seizure committed

within the territory of the reservation shall be made in compliance with the terms of this

Chapter. Any search or seizure effectuated that is not in compliance with the terms of

this Chapter shall be deemed an unlawful search and seizure and any evidence obtained

as a result of such unlawful search and seizure shall be inadmissible in the tribal court.

Section 2-5-10. Return of Evidence Unlawfully Seized. Any evidence of property

obtained pursuant to an unlawful search and seizure shall be returned to the person who

owns the property or has lawful right to its possession upon written request to the Court

by that individual.

CHAPTER 6

PRELIMINARY PROCEEDINGS

Section 2-6-1. Initial Appearance: As soon as reasonably possible after arrest, but not

more than 72 hours thereafter, or within the period designated on the citation, the

defendant shall appear or be brought before a tribal judge or a magistrate and the

defendant shall be informed of his or her constitutional rights, including the right to counsel

at his or her own expense. The defendant shall be advised of the charges against him

and be given a copy of the complaint, if available. If the defendant is arrested without a

warrant, the tribal prosecutor shall file a complaint and a copy shall be provided to the

defendant before the date set for arraignment. Bail shall be set in accordance with

Chapter 7.

Any person charged with a Class I Misdemeanor or a Felony shall be entitled to a

preliminary hearing. The defendant, at the initial appearance, shall be advised of the right

to a preliminary hearing and if requests a preliminary hearing the judge or clerk shall

schedule a preliminary hearing. If the defendant is not entitled to a preliminary hearing,

or if the defendant waives the right to a preliminary hearing, the defendant shall be

scheduled for trial.

Section 2-6-2. Preliminary Hearing. Discharge and Dismissal in Absence of

Probable Cause. If from the evidence produced at the preliminary hearing it appears

that there is not probable cause to believe an offense has been committed or that the

defendant committed it, the judge shall dismiss the complaint and discharge the

defendant. The discharge of a defendant does not preclude the tribal prosecution from

instituting a subsequent prosecution for the same offense.

7

CHAPTER 7

BOND

Section 2-7-1. Release on Bond Authorized. Any individual subject to the jurisdiction

of the Flandreau Santee Sioux Tribe shall be entitled to release on bond as authorized

by this Chapter.

Section 2-7-2. Release on Personal Recognizance Authorized. The Court may

release any individual on his/her own personal recognizance pending trial, subject to any

restrictions that may be placed on the individual by the Court, unless the Court determines

that such a release will not reasonably assure the appearance of the defendant as

required. Release on personal recognizance shall be determined by the tribal judge in

the exercise of discretion. The following factors may be taken into consideration in

making this determination:

(1)

The residency of the accused;

(2)

The likelihood of appearance for further hearing;

(3)

The seriousness of the offense charged;

(4)

The defendant’s past record, if any, of willful failure to appear before the

tribal court or any other court of law;

(5)

Evidence that the defendant poses a threat to any individual, the Tribe, or

the general public;

(6)

The employment of the accused and financial resource; and

(7)

Length of residency in the community and family ties.

Section 2-7-3. Release on Bond. If the Court determines that a defendant’s release on

personal recognizance will not reasonably assure the appearance of the defendant for

trial as required, the committing judge shall order the defendant to be held on an

appearance bond or a cash bond. The amount of bond required shall not exceed the

amount of the maximum fine allowed for the offense charged.

Section 2-7-4. Conditions of Release. The Court may place conditions on the release

of any defendant pending trial. Violations of the conditions may subject the defendant to

revocation of bond and result in the detention of the individual pending trial.

8

CHAPTER 8

ARRAIGNMENT AND PLEAS

Section 2-8-1. Arraignment Procedure. Arraignments shall be conducted in open court

and shall consist of reading the complaint to the defendant or stating to the defendant the

substance of the charge and calling the defendant to plead thereto. The defendant shall

be given a copy of the complaint before called upon to plead and shall be advised of his

constitutional and statutory rights in accordance of Section 2-8-4.

Section 2-8-2. Pleas Permitted to Defendant-Requirements for Plea of Guilty or

Nolo Contendere. A defendant may plead:

(1)

Not guilty;

(2)

Not guilty and not guilty by reason of insanity;

(3)

Guilty; or

(4)

Nolo Contendere.

Except as otherwise provided, a plea of guilty, or nolo contendere can only be entered by

a defendant himself in open court. If a defendant refuses to plead, or if the Court refuses

to accept a plea of guilty or nolo contendere, the Court shall enter a plea of not guilty.

The Court may not enter a judgment unless it is satisfied that there is a factual basis for

any plea except a plea of nolo contendere. A guilty plea or a nolo contendere plea may

be entered on behalf of a defendant who is not present in open court by the defendant’s

attorney if the defendant has signed a properly notarized power of attorney authorizing

the defendants’ attorney to enter the plea. The power of attorney shall verify that the

defendant has been advised of his constitutional rights, of the charges against him and

of the maximum punishment allowed by law and that the defendant understands the

same.

Section 2-8-3. Consent Required for Nolo Contendere Plea. A defendant may plead

nolo contendere only with the consent of the Court. Such a plea shall be accepted by the

Court only after due consideration of the views of the parties and the interests of the public

in the effective administration of justice.

Section 2-8-4. Advice as to Rights to Defendant Pleading Guilty or Nolo

Contendere. Before accepting a plea of guilty or nolo contendere the Court must address

the defendant personally, in open court, subject to the exception stated in Section 2-8-5,

and inform him of, and determine that he understands the following:

(1)

The nature of the charge to which the plea is offered, the mandatory

minimum penalty provided by law, if any, and the maximum possible penalty

provided by law;

9

(2)

If the defendant is not represented by an attorney, that he has the right to

be represented by an attorney at every stage of the proceedings against

him at his own cost;

(3)

That he has the right to plead not guilty or to persist in that plea if it has

already been made, and that he has the right to assistance of counsel, the

right to confront and cross-examine witnesses against him, and the right not

to be compelled to incriminate himself;

(4)

That if he pleads guilty or nolo contendere there will not be a further trial of

any kind, so that by pleading guilty or nolo contendere he waives the right

to a trial, the right to confront and cross-examine witnesses against him,

and the right not to be compelled to incriminate himself; and

(5)

That if he pleads guilty or nolo contendere, the Court may ask him questions

about the offense to which he has pleaded, and if he answers these

questions under oath, on the record, and in the presence of counsel, his

answers may later be used against him in a prosecution for perjury.

Section 2-8-5. Ascertainment of Voluntary Nature of Guilty or Nolo Contendere

Plea, Pleading by Attorney to Misdemeanor-Imposition of Sentence. The Court,

except as provided in this Section, shall not accept a plea of guilty or nolo contendere

without first, by addressing the defendant personally in open court, determining that the

plea is voluntary and not the result of force or threats or of promises apart from a plea

agreement.

If the defendant is charged with a misdemeanor, his attorney may enter a plea of

guilty, nolo contendere or not guilty for him. The Court shall inquire into whether the

attorney has advised the defendant of the contents of Section 2-8-4. If the Court is

satisfied that the defendant has been advised, the plea may be accepted. If the plea is

guilty or nolo contendere, sentence may be imposed at that time and is binding upon the

defendant.

Section 2-8-6.

Plea Bargaining Permitted/Concessions by the Prosecutor

Permitted-Notice to Victims. The tribal prosecutor and an attorney for a defendant or

a defendant when acting pro se may engage in discussions, with a view toward reaching

an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged

offense or to a lesser or related offense, the tribal prosecutor will do any one or more of

the following:

(1)

Move for dismissal of other charges or not file additional charges arising out

of a different occurrence;

10

(2)

Make a recommendation, or agree not to oppose the defendant’s request,

for a particular sentence, with the understanding that such recommendation

or request shall not be binding upon the Court;

(3)

Agree that a specific sentence is the appropriate disposition of the case; or

(4)

Perform other specified acts to be made a part of the agreement.

The Court shall not participate in such discussions. The tribal prosecutor shall make a

reasonable effort to provide each victim of a crime of violence of the defendant’s crime

with an opportunity to comment on the terms of the plea agreement to the tribal

prosecutor. If the victim is a minor, the victim’s parent or guardian may comment on the

terms of the plea agreement to the tribal prosecutor.

Section 2-8-7. Disclosure of Plea Agreement and Victim’s Comments to CourtAcceptance or Rejection. If a plea agreement has been reached by the parties, the

Court shall, on the record, require the disclosure of the agreement in open court, or on a

showing of good cause, in chambers, at the time the plea is offered. The tribal prosecutor

shall disclose on the record any comments on the plea agreement made by the victim.

Thereupon the Court may accept or reject the agreement, or may defer its decision as to

the acceptance or rejection until there has been an opportunity to consider the

presentence report.

Section 2-8-8. Advice to Defendant as to Acceptance of Plea Agreement. If a court

accepts the plea agreement, it shall inform the defendant that it will embody in the

judgment and sentence the disposition provided for in the plea agreement.

Section 2-8-9. Advice to Parties as to Rejection of Plea Agreement-Withdrawal of

Plea by Defendant. If a court rejects the plea agreement, it shall, on the record, inform

the parties of this fact, advise the defendant personally in open court or, on a showing of

good cause, in chambers, that the Court is not bound by the plea agreement, afford the

defendant the opportunity to then withdraw his plea, if a plea has been entered, and

advise him that if he persists in his guilty plea or plea of nolo contendere the disposition

of the case may be less favorable to him than that contemplated by the plea agreement.

Section 2-8-10. Time of Notification to Court of Plea Agreement. Notification to the

Court of the existence of a plea agreement shall be given at the arraignment or at such

other time, prior to trial, as may be fixed by the Court.

Section 2-8-11. Evidence of Guilty or Nolo Contendere Plea Inadmissible After

Withdrawal-Exception in Perjury Prosecutions. Except as provided in this Section,

evidence of a plea of guilty or nolo contendere which was later withdrawn, of an offer to

plead guilty or nolo contendere to the crime charged or any other crime, or of statements

made in connection with, and relevant to, any of the foregoing pleas or offers, is not

admissible in any civil or criminal proceeding against the person who made the plea or

11

offer. However, evidence of a statement made in connection with, and relevant to a plea

of guilty or nolo contendere, later withdrawn, or an offer to plead guilty or nolo contendere,

to the crime charged or any other crime, is admissible in a criminal proceeding for perjury

if the statement was made by the defendant under oath, on the record, and in the

presence of counsel.

CHAPTER 9

PRETRIAL PROCEDURE

Section 2-9-1. Defenses and Objections Raised By Motion. Any defense, objection,

or request which is capable of determination without the trial of the general issue may be

raised before trial by motion. Motions may be written or oral at the discretion of the judge.

Section 2-9-2. Grounds for Dismissal of Complaint on Motion. Upon motion of a

defendant pursuant to Section 2-10-1 the Court must dismiss the complaint in any of the

following cases:

(1)

When it is not found, endorsed, and presented or filed as prescribed by this

title;

(2)

When the names of the witnesses are not inserted at the foot of the

complaint or endorsed thereon;

(3)

When it does not substantially conform to the requirements of this title;

(4)

When more than one offense is charged in a single count;

(5)

When it does not describe a tribal offense;

(6)

When it contains matter which, if true, would constitute a legal justification

or excuse of the offense charged, or other bar to prosecution; or

(7)

When it is determined that the Court has no jurisdiction over the person or

offense.

Section 2-9-3. Order Setting Aside Complaint Not Bar to Subsequent Prosecution.

An order to set aside the complaint, as provided for in this Chapter, is no bar to future

prosecution for the same offense, except in the case where the Court has no jurisdiction

over the person or the offense.

Section 2-9-4. Pre-Trial Motions Heard at Time Made, Except Good Cause

Postponement. All pre-trial motions shall be ruled upon at the time they are made unless

for good cause the Court determines that the motion should be delayed and scheduled

for a hearing at another time.

12

CHAPTER 10

DISCOVERY

Section 2-10-1. Prosecution Evidence Discoverable by Defendant. Upon written

request of a defendant, the tribal prosecutor shall permit the defendant to inspect and

copy or photograph;

(1)

Any relevant written or recorded statements made by the defendant or

copies thereof, within the possession, custody or control of the prosecutor,

the existence of which is known or by the exercise of due diligence may

become known, to the tribal prosecutor; and

(2)

The substance of any oral statement, which the tribal prosecutor intends to

offer in evidence at the trial, made by the defendant whether before or after

arrest in response to interrogation by any person then known to the

defendant to be an employee of a law enforcement agency.

Section 2-10-2. Copy of Prior Criminal Record Furnished to Defendant on Request.

Upon written request of the defendant, the tribal prosecutor shall furnish to the defendant

such copy of his prior criminal record, if any, as is within the possession, custody or control

of the tribal prosecutor, and the existence of which is known, or by the exercise of due

diligence may become known, to the tribal prosecutor.

Section 2-10-3. Defendant’s Right to Inspect and Copy Documentary and Tangible

Evidence Taken from Defendant. Upon written request of the defendant, the tribal

prosecutor shall permit the defendant to inspect and copy or photograph books, papers,

documents, photographs, tangible objects, buildings or places, or copies or portions

thereof, which are within the possession, custody, or control of the tribal prosecutor and

which are material to the preparation of his defense or intended for use by the tribal

prosecutor as evidence in chief at the trial, or were obtained from or belong to the

defendant.

Section 2-10-4. Defendant’s Right to Inspect and Copy Results of Examinations or

Scientific Tests. Upon written request of a defendant, the tribal prosecutor shall permit

a defendant to inspect and copy or photograph any results or reports of physical or mental

examinations, and of scientific tests or experiments, or copies thereof, which are within

the possession custody or control of the tribal prosecutor, the existence of which is known,

or with the exercise of due diligence may become known, to the tribal prosecutor, and

which are material to his defense or are intended for use by the tribal prosecutor as

evidence in chief at the trial.

Section 2-10-5. Work Product Protected from Discovery by Defendant. Except as

provided in Sections 2-10-1 to 2-10-4 of this Chapter, this Chapter does not authorize the

13

discovery or inspection of reports, memoranda, or other internal prosecution documents

made by the tribal prosecutor in connection with investigation or prosecution of the case,

or of statements made by the prosecution witnesses or prospective prosecution witnesses

except as provided in Section 2-10-7 to 2-10-10 of this Chapter.

Section 2-10-6. Statements by Witnesses Not Discoverable Until Testimony in

Preliminary Hearing or Trial. In any criminal prosecution, no statement in the

possession of the tribal prosecutor, which was made by a prosecution witness or

prospective prosecution witness (other than the defendant), shall be the subject of

subpoena, discovery, or inspection until such witness has testified on direct examination

in the preliminary hearing or in the trial of the case.

Section 2-10-7. Prior Statements of Prosecution Witnesses Subject to Discovery

after Direct Examination. After a witness called by the tribal prosecutor has testified on

direct examination, the Court shall, on motion of the defendant, order the tribal prosecutor

to produce any statement of the witness in the possession of the tribal prosecutor which

relates to the subject matter of the testimony of the witness, the Court shall order it to be

delivered directly to the defendant for his examination and use.

Section 2-10-8. Excision from Statement of Prosecution Witness of Matter Not

Testified To-Delivery to Defendant-Preservation of Entire Statement for AppealRecess to Permit Examination of Defendant. If the tribal prosecutor claims that any

statement ordered to be produced under Section 2-10-6 to 2-10-10, inclusive, contains

matter which does not relate to the subject matter of the testimony of the witness, the

Court shall order the tribal prosecutor to deliver such statement for the inspection of the

Court in camera. Upon such delivery the Court shall excise the portions of such statement

which do not relate to the subject matter of the testimony of the witness. With such

material excised, the Court shall then direct delivery of such statement to the defendant

for his use. If, pursuant to such procedure, any portion of such statement is withheld from

the defendant and the defendant objects to such withholding, and the trial is continued to

an adjudication of the guilt of the defendant, the entire text of such statement shall be

preserved by the tribal prosecutor and, in the event the defendant appeals, shall be made

available to the appellate court for the purpose of determining the correctness of the ruling

of the tribal judge. Whenever any statement is delivered to a defendant pursuant to this

Section, the Court in its discretion, upon application of the defendant, may recess

proceedings in the trial for such time as it may determine to be reasonably required for

the examination of the statement by the defendant and his preparation for its use in the

trial.

Section 2-10-9. Testimony Stricken When Prosecution Elects Not to Produce Prior

Statement-Mistrial. If the tribal prosecutor elects not to comply with an order of the Court

under Section 2-10-7 to 2-10-8 to deliver to the defendant any such statement, or such

portion thereof as the Court may direct, the Court shall strike from the record the testimony

of the witness, and the trial shall proceed unless the Court in its discretion shall determine

that the interests of justice require that a mistrial be declared.

14

Section 2-10-10. Defendant’s Documentary and Tangible Evidence Discoverable

by Prosecution. If the defendant requests disclosure under Section 2-10-3 or 2-10-4,

upon compliance with such request by the tribal prosecutor, the defendant, on written

request of the tribal prosecutor, shall permit the tribal prosecutor to inspect and copy or

photograph books, papers, documents, photographs, tangible objects, or copies or

portions thereof, which are within the possession, custody, or control of the defendant

and which the defendant intends to introduce as evidence in chief at the trial.

Section 2-10-11. Results of Examination and Scientific Tests Discoverable by

Prosecution. If the defendant requests disclosure under Section 2-10-3 or 2-10-4, upon

compliance with such request by the tribal prosecutor, the defendant, on written request

of the tribal prosecutor, shall permit the tribal prosecutor to inspect and copy or

photograph any results or reports of physical or mental examinations and of scientific

tests or experiments made in connection with the particular case, or copies thereof, within

the possession or control of the defendant, which the defendant intends to introduce as

evidence in chief at the trial or which were prepared by a witness whom the defendant

intends to call at the trial when the results or reports related to his testimony.

Section 2-10-12. Defense Work Product Protected From Discovery. Except as to

scientific or medical reports, Section 2-10-10 or 2-10-11 does not authorize the discovery

or inspection of reports, memoranda, or other internal defense documents made by the

defendant, or his attorneys or agents in connection with the investigation or defense of

the case, or of statements made by the defendant, or by prosecution or defense

witnesses, or by prospective prosecution or defense witnesses, to the defendant, his

agents or attorneys.

Section 2-10-13. Notice to Adverse Party of Newly Discovered Evidence Subject to

Discovery. If, prior to or during trial, a party discovers additional evidence or material

previously requested or ordered, which is subject to discovery or inspection under Section

2-10-1 to 2-10-12, inclusive, he shall promptly notify the other party, his attorney or the

Court of the existence of the additional evidence or material.

Section 2-10-14. Restriction of Rights of Discovery or Inspection-Preservation of

Entire Statement for Appellate Record. Upon sufficient showing the Court may at any

time order that the discovery or inspection be denied, restricted, or deferred, or make

such other order as is appropriate. Upon motion by a party, the Court may permit the

party to make such showing, in whole or in part, in the form of a written statement to be

inspected by the judge alone. If the Court enters an order granting relief following such

ex parte showing, the entire text of the party’s statement shall be sealed and preserved

in the records of the Court to be made available to the appellate court in the event of an

appeal.

Section 2-10-15. Remedies on Failure of Party to Comply With Discovery

Requirement-Manner of Discover and Inspection. If, at any time during the course of

15

a proceeding, it is brought to the attention of the Court that a party has failed to comply

with an applicable discovery provision, the Court may order such party to permit the

discovery or inspection, grant a continuance, or prohibit the party from introducing

evidence not disclosed, or it may enter such other order at it deems just under the

circumstances. The Court may specify the time, place and manner of making the

discovery and inspection and may prescribe such terms and conditions as are just.

CHAPTER 11

SUBPOENA

Section 2-11-1. Attorney’s Subpoena for Witnesses within Reservation. The tribal

prosecutor may issue subpoenas, subscribed by him, for the appearance of witnesses

within the reservation, in support of a prosecution. An attorney for a defendant may issue

subpoenas subscribed by him for witnesses the defendant may require.

Section 2-11-2. Committing Judge’s Subpoenas for Witnesses within ReservationBlank Subpoenas Issued by Clerk of Court. A tribal judge before whom a complaint is

laid, shall, when requested, may issue subpoenas, subscribed by him, for the appearance

of witnesses with the reservation, whether on behalf of the tribe or the defendant.

Section 2-11-3. Documentary or Tangible Evidence Required by SubpoenaModification-Inspection Rights. A subpoena may also command the person to whom

it is directed to produce books, papers, documents or other objects designated therein.

On motion made promptly the Court may quash or modify a subpoena if compliance would

be unreasonable or oppressive. The Court may direct that books, papers, documents, or

objects designated in a subpoena be produced before the Court at a time prior to the trial

or prior to the time when they are to be offered in evidence and may upon their production

permit the books, papers or documents, or objects or portions thereof to be inspected by

the parties and their attorneys.

Section 2-11-4. Service of Subpoena. A subpoena shall be served by a tribal law

enforcement officer. Service of a subpoena shall be made by delivering a copy thereof

to the person named.

Section 2-11-5. Place of Service of Subpoena. A subpoena requiring the attendance

of a witness at a hearing or trial may be served at any place within the reservation

boundaries.

Section 2-11-6. John Doe Subpoena for Examination Before Magistrate-Compelling

Obedience. Whenever a complaint, verified positively or upon information and belief by

the tribal prosecutor, is laid before a tribal judge alleging that a criminal offense has been

committed on the reservation and asking for an investigation of the same, such judge

shall issue his subpoena requiring any person he may deem proper to attend before him

16

at the time and place mentioned in such subpoena and submit to an examination and

give testimony concerning any violation of law about which he may have knowledge.

Section 2-11-7. Advice as to Rights Given to John Doe Witness-Immunity Provision

Applicable. Any witness examined under Section 2-11-6 shall be informed of the right

to be advised by counsel and the right to not be required to make any incriminating

statement which will incriminate him. The provisions of Section 2-11-10 relating to

immunity shall apply to proceedings held pursuant to Section 2-11-6.

Section 2-11-8. Record of John Doe Testimony-Warrant for Arrest of Offender. The

testimony of a witness attending pursuant to Section 2-11-6 shall be reduced to writing

by the tribal judge or some person under his direction. If the offense complained of

appears to have been committed, a warrant for the arrest of the offender shall be issued

and further proceedings shall then be had as provided by law.

Section 2-11-9. Disobedience of Subpoena as Contempt of Court. Failure by any

person without adequate excuse to obey a subpoena served upon him may be deemed

a contempt of court.

Section 2-11-10.

Self-Incriminating Testimony Required Under Promise of

Immunity-Restriction on Use of Information. No witness may be excused on the basis

of his privilege against self-incrimination from testifying or providing other information in

a proceeding before the Court for a civil, criminal or administrative action whenever the

tribal prosecutor has granted the witness immunity pursuant to this Section or whenever

the tribal judge presiding over the proceeding has ordered such testimony. No testimony

or other information compelled under an order or a grant of immunity, or any information

directly or indirectly derived from such testimony, may be used against the witness in any

criminal proceeding, except a prosecution for perjury, giving a false statement, or

otherwise failing to comply with the order.

CHAPTER 12

TRIAL BY JURY OR COURT

Section 2-12-1. Trial by Jury Unless Waived by Parties. Cases required to be tried

by a jury shall be so tried unless the defendant waives a jury trial in writing or orally on

the record with the approval of the Court and the consent of the tribal prosecutor.

Section 2-12-2. Number of Jurors-Stipulation for Smaller Jury. Juries shall consist

of six members but at any time before verdict the parties may stipulate in writing or orally

on the record with the approval of the Court that the jury shall consist of any number less

than six.

Section 2-12-3. Findings of Fact in Trial Without Jury. In a case tried without a jury,

the Court shall make a general finding and shall in addition, on request made before

17

submission of the case to the Court for decision, find facts specially. Such findings may

be oral. If an opinion or memorandum of decision is filed, it will be sufficient if the findings

of fact appear therein.

CHAPTER 13

EVIDENCE

Section 2-13-1. Civil Rules Applicable Except as Provided. The rules of evidence in

civil cases are applicable also to criminal cases, except as otherwise provided in this title.

Section 2-13-2. Innocence Presumed-Reasonable Doubt Requires Acquittal. A

defendant in a criminal action is presumed to be innocent until the contrary is proved, and

in case of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled

to be acquitted.

Section 2-13-3. Defendant’s Right to Testify-No Presumption from Failure to

Testify. In a trial of all indictments, informations, and complaints and other proceedings

before the Court, against persons charged with the commission of any crime, the person

charged shall, at his own request, but not otherwise, be a competent witness. His failure

to make such request does not create any presumption against him.

CHAPTER 14

MOTION FOR JUDGMENT OF ACQUITTAL

Section 2-14-1. Judgment of Acquittal Entered With or Without Motion on Close of

Evidence for Either Side-Defendant’s Right to Offer Evidence After Denial of

Motion. The Court on motion of a defendant or on its own motion shall order the entry of

judgment of acquittal of one or more offenses charged in a complaint after the evidence

on either side is closed, if the evidence is insufficient to sustain a conviction of the offense

or offenses. If a defendant’s motion for judgment of acquittal at the close of the evidence

offered by the tribal prosecutor is not granted, the defendant may offer evidence without

having reserved the right.

Section 2-14-2. Reservation of Decision on Motion Made at Close of Trial-Time of

Ruling. If a motion for judgment of acquittal is made at the close of all the evidence, the

Court may reserve decision on the motion, submit the case to the jury and decide the

motion either before the jury returns a verdict or after it returns a verdict of guilty or is

discharged without having returned a verdict.

Section 2-14-3. Motion Made After Discharge of Jury-Setting Aside Guilty VerdictPrior Motion Not Granted. If a jury returns a verdict of guilty or is discharged without

having returned a verdict, a motion for judgment of acquittal may be made or renewed

within ten days after the jury is discharged or within such further time as the Court may

18

fix during the ten day period. If a verdict of guilty is returned the Court may on such motion

set aside the verdict and enter judgment of acquittal. If no verdict is returned a Court may

enter judgment of acquittal. In order to make such a motion it is not necessary to have

made a similar motion prior to the submission of the case to the jury.

CHAPTER 15

THE TRIAL JURY

Section 2-15-1. Qualifications of Jurors. All Flandreau Santee Sioux Tribe Members

pursuant to Article 2 of the FSST Constitution, who are on the eligible voter’s list, eighteen

years of age or older, of sound mind and who are able to read, write, and understand the

English language, are eligible to serve as jurors.

Section 2-15-2. Jurors Summoned for Civil Actions Used for Criminal Trials. Jurors

drawn and summoned for the trial of civil actions are also the jurors for the trial of criminal

actions.

Section 2-15-3. Call of Jurors Equal to Number Required Including Challenges.

When prospective jurors are called for examination, the Court shall call to the jury box a

number of prospective jurors equal to the number of jurors to be impaneled, the number

of peremptory challenges allowed the parties, and number of alternates, if any.

Section 2-15-4. Examination of Prospective Jurors by Parties and Court. The

defense attorney or the defendant, if appearing pro se, and the tribal prosecutor shall

conduct examination of prospective jurors. Prior to the examination the Court may

conduct a general examination of the prospective jurors. The Court may in its discretion

allow examination of one or more jurors apart from the other jurors.

Section 2-15-5. Oaths of Panel Members to Answer Truthfully. All members of the

panel shall swear or affirm that they will answer truthfully all questions concerning their

qualifications.

Section 2-15-6. Excuse and Replacement of Juror Disqualification for CauseChallenges for Cause on Record. At any time that cause for disqualifying a juror

appears, the Court shall excuse him and call another member of the panel to take his

place in the jury box and on the clerk’s list of jurors. Challenges for cause may be made

out of hearing of jurors, but shall be made on the record.

Section 2-15-7. Kinds of Challenges for Cause-Taken by Either Party. A challenge

for cause is an objection to a particular juror and is either general or specific. It may be

taken either by the Tribe or a defendant.

Section 2-15-8. Order of Making Challenges for Cause-Grounds. All challenges for

cause to an individual juror must be taken, first by the defendant and then by the Tribe,

19

and each party must exhaust all his challenges for cause before the other begins.

Challenges for cause shall consist of the following:

(1)

To an individual juror for a general disqualification;

(2)

To an individual juror for implied bias;

(3)

To an individual juror for actual bias.

If new jurors are called to the panel to replace jurors dismissed for cause, the procedures

in this section shall be followed in exercising challenges for cause to the substituted jurors.

Section 2-15-9. Challenge on General Qualifications of Juror. A general challenge

for cause is that the juror is disqualified pursuant to Section 2-15-1 from service in any

case on trial.

Section 2-15-10. Specific Challenge of Juror for Bias-Actual and Implied Bias. A

specific challenge for cause is that a juror is disqualified from serving in the case on trial

because of:

(1)

Implied bias; or

(2)

Actual bias.

Actual bias is the existence of a state of mind on the part of a juror, in reference to the

case or to either party, which satisfied the Court, in the exercise of sound discretion, that

he cannot try the issue impartially, without prejudice to the substantial rights of the party

challenging.

In challenge for actual bias, cause must be alleged. In a challenge for implied bias,

one or more of the causes stated in Section 2-15-11 must be alleged.

Section 2-15-11. Causes for Challenge for Implied Bias. A challenge for implied bias

may be taken for all or any of the following causes, and for no other:

(1)

The juror is a relative of the person alleged to be injured by the offense

charged, or on whose complaint the prosecution was instituted, of the

defendant;

(2)

The juror is a guardian, ward, client, employer, employee, landlord, tenant,

or a member of the household of the defendant, the person alleged to be

injured by the offense charged, the person on whose complaint the

prosecution was instituted, or the prosecuting attorney or the defense

attorney;

20

(3)

The juror is a party adverse to the defendant in a civil action, or has

complained against or been accused by him in a criminal action;

(4)

The juror served on a trial jury which tried another person for the offense

charged in the information;

(5)

The juror was a member of a jury formerly sworn to try the information or

complaint, and whose verdict was set aside or which was discharged

without a verdict;

(6)

The juror served as a juror in a civil action brought against the defendant

for the act charged as an offense.

Section 2-15-12. Entry in Minutes of Challenge to Individual Juror. A challenge to

an individual juror may be oral, but must be entered upon the minutes of the Court.

Section 2-15-13. Objections to Challenge of Jurors-Denial of Facts. An adverse

party or counsel may object to a challenge to a juror. An adverse party may also orally

deny facts alleged as a ground for challenge.

Section 2-15-14. Trial by Court of Challenges. All challenges, whether to a panel or

to an individual juror, shall be tried by the Court.

Section 2-15-15. Examination as Witness of Challenged Juror-Evidence Received.

When a challenge to an individual juror is tried, the juror challenged may be examined as

a witness to prove or disprove the challenge, and witnesses may also be examined on

either side, and the rules of evidence applicable to the trial of other issues govern the

admission or exclusion of evidence on the trial of the challenge.

Section 2-15-16. Allowance or Disallowance of Challenge to Individual Juror. When

a challenge to a individual juror for which no reason need be given. It can be taken by

either party and may be oral. A Court must exclude a juror on a peremptory challenge.

Section 2-15-17 Number of Peremptory Challenges Allowed. In all criminal cases

the defense and prosecution shall have three peremptory challenges.

CHAPTER 16

CONDUCT OF TRIAL

Section 2-16-1. Order of Proceedings at Trial. After a jury has been impaneled and

sworn, a trial must proceed in the following order:

21

(1)

If the complaint is for a felony, the clerk or tribal prosecutor must read it and

state the plea of the defendant to the jury. In all other cases this formality

may be dispensed with;

(2)

The tribal prosecutor or other counsel for the Tribe may make an opening

statement and offer the evidence in support of the complaint;

(3)

The defendant or his counsel may then open his defense and offer his

evidence in support thereof. However, the defendant or his counsel may

make his opening statement immediately after the tribal prosecutor’s

opening statement.

(4)

The parties may then, respectively, offer rebutting evidence only, unless the

Court, for good reason, in furtherance of justice or to correct and evident

oversight, permits them to offer evidence upon their original case;

(5)

The judge must then charge the jury; he may state the issues and must

declare the law, but must not instruct the jury in respect to matters of fact;

and except as otherwise specially provided in this title, all instructions and

requests for instructions shall be governed by the law relating thereto in civil

actions, except that all requests for instructions to the giving or refusing of

any instructions must be taken and called to the attention of the Court before

the jury retires, unless the Court shall otherwise direct; and

(6)

When the evidence is concluded, unless the case is submitted to the jury

on either side, or on both sides, without argument, the tribal prosecutor shall

open and the defendant or his counsel shall follow; then the prosecuting

attorney shall conclude the argument to the jury.

Section 2-16-2. Departure from Order of Proceedings for Good Cause. When the

state of the pleadings requires it or in any case for good reasons and in the sound

discretion of the Court, the order of the trial and argument prescribed in Section 2-16-1

may be departed from.

Section 2-16-3. Admonition to Jurors on Each Adjournment of Court. Jurors must

also, at each adjournment of Court, be admonished by the Court that it is their duty not to

converse, among themselves or with anyone else, on any subject connected with the trial,

or to form or express any opinion thereon, until the case is finally submitted to them.

Section 2-16-4. Minor’s Testimony as to Sexual Offense Involving Child-Open Only

to Certain Persons-Exceptions for Grand Jury Proceedings. Any portion of criminal

proceedings at which a minor is required to testify concerning rape of a child, sexual

contact with a child, child abuse involving sexual abuse or any other sexual offense

involving a child may be closed to all persons except the parties’ attorneys, the victim or

witness assistant, the victim’s parents or guardian and officers of the Court.

22

CHAPTER 17

JURY INSTRUCTIONS AND DELIBERATIONS

Section 2-17-1. Duty to Receive Law Laid Down by Court. Although jurors have the

power to find a general verdict, which includes questions of law as well as of fact, they

are bound, nevertheless, to receive as law that which is laid down as such by the Court.

Section 2-17-2. Statements of Law in Charge-Exclusive Judges of Fact. In charging

jurors, a Court must state to them all matters of law which it deems necessary for their

information in giving their verdict. It must also inform the jurors that they are the exclusive

judges of all questions of fact.

Section 2-17-3. Instruction on Presumption of Innocence Required. In each criminal

case, the judge shall instruct the jury that the defendant is presumed innocent.

Section 2-17-4. Preparation and Settlement of Instruction-Reading to JuryComment During Argument-Filing and Endorsement of Requested Instructions. All

requested instructions shall be prepared and presented by the parties and handled and

settled by the Court. Instructions shall be settled out of the presence of the jury at the

close of the evidence but prior to final argument. Before final argument the Court shall

read its instructions to the jury and shall furnish a copy to each of the parties. The

instructions may be read to the jury and commented upon by counsel during the

argument. They shall be taken by the jury when it retires. All instructions requested by

the parties, or given by the Court, shall be filed with the clerk and, with the endorsement

thereon indicating the action of the Court, shall be a part of the record for the case.

Section 2-17-5. Retirement for Deliberation-Room Provided-Food and Lodging

During Deliberations. After hearing the charge, the jury shall retire for deliberation. A

suitable room, equipped for such purpose, must be provided for the use of a jury upon its

retirement for deliberation. While a jury is kept together, either during the progress of a

trial or after its retirement for deliberation, the jurors must be provided with suitable and

sufficient food by the Tribe upon an order of court, at the expense of the Tribe.

Section 2-17-6. Evidence and Instructions Kept by Jury During Deliberations. Upon

retiring for deliberations, a jury may take all exhibits and all papers which have been

received as evidence in the case. Copies may be substituted for original documents

when, in the opinion of the Court, such documents should not be taken from the person

possessing them. A jury must also take the instructions of the Court.

Section 2-17-7. Request by Jury for Further Instructions-Notice to and Presence of

Parties. After jurors have retired for deliberation, if there is a disagreement among them

as to any part of the testimony or if they desire to be informed upon a point of law arising

in the case, they shall ask the officer having them in charge to convey their written request

23

to the Court. Any information allowed by the Court must be given in the presence of the

tribal prosecutor and the defendant or his counsel, and must be taken down by the court

reporter.

Section 2-17-8. Jury Not Discharged until Verdict Rendered-Exceptions. A jury

cannot be discharged after a case is submitted to it until its members have agreed upon

their verdict and rendered it in open court, except by the consent of both parties entered

on the record, or unless at the expiration of such time as the Court deems proper, it

satisfactorily appears that there is no reasonable probability that the jurors can agree.

Section 2-17-9. New Trial When Jury Discharged Before Verdict. In all cases where

a jury is discharged or prevented from giving a verdict, by reason of an accident or other

cause except where the defendant is discharged during the progress of the trial or after

the case is submitted to them, the case may be again tried at the same or another term,

as the Court may direct.

CHAPTER 18

THE VERDICT

Section 2-18-1. Unanimous Verdict Required-Return in Open Court. A jury verdict

shall be unanimous. It shall be returned by the jury to the judge in open court. When the

jurors appear, they must be asked by the Court or the clerk whether they have agreed

upon their verdict. If the foreman answers in the affirmative, they must, on being required,

declare the same.

Section 2-18-2. General Verdict Required-Special Verdict Permitted. Except as

provided in this section, jurors shall render a general verdict. Special verdicts are

abolished, except the verdicts of “guilty but mentally ill” and “not guilty by reason of

insanity.”

Section 2-18-3. Form of General Verdict on Not Guilty Plea. A general verdict on a

plea of not guilty is either “guilty” or “not guilty” which imports a conviction or acquittal of

the offense charged.

Section 2-18-4. Form of Verdict Acquitting for Insanity. If a defendant is acquitted

because he was insane when he committed the offense charged, the verdict shall be “not

guilty by reason of insanity.”

Section 2-18-5. Direction to Reconsider Improper Verdict. If a jury renders a verdict

which is not a general verdict in accordance with this Chapter, the Court may, with proper

instructions as to the law, direct the jury to reconsider it.

Section 2-18-6. Verdict as to Degree of Crime-Lowest Degree Found on Reasonable

Doubt. Whenever a crime is distinguished by degrees, a jury, if it convicts an accused,

24

shall find the degree of the crime of which he is guilty and include that finding in its verdict.

When there is a reasonable ground of doubt as to which of two or more degrees an

accused is guilty, he can be convicted of only the lowest degree.

Section 2-18-7. Conviction of Included Offense or Attempt. A defendant may be

found guilty of an offense necessarily included in the offense charged or of an attempt to

commit either the offense charged or an offense necessarily included therein if such

attempt is an offense.

Section 2-18-8. Polling of Jury After Verdict Returned-Further Deliberation or

Discharge if not Unanimous. After verdict is returned but before it is recorded, the jury

shall be polled at the request of any party or upon the Court’s own motion. If upon the

poll there is not unanimous concurrence, the jury may be directed to retire for further

deliberations or may be discharged.

Section 2-18-9. Recording of Verdict-Inquiry of Jury. When a verdict is given which

the Court may receive, the clerk must properly record it in full in the minutes, and must

read it to the jurors and inquire of them whether it is their verdict. If any juror disagrees,

the fact must be entered in the minutes and the jury must again be sent out. If no

disagreement is expressed, the verdict is complete and the jury must be discharged from

the case.

CHAPTER 19

SENTENCING AND JUDGMENT

Section 2-19-1.

Time of Imposition of Sentence-Hearing in Mitigation or

Aggravation of Punishment-Evidence Received-Restitution. Sentences shall be

imposed without unreasonable delay, but not within forty-eight hours after determination

of guilt. A defendant may waive the forty-eight hour delay. Before imposing a sentence,

the Court may order a hearing in mitigation or aggravation of punishment. At such

hearing, the Court shall allow the defense counsel an opportunity to speak on behalf of

the defendant and shall address the defendant personally and ask him if he wishes to

make a statement in his own behalf and to present any information in mitigation of

punishment. The tribal prosecutor shall have an equivalent opportunity to speak to the

Court.

Section 2-19-2. Address of Court by Victim Before Sentence Imposed-Response of

Defendant-“Victim” Defined. Upon request to the Court by a victim and before imposing

sentence on a defendant, in the discretion of the Court, the victim may address the Court

concerning the emotional, physical, and monetary impact of the defendant’s crime upon

the victim. The defendant shall be permitted to respond to such statements orally or by

presentation of evidence, and shall be granted a reasonable continuance to refute any

inaccurate or false charges or statements.

25

For the purpose of this section, the word “victim” shall be construed to mean the

actual victim or the parent, spouse, or next of kin of any actual victim who is deceased,

incompetent by reason of age or physical condition or whom the Court shall find otherwise

unable to comment.

Section 2-19-3. No Forfeiture of Property Unless Expressly Imposed. No conviction

of any person for a tribal offense works any forfeiture of any property except in cases in

which a forfeiture is expressly imposed by law.

Section 2-19-4. Advice as to Appeal Rights After Sentence on Not Guilty Plea. After

imposing a sentence in a case which has gone to trial on a plea of not guilty, the Court

shall advise the defendant of his right to appeal. There is no duty on the Court to advise

a defendant of any right of appeal after sentence is imposed flowing a plea of guilty or

nolo contendere.

Section 2-19-5. Relief from Judgment-Grounds-Time of Motion. Within reasonable

time but not more than one year after final judgment, a Court on motion of a defendant or

upon its own motion may relieve a defendant from final judgment if required in the interest

of justice. If the original trial was by a court without a jury, the Court on motion of a

defendant or upon its own motion, may vacate the judgment if entered, order a new trial

or take additional testimony and direct the entry of a new judgment.

A motion under this Section does not affect the finality of a judgment or suspend

its operation.

If an appeal is pending, the Court may grant a motion under this Section only upon

remand of the case.

Section 2-19-6. Pre-sentence Investigation and Report-Contents Not Disclosed

Unless Defendant Convicted. A pre-sentence investigation may be ordered in the

discretion of the Court.

The report shall not be submitted to the Court or its contents disclosed to anyone

unless the defendant has pleaded guilty or nolo contendere or has been found guilty,

except that a judge may, with the written consent of the defendant, inspect a presentence

report at any time.

Section 2-19-7. Contents of Report of Pre-Sentence Investigation. The report of a

presentence investigation shall contain any prior criminal record of the defendant and

such information about his characteristics, his financial condition and the circumstances

affecting his behavior as may be helpful in imposing sentence or in granting probation or

in the correctional treatment of the defendant, and such other information as may be

required by the Court.

26

Section 2-19-8. Parties’ Access to Pre-Sentence Report Before Sentence ImposedMaterial Kept From Defendant-Comments and Other Evidence Received. Before

imposing sentence, the Court shall, upon request, permit the defendant, his counsel if he

is so represented, or the tribal prosecutor to read the report of the presentence

investigation, but the Court may exclude any recommendation as to sentence, and other

material that, in the opinion of the Court, contains a diagnostic opinion which might

seriously disrupt a program of rehabilitation, sources of information obtained upon a

promise of confidentiality, or any other information which, if disclosed, might result in

harm, physical or otherwise, to the defendant or other persons. The Court shall afford

the defendant, his counsel, or the tribal prosecutor an opportunity to comment thereon

and, in the discretion of the Court, to introduce testimony or other information relating to

any alleged factual inaccuracy contained in the presentence report.

Section 2-19-9. Disclosure From Pre-Sentence Report Same for Both Parties. Any

material disclosed to the defendant or his counsel shall also be disclosed to the tribal

prosecutor. Any material disclosed to the tribal prosecutor shall also be disclosed to the

defendant or his counsel.

Section 2-19-10. Time for Withdrawal of Plea of Guilty or Nolo Contendere. A motion

to withdraw a plea of guilty or nolo contendere may be made only before sentence is

imposed or imposition of sentence is suspended; but to correct manifest injustice a court

after sentence may set aside a judgment of conviction and permit the defendant to

withdraw his plea.

Section 2-19-11. Order Suspending Imposition of Sentence and Placing Defendant

on Probation-Revocation of Suspension. Upon receiving a verdict or plea of guilty for

a misdemeanor or felony by a person never before convicted of a crime which at the time

of conviction thereof would constitute a felony, the Court, when satisfied that the ends of

justice and the best interest of the public as well as the defendant will be served thereby

may, without entering a judgment of guilty, and with the consent of the defendant,

suspend the imposition of sentence and place the defendant on probation for such period

and upon such terms and conditions as the Court may deem best. The Court may revoke

such suspension at any time during the probationary period and impose and execute

sentence without diminishment or credit for any of the probationary period.

Section 2-19-12. Discharge and Dismissal of Probationer on Complaints of

Conditions-No Judgment Entered-Limitation to One Time. Upon completion of the

observance of all conditions imposed pursuant to Section 2-19-12 the defendant shall be

discharged by the Court. A formal entry of such discharge shall be entered by the clerk

of courts. Discharge and dismissal under this section shall be without court adjudication

of guilt and shall not be deemed a conviction of a crime. Discharge and dismissal under

this section may occur only once with respect to any person.

27

Section 2-19-13. Suspension of Execution of Sentence-Conditions Imposed. Upon

conviction, the Court may suspend the execution of any sentence imposed during good

behavior, subject to such conditions or restitutions as the Court may impose.

Section 2-19-14. Imprisonment of Specific Period as Condition of Probation or

Suspension of Sentence-Credit for Time. The conditions of probation imposed

pursuant to Section 2-19-11 or Section 2-19-12 or the conditions of suspension of

execution imposed pursuant to Section 2-19-14, may include the requirement that the

defendant be imprisoned for a specific period not exceeding one hundred eight days. The

imprisonment may be further restricted to certain days specified by the Court as part of

such conditions. Any such imprisonment shall be credited toward any incarceration

imposed upon any subsequent revocation of a suspended imposition or execution of

sentence.

Section 2-19-15. Enhanced Sentencing. Defendants sentenced to more than one year

of imprisonment or fined more than five thousand dollars for a criminal offense pursuant

to section 3-2-2(1), are entitled to the following due process protections:

(1)

The defendant shall have the right to effective assistance of counsel at least

equal to that guaranteed by the United States Constitution during all phases

of the criminal proceedings; and

(2)

At the expense of the tribal government, an indigent defendant shall be

provided the assistance of a defense attorney licensed to practice law by

any jurisdiction in the United States that applies appropriate professional

licensing standards and effectively ensures the competence and

professional responsibility of its licensed attorneys; and

(3)

The defendant shall be afforded any other due process protections required

by the Indian Civil Rights Act, as amended.

Section 2-19-16. Sentencing Offenses Concurrently or Consecutively. The Court

shall have the discretion to issue sentences for multiple offenses in one proceeding

concurrently or consecutively. For offenses sentenced consecutively, the Court may

impose up to, but no more than, nine (9) years in jail and a fifteen thousand dollar

($15,000) fine.

Section 2-19-17. Prisoner Liable for Costs of Confinement. A prisoner confined to

any jail while serving a sentence is liable for $50.00 per day of the prisoner’s confinement

for room and board charges and any additional medical, dental, optometric, and

psychiatric services charges; vocational education training; chemical dependency

treatment charges; work release charges; and transportation costs, where transporting

the prisoner is required. The judge may allow the prisoner to set up a deferred payment

plan for payment for the costs of the inmate’s confinement or waive all or part of the

payment if the prisoner demonstrates an inability to pay.

28

Section 2-19-18. Placement on Probation. After conviction of an offense, a defendant

may be placed on probation.

Section 2-19-19. Conditions of Probation or Suspension of Sentence. The

conditions of probation or of suspension of sentence shall provide in addition to any other

conditions, that the defendant not commit another tribal, federal or state crime during the

term of probation.

The conditions of probation may provide in addition to any other conditions, that

the defendant:

(1)

Pay fine or perform community service work as directed by the Court;

(2)

Perform community service work;

(3)

Receive treatment for chemical dependency;

(4)

Make restitution for the costs associated with probation such as drug

testing, electronic monitoring, and other reasonable costs; and

(5)

Make restitution to victims pursuant to Section 2-19-23.

Section 2-19-20. Hearing Required to Revoke Probation or Suspension of

Sentence-Bail Pending Hearing. The Court shall not revoke probation or a suspension

of imposition of sentence, except after a hearing at which the defendant shall be present

and apprised of the grounds on which such action is proposed. A defendant may be

admitted to bail pending such hearing.

Section 2-19-21. Modification of Terms and Conditions of Probation. The Court

may, upon notice to the probationer, a hearing and good cause shown, modify the terms

and conditions of a probation which may include extending the probationary period.

Section 2-19-22. Cost imposed. What Amount of Court Cost. The Court may require

a defendant to pay, in addition to any other sentence imposed, court costs in an amount

to be determined by the Court.

Section 2-19-23. Restitution to Victims. The Court, in addition to other penalties

imposed, may order that the defendant pay restitution to the victims of the defendants’

criminal activity for any loss or damages sustained by the victim to the extent the

defendant is reasonably able to do so. An order for restitution may be enforced by the

Tribe or a victim named in the order to receive restitution in the same manner as a

judgment in a civil action. Compliance with a restitution plan shall be a condition of a

defendant’s probation or suspension of sentence. A plan for restitution shall be submitted

by the tribal prosecutor and approved by the Court.

29

Section 2-19-24. Forfeiture of Property. Upon a conviction of an offense listed in

Chapters 6, 7, or 20 of Title 3, the Court, in its discretion, may order in addition to any

other sentence imposed that such person shall forfeit to the Flandreau Santee Sioux

Tribe:

(1)

Such person’s interest in any property, real or personal, that was involved

in, used, or intended to be used to commit or to facilitate the commission of

such violation, and any property traceable to such property; and

(2)

Any property, real or personal, constituting or derived from, any proceeds

that such person obtained, directly or indirectly, as a result of such violation,

or any property traceable to such property.

Section 2-19-25. Transfer of Forfeited Assets. The Attorney General may take

possession of assets forfeited pursuant to section 2-19-24. The Attorney General may

liquidate such assets and the proceeds derived from the sale thereof shall first be

provided to satisfy victim restitution orders arising from this Chapter. Amounts exceeding

the restitution ordered under section 2-19-23 shall be deposited into the Flandreau

Santee Sioux Tribe’s general fund.

Notwithstanding the above, transfers shall not reduce or otherwise mitigate the

obligation of a person sentenced under this Chapter to satisfy the full amount through the

use of non-forfeited assets, or to reimburse the Attorney General for the cost of the

transfer.

Transfers pursuant to this section shall have priority over any other claims to the

assets or their proceeds.

Section 2-19-26. Banishment. In addition to any other punishment imposed by this

Chapter, the Court may order that a non-member be banished from the reservation if the

Court determines that the non-member poses a threat to the safety and general welfare

of the Tribe, its members, or any other individual on the reservation. The period of

banishment shall be determined by the Court, and may, in appropriate circumstances, be

permanent.

Section 2-19-27. Notification of sex offense convictions. The Court shall notify the

police department of all sex offense convictions in accordance with the Sex Offender

Registry Ordinance, codified in Title 24. There is a Tribal Court Registration Form that is

required to provide such notice.

Section 2-19-28. Providing and Publishing Convictions and Orders. The Tribal

Courts shall provide any conviction information, regardless of the offender’s age or

offense committed, for employment, housing, licensing, election, or other background

check if presented by a release of information by the requesting party that is signed by

the person convicted.

30

In addition to the above, the Tribal Courts shall publish certain information to the National

Crime Information Center (NCIC). This includes:

(1)

All Class 1 and Class 2 felony criminal convictions, except for drug

convictions;

(2)

All convictions for domestic abuse and/or assault and orders of protection

under Chapter 4 of Title 3 or Title 6A;

(3)

All offenses committed against children under Chapter 8 of this Title;

(4)

All convictions related to sex offenses under Chapters 6 and 7 of this Title;

(5)

Restraining orders; and

(6)

Any conditions of supervised release for these offenses.

No information may be provided to NCIC for minors under the age of eighteen (18)

years; except for juveniles were at least fourteen (14) years old at the time of committing

a rape offense and who have been adjudicated delinquent for committing (or attempting

or conspiring to commit) a rape.

LEGISLATIVE HISTORY

Title 2 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 3, 1996; and was approved by the Bureau of Indian Affairs on September 16,

1996. The Executive Committee subsequently amended Title 2 by Resolution Numbers

11-52 on July 12, 2011; 2020-46 on March 20, 2020; and 2020-24 on May 12, 2020. The

foregoing amendments were incorporated into this updated document, approved by

Resolution Number 2022-19 on September 27, 2022. The Executive Committee later

amended Title 2, Chapter 19 by Resolution Number 2023-01 on February 27, 2023.

31