HO-CHUNK NATION CODE (HCC)

HO-CHUNK NATION CODE (HCC)

TITLE 9 – CRIMINAL CODE

SECTION 978 – TRIBAL PROSECUTOR

ENACTED BY LEGISLATURE: May 23, 2017

CITE AS: 9 HCC § 978

TABLE OF CONTENTS

978.001 Definitions…………………………………………………………………………...… 1

978.03 Prosecutor and assistants………………………………………………………………... 1

978.045 Special prosecutors………………………………………………………………….… 1

978.05 Duties of the tribal prosecutor………………………………………………………...… 3

978.06 Restriction on the tribal prosecutor……………………………………………………... 4

978.07 Obsolete district attorney records………………………………………………………. 4

978.08 Preservation of certain evidence………………………………………………………... 5

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978.001 Definitions. In this chapter:

(1g) "Law firm" means a private firm of attorneys, the legal department of a governmental unit

or agency, a corporation or another organization or a legal services organization.

978.03

Tribal prosecutor and assistants.

(3) Any tribal prosecutor or assistant tribal prosecutor must be an attorney admitted to practice

law in this Nation and may perform any duty required by law to be performed by the tribal

prosecutor.

978.045 Special prosecutors.

(1g) The Department of Justice may appoint a special prosecutor under sub. (1r) or a tribal

prosecutor may request that the Department of Justice appoint a special prosecutor under that

subsection. The Department of Justice shall first consider appointing an attorney already within

the Ho-Chunk Nation Department of Justice for a special prosecution. If no attorney is available

the Department of Justice shall consider any government attorney from another tribe who is

knowledgeable of criminal law and P.L. 280 or a private attorney licensed in the Ho-Chunk

Nation Bar Association.

(1r) The Department of Justice may appoint an attorney as a special prosecutor to perform, for

the time being, or for the trial of the accused person, the duties of the tribal prosecutor. An

attorney appointed under this subsection shall have all of the powers of the tribal prosecutor. The

Department of Justice may appoint an attorney as a special prosecutor at the request of a tribal

prosecutor to assist the tribal prosecutor in the prosecution of persons charged with a crime, in

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grand jury proceedings or John Doe proceedings, or in investigations. The Department of Justice

may appoint an attorney as a special prosecutor if any of the following conditions exists:

(a) There is no tribal prosecutor for the Nation.

(b) The tribal prosecutor is absent from the Nation.

(c) The tribal prosecutor has acted as the attorney for a party accused in relation to the

matter of which the accused stands charged and for which the accused is to be tried.

(d) The tribal prosecutor is near of kin to the party to be tried on a criminal charge.

(e) The tribal prosecutor is physically unable to attend to his or her duties or has a mental

incapacity that impairs his or her ability to substantially perform his or her duties.

(f) The tribal prosecutor is serving in the U.S. armed forces.

(g) The tribal prosecutor stands charged with a crime and the president or attorney

general has not suspended the prosecutor.

(h) The tribal prosecutor determines that a conflict of interest exists regarding the tribal

prosecutor or the tribal prosecutor staff.

(i) A judge determines that a complaint relates to the conduct of the tribal prosecutor to

whom the judge otherwise would refer the complaint.

(2)(a) The Department of Justice shall fix the amount of compensation for any attorney

appointed as a special prosecutor under sub. (1r).

(b) The Department of Justice shall pay the compensation under the appropriate line item.

(c) The Department of Justice, tribal prosecutor and the special prosecutor shall provide

any information regarding a payment under par. (b) that the department requests.

(3)(a) If an attorney is available and willing to serve as a special prosecutor without

compensation, the tribal prosecutor may recommend the attorney as a public service special

prosecutor to the Attorney General to serve at the pleasure of the tribal prosecutor. The public

service special prosecutor may perform the duties and has the powers of the tribal prosecutor

while acting under such an appointment, but is not subject to the compensation under sub. (2). A

full-time public service special prosecutor may not engage in a private practice of law while

serving under this paragraph, if such practice has to potential to cause a conflict of interest for

the special prosecutor. A part-time public service special prosecutor may engage in a private

practice of law while serving under this paragraph.

(b) A law firm or other employer employing an attorney who is appointed as a public

service special prosecutor may continue to pay, for a period of not more than 4 months, the

salary and fringe benefits of the attorney while he or she serves under par. (a). If the public

service special prosecutor receives any such payments, the prosecutor's law firm and the

prosecutor are subject to the following restrictions:

1. The law firm may not participate in any of the cases in which the public service

special prosecutor participates.

2. The public service special prosecutor may not consult with any attorney in or

employee of the law firm about any criminal case in which the public service special

prosecutor participates except as necessary to ensure compliance with this subsection.

(c) An attorney serving as a public service special prosecutor under par. (a) is considered

to be a public official for purposes of the Code of Ethics Act, 2 HCC § 1. A law firm or

employer described under par. (b) is not liable for any acts or omissions of a public service

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special prosecutor while acting in his or her official capacity or performing duties or exercising

powers under par. (a).

978.05 Duties of the tribal prosecutor. The tribal prosecutor shall:

(1) CRIMINAL ACTIONS. Except as otherwise provided by law, prosecute criminal actions before

any court within his or her jurisdiction and have sole responsibility for prosecution of criminal

actions arising from violations of HCC § 939 – 961 and from violations of other laws arising

from or in relation to the official functions of the subject of the investigation or any matter as

assigned by the attorney general and criminal in nature, that are alleged to be committed by an

individual within his or her jurisdiction, or if alleged to be committed by a nonresident of this

Nation, that are alleged to occur in his or her jurisdiction.

(2) FORFEITURES. Except as otherwise provided by law, prosecute forfeiture actions, traffic

actions and actions concerning violations of ordinances which are in conformity with Nation

criminal laws in the courts within his or her jurisdiction (3) JOHN DOE PROCEEDINGS. Participate

in investigatory proceedings as may be established by the Ho-Chunk Nation Rules of Criminal

Procedures. .

(5) CRIMINAL APPEALS. Upon the request and under the supervision and direction of the attorney

general, brief and argue all criminal cases brought by appeal or writ of error or certified from the

trial court to the supreme court or federal court if applicable. The tribal prosecutor or his or her

designee shall represent the Nation in any appeal or other proceeding if the case is decided by a

single court of appeals judge.

(6) CIVIL ACTIONS OR SPECIAL PROCEEDINGS.

(a) Institute, commence or appear in civil actions or special proceedings under and perform the

duties set forth for the tribal prosecutor under ss. 946.86, 946.87, 961.55 (5) or Ho-Chunk Nation

Rules of Criminal Procedure, perform any duties in connection with court proceedings in a court

assigned to exercise jurisdiction as the judge may request and perform all appropriate duties and

appear if the tribal prosecutor is designated in specific statutes. Nothing in this paragraph limits

the authority of the attorney general to designate, that the tribal attorney’s provide representation

as specified in 5 HCC § 5 or any other civil enforcement action assigned by the attorney general,

and the tribal prosecutor as an appropriate person to represent the interests of the public in

criminal type matters.

(8) ADMINISTRATION.

(a) In collaboration with the attorney general, establish such offices throughout the jurisdiction

of the Ho-Chunk Nation as are necessary to carry out the duties of the office of tribal prosecutor.

(b) In collaboration with the attorney general, employ, and supervise his or her staff and make

appropriate assignments of the staff. . The tribal prosecutor may request the assistance of

assistant tribal prosecutors who then may appear and assist in the investigation and prosecution

of any matter for which a tribal prosecutor is responsible under this chapter in like manner as

assistants in the prosecutorial unit and with the same authority as the tribal prosecutor in the unit

in which the action is brought. Nothing in this paragraph limits the authority of the Nation to

regulate the hiring, employment, and supervision of Nation employees.

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(c) In collaboration with the attorney general, supervise all expenditures of the

prosecutor’s office.

(9) BUDGET. In collaboration with the attorney general, prepare a budget request for submission

to the legislature, as required by 2 HCC §4.

978.06 Restriction on tribal prosecutor.

(1) No tribal prosecutor or assistant tribal prosecutor may receive any fee or monetary reward

from or on behalf of any prosecutor or any other individual for services in any prosecution or

business to which it is the tribal prosecutor’s official duty to attend.

(2) No tribal prosecutor or assistant tribal prosecutor may be concerned as attorney or counsel

for either party, other than for the Nation, in any civil action depending upon the same state of

facts upon which any criminal prosecution commenced but undetermined depends.

(3) (a) No tribal prosecutor or assistant tribal prosecutor while in office may hold any judicial

office within the Nation.

(4) No person who acted as tribal prosecutor or assistant tribal prosecutor, or special prosecutor

under s. 978.045, for the Nation at the time of an arrest, examination or indictment of any person

charged with a crime in Nation may thereafter appear for, or defend that person against the crime

charged in the complaint, information or indictment.

(5) (a) No full-time tribal prosecutor or assistant tribal prosecutor may engage in a private

practice of law within the Ho-Chunk Nation, but he or she is authorized to engage in a private

practice of all cases, not in conflict with the interest of the Nation which are outside the Nation’s

jurisdiction and, in which the attorney general has approved. A part-time tribal prosecutor or

assistant tribal prosecutor may engage in a private practice of law.

978.07 Obsolete tribal prosecutor records.

(1) Whenever necessary to gain needed vault and filing space, a tribal prosecutor may destroy,

subject to sub. (2), obsolete records in his or her custody as follows:

(a) Any tribal prosecutor record, after it has first been microfilmed or transferred to

optical disk or electronic storage.

(b) Any case record of a traffic, misdemeanor, civil or related case, 3 years after

commencement of the action.

(c) 1. Any case record of a felony punishable by maximum imprisonment of 3 years or a

related case, or date of eligibility for release to extended supervision, or 50 years after the

commencement of the action, whichever occurs later. If there is no parole eligibility date or no

date for release to extended supervision, the tribal prosecutor may destroy the case record after

the defendant's death.

2. Any case record of any other felony punishable by imprisonment of up to 1

year, but less than 3 years, after the mandatory release date or the presumptive mandatory release

date, if applicable, of any person convicted of that felony or 20 years after commencement of the

action, whichever is later.

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(d) Any other tribal prosecutor record not included under pars. (a) to (c) made or received

in connection with a transaction as evidence of a tribal prosecutor’s activities or functions, after 6

years.

(2) Prior to destruction of records under sub. (1), the tribal prosecutor, shall make a written offer

to the historic preservation department. If the offer is accepted by the department within 60 days

after the day the offer is made, the tribal prosecutor shall transfer the title to those records to the

historic preservation department. If the offer is not accepted within 60 days after the day the

offer is made, the tribal prosecutor may destroy the records.

978.08 Preservation of certain evidence.

(1) In this section:

(a) "Custody" means actual custody of a person under a sentence of imprisonment, custody of a

probationer, parolee, or person on extended supervision by the department of corrections, actual or

constructive custody of a person pursuant to a dispositional order under 4 HCC § 3, supervision of a

person, whether in institutional care or on conditional release, pursuant to a commitment order, whether in

detention before trial or while in institutional care or on supervised release pursuant to a commitment

order..

(b) "Discharge date" means the date on which a person is released or discharged from custody

that resulted from a criminal action, a juvenile delinquency proceeding, or a commitment proceeding or, if

the person is serving consecutive sentences of imprisonment, the date on which the person is released or

discharged from custody under all of the sentences..

(2) Except as provided in sub. (3), if physical evidence that is in the possession of a tribal

prosecutor includes any biological material that was collected in connection with a criminal

investigation that resulted in a criminal conviction, delinquency adjudication, or commitment

and the biological material is from a victim of the offense that was the subject of the criminal

investigation or may reasonably be used to incriminate or exculpate any person for the offense,

the tribal prosecutor shall preserve the physical evidence until every person in custody as a result

of the conviction, adjudication, or commitment has reached his or her discharge date.

(2m) The department of justice shall retain evidence to which sub. (2) applies in an amount and

manner sufficient to develop a deoxyribonucleic acid profile, as defined in 9 HCC § 939.74 (2d)

(a), from the biological material contained in or included on the evidence.

(3) Subject to sub. (5), a tribal prosecutor may destroy evidence that includes biological material

before the expiration of the time period specified in sub. (2) if all of the following apply:

(a) The prosecutor sends a notice of its intent to destroy the evidence to all persons who

remain in custody as a result of the criminal conviction, delinquency adjudication, or

commitment and to either the attorney of record for each person in custody or the public

defender.

(b) No person who is notified under par. (a) does either of the following within 90 days

after the date on which the person received the notice:

1. Files a motion for testing of the evidence pursuant to applicable Ho-Chunk

Nation Rules of Criminal Procedure.

2. Submits a written request for retention of the evidence to the prosecutor

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(c) No other provision of federal or tribal law requires the prosecutor to retain the

evidence.

(4) A notice provided under sub. (3) (a) shall clearly inform the recipient that the evidence will

be destroyed unless, within 90 days after the date on which the person receives the notice, either

a motion for testing of the evidence is filed pursuant to applicable Ho-Chunk Nation Rules of

Criminal Procedure or a written request for retention of the evidence is submitted to the

prosecutor.

(5) If, after providing notice under sub. (3) (a) of its intent to destroy evidence, a prosecutor

receives a written request for retention of the evidence, the prosecutor shall retain the evidence

until the discharge date of the person who made the request or on whose behalf the request was

made, subject to a court order.

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Legislative History:

05/23/17

Legislature places the draft Tribal Prosecutor Code out for 45 day public comment

through Resolution 02-21-17S.

05/23/17

Legislature enacts the Tribal Prosecutor Code through Resolution 05/23/17J.