CORRECTED: APRIL 4, 2013 (H-027-2013)
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HOPI CODE
ENACTED
AUGUST 28, 2012
CORRECTED: APRIL 4, 2013 (H-027-2013)
Amended: May 14, 2013 (H-037-2013)
(Effective May 14, 2013)
June 11, 2020 (H-039-2020)
(Effective July 10, 2020)
July 7, 2020 (H-047-2020)
(Effective July 7, 2020)
HOPI CODE
TITLE I. ESTABLISHMENT OF COURTS AND APPOINTMENT OF JUDGES
1
Chapter 1. JUDICIAL POWER
1
1.1.1 JUDICIAL POWER
1
1.1.2 JUDICIAL COMMISSION
1
Chapter 2. APPELLATE COURT
2
1.2.1 HOW CONSTITUTED.
2
1.2.2 QUALIFICATIONS.
2
1.2.3 CHIEF JUSTICE.
2
1.2.4 JURISDICTION.
2
1.2.5 WRITS OR ORDERS.
2
1.2.6 SALARIES.
2
1.2.7 CERTIFIED QUESTIONS OF HOPI LAW.
2
1.2.8 APPELLATE PROCEDURE.
3
1.2.9 EXISTING TERMS IN OFFICE.
3
Chapter 3. TRIAL COURTS
4
1.3.1 ESTABLISHMENT.
4
1.3.2 COMPOSITION.
4
1.3.3 QUALIFICATIONS OF CHIEF JUDGE AND SENIOR ASSOCIATE JUDGE.
4
1.3.4 ASSOCIATE TRIAL JUDGES
4
1.3.5 SALARIES.
4
1.3.6 PRO-TEM JUDGE.
4
1.3.7 APPOINTMENT PROCESS.
4
1.3.8 DISQUALIFCATION
4
1.3.9 REMOVAL
5
1.3.10 EXISITING TERMS OF OFFICE
5
Chapter 4. JURISDICTION OF TRIAL COURT.
6
1.4.1 CRIMINAL JURISDICTION.
6
1.4.2 EXCLUSION OF NON-INDIANS.
6
ii
1.4.3 JUVENILE MATTERS.
6
1.4.4 CIVIL JURISDICTION.
6
Chapter 5. POWERS & DUTIES OF TRIBAL COURTS
7
1.5.1 POWERS.
7
1.5.2 DUTIES.
7
1.5.3 RULES OF COURT.
7
1.5.4 PRECEDENTIAL AUTHORITY FOR TRIAL COURTS.
7
1.5.5 RULES OF CRIMINAL PROCEDURE.
8
1.5.6 RULES OF EVIDENCE.
8
1.5.7 COURTS OF RECORD.
8
1.5.8 VICTIM'S RIGHTS
9
1.5.7 WITNESS PROTECTION
9
Chapter 6. OFFICERS OF THE TRIBAL COURTS
10
1.6.1 OFFICERS.
10
1.6.2 AUTHORITY OF PROSECUTOR APPOINTED BY TRIBE.
10
1.6.3 PUBLIC DEFENDER.
10
1.6.4 APPEARANCE OF ATTORNEYS.
11
1.6.5 LAY ADVOCATES.
12
TITLE II: COURT PROCEDURES
13
Chapter 1. GENERAL PROVISIONS
13
2.1.1 SIGNATURE.
13
2.1.2 WORDS USED IN PRESENT TENSE.
13
2.1.3 SPECIAL PROVISIONS CONTROL GENERAL PROVISIONS.
13
Chapter 2. COMMENCEMENT OF CRIMINAL PROCEEDINGS
14
2.2.1 COMPLAINT.
14
2.2.2 CONTENTS OF COMPLAINT.
14
2.2.3 FILING OF COMPLAINT.
14
2.2.4 ASSIGNMENT OF CRIMINAL ACTIONS INVOVLING SERIOUS OR DANGEROUS
OFFENSES.
14
iii
Chapter 3. ARREST, DELIVERY ON WARRANT, AND HOT PURSUIT
15
2.3.1 ARREST - DEFINED; PERSONS QUALIFIED TO MAKE; AID MAY BE REQUIRED. 15
2.3.2 WARRANT OF ARREST
15
2.3.3 DIRECTION TO PEACE OFFICER; EXECUTION.
15
2.3.4 ARREST.
15
2.3.5 BREAKING INTO DWELLING HOUSE OR OTHER STRUCTURE TO MAKE ARREST OR TO
PROTECT A POTENTIAL VICTIM OF A CRIM
16
2.3.6 PROMPT APPEARANCE OF DEFENDANT BEFORE A TRIAL COURT JUDGE
16
2.3.7 RETURN OF WARRANT.
16
2.3.8 EXTRADITION.
16
RECIPROCAL EXTRADITION AGREEMENT.
17
2.3.9 HOT PURSUIT.
20
Chapter 4. SEARCH WARRANT.
21
2.4.1 SEARCH WARRANT DEFINED.
21
2.4.2 ISSUANCE & CONTENTS.
21
2.4.3 EXECUTION OF WARRANT; OFFICERS AUTHORIZED; AUTHORITY TO BREAK IN
STRUCTURE.
21
2.4.4 TIME LIMIT; EXECUTUION OF WARRANT; VOID AT EXPIRATION.
21
2.4.5 INVENTORY.
21
2.4.6 INADMISSIBLE EVIDENCE.
21
Chapter 5. BAIL.
22
2.5.1 BAIL.
22
2.5.2 BAILABLE OFFENSES.
22
2.5.3 BAIL SET; MAXIMUM AMOUNT.
22
2.5.4 TAKING OF BAIL DEFINED; ENTERED BY CLERK.
22
2.5.5 DISCHARGE OF DEFENDANT; BAIL FURNISHED; ORDER.
22
2.5.6 INCREASE OR DECREASE OF BAIL; COMMITMENT ON DEFAULT.
22
2.5.7 ARREST OF DEFENDANT BY SURETY.
22
2.5.8 FORFEITURE OF BAIL.
23
2.5.9 RETURN OF CASH OR SURETY BOND.
23
iv
2.5.10 RELEASE.
23
2.5.11 BAIL FOR JUVENILE PERSONS.
23
Chapter 6. ARRAIGNMENT.
24
2.6.1 ARRAIGNMENT DEFINED
24
2.6.2 PROCEDURE AT ARRAIGNMENT.
24
2.6.3 PLEAS.
24
Chapter 7. PRE-TRIAL MOTIONS.
25
2.7.1 MOTIONS DEFINED.
25
2.7.2 MOTION TO SET ASIDE THE COMPLAINT.
25
2.7.3 ORDER SETTING ASIDE COMPLAINT NOT BAR TO SUBSEQUENT PROSECUTION.25
2.7.4 MOTION WAIVED BY FAILURE TO MOVE TO SET ASIDE COMPLAINT.
25
2.7.5 PRE-TRIAL MOTIONS HEARD AT TIME MADE, EXCEPT GOOD CAUSE POSTPONEMENT.
25
2.7.6 MOTION FOR BILL OF PARTICULARS.
25
2.7.7 MOTION TO SUPRESS EVIDENCE.
25
Chapter 8. TRIAL, GENERAL PROVISIONS.
26
2.8.1 CRIMINAL ACTION DEFINED.
26
2.8.2 IRREGULARITIES, MISTAKES, OMISSIONS HAVE NO LEGAL EFFECT UNLESS
ACTUALLY PREJUDICIAL.
26
2.8.3 SUMMONING JURORS & WITNESSES.
26
2.8.4 TRIAL BY JUY OR BY THE COURT.
26
2.8.5 RIGHTS OF ACCUSED.
26
2.8.6 PRESENCE OF THE DEFENDANT.
26
2.8.7 WAVIER OF RIGHTS
26
2.8.8 CALENDAR; CLERK OF COURT'S DUTIES
28
2.8.9 SETTING CASES FOR TRIAL; MAXIMUM TIME; CONTINUANCES; PROOF REQUIRED;
LENGTH; PRECEDENCE OF CRIMINAL CASES.
28
2.8.10 DEATH. ILLNESS; SUBSTITUTIONS; AUTHORITY OF SUBSTITUTE JUDGE.
28
Chapter 9. FORMATION OF THE JURY.
29
v
2.9.1 QUALIFICATIONS OF JURORS.
29
2.9.2 JURY PANEL EXCUSED.
29
2.9.3 CHALLENGES DEFINED.
29
2.9.4 PANEL DEFINED.
29
2.9.5 CHALLENGE TO PANEL DEFINED; WHO MAY CHALLENGE; REASON FOR CHALLENGE.
29
2.9.6 CHALLENGES TO INDIVIDUAL JURORS.
29
2.9.7 ORDER FOR EXERCISING CHALLENGES FOR CAUSE; PEREMPTORY AND TIME. 29
2.9.8 CHALLENGE FOR CAUSE.
29
2.9.9 FAILURE TO CHALLENGE FOR CAUSE.
30
2.9.10 JURY SELECTION.
30
2.9.11 PEREMPTORY CHALLENGE; PARTIES WHO MAY TAKE; FORM; DEFINITION.
30
2.9.12 PEREMPTORY CHALLENGE; NUMBER JOINT DEFENDANTS.
30
2.9.13 VACANCY FILLED.
30
2.9.14 JURY OATH.
30
2.9.15 CONTINUANCE.
30
2.9.16 JURY DUTY EXEMPTION.
30
Chapter 10. TRIAL PROCEDURE.
32
2.10.1 ORDER OF PROCEDURE.
32
2.10.2 PRESUMPTION OF INNOCENCE; EFFECT; REASONABLE DOUBT; DEFENDANT'S
REFUSAL TO TESTIFY; DEFENDANT'S WAIVER OF RIGHT TO BE PRESENT.
32
2.10.3 JOINT DEFENDANTS TRIED JOINTLY; COURT MAY DIRECT SEPARATE TRIALS.32
2.10.4 INTERPRETER.
33
2.10.5 VIEW OF THE PREMISES BY JURY.
33
2.10.6 DISCHARGE OF JUROR FOR ILLNESS OR DISABILITY; NEW TRIAL.
33
2.10.7 LAW QUESTIONS FOR COURT AND FACT QUESTIONS FOR JURY.
33
2.10.8 INSTRUCTIONS TO JURY.
33
2.10.9 POLL OF JURY BEFORE RECORDING VERDICT; EITHER PARTY AUTHORIZED;
DISSENTING JUROR FURTHER DELIBERATION; DIMISSAL OF JURY.
33
vi
2.10.10 DIRECTION OF VERDICT OF ACQUITTAL.
34
Chapter 11. SUBMISSION TO THE JURY & VERDICT.
35
2.11.1 PAPERS TAKEN BY JURY.
35
2.11.2 INFORMED ON ANY POINT OF LAW.
35
2.11.3 JURY KEPT TOGETHER.
35
2.11.4 VERDICT.
35
2.11.5 HUNG JURY.
35
Chapter 12. JUDGMENT.
36
2.12.1 TIME FOR SENTENCING FOLLOWING CONVICTION.
36
2.12.2 SENTENCING; IMPRISONMENT.
36
2.12.3 PRESENCE OF DEFENDANT.
36
2.12.4 SUSPENSION OF SENTENCE
36
2.12.5 COMMUTATION OF SENTENCE.
36
2.12.6 EXPUNGEMENT. SETTING ASIDE JUDGMENT OF CONVICION.
36
Chapter 13. PROBATION.
37
2.13.1 CONDITION OF PROBATION.
37
2.13.2 VIOLATION OF CONDITIONS OF PROBATION.
37
Chapter 14. NEW TRIAL.
38
2.14.1 NEW TRIAL.
38
2.14.2 APPLICATION.
38
2.14.3 GROUNDS.
38
2.14.4 EFFECT OF A NEW TRIAL.
38
2.14.5 STATUS OF THE ACCUSED PENDING NEW TRIAL.
38
2.14.6 STAY OF EXECUTION PENDING APPEAL.
38
Chapter 15. CONTEMPT OF COURT.
39
2.15.1 REASONS FOR CHARGE.
39
2.15.2 CONTEMPT COMMITTED IN PRESENCE OF JUDGE.
39
2.15.3 CONTEMPT COMMITTED NOT IN PRESENCE OF JUDGE.
39
2.15.4 PUNISHMENT.
39
vii
Chapter 16. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS.
40
2.16.1 DEFINITION OF TERMS.
40
2.16.2 RECOGNITION OF FOREIGN JUDGMENTS.
40
2.16.3 PROCEDURES FOR RECOGNITION OR ENFORCEMENT OF FOREIGN JUDGMENTS.41
TITLE III: CRIMINAL CODE
44
Chapter 1. GENERAL PROVISIONS.
44
3.1.1. SHORT TITLE.
44
3.1.2. PURPOSE.
44
3.1.3. EFFECTIVE DATE.
44
3.1.4. SEVERABILITY.
44
3.1.5. APPLICABILITY OF CODE.
45
3.1.6. RESTRICTIONS ON CODE PROVISIONS.
45
3.1.7. RULE OF CONSTRUCTION.
45
3.1.8. JURISDICTION.
45
3.1.9. SOVEREIGN IMMUNITY.
46
3.1.10. DEFINITION OF TERMS.
46
3.1.11. TIME LIMITATIONS.
49
3.1.12. SPEEDY TRIAL; COUNSEL; WITNESSES AND CONFRONTATION.
50
Chapter 2. DETERMINING APPLICABLE MENTAL STATES.
51
3.2.1. GENERAL RULE.
51
3.2.2. APPLICABLE MENTAL STATES.
51
3.2.3. INTOXICATION.
51
Chapter 3. DEFENSES.
52
3.3.1. SELF-DEFENSE.
52
3.3.2. DURESS.
52
3.3.3. IMMATURITY.
52
3.3.4. INSANITY.
52
3.3.5. FORMER JEOPARDY OR ACQUITTAL.
53
viii
3.3.6. VILLAGE OR CEREMONIAL TRADITION.
53
Chapter 4. PENALTIES.
54
3.4.1. IMPRISONMENT AND FINES.
54
3.4.2. REPETITIVE OFFENDERS.
54
3.4.3. CONSECUTIVE TERMS OF IMPRISONMENT.
54
3.4.4. OTHER CRIMINAL PENALTIES.
54
3.4.5. CIVIL DAMAGES.
55
3.4.6. HOPI TRADITIONS, CUSTOMS AND PRACTICES.
55
Chapter 5. PREPATORY OFFENSES AND ACCOMPLICE LIABILITY.
56
3.5.1. ATTEMPT.
56
3.5.2. CONSPIRACY.
56
3.5.3. ACCOMPLICE LIABILITY.
56
Chapter 6. OFFENSES AGAINST THE FAMILY.
57
3.6.1. ENDANGERMENT OR ABANDONMENT OF A MINOR.
57
3.6.2. CUSTODIAL INTERFERENCE.
57
3.6.3. FAILURE TO PROVIDE SUPPORT.
57
3.6.4. CONTRIBUTING TO THE DELIQUENCY OF A MINOR.
57
3.6.5. FAILURE TO SEND CHILDREN TO SCHOOL.
57
3.6.6. BIGAMY.
57
3.6.7. DOMESTIC VIOLENCE.
57
3.6.8. STALKING.
58
Chapter 7. OFFENSES AGAINST PERSONS.
59
3.7.1. ASSAULT.
59
3.7.2. AGGRAVATED ASSAULT.
59
3.7.3. ENDANGERMENT.
59
3.7.4. THREATENING.
59
3.7.5. ABUSE.
60
3.7.6. KIDNAPPING.
60
3.7.7. HOMICIDE.
60
ix
3.7.8. NEGLIGENT HOMICIDE.
60
3.7.9. ROBBERY.
60
3.7.10. AGGRAVATED ROBBERY.
60
3.7.11. HARASSMENT.
60
Chapter 8. OFFENSES AGAINST PROPERTY.
61
3.8.1. BURGLARY.
61
3.8.2. AGGRAVATED BURGLARY.
61
3.8.3. TRESPASSING.
61
3.8.4. THEFT.
61
3.8.5. RECEIVING OR CONCEALING STOLEN PROPERTY.
61
3.8.6. CRIMINAL DAMAGE TO PROPERTY.
61
3.8.7. CRIMINAL LITTERING OR POLLUTING OF PUBLIC PROPERTY.
61
3.8.8. BURNING.
62
Chapter 9. FRAUD & RELATED OFFENSES.
63
3.9.1. FRAUD.
63
3.9.2. BRIBERY.
63
3.9.3. EXTORTION.
63
3.9.4. FORGERY.
63
3.9.5. ISSUANCE OF INSUFFICIENTLY FUNDED CHECKS.
63
Chapter 10. SEXUAL OFFENSES AND RELATED OFFENSES.
64
3.10.1. ENTICEMENT OF A MINOR.
64
3.10.2. SEXUAL ASSAULT.
64
3.10.3. SEXUAL CONDUCT WITH A MINOR.
64
3.10.4. INDECENT EXPOSURE.
64
3.10.5. PROSTITUTION.
64
3.10.6. FAILURE TO REPORT CHILD ABUSE.
65
x
Chapter 11. OFFENSES INVOLVING WEAPONS AND EXPLOSIVES.
67
3.11.1. MISCONDUCT INVOLVING FIREARMS.
67
Chapter 12. OFFENSES INVOLVING DOMESTICATED ANIMALS.
68
3.12.1. CRUELTY TO DOMESTICATED ANIMALS.
68
Chapter 13. OFFENSES AGAINST PUBLIC PEACE, ORDER, WELFARE AND
ADMINISTRATION.
69
3.13.1. CURFEW VIOLATIONS.
69
3.13.2. DISORDERLY CONDUCT.
69
3.13.3. DISRUPTING MEETINGS, PROCESSIONS AND CEREMONIES.
69
3.13.4. DISRUPTING RELIGIOUS CEREMONIES.
70
3.13.5. RIOT.
70
3.13.6 DECLARED DISASTER
70
Chapter 14. INTERFERING WITH ADMINISTRATION OF JUSTICE.
72
3.14.1. IMPERSONATION OF A PUBLIC OFFICIAL.
72
3.14.2. ESCAPE.
72
3.14.3. HINDERING APPREHENSION OR PROSECUTION.
72
3.14.4. GIVING FALSE INFORMATION TO AN OFFICER.
72
3.14.5. CONTEMPT OF COURT.
73
3.14.6. RESISTING LAWFUL ARREST.
72
3.14.7. PERJURY.
73
3.14.8. TAMPERING WITH PUBLIC RECORDS.
73
Chapter 15. CONTROLLED SUBSTANCES & ALCOHOL RELATED OFFENSES.
74
3.15.1. USE OR POSSESSION OFFENSES.
74
3.15.2. BOOTLEGGING. SALE, DISTRIBUTION, TRANSPORTATION OF ALCOHOL,
MARIJUANA OR CONTROLLED SUBSTANCES
76
3.15.3. PRODUCTION, CULTIVATION OR MANUFACTURING OFFENSES.
77
3.15.4. INTOXICATION.
77
3.15.5. POSSESSION OF DRUG PARAPHERNALIA.
77
ADDITIONAL OFFENSES
79
xi
TITLE IV. MOTOR VEHICLE CODE
80
Chapter 1. GENERAL PROVISIONS
80
4.1.1 SHORT TITLE.
80
4.1.2 JURISDICITON OF HOPI TRIBE.
80
4.1.3 DEPOSIT TO AND APPROPRIATION OF GENERAL FUNDS.
80
4.1.4 CIVIL COMPROMISE DIMISSAL.
80
4.1.5 COURT-APPOINTED CIVIL TRAFFIC HEARING OFFICERS.
80
4.1.6 DEFINITION OF TERMS.
81
Chapter 2. GENERAL APPLICATION
85
4.2.1 ENFORCEMENT.
85
4.2.2 VALID STATE DRIVER'S LICENSE REQUIRED.
85
4.2.3 AUTHORIZED EMERGENCY VEHICLES.
85
4.2.4 APPLICATION TO ANIMALS AND ANIMAL-DRAWN VEHICLES.
85
4.2.5 CIVIL ASSESSMENT FEE.
85
4.2.6 TRAFFIC CONTROL DEVICES AND SIGNS.
86
Chapter 3. ACCIDENTS
87
4.3.1 DUTY OF DRIVERS INVOLVED IN AN ACCIDENT.
87
4.3.2 WHEN DRIVER UNABLE TO REPORT.
87
4.3.3 CONFIDENTIALITY OF ACCIDENT REPORTS.
87
4.3.4 DUTY OF GARAGES, DEALERS AND WRECKERS TO REPORT ACCIDENTS.
88
4.3.5 TRAFFIC ACCIDENTS INVOLVING DEATH OR SERIOUS PHYSCIAL INJURY, IMPLIED
CONSENT.
88
Chapter 4. SPEED REGULATIONS
89
4.4.1 SPEED REGULATIONS.
89
4.4.2 SPEED ZONE.
89
4.4.3 CLASSIFICATION OF COMPLAINT OF EXCESSIVE SPEED AS ALLEGING CIVIL OR
CRIMINAL VIOLATION.
89
Chapter 5. TRAFFIC SIGNS AND SIGNALS
91
4.5.1 OBEDIENCE TO TRAFFIC-CONTROL DEVICES.
91
4.5.2 TRAFFIC CONTROL SIGNAL LEGENDS.
91
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4.5.3 FLASHING SIGNALS.
92
4.5.4 PROHIBITION OF UNAUTHORIZED SIGNS, SIGNALS OR MARKINGS.
92
4.5.5 HOPI TERRITORY BOUNDARY SIGNS.
93
Chapter 6. RIGHT-OF-WAY
94
4.6.1 RIGHT-OF-WAY WHEN APPROACHING OR ENTERING INTERSECTIONS.
94
4.6.2 VEHICLES ENTERING YIELD INTERSECTION.
94
4.6.3 VEHICLE ENTERING ROADWAY FROM PRIVATE ROAD OR DRIVEWAY.
94
Chapter 7. DRIVING, OVERTAKING AND PASSING
95
4.7.1 OVERTAKING A VEHICLE ON THE LEFT.
95
4.7.2 OVERTAKING A VEHICLE ON THE RIGHT.
95
4.7.3 OVERTAKING AND PASSING A SCHOOL BUS.
95
4.7.4 LIMITATIONS ON OVERTAKING AND PASSING.
96
4.7.5 FOLLOWING TOO CLOSELY.
96
4.7.6 DRIVING ON RIGHT SIDE OF ROADWAY; EXEPTIONS.
97
Chapter 8. SIGNALS ON STARTING, TURNING AND STOPPING
98
4.8.1 REQUIRED POSITION AND METHOD OF TURNING AT INTERSECTIONS.
98
4.8.2 TURNING MOVEMENTS AND REQUIRED SIGNALS.
98
4.8.3 SIGNAL DEVICE REQUIRED.
98
4.8.4 METHOD OF GIVING HAND AND ARM SIGNALS.
98
Chapter 9. STANDING OR PARKING
100
4.9.1 STOPPING, STANDING OR PARKING.
100
4.9.2 PROHIBITIONS ON STOPPING, STANDING OR PARKING.
100
4.9.3 PARKING PRIVILEGES FOR PHYSICALLY DISABLED.
101
4.9.4 ADDITIONAL PARKING REGULATIONS.
101
Chapter 10. PEDESTRIANS' RIGHTS AND DUTIES
102
4.10.1 PEDESTRIANS SUBJECT TO TRAFFIC REGULATIONS.
102
4.10.2 PEDESTRIANS' RIGHT-OF-WAY IN CROSSWALKS.
102
4.10.3 PEDESTRIAN CONTROL SIGNALS; LOITERING PROHIBITED.
102
4.10.4 SCHOOL CROSSINGS.
103
xiii
4.10.5 USE OF WHITE CANE AND OTHER AMBULATION OR MOBILITY DEVICES.
103
Chapter 11. OPERATION OF BICYCLES AND PLAY VEHICLES
104
4.11.1 APPLICATION OF PROVISIONS.
104
4.11.2 CLINGING TO VEHICLES.
104
4.11.3 RIDING ON ROADWAYS AND BICYCLE PATHS; PROHIBITION OF MOTOR VEHICLE
TRAFFIC ON BIKE PATH.
104
4.11.4 LAMPS AND OTHER EQUIPMENT ON BICYCLES.
104
Chapter 12. MISCELLANEOUS PROVISIONS
105
4.12.1 RIDING ON MOTORCYCLES.
105
4.12.2 MANDATORY USE OF PROTECTIVE HELMETS.
105
4.12.3 OBSTRUCTION TO DRIVER'S VIEW.
105
4.12.4 COASTING PROHIBITED.
105
4.12.5 LIVESTOCK ON HIGHWAYS.
106
Chapter 13. EQUIPMENT
107
4.13.1 GENERAL APPLICABILITY.
107
4.13.2 WHEN LIGHTED LAMPS ARE REQUIRED.
107
4.13.3 HEADLAMPS.
107
4.13.4 TAIL LAMPS.
107
4.13.5 SIGNAL LAMPS AND DEVICES.
108
4.13.6 ADDITIONAL LIGHTING EQUIPMENT.
108
4.13.7 SPECIAL RESTRICTIONS ON LAMPS.
109
4.13.8 MULTIPLE-BEAM ROAD LIGHTING EQUIPMENT.
109
4.13.9 FLAG ON PROJECTING LOAD.
109
4.13.10 EQUIPMENT REQUIRED ON CERTAIN VEHICLES.
109
4.13.11 COLOR OF CLEARANCE LAMPS, SIDE-MARKER LAMPS AND REFLECTORS.
110
4.13.12 LAMPS AND REFLECTORS; TRUCK TRACTORS AND ROAD TRACTORS.
110
4.13.13 LAMPS AND REFLECTORS; LARGE SEMITRAILERS, FULL TRAILERS AND HOUSE
TRAILERS.
110
4.13.14 LAMPS AND REFLECTORS; SMALL SEMITRAILERS, HOUSE TRAILERS AND
TRAILERS.
111
4.13.15 LAMPS AND REFLECTORS; POLE TRAILERS.
xiv
111
4.13.16 LAMPS AND REFLECTORS; COMBINATION IN DRIVEAWAY-TOWAWAY OPERATIONS.
111
4.13.17 REFLECTORS, CLEARANCE LAMPS AND SIDE-MARKER LAMPS.
112
4.13.18 BRAKES.
112
4.13.19 HORNS AND WARNING DEVICES.
113
4.13.20 MUFFLERS; EMISSION CONTROL DEVICES.
114
4.13.21 MIRRORS.
114
4.13.22 WINDSHIELD AND WINDOWS.
114
4.13.23 RESTRICTIONS AS TO TIRE EQUIPMENT.
114
4.13.24 EMERGENCY WARNING EQUIPMENT.
115
4.13.25 PLACEMENT OF WARNING SIGNALS.
115
4.13.26 VEHICLES TRANSPORTING EXPLOSIVES OR OTHER DANGEROUS SUBSTANCES.
116
4.13.27 MARKINGS ON MOTOR VEHICLES CONCERNING DANGEROUS
SUBSTANCES.
118
4.13.28 SAFETY BELT REQUIREMENT.
118
4.13.29 INFANT/CHILD PASSENGER RESTRAINTS.
119
4.13.30 UNSECURED PASSENGERS IN TRUCKS.
120
Chapter 14. WEIGHT AND SIZE LIMITATIONS
121
4.14.1 SCOPE AND EFFECT OF ARTICLE.
121
4.14.2 PROJECTING LOADS ON PASSENGER VEHICLES.
121
4.14.3 SPECIAL LOAD LIMITS.
121
4.14.4 LOADS ON VEHICLES.
121
4.14.5 TRAILERS AND TOWED VEHICLES.
121
4.14.6 LOAD LIMITS ON AXLES, WHEELS AND TIRES.
122
4.14.7 PERMITS FOR EXCESSIVE SIZE AND WEIGHT.
122
Chapter 15. CRIMINAL OFFENSES
123
4.15.1 OBEDIENCE TO POLICE OFFICERS.
123
4.15.2 UNLAWFUL FLIGHT FROM PURSUING LAW ENFORCEMENT VEHICLE.
123
4.15.3 DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.
123
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4.15.4 AGGRVATED DRVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR DRUGS.
125
4.15.5 RECKLESS DRIVING.
125
4.15.6 RACING PROHIBITED.
125
4.15.7 IMPLIED CONSENT TO SUBMIT TO CHEMICAL TEST.
126
4.15.8 PENALTY FOR REFUSAL TO SUBMIT TO CHEMICAL TEST.
126
4.15.9 PRESUMPTIONS OF INTOXICATION.
126
4.15.10 ADMINISTRATION OF CHEMICAL TESTS.
127
4.15.11 RECORDS OR DISPOSITION.
128
4.15.12 THROWING OR DROPPING OBJECTS AT MOVING VEHICLES.
128
4.15.13 WARNING DEVICES AT CONSTRICTION SITES.
128
Chapter 16. PROCEDURE FOR THE TRAFFIC COURT
129
4.16.1 WHEN ARRESTEE TO BE GIVEN NOTICE TO APPEAR IN COURT.
129
4.16.2 VIOLATION OF PROMISE TO APPEAR.
129
4.16.3 DISPOSITION OF TRAFFIC CITATIONS.
129
4.16.4 CERTIFICATION OF TRAFFIC CITATION FORMS AND COMPLAINTS.
130
xvi
TITLE I
ESTABLISHMENT OF COURTS AND
APPOINTMENT OF JUDGES
Chapter 1. JUDICIAL POWER
1.1.1 JUDICIAL POWER. The judicial power of the Hopi Tribe shall be vested
in one Appellate Court and one Trial Court. The Tribal Council may also
establish inferior courts, as needed.
1.1.2 JUDICIAL COMMISSION.
A.
There shall be a Judicial Commission comprised of three individuals with
one commissioner chosen by the Chairman, Tribal Council and Court of
Appeals, respectively. No official of the Tribe shall be eligible to serve
on the Commission. No person who has been convicted of a major
offense, defined as an offense, serious offense or dangerous offense in
Section 3.4.1 of this Code, shall be eligible to serve on the Commission.
Judicial Commission members shall serve four year staggered terms.
B.
A Professionalism Committee shall adopt a Code of Ethics for attorneys
and lay advocates, based on the Model Rules of Professional Conduct.
The Judicial Commission shall hear any complaints regarding Justices,
Judges, attorneys and lay advocates. The Judicial Commission shall
have the power to make recommendations to the Chief Justice and Chief
Judge to discipline a Justice, Senior Associate Judge, Judge or Pro-Tem
Judge. The Judicial Commission shall have the power to make
recommendations to the Chief Justice or Chief Judge to discipline or
remove a Court clerk or other court staff. The Judicial Commission shall
have the power to make recommendations to the Tribal Council to
remove a Judge or Justice. The Judicial Commission shall provide each
person subject to discipline or removal with due process.
C.
The Judicial Commission shall have the power to regulate the conduct
of lawyers and lay advocates licensed to practice in the Courts. A denial
or revocation of a license to practice in the Courts issued by the Chief
Judge may be appealed to the Judicial Commission, provided that any
decision by the Judicial Commission regarding such license may be
appealed to the Chief Justice, who shall make a final decision in writing.
1
Chapter 2. APPELLATE COURT
1.2.1 HOW CONSTITUTED. The Appellate Court of the Hopi Tribe shall consist
of three Justices, all of whom shall be appointed by the Chairman with the
approval of the Tribal Council, for four year staggered terms. The Judicial
Commission shall conduct a written evaluation and report of each Justice after
one year of service and at such other times as the Judicial Commission deems
necessary.
1.2.2 QUALIFICATIONS. Any individual who is a graduate of an accredited
school of law and who is over the age of thirty (30) years and has never been
convicted of a felony shall be eligible to be appointed a judge of the Appellate
Court.
1.2.3 CHIEF JUSTICE. The Chairman shall designate one of the three Justices
as the Chief Justice to preside at all proceedings. The Chief Justice shall hold
such position until the expiration of his appointment.
1.2.4 JURISDICTION. The Court of Appeals has appellate jurisdiction over any
case on appeal from the Trial Court, and the power to make conclusions of
law in those cases. The Court of Appeals has original and exclusive jurisdiction
over disputes between Villages.
1.2.5 ORDERS AND REMEDIES. The Appellate Court has the power to issue
all remedies in law or in equity necessary and proper to the complete exercise
of its jurisdiction; to prevent or remedy any act of the Trial Court beyond the
Trial Court’s jurisdiction; to cause a Trial Court to act where the Trial Court
unlawfully fails or refuses to act within its jurisdiction; and to interpret the
Hopi Constitution and all Hopi statutes. The Appellate Court shall have the
power to invalidate the laws of the Tribe if such laws are in conflict with the
Constitution. Decisions of the Appellate Court shall be final. All orders,
opinions and decisions of the Court of Appeals shall be written and published.
1.2.6 SALARIES. The Chairman is empowered, with the consent of the Tribal
Council, to employ Justices for the Appellate Court for such salary and
conditions as established by law. No increase or decrease in salary shall be
allowed during the Justice’s term, except for cost of living increases that apply
to all employees.
1.2.7 CERTIFIED QUESTIONS OF HOPI LAW.
A.
The Appellate Court has jurisdiction to answer questions of Hopi Tribal
law, including Hopi constitutional law, certified from any tribal, federal,
or state court or from any tribal, federal or state administrative agency.
B.
The Appellate Court has jurisdiction to answer questions of Hopi
constitutional law, certified to it by the Hopi Tribal Council, or a Village
2
and shall expedite consideration of any certified questions of law. In
the exercise of sound discretion, the Hopi Tribal Court of Appeals may
decline to answer questions certified to it.
C.
1.2.8
The Appellate Court may issue rules or administrative
appropriate to the processing of certified questions.
orders
APPELLATE PROCEDURE.
A.
There shall be no right to a trial de novo (new trial) on appeal from the
Trial Courts to the Appellate Court. The decision of the Appellate Court
shall be made on the basis of the file and record of the proceedings in
the Trial Court, in addition to the briefs and verbatim memoranda
submitted by the parties to the appeal. Oral argument may be allowed,
if requested.
B.
Upon the stipulation (agreement) of all parties to an appeal, the decision
of the Appellate Court may be made upon the basis of stipulated (agreed
upon) facts and/or issues of law and without, or with less than all of,
the file and/or verbatim record of the Trial Court.
1.2.9 EXISTING TERMS OF OFFICE. Upon the adoption of this Code, the
Justices currently serving shall remain in office with the full judicial authority
to act, in accordance with the Constitution and laws of the Tribe, until such
time as replaced or reappointed.
3
Chapter 3. TRIAL COURTS
1.3.1 ESTABLISHMENT. A trial Court is hereby established for the Hopi Tribe
and shall be known as the Trial Court.
1.3.2 COMPOSITION. The Trial Court shall consist of one Chief Judge, one
Senior Associate Judge, and associate judges, as the Council deems
necessary, who shall be appointed by the Chairman, with the approval of the
Tribal Council. The Judicial Commission may conduct a written evaluation and
report of each Trial Court Judge after one year of service and at such other
times as the Judicial Commission deems necessary.
1.3.3 QUALIFICATIONS OF CHIEF JUDGE AND SENIOR
ASSOCIATE
JUDGE. Any person admitted to practice before the Supreme Court of the
United States, or any United States Circuit Court of Appeals, or the Supreme
Court of any state of the United States who is over the age of thirty (30) years
and who has never been convicted of a felony shall be eligible to be appointed
Chief Judge or Senior Associate Judge of the Trial Court. No person shall be
appointed or serve as a Trial or a Chief Judge who has been found guilty of
any crime involving fraud or dishonesty.
1.3.4 ASSOCIATE TRIAL JUDGES. Any member of the Hopi Tribe over the age
of 25 years who has never been convicted of a felony or a misdemeanor
involving fraud or dishonesty, shall be eligible to be appointed associate judge
of the Trial Court.
1.3.5 SALARIES. All judges of the Trial Court shall be compensated upon a
contractual basis to be determined by the Chairman, subject to the authority
of the Tribal Council. No increase or decrease in salary shall be allowed during
the Judge’s term, except for cost of living increases that apply to all
employees.
1.3.6 PRO-TEM JUDGE. The Chairman may appoint a Pro-Tem Judge, who
may or may not be a member of the Hopi Tribe, on an “as needed” or parttime basis. A person appointed as a Pro-Tem Judge must meet the
qualification of the Senior Associate Judge.
1.3.7 APPOINTMENT PROCESS. The Chairman may appoint all Judges to a
probationary term of not more than one year, however, all permanent
appointments must be approved by a majority vote of the Tribal Council.
1.3.8 DISQUALIFICATION. No judge shall hear or determine any case at the
trial level or appeal when he has a direct interest in the outcome of the case
or is related to one of the litigants in the trial, in accordance with the Model
4
Code of Judicial Conduct Rule 2.11(A), or applicable rules adopted by the
Judicial Commission.
1.3.9 REMOVAL. Appellate and Trial judges may be removed for cause by the
Tribal Council, but only after a hearing before the Council. Written charges
must be delivered to the judge sought to be removed not less than twenty
(20) days before the hearing.
1.3.10 EXISTING TERMS OF OFFICE. Upon the adoption of this Code, the
Judges currently serving shall remain in office with the full judicial authority
to act, in accordance with the Constitution and pursuant to their employment
or contractual terms.
5
Chapter 4. JURISDICTION OF TRIAL COURT.
1.4.1 CRIMINAL JURISDICTION. The Trial Court has original jurisdiction over
all offenses committed in violation of this Code, the Hopi Sex Offender
Registration Code, and any ordinances or laws of the Tribe when committed
by an Indian, within any lands held in trust for, or owned by the Tribe, or held
by the United States for the benefit of the Tribe or the people, including any
rights of way existing now or in the future (“the Territory”).
1.4.2 EXCLUSION OF NON-INDIANS. The Trial Court has original jurisdiction
to enforce the provisions of any Code, ordinance or law of the Hopi Tribe
providing for the exclusion of non-Indians from the Hopi Territory.
1.4.3 JUVENILE MATTERS. The Trial Court sits as the Juvenile Court and
exercises the jurisdiction provided by the Children’s Code.
1.4.4 CIVIL JURISDICTION.
The Trial Court has original jurisdiction over all civil actions or controversies,
whether at law or equity, arising under the Constitution, laws, customs, and
traditions of the Tribe, including cases in which the Tribe or its officials and
employees shall be a party. All civil causes of action arising within the
Jurisdiction of the Tribe shall be brought in the Trial Court before they can be
litigated in any other court. The Trial Court shall also have original jurisdiction
over civil regulatory actions involving the registration of convicted sex
offenders, as defined in The Hopi Sex Offender Registration Code, Title V,
Sections 5.1.1, et. seq., who are living, working, or going to school in the Hopi
Territory.
6
Chapter 5. POWERS & DUTIES OF TRIAL COURT
1.5.1 POWERS. The Trial Court has the following powers:
1. To preserve and enforce order in its immediate presence.
2.
To enforce order in the proceedings before it, or before a person
empowered to conduct a judicial investigation under its authority.
3.
To provide for the orderly conduct of proceedings before it or its officers.
4.
To compel obedience to its judgments, orders, and process.
5.
To supervise and control the conduct of its ministerial officers.
6.
To compel the attendance of persons to testify in any hearing or trial.
7.
To administer oaths in all proceedings held in its courtroom, and in all
other cases where it may be necessary in the exercise of its powers and
duties.
8.
To interpret the Hopi Constitution and laws of the Tribe, and to invalidate
laws if the conflict with the Constitution.
9.
To issue all remedies in law and in equity.
10. To administer funds received by the Court as a result of fines or
sanctions issued by the Court.
1.5.2 DUTIES. It is the duty of the Courts to hear and decide all cases before
it in a fair and impartial manner to the end that justice may be administered
and law and order maintained.
1.5.3 RULES OF COURT. The time and place of Court sessions of both the Trial
and Appellate Courts and all other details of judicial procedure not prescribed
in this Code shall be established by the Chief Justice or Chief Judge of each
Court respectively, subject to the authority of the Tribal Council to modify such
rules.
1.5.4. PRECEDENTIAL AUTHORITY FOR THE COURTS.
The Courts, in deciding matters of both substance and procedure, shall look
to, and give weight as precedent to, the following:
1. The Hopi Constitution and Bylaws;
2. Codes, ordinances and laws enacted by the Tribe;
3. Resolutions passed by the Tribal Council;
4. Customs, traditions, culture and common law of the Hopi Tribe;
5. Laws, rules and regulations and cases of the Federal Government, which
the Judge or Justice may use as guidance. This provision shall not,
however, be deemed to be an adoption of such laws or rules as the law
7
of the Hopi Tribe nor as a grant or cession of any right, power or
authority by the Hopi Tribe to the Federal Government.
6. The laws and rules, and cases interpreting such laws and rules, of the
State of Arizona. This provision shall not be deemed to be an adoption
of such laws or rules as the law of the Hopi Tribe nor as a grant or
cession of any right, power or authority by the Hopi Tribe to the State
of Arizona.
1.5.5. RULES OF CRIMINAL PROCEDURE. The Federal Rules of Criminal
Procedure and the Federal Rules of Appellate Procedure shall govern all
criminal proceedings before the Trial Court and Court of Appeals. In the event
that there is a conflict between the Federal Rules and procedures established
under Hopi law, the procedures established in Hopi law shall control. The Hopi
Rules of Civil and Criminal Procedure shall apply to any criminal appeal, if the
alleged criminal conduct at issue in such appeal occurred in whole or in part
prior to August 28, 2012. (Amended by H-037-2013)
1.5.6. RULES OF EVIDENCE. The Federal Rules of Evidence shall constitute
the rules of evidence, to the extent that they do not conflict with Hopi law and
tradition, in all proceedings before the Trial Courts.
1.5.7. COURTS OF RECORD.
A.
The Trial and Appellate Courts are hereby declared to be Courts of
Record and the Clerk thereof shall certify under seal as to the accuracy
and validity of the files and records of all proceedings before the Courts
of the Hopi Tribe.
B.
The Clerk of the Courts shall take, preserve and certify under seal to
the accuracy of a verbatim record of the proceedings before the Courts.
Such record may be taken and recorded by a stenographic, electronic,
mechanical, or other recording means of devices approved by the Chief
Judge of the Court as a trustworthy means of creating a permanent
verbatim record of all proceedings.
C.
The Chief Judge of the Trial Court and Chief Justice of the Appellate
Court shall, by rule, prescribe the length of time such verbatim
transcripts shall be preserved by the Clerk.
D.
It shall be a criminal offense, punishable by the penalties and under
the rules and procedures of Hopi law for the Clerk of the Trial Courts
to knowingly make or keep a false file, record or certificate or to alter,
amend or destroy any file, record or transcript without lawful
authority.
8
1.5.8. VICTIM’S RIGHTS. The Hopi Tribe recognizes that victims of crime,
including victims of Domestic Violence and Elderly Abuse, must be treated
with the utmost respect in all criminal investigations and court proceedings.
In addition to the rights enumerated in Rule 60 of the Federal Rules of Criminal
Procedure, victims shall have the following rights:
1.
To be treated with fairness and respect for the victim’s dignity and
privacy throughout the criminal justice process.
2.
To be reasonably protected from the defendant, or anyone acting on his
or her behalf, from intimidation, threat, harassment or abuse.
3.
To confer with the Tribal Prosecutor regarding the disposition of the
case.
4.
To refuse a personal interview by the defense attorney or anyone
representing the defendant regarding the charges alleged in the criminal
complaint.
5.
To be accompanied by a victim’s advocate, Village leader, family
member or friend, at all court proceedings.
6.
To be compensated for all reasonable economic losses sustained by the
victim caused by the defendant’s criminal conduct.
7.
To have personal property seized as evidence returned promptly.
8.
To be informed, upon request, when the defendant is released from
custody or has escaped.
1.5.9. WITNESS PROTECTION
1. A witness in a criminal proceeding shall have the right to be reasonably
protected from the defendant, or anyone acting on his or her behalf,
from intimidation, threat, harassment or abuse.
2. The Chief Prosecutor, with the concurrence of the Director of Public
Safety may request of any law enforcement agency to provide for the
security of a witness and their immediate family in official criminal
proceedings instituted or investigations pending against a person
alleged to have engaged in violation of the Hopi code; if testimony by
such witness might subject the witness or a member of his or her
immediate family to a danger or bodily injury and may continue so long
as such danger exists. (Amended by H-039-2020)
9
Chapter 6. OFFICERS OF THE TRIAL COURT
1.6.1
OFFICERS. Officers of the Trial Court include:
1.
Prosecutor;
2.
Public Defender;
3.
Clerk of the Court and any deputies, probation officers, referees, or
masters;
4.
Law enforcement officers, including all regularly employed police officers
of the Hopi Tribe, special officers, policemen, conservation officers, and
rangers;
5.
Attorneys and lay advocates who are members of the Bar of the Hopi
Tribe.
1.6.2 AUTHORITY OF PROSECUTOR APPOINTED BY TRIBE. In any and all
criminal proceedings in any and all Courts, the Hopi Tribe shall appoint a
person to act as prosecutor who shall have power and authority to sign, file,
and present any and all complaints, subpoenas, affidavits, motions, processes,
and papers of any kind and to appear before all Courts, Commissions, or
Tribunals in criminal proceedings.
1.6.3 PUBLIC DEFENDER.
A.
The Hopi Tribe shall establish the Office of Public Defender and appoint
a suitable person to hold that office.
B.
Any person who is admitted to practice law before any State Supreme
Court or U.S. District Court, and is in good standing, shall be qualified
for the office.
C.
The Public Defender shall be compensated upon a contractual basis, as
authorized by the Tribal Council and subject to negotiation and
execution by the Chairman.
D.
The Public Defender shall perform the following duties:
1. Upon order of the court, defend, advise, and counsel without expense
to the defendant, any person who is not financially able to employ
counsel in the following proceedings and circumstances:
a. Offenses triable in the Trial Court at all stages of the
proceedings, including the preliminary examination, but
only for those offenses defined under 3.4.1 of this Code as
an Offense, Serious Offense or Dangerous Offense;
b. Extradition hearings;
c. Sanity hearings only when appointed by the court;
d. Involuntary commitment hearings only when appointed by
10
the court;
e. Juvenile delinquency hearings only when appointed by the
court;
f. Appeals to the Court of Appeals.
2. Keep a record of all services rendered by the public defender in that
capacity and file with the Tribal Council an annual report of those
services.
3. By December 1 of each year, file with the Chief Judge and Tribal
Council an annual report on the average cost of defending a major
offense. For the purpose of this section, a major offense shall mean
an offense, serious offense or dangerous offense as defined in
Section 3.4.1 of this Code.
4. The Public Defender may, with the consent and at salaries authorized
by law, appoint those full-time and part-time deputies and assistants
necessary to conduct the affairs of the office. The appointments shall
be in writing and filed with the Tribal Council.
5. The Public Defender shall petition the court to withdraw as attorney
of record and the court may grant such petition, whenever private
counsel is employed either by the defendant or by any other person
to represent such defendant and such private counsel is accepted by
the defendant.
1.6.4 APPEARANCE OF ATTORNEYS.
A.
Attorneys, if qualified, may appear before the Courts in criminal cases.
B.
Qualification of Attorneys. Attorneys may become a member of the Bar
of the Courts, if they are admitted to practice before the Supreme
Court of the United States, a United States Circuit Court of Appeals,
U.S. District Court, or the Supreme Court of any state, and are in good
standing.
C.
Certification. Any attorney eligible under Section 1.6.4(B), who desires
to practice in the Courts shall obtain a certificate from the Court
authorizing his or her practice before the Courts each calendar year.
A certificate must be obtained prior to any appearance by the attorney
in Court. The annual fee shall be established by the Chief Judge at not
less than $100.
D.
Dignity & Ethics. Any applicant for a certificate to become a member
of the Bar of the Hopi Courts shall agree that he or she will conform to
the standards of conduct established by the Professionalism
Committee in the performance of his duties as an attorney before the
Courts.
11
E.
Contempt. In the event that an attorney is found guilty of contempt
before any Court or contempt outside the presence of any Court, the
judge may levy a penalty for the contempt not to exceed the sum of
Five hundred Dollars ($500.00), and if any attorney who fails to pay
the fine as provided by any judgment of any Court therefore, he shall
be disqualified to practice before the Courts.
F.
Attorney’s fees. Attorneys practicing before the Court may charge
reasonable fees.
1.6.5 LAY ADVOCATES. Lay advocates shall be permitted to obtain a
certificate to practice before the Courts in all civil matters and minor criminal
matters when the defendant has knowingly waived his right to an attorney.
For the purposes of this section, a minor criminal matter is an offense
punishable for less than a year. The provisions of Section 1.6.4 (A), (C)-(F)
shall also apply to the lay advocates. The Professionalism Committee and/or
Chief Judge shall establish qualifications for certification of lay advocates to
appear in cases before the Trial Court.
12
TITLE II
COURT PROCEDURES
Chapter 1. GENERAL PROVISIONS
2.1.1 SIGNATURE. Defined. The act of putting a person's name at the end of
an instrument to attest its validity. A signature may be written by hand,
printed, stamped, typewritten, or engraved and whatever mark, symbol, or
device one may choose to employ as representative of himself is sufficient.
2.1.2 WORDS USED IN PRESENT TENSE. Unless otherwise provided, words
used in this Code in the present tense include the future as well as the present.
Words used in the masculine include the feminine and the neuter, and plural
includes the singular and vice-versa. The term “writing” includes the printing.
The term “oath” includes affirmation.
2.1.3 SPECIAL PROVISIONS CONTROL GENERAL PROVISIONS. In construing
this Code, each general provision shall be controlled by any special provision
on the same subject if a conflict exists.
13
Chapter 2. COMMENCEMENT OF CRIMINAL PROCEEDINGS
2.2.1 COMPLAINT, DEFINED. A Complaint is a written charge presented by
the Prosecutor to the Trial Court judge having jurisdiction, that a person has
committed a specified offense in violation of Hopi Criminal Law.
2.2.2 CONTENTS OF COMPLAINT.
Each Complaint must contain:
1. The name of the jurisdiction where it is filed and the Trial Court within
which it is brought.
2. The names of the parties. If the names of all defendants are not known,
the complainant may add names as needed.
3. A statement signed by the complainant of the acts constituting the
offense, and the time and place of the commission of the offense, be as
near as may by ascertained, in ordinary and concise language.
2.2.3 FILING OF COMPLAINT. The Prosecutor shall file a complaint with the
Court and the Clerk shall mark thereon the date of filing same.
2.2.4. ASSIGNMENT OF CRIMINAL ACTIONS INVOLVING SERIOUS OR
DANGEROUS OFFENSES. Criminal Actions that include allegations of a
serious offense or dangerous offense, as defined in section 3.4.1. in this
Code, shall only be heard by the Chief Judge, Senior Associate Judge, or a
Pro-Tem Judge.
14
Chapter 3. ARREST, DELIVERY ON WARRANT, AND HOT PURSUIT
2.3.1 ARREST - DEFINED; PERSONS QUALIFIED TO MAKE; AID MAY BE
REQUIRED. Arrest is the taking of any Indian in custody and held to answer
for a Tribal offense. An arrest may be made by:
1. A duly authorized police officer under a warrant as provided in
Section 2.3.2 of this Code.
2. A duly authorized police officer without a warrant as provided in
Section 2.3.5 of this Code.
3. Any person must promptly aid an officer in the execution of an
arrest if the police officer commands his aid.
A police officer may detain a non-Indian for purposes of determining whether
a crime(s) has been committed and the appropriate jurisdiction to address
such crime(s).
2.3.2 WARRANT OF ARREST. A warrant of arrest is a written order signed by
a Trial Court judge commanding the arrest of an Indian person. The warrant
must specify the name of the person; or a description by which the person
can be identified with reasonable certainty, if the name of the person is not
known. It must also state the offense or offenses charged and the date it was
issued. A Warrant of Arrest shall not be valid outside the limits of the Hopi
Tribe’s jurisdiction as defined in Section 1.4.1 of this Code, but shall be subject
to extradition as agreed upon between the Tribe and the various states.
2.3.3 DIRECTION TO PEACE OFFICER; EXECUTION. The Warrant may be
directed to any enforcement officer as defined in Section 1.6.1 of this Code
and shall be executed by any qualified law officer to whom it may be delivered.
2.3.4 ARREST.
A.
EXECUTION OF WARRANT. The Warrant shall be executed by the arrest
of the person. The peace officer need not have the Warrant in his
possession at the time of the arrest; but must be satisfied that this is
the person identified in the warrant.
B.
WITHOUT A WARRANT. Any enforcement officer may, without a
Warrant, arrest an Indian person:
1. For an offense committed or attempted in his presence.
2. When he has probable or reasonable cause for believing the Indian
person arrested has committed an offense. He is justified in
making the arrest though it later determined that the offense had
not been committed by the party arrested. When an Indian person
is arrested without a warrant, the officer must inform him of his
authority and the cause of the arrest, except when he is in the
15
actual commission of an offense, or is pursued immediately after
the commission of an offense.
C.
NOTIFICATON OF RIGHTS. At the time of making the arrest, the
arresting officer must inform the defendant that he or she has the right
to remain silent; that anything he says may be used against him in
Court; that he may cease talking at any time he desires; and that he
has a right to counsel before answering any questions regarding an
alleged crime. If the defendant does not waive such rights, the officer
must not continue any interrogation.
2.3.5 BREAKING INTO DWELLING HOUSE OR OTHER STRUCTURE TO MAKE
ARREST OR TO PROTECT A POTENTIAL VICTIM OF A CRIME. Any enforcement
officer having authority to make an arrest may break open an outer or inner
door or window of a dwelling house or other structure for the purpose of
making an arrest, or where a reasonable person has reason to believe that a
person’s life or limb is in immediate danger.
2.3.6 PROMPT APPEARANCE OF DEFENDANT BEFORE A TRIAL COURT
JUDGE. An officer making an arrest shall take the defendant without undue
delay before a Trial Court judge for arraignment. When a defendant arrested
without a warrant is brought before the Court, a complaint shall be filed
without delay. The defendant arrested shall be arraigned at the next regularly
scheduled session of the Court. Any person brought before the Court at the
session immediately following the arrest shall be considered to have been
presented before the Court without undue delay.
2.3.7 RETURN OF WARRANT. Upon service of the Warrant of Arrest, or upon
failure to find and apprehend the accused, the officer to whom the Warrant is
directed shall endorse and return it to the Trial Court for filing.
2.3.8 EXTRADITION. The Chairman is hereby empowered to negotiate for the
extradition of persons accused of criminal offenses, both to and from the Hopi
Reservation, with any state, county, municipal jurisdiction or Indian Tribe, and
to enter into reciprocal agreements that are substantially in the form attached.
Such agreements shall be the law of the Tribe until the date or expiration
thereof or until rescinded by the Chairman or Tribal Council.
16
RECIPROCAL EXTRADITION AGREEMENT
This agreement, entered into this
day of
, between the Hopi Tribe and
, by and through their authorized representatives, is intended to
provide a practical, workable framework in which said jurisdictions can obtain the extradition,
for purposes of criminal prosecution, of persons violating the laws of either jurisdiction and
fleeing to or found in the territory of the other.
Section 1. Definitions
(1) “Executive Authority” means the Chairman of the Hopi Tribe, in the case of the Hopi Tribe,
and the
in the case of _
.
(2) “Territorial Jurisdiction” means all lands and property within the limits of the territorial
jurisdiction of either party hereto.
(3) “Criminal offense” means any act or failure to act which is defined by the law of the
requesting jurisdiction to be criminal, and in the case of the Hopi Tribe shall include any act
or failure to act made criminal by any code, ordinance or law of the Hopi Tribe, and in the
case of
, shall mean any act or failure to act which is declared to be, or punished
as if it were, a felony. “Criminal offense” shall include a sentence of imprisonment for a
criminal offense from which the accused person has fled or escaped before completing or
being released by lawful procedure.
(4) Requesting jurisdiction” means the jurisdiction which initiates a request for the other
jurisdiction to turn over a person accused of a criminal offense.
(5) “Responding jurisdiction” means the jurisdiction which receives a request to turn over a
person accused of a criminal offense.
(6) “Prosecuting authority” means the officer of either jurisdiction charged with the duty to
prosecute the criminal offense for which extradition is sought.
Section 2. Persons charged with criminal offense to be delivered upon demand.
Subject to the laws applicable to each party hereto, and except as otherwise provided in this
agreement, the executive authority of each jurisdiction which is a party hereto shall cause to
be arrested and delivered up to the executive authority of the requesting jurisdiction, any
person within the territorial jurisdiction of the responding jurisdiction accused of committing
a criminal offense within the territorial jurisdiction of the requesting jurisdiction, upon receipt
of a request for extradition as specified herein.
Section 3. Request for Extradition.
(1) The request for extradition shall be in writing and addressed from the executive authority
of the requesting jurisdiction to the executive authority of the responding jurisdiction, and
shall request the extradition of a person charged with committing a criminal offense in the
requesting jurisdiction and having thereafter fled from the requesting jurisdiction.
(2) The request for extradition must be accompanied by certified copies of the following
documents:
(a) The indictment, information, or criminal complaint, together with any
affidavits relating thereto, or, in the case of the failure to serve or complete a
sentence or imprisonment lawfully imposed, the judgment and sentence and
any affidavits or documents relating thereto plus a certificate of the executive
17
authority of the requesting jurisdiction that the person requested has escaped
from the confinement, or has otherwise unlawfully failed to complete same.
(b) A warrant of arrest, issued by the requesting jurisdiction.
(3) The indictment, information or criminal complaint, together with supporting affidavits,
must substantially charge the person requested with having committed a criminal offense
under the law of the requesting jurisdiction.
(4) The authenticity of the documents submitted and the validity and good faith of the request
for extradition must be certified to in the request by the executive authority of the requesting
jurisdiction.
Section 4. Procedure Upon Receipt of a Request for Extradition
The executive authority of the responding jurisdiction shall, within five (5) days after receipt
of a request for extradition, do one of the following:
(1) Forward the request, with his approval endorsed thereon, to a judge of his jurisdiction
empowered to issue warrants of arrest; or
(2) Return the request to the executive authority of the requesting jurisdiction with his
reasons for not approving the request endorsed thereon, provided however, that the
executive authority shall not inquire into the guilt or innocence of the accused as a condition
to granting or withholding approval.
Section 5. Arrest of Accused Person
(1) Upon receipt of a request for extradition with the approval of the executive authority of
the responding jurisdiction endorsed thereon, the judge of the responding jurisdiction shall
issue a warrant of arrest for the person named in the request, and deliver said warrant of
arrest to the law enforcement officers of the responding jurisdiction having authority to make
arrests.
(2) The warrant of arrest so issued shall substantially conform to the requirements for such
documents in the responding jurisdiction and shall recite the facts necessary to the validity of
its issuance.
(3) Such warrants of arrest shall authorize the arrest of the accused at any time or place
within the territorial jurisdiction of the responding jurisdiction in the manner provided for
other arrests in that jurisdiction, and the authority of the officers executing said warrant shall
be the same as when making other, arrests.
Section 6. Procedure upon Arrest
(1) As soon as practicable after the arrest of the accused, he shall be taken before the judge
issuing the warrant of arrest and, after confirming his identity, there he shall be advised or
the cause of the arrest, and, if he so desires, given an opportunity to obtain counsel.
(2) If the accused or his counsel desires to test the legality of the arrest, a hearing to
determine such issue shall be scheduled and held as soon as is practicable. Notice of such
hearing-shall be given to the prosecuting authority of the responding jurisdiction, and to the
agent of the requesting jurisdiction into whose custody the accused would otherwise be
delivered.
(3) No person arrested under this agreement shall be delivered up to the requesting
jurisdiction until he has either had a hearing to test the legality of his arrest, or has, in open
court, made an informed waiver of such hearing.
(4) Persons arrested pursuant to this agreement shall be incarcerated in the local jail of the
respective jurisdiction, as in the case of regular arrests.
18
(5) Any person arrested pursuant to this agreement shall be given the opportunity to make
bail in any case where his delivery to the requesting jurisdiction is not imminent. Such bail
shall be in amount sufficient to reasonably assure the appearance of the accused at a time
and place specified by the court. Forfeiture of bail and arrest for nonappearance, where
appropriate, may be made as in other cases.
Section 7. Procedure if Prosecution is pending in the Responding Jurisdiction
If a criminal prosecution has been instituted in the responding jurisdiction against the person
whose extradition is sought, the executive authority of the responding jurisdiction, in his
discretion, may either surrender the accused to the requesting jurisdiction or hold him until
he has been tried and discharged or convicted and punished in the responding jurisdiction.
Section 8. Manner of Initiating Requests far Extradition
The prosecuting authority of each jurisdiction shall have authority to initiate requests for
extradition, to administer the details thereof, and to designate officers to receive persons
extradited from the other jurisdiction.
Section 9. Prosecution in Requesting Jurisdiction
(1) A person extradited under this agreement shall be given the same rights and privileges
under the laws of the requesting jurisdiction as any other person accused of a criminal offense
by that jurisdiction.
(2) Criminal prosecution in the requesting jurisdiction shall not be limited to the criminal
offense specified in the request for extradition.
Section 10. Sovereignty
Nothing in this agreement or in the implementation hereof shall be deemed to be a grant,
cession or waiver of any of the sovereign governmental rights, powers, or jurisdiction of either
party hereto, including sovereign immunity.
Section 11. Duration of Agreement.
(1) This agreement shall become effective upon its execution by the executive authorities of
the parties hereto.
(2) This agreement shall remain in effect until canceled by notification from the executive
authority of either jurisdiction to the other.
Done at
on the day and year first above written.
HOPI TRIBE
By:
By:
Chairman
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2.3.9 HOT PURSUIT DEFINED. For the purpose of this Code, the term “hot
pursuit” shall mean the act of chasing or following a person by a law
enforcement officer who has reason to believe the person has committed a
violation of the laws of the Hopi Tribe, beyond the boundaries of the Trial
Court’s jurisdiction with the intent to arrest the person for such violation. The
term shall include and be limited to immediate and uninterrupted chase. Any
law enforcement officer as defined in this Code shall have the authority to
engage in hot pursuit to apprehend and return to this jurisdiction, incarcerate
and charge such person with a violation of the Hopi Criminal Code.
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Chapter 4 . SEARCH WARRANT
2.4.1 SEARCH WARRANT DEFINED. A search warrant is a written Order signed
by a Trial Court judge, directing any enforcement officer, as designated by
Section 1.6.1(d) of this Code, to search for items or articles designated in the
warrant and bring them before the Trial Court.
2.4.2 ISSUANCE & CONTENTS. A search warrant shall not be issued except
upon probable cause, supported by oath or affirmation, naming or describing
with particularity the person, the items or articles to be seized, the place to
be searched, and the reason or reasons for its issuance.
2.4.3 EXECUTION OF WARRANT; OFFICERS AUTHORIZED; AUTHORITY TO
BREAK IN STRUCTURE. A search warrant may be served by any duly
authorized enforcement officer during any time of the day or night unless the
Trial Court finds sufficient reason to limit the time in which the warrant may
be served and so endorses the warrant. The officer may break open any
building, structure, or container.
2.4.4 TIME LIMIT; EXECUTION OF WARRANT; VOID AT EXPIRATION. A search
warrant must be executed and returned to the Trial Court judge by whom it
was issued within ten (10) days. The warrant is void after the expiration of
that time, unless extended at the discretion of the Trial Court, and so
endorsed.
2.4.5 INVENTORY. The officer must immediately return the warrant to the
Trial Court judge, as set forth in Section 2.4.4 of this Code, together with a
complete inventory of the items or articles taken. The inventory must be made
before witnesses or in the presence of the person from whose possession it
was taken. The Trial Court shall deliver a copy of the inventory to the person
from whose possession the items or articles were taken.
2.4.6 SEARCH & SEIZURE INCIDENTAL TO ARREST. All reasonable searches
and seizures that are incidental to a legal arrest are valid.
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Chapter 5. BAIL
2.5.1 BAIL DEFINED. Bail is setting at liberty a person arrested or imprisoned
on security being taken for his appearance. His sureties shall be regarded as
custodians of the principal’s person. This provision is applicable only to
offenses over which the Tribe has jurisdiction.
2.5.2 BAILABLE OFFENSES. All defendants, as a matter of right, are bailable
before conviction, by sufficient cash or surety bail bond, and after conviction
if an appeal be pending. If bail is not met, the defendant shall be incarcerated
until his case is heard.
2.5.3 BAIL SET; MAXIMUM AMOUNT. Bail shall be set by the judge upon the
showing of probable cause by the prosecutor or complainant. Bail shall be filed
in such amount and in such form as, in the judgment of the Court, will insure
the presence of the defendant in Court at the time trial, having due regard for
the nature and circumstance of the offense charged, the character and
reputation of the defendant and the previous criminal record of the defendant.
In no case shall the bail exceed five times the maximum cash penalty for each
offense for which the defendant has been charged.
2.5.4 TAKING OF BAIL DEFINED; ENTERED BY CLERK. The Trial Court shall
accept sufficient cash or surety bond for the appearance of the defendant.
Upon filing, the Clerk shall enter in the register of actions the date and
amounts of the bond or name or names of the surety or sureties thereon and
the amount of the bond.
2.5.5 DISCHARGE OF DEFENDANT; BAIL FURNISHED; ORDER. If the
defendant is in custody, upon the execution of the requisite recognizance or
bail bond to the Tribe, the Court must issue a written order for the defendant’s
discharge and upon the delivery of such order to the proper officer the
defendant must be discharged.
2.5.6 INCREASE OR DECEASE OF BAIL BOND; COMMITMENT ON
DEFAULT. When good cause has been shown to the Trial Court that a person
previously admitted to bail on any such charge is about to abscond, has
violated his conditions of release, has been charged with a subsequent
offense, the Court may reconsider the amount of bail and may remand him to
the custody of the jail pending a bail hearing. The Court may also, for good
cause, reduce the amount of the bail after a hearing.
2.5.7 ARREST OF DEFENDANT BY SURETY. At any time before the defendant
is required to appear and at any place within the Territory, for the purpose of
surrendering the defendant, the surety may himself arrest the defendant, or,
by written authority endorsed on a certified copy of the bond, may empower
any person of suitable age and discretion to do so and cause the delivery of
22
the defendant before the Court forthwith, whereupon said bond shall be
released.
2.5.8 FORFEITURE OF BAIL. If the defendant fails to appear for trial or when
his personal appearance in Court is lawfully required, the Court may direct an
entry of such failure to be made in the record, and the surety bond, or the
money deposited instead of the bond, may be forfeited without further
proceedings and the Court will thereafter issue a warrant for the arrest of the
defendant.
2.5.9 RETURN OF CASH OR SURETY BOND. Any security given by surety or
the defendant must be returned upon the return of a not guilty verdict or upon
the execution of the sentence.
2.5.10 RELEASE. At arraignment, the Court, in its discretion, may release a
defendant upon the defendant’s own recognizance (OR). In determining
whether to grant or release or set bond, the Court may consider the following
factors:
1. Whether the defendant accurately identified himself to the Court and
Law Enforcement, or otherwise used a false name or date of birth;
2. The nature and circumstances of the current charge, including whether
the offense allegedly involved the use of force or violence, the risk of
danger to any person or the community if the defendant is released on
his own recognizance (OR);
3. The defendant’s prior criminal history, if any, and whether, at the time
of the current arrest or offense, the defendant was on probation, parole,
or on other release pending trial, sentencing, or appeal for an offense;
4. The nature and extent of defendant’s family relationships and ties to the
Hopi community;
5. Defendant’s employment status and work history.
6. The potential danger to the person, whether children or elders are
present in a home or the community of the person is alleged to have
used or possessed or distributed or manufactured a controlled
substance. (Amended by H-039-2020)
2.5.11 BAIL FOR JUVENILE PERSONS. No bail shall be required of any person
who has not reached his sixteenth birthday. Custody and detention of minors
under the age of sixteen shall be governed by Chapter IV of the Hopi Children’s
Code.
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Chapter 6. ARRAIGNMENT
2.6.1 ARRAIGNMENT DEFINED. Arraignment consists of reading by the Court
of the complaint to the defendant, and delivering to him a true copy thereof
and of the endorsements thereon, and asking him whether he pleads guilty or
not guilty to the offense charged in the complaint.
2.6.2 PROCEDURE AT ARRAIGNMENT. Arraignment shall be conducted in
open Court, and shall consist of the following:
1. Reading the complaint to the accused.
2. Stating to him the substance of the charges and the language of the
law establishing the offense and fixing the penalty.
3. Advising him of his rights to counsel at his own expense, if he so
desires, or at no cost if he so qualifies.
4. Calling on him to plead to the charges.
2.6.3 PLEAS. The defendant may plead, “guilty,” “not guilty,” “not guilty by
reason of former jeopardy,” or “not guilty by reason of insanity.” If the
defendant wishes to plead “not guilty,” he may demand a jury trial. After a
plea of “not guilty,” the Court shall set a date for trial which shall allow
sufficient time for defendant to prepare his defense. If the defendant refuses
to plead, a plea of “not guilty” will be entered for him by the Court. If the
defendant wishes to plead “guilty,” he may be sentenced immediately or
within a reasonable time thereafter. A plea made to the Court must be made
in open court with the defendant himself in Court. When the defendant pleads
a former jeopardy and shall have been acquitted or convicted upon complaint,
the conviction or acquittal is a bar to another complaint for the offense charged
in the former, or for an attempt to commit the same, or an offense necessarily
included therein of which he might have been convicted under that complaint.
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Chapter 7. PRE-TRIAL MOTIONS
2.7.1 MOTIONS DEFINED. A motion is the formal mode in which a party
submits a proposed measure or resolution for the consideration and action of
the Court.
2.7.2 MOTION TO SET ASIDE THE COMPLAINT. The complaint must be set
aside by the Tribal Court upon the defendant’s motion, prior to a plea, in the
following cases:
1. Where it is found not to comply with the requirements of Section
2.2.2 of this Code.
2. That the defendant has been charged or committed without
reasonable or probable cause.
3. When the Court has determined that it has no jurisdiction over the
person or the offense.
2.7.3 ORDER SETTING ASIDE COMPLAINT NOT BAR TO SUBSEQUENT
PROSECUTION. An order to set aside the complaint is no bar to future
prosecution for the same offense, except when the complaint was set aside
for lack of jurisdiction.
2.7.4 MOTION WAIVED BY FAILURE TO MOVE TO SET ASIDE COMPLAINT. If
the motion to set aside the complaint is not made before the defendant’s plea,
the defendant is precluded from afterwards making the motion, except for a
motion of lack of jurisdiction.
2.7.5 PRE-TRIAL MOTIONS HEARD AT TIME MADE, EXCEPT GOOD CAUSE
POSTPONEMENT. All pre-trial motions must be ruled upon at the time they are
made unless for good cause the Court postpones the hearing to another time.
2.7.6 MOTION FOR A BILL OF PARTICULARS. The defendant may make a
motion for a bill of particulars in order to obtain facts other than those
specified in the complaint.
2.7.7 MOTION TO SUPPRESS EVIDENCE. A defendant has the right to file with
the Trial Court a motion to suppress evidence which he contends has been
obtained in an unlawful manner. The evidence in question may be a tangible
item or an intangible item. If the Court is satisfied that the evidence has been
unlawfully obtained, it shall order the evidence suppressed. If the Court
decides that the evidence was lawfully obtained, it may be used against the
defendant.
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Chapter 8. TRIAL, GENERAL PROVISIONS
2.8.1 CRIMINAL ACTION DEFINED. A criminal action is prosecuted by the
Tribe as a party against a person for punishment for offenses charged in the
complaint.
2.8.2 IRREGULARITIES, MISTAKES OMISSIONS HAVE NO LEGAL EFFECT
UNLESS ACTUALLY PREJUDICIAL. Neither a departure from the form or mode
prescribed in this chapter in respect to any pleading or proceedings nor an
error or mistake therein renders it invalid, unless it has prejudiced the
defendant.
2.8.3 SUMMONING JURORS & WITNESSES. The Trial Court shall have the
power to issue summons to witnesses and jurors. The summons must contain
the reason for summoning the person and the number of days the person will
be required to be present. If the juror or witness is summoned and appears
in court as required, he shall receive a sum for each day that he is required to
attend as a juror or witness, to be set aside by the Chief Judge. Any fees paid
to jurors or witnesses shall be taxed as costs against the defendant, if found
guilty. Juror and witness fees shall be paid by the Tribe.
2.8.4 TRIAL BY JURY OR BY THE COURT. Cases shall be tried by the Court
unless the defendant shall file with the Clerk of the Court a written request for
a jury trial not less than ten (10) days after his arraignment. The jury shall
consist of six (6) persons and shall be selected randomly from the Hopi
membership list.
2.8.5 RIGHTS OF ACCUSED. In all criminal prosecutions, the accused person
shall have the right to defend himself in person or, at his own expense, by
counsel; to demand the nature and cause of the accusation against him face
to face; to have compulsory process served for obtaining witnesses in his
behalf; and to a speedy public trial by an impartial jury. No person shall be
compelled in any criminal case to give evidence against himself or be twice
put in jeopardy for the same offense; upon request, the accused or a juror
shall be entitled to an interpreter.
2.8.6 PRESENCE OF THE DEFENDANT. The defendant in a criminal case has
the right to be present in Court at every stage of the proceedings, including
empanelling of the jury and the return of the verdict, where trial is by jury,
and at the imposition of the sentence.
2.8.7 WAIVER OF RIGHTS.
A.
Notwithstanding the rights enumerated in Section 2.8.6, a defendant
who is properly notified of the date of the trial and voluntarily absent
shall be deemed to have waived the right to be present at trial and at
the return of the verdict. Therefore the trial to a jury or the Court may
proceed in absentia and the verdict recorded by the Clerk of the Court.
If the jury or Judge renders a guilty verdict, a bench warrant shall be
26
issued for the arrest of the defendant and he shall be sentenced within
30 days after he is apprehended of voluntarily appears on the warrant.
B.
Rule 43. Of the Federal Rules of Criminal Procedure is hereby
superseded and shall be replaced with the following:
RULE 43. DEFENDANT’S PRESENCE
(a) When Required
Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant
must be present at:
(1) the initial appearance, the initial arraignment, and the plea;
(2) every trial stage, including jury impanelment and the return
of the verdict; and
(3) sentencing
(b) When not Required. A defendant need not be present under
any of the following circumstances:
(1) Organizational Defendant.
The defendant is an organization represented by counsel who is
present.
(2) Minor or Petty Offense.
The offense is punishable by fine or by imprisonment for not more
than six months, or both, and with the defendant’ written consent,
the court permits arraignment, plea, trial, and sentencing to occur
in the defendant’s absence.
(3) Conference or Hearing on a Legal Question.
The proceeding involves only a conference or hearing on a
question of law.
(4) Sentence Correction
The proceeding involves the correction or reduction of sentence
under Rule 35 or 18 U.S.C. § 3582 (c).
(5) Waiving Presence
A defendant waives the right to be present under the following
circumstances:
(i) When the defendant is voluntarily absent, if the court has
informed the defendant of an obligation to be present and
remain during trial;
(ii) When the court warns the defendant that it will remove
the defendant from the courtroom for disruptive behavior,
but the defendant persists in conduct that justifies removal
from the courtroom.
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2.8.8 CALENDAR; CLERK OF COURT’S DUTIES. The Clerk of the Court must
keep a calendar of all criminal actions pending in the Court, listing them
according to the date of the filing of the complaint, specifying the offense
charged and whether the defendant is in custody or on bail.
2.8.9 SETTING CASES FOR TRIAL; MAXIMUM TIME; CONTINUANCES; PROOF
REQUIRED; LENGTH; PRECEDENCE OF CRIMINAL CASES. The Court shall set
all criminal cases for trial as soon as possible after the date of entry of the
plea of the defendant. No continuances of the trial shall be granted except
upon affirmative proof in open court, and upon reasonable notice, that the
ends of justice require a continuance. The defendant shall be entitled to a
reasonable continuance, but such continuance shall not exceed thirty (30)
days, unless for good cause. Criminal cases shall be given precedence over
civil cases.
2.8.10 DEATH, ILLNESS; SUBSTITUTIONS AUTHORITY OF SUBSTITUTE
JUDGE. After the commencement of the trial of a criminal action or
proceeding, if the judge presiding at such trial shall die, become ill, or for any
other reason be unable to proceed with and finish the trial, another judge may
proceed with and finish the trial. If no other judge is available, then the Clerk
of that Court shall adjourn the Court until such time as by stipulation in writing
between the parties to the proceeding, a judge shall be agreed upon by them
and shall arrive to complete the trial. The judge authorized by this section
shall proceed with and complete the trial and has the same power, authority,
and jurisdiction as if the trial had originally commenced before him.
28
Chapter 9. FORMATION OF THE JURY.
2.9.1 QUALIFICATIONS OF JURORS. The basic qualifications of a juror shall
be: Any person who is a duly enrolled member of the Hopi Tribe; who has
reached his twenty-first (21st) birthday; and has been a resident of the Hopi
Reservation for ninety (90) days; and who is not under any legal disability;
and who has not been convicted of a felony or major offense in any
jurisdiction.
2.9.2 JURY PANEL EXCUSED. It is within the Trial Court’s discretion whether
a jury summoned for the trial prior to a continuation or postponement shall
remain or a new jury panel is selected.
2.9.3 CHALLENGES DEFINED. A challenge is an objection made to the trial
jurors and can be made either against the entire panel, or individual jurors.
2.9.4 PANEL DEFINED. A panel is a list of jurors returned by the board of jury
selectors.
2.9.5 CHALLENGE TO PANEL DEFINED; WHO MAY CHALLENGE: REASON FOR
CHALLENGE. A challenge to the panel is a written objection made regarding
all the jurors returned, and may be made by either party. The panel may be
challenged when there is an error in the procedure used in summoning the
jurors, or bias can be shown.
2.9.6 CHALLENGES TO INDIVIDUAL JURORS. A challenge to an individual
juror is an objection which may be taken orally, and is either for cause or
peremptory.
2.9.7 ORDER FOR EXERCISING CHALLENGES FOR CAUSE; PEREMPTORY AND
TIME. All challenges for cause must be taken first by the defendant and then
by the Tribe. Peremptory challenges may be taken by either party at any time
during the seating of the jury and before the jury is sworn.
2.9.8 CHALLENGE FOR CAUSE. A challenge for cause may be made by the
Tribe or by the defendant, and must specify the facts constituting the causes
thereof. It may be made for any of the following causes:
1. Having served as a juror in a civil action brought against the
defendant for the act charged as an offense.
2. Being a party adverse to the defendant in a civil action, or having
complained against or been accused by him in a criminal action.
3. Having formed or expressed an opinion as to the guilt or innocence
of the defendant based on information the juror has learned, whether
true or false, concerning the defendant’s alleged criminal conduct.
4. A relationship between the juror and the defendant that in the opinion
of the judge would cause the juror to be unable to render an impartial
29
decision. Clan membership alone is not sufficient cause to render a juror
unable to render an impartial decision.
2.9.9 FAILURE TO CHALLENGE FOR CAUSE. Failure to challenge for cause
shall constitute a waiver of the basis for challenge.
2.9.10 JURY SELECTION. The Chief Judge, in cooperation with the Clerk of
the Court, and the Director of Enrollment Department of the Tribe, will
establish rules regarding Jury Selection.
2.9.11 PEREMPTORY CHALLENGE; PARTIES WHO MAY TAKE; FORM
DEFINITION. A peremptory challenge can be taken by either party and may
be oral. It is an objection to a juror for which no reason need be given, but
upon which the Court may exclude him.
2.9.12 PEREMPTORY CHALLENGE; NUMBER JOINT DEFENDANTS. The
defendant is entitled to two (2) and the Tribe to two (2) peremptory
challenges. If two or more defendants are jointly tried for any public offense,
the Tribe and the defendants shall be entitled to two (2) peremptory
challenges and on the part of the defendants must be exercised jointly.
2.9.13 VACANCY FILLED. After each challenge, sustained for cause or made
peremptorily, another juror shall be called, may be challenged for cause, and
shall be subject to peremptory challenge.
2.9.14 JURY OATH. When the jury has been selected, the judge shall
administer to the jurors the following oath:
“You and each of you do solemnly swear or affirm that you will well and
truly try the issues relative to the cause now on trial according to the
law and the evidence under the penalty of Perjury.”
2.9.15 CONTINUANCE. If a jury trial is continued, the jury shall then be
notified of the new date for trial and no further notice to them of such date is
required. The penalty for failure to appear at the time to which the trial is
continued is contempt of court.
2.9.16 JURY DUTY EXEMPTION. The following persons shall be exempt from
jury service:
1. Members of the Tribal and Federal Police Departments and Rangers.
2. Appointed and elected officials of the executive, legislative and
judicial branches of the government of the Hopi Tribe, as follows:
a. Tribal Council Representatives;
b. Chairman;
c. Vice Chairman;
d. Secretary;
30
e. Treasurer;
f. Chief Judge, Senior Associate Judge, Associate Judges and
Appellate Court Judges; and
3. Hopi Elders age 70 and over may file for a permanent exemption
from Jury Duty.
31
Chapter 10. TRIAL PROCEDURE.
2.10.1 ORDER OF PROCEDURE. The jury having been selected and sworn, the
trial shall proceed as follows:
1. The Clerk of the Trial Court judge must read the complaint, and state
the plea of the defendant to the jury.
2. Opening statements shall be given by the Tribe followed by the
defendant and his counsel.
3. The Tribe must open the case and offer evidence in support of the
charge. The defendant or his counsel shall have the right to crossexamine any witness called to the stand by the Tribe.
4. The defendant or his counsel may than open the defense and offer
evidence in support thereof. The Tribe shall have the right to crossexamine any witness called to the stand by the defendant or his counsel.
5. The parties may then respectively offer rebutting testimony only,
unless the Court, in furtherance of justice, permits them to offer
evidence upon their original case.
6. When the evidence is concluded, the Tribe and the defendant or his
counsel may argue the case to the Court and jury, the Tribe opening the
argument and having the right to close same.
7. Upon the conclusion of the arguments, the Court shall charge the jury
orally or in writing, stating the law of the case. However, at the
beginning of the trial or from time to time during the trial and without
any request from either party, the judge may give the jury such
instructions on the law applicable to the case as he may deem necessary
for their guidance on hearing the case.
2.10.2 PRESUMPTION OF INNOCENCE; EFFECT: REASONABLE DOUBT;
DEFENDANT’S REFUSAL TO TESTIFY; DEFENDANT’S WAIVER OF RIGHT TO BE
PRESENT. A defendant in a criminal action need not testify and is presumed
to be innocent until the contrary is proven. The effect of this presumption is
only to place upon the Tribe the burden of proving him guilty beyond a
reasonable doubt. The defendant’s failure to testify on his own behalf shall in
no way be construed against him nor commented upon by the Tribe. When a
defendant has waived his right to be present at trial, the Court, in its
discretion, may allow the Tribe to comment upon the defendant’s absence and
waiver.
2.10.3 JOINT DEFENDANTS TRIED JOINTLY; COURT MAY DIRECT. SEPARATE
TRIALS. When two or more defendants are jointly charged with an offense,
they shall be prosecuted jointly, provided that the Court may, in its discretion,
on application duly made prior to trial, direct that separate trials be held.
32
2.10.4 INTERPRETER. In the event that any party or witness or juror requests
that an interpreter be present during the trial, the Court shall appoint an
interpreter from a list supplied by the Tribal Council, who shall be paid at a
rate fixed by the Court, and such sum shall be taxed as costs in the case.
2.10.5 VIEW OF THE PREMISES BY JURY. It is within the Court’s discretion
to allow the jury to view the place in which the offense is charged to have
been committed, or in which any other material fact occurred. The Court may
also place the jury in the custody of the appropriate officials to bring them to
the appropriate place, which shall be shown them by a person appointed by
the Court.
2.10.6 DISCHARGE OF JUROR FOR ILLNESS OR
DISABILITY;
NEW
TRIAL. Before the jury has returned its verdict to the Court, if a juror becomes
sick, or upon other good cause shown to the Court is found to be unable to
perform his duty, the Court may order him to be discharged. When a juror is
discharged for any of the above reasons, the Court may, upon stipulation,
proceed in the absence of said juror. In the absence of such stipulation, the
jury shall be discharged and a new jury shall be empanelled to hear the case.
2.10.7 LAW QUESTIONS FOR COURT AND FACT QUESTIONS FOR
JURY. Questions of law are to be decided by the Court; questions of fact by
the jury.
2.10.8 INSTRUCTIONS TO JURY. At the close of evidence or at such time
during the trial as the judge directs, counsel for each party may file with the
judge written instructions on the law which the party requests the judge to
deliver to the jury. At the same time, copies of such requests shall be furnished
to opposing counsel. The judge shall inform counsel of his proposed action
upon each request prior to the arguments to the jury, but the judge shall
deliver his instructions to the jury after arguments are completed. No party
may assign as error any portion of the judge’s charge or omission therefrom
unless he makes his objection before the jury retires to consider its verdict.
Objections must be given out of the hearing of the jury.
2.10.9 POLL OF JURY BEFORE RECORDING VERDICT; EITHER PARTY
AUTHORIZED; DISSENTING JUROR FURTHER DELIBERATION; DISMISSAL OF
JURY. On the request of either party, when a verdict is rendered but before
it is recorded, the jury may be polled on the request of either party or the
Court. Each juror must be asked whether it is his verdict. If any juror answers
in the negative, the jury must be sent out for further deliberation. If upon
returning after further deliberation, the jury is polled again and a juror
answers that the verdict is not his own, then the judge shall dismiss the jury
and a new trial will be order.
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2.10.10 DIRECTION OF VERDICT OF ACQUITTAL. At any time after the
evidence on either side is closed, the Court may, upon motion of the defendant
or upon its own motion, direct the jury to return a verdict of acquittal; and in
the event of the failure of the jury to return such a verdict of acquittal, the
Court may refuse to receive any other verdict and may discharge the jury and
enter a judgment of acquittal. The denial of the motion may be reviewed upon
appeal to the Appellate Court of the Hopi Tribe by the defendant.
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Chapter 11. SUBMISSION TO THE JURY & VERDICT
2.11.1 PAPERS TAKEN BY JURY. Upon retiring for deliberation, the jury may
take with it all instructions, exhibits, and papers that have been received in
evidence. Also any notes of the testimony taken in the trial by the jurors may
be taken.
2.11.2 INFORMED ON ANY POINT OF LAW. After the jury has retired for
deliberation, if there be any disagreement as to any part of the testimony or
if it desires to be informed on any point of law arising in the case, it must
require the officer to conduct it into Court; and upon its being brought in, the
information required may be given at the discretion of the Trial Court.
2.11.3 JURY KEPT TOGETHER. The jury shall be under the charge of the bailiff
or other officer appointed by the Court. The jury must be kept together after
the cause is submitted to them by the Clerk of the Court until they have agreed
upon and rendered a verdict, unless, for good cause, the judge sooner
discharges them.
2.11.4 VERDICT. The jury must render a general verdict of “guilty” or “not
guilty” which imports a conviction or acquittal on every material allegation in
the complaint. The verdict in all criminal actions must be unanimous.
2.11.5 HUNG JURY. In the event the jury is unable to agree upon a verdict,
the Judge shall dismiss the jury and order a new trial.
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Chapter 12. JUDGMENT
2.12.1 TIME FOR SENTENCING FOLLOWING CONVICTION. Upon a plea of
guilty or a verdict of guilty, the Court shall fix a time for sentencing, which
must be within a reasonable time after the verdict is rendered. Prior to
judgment, the Court may request a presentence investigation to be conducted
by the probation department. All presentence reports shall be filed with the
Court.
2.12.2 SENTENCING: IMPRISONMENT. When sentence of imprisonment is
entered, a signed copy thereof must be delivered to the law enforcement
officer as defined in this Code, or other officer.
2.12.3 PRESENCE OF DEFENDANT. When judgment is pronounced, the
defendant must be personally present.
2.12.4 SUSPENSION OF SENTENCE. The Court may, on such terms and
conditions as the Court may impose, suspend the imposition of sentence and
release a convicted person on probation. The probation term shall not exceed
the maximum term allowed under the statute violated by the defendant.
2.12.5 COMMUTATION OF SENTENCE. If the Court is satisfied that justice will
best be served by reducing a sentence, the Court may, at any time after onehalf of the sentence has been served, commute to a lesser period any sentence
imposed upon a person, upon proof that during the period of confinement the
person served without misconduct and/or satisfactorily performed community
service pursuant to a 2 for 1 program administered by the jail or detention
facility.
2.12.6 EXPUNGEMENT. SETTING ASIDE JUDGMENT OF CONVICTION.
A. Every person convicted of a criminal offense, on fulfillment of the
conditions of probation or sentence and discharge of the court, may
apply to the judge, to have the judgment of guilt set aside. The
convicted person shall be informed of this right at the time of discharge.
B. The application to set aside the judgment may be made by the convicted
person or by the convicted person’s attorney or probation officer
authorized in writing.
C. If the judge grants the application, the judge shall set aside the
judgment of guilt, dismiss the accusations or information and order that
the person be released from all penalties and disabilities resulting from
the conviction.
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Chapter 13. PROBATION
2.13.1 CONDITION OF PROBATION. The Court may release on probation a
convicted person on such terms and conditions as are just and appropriate,
taking into consideration the prior criminal record of the defendant, his
background, character, financial condition, family obligation, and any other
pertinent circumstances.
2.13.2 VIOLATION OF CONDITIONS OF PROBATION. Any person who violated
the terms and conditions of his probation may be required to serve an
additional jail sentence as a condition of continuing the person on probation
or the Court may terminate probation and order the defendant to serve a jail
term of up to one year, with no credit for time served.
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Chapter 14. NEW TRIAL
2.14.1 NEW TRIAL - Defined. A new trial is a retrial of the criminal charges in
the same Court before another jury.
2.14.2 APPLICATION. Application for a new trial may be made only by the
defendant or his attorney and must be made before the completion of the
sentence. Application must be made to the Court before which the case was
tried.
2.14.3 GROUNDS. The Court, on application from the defendant or on its own
motion, may grant a new trial based on the following cause or causes:
1. When proper evidence has been presented that the jury, has
received any evidence, paper, or document out of Court not authorized
by the Court.
2. When the verdict has been decided by lot or by means other than a
fair expression of opinion on the part of all the jurors.
3. When the Trial Court, has refused to instruct the jury properly as to
law.
4. When any other cause the defendant has not received a fair and
impartial trial.
2.14.4 EFFECT OF A NEW TRIAL. The granting of a new trial places the parties
in the same position as if no trial has been held; all testimony must be
reproduced and the former verdict cannot be used or referred to either in the
evidence or in argument.
2.14.5 STATUS OF THE ACCUSED PENDING NEW TRIAL. Pending a new trial,
the accused shall be entitled to bail the same as before the trial.
2.14.6 STAY OF EXECUTION PENDING APPEAL. If the defendant appeals, the
Court, in its discretion, may stay a sentence of imprisonment, fine, or
probation. The Court may set the terms of any stay.
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Chapter 15. CONTEMPT OF COURT
2.15.1 REASONS FOR CHARGE. A judge may punish as for contempt persons
guilty of the following acts:
1. Disorderly, contemptuous, or insolent behavior toward the judge.
2. Disobedience to a subpoena, duly served, or refusing to be sworn or
to answer as a witness.
3. Disobedience or resistance to the carrying out of a lawful order made
or issued by the judge.
4. Rescuing or interfering with any person or property in the custody of
an enforcement officer acting under an order of the Court or process
of the Court.
5. Failure to appear for jury duty, without justifiable cause, when
properly notified.
2.15.2 CONTEMPT COMMITTED IN PRESENCE OF JUDGE. When contempt is
committed in the immediate view and the presence of the judge, it may be
punished summarily. The judge must make an order reciting the facts as they
occurred, and that the person proceeded against is guilty of contempt, and
that he be punished as therein prescribed.
2.15.3 CONTEMPT COMMITTED NOT IN PRESENCE OF JUDGE. When the
contempt is not committed in the immediate view and presence of the judge,
a Warrant of Arrest may be issued by such judge and the person so guilty may
be arrested and brought before the judge. The judge must give the arrested
person an opportunity to present his defense. The judge may then discharge
him or find him guilty of contempt.
2.15.4 PUNISHMENT. A judge may punish for contempt by fine or
imprisonment, or both; such fine not to exceed One Hundred Dollars
($100.00) or imprisonment not to exceed forty-five (45) days plus Court costs.
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Chapter 16. RECOGNITION AND ENFORCEMENT OF FOREIGN COURT
JUDGMENTS.
2.16.1 DEFINITION OF TERMS. When used in this Chapter, unless the content
otherwise indicates:
1. "Foreign Court" means any court other than the Trial or Appellate Court
of Hopi Tribe, including federal, state, tribal or courts of a foreign
country.
2. "Foreign Judgment" means any final judgment, decree, or order by any
Foreign Court, regardless of whether the judgment is for money,
injunctive, declaratory, or any other relief.
3. "Judgment Creditor and Judgment Holder" are synonymous and mean
one who has a judgment rendered in his or her favor.
4. "Judgment Debtor" means the party against whom a judgment has been
rendered.
5. "Rendering Jurisdiction" means the jurisdiction in which the foreign
judgment was entered.
2.16.2 RECOGNITION OF FOREIGN JUDGMENTS. The judgments, decrees,
orders, warrants, subpoenas, records and other judicial acts or a foreign court
are recognized and have the same effect and are subject to the same
procedures, defenses and proceedings as judgments, decrees, orders,
warrants, subpoenas, records and other judicial acts of the Trial Court, subject
to the provisions of this rule.
1.
2.
3.
The recognition described in this rule applies only if the foreign
court has enacted an ordinance, court rule or other binding
measure that obligates the foreign court to enforce the
judgments, decrees, orders, warrants, subpoenas, records and
other judicial acts of the Hopi Courts.
The person seeking recognition or enforcement of a foreign
judgment complies with the conditions and procedures set forth
in 2.16.3.
A judgment decree, order, warrant, subpoena, record or other
judicial of a foreign court that complies with the above conditions
described in 2.16.2(A) is presumed to be valid. To overcome this
presumption, an objecting party must demonstrate that:
a.
The foreign court lacked personal or subject matter
jurisdiction; or
b.
The judgment, decree, order, warrant, subpoena, record or
other judicial acts of the foreign court
i.
was obtained by fraud, duress or coercion;
ii.
was obtained without fair notice or a fair hearing;
iii.
is repugnant to the public policy of the Tribe; or
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iv.
4.
is not final under the laws and procedures of the
foreign court.
This rule does not apply to judgments or orders that federal law
requires be given full faith and credit.
2.16.3 PROCEDURES FOR RECOGNITION OR ENFORCEMENT OF FOREIGN
JUDGMENTS.
A.
Application. In accordance with the foreign judgment recognition
provisions set forth in 2.16.2, a foreign judgment that is final and
conclusive is enforceable in the Trial Court pursuant to the following
procedure.
B.
Registration of Foreign Judgment. A person seeking enforcement of a
foreign judgment shall file:
1.
A copy of the foreign judgment, which has been authenticated by
the clerk or registrar of the foreign court in the following manner:
a.
b.
2.
The clerk or registrar of the foreign court must attest in
writing that he or she:
i.
Is the clerk or registrar of the foreign court;
ii.
Is the custodian of the records of the foreign court;
and
iii.
Has compared an attached copy of the foreign
judgment from the case with the original(s) on file and
of record in the foreign court, and has found the copy
of the foreign judgment to be a true copy of the whole
of the original(s).
Upon completing the written attestation above, the clerk or
registrar of the foreign court must:
i.
Sign and date the attestation;
ii.
Affix the seal of the foreign court to the attestation;
and
iii.
Attach a certified copy of the original foreign judgment
to the attestation.
An affidavit by the judgment holder, or his/her attorney or lay
advocate, which includes the following:
a.
The name and last known post office address of the
judgment debtor and the judgment creditor;
b.
Proof that the judgment is final and statement that no
appeal is pending;
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3.
C.
c.
A statement that no subsequent orders vacating, modifying
or reversing the judgment have been entered in the
rendering jurisdiction;
d.
Proof that the person against whom the foreign judgment
has been rendered (i.e., judgment debtor) is subject to the
jurisdiction of the Trial Court with regard to enforcement of
the judgment; and
e.
Proof that the court from which the foreign judgment was
issued provides reciprocal recognition and enforcement to
the judgments of the Trial Court.
A receipt filing fee for registering the foreign judgment.
Notice of Registration of Foreign Judgment. Upon the filing of the foreign
judgment, attestation, affidavit and filing fee, the Clerk of the Court
shall within fourteen (14) days mail a notice of the filing of the foreign
judgment along with a copy of the foreign judgment, attestation, and
affidavit to the judgment debtor at the address provided by the
judgment creditor and shall complete a proof of service. The notice of
the filing of the foreign judgment shall include the following:
1.
The name and post office address of the judgment holder and the
judgment holder's attorney or lay advocate, if any; and
2.
A statement giving notice that an order entering the enforcement
of the foreign judgment shall be entered by the court within
twenty–one (21) days of the same having been served on the
judgment debtor unless the judgment debtor files written
objections with the court along with a request for a hearing within
twenty–one (21) days.
D.
Notice for Written Objection. A statement that gives the debtor notice
that he/she has twenty–one (21) days to file written objections of either
recognition or enforcement of the Judgment along with a request for
hearing. If no objections is filed the court will enter an order recognizing
and/or enforcing the judgment. The written objects shall include a
statement of the basis for the objections.
E.
Objections; Hearing; Entry of Order When Objections. In the event that
the judgment debtor files written objections within the twenty–one (21)
day period set forth in (D) above along with a request for a hearing, the
Clerk of the Court shall send by first–class mail a copy of the objections
to the judgment holder, or his/her attorney or lay advocate. In addition,
the Clerk of the Court shall send by first–class mail a notice of the
hearing setting forth the date and time of hearing or the denial of such
hearing to the judgment holder and judgment debtor, or their respective
attorney(s) or lay advocate(s). The judgment debtor at the hearing will
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be required to show cause why the foreign judgment should not be
recognized and/or enforced by the Trial Court. At the scheduled hearing,
after reviewing all the relevant evidence concerning the foreign
judgment, the court shall issue an order either granting or denying
recognition and/or enforcement of the foreign judgment.
F.
Entry of Order Where No Objections. In the event that the judgment
debtor does not file written objections within the twenty–one (21)
daytime period set forth in (D) above, an order granting the recognition
and/or enforcement of the foreign judgment shall be issued by the court.
G.
Appeal; Stay of Execution; Stay of Proceedings. If the judgment debtor
satisfies the court that an appeal from the foreign judgment is pending
or will be taken, or that a stay of execution has been granted, the Trial
Court may stay recognition and enforcement of the foreign judgment
until the appeal is concluded, the time for appeal expires, or the stay of
execution expires or is vacated.
H.
Post–Judgment Proceedings Regarding Foreign Judgment; No Waiver of
Immunity.
1.
A foreign judgment holder may proceed to post–judgment
proceedings upon entry of an order enforcing the foreign
judgment by the Trial Court. The entry of the order enforcing the
foreign judgment by the Trial Court shall entitle the judgment
holder to enforce its judgment against the judgment debtor in any
manner available to judgment creditors.
2.
The Tribe does not waive its immunity from suit with regard to the
recognition and/or enforcement of a foreign judgment in any
post–judgment proceedings, even when the Tribe is served as a
garnishee–defendant for the wages or property of an employee
who is a judgment debtor.
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TITLE III
CRIMINAL CODE
Chapter 1. GENERAL PROVISIONS
3.1.1 SHORT TITLE.
This title may be known and cited as the “Hopi Criminal Code”.
3.1.2 PURPOSE.
The public policy of the Hopi Tribe and the general purposes of the provisions
of this Code are:
1.
To define conduct that unjustifiably and inexcusably causes or
threatens substantial harm to individual, public, or tribal interests;
2.
To give fair warning of the nature of the conduct proscribed and of the
penalties authorized upon conviction;
3.
To define the act or omission and the accompanying mental state
appropriate to each offense and limit the condemnation of conduct as
criminal when it does not fall within the purposes set forth;
4.
To differentiate on reasonable grounds between serious and minor
offenses and prescribe proportionate penalties for each;
5.
To insure the public safety by preventing the commission of offenses
through the deterrent influence of the penalties authorized;
6.
To impose just and deserved punishment on those whose conduct
threatens the public peace;
7.
To provide restitution for victims of offenses, to rehabilitate offenders
through the imposition of appropriate consequences and preserve
harmony among the Hopi people; and
8.
To promote truth and accountability in sentencing.
3.1.3 EFFECTIVE DATE.
This Code shall become effective after its passage by the Tribal Council.
3.1.4 SEVERABILITY.
If any portion of this Code should be held invalid, that portion shall cease to
be operative, but the remainder of this Code shall continue in full force and
effect.
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3.1.5 APPLICABILITY OF CODE.
A. The provisions of this code shall not apply or extend to any offense
committed prior to the effective date of this Code. The provisions of law in
force prior to the enactment of this Code shall remain in full force and effect
in regard to any offense committed before the effective date of this Code.
B. Except as otherwise provided by law, the procedure governing accusation,
prosecution, conviction and punishment of offenders and offenses is not
regulated by this Code but by the rules of criminal procedure.
C. This Code does not affect any power conferred by law upon a court martial
or other military authority or officer, or conferred upon the United States
Department of Justice, to prosecute or punish conduct and offenders violating
military codes or laws, or U.S. federal laws, nor any power conferred by law
to impose or inflict punishment for contempt.
D. This Code does not bar, suspend or otherwise affect any right or liability
to damages, penalty, forfeiture or other remedy authorized by law to be
recovered or enforced in a civil action regardless of whether the conduct
involved in the proceeding constitutes an offense defined in this Code.
E. Except as otherwise expressly provided, or unless the context otherwise
requires, the provisions of this Code shall govern the construction of and
punishment of any offense defined outside this title.
3.1.6 RESTRICTIONS ON CODE PROVISIONS.
Nothing in this Code shall be construed to abrogate the jurisdiction of Hopi
villages, as defined by The Constitution and By-Laws of the Hopi Tribe.
3.1.7 RULE OF CONSTRUCTION.
The general rule that a penal statute is to be strictly construed does not apply
to this code, but the provisions herein must be construed according to the fair
meaning of the terms to promote justice and effect the objects of law,
including the purpose stated in Section 3.1.2.
3.1.8 JURISDICTION.
A. The Hopi Tribe has jurisdiction over an offense that a person commits by
his or her own conduct or by the conduct of another for which he or she is
criminally liable if:
1. Conduct constituting any element of an offense or a result of such
conduct occurs within the Territory;
45
2. Conduct occurring outside the Territory constitutes an attempt or
conspiracy to commit an offense within the Territory and an act in
furtherance of the attempt or conspiracy occurs within the Territory; or
3. Conduct occurring within the Territory constitutes an attempt or
conspiracy to commit an offense in another jurisdiction that is also an
offense under the laws of the Hopi Tribe.
B. The Hopi Tribe reserves the right to prosecute a person for any violation
of this Code, regardless of whether the person has previously been prosecuted
for the same conduct, or is concurrently being prosecuted for the same
conduct, in a court of the United States, a court of any State, or a court of any
other tribal jurisdiction.
3.1.9 SOVEREIGN IMMUNITY.
Nothing in this Code shall be construed as a waiver, in whole or in part, of the
sovereign immunity of the Hopi Tribe.
3.1.10 DEFINITION OF TERMS.
In this Code, unless the context or subject matter otherwise requires:
1.
“Act” means a bodily movement.
2.
“Adult” means any individual eighteen years of age or older.
3.
“Alcohol,” “Alcoholic beverages,” “Spirituous liquor,” or “Distilled
Spirits,” include alcohol, brandy, whiskey, rum, tequila, mescal, gin,
wine, porter, ale, beer, any malt liquor or malt beverage, absinthe, a
compound or mixture of any of them or of any of them with any
vegetable or other substance, alcohol bitters, bitters containing alcohol,
any liquid mixture or preparation, whether patented or otherwise, which
produces intoxication, fruits preserved in ardent spirits, and beverages
containing more than one-half of one per cent of alcohol by volume.
4.
“Benefit” means anything of value or advantage, present or prospective.
5.
“Calendar year” means three hundred and sixty five days actual.
6.
“Conduct” means an act or omission and its accompanying culpable
mental state.
7.
“Crime” means a minor offense, offense, serious offense or dangerous
offense.
8.
“Controlled Substance” means a drug or other substance, or immediate
precursor, included in schedule I, II, III, IV, or V listed in 21 U.S.C. §
812, and also including future amendments to schedules I through V as
may be enacted by the U.S. Congress, or is listed in current or future
schedules issued pursuant to authority vested in the Attorney General
46
of the United States pursuant to 21 U.S.C. § 811; or a dangerous drug
or narcotic drug.
9.
“Dangerous instrument” means anything that, under the circumstances
in which it is used, attempted to be used or threatened to be used, is
capable of causing death or serious physical injury.
10. “Deadly weapon” means anything designed for lethal use, including a
firearm.
11. “Deadly physical force” means force that is used with the purpose of
causing death or serious physical injury or in the manner of its use or
intended use is capable of creating a substantial risk of causing death
or serious physical injury.
12. “Delinquency” means any act that would injure the morals, health or
welfare of a child or that promotes the commission of any act by a minor
that would be a public offense and a violation of law if committed by an
adult.
13. “Detention” means temporary care in physically restricting facilities.
14. “Economic loss” means any loss incurred by a person as a result of the
commission of an offense. Economic loss includes lost interest, lost
earnings and other losses that would not have been incurred but for the
offense. Economic loss does not include damages for pain and suffering,
punitive damages or consequential damages.
15. “Enterprise” includes any corporation, association, labor union or other
legal entity.
16. “Firearm” means any loaded or unloaded handgun, pistol, revolver, rifle,
shotgun or other weapon that will or is designed to or may readily be
converted to expel a projectile by the action of expanding gases, except
that it does not include a firearm in permanently inoperable condition.
17. “Government” means the Hopi Tribe, any political subdivision of the
Tribe or any department, agency, board, commission, institution or
governmental instrumentality of or within the Tribe or political
subdivision.
18. “Government function” means any activity that a public servant is legally
authorized to undertake on behalf of a government.
19. “Indian” for the purposes of this Code is any person who is an enrolled
member of any Federally recognized tribe or who has Indian blood and
is regarded as an Indian by the society of Indians among whom he lives.
20. “Marijuana” means all parts of any plant of the genus cannabis, from
which the resin has not been extracted, whether growing or not, and
the seeds of such plant
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21. “Minor” means any individual under the age of eighteen.
22. “Offense” or “public offense” means conduct for which a sentence to a
term of imprisonment or of a fine is provided by any law of the state or
tribe in which it occurred or by any law, regulation or ordinance of a
political subdivision of that state or tribe and, if the act occurred in a
state or reservation other than this tribe, it would be so punishable
under the laws, regulations or ordinances of this tribe or of a political
subdivision of this tribe if the act had occurred in the Territory.
23. “Omission” means the failure to perform an act as to which a duty of
performance is imposed by law.
24. “Oral sexual acts” means oral contact with the penis, vulva or anus.
25. “Peace officer” means any person vested by law with a duty to maintain
public order and make arrests and includes a police officer.
26. “Person” means, a human being, and as the context requires, an
individual, corporation, company, partnership, association, trust, firm,
a society, tribal enterprise, government, governmental agency or any
other entity capable of holding a legal or beneficial interest in property.
27. “Physical force” means force used upon or directed toward the body of
another person and includes confinement, but does not include deadly
physical force.
28. “Physical injury” means any impairment of the physical condition.
29. “Possess” means knowingly to have physical possession or exercise
dominion or control over property.
30. “Possession” means a voluntary act if the defendant knowingly exercised
dominion or control over property.
31. “Property” means anything of value, tangible or intangible.
32. “Public servant”:
a. means any officer or employee of any branch of government,
whether elected, appointed or otherwise employed, including a peace
officer, and any person participating as an advisor or consultant or
otherwise in performing a governmental function;
b. does not include jurors or witnesses;
c. includes those who have been elected, appointed, employed or
designated to become a public servant although not yet occupying
that position
33. “Serious physical injury” includes physical injury that creates a
reasonable risk of death, or that causes serious and permanent
disfigurement, serious impairment of health or loss or protracted
impairment of the function of any bodily organ or limb.
48
34. “Sexual acts” means penetration, however slight, into the penis, vulva
or anus by any part of the body or by any object or masturbatory contact
with the penis or vulva.
35. “Sexual contact” means any direct or indirect touching, fondling or
manipulating of any part of the genitals, anus or female breast by any
part of the body or by any object or causing a person to engage in such
contact with the intent to abuse, humiliate, harass, degrade, arouse or
gratify the sexual desire of any person..
36. “Support” means necessary food, shelter, clothing, medical attention,
and any court-ordered financial compensation.
37. “Territory” means all lands held in trust for, or owned by the Tribe, or
held by the United States for the benefit of the Tribe or the people,
including any rights of way existing now or in the future.
38. “Unlawful” means contrary to law, or as the context requires, not
permitted by law.
39. “Vehicle” means a device in, upon or by which any person or property
is, may be or could have been transported or drawn upon a highway,
waterway or airway, excepting devices moved by human power or used
exclusively upon stationary rails or tracks.
40. “Voluntary act” means a bodily movement performed consciously and
as a result of effort and determination.
41. “Voluntary intoxication” means intoxication caused by the knowing use
of drugs, toxic vapors or alcoholic beverages by a person, unless the
person introduces them pursuant to medical advice or under such
duress as would afford a defense to an offense.
3.1.11 TIME LIMITATIONS.
A. A prosecution for any homicide, any offense that is listed in §§3.10.013.10.03 of this title, any misuse of public monies or an offense involving
falsification of public records or any attempt to commit an offense listed
in this subsection may be commenced at any time.
B. Except as otherwise provided in this section, prosecutions for other
offenses must be commenced within the following periods after actual
discovery of the crime and identification of the defendant by the tribe or
the political subdivision having jurisdiction of the offense or discovery
by the tribe or the political subdivision that should have occurred with
the exercise of reasonable diligence, whichever first occurs:
1. For dangerous offense, five years.
2. For a serious offense, three years.
3. For an offense, two years.
4. For a minor or petty offense, one year.
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C. A prosecution is commenced when an indictment, information or
complaint is filed.
D. The period of limitation does not run during any time when the accused
is absent from the Territory or has no reasonably ascertainable place of
abode within the Territory.
3.1.12 SPEEDY TRIAL; COUNSEL; WITNESSES AND CONFRONTATION.
In a criminal action for an offense, serious offense and dangerous offense, the
defendant is entitled:
1.
To have a speedy public trial by an impartial jury of members of the
Hopi Tribe.
2.
To have counsel.
3.
To produce witnesses on his behalf, and to be confronted with the
witnesses against him in the presence of the court, except that the
testimony or deposition of a witness may be received in evidence at
the trial as allowed under the rules of evidence.
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Chapter 2. DETERMINING APPLICABLE MENTAL STATES
3.2.1 GENERAL RULE. Provisions herein must be construed according to the
fair meaning of their terms in order to promote justice and effect the objects
of the law.
3.2.2 APPLICABLE MENTAL STATES. In this Code, unless the context or
subject matter otherwise requires:
1.
“Intentionally” or “with the intent to” means that a person's objective
is to cause something to occur or to engage in certain conduct.
2.
“Knowingly” means that a person is aware of a fact or believes that
the fact exists. It does not require any knowledge of the unlawfulness
of the act or omission. Knowledge of the existence of a particular fact
is established if a person is aware of a high probability of its existence,
unless he or she actually believes that it does not exist.
3.
“Recklessly” means that a person is aware of and consciously
disregards a substantial and unjustifiable risk that a fact exists or that
a particular result will occur. The risk must be of such nature and
degree that disregard of such risk constitutes a gross deviation from
the standard of conduct that a reasonable person would observe in the
same situation. A person who creates such a risk but is unaware of it
solely because of voluntary intoxication also acts recklessly.
4.
“Negligence,” “criminal negligence,” or “negligently” means that a
person fails to perceive a substantial and unjustifiable risk that a fact
exists or that a particular result will occur. The risk must be of such
nature and degree that the failure to perceive it constitutes a gross
deviation from the standard of care that a reasonable person would
observe in the same situation.
3.2.3 INTOXICATION. No act committed by a person while in a state of
voluntary intoxication is less criminal by reason of having been in such
condition. Voluntary intoxication shall not be a defense, and shall not
be allowed as a reason why a person did not have the applicable mental
state for an offense.
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Chapter 3. DEFENSES
3.3.1 SELF-DEFENSE.
A.
A person is justified in threatening or using physical force against
another when and to the extent a reasonable person would believe
that physical force is immediately necessary:
1. to protect himself against the other's use or attempted use of
unlawful physical force;
2. to protect a third party against the other's use or attempted use
of unlawful physical force; or
3. to protect property or a home against the other's use or attempted
use of unlawful physical force, or against an attempt or
commission of theft or criminal damage.
B.
A person who provoked the other's use or attempted use of unlawful
physical force in the same encounter is not justified in threatening or
using physical force unless he or she withdraws from the encounter or
clearly communicates to the other an intent to do so.
C.
Deadly physical force is justified only when a reasonable person would
believe it immediately necessary to protect himself or an innocent third
person against the other's use or attempted use of unlawful deadly
physical force.
D.
The use of physical force against another is not justified in response to
verbal provocation alone, or to resist an arrest, whether lawful or
unlawful, unless the physical force used by the arresting officer
exceeds that allowed by law.
3.3.2 DURESS. Conduct which would otherwise constitute an offense is
excused if a reasonable person would believe that he was compelled to engage
in such conduct by the threat or use of immediate physical force against his
person or against the person of another which a reasonable person in the
same situation would not have resisted.
This defense is unavailable if such person intentionally, knowingly or recklessly
places himself in a situation in which duress was foreseeable and for offenses
involving homicide or the infliction of serious physical injury.
3.3.3 IMMATURITY. A person less than twelve years old at the time of the
conduct charged is not criminally responsible for that conduct unless there is
clear proof that at the time of committing the conduct charged the person
knew it was wrong.
3.3.4 INSANITY. A person is not responsible for criminal conduct by reason
of insanity if, as a result of a mental disease or defect affecting the person at
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the time of such conduct, he or she lacks the substantial capacity to know the
nature and quality of the act or to know that what he or she was doing was
wrong. The defendant shall prove he or she is not responsible for criminal
conduct by reason of insanity by clear and convincing evidence.
3.3.5 FORMER JEOPARDY OR ACQUITTAL. Where a defendant is convicted or
acquitted, or has once been placed in jeopardy in the Trial Court, the
conviction, acquittal or jeopardy is a bar to another indictment or information
for the same offense under this Code.
3.3.6 VILLAGE OR CEREMONIAL TRADITION. It shall be a defense to a
prosecution under this Code that the alleged conduct was governed by Hopi
customs, practices, traditions or ceremonies.
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Chapter 4. PENALTIES
3.4.1 IMPRISONMENT AND FINES.
The Court may impose the following criminal penalties against a person who
is convicted for violating this Code:
1.
A maximum of three years in custody and/or a fine of up to $15,000.00
upon conviction for an offense which is defined in this Code as a
“dangerous offense;”
2.
A maximum of two years in custody and/or a fine of up to $10,000.00
upon conviction for an offense which is defined in this code as a
“serious offense;”
3.
A maximum of one year in custody and/or a fine of up to $5,000.00
upon conviction for an offense which is defined in this Code as an
“offense;”
4.
A maximum of six months in custody and/or a fine of up to $2,500.00
upon conviction for an offense which is defined in this Code as a “minor
offense;”
5.
A maximum of three months in custody and/or a fine of up to
$1,250.00 upon conviction for an offense which is defined in this Code
as a “petty offense.”
3.4.2 REPETITIVE OFFENDERS.
The Court may, at its discretion, sentence a person who has been previously
convicted of the same offense, or a comparable offense by any jurisdiction in
the United States, to one class higher than the sentence imposed in the
previous conviction. Convictions for two or more offenses committed for the
same act may be counted as one conviction for the purposes of this section.
3.4.3 CONSECUTIVE TERMS OF IMPRISONMENT.
If multiple crimes are committed, and multiple sentences of imprisonment are
imposed on a person at the same time, the Court may, at its discretion, direct
the sentences to run consecutively.
3.4.4 OTHER CRIMINAL PENALTIES.
In addition to, or in lieu of, the penalties set forth in Section 3.4.1, the Court
may order restitution, diversion from criminal prosecution, community
service, treatment, probation, parole, or suspension of sentence, unless a
provision of this Code provides otherwise with respect to a certain type of
offense.
The Court may substitute community service for a fine, upon a showing that
the defendant is indigent.
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3.4.5 CIVIL DAMAGES.
A. Any person subject to the civil jurisdiction of the Hopi Tribe, but not
subject to the criminal jurisdiction of the Hopi Tribe, who engages in
conduct in the Territory that constitutes a violation of this Code shall
be liable to the Hopi Tribe for the following civil damages:
1. Civil damages not to exceed $15,000.00 upon a finding by the
Court that the person engaged in conduct constituting an offense
defined in this Code as a “dangerous offense;”
2. Civil damages not to exceed $10,000.00 upon a finding by the
Court that the person engaged in conduct constituting an offense
defined in this Code as a “serious offense”;
3. Civil damages not to exceed $5,000.00 upon a finding by the Court
that the person engaged in conduct constituting an offense
defined in this Code as an “offense;”
4. Civil damages not to exceed $2,500.00 upon a finding by the Court
that the person engaged in conduct constituting an offense
defined in this Code as a “minor offense;”
5. Civil damages not to exceed $1,250.00 upon a finding by the Court
that the person engaged in conduct constituting an offense
defined in this Code as a “petty offense;”
B.
The Tribal Prosecutor is authorized to file civil actions on behalf of the
Hopi Tribe against any person who may be liable to the Hopi Tribe for
civil damages pursuant to subsection A of this Section.
3.4.6 HOPI TRADITIONS, CUSTOMS AND PRACTICES. The Court shall
consider Hopi traditions, customs and practices when imposing the
penalties set forth in this section.
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Chapter 5. PREPARATORY OFFENSES AND ACCOMPLICE LIABILITY
3.5.1 ATTEMPT.
A.
A person who intends to commit a serious or dangerous offense and
engages in conduct constituting a substantial step toward commission
of the offense, is guilty of a serious offense.
B.
Factual or legal impossibility shall not be a defense to attempt.
3.5.2 CONSPIRACY.
A.
A person is guilty of a serious offense if he or she agrees with one or
more persons to engage in conduct that would constitute a serious or
dangerous offense and one of them commits an act in furtherance of
the agreement.
B.
It shall be a defense to prosecution under this Section that the
defendant clearly ceased to agree with the conspiracy, took no further
part in the conspiracy, and either communicated his or her desire to
abandon the conspiracy to the authorities or took other action to
thwart the conspiracy.
3.5.3 ACCOMPLICE LIABILITY. A person is guilty of an offense committed by
another person to the same extent as that other person if, with the intent that
the offense be committed, he or she encourages the other person to commit
the offense or provides the other person with the means or opportunity to
commit the offense.
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Chapter 6. OFFENSES AGAINST THE FAMILY
3.6.1 ENDANGERMENT OR ABANDONMENT OF A MINOR.
A.
A parent, guardian or other person who has assumed or been
entrusted with the care of a minor, who knowingly causes or permits
the endangerment of such minor, is guilty of an offense.
B.
A parent, guardian or other person who has assumed or been
entrusted with the care of a minor, who intentionally abandons the
minor with intent not to return, is guilty of an offense.
3.6.2 CUSTODIAL INTERFERENCE. A person who knowingly removes or
entices a minor away from lawful custody without consent of the lawful
custodian, or when he or she has no privilege to do so, is guilty of an offense.
3.6.3 FAILURE TO PROVIDE SUPPORT. A person who knowingly fails to
support a spouse, child or other dependent, when he or she is legally required
to provide such support, and is able to do so, is guilty of an offense.
3.6.4 CONTRIBUTING TO THE DELINQUENCY OF A MINOR. An adult who
knowingly causes or entices the delinquency of a minor is guilty of an offense.
3.6.5 FAILURE TO SEND CHILDREN TO SCHOOL. A person who neglects or
refuses, without good cause, to send his children or legal wards to school, is
guilty of a minor offense.
3.6.6 BIGAMY.
A.
A person, knowing that he or she is already legally married, who
marries another person, is guilty of a minor offense.
B.
Subsection A of this section does not extend to a person whose spouse
has been absent for seven successive years without being known to
such person within that time to be living, nor to any person whose
former marriage has been pronounced void, annulled or dissolved by
judgment of a competent court.
C.
A person who marries another, knowing that such other person is
already legally married, is guilty of a minor offense.
3.6.7 DOMESTIC VIOLENCE.
A person who commits assault, aggravated assault, endangerment,
threatening, kidnapping, sexual assault, or sexual conduct with a minor is
guilty of domestic violence, a serious offense, if any the following factors are
present:
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1.
The relationship between the victim and the defendant is one of
marriage or former marriage or of persons residing or have resided in
the same household.
2.
The victim and the defendant have a child in common.
3.
The victim is pregnant by the other party.
4.
The victim is related to the defendant or the defendant’s spouse by
blood, marriage or court order as a parent, grandparent, child,
grandchild, brother or sister.
5.
The victim is a child who resides or has resided in the same household
as defendant and is related by blood to a former spouse as the defendant
or to a person who resides in the same household as the defendant.
6.
The relationship between the victim and the defendant is currently or
was previously an intimate relationship.
3.6.8 STALKING.
A. A person commits stalking if the person intentionally or knowingly engages
in a course of conduct that is directed toward another person and if that
conduct either:
1.
Would cause a reasonable person to fear for the person's safety
or the safety of that person's immediate family member and that
person in fact fears for their safety or the safety of that person's
immediate family member, which is a serious offense.
2.
Would cause a reasonable person to fear death of that person or
that person's immediate family member and that person in fact
fears death of that person or that person's immediate family
member, which is a dangerous offense.
B. For the purposes of this section:
1.
"Course of conduct" means maintaining visual or physical
proximity to a specific person or directing verbal, written or other
threats, whether express or implied, to a specific person on two
or more occasions over a period of time.
2.
"Immediate family member" means a spouse, parent, child or
sibling or any other person who regularly resides in a person's
household or resided in a person's household within the past six
months.
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Chapter 7. OFFENSES AGAINST PERSONS
3.7.1 ASSAULT.
A person commits assault, an offense, by:
1.
intentionally placing another person in reasonable apprehension of
imminent physical injury;
2.
attempting to cause or recklessly causing physical injury to another
person; or
3.
negligently causing physical injury to another person through the use
of a deadly weapon.
3.7.2 AGGRAVATED ASSAULT.
A person commits aggravated assault, a serious offense, by:
1.
attempting to cause or recklessly causing serious physical injury to
another person;
2.
attempting to cause or knowingly causing physical injury to another
person through the use of a deadly weapon or dangerous instrument;
3.
attempting to cause or knowingly causing serious physical injury to a
child who is fifteen years of age or younger;
4.
committing an assault on a tribal official, village official police officer,
or a person age sixty-five (65) or older.
3.7.3 ENDANGERMENT.
A.
A person who recklessly endangers another person with a substantial
risk of death or serious physical injury is guilty of an offense.
B.
Endangerment involving a substantial risk of imminent death is a
serious offense.
3.7.4 THREATENING.
A.
A person commits threatening by threatening to commit any violent
crime with the intent to:
1. terrify or intimidate another person;
2. cause evacuation of a building or any other place of assembly; or
3. cause serious public inconvenience.
B.
A person committing threatening is guilty of an offense, unless it is
committed in retaliation for reporting criminal activity or being involved
in an organization, other than a law enforcement agency, that is
established for the purpose of reporting criminal activity, in which case
it is a serious offense.
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3.7.5 ABUSE.
A.
A parent, guardian, or other person who has assumed or been
entrusted with the care of a minor or vulnerable adult, who knowingly
causes or permits physical injury to such minor or vulnerable adult, is
guilty of a serious offense.
B.
For purposes of this section, “vulnerable adult” means an individual
eighteen years of age or older who, because of a mental or physical
disability, is unable to protect himself from abuse or neglect.
C.
In addition to the remedy in section A, an injured minor or vulnerable
adult is entitled to all available remedies under Ordinance 50.
3.7.6 KIDNAPPING. A person who knowingly moves or detains another
person against such person's will, or in the case of a minor without the consent
of such person's lawful custodian, and without proper legal authority, is guilty
of a serious offense.
3.7.7 HOMICIDE. Any person who unlawfully and intentionally, knowingly or
recklessly causes the death of another person is guilty of a dangerous offense.
3.7.8 NEGLIGENT HOMICIDE. Any person who, with criminal negligence,
causes the death of another person is guilty of a serious offense.
3.7.9 ROBBERY. A person who knowingly uses force or threatens to use force
against another person with the intent to take the property of such person, is
guilty of a serious offense.
3.7.10 AGGRAVATED ROBBERY. A person who, in the course of committing
robbery, is aided by one or more accomplices actually present, is guilty of a
dangerous offense.
3.7.11 HARASSMENT. A person commits a minor offense by persistently
placing obscene or harassing telephone calls, or other electronic or Internet
messages, with the intent to annoy, abuse, or threaten another person.
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Chapter 8. OFFENSES AGAINST PROPERTY
3.8.1 BURGLARY. A person who unlawfully enters or remains in any dwelling,
other structure, or vehicle, with the intent to commit theft or any serious or
dangerous offense, is guilty of a serious offense.
3.8.2 AGGRAVATED BURGLARY. A person who commits burglary while
possessing a deadly weapon or dangerous instrument, is guilty of a dangerous
offense.
3.8.3
TRESPASSING.
A. A person who enters or remains in any building, structure or land, after
being notified by the owner or lawful possessor not to enter or remain,
is guilty of a minor offense.
B. It shall be a defense to trespassing that the person acted with legal
authority or consent.
3.8.4
A.
B.
3.8.5
THEFT.
A person who knowingly takes or controls the property or services of
another person without consent of the owner or other proper legal
authority is guilty of an offense.
Theft of property or services with a value of two thousand dollars or
more is guilty of a serious offense.
RECEIVING OR CONCEALING STOLEN PROPERTY.
A.
A person who knowingly sells stolen property is guilty of a serious
offense.
B.
A person who receives or conceals property of another person,
knowing the same to have been stolen, is guilty of a serious offense.
3.8.6
CRIMINAL DAMAGE TO PROPERTY.
A.
A person who intentionally, knowingly or recklessly defaces, damages
or tampers with property not his own, whether public or private, is
guilty of an offense.
B.
A person who commits criminal damage of property in an amount of
five thousand dollars or more is guilty of a serious offense.
3.8.7
A.
CRIMINAL LITTERING OR POLLUTING OF PUBLIC PROPERTY.
A person commits a minor offense by recklessly or negligently
discarding any refuse, debris, destructive or other injurious material
that he does not remove, without lawful authority:
1. on Tribe or Village property or public grounds;
2. on or near any public or Village road; or,
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3. on or near any public waters of the Tribe.
B.
A person who discharges sewage, oil products or other harmful
substances, in excess of three hundred pounds in weight or one
hundred cubic feet in volume, or is done in any volume for commercial
purposes, into any public waters is guilty of an offense.
C.
A person convicted under Subsections A or B will be required to remove
or remedy the nuisance upon order of the Court.
3.8.8
BURNING.
A.
A person who recklessly causes a fire or explosion that results in
damage to an occupied structure, a structure, wildland or property is
guilty of an offense.
B.
A person who knowingly and unlawfully damages an occupied structure
by knowingly causing a fire or explosion, or commits burning to
property in an amount of five thousand dollars or more is guilty of a
serious offense.
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Chapter 9. FRAUD & RELATED OFFENSES
3.9.1 FRAUD. A person who obtains money, property or services by
knowingly misrepresenting a material fact or by knowingly using false weights
or measures, is guilty of an offense. If the value of the money, property or
services is $5,000 or more, the person is guilty of a serious offense.
3.9.2 BRIBERY.
A.
A person who offers or confers any money, property, service, or other
benefit to an official of the Tribe, Village official, or public servant with
the intent to influence the conduct of the other person's public duties,
is guilty of a serious offense.
B.
An official of the Tribe, Village official, or public servant who knowingly
accepts or intentionally solicits such offers, is guilty of a serious
offense.
3.9.3 EXTORTION. A person who intentionally obtains or seeks to obtain
property, services, or other benefit by means of a threat to either cause
physical injury to persons or property; or make allegations, whether true or
false, which damage another's personal reputation or business associations is
guilty of a serious offense.
3.9.4 FORGERY.
A person commits a serious offense if, with intent to defraud, such person:
1.
falsely makes, completes, signs, or alters a written instrument;
2.
knowingly possesses a forged instrument; or,
3.
offers a forged instrument for execution, whether accepted or not.
3.9.5 ISSUANCE OF INSUFFICIENTLY FUNDED CHECKS. A person who
intentionally issues a check, draft, or other financial instrument with the intent
to defraud and with the knowledge that the depository will not credit the full
amount upon its presentation, is guilty of a minor offense.
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Chapter 10. SEXUAL OFFENSES AND RELATED OFFENSES
3.10.1 ENTICEMENT OF A MINOR. A person who forces, entices, or
persuades a child under the age of sixteen to enter any building, vehicle, or
secluded place with intent to engage in sexual acts, sexual contact or oral
sexual acts with the minor, is guilty of a dangerous offense.
3.10.2 SEXUAL ASSAULT.
A person who engages in sexual contact with another person, without his or
her consent, is guilty of a sexual assault, a serious offense. “Without consent”
includes any of the following:
1. The victim is coerced by the immediate use or threatened use of force
against a person or property.
2. The victim is incapable of consent by reason of mental disorder, mental
defect, drugs, alcohol, sleep or any other similar impairment of
cognition and such condition is known or should have reasonably been
known to the defendant. For purposes of this subsection, “mental
defect” means the victim is unable to comprehend the distinctively
sexual nature of the conduct or is incapable of understanding or
exercising the right to refuse to engage in the conduct with another.
3. The victim is intentionally deceived as to the nature of the act.
4. The victim is intentionally deceived to erroneously believe that the
person is the victim’s spouse.
B. A person who engages in sexual acts or oral sexual acts with another
person, without his or her consent, is guilty of aggravated sexual assault,
a dangerous offense.
3.10.3 SEXUAL CONDUCT WITH A MINOR.
Any person who engages in sexual acts, sexual contact or oral sexual acts
with a minor who is not his or her spouse is guilty of a dangerous offense.
3.10.4 INDECENT EXPOSURE.
A. A person who intentionally, knowingly or recklessly exposes his or her
genitals to observers in a public place or unwilling observers in a private
place, is guilty of a minor offense.
B. A person who commits indecent exposure to a person who is under
fifteen years of age is guilty of an offense.
3.10.5 PROSTITUTION.
A. A person who knowingly engages in or offers to engage in sexual
conduct in exchange for money, property or other services is guilty of a
minor offense.
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B. A person who knowingly exchanges or offers to exchange money,
property or other services for sexual conduct is guilty of a minor offense.
C. A person who knowingly arranges, offers to provide or solicits the
services of a prostitute is guilty of a minor offense.
D. A person who knowingly keeps, maintains, rents, or leases property for
the purpose of prostitution is guilty of a minor offense.
3.10.6 FAILURE TO REPORT CHILD ABUSE.
A. Any person who reasonably believes that a minor is or has been the victim
of physical injury, abuse, endangerment or abandonment of a minor, child
abuse, sexual assault or sexual conduct with a minor that appears to have
been inflicted on the minor by other than accidental means or that is not
explained by the available medical history as being accidental in shall
immediately report or cause reports to be made of this information to a law
enforcement officer.
B. A report is not required under this section for conduct prescribed by sections
3.10.3 if the conduct involves only minors who are sixteen or seventeen
years of age and there is nothing to indicate that the conduct is other than
consensual.
C. A person who furnishes a report, information or records required or
authorized under this section, or a person who participates in a judicial or
administrative proceeding or investigation resulting from a report,
information or records required or authorized under this section, is immune
from any civil or criminal liability by reason of that action unless the person
acted with malice or unless the person has been charged with or is
suspected of abusing or neglecting the child or children in question.
D. Reports shall be made immediately by telephone or in person and shall be
followed by a written report within seventy-two hours. The reports shall
contain:
1. The names and addresses of the minor and the minor’s parents or
the person or persons having custody of the minor, if known.
2. The minor’s age and the nature and extent of the minor’s abuse,
child abuse, physical injury or neglect, including any evidence or
previous abuse, child abuse, physical injury or neglect.
3. Any other information that the person believes might be helpful in
establishing the cause of the abuse, child abuse, physical injury
or neglect.
4. The name of the person making the report.
B. For the purposes of this section:
1. “Abuse” shall have the same meaning as in 3.7.5.
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2. “Endangerment or abandonment of a minor” shall have the same
meaning as in 3.6.1.
3. “Sexual assault” shall have the same meaning as in 3.10.2.
4. “Sexual conduct with a minor” shall have the same meaning as in
3.10.3.
C. Penalty
1. A person who violates this section and is a parent, stepparent,
guardian, law enforcement officer, teacher, school official, or has
responsibility for the care or treatment of the minor, such as a
physician, dentist, nurse, psychologist, counselor, social worker, is
guilty of an offense.
2. A person who violates this section, but does not have a relationship
to the child described in subsection 1, shall receive a warning for a
first violation, is guilty of a minor offense for second violation, and is
guilty of an offense for subsequent violations.
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Chapter 11. OFFENSES INVOLVING WEAPONS AND EXPLOSIVES
3.11.1 MISCONDUCT INVOLVING FIREARMS. A person who knowingly
discharges a firearm within three hundred (300) feet of any inhabited building
or on any road or highway within the Territory, is guilty of a petty offense.
1.
This offense shall not apply to persons who discharge their firearms
for ceremonial or law enforcement purposes, to those who discharge
their firearms in protection of their farming or ranching activities, to
those who discharge their firearms within a designated area such as
an archery or rifle range, or to those who discharge their firearms in
accordance with other laws of the Tribe.
2.
In addition to such other penalties prescribed by this Code, the firearm
may be immediately seized as a civil forfeiture.
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Chapter 12. OFFENSES INVOLVING DOMESTICATED ANIMALS
3.12.1 CRUELTY TO DOMESTICATED ANIMALS.
A. A person who recklessly subjects any animal under his custody or
control to mistreatment or neglect, is guilty of a minor offense.
B. Mistreatment or neglect includes, but is not limited to: torture,
mutilation, failure to provide necessary sustenance, and forcibly working
animals unfit for labor.
C. For the purposes of this section, a domesticated animal is any animal
that depends on a human for food, water and shelter, including dogs
and cats and other house pets, but does not apply to livestock as defined
in Ordinance 43.
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Chapter
13.
OFFENSES
AGAINST
WELFARE AND ADMINISTRATION
PUBLIC
PEACE,
ORDER,
3.13.1 CURFEW VIOLATIONS.
A.
B.
Children under age eighteen shall observe the following curfew
schedule:
1.
During School Term: Unless accompanied by a lawful custodian,
children under age sixteen shall not appear in public places after
9:00 pm; children ages sixteen through seventeen shall not
appear in public places after 10:00 pm, regardless of whether they
are enrolled in school.
2.
During Vacation Periods: Unless accompanied by a lawful
custodian, children under age sixteen shall not appear in public
places after 11:00 pm; children ages sixteen through seventeen
shall not appear in public places after 12:00 midnight.
3.
Exceptions: When a school, community, village, clan or
ceremonial function runs late, curfew is extended for all children
until one half-hour after the official close of the function.
A lawful custodian who intentionally fails to enforce the curfew schedule
is guilty of a petty offense.
3.13.2 DISORDERLY CONDUCT.
A person commits a minor offense if, with the intent to disturb the peace and
quiet of a community, family or person, he or she:
1. engages in violent or seriously disruptive behavior;
2. makes unreasonable noise;
3. uses abusive or offensive language or gestures in a manner likely to
provoke immediate physical retaliation by another person; or
4. recklessly handles, displays or discharges a deadly weapon or
dangerous instrument.
3.13.3 DISRUPTING MEETINGS, PROCESSIONS AND CEREMONIES.
A.
A person makes any unreasonable disruption, commotion or
display with the intent to prevent or obstruct a lawful meeting,
procession, ceremony or gathering is guilty of a petty offense.
B.
For purposes of this section, a person will be considered to have
made an “unreasonable disruption” if he or she attends a lawful
meeting, procession, ceremony or gathering while under the
influence of alcohol, marijuana or a controlled substance.
C.
A person who has been previously convicted under this section
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and makes an unreasonable disruption is guilty of a serious
offense. ( Amended by H-047-2020)
3.13.4 DISRUPTING RELIGIOUS CEREMONIES.
A.
A person who recklessly or negligently enters a kiva, ceremonial
building or ceremonial area during a religious or ceremonial
activity and makes any unreasonable disruption, commotion or
display is guilty of an offense.
B.
For purposes of this section, a person will be considered to have
made an “unreasonable disruption” if he or she enters a kiva,
ceremonial building or ceremonial area during a religious or
ceremonial activity while under the influence of alcohol, marijuana
or a controlled substance.
C.
A person who has been previously convicted under this section
and makes an unreasonable disruption is guilty of a serious
offense.
3.13.5 RIOT. A person who intentionally, knowingly or recklessly induces two
or more persons to use force or violence to disturb the public peace, or to
create an imminent threat of disturbance, is guilty of an offense.
3.13.6 DECLARED DISASTER. (Amended by H-047-2020)
A.
During a declared tribal disaster, any person failing to comply with
the emergency directions issued by the Chairman or, in his
absence, the Vice Chairman or, in the absence of both the
Chairman and Vice Chairman, the Chairman’s designee pursuant
to the Hopi Emergency Plan, Section 7-701(2), shall be guilty of a
petty offense provided that the public has been given notice of the
emergency directions.
B.
During a declared tribal disaster, emergency curfews contained in
the emergency directions issued by Chairman or, in his absence,
the Vice Chairman or, in the absence of both the Chairman and
the Vice Chairman, the Chairman’s designee, will apply to both
adults and juveniles and will supersede the curfew provisions in
the Hopi Code, Section 3.13.1.
C.
During a declared village disaster, any person who violates the
written emergency directions issued by a recognized Village
Authority is guilty of a petty offense provided that the public is
given notice of the village’s emergency directions.
D.
The provisions of the Hopi Code, Section 3.4.2. Repetitive
Offenders, shall apply to offenders who repeatedly violate
subsections (a), (b) and (c) of this section.
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E.
The Court may consider previous convictions under this section as
an aggravating factor in imposing release conditions.
F.
A non-Indian who is subject to the civil jurisdiction of the Hopi
Tribal Court who violates the emergency directions of the
Chairman or, in his absence, the Vice Chairman or, in the absence
of both the Chairman and Vice Chairman, the Chairman’s designee
or of a village shall be subject to the civil damages provisions of
the Hopi Code, Section 3.4.5 (A)(5).
G.
If a non-Indian who repeatedly violates this section poses an
immediate and substantial risk of harm to the public health, safety
or general welfare to the Hopi Tribe or its peoples, the Chairman
may order the nonmember’s immediate exclusion pursuant to
Ordinance 46, Section 46.02.05.
H.
This section only applies during a declared disaster and the
enforcement of the Chairman’s or, in his absence, the Vice
Chairman’s or, in the absence of both the Chairman and Vice
Chairman, the Chairman’s designee’s emergency directions ends
when the declared disaster ends.
I.
This section only applies during a declared disaster and the
enforcement of the village authority’s emergency directions ends
when the declared disaster ends.
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Chapter 14. INTERFERING WITH ADMINISTRATION OF JUSTICE
3.14.1 IMPERSONATION OF A PUBLIC OFFICIAL. A person who intentionally
impersonates a law enforcement officer or other public official is guilty of an
offense.
3.14.2 ESCAPE.
A.
A person who unlawfully and knowingly removing himself from official
detention or by unlawfully and knowingly failing to return to official
detention following a temporary leave commits an offense.
B.
For purposes of this section “official detention” means arrest, detention
in any facility for custody of persons under charge or conviction of a
crime, or any other detention for law enforcement purposes.
3.14.3 HINDERING APPREHENSION OR PROSECUTION. A person commits an
offense if, with the intent to hinder the apprehension, prosecution, conviction
or punishment of another person for a crime, he or she:
1. harbors or conceals the other person;
2. provides or aids in providing the other person with a weapon,
transportation or a disguise;
3. conceals or destroys evidence of the crime, or tampers with a
witness, informant, document or other source of information,
regardless of its admissibility into evidence;
4. warns the other person of impending discovery or apprehension;
or
5. volunteers false information to a law enforcement officer.
3.14.4 GIVING FALSE INFORMATION TO AN OFFICER.
A.
A person who knowingly gives false information to a law enforcement
officer is guilty of a minor offense.
B.
A person who intentionally causes the unlawful arrest, detention or
imprisonment of another person is guilty of an offense.
3.14.5 CONTEMPT OF COURT. A person who intentionally disobeys a lawful
order, process or other mandate of the Trial Court is guilty of a minor offense.
3.14.6 RESISTING LAWFUL ARREST.
A person commits an offense if, with the intent to prevent a law enforcement
officer from making a lawful arrest, he or she:
1.
uses or threatens to use physical force against the law enforcement
officer or another person; or
2.
engages in any other conduct that creates a substantial risk of causing
physical injury to a law enforcement officer or another person.
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3.14.7 PERJURY.
A.
A person who makes a sworn statement or affidavit, knowing the same
to be untrue, is guilty of a serious offense.
B.
A person who intentionally induces another to make a sworn statement
or affidavit, knowing the same to be untrue, is guilty of a serious
offense.
3.14.8 TAMPERING WITH PUBLIC RECORDS.
A.
A person commits an offense if he or she:
1. Knowingly makes a false entry in, or false alteration of, any public
record;
2. Knowingly makes, presents or uses a false record, document or
thing with the intent that it be taken as a genuine public record;
3. Intentionally and unlawfully destroys, conceals, removes or
otherwise impairs the accuracy or availability of any public record.
B.
For purposes of this section, “public record” means any record,
document or thing belonging to, or received or kept by a public office
for information or record, or required by law to be kept by others for
the information of a public office.
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Chapter 15. CONTROLLED SUBSTANCES & ALCOHOL RELATED
OFFENSES
3.15.1 USE OR POSSESSION OFFENSES.
A.
Possession of Alcoholic Beverages
1. A person who knowingly possesses alcoholic beverages for
personal use is guilty of a petty offense. In addition to any jail
sentence or fine the court may impose, the court shall require the
person to participate in an outpatient counseling program
designed and supervised by an alcohol rehabilitation program as
a condition of probation or in lieu of a jail sentence.
2. A person who knowingly possesses alcoholic beverages for
personal use with one prior conviction for using or possessing
alcoholic beverages, is guilty of a minor offense. In addition to any
jail sentence or fine the court may impose, the court shall require
the person to participate in an outpatient counseling program
designed and supervised by an alcohol rehabilitation program.
3. A person who possesses alcoholic beverages for personal use with
two or more prior convictions for using or possessing alcoholic
beverages, is guilty of an offense. In addition to any jail sentence
or fine the court may impose, the court shall require the person
to participate in an alcoholic rehabilitation unit for residential
treatment.
4. A person who knowingly possesses alcoholic beverages for sale or
distribution is guilty of a serious offense.
B.
Use or Possession of Marijuana or Controlled Substances (Amended by
H-039-2020)
1. A person who knowingly uses or possesses marijuana for personal
use is guilty of a petty offense. In addition to any jail sentence or
fine the court may impose, the court shall require the person to
obtain a biopsychosocial assessment from a behavioral health
entity and comply with the recommendations as a condition of
probation or in lieu of a jail sentence.
2. A person who knowingly uses or possesses marijuana for personal
use with one prior conviction for using or possessing marijuana is
guilty of a minor offense. In addition to any jail sentence or fine
the court may impose, the court shall require the person to obtain
a biopsychosocial assessment from a behavioral health entity and
comply with the recommendations.
3. A person who knowingly uses or possesses marijuana for personal
use with two or more prior convictions for using or possessing
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marijuana is guilty of an offense. In addition to any jail sentence
or fine the court may impose, the court shall require the person
to obtain a biopsychosocial assessment from a behavioral health
entity and comply with the recommendations.
4. A person who knowingly uses or possesses controlled substances
for personal use is guilty of an offense. In addition to any jail
sentence or fine the court may impose, the court shall require the
person to obtain a biopsychosocial assessment from a behavioral
health entity and comply with the recommendations.
A first conviction shall carry a mandatory minimum sentence of
sixty (60) days in jail to be served consecutive to any other jail
sentence imposed and a $500.00 fine. Such sentence shall not be
otherwise suspended or deferred and no parole, probation or other
early release shall be authorized.
5. A person who knowingly uses or possesses controlled substances
for personal use with one prior conviction for using or possessing
controlled substances, is guilty of an offense. In addition to any
jail sentence or fine the court may impose, the court shall require
the person to obtain a biopsychosocial assessment from a
behavioral health entity and comply with the recommendations.
A second conviction shall carry a mandatory minimum sentence
of ninety (90) days in jail to be served consecutive to any other
jail sentence imposed and a $1,000.00 fine. Such sentence shall
not be otherwise suspended or deferred and no parole, probation
or other early release shall be authorized.
6. A person who knowingly uses or possesses controlled substances
for personal use with two or more prior conviction for using or
possessing controlled substances, is guilty of an offense. In
addition to any jail sentence or fine the court may impose, the
court shall require the person to obtain a biopsychosocial
assessment from a behavioral health entity and comply with the
recommendations.
A third conviction shall carry a mandatory minimum sentence of
one hundred eighty (180) days in jail to be served consecutive to
any other jail sentence imposed and a $2,500.00. Such sentence
shall not be otherwise suspended or deferred, and no parole,
probation or other early release shall be authorized.
7. A percentage of the assessed fines shall be credited towards the
defendant’s biopsychosocial assessment and recommendations
for rehabilitation or outpatient/inpatient/residential treatment.
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C.
Sale or Distribution (Amended by H-039-2020)
1. A person who knowingly possesses marijuana or controlled
substances for sale or distribution is guilty of a dangerous offense.
Possession of any combined total of five (5) grams or more of
methamphetamine or other controlled substances shall create a
presumption that the person in possession does so for sale or
distribution.
2. A person with intent to sell or to distribute, or manufacturing
marijuana or controlled substances in or on, or within one
thousand feet of, the real property comprising a public or private
elementary, vocational, or secondary school or public or private
college, junior college, or university, or a playground or housing
facility owned by a public housing authority, is guilty of a
dangerous offense.
3. Employing children to distribute marijuana or controlled
substances. Any person at least 21 years of age who knowingly
and intentionallya. employs, hires, uses, persuades, induces, entices, or coerces a
person under 18 years of age to violate this section; or
b. employs, hires, uses, persuades, induces, entices, or coerces a
person under 18 years of age to assist in avoiding detection or
apprehension for any offense under this section by any Federal,
State or tribal law enforcement official, is guilty of a dangerous
offense.
D. Nothing in this section shall make it illegal to possess, use or be
affected by marijuana or controlled substance when authorized for
medicinal purposes by a “Practitioner” as defined in 21 U.S.C. §
802(21), or as directed by a physician.
3.15.2 BOOTLEGGING. SALE, DISTRIBUTION, TRANSPORTATION
ALCOHOL, MARIJUANA OR CONTROLLED SUBSTANCES.
OF
A.
A person who knowingly sells, distributes, transports or imports or
offers to sell, distribute, transport or import alcoholic beverages,
marijuana or controlled substances is guilty of an offense.
B.
For each offense, the Court shall impose a term of imprisonment of
one (1) year and a fine of five thousand ($5,000.00) dollars. Each act
of sale, distribution or transportation under Subsection A shall
constitute a separate offense. Such sentence shall not be otherwise
suspended or deferred, and no parole, probation or other early release
shall be authorized.
C.
The mandatory sentence provided for in Subsection B shall not apply
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if the defendant is a first or second-time offender or the Court finds
that extraordinary circumstances justify mitigation of the sentence.
D.
Upon conviction under Subsection A, the Court shall assess as costs
payable to the Tribe the reasonable costs of investigation and
prosecution of the offense.
E.
Enforcement
1. Any vehicle or other property knowingly used to facilitate the sale,
distribution or transportation of alcoholic beverages, marijuana or
a controlled substance may be seized immediately as a civil
forfeiture, and will not be returned without a showing of good
cause before the Court.
2. Procedures for disposing of seized property shall be established
by the Trial Court and approved by the Tribal Council.
3.15.3 PRODUCTION, CULTIVATION OR MANUFACTURING OFFENSES.
A person who knowingly produces alcoholic beverages, cultivates
marijuana or manufactures a controlled substance, or takes
substantial steps toward such production, cultivation or
manufacturing, is guilty of a dangerous offense. (Amended by H039-2020)
3.15.4 INTOXICATION.
A.
A person who is voluntarily under the influence of, or intoxicated by
alcoholic beverages, marijuana or a controlled substance, is guilty of a
minor offense.
B.
A person who is voluntarily under the influence of, or intoxicated by
alcoholic beverages, marijuana or a controlled substance with three or
more prior convictions for said offense, committed within the past three
years, is guilty of an offense.
C.
The court may, in its discretion or at the request of another, commit a
person convicted of intoxication, if he or she is a repeat offender, to an
alcoholic rehabilitation unit for residential treatment, or require the
person to participate in an out-patient counseling program designed and
supervised by an alcohol or drug rehabilitation program as a condition
of probation or in lieu of a jail sentence.
D.
Nothing in this section shall make it illegal to possess, use or be affected
by a controlled substance when authorized for medicinal purposes by a
“Practitioner” as defined in 21 U.S.C. § 802(20), or as directed by a
physician.
3.15.5 POSSESSION OF DRUG PARAPHERNALIA.
A.
A person who possesses, or uses drug paraphernalia to plant,
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propagate, cultivate, grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze, pack, repack, store, contain,
conceal, inject, ingest, inhale or otherwise introduce into the human
body marijuana or a controlled substance is guilty of an offense.
B.
In determining whether an object is drug paraphernalia, a court or other
authority shall consider, in addition to all other logically relevant factors,
the following:
1. Statements by an owner or by anyone in control of the object
concerning its use.
2. Prior convictions, if any, of an owner, or of anyone in control of the
object, under any state or federal law relating to marijuana or any
controlled substance.
3. The proximity of the object, in time and space, to a direct violation
of this chapter.
4. The proximity of the object to marijuana or a controlled substance.
5. The existence of any residue of marijuana or a controlled substance
on the object.
6. Direct or circumstantial evidence of the intent of an owner, or of
anyone in control of the object, to deliver it to persons whom he
knows, or should reasonably know, intend to use the object to
facilitate a violation of this chapter.
7. The existence and scope of legitimate uses for the object in the
community.
8. Expert testimony concerning its use.
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ADDITIONAL OFFENSES
Additional offenses punishable by incarceration and/or criminal penalty
include, but are not limited to the following sections:
Ordinance 26: Ordinance for the Protection of Places and Objects of Sacred,
Historical and Scientific Interest on the Hopi Reservation
Ordinance 34: Hopi Election Ordinance
Ordinance 47: Woodland Ordinance
Ordinance 48: Wildlife Ordinance
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TITLE IV
MOTOR VEHICLE CODE
CHAPTER 1. GENERAL PROVISIONS
4.1.1 SHORT TITLE.
This title may be known and cited as the “Hopi Motor Vehicle Code”.
4.1.2 JURISDICTION OF HOPI TRIBE.
Under this Title, the Hopi Trial Court shall have exclusive original
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