# CORRECTED: APRIL 4, 2013 (H-027-2013) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Ahopi_arizona%3A96f8a44c9aa84bc6 ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## Text 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 xii 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 xv 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 19 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. 20 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. 21 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. 23 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. 24 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. 25 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. 27 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. 33 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. 34 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. 35 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. 36 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. 37 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. 38 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. 39 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 40 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; 41 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 42 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. 43 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. 44 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 47 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. 49 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. 50 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. 51 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 52 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. 53 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. 54 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Ahopi_arizona%3A96f8a44c9aa84bc6. Public record. Not legal advice.