COVER ......................................................................................................................................................... i

Tribal code

Ask Donna

What actually matters in this document.

Text

COVER

TABLE OF CONTENTS

COVER ......................................................................................................................................................... i

TABLE OF CONTENTS ........................................................................................................................... ii

CHAPTER 1 ELECTION CODE ............................................................................................................. 1

SECTION 1. GENERAL. ............................................................................................................. 1

SECTION 2. ELECTION BOARD. ............................................................................................. 2

SECTION 3. PRE-ELECTION/CANDIDATES. ......................................................................... 8

SECTION 4. ELECTION. .......................................................................................................... 10

SECTION 5. MISCELLANEOUS. ............................................................................................ 15

SECTION 6. DISPUTE RESOLUTION. ................................................................................... 15

SECTION 7. PENALTIES. ........................................................................................................ 17

CHAPTER 2 TRIBAL COURTS ............................................................................................................ 35

SECTION 1. GENERAL. ........................................................................................................... 35

SECTION 2. CRIMINAL PROCEDURE. ................................................................................. 40

SECTION 3. CIVIL PROCEDURE............................................................................................ 42

SECTION 4. APPELATE COURTS. ......................................................................................... 46

SECTION 5. RULES OF EVIDENCE ....................................................................................... 49

SECTION 6. REPRESENTATION BY LEGAL COUNSEL .................................................... 53

CHAPTER 3 DOMESTIC RELATIONS ............................................................................................... 55

SECTION 1. MARRIAGES ....................................................................................................... 55

SECTION 2. PROPERTY LAW. ............................................................................................... 57

SECTION 3. PARENTAGE. ...................................................................................................... 60

SECTION 4: DUTY TO PAY CHILD SUPPORT AND CHILD SUPPORT AMOUNT. ......... 63

SECTION 5. WAGE WITHHOLDING AND WITHHOLDING OF TRIBAL PER CAPITA

PAYMENTS. ....................................................................................................... 73

SECTION 6. PENALTIES FOR NON-PAYMENT OF CHILD SUPPORT.............................. 75

SECTION 7. CHILD SUPPORT AND AN AGENCY VESTED WITH CARE, CONTROL,

AND SUPERVISION OR LEGAL CUSTODY. ................................................. 76

SECTION 8. MESCALERO APACHE TRIBAL CHILD SUPPORT ENFORCEMENT

OFFICE................................................................................................................ 76

SECTION 9. MISCELLANEOUS PARENTAGE AND CHILD SUPPORT PROVISIONS. ... 79

CHAPTER 4 ADOPTION ....................................................................................................................... 85

SECTION 1. ADOPTION OF INDIVIDUALS .......................................................................... 85

SECTION 2. ENROLLMENT IN THE MESCALERO APACHE TRIBE. ............................... 88

CHAPTER 5 CHANGE OF NAME ........................................................................................................ 89

SECTION 1. GENERAL ............................................................................................................ 89

SECTION 2. PROCEDURE. ...................................................................................................... 89

CHAPTER 6 APPOINTMENT OF GUARDIANS ............................................................................... 91

SECTION 1. GENERAL ............................................................................................................ 91

SECTION 2. PROCEDURE ....................................................................................................... 91

SECTION 3. DUTIES................................................................................................................. 92

CHAPTER 7 HEIRSHIP ......................................................................................................................... 93

SECTION 1. GENERAL ............................................................................................................ 93

SECTION 2. APPOINTMENT OF ADMINISTRATOR ........................................................... 93

SECTION 3. FILING CREDITOR'S CLAIMS. ......................................................................... 94

SECTION 4. HEARING TO DETERMINE HEIRS. ................................................................. 94

SECTION 5. DESCENT AND DISTRIBUTION OF INTESTATE'S ESTATE. ....................... 96

SECTION 6. PAYMENT OF CLAIMS AND DISTRIBUTION OF ESTATE. ....................... 100

SECTION 7. REPORTS AND FINAL SETTLEMENT........................................................... 100

SECTION 8. PRESUMPTION OF DEATH. ............................................................................ 101

CHAPTER 8 COLLECTION AND REPOSSESSION ....................................................................... 103

SECTION 1. CITATION. ......................................................................................................... 103

SECTION 2. DEFINITIONS. ................................................................................................... 103

SECTION 3. PROCEDURE WITHOUT SUIT. ....................................................................... 103

SECTION 4. PROCEDURE FOR SUIT. .................................................................................. 104

SECTION 5. UNLAWFUL COLLECTION AND REPOSSESSION PRACTICES ............... 104

SECTION 6. DISPOSITION OF COLLATERAL; REDEMPTION. ....................................... 105

SECTION 7. JURISDICTION REMEDIES. ............................................................................ 105

SECTION 8. HEARINGS TO ENFORCE JUDGMENT. ........................................................ 105

CHAPTER 9 SENTENCES ................................................................................................................... 107

SECTION 1. NATURE OF SENTENCE. ................................................................................ 107

SECTION 2. PROBATION, PAROLE, FINES. ....................................................................... 107

SECTION 3. HABITUAL OFFENDERS, INTOXICATION AND SEX OFFENSES. ........... 107

SECTION 4. PRESIDENTIAL POWER TO PARDON. ......................................................... 108

SECTION 5. ALTERNATIVE SENTENCING. ...................................................................... 108

SECTION 6. DOMESTIC VIOLENCE.................................................................................... 108

CHAPTER 10 OFFENSES AND PENALTIES ................................................................................... 111

SECTION 1. GENERAL. ......................................................................................................... 111

SECTION 2. ASSAULT AND BATTERY. ............................................................................. 113

SECTION 3. KIDNAPPING AND FALSE IMPRISONMENT. .............................................. 114

SECTION 4. CRIMES AGAINST CHILDREN AND DEPENDENTS................................... 114

SECTION 5. WEAPONS, EXPLOSIVES AND FIRES........................................................... 115

SECTION 6. NUISANCES. ..................................................................................................... 116

SECTION 7. SEX OFFENSES. ................................................................................................ 117

SECTION 8. SEX OFFENSES AGAINST MINORS. ............................................................. 118

SECTION 9. MARITAL AND FAMILIAL OFFENSES. ........................................................ 119

SECTION 10. DRUG ABUSE.................................................................................................. 120

SECTION 11. CRIMES AGAINST REPUTATION. ............................................................... 120

SECTION 12. TRESPASS. ...................................................................................................... 120

SECTION 13. PROPERTY DAMAGE. ................................................................................... 121

SECTION 14. THEFT. ............................................................................................................. 122

SECTION 15. ANIMALS......................................................................................................... 123

SECTION 16. CRIMES AGAINST PUBLIC PEACE. ............................................................ 124

SECTION 17. GAMBLING. .................................................................................................... 128

SECTION 18. REMOVAL. ...................................................................................................... 129

SECTION 19. INTERFERENCE WITH LAW ENFORCEMENT. ......................................... 131

SECTION 20. MISCONDUCT BY OFFICIALS. .................................................................... 132

SECTION 21. BRIBERY. ........................................................................................................ 134

SECTION 22. PERJURY. ........................................................................................................ 134

SECTION 23. INITIATORY CRIMES. ................................................................................... 134

iii

SECTION 24. CRIMES AGAINST TRIBE IN TIMES OF EMERGENCY. ........................... 134

SECTION 25. DESECRATION, TRESPASSING AND LOITERING AT CEMETERY. ...... 135

SECTION 26. SACRED PRACTICES ..................................................................................... 135

SECTION 27. DOMESTIC VIOLENCE.................................................................................. 135

SECTION 28. ABUSE OF ELDERS & VULNERABLE ADULTS ........................................ 136

CHAPTER 11 CHILDREN'S CODE.................................................................................................... 139

SECTION 1. SCOPE. ............................................................................................................... 139

SECTION 2. JURISDICTION. ................................................................................................. 144

SECTION 3. POWERS AND DUTIES. ................................................................................... 146

SECTION 4. COURT PERSONNEL, APPOINTMENT, AND DUTIES. ............................... 147

SECTION 5. COURT PROCEDURE. ...................................................................................... 150

SECTION 6. JUDGMENTS, ORDERS, APPEALS. ............................................................... 153

SECTION 7. SERVICE OF PROCESS, SEARCH WARRANTS, AND SUBPOENAS. ........ 155

SECTION 8. JUVENILE JUSTICE.......................................................................................... 158

SECTION 9. CHILD WELFARE. ............................................................................................ 163

SECTION 10. PLACEMENT, CUSTODY, AND CARE, CONTROL, AND SUPERVISION

OF CHILDREN. ................................................................................................ 168

SECTION 11. TERMINATION OF PARENTAL RIGHTS. ................................................... 173

SECTION 12. IMPLEMENTATION OF THE INDIAN CHILD WELFARE ACT. ............... 174

SECTION 13. LICENSING STANDARDS FOR FOSTER CARE ......................................... 175

SECTION 14. SUPPORT OF CHILDREN. ............................................................................. 209

SECTION 15. TRUANCY. ...................................................................................................... 210

CHAPTER 12 TRAFFIC CODE ........................................................................................................... 215

SECTION 1. DEFINITIONS .................................................................................................... 215

SECTION 2. TRAFFIC ADMINISTRATION. ........................................................................ 221

SECTION 3. APPLICATION OF TRAFFIC REGULATIONS. .............................................. 222

SECTION 4. ACCIDENTS AND ACCIDENT REPORTS...................................................... 223

SECTION 5. SIGNS, SIGNALS, AND MARKINGS. ............................................................. 224

SECTION 6. TRAFFIC REGULATIONS................................................................................ 227

SECTION 7. SPECIAL RULES FOR MOTORCYCLES. ....................................................... 255

SECTION 8. OPERATION OF BICYCLES. ........................................................................... 258

SECTION 9. VEHICLE REGULATIONS. .............................................................................. 259

SECTION 10. PENALTIES AND PROCEDURES ON ARREST........................................... 276

SECTION 11. EFFECT AND SHORT TITLE. ........................................................................ 280

SECTION 12. GENERAL PROVISIONS. ............................................................................... 280

SECTION 13. LICENSES. ....................................................................................................... 281

SECTION 14. OFF-ROAD MOTORIZED VEHICLE USE .................................................... 281

CHAPTER 13 ADMISSION, PRACTICE AND DISCIPLINE OF ATTORNEYS ......................... 283

SECTION 1. TRIBAL MEMBER REPRESENTATION......................................................... 283

SECTION 2. ATTORNEYS AT LAW. .................................................................................... 283

SECTION 3. CODE OF CONDUCT & DISCIPLINE ............................................................. 283

CHAPTER 14 ALCOHOLIC BEVERAGES & TOBACCO PRODUCTS ...................................... 287

SECTION 1. GENERAL. ......................................................................................................... 287

SECTION 2. OFFENSES AND PENALTIES. ......................................................................... 287

SECTION 3. ALCOHOL ABUSE: COMMITMENT PROCEEDINGS. ................................. 288

SECTION 4. TRIBAL TRANSPORTATION OF INTOXICATED PERSONS. ..................... 290

SECTION 5. TOBACCO SALES TO MINORS ...................................................................... 291

CHAPTER 15 HUNTING AND FISHING .......................................................................................... 293

SECTION 1. GENERAL PROVISIONS. ................................................................................. 293

SECTION 2. THE MESCALERO APACHE CONSERVATION DEPARTMENT. ............... 295

SECTION 3. PROCLAMATIONS AND REGULATIONS. .................................................... 296

SECTION 4. PERMITS. ........................................................................................................... 297

SECTION 5. HUNTING REGULATIONS. ............................................................................. 299

SECTION 6. FISHING REGULATIONS. ............................................................................... 300

SECTION 7. TRAPPING. ........................................................................................................ 301

SECTION 8. PROHIBITED ACTIVITIES. ............................................................................. 302

SECTION 9. CIVIL PROCEEDINGS. ..................................................................................... 304

SECTION 10. CRIMINAL PROCEEDINGS. .......................................................................... 307

SECTION 11. MISCELLANEOUS PROVISIONS. ................................................................ 307

CHAPTER 16 ANIMAL CONTROL ................................................................................................... 309

SECTION 1. DOGS. ................................................................................................................. 309

SECTION 2. LIVESTOCK, EQUINE AND FERAL ANIMALS. ........................................... 311

SECTION 3. BRANDING. ....................................................................................................... 314

CHAPTER 17 LAND USE CODE ........................................................................................................ 317

SECTION 1. GENERAL PROVISIONS. ................................................................................. 317

SECTION 2. LAND ASSIGNMENTS. .................................................................................... 317

SECTION 3. HOMESITE ASSIGNMENTS. ........................................................................... 320

SECTION 4. AGRICULTURAL ASSIGNMENTS. ................................................................ 321

SECTION 5. BUSINESS ASSIGNMENTS. ............................................................................ 323

SECTION 6. FORFEITURE..................................................................................................... 324

SECTION 7. CONDEMNATION. ........................................................................................... 326

SECTION 8. GRAZING. .......................................................................................................... 326

SECTION 9. SALE OF WOOD PRODUCTS. ......................................................................... 332

SECTION 10. COMMUNITY IMPROVEMENT AREAS. ..................................................... 341

SECTION 11. ZONING. .......................................................................................................... 347

SECTION 12. FIRE PREVENTION. ....................................................................................... 350

SECTION 13. SOLID WASTE. ............................................................................................... 351

SECTION 14. LIQUID WASTE. ............................................................................................. 352

SECTION 15. INDUSTRIAL WASTE. ................................................................................... 355

SECTION 16. PASSAGE ACROSS INACCESSIBLE ASSIGNMENTS ............................... 360

SECTION 17. CONCERNING MORTGAGES, MORTGAGE FORECLOSURES, &

EVICTIONS. ..................................................................................................... 361

SECTION 18. PERMIT REQUIRED TO BURN GARBAGE OR REFUSE ........................... 371

CHAPTER 18 FENCES ......................................................................................................................... 373

SECTION 1. NECESSITY. ...................................................................................................... 373

SECTION 2. SPECIFICATIONS. ............................................................................................ 373

SECTION 3. LEGAL PROTECTION OF FENCES AGAINST DAMAGE OR

DESTRUCTION. ............................................................................................... 373

CHAPTER 19 TAXATION ................................................................................................................... 375

SECTION 1. GROSS RECEIPTS TAX.................................................................................... 375

SECTION 2. NON-TAXATION OF HOME CONSTRUCTION. ........................................... 376

SECTION 3. TAXATION OF GASOLINE ............................................................................. 377

SECTION 4. SPECIAL ASSESSMENT – SCHOOL TAX. ..................................................... 378

SECTION 5. CIGARETTE TAX.............................................................................................. 379

CHAPTER 20 BUSINESS REGULATIONS ....................................................................................... 381

SECTION 1. OCCUPATION LICENSE. ................................................................................. 381

SECTION 2. FOOD ESTABLISHMENTS. ............................................................................. 383

SECTION 3. CONSTRUCTION BUSINESS. ......................................................................... 384

SECTION 4. LABOR ORGANIZATIONS. ............................................................................. 384

SECTION 5. BUSINESS CORPORATIONS. ......................................................................... 385

SECTION 6. BOOKS AND RECORDS................................................................................... 394

SECTION 7. BUSINESS CORPORATIONS; AMENDMENT OF ARTICLES OF

INCORPORATION ........................................................................................... 396

SECTION 8. BUSINESS CORPORATION; MERGERS AND CONSOLIDATIONS ........... 397

SECTION 9. SALE OF ASSETS AND DISSOLUTION OF CORPORATION. ..................... 400

SECTION 10. LIQUIDATION OF CORPORATION'S ASSETS BY TRIBAL COURT ....... 404

SECTION 11. BUSINESS CORPORATIONS; MISCELLANEOUS PROVISIONS. ............ 406

SECTION 12. ESTABLISHMENT OF CREDIT PRACTICES AT TRIBAL ENTERPRISES

........................................................................................................................... 408

SECTION 13. TRIBAL PREFERENCE IN HIRING ............................................................... 408

SECTION 14. REGULATION OF BOXING. .......................................................................... 409

CHAPTER 21 BUILDING CODES ...................................................................................................... 413

SECTION 1. COMPLIANCE CODE. ...................................................................................... 413

SECTION 2. RULES AND REGULATION FOR CONSTRUCTION OF BUILDINGS ........ 415

CHAPTER 22 [RESERVED FOR FUTURE USE.] ............................................................................ 417

CHAPTER 23 EDUCATION ASSISTANCE PROGRAMS .............................................................. 419

SECTION 1. GENERAL .......................................................................................................... 419

SECTION 2. SCHOLARSHIP PROGRAM. ............................................................................ 420

SECTION 3. SCHOLARSHIP APPROVAL, DURATION, AND AMOUNT ........................ 421

SECTION 4. SCHOLARSHIP APPLICATIONS .................................................................... 423

SECTION 5. CONDITIONS OF AWARDS ............................................................................ 425

CHAPTER 24 TRIBAL GOVERNMENT ........................................................................................... 429

SECTION 1. LEGISLATIVE AND EXECUTIVE POWERS. ................................................ 429

SECTION 2. COUNCIL BY-LAWS. ....................................................................................... 429

SECTION 3. SUB-COMMITTEE RULES .............................................................................. 429

SECTION 4. PURPOSE. .......................................................................................................... 430

SECTION 5. EXECUTIVE ACTIVITIES................................................................................ 430

SECTION 6. SPECIFIC DEALINGS WITH OUTSIDE ENTITIES. ...................................... 432

SECTION 7. USE OF TRIBAL AIRCRAFT............................................................................ 432

SECTION 8. REMOVAL FROM OFFICE; DEFINITION OF “MAJORITY VOTE.” ........... 432

SECTION 9. PRESIDENT, VICE PRESIDENT NOT TO RECEIVE STIPEND. ................... 432

SECTION 10. INDEMNIFICATION OF TRIBAL OFFICIALS, OFFICERS, EMPLOYEES,

AND AGENTS. ................................................................................................. 433

SECTION 11. RIGHTS OF INDIANS. .................................................................................... 436

SECTION 12. GENERAL EMPLOYMENT APPEALS BOARD ........................................... 437

CHAPTER 25 PERSONS HAVING BEHAVIORAL OR EMOTIONAL ADJUSTMENT

PROBLEMS ............................................................................................................................................ 441

SECTION 1. MENTAL HEALTH CODE. ............................................................................... 441

CHAPTER 26 SCHOOL BOARD......................................................................................................... 451

SECTION 1. COMPOSITION. ................................................................................................ 451

SECTION 2. AUTHORITY. .................................................................................................... 451

SECTION 3. ELECTION. ........................................................................................................ 452

SECTION 4. SCHOOL POLICIES. ......................................................................................... 452

CHAPTER 27 SOVEREIGN IMMUNITY .......................................................................................... 453

CHAPTER 28 RELATIONS WITH NON-MEMBERS ..................................................................... 455

SECTION 1. RULES GOVERNING SOLICITATION BY RELIGIOUS GROUPS .............. 455

CHAPTER 29 GAMING ........................................................................................................................ 457

SECTION 1. NAME. ................................................................................................................ 457

SECTION 2. DEFINITIONS. ................................................................................................... 457

SECTION 3. PURPOSES. ........................................................................................................ 460

SECTION 4. INTERPRETATION. .......................................................................................... 461

SECTION 5. GAMING POLICY. ............................................................................................ 461

SECTION 6. CLASS II AND CLASS III GAMES AUTHORIZED. ....................................... 461

SECTION 7. MESCALERO APACHE TRIBAL GAMING COMMISSION. ........................ 462

SECTION 8. MESCALERO APACHE TRIBAL GAMING COMMISSION’S

RELATIONSHIP TO TRIBAL GOVERNMENT. ............................................ 466

SECTION 9. LICENSES FOR OPERATING AND CONDUCTING GAMES OF CHANCE.

........................................................................................................................... 467

SECTION 10. MANAGEMENT CONTRACT........................................................................ 471

SECTION 11. PROVIDERS OF CLASS III GAMING EQUIPMENT OR SUPPLIES. ......... 472

SECTION 12. FINANCIAL PRACTICES AND REPORTING. ............................................. 473

SECTION 13. USE OF GAMING REVENUE. ........................................................................ 474

SECTION 14. PROTECTION OF PATRONS. ........................................................................ 474

SECTION 15. DENIAL, SUSPENSION OR REVOCATION OF LICENSES. ...................... 476

SECTION 16. PROHIBITED ACTS. ....................................................................................... 477

SECTION 17. CIVIL PENALTIES. ......................................................................................... 478

SECTION 18. ENFORCEMENT; JURISDICTION; SUBPOENAS. ...................................... 479

SECTION 19. SEVERABILITY. ............................................................................................. 479

SECTION 20. SOVEREIGN IMMUNITY. ............................................................................. 479

SECTION 21. AMENDMENTS............................................................................................... 480

SECTION 22. REPEAL OF PRIOR LAWS. ............................................................................ 480

SECTION 23. EFFECTIVE DATE. ......................................................................................... 480

CHAPTER 30 DOMESTIC VIOLENCE. ............................................................................................ 481

SECTION 1. GENERAL. ......................................................................................................... 481

SECTION 2. ORDERS OF PROTECTION. ............................................................................ 481

SECTION 3. PRE-TRIAL RELEASE. ..................................................................................... 483

SECTION 4. LAW ENFORCEMENT & DOMESTIC VIOLENCE........................................ 484

SECTION 5. REPORTING & NOTICE ................................................................................... 485

SECTION 6. MISCELLANEOUS PROVISIONS. .................................................................. 485

CHAPTER 31 SEX OFFENDER REGISTRATION CODE .............................................................. 489

SECTION 1. GENERAL .......................................................................................................... 489

SECTION 2. OFFENSES REQUIRING REGISTRATION..................................................... 490

SECTION 3. TIERED OFFENSES .......................................................................................... 491

SECTION 4. REGISTRATION. ............................................................................................... 493

vii

SECTION 5. REQUIRED INFORMATION. ........................................................................... 496

SECTION 6. PUBLIC SEX OFFENDER REGISTRY WEBSITE. ......................................... 499

SECTION 7. NOTIFICATION OF REGISTRATION OR UPDATES .................................... 500

SECTION 8. CRIMES & CIVIL SANCTIONS ....................................................................... 500

CHAPTER 32 ENVIRONMENTAL POLICY ACT OF 1994 ........................................................... 503

SECTION 1. GENERAL. ......................................................................................................... 503

SECTION 2. ESTABLISHMENT. ........................................................................................... 503

SECTION 3. MISCELLANEOUS PROVISIONS. .................................................................. 506

CHAPTER 32A SOLID WASTE MANAGEMENT CODE OF 1993 ............................................... 509

SECTION 1. SHORT TITLE; FINDINGS; DEFINITIONS..................................................... 509

SECTION 2. MESCALERO ENVIRONMENTAL PROTECTION OFFICE ......................... 514

SECTION 3. SOLID WASTE MANAGEMENT PLAN AND CONSIDERATION ............... 515

SECTION 4. RESOURCE RECOVERY PROGRAM ............................................................. 517

SECTION 5. PERMIT AND INSPECTION PROGRAM ........................................................ 519

SECTION 6. ENFORCEMENT PROGRAM ........................................................................... 523

CHAPTER 32B WATER QUALITY STANDARDS .......................................................................... 527

SECTION 1. GENERAL PROVISIONS. ................................................................................. 527

SECTION 2. GENERAL STANDARDS. ................................................................................ 533

SECTION 3. DESIGNATED USES ......................................................................................... 536

SECTION 4. PERMITS, MONITORING, AND ANALYSIS ................................................. 540

SECTION 5. VIOLATIONS, ENFORCEMENT AND PENALTIES ...................................... 541

SECTION 6. MISCELLANEOUS WATER QUALITY PROVISIONS .................................. 543

CHAPTER 33 SKI SAFETY, RESPONSIBILTY AND LIABILITY ORDINANCE ...................... 547

SECTION ONE. INTRODUCTION AND DEFINITIONS ..................................................... 547

SECTION 2. ASSUMPTION OF RISK; DUTIES TOWARDS SKIERS ................................ 548

CHAPTER 34 WORKERS’ COMPENSATION ................................................................................. 555

SECTION 1. INTRODUCTION............................................................................................... 555

SECTION 2. DEFINITIONS .................................................................................................... 555

SECTION 3. REPORTING OBLIGATIONS ........................................................................... 557

SECTION 4. ADMINISTRATOR ............................................................................................ 557

SECTION 5. SCOPE OF COVERAGE .................................................................................... 558

SECTION 6. INDEPENDENT MEDICAL EXAMINATION ................................................. 558

SECTION 7. MEDICAL CONTROL OF CLAIM ................................................................... 558

SECTION 8. DISPUTE RESOLUTION .................................................................................. 558

SECTION 9. DISCOVERY ...................................................................................................... 559

SECTION 10. THE HEARING ................................................................................................ 560

SECTION 11. RIGHT OF COUNSEL ..................................................................................... 560

SECTION 12. LAW TO APPLY .............................................................................................. 560

SECTION 13. FINAL DECISION............................................................................................ 560

SECTION 14. EFFECT OF REQUEST FOR HEARING ........................................................ 560

SECTION 15. ACTS OUTSIDE COURSE OR SCOPE OF EMPLOYMENT ........................ 561

SECTION 16. WORKERS COMPENSATION BENEFITS .................................................... 561

SECTION 17. STATUTE OF LIMITATIONS......................................................................... 563

SECTION 18. COMPROMISE AND RELEASE..................................................................... 563

SECTION 19. STIPULATION AWARD. ................................................................................ 563

SECTION 20. CLAIM CLOSURE. .......................................................................................... 563

viii

SECTION 21. RECOVERY OF PAYMENTS MADE DUE TO ERROR, MISTAKE, OR

FRAUD. ............................................................................................................. 563

SECTION 22. CLAIM FILES AND RECORDS CONFIDENTIAL ........................................ 564

SECTION 23. SEVERABILITY & AMENDMENT................................................................ 564

SECTION 24. SOVEREIGN IMMUNITY. ............................................................................. 564

CHAPTER 35 TORTS AND CLAIMS AGAINST THE MESCALERO APACHE TRIBE .......... 565

SECTION 1. TORTS. ............................................................................................................... 565

SECTION 2. CLAIMS AGAINST TRIBE. .............................................................................. 565

CHAPTER 36 CODE AUTHORIZATION .......................................................................................... 567

SECTION 1. GENERAL .......................................................................................................... 567

SECTION 2. REPEAL. ............................................................................................................. 567

CHAPTER 1

ELECTION CODE

SECTION 1. GENERAL.

1-1-1. NAME. This Chapter shall be known as the Election Code of the Mescalero Apache Tribe.

1-1-2. PURPOSE. The purpose of this Election Code is to provide regulations that will result in fair and

efficient elections.

1-1-3. SCOPE. The provisions of this Election Code shall apply to both regular and special elections for

the following:

President;

Vice President;

Members of the Tribal Council;

Mescalero Apache School Board members; or

Any proposition, including:

Constitutional amendments;

Referenda;

Recall of elected Tribal officials; or

Other questions submitted to the members of the Tribe for a vote.

1-1-4. DEFINITIONS.

"Felony," as used in Article VI § 1 of the Revised Constitution, means any offense that is defined

by the jurisdiction wherein the offense occurred as a "felony;"

"Serious Offenses" as used in Article VI § 1 of the Revised Constitution includes:

Those crimes specifically enumerated in Article VI § 1; and

Any other offense involving:

A disregard of the interests of the Tribe as a whole;

Misconduct or gross neglect of duty;

Moral turpitude;

Public intoxication; or

Driving while intoxicated (DWI).

But, only if:

An actual conviction has been entered by a court of competent jurisdiction;

Where an individual has been convicted of "habitual drunkenness", the Board has

determined that sufficient evidence exists that the condition persists; and

Seven (7) years have NOT lapsed since the conviction.

"Resided" as that term is used in the Revised Constitution at Article VIII § 3 and Article IX §

2(b) shall refer to the act of remaining physically present at a single, fixed place for the past six

(6) months with an intent of making that place the individual's home, with only brief absences.

"Policy making position" as used in Article VIII § 4 of the Revised Constitution shall refer to

The head of a Tribal program or department;

The general manager of a tribal enterprise; or

A similar position in an entity doing a significant amount of business on the Mescalero

Apache Reservation.

“Administrative assistant to the Tribal Council” shall mean "tribal secretary" as used in Article IX

§ 6 and § 9 of the Revised Constitution and "Secretary of the Tribal Council" as used in Article

IX § 8 of the Revised Constitution, and shall refer to the paid, recording administrative assistant

to the Tribal Council.

"Days" as used in the Revised Constitution and in this Code shall refer to calendar days unless

otherwise specified. The term "business day" shall refer to any day during which the Mescalero

Apache Tribal administrative offices are open for regular business.

1-1-5. VOTING PLACES. There shall be one voting place which shall be located at the Tribal

Administrative Offices in a room to be designated by the Election Board for that purpose.

SECTION 2. ELECTION BOARD.

1-2-1. COMPOSITION. The Mescalero Apache Tribal Election Board (hereinafter "the Election Board")

shall consist of ten (10) regular members and two (2) alternate members.

1-2-2. APPOINTMENT OF MEMBERS.

All regular and alternate members of the Election Board shall be appointed as provided in Article

IX § 1 of the Revised Constitution on or before ninety (90) days prior to the first scheduled

election of the year.

Any person so appointed may decline the appointment, in which case, another appointment shall

be made in a manner not inconsistent with paragraph (A) of this section.

1-2-3. APPOINTMENT OF CHAIRPERSON, VICE-CHAIRPERSON, AND SECRETARY OF THE

ELECTION BOARD.

The President of the Mescalero Apache Tribe, with the concurrence of a majority of the Tribal

Council, shall appoint the Chairperson of the Election Board.

The appointed members of the Election Board shall elect, by majority vote of those members

present and a quorum being present, the Vice-Chairperson, and the Secretary of the Election

Board.

The Chairperson shall:

Preside over all meetings or hearings of the Election Board:

Call meetings or hearings required by this Code and any other meetings which he or she

finds necessary, with appropriate notice;

Set the agenda of Board meetings;

Establish any rules deemed necessary for the conduct of Board meetings;

Have the right to vote on all matters before the Board; and

Have the power to delegate duties as necessary to provide for a fair and efficient election

process.

The Vice-Chairperson shall:

Serve as Chairperson in the absence of the Chairperson;

Have the right to vote on all matters before the Election Board; and

Perform any duties delegated to him or her by the Chairperson.

The Secretary shall:

Keep the minutes of all Election Board meetings;

Ensure that all forms required are available through the Election Forms Box and that all

filings placed in the Election Board Mailbox are transferred to the Board as a whole for

review;

Keep records of:

Any Board rulings, decisions, and findings;

All filings;

The voter registry; and

Other documents related to the election;

At the end of the Board’s term, provide for the safe-keeping or transfer of all Election

Board records to the successor Election Board;

Serve as Chairperson in the absence of the Chairperson and Vice-Chairperson;

Have the right to vote on all matters before the Board; and

Perform any duties delegated to him or her by the Chairperson.

1-2-4. DESIGNATION OF JUDGES, CLERKS, AND INTERPRETERS.

Two (2) members of the Election Board appointed by the President, shall be designated by the

President, with the consent of the Tribal Council, as Judges. Judges shall:

Observe voting and other election proceedings;

Make decisions in the case of minor procedural disputes needing immediate resolution on

the day of the election; and

Otherwise ensure the security and integrity of the ballots cast.

Three (3) members of the Election Board appointed by the President, shall be designated by the

President, with the consent of the Tribal Council, as Clerks. Clerks shall:

Ensure, by comparing voter identification to the roster of registered eligible voters

prepared by the Board, that only eligible voters are allowed to cast ballots;

Keep a record of:

The number of ballots cast;

The names of voters who cast ballots;

Any election related disputes and their resolution (if any);

Problems with voting machines;

Frequently asked questions; and

Other significant occurrences on Election Day.

Three (3) members of the Election Board appointed by the President, shall be designed by the

President, with the consent of the Tribal Council, as Interpreters. Interpreters shall provide

assistance to voters, upon request for such assistance, on the day of the election by explaining

how:

To mark ballots;

Insert ballots into the voting machine; and

The voting process in general, in English or Apache, as requested. Interpreters shall be

able to speak Apache fluently.

1-2-5. QUALIFICATIONS AND ETHICAL STANDARDS.

Members of the Election Board shall be enrolled members of the Mescalero Apache Tribe, over

eighteen (18) years of age and of good moral character. Those individuals designated as

Interpreter in their appointments shall also be fluent in Apache.

In the event that any person appointed to the Election Board files as a candidate for an office

during his or her tenure on the Election Board, he or she shall immediately withdraw from the

Board.

Election Board members shall uphold the integrity and independence of the Board as well as the

election process in the performance of the Board's duties. Specifically:

Election Board members shall not:

Actively or publicly participate in the campaign of any person for Tribal elective

office;

Become involved in any Tribal political activities or actions which could be

interpreted in the Tribal community as supporting a particular political position;

Announce his or her views on disputed legal or political issues related to Tribal

elections or candidates for elected office;

Accept a gift, favor or loan from any person who is a candidate for Tribal

elective office;

Solicit funds or contribute to a Tribal political organization, candidate or political

event; and

Make any public comment regarding election rules and procedures unless

authorized by the Board.

Each Election Board member shall, in the case of a conflict of interest, such as close

familial or other relationship with individuals involved in a dispute or other occurrence

requiring a Board decision:

Give notice of the existence of such conflict; and

Recuse himself or herself from such decision.

The Election Board Chairperson shall appoint an alternate Board member to take the affected

Board member's place in any discussion and vote.

Election Board members shall use the utmost discretion in dealing with confidential

information pertaining to candidates.

Each Election Board member shall treat all other Board members with civility and

perform those duties delegated to him or her to the best of his or her ability.

Each Election Board member shall be required to sign a statement under oath that he or

she shall comply with the Revised Constitution and the Election Code.

1-2-6. TERMS OF OFFICE. Following their appointment, the members of the Election Board will remain

in office until a subsequent Election Board is appointed in accordance with Article IX § 1 of the Revised

Constitution.

1-2-7. GENERAL DUTIES. In addition to duties specified elsewhere, the Election Board shall:

Issue such notices as are necessary within the deadlines set herein or, where no deadline is noted,

within a reasonable time to inform Tribal members of the dates, times, places, and procedures for

nominations and elections.

Post all notices in the manner required by the Election Code and/or the Revised Constitution. In

the event that the manner of notice is not specified elsewhere, then notice shall be given in a

manner reasonably calculated to give adequate notice to the individual or individuals involved

under the circumstances.

Establish, at the first meeting of the Election Board, a schedule of meetings, training, filing

deadlines, the date of the election, and any other major election events, substantially similar to

that appearing in the Appendix to this Code. This schedule may be revised from time to time as

the need arises, provided that all dates meet the requirements of this Code and the Revised

Constitution.

Strive to meet all deadlines in order to ensure an efficient and fair election process.

Strive to ensure that Tribal elections are conducted in compliance with this Code and the Revised

Constitution.

1-2-8. TRAINING OF THE ELECTION BOARD. The Election Board shall attend election training as

soon as possible after appointment. Such training shall include:

A non-technical but thorough explanation of the duties of the Board and the election process as

prescribed by the Constitution and this Code; and

Presentation of an Election Board Handbook containing:

Updated copies of the Revised Constitution and this Election Code;

Standard guidelines for the operations and processes of elections, including preelectionday activities, election-day activities and post-election-day activities;

Any documents recording past election problems and their solutions promulgated by past

Boards;

All forms and samples promulgated pursuant to this Code; and

Any other materials which may assist the Board in carrying out its duties.

1-2-9. ELECTION BOARD MEETINGS.

All Election Board members must attend all Board meetings as may be regularly scheduled or

called by the Board Chairperson, except by reason of:

Illness;

Disability; or

Other incapacitation.

Absence from two (2) meetings without documentation of illness, disability, or other

incapacitation shall constitute cause for removal in accordance with Section 1-2-11 of this Code.

No formal Board action may be taken except upon majority vote, a quorum being present. A

quorum shall consist of at least six (6) Board members. Alternates may be included in order to

create a quorum.

1-2-10. VACANCIES.

If the total number of Election Board members, including alternates, falls below ten (10)

members, the President of the Tribe shall appoint a replacement member or members. Such

appointments shall be subject to confirmation by the Mescalero Apache Tribal Council.

Any person so appointed shall serve for the duration of the term of his or her predecessor.

1-2-11. REMOVAL. Any member of the Election Board may be removed by a tribunal according to the

provisions of this section.

The tribunal shall be composed of:

The President;

A member of the Tribal Council selected by the Tribal Council; and

The Election Board Chairman, unless the person subject to removal is the Election Board

Chairman, in which case the President shall appoint another member of the Board to sit

on the tribunal.

Removal by the tribunal shall occur only upon a recommendation of removal by:

A majority of the Election Board;

A majority of the Tribal Council, as evidenced by resolution of the Council; or

The Tribal President, of his or her own initiative.

Removal shall occur for good cause only.

A hearing for removal shall be conducted by the tribunal only after providing timely notice to the

affected member of:

Intent to remove;

The reason(s) for such action; and

An opportunity for the person subject to removal to answer the charges against him or

her.

1-2-12. REMOVAL OF THE ENTIRE BOARD. The Tribal President, with the consent of the Tribal

Council, shall have the authority to remove the entire Election Board, if the Board as a whole has been

guilty of:

Gross neglect of duty;

Failing to substantial1y perform those duties prescribed by this Code and/or the Revised

Constitution; and/or

Seriously damaging the legitimacy of the election process and, as a result, Tribal government as a

whole.

Appointment of a new Board shall be made pursuant to §1-2-2 of this Code immediately.

1-2-13. ALTERNATES.

Alternate members of the Election Board shall serve in case of an appointed member's

Absence;

Physical incapability;

Recusal in the case of a conflict of interest; or

Disqualification under the Revised Constitution or this Code.

Alternates shall attend all meetings and training of the Board.

Alternates shall NOT be al1owed to vote or comment on any matter before the Board except

where a regular member is unable to participate for the reasons listed above.

1-2-14. COMPENSATION.

The Election Board, including alternates, shall be compensated with a single amount, to be

determined annually by the Tribal Council provided that the aggregate is reasonable and fair.

In the case of an election for Tribal President, Vice President or Council member:

One half (1/2) of the amount determined shal1 be paid one month prior to the Primary;

and

The last half (1/2) of the amount shal1 be paid two (2) weeks after the General Election.

In the case of a referendum or other special election:

Half the amount shal1 be paid two (2) weeks prior to the election; and

The last half of such amount shal1 be paid two (2) weeks after the election.

The Board may request additional compensation if special circumstances arise. Any additional

compensation shall be subject to the approval of the Mescalero Apache Tribal Council.

Election Board members who are employees of the Mescalero Apache Tribe or one of its subentities or enterprises shall utilize either unpaid administrative leave, which shall be granted, or

paid vacation time which shall be charged against the member's accrued leave.

1-2-15. RULE-MAKING AUTHORITY.

The Election Board shall have the authority to promulgate and enforce such rules as it deems

necessary in order to provide for fair and efficient elections by a majority vote of the entire

Election Board.

Such rules shall not be inconsistent with the Revised Constitution of the Mescalero Apache Tribe

and this Code and shall be submitted to the Tribal Council prior to implementation. The Tribal

Council shall have the authority, by majority vote, to amend or rescind any rules promulgated

under this section.

Unless and until amended or rescinded by the Tribal Council, any rule promulgated pursuant to

this Section shall have the force and effect of law for the duration of the term of the Board

promulgating such rule.

The Board shall post any rule promulgated immediately.

At the end of the Board's term, the Board may recommend that rules promulgated during the

Board's term be considered as possible revision or supplementation to this Code to the Tribal

Council.

1-2-16. ADMINISTRATIVE ASSISTANT TO THE TRIBAL COUNCIL & DESIGNEE.

The administrative assistant to the Tribal Council is not a member of the Election Board and shall

perform only those duties specifically listed herein and in the Revised Constitution at Article IX §

8. All other election-related notices or actions required herein shall be performed by the Election

Board.

Where the administrative assistant to the Tribal Council is absent, the Tribal Census Clerk shall

act as the administrative assistant to the Tribal Council’s designee and shall perform those duties

listed herein and in the Revised Constitution.

SECTION 3. PRE-ELECTION/CANDIDATES.

1-3-1. ELECTION DATES.

Election dates shall be established by the Tribal Council by resolution in a manner consistent with

Article IX § 8 of the Revised Constitution.

Mescalero Apache School Board election dates shall be as established in a separate resolution of

the Tribal Council. There shall be no primary election for the School Board.

Where an election date would otherwise fall on a Saturday, Sunday, or Tribal holiday, then the

date shall be deemed as falling on the immediately preceding business day.

1-3-2. DECLARATION OF CANDIDACY. Any qualified member of the Mescalero Apache Tribe who

desires that his or her name be placed on the ballot as a candidate for the office of president, vice

president, or council member in the primary election shall file a Statement of Intent.

Each Statement of Intent shall be on a form approved by the Election Board and substantially

similar to that appearing in the Appendix to this Code and include:

The candidate's name;

The office for which he or her desires to become a candidate;

His or her Tribal census number;

His or her permanent address;

A statement indicating whether he or she has ever been convicted of a felony as defined

at §1-1-4(A) or offense which may be classified as a "serious offense" as defined at §1-14(B) and description of all convictions;

A statement that he or she:

Has read the pertinent sections of the Code and Revised Constitution (provided to

the candidate by the Board with the Statement of Intent form); and

Shall abide by the same;

A statement that he or she meets the requirements for candidacy in the Code and the

Revised Constitution;

A statement that he or she swears that all information contained therein is true as far as he

or she is aware;

A statement that he or she has signed the form with knowledge that his or her signature

was under penalty of perjury; and

10.

The signature of the individual wishing to become a candidate.

Each Statement of Intent shall be filed on a proper form and shall be returned to the

administrative assistant to the Tribal Council during the time period specified in the election

resolution, which period shall include at least thirty (30) days and include dates that are no earlier

than forty-five (45) days and no less than thirty (30) days prior to the Primary Election or the

Mescalero Apache School Board election. The administrative assistant to the Tribal Council shall

transfer each Statement of Intent received by him or her by the end of the business day.

1-3-3. EXTENSION OF DEADLINE FOR DECLARATION OF CANDIDACY.

If there are no candidates for an elective office, the deadline for filing Statements of Intent as

prescribed in § 1-3-2 shall be extended for one (1) week.

If after the one-week extension, there are no candidates for an elective office, the deadline shall

again be extended by one week increments until a Statement of Intent has been filed.

The date of the election shall remain the same as set by the Board and prescribed by the Revised

Constitution and this Code.

If there are no candidates for an elective office forty-eight (48) hours before the election the

Board shall complete preparation of the ballots, and the election shall be held.

The office for which there were no candidates shall be filled by appointment by the President

with the approval of the Tribal Council.

1-3-4. WITHDRAWAL FROM CANDIDACY. No candidate shall be allowed to withdraw except by

filing written notice with the administrative assistant to the Tribal Council at least twelve (12) days before

the election pursuant to Article IX § 9 of the Revised Constitution. The administrative assistant to the

Tribal Council shall transfer each such notice to the Election Board by the end of the business day.

1-3-5. BACKGROUND CHECKS. The Election Board shall cause background checks to be conducted

on each candidate to determine eligibility. Each candidate shall be required to sign a written consent to a

background check. Potential candidates will be strongly cautioned that any ineligible individual

attempting to hold an office for which they are disqualified under the Revised Constitution of the

Mescalero Apache Tribe is subject to the criminal penalties of §1-7-1.

1-3-6. CANDIDATE ELIGIBILITY & CONFLICTS OF INTEREST.

The Election Board shall notify any candidates it has determined as holding a position or interest

which is in conflict, as described in Article VIII § 4 of the Revised Constitution, with the

candidate serving in elective office if his or her candidacy is successful that resignation from such

position or interest must occur prior to Inauguration Day of the term to be served.

All candidates shall be required to sign an affidavit testifying that they shall resign from their

position or dispose of any interest which creates a conflict of interest if such conflict is found to

exist by the Election Board.

This Section shall not be interpreted as requiring an individual to resign or otherwise act to

terminate a conflict in order to become a candidate.

Eligibility for candidacy for membership on the Mescalero Apache School Board shall be

governed by Chapter 26.

1-3-7. PARDONS BY THE TRIBAL PRESIDENT. Any candidate claiming that he or she has been

pardoned by the Tribal President and that therefore, that he or she is eligible for candidacy must attach a

copy of the pardon to the Statement of Intent. Furthermore, the Election Board may request that the

candidate present an original for inspection by the Election Board.

1-3-8. CERTIFICATION OF CANDIDATES & LIST OF ELIGIBLE VOTERS.

The Election Board shall, at least twenty (20) days before the election:

Review all filings received;

Certify as eligible any and all candidates which have qualified to run for election;

Contact all unqualified candidates and state the reason for their not being qualified; such

notice of ineligibility shall substantially take the form of that in the Appendix to this

Code; and

If a candidate is not qualified due to clerical error on a filing with the Election Board,

afford the candidate an opportunity to correct such error in his or her filing so long as a

new filing is received by the Election Board not later than forty-eight (48) hours after

notification to the candidate in person or not later than five (5) business days after

notification by United States mail, first class postage prepaid; and

Provide to the administrative assistant to the Tribal Council the names of eligible

candidates filing timely, properly completed Statement of Intent. The administrative

assistant to the Tribal Council shall then post those names in accordance with Article IX

§ 9 of the Revised Constitution.

The Election Board shall prepare a list of eligible voters who meet the requirements of Article IX,

Sections 2 and 5 of the Revised Constitution and post the list at least ten (10) days before the

election in at least two (2) public places, one of which shall be the Administration Building.

SECTION 4. ELECTION.

1-4-1. ABSENTEE VOTING. No member of the Mescalero Apache Tribe shall be deprived of his or her

right to vote, if otherwise qualified, because of temporary absence from the Reservation as provided in

Article IX § 5 of the Revised Constitution. Therefore, such voters may cast absentee ballots as described

herein. Early voting shall be governed by Section 1-5-3 below.

Any Tribal member desiring to vote by absentee ballot may request a "Request for Absentee

Ballot" form by mail, email, facsimile, telephone, or in person, from the administrative assistant

to the Tribal Council not earlier than sixty (60) days nor later than one week prior to the election.

The Request for Absentee Ballot form shall be approved by the Election Board and

substantially similar to the form included in the Appendix to this Code, shall be signed by

the voter, and shall require the voter to list:

The name and mailing address of the voter;

The voter's age;

The reason the voter desires an absentee ballot;

A statement to the effect that the voter is a qualified voter in such election and

will be on the date of the election; and

Whether the voter is requesting that the absentee ballot be mailed, emailed, or

faxed to the voter or if the voter plans to obtain an absentee ballot in person.

The Request for Absentee Ballot form shall be returned by mail, email, facsimile, or in

person to the administrative assistant to the Tribal Council who shall transfer the forms to

the Election Board by the end of the business day.

Upon verification by the Election Board that the voter requesting an absentee ballot appears on

the list of eligible voters, the Election Board will forward the absentee ballot to the qualified voter

as provided below.

All absentee ballots shall be marked "Absentee Ballot" and include instructions requiring

the voter to:

Properly mark the voter's choice of candidates on the absentee ballot;

Place the absentee ballot in the empty envelope provided with the absentee ballot

which is marked "Absentee Ballot;"

Sign the enclosed statement swearing that the voter casting the absentee ballot is

an eligible voter and the same individual who requested the absentee ballot; and

which is in substantially the same form as that provided the Appendix to this

Code; and

Enclose and seal the "Absentee Ballot" in the envelope marked “Absentee

Ballot” and enclose that envelope with the signed statement in another envelope

addressed to the Election Board, Mescalero Apache Tribal Administrative

Offices, P.O. Box 227, Mescalero, New Mexico.

No absentee ballot may be cast after 4:30 p.m. the day prior to the scheduled election.

Absentee ballots must be returned to the Election Board by mail or in person.

Upon receipt of an "Absentee Ballot" envelope prior to the close of the polls on Election

Day, the Election Board shall compare the signed statement swearing that the individual

marking the absentee ballot is an eligible voter and the same individual who validly

requested the absentee ballot to the signature on the Request for Absentee Ballot form.

If the signatures on the Request for Absentee Ballot form and the statement

swearing that the individual marking the absentee ballot is the same individual

who validly requested the absentee ballot do NOT match, the "Absentee Ballot"

envelope shall NOT be opened, NOT be counted, and shall be treated as a spoiled

ballot.

If the signatures on the Request for Absentee Ballot form and the statement

swearing that the individual marking the absentee ballot is the same individual

who validly requested the absentee ballot do match, the "Absentee Ballot"

envelope shall be placed in the Absentee Ballot Box and shall be counted at the

time that other ballots are counted.

Absentee ballots received through the mail after the time the polls close on the day of the

election shall be invalid and shall not be counted.

If an absentee ballot has been requested and received by an eligible voter, that voter will

not be allowed to vote in-person on the scheduled Election Day unless and until the

absentee ballot has been surrendered.

The Election Board shall not be responsible for or consider delays caused by the use of the mail

to receive or return request forms or absentee ballots.

1-4-2. BALLOTS.

The ballot, bearing the title "Mescalero Apache Tribe" shall be in a form consistent with the use

of voting machines. The order of appearance for the offices on the ballot where applicable, shall

be:

President;

Vice-President;

Member, Tribal Council; and

Such other offices as the Tribal Council may designate.

The position of candidates' names on the ballot shall be determined by the Election Board

by lot.

Voting machines shall be permitted if such machines provide both a written record and a machine

tabulation of the votes cast, and otherwise operate so as to preserve the integrity of Tribal

elections.

No candidate's name shall appear more than once on the ballot.

Ballots shall be printed after determination of candidate eligibility is completed by the Election

Board; printing shall be completed at least ten (10) days before the election.

Sample ballots shall be printed and made available and posted in at least two (2) public places ten

(l0) days before the election. A sample ballot shall also be displayed at the voting place within

plain view of voters waiting to cast their votes on Election Day. Sample ballots shall be printed

on paper of a different color from that of ballots prepared for voting purposes and shall be plainly

marked "SAMPLE BALLOT."

1-4-3. VOTING HOURS. Voting hours for all Tribal elections shall be between the hours of 7:00 a.m.

and 7:00 p.m.

1-4-4. NUMBER OF ALLOWABLE VOTES IN PRIMARY ELECTIONS; DETERMINATION OF

PERSONS ELECTED TO OFFICE.

Tribal voters shall vote for only four (4) Council candidates in the Tribal Primary election.

The eight (8) Council candidates receiving the highest number of votes in the Primary Election

shall be the only candidates in the Tribal General Election.

The four (4) Council candidates receiving the highest number of votes in the General Election

shall be the duly elected council members.

1-4-5. DISRUPTIVE OR ABUSIVE VOTERS. The Election Board, with the assistance of the Tribal

Conservation Department, if necessary, shall remove any disruptive or abusive voter from the voting

place.

1-4-6. VOTER PRIVACY AND SECRECY OF BALLOT.

Members of the Tribal Council and all other elective officials of the Mescalero Apache Tribe

shall be chosen by secret ballot as required by Article IX § 3 of the Revised Constitution. Nothing

in this section shall be deemed to preclude the use of voting machines.

The Election Board shall ensure that ballots are case in secret by ensuring that each voter marks

and deposits his or her ballot in the voting machine while out of view of other voters and Board

members.

Board members who become aware of a voter's choice of candidates have a duty not to reveal the

voter's choice. Violation of the duty of confidentiality shall implicate § 1-4-1 of this Code.

1-4-7. VOTING INSTRUCTIONS.

Written and visual instructions explaining how to mark ballots and how to deposit them in the

voting machines shall be prepared by the Election Board and posted prominently at numerous

places at the voting place, including the point at which a voter enters the voting booth or location

where the voter marks his or her ballot.

The only candidates for any office in any Tribal election shall be those certified by the Board.

Votes cast for any write-in candidate will not be considered or tallied.

1-4-8. VOTER ASSISTANCE AT THE VOTING PLACE.

An eligible voter may request instruction as to:

How the ballot is to be marked and deposited in the voting machine;

Reading of the candidates' names if the voter is unable to do so; and/or

Translation of the ballot by an official interpreter.

An eligible voter may request assistance in the marking of the ballot as the voter instructs if the

voter is unable to do so due to blindness or other physical disability.

An eligible voter may request that necessary assistance be provided by a family member or other

individual who is present with the voter or by an election board member designated as an

interpreter.

1-4-9. VOTER ASSISTANCE OUTSIDE THE VOTING PLACE.

Board members shall visit local jails, rest homes, hospitals, and other nearby places where voters

qualified to vote are physically present and unable to leave, during voting hours on Election Day.

The following voting procedures shall be followed:

At least three (3) Board members (one of which shall be an Election Board Judge and one

which shall be an Interpreter) must be present;

Each Board member shall remain in the presence of all other Board members and all

ballots cast at all times;

Board members shall verify the identification of voters against the list of qualified voters

prepared by the Board;

Each voter must sign the official registry of voters;

Board members shall provide instructions to voters and answer any questions related to

the marking of the ballots;

Ballots identical to those prepared for use at the voting place shall be used;

Measures must be taken to provide the voter the greatest privacy possible under the

circumstances to protect the secrecy of the voter's ballot;

Each voter shall be provided with an envelope marked "ballot" to the voter in which the

ballot may be enclosed and sealed; and

Board members shall provide a secure means of storage for the sealed "ballot" envelopes

and voting registry while transporting same to the voting place in order that ballots cast in

the manner prescribed herein may be counted along with all other ballots cast in the

elections and, thus, included in the final tabulation of votes.

A group of three (3) Board members shall visit the personal residences of elderly or physically

disabled Tribal members who are unable to travel to the voting place on the day of the election if

requested to do so and if available resources permit.

Such requests shall be in a form substantially similar to that included in the Appendix to

this Code.

Such requests must be received no more than seven (7) days before the election and no

later than 4:30 p.m. the day before the election.

The same procedures listed above at Paragraph A shall be followed.

1-4-10. WATCHERS. The Election Board may permit Watchers to be present during ballot counting.

However, nothing herein shall be deemed to require the Board to permit Watchers. If the Board permits a

watcher for one individual, the Board shall permit a watcher for any individual requesting one.

1-4-11. EXAMINATION OF BALLOTS. Upon the closing of the polls, the Election Board shall examine

all ballots cast, eliminate any invalid or improperly completed ballots and then determine the number of

votes cast for each candidate.

1-4-12. TIES. Any tie vote shall be decided by lot by the Election Board as set forth in Article IX § 15 of

the Revised Constitution of the Mescalero Apache Tribe.

1-4-13. CERTIFICATION OF ELECTION RESULTS.

A. The Election Board shall, within forty-eight (48) hours days after the closing of polls, prepare a

certification of the results of the election which shall:

Contain an oath swearing that each signature evidences the authenticity of the document

and the accuracy of the election results contained therein;

Be signed, under penalty of perjury, by each member of the Board;

Contain the following information:

The number of voters casting ballots in person and the number of voters casting

Absentee Ballots;

The total number of original ballots issued (the number of ballots issued to voters

voting in person plus the number of absentee ballots issues;

The total number of "spoiled" ballots;

The total number of replacement ballots issued (on the day of the election);

The total number of voters casting valid ballots (the total number of original

ballots issued minus the number of spoiled ballots plus the number of

replacement ballots issued); and

The persons elected to office, the office to which they are election, and the

number of votes received by each candidate;

Take a form approved by the Election Board and substantially similar to that appearing

the Appendix to this Code; and

Be posted immediately by the Board in at least two (2) public places, one of which being

the Tribal Administrative building.

1-4-14. RECOUNT.

In the event that the person receiving the highest number of votes for President or Vice President

has ten (10) or less votes more than the person receiving the next highest number of votes, the

latter may, upon written request submitted to the administrative assistant to the Tribal Council not

later than forty-eight hours after the posting of the results, have the votes for that particular office

recounted by the Election Board. The written request for a recount shall be forwarded to the

Election Board by the end of the business day.

The candidate placing fifth in the election for Tribal Council may, upon written request submitted

to the administrative assistant to the Tribal Council not later than forty-eight hours after the

posting of the results, hat the votes be recounted by the Board provided the original count shows

that candidate received 95% or more of the number of votes received by the candidate placing

fourth. The written request for a recount shall be forwarded to the Election Board by the end of

the business day.

In a referendum election where passage or failure is by a margin of ten (10) or less votes, an

automatic recount shall be conducted.

Any request for a recount shall be delivered to the Election Board no later than forty-eight (48)

hours after the results of the election have been certified and shall be accompanied by a fee of

One Hundred Dollars ($100) which shall be used to cover any costs related to a recount. In the

event that a recount is not required, the fee shall be promptly returned to the individual requesting

the recount.

In the event of a recount, the recount will be conducted under the rules and regulations

established by the Election Board. The recount will be conducted in the presence of at least a

majority of the then-serving members of the Election Board. Should the membership of the

Election Board be diminished by death, illness, or other causes which would prevent them from

serving, vacancies to the Board shall be filled by the rules set forth in § 1-2-10 and Article IX § 1

of the Revised Constitution.

A recount will not be delayed because of the existence of one or more vacancies on the Election

Board, unless the remaining members of the Board, at the time of the recount, number less than

five (5). No recount shall be conducted by less than five (5) Board members.

SECTION 5. MISCELLANEOUS.

1-5-1. TRIBAL EMPLOYEES AS CANDIDATES FOR TRIBAL OFFICE. A Tribal employee running

for elective office:

Shall not conduct campaigning activities during work hours;

Shall not use Tribal vehicles to conduct such activities; and

Shall not be required to take a leave of absence during the pendency of the election.

1-5-2. PROHIBITION ON CERTAIN CAMPAIGNING. Campaigning shall not be allowed within one

hundred (100) feet of an entrance to the voting place during voting hours on the day of an election or

while early voting is occurring. Campaigning includes any action on the part of a candidate or any other

person, including the posting or distribution of written materials, intended to influence any voter to vote

in a particular manner.

1-5-3. EARLY VOTING. It is the policy of the Mescalero Apache Tribe to encourage eligible Tribal

members to vote. Therefore, any voter, if otherwise qualified, may be allowed to vote early. Early voting

shall be conducted as follows:

Early voting shall be allowed for all elections except for Mescalero School Board elections;

The Tribal Council shall determine the dates and times for early voting in the resolution declaring

the election dates; such dates and times shall be after the posting of the ballot and prior to the

election;

At least three (3) members of the Election Board, including at least one (1) Interpreter, must be

present to conduct early voting;

The Board shall verify that each prospective early voter appears on the list of eligible voters;

Where the Board verifies that the voter is on the list of eligible voters, then the voter will be

allowed to vote;

No person allowed to vote early shall be permitted to vote on Election Day; and

Voting shall otherwise occur in the same manner as prescribed herein.

1-5-4. CONSUMPTION OF ALCOHOL OR DRUGS & IMPAIRED VOTERS. Consumption of

alcoholic beverages, illegal drugs, or other intoxicants at the voting place is prohibited. No voter who is

clearly impaired due to intoxication, being under the influence of drugs, or some other reason, as

determined by the Election Board, shall be permitted to cast a ballot.

SECTION 6. DISPUTE RESOLUTION.

1-6-1. PERSONS ALLOWED TO DISPUTE. Only the following persons, hereinafter referred to as

“Challengers,” may file a dispute under this Section:

Candidates whose names appeared or will appear on the ballot;

Individuals who have applied for candidacy in the manner required by Article IX § 6 of the

Revised Constitution and § 1-5-1 of this Code in the case that the dispute is related to eligibility

for candidacy;

The Chairperson of the Election Board; or

Where a dispute arises in a referendum election, any eligible voter.

1-6-2. DISPUTES RESOLVED BY THE ELECTION BOARD. The Election Board shall have

exclusive and final authority to decide all disputes concerning the election process EXCEPT those that

implicate the Revised Constitution of the Mescalero Apache Tribe.

A dispute raised before or after the day of the election or an appeal from the decision of a Judge

must be made in writing and submitted to the Election Board by the Challenger no later than three

(3) business days of the occurrence of the circumstance(s) resulting in the dispute or appeal.

Each written dispute must contain the information required below. The Election Board may

decline to hear the dispute if the written dispute is incomplete or improperly filed.

The Election Board shall hear the dispute within three (3) business days of the filing of the

written dispute. After the hearing, the Election Board shall post its decision as soon as possible

after the hearing in at least two (2) public places. Also, the Election Board shall keep a copy of all

documentation related to the dispute with its other records.

In general, the Election Board shall conduct all hearings so as to provide the Challenger(s) a fair

opportunity to be heard, but shall be mindful of the need to resolve the dispute in a timely

manner.

1-6-3. DISPUTES RESOLVED BY THE TRIBAL COURT. The Tribal Court, sitting as a three-judge

panel, shall have jurisdiction over disputes implicating the Revised Constitution arising before, on, or

after Election Day.

Such disputes must be filed no later than three (3) business days after the date of occurrence

leading to the dispute or the date of the election, whichever occurs first.

The Tribal Court shall hear the dispute within three (3) business days of the date that the dispute

is filed. The decision of the Tribal Court may be appealed to the Tribal Council sitting as the

Supreme Court, if the individual wishing to appeal the decision, or the Chairperson, delivers the

following to the administrative assistant to the Tribal Council no later than three (3) business days

from the date of the issuance of the decision:

A writing detailing the dispute;

Copies of the decisions of the Election Board, if any, and the Tribal Court; and

The reason for appeal to the Supreme Court.

The Supreme Court shall provide notice of its decision to deny or grant the request for a hearing

within three (3) business days of receipt of the appeal.

After hearing an appeal, the Supreme Court shall issue a written decision as soon as possible,

detailing any findings and its reasoning with a copy to the Challenger and the Election Board,

with a copy placed on file.

Any decision by the Supreme Court, promulgated in compliance with this section, shall be

deemed FINAL.

1-6-4. REQUIRED INFORMATION TO BE CONTAINED IN A WRITTEN DISPUTE. A written

dispute shall contain the following information:

Name(s), address(es), and phone number(s) of the Challenger(s);

Detailed description of the occurrence which is disputed;

Date of the occurrence giving rise to the dispute;

The names, addresses, and phone numbers of any witnesses to the Board action or other

occurrence;

Any desired remedy or action;

Signature(s) of the Challenger(s); and

Date of such signature(s).

SECTION 7. PENALTIES.

1-7-1. PENALTIES.

Any person found guilty of willfully and knowingly:

Voting more than once in anyone election;

Voting although ineligible to vote;

Casting an improper ballot;

Otherwise intending to improperly affect election results, bribing or intimidating voters,

the election Board members, the administrative assistant to the Tribal Council, or any

other individuals with the intent to improperly affect election results;

Detaining, destroying, or altering ballots or documentation pertaining to election results;

Refusing to obey Election Board orders to leave the voting place where the Board has

determined that such person has violated this Code or otherwise violating this Code.

Said person shall be sentenced to labor or imprisonment for a period not to exceed one hundred

and eighty (180) days, or a fine of Five Hundred Dollars ($500.00), or both.

Any person found guilty of wi1lfully and knowingly attempting to vote in the regular manner on

Election Day, after having cast an Absentee Ballot, shall be deemed guilty of an offense, and the

Tribal Court may impose a penalty of imprisonment for not more than thirty (30) days, and shall

impose a fine of not less than Ten Dollars ($10.00) nor more than One Hundred Dollars

($100.00).

APPENDIX A

STATEMENT OF INTENT

(print name), declare my intent to be a candidate for the office of

an elective office of the Mescalero Apache Tribe, and hereby swear that the following statements are true:

I have not been convicted of any felony (at any time in the past) or other serious offense (within

the last seven (7) years), as defined by Article VI § of the Revised Constitution and the Tribal

Code at Section 1-1-4(A) and 1-1-4(B), and I have listed all criminal convictions below

completely and accurately. (Please attach and sign additional pages if needed.):

I am or will be at least twenty-five (25) years of age at the time of the primary election. My date

of birth is: _______________________.

I am an enrolled member of the Mescalero Apache Tribe and have one-quarter (1/4) or more

Mescalero Apache blood. My Tribal Census Number is ______________________.

I have resided on the Mescalero Apache Reservation for a period of at least six (6) months

immediately prior to the election date, as defined by Section 1-1-4(C) of the Tribal Code,

specifically at the following address: _________________________________________.

I understand the following:

I will be notified by the Election Board at least twenty (20) days before the Election if I am

ineligible for candidacy and shall have five (5) days to correct mistakes if those mistakes resulted

in my ineligibility.

No candidate is permitted to withdraw except by filing a written notice of withdrawal with the

administrative assistant to the Tribal Council at least twelve (12) days before the election.

If I have been determined to hold a “policy-making position” with the Tribe or with any

organization doing business on the Mescalero Apache Reservation and am elected, I shall resign

such position.

I will be required to take an Oath of Office if elected.

My mailing address is: _______________________________. I may be contacted by phone at:

_______________ or _______________.

I certify that I am signing this declaration under penalty of perjury.

__________________________________________

Candidate

Date and time received by Tribal Secretary: _________________________

____________________________________________________________

Signature of Tribal Secretary Receiving Document

APPENDIX B

AUTHORIZATION TO PERFORM BACKGROUND CHECK

I, ____________, hereby authorize the Mescalero Apache Tribe (the “Tribe”) to investigate my

background for purposes of evaluating whether I am eligible to hold elective Tribal office. I understand

that the Tribe will utilize an outside firm or firms to assist it in checking such information, and I

specifically authorize such an investigation by information services and outside entities of the Tribe's

choice. I also understand that I may withhold my permission and that in such a case, no investigation will

be done, and I will not be allowed to continue my candidacy for elective Tribal office.

__________________________________ __________________

Signature of Candidate

Date

__________________________________

Name of Candidate (Printed)

APPENDIX C

NOTICE OF INELIGIBILITY FOR CANDIDACY

Name of Candidate

Address of Candidate

Mescalero, NM 88340

Dear ______________:

As you know, the Mescalero Apache Tribe’s Revised Constitution sets forth certain requirements

of candidates for elective office. It is with regret that the Mescalero Apache Election Board must inform

you that it has determined you are not eligible for candidacy for the following reason(s):

____

You have been convicted of a felony as defined by § 1-1-4(A) of the Mescalero Apache

Tribal Code which is prohibited by Article VI, § 1 of the Revised Constitution.

____

You have been convicted of a “serious offense” (within the last 7 years) as defined by §

1-1-4(B) of the Mescalero Apache Tribal Code which is prohibited by Article VI § 1 of

the Revised Constitution.

____

You did not return a Statement of Intent by the date required.

____

You returned a Statement of Intent before the deadline, but did not complete the

Statement of intent correctly.

____

You filed for candidacy for more than one elective office in the upcoming election which

is prohibited by Article IX § 14 of the Revised Constitution.

____

You are not 25 years of age, of one-quarter Mescalero Apache blood, and/or a resident of

the Mescalero Apache Reservation as defined by § 1-1-4(C) of the Mescalero Apache

Tribal Code as required for candidacy by Article VIII, § 3 of the Revised Constitution.

If you would like to appeal to the Tribal President for a pardon in order to restore your eligibility

for this election or if you wish to correct any omission or other mistake on your Statement of Intent you

must do so by _____________________.

If you have any questions, please feel free to contact the Election Board by mail at P.O. Box 227,

Mescalero, NM 88340 or call me at (575) 464-________.

Sincerely,

________________________________________

Election Board Chairperson

________________________________________

Election Board Secretary

APPENDIX D

REQUEST FOR ABSENTEE BALLOT

I, __________________________________ (please print name), hereby certify that the

information contained below is accurate and true to the best of my knowledge and that: 1) I am an

enrolled member of the Mescalero Apache Tribe, 2) I am at least 18 years of age as of Election Day, and

3) I am a resident of the Mescalero Apache Reservation, but will not be able to vote in person on the

Election Day for the reason(s) indicated below. I, therefore, wish to exercise my right to vote absentee.

Date of Birth: ________________________

Tribal Census Number: ________________

Address (where my absentee ballot or other notice of the Election Board concerning such ballot

may be mailed):________________________________________________

________________________________________________

Reason for Temporary Absence:

___ 1. Absence for the purpose of attending an educational institution for purposes of obtaining

formal training;

___ 2. Absence for the purposes of receiving treatment at a regular hospital, clinic, or

sanitarium;

___ 3. Absence for purposes of service in the Armed Forces of the United States;

___ 4. Absence for purposes of obtaining additional educational training in regularly held

training sessions; or

___ 5. Absence for any other reason which does not exceed six (6) months’

duration,immediately preceding a Tribal Election, without return to the physical limits of

the Reservation.

Voter’s Signature_______________________

Date_________________________________

****Please note: this form must be received by the administrative assistant to the Tribal Council at the

Tribal Administrative Office, P.O. Box 227, Mescalero, New Mexico by _____________(deadline for

Requests).

WARNING

Any attempt to vote on Election Day after having requested an Absentee Ballot is forbidden by §

1-4-1(B)(5) of the Mescalero Apache Tribal Code unless the Absentee Ballot is surrendered at the time

the voter presents him- or herself at the voting place. Any person attempting to cast a ballot in person on

Election Day after having cast an absentee ballot shall be guilty of a criminal offense under § 1-7-1 of the

Tribal Code. Any other knowing and willful attempt to fraudulently or otherwise improperly affect the

results of a Tribal Election may also be punishable under § 1-7-1 of the Tribal Code.

APPENDIX E

ABSENTEE BALLOT AFFIDAVIT

State of ______________

)

)ss:

County of ______________

)

I, _______________________________ (print name), do solemnly swear or affirm that I am an

eligible voter of the Mescalero Apache Tribe, that I duly requested and received this form along with an

Absentee Ballot. I further swear or affirm that I personally cast the enclosed ballot, or that it was marked

according to my instructions because I was unable to do so.

___________________________________

Signature of Voter

Notary or Signature of Election Board Member is required:

SUBSCRIBED AND SWORN to before me this ____ day of ____, 20__.

___________________________________

Notary Public

My Commission expires:_______________

Election Board Member witnessing signing of this affidavit:

___________________________________

Signature/Date

****Please note: this form must be completed returned along with the Absentee Ballot otherwise your

vote will not be counted. Do not enclose this form inside the envelope marked “Absentee Ballot.” Only

the Absentee ballot should be sealed therein.

This form and the Absentee Ballot must be received by the Election Board, either by mail or in

person, no later than 4:30 P.M. the day before the election.

WARNING

Any attempt to vote on Election Day after having requested an Absentee Ballot is forbidden by §

1-4-1(B)(5) of the Tribal Code unless the Absentee Ballot is surrendered at the time the voter presents

him- or herself at the voting place. Any person attempting to cast a ballot in person on Election Day after

having cast an absentee ballot shall be guilty of a criminal offense under § 1-7-1 of the Tribal Code. Any

other knowing and willful attempt to fraudulently or otherwise improperly affect the results of a Tribal

Election may also be punishable under § 1-7-1 of the Tribal Code.

APPENDIX F

STATEMENT OF WATCHERS

I, ______________________________, have been designated by _________________________ to serve

as a Watcher. I affirm that I shall act in accordance with the following rules:

Once having permitted me to be present, the Mescalero Apache Election Board may, by majority

vote, a quorum being present, withdraw its permission for any reason deemed adequate by a

majority of the Election Board, and may thereafter expel me.

I agree to abide by the Revised Constitution of the Mescalero Apache Tribe and the Tribal Code.

I shall abide by rules of common courtesy and tribal custom.

I shall exhibit respect for all members of the Election Board.

I will under no circumstances be allowed to participate in or interrupt the counting process.

If I have a question or complaint other than as to the counting process, that question or complaint

will be directed to the Chairperson, or other Board member present who is not actively engaged

in the counting process, and shall be asked in such a manner as to avoid disruption of the

counting process.

If I have a complaint regarding the counting process, such complaint shall be deemed as arising

after Election Day and the Election Board shall rule upon that complaint.

I shall remain in the area designated by the Election Board for Watchers while ballots are

counted.

Violation of this Code, as determined by the Election Board shall subject me to criminal

penalties.

Furthermore, I swear the following statements are true and accurate to the best of my knowledge:

I am not a candidate for elective office in this election.

I have been designated in writing by the candidate named above, such writing having been

received by the Chairperson of the election Board at least ten (10) days prior to Election Day and

am the only individual designated by such candidate to serve as a Watcher.

I am an enrolled member of the Mescalero Apache Tribe and an eligible voter.

___________________________________________

Signature of Watcher

______________________

Date

APPENDIX G

CERTIFICATION OF ELECTION RESULTS

We, the undersigned Mescalero Apache Tribal Election Board Members, certify that the results, as

reported below, are the accurate result of a fair Election conducted in accordance with the Revised

Constitution of the Mescalero Apache Tribe and the Mescalero Apache Tribal Code.

Number of Original, In Person Ballots Issued:

__________

Total Number of Spoiled Ballots:

(_________)

Number of Replacement, In Person Ballots Issued:

__________

TOTAL NUMBER OF VALID IN PERSON BALLOTS CAST: ____________

Number of Original Absentee Ballots Issued:

__________

Number of Spoiled Absentee Ballots:

(_________)

Number of Replacement Absentee Ballots Issued:

(_________)

TOTAL NUMBER OF VALID ABSENTEE BALLOTS CAST: ____________

GRAND TOTAL OF VALID BALLOTS CAST:

____________

[insert listing of results]

CERTIFIED UNDER PENALTY OF PERJURY.

__________________________________________________, Chairperson

__________________________________________________, Vice-Chairperson

__________________________________________________, Secretary

__________________________________________________, Member

APPENDIX H

REQUEST FOR VOTER ASSISTANCE

I, ______________________________(name of eligible voter), understand that Section 1-4-9 (E) of the

Tribal Code allows elderly or physically disabled Tribal members who are unable to travel to the voting

place on the day of the election to request that the Election Board visit personal residences if available

resources permit.

I understand that the Tribal Code requires that such requests be received no more than seven (7) days

before the election and no later than 4:30 p.m. the day before the election.

I am elderly or physically disabled and unable to travel to the voting place on the day of the Tribal

election. Accordingly, I request that the Election Board visit my personal residence so that I can cast my

ballot. My address is:

_________________________________ (street address), Mescalero, New Mexico.

I understand that the Board will visit my home between the hours of _________ and __________. I

understand that the Board will not return if I am not at home. I understand that the Board may be unable

to visit my residence due to the lack of time or resources and that I will not have another opportunity to

vote.

Further, I understand that only I and my caretaker, ________________________ (list name of a single

caretaker), who is responsible for my care and cannot leave to vote will be allowed to vote at my personal

residence.

_________________________________

Signature of Eligible Voter

_____________

Date

Election Board Use Only:

Date and Time Received:

__________________

Signature of Election Board Chair:

_____________________________

[THIS PAGE INTENTIONALLY LEFT BLANK]

CHAPTER 2

TRIBAL COURTS

SECTION 1. GENERAL.

2-1-1. JURISDICTION. The judicial powers of the Mescalero Apache Tribe shall be vested in the Tribal

Court, including a Trial and Appellate Court, unless otherwise specified in other Sections of this Code.

Criminal Jurisdiction. The jurisdiction of the Tribal Court over criminal acts or offenses,

committed within the exterior boundaries of the Reservation, shall extend to all persons, as

defined by §2-1-2 of this Code, except for those matters within the exclusive jurisdiction of the

federal or state Courts. In case a criminal act or offense is committed within the Reservation by

any person over whom the Tribal Court has no jurisdiction, it shall be the duty of the Tribal Court

to order the Reservation Law Enforcement Office or B.I.A. Police to deliver said person to the

proper authorities for prosecution under appropriate laws. Should any restriction presently

existing as to the exercise of jurisdiction over any class of persons or cases be removed, this

provision shall be interpreted to take advantage of such expanded jurisdiction.

Civil Jurisdiction. The jurisdiction of the Tribal Court over civil matters shall extend:

To all members of the Mescalero Apache Tribe and all other persons who reside on the

Mescalero Apache Reservation; and

Over all matters of controversy which arise on the Mescalero Apache Reservation,

regardless of the residency of the parties.

No suit or action by a tribal member shall be brought against the Mescalero Apache Tribe, a

Constitutional Entity, organized under 25 U.S.C. §476, without its consent.

2-1-2. DEFINITIONS.

A "person" means any individual, Indian or non-Indian, any estate, trust, receiver, cooperative

association, club, corporation, company, firm, partnership, joint venture, syndicate, federal

agency, state agency, municipality or county, other Indian tribe or pueblo, or any other entity.

This section shall not operate nor be construed in any manner as a waiver of the Tribe's sovereign

immunity.

An "Indian" is a person who is enrolled or eligible to be enrolled upon the census rolls of the

Mescalero Apache Tribe or any other federally recognized tribe.

2-1-3. COMPOSITION OF THE COURT.

The Mescalero Apache Tribal Court shall consist of as many Judges as the Tribal Council

authorizes. There shall be a Chief Judge overall and in charge of the Court and the chief

supervisor of all other Judges appointed by the Tribal Council. The pay of the Chief Judge, as

well as Associate Judges, shall be set by the Tribal Council.

All trials shall be conducted before a single judge.

Judges.

In the event that the Chief Judge, or any Associate Judge recuses himself or herself, or is

disqualified, additional Associate Judges may be appointed by the President with the

concurrence of not less than three fourths (3/4ths) majority vote of the whole Council.

Each Associate Judge shall, after appointment, sit on the panel and hear the cases

assigned to the Associate Judge by the Chief Judge. In the event that the Chief Judge is

incapacitated, or for any other reason unable to serve, the Chief Judge shall designate an

Acting Chief Judge from among the Associate Judges. In the absence of the Chief Judge,

a duly Acting Chief Judge shall perform the duties assigned to the Chief Judge. In the

event that the Chief Judge is unable to serve, and has not designated an Alternate Chief

Judge, the Associate Judge having the most continuous service on the Court will act as

Chief Judge, pending return of the Chief Judge. In the event of equal service, the

Alternate Chief Judge shall be designated alphabetically (by last name).

The Tribal Court shall regularly consist of the Chief Judge and two Associate Judges,

who shall be full time employees of the Tribe. Alternate Associate Judges will be

appointed in the same manner as Associate Judges. Alternate Judges will serve for the

same term as Associate Judges, and for the salaries specified by the Tribal Council at the

time of appointment, provided such compensation is properly budgeted.

It is the policy of the Tribal Council that the Alternate Associate Judges will be

designated to hear cases by the Chief Judge, on a rotating basis. However, should the

Chief Judge appoint an Alternate Associate Judge other than on a rotating basis, such

appointment shall be valid.

The Chief Judge shall be appointed for a term of two (2) years from the date of

appointment, subject to reappointment for continuing terms of two (2) years each by a

three fourths (3/4ths) vote of the whole membership of the Tribal Council, unless sooner

removed for cause by a three fourths (3/4ths) vote of the whole membership of the Tribal

Council, upon recommendation of the President.

Associate Judges shal1 be appointed for a term of two (2) years from the date of

appointment, subject to reappointment for continuing terms of two (2) years each by a

three fourths (3/4ths) vote of the whole membership of the Tribal Council, unless sooner

removed for cause by a three fourths (3/4ths) vote of the whole membership of the Tribal

council, upon recommendation of the President.

[Repealed]

Alternate Associate Judges shall be appointed for a term of two (2) years from the date of

appointment, subject to reappointment for continuing terms of two (2) years each by a

three fourths (3/4ths) vote of the whole membership of the Tribal Council, unless sooner

removed for cause by a three fourths (3/4ths) vote of the whole membership of the Tribal

Council, upon recommendation of the President.

In addition to the foregoing, the Tribal Court shall have a Juvenile Division for which one

or more Judges may be appointed by the President, with the concurrence of not less than

three fourths (3/4ths) majority vote of the whole Council. Judges of the Juvenile Division

shall be designated as the Juvenile Judges. A Juvenile Judge shall be an Associate Judge

to hear other cases if such appointment is necessary in the opinion of the Chief Judge.

The Juvenile Judge shall be appointed for a term of two (2) years from the date of

appointment, unless sooner removed for cause by the Tribal Council upon

recommendation of the President. The salary of the Juvenile Judge shall be specified by

the Tribal Council at the time of appointment providing such compensation is properly

budgeted.

Where necessary, due to disqualification or extended leave of one or more Judges, the

President is authorized to appoint one or more substitute Judges to hear a given case or

cases.

2-1-4. QUALIFICATION OF JUDGE.

No person shall be appointed to the office of Tribal Judge unless he is an Indian as defined

herein, not less than thirty-five (35) years nor more than seventy (70) years of age; nor shall any

person be appointed as a Tribal Judge who does not have a high school education or its

equivalent, who has been convicted of a felony, or, within one (1) year, the last past, of a

misdemeanor. The educational requirement shall not be required of those Tribal Judges holding

such office upon the effective date of this Mescalero Apache Tribal Code.

For purposes of this Section only, an "Indian" is defined as follows: An individual who possesses

at least one-quarter (1/4) Indian blood, and is a member of a federally-recognized Tribe, nation,

or bank of Indians, or is an Eskimo, Aleut or other Alaskan native.

2-1-5. JUDICIAL CONFLICT. No Judge shall act in any case in which he has a direct interest.

2-1-6. REMOVAL OF JUDGE. Any Judge of the Mescalero Apache Tribal Court may be suspended or

removed for cause upon the President's recommendation after notice and hearing held by the Tribal

Council of the Apache Tribe of the Mescalero Reservation by a majority of the elected members of the

Council.

2-1-7. DISQUALIFICATION OF JUDGE.

Whenever a party to any action or proceeding, civil or criminal, shall make and file an Affidavit

that one Judge of the Judges before whom the action or proceeding is to be tried and heard,

cannot, according to the belief of the party making the Affidavit, preside over the action or

proceeding with impartiality, that Judge shall be disqualified and shall proceed no further.

Another Judge shall be designated for the trial of the cause by the Chief Judge. Such Affidavit

must be filed in criminal actions or proceedings not later than five (5) days after arraignment

before the Tribal Court; and in civil actions or proceedings, not later than five (5) days after

Answer has been filed by the opposing party.

Upon disqualification, the Judge disqualified shall not discuss the case with any other Judge, and

at the time of hearing, the disqualified Judge shall not appear in the Courtroom. Failure to

disqualify a Judge within the time periods set forth above shall be deemed as consent of the party

to have the Judge hear the case.

Whenever a Judge presiding over any criminal or civil action determines that he cannot hear the

case in an impartial manner, that Judge shall disqualify himself. After such disqualification by the

presiding Judge, the procedures set forth in Sub-Section A shall be followed.

When, by Affidavit, a party to an action has attempted to disqualify more than one Tribal Judge,

then no Judge shall be disqualified.

2-1-8. VACANCY OF JUDICIAL OFFICE. A vacancy in the position of Judge will be filled for the

unexpired term by the President with the concurrence of not less than a three fourths (3/4ths) majority

vote of the whole membership of the Tribal Council.

2-1-9. OTHER OFFICERS.

The Reservation Law Enforcement Office shall assist the Court in serving as Officers of the

Court and carrying out the Orders of the Court.

A Court Administrator shall be selected in accordance with the Tribe's policies and procedures to

oversee all administrative Tribal Court matters. Specifically, he or she shall:

Supervise all employees of the Tribal Court, except Tribal Court Judges;

Manage the Tribal Court budget and research, apply for and manage grants and other

awards;

Work with the Chief Judge and Chief Clerk to create and maintain Tribal Court case

dockets; and

Otherwise act as the Tribal Department Head for the Tribal Court.

A competent Chief Clerk shall be selected in accordance with the Tribe's policies and procedures

to assist the Court in keeping written records of Court proceedings. . It shall be the duty of this

Chief Clerk to receive Court filings, administer oaths, collect fines, and make an accounting of

collected fines. The Clerk shall keep a file of all cases at the Tribal Court. One or more deputies

shall be selected as may be needed from time to time.

2-1-10. COURT SESSIONS.

Sessions of the Tribal Court shall expeditiously pursue the ends of justice. The Chief Judge shall

preside, or shall designate another judge selected in accordance with §2-1- 3(C) to preside, in

case of his disability, absence, or disqualification. In the event the Chief Judge cannot continue to

act by reason of disability, or prolonged absence, the Tribal Council shall designate one or more

of the Associate Judges to act as Chief Judge until such time as the disability, or absence, of the

Chief Judge is corrected.

Cases will be heard in the Tribal Courtroom at such time as set by the Tribal Judge.

2-1-11. LAWS APPLICABLE.

The Judge presiding in the case shall proceed to hear and determine the case in one (1) day unless

continued for cause. In determining cases, the Judge shall rely on the applicable laws in the

following Order of precedence:

Tribal Constitution, ordinances, traditions and customs;

Federal laws not in conflict with tribal laws and customs;

The Mescalero Apache Tribal Court shall secure copies of all federal laws and B.I.A. regulations

applicable to the conduct of Indians within the Mescalero Apache Indian reservation.

Whenever the Court is in doubt about the meaning of any law, treaty or ordinance, it may request

the Tribal Court attorney to furnish an opinion on the point in question.

Tribal law is intended in all instances to preempt state law.

2-1-12. LEGAL RIGHTS. The presiding Judge shall inform all defendants of their legal rights.

Criminal Complaints:

The offense charged;

The penalty provided for the offense charged;

The right to bail;

The right, if any, to trial by jury;

The right to an attorney at the defendant's own expense;

The right to remain silent, and a warning that any statement made by the defendant may

be used against the defendant.

Civil Complaints. At the request of the civil defendant the Judge shall make himself available to

explain the following:

The nature of the Complaint;

The damages or remedy sought by the Complaint;

The fight to answer;

The right to hearing with witnesses to be examined and cross-examined.

The right to jury trial where appropriate.

2-1-13. RIGHT TO APPEAL. Deleted as inconsistent and repetitive (April, 1998).

2-1-14. COURT OF APPEALS. Deleted as inconsistent and repetitive (April, 1998).

2-1-15. COMPLAINTS. Any Complaint filed in the Mescalero Tribal Court must bear the signature of

the complainant or complaining witnesses.

2-1-16. PARTIES. Any party served with an Order, Subpoena, Warrant, Summons, or Command duly

issued, made or given by the Mescalero Apache Tribal Court, must appear in Court at the time and date

stated on such document or in willful cases, be in violation of Chapter 10, §10-1-9 of this Code. Party,

when used in the sense of "party to the ease" shall mean "one of the opposing litigants in a judicial

proceeding." The term "party" may in other situations shall mean "one who is interested in the litigation,

or one who has a direct interest in the subject matter of the suit."

2-1-17. WITNESSES.

The Court shall issue Subpoenas for the attendance of witnesses. This may be on their own

demand or on the request of any of the parties to the case.

Failure to obey such Subpoena shall be deemed an offense as provided in §10-1-9 of this Code.

Service of Subpoena shall he made by Reservation Law Enforcement Officers or by special

officers appointed by the Court.

A Subpoena is an Order from the Court to an individual to appear before the Court at a specific

date and time then and there to be a witness in the case for the party who has sought the witness

to appear.

2-1-18. RIGHT TO JURY, FEES, SELECTION.

Criminal Cases:

The right to a trial by jury upon request made within ten (l0) days of the arraignment

shall be afforded to all defendants.

No jury fee shall be required in a criminal case.

Civil Cases. In any civil action any party may request a jury trial by a six (6) person jury by filing

with the Court a written request within ten (10) days after the Answer has been filed and by

tendering a jury fee in the amount of Ten Dollars ($10.00).

Procedure.

The Tribal Council shall each year submit to the Court a list of sixty (60) names of

members of the Mescalero Apache Tribe above the age of eighteen (18) years who live

on or near the Reservation. The persons whose names appear on the list shall comprise

the total jury pool for that year.

At least five (5) days prior to trial, the Chief Judge of the Tribal Court shall, in the

presence of the Court Clerk, select at random the names of twenty-five (25) persons who

shall be summoned to appear in Court on the date and at the hour prescribed.

Prior to impaneling the jury, the presiding Judge may excuse any person for good cause

shown, such as: age, infirmity, or unavailability.

At the date and the hour prescribed in the Summons, the Court Clerk shall impanel the

jurors present. The presiding Judge shall thereupon question the panel concerning their

relationship to the parties involved, knowledge of the case, or any other pertinent fact.

The Judge shall thereupon excuse any jurors whose ability to fairly hear the case is in

doubt. The list of the remaining jurors shall be presented to the parties to the action who

shall, beginning with the plaintiff or prosecution, as the case may be, alternatively strike

the name of one juror until only seven (7) names remain. These seven (7) persons shall

then be sworn in as the jury. One (1) juror shall serve as a substitute juror. He will be

excused from the panel when the jury is called on to deliberate, except in the event of the

illness or other indisposition of one of the regular jurors. In such event the substitute juror

shall act and deliberate as a regular juror.

All jurors in both civil and criminal actions shall be paid the sum of Thirty-five Dollars ($35.00)

each day of trial. Juror payments shall be made after authorization of the Tribal Council.

2-1-19. STATUTE OF LIMITATIONS. Unless otherwise specified, all causes of actions or lawsuits filed

in Tribal Court must be brought within the time hereinafter prescribed, after their causes accrue, and not

afterwards: Civil Actions: Three (3) years; Criminal Actions: Two (2) years.

Extensions. Actions for relief from fraud, mistake, or conversion shall not be deemed to have

accrued until the fraud, mistake, injury, or conversion complained of shall have been discovered

by the party aggrieved.

The death of the party aggrieved shall entitle his representative or successor in interest to

commence an action in his stead for one (1) year after death.

Minors and incapacitated persons shall be given an extension of one (l) year from the

determination of such incapacity within which to commence any accrued causes of action.

Commencement. Actions shall be deemed commenced upon the filing in the Tribal Court Clerk's

Office of the petition, declaration, or other prayer for judicial relief

Term of Judgment. Actions founded upon any judgment of the tribal judiciary may be brought

within seven (7) years from and after the rendition or revival of the judgment.

SECTION 2. CRIMINAL PROCEDURE.

2-2-1. RULES OF PROCEDURE. In addition to the procedural rules stated in this Section, the Tribal

Court shall promulgate rules of criminal procedure to be followed in Tribal Courts, subject to the

ratification of such rules by the Tribal Council prior to them becoming effective.

2-2-2. WARRANTS TO APPREHEND.

The Court shall have the authority to issue Warrants to Apprehend. Such Warrants are to be

issued only after Complaints have been filed. Service of Warrants shall be made by Reservation

Law Enforcement Officers or by a Reservation Law Enforcement Officer appointed by the Court.

A Warrant is an Order to a Reservation Law Enforcement Officer to apprehend by arrest the

individual named on the Warrant and to take the said individual either immediately before the

Court, or alternatively, to jail until such time as the individual can be brought before the Court.

2-2-3. ARRESTS. No Reservation Law Enforcement Officer or other officer shall arrest any person for

any offense defined in this Code or for a violation of federal law, except when such offenses shall be

committed in his presence or he shall have reasonable evidence that the person arrested committed an

offense, or he shall have a Warrant fix the apprehension of that person.

2-2-4. SEARCH WARRANTS.

The Court shall have authority to issue Warrants of Search and Seizure of the premises and

property of any person under the jurisdiction of the Court. However, no Warrant of Search or

Seizure shall be issued except upon an Affidavit duly executed before the Chief Judge or one of

the Associate Judges and must be based upon reliable information warranting such issuance.

No Warrant for Search or Seizure shall be valid unless it contains the name or description of the

person or property to be searched, charges the commission of some offense set forth in this Code,

or federal law, and describes the articles to be seized and bears the signature of the Chief Judge or

one of the Associate Judges. All Warrants shall show and bear the date of issuance.

Service of Warrants of Search and Seizure shall only he made by a Reservation Law Enforcement

Officer or an officer appointed by the Court. A Return of the Warrant of Search and Seizure shall

be filed in the Court no later than thirty-six (36) hours after it is served, unless that time is

extended by the Chief Judge.

2-2-5. SEARCH WITHOUT WARRANT. No Reservation Law Enforcement Officer or other authorized

officer shall search or seize any property without a warrant unless he shall know, or have reasonable

cause to believe, that the person in possession of such property has gained such possession unlawfully or

used the property in the commission of a crime.

2-2-6. ARRAIGNMENTS.

As soon as possible after apprehension, the defendant shall be brought before the Judge for

arraignment. Arraignment shall be held in open Court where the Judge shall read the Complaint

to the defendant, deliver a true copy of the Complaint to the defendant, explain the Complaint to

the defendant, advise the defendant of his rights and give the defendant an opportunity to enter a

plea of guilty, not guilty, guilty with an explanation, or no contest.

If the defendant shall enter a plea of guilty, guilty with an explanation, or no contest, the Judge

shall inquire if the defendant has any reason for not being sentenced at that time. If no reasons are

advanced, the Judge may pass sentence at that time or set a date for the passing of sentence. If the

defendant states reasons why sentence should not be passed at that time, the Judge upon due

consideration shall act thereon within his discretion.

If the defendant enters a plea of not guilty, the Judge shall set a date for trial in accordance with

§2-2-10 of this Code.

If the defendant does not enter any plea, the Judge shall enter a plea of not guilty on behalf of the

defendant, and shall set a date for trial, in accordance with §2-2-l0 of this Code.

2-2-7. COMMITMENTS. No defendant shall be detained, jailed or imprisoned under these ordinances

for a longer period than seventy-two (72) hours unless there be issued a Commitment Order signed by the

Court. There shall be issued for each defendant held for sentencing a final commitment on forms to be

prescribed and adopted by the Chief Judge of the Tribal Court.

2-2-8. BAIL OR BOND. Any defendant arrested for an offense may be released upon furnishing bail or

bond. A cash bond may be furnished by the accused or by his bondsman to a Tribal Judge or person

designated by the Chief Judge to receive bond. No bond shall be required in excess of twice the maximum

penalty specified in this Code. The Judge in his own discretion may release persons on their own

recognizance or to the custody of other persons. In the Judge's absence, bond may be set by a schedule

according to the crime charged except where the defendant has been charged with the commission of

what would be a major federal crime as defined at 18 U.S.C. §§1152, 3242. Bond in this instance shall

not be specifically limited, but must not be excessive.

2-2-9. FORFEITURE OF BAIL. If the defendant fails to appear for trial or when his personal appearance

in Court is ordered by the Court, the Court may enter his failure to appear on the record and forfeit any

bond or money posted without further proceedings, or the Court may issue a Warrant for the arrest of the

defendant, or both.

2-2-10. TIME LIMITATION. In all criminal actions, the defendant shall be tried within one hundred

eighty (180) days of the date of the filing of a Complaint or within one hundred eighty (180) days of the

date of arrest, whichever is later. In the event a new trial is granted or a conviction is reversed on appeal, a

subsequent trial shall be commenced within one hundred eighty (180) days of the date of entry of the

Order granting the new trial. The time for commencing a trail may be extended only by the Tribal Council

where the defendant is solely responsible for the failure to comply with the time limit and cannot show

good cause for such failure. The Tribal Prosecutor may seek an extension of the time period for

commencing trial beyond the one hundred eighty (180) day period, within said period, by filling with the

Clerk of the Tribal Council a Verified Petition for Extension concisely stating the facts supporting the

allegation that the defendant is solely responsible for the failure to comply with the time limit before the

expiration of the original period and forthwith serve a copy thereof on the defendant as generally provided

by the Tribal Code. Hearing on such Petition shall be held upon five (5) days' notice to the parties. The

Tribal Council may grant an extension of up to thirty (30) days. No further extensions shall be allowed. In

the event that a trial of any person described in this Section does not commence within the time herein

specified, or within the period of any extension granted as provided in this Section, the proceeding against

such person shall be dismissed with prejudice by the Tribal Court.

2-2-11. RELATIONS WITH THE COURT. No member of the Tribal Council, Tribal Executive Staff,

Tribal President, or member of the Apache Tribe of the Mescalero Reservation, shall obstruct, interfere

with or control the functions of the Mescalero Apache Tribal Court, or influence such functions in any

manner except as provided in this Code or when called upon by the Court for advice or information; to do

so will be a violation of Chapter 24, §2, Rules of Criminal Procedure.

SECTION 3. CIVIL PROCEDURE.

2-3-1. RULES OF PROCEDURE. In addition to the procedures stated in this Section, the Tribal Court

with the acceptance and approval of the Tribal Council, shall promulgate Rules of Civil Procedure to be

followed in the Tribal Courts in all civil case.

2-3-2. NOTICE.

No judgment shall be given on any suit unless the defendant has been given notice of such suit

pursuant to this Section.

Evidence of notice, actual or constructive, shall be kept as a part of the record in the case.

2-3-3. RESERVED FOR FUTURE USE.

2-3-4. COMPLAINTS.

Civil suits shall be commenced by the filing of a Complaint by the party bringing suit. The

Complaint shall be filed with the Court Clerk, who shall assist the complainant in preparing the

Complaint. All Complaints must be signed by the complainant.

The Complaint shall state the nature of the relief for which the complainant is suing, and shall

also state the name or names, and address or addresses, of the defendant or defendants. The

complainant shall consult with the Clerk of the Court before filling out the Complaint. Similarly,

the defendant shall seek the assistance and guidance of the Clerk before filling out an Answer.

Upon receipt of the Complaint, the Court Clerk shall prepare a Summons to be signed by the

Judge. Said Summons shall be attached to the Complaint and addressed to the defendant,

requiring him to appear before the Court within twenty (20) days, or any such shorter period as

may be set by the Judge signing the Summons. The Summons shall state that unless the defendant

appears within the time set forth, the judgment may be entered against him.

2-3-5. SERVICE OF PROCESS.

The original Summons and a copy of the Complaint shall be served personally by an officer of

the Court upon the defendant or upon a member of his household who is over the age of fourteen

(14) years. The officer serving the Summons and Complaint shall secure the signature of the

person receiving them and file a Return with a Clerk of the Court acknowledging that service was

made, the time, date and place of service and the name of the person served. The Court Clerk

shall file the Return and the Acknowledgment when received.

If service cannot be made as in Subsection A, the Court Clerk shall send a copy of the Summons

and Complaint by registered mail, return receipt requested, to the last known address of the

defendant. Upon the receipt of a returned receipt bearing the signature of the defendant, the Clerk

shall file same and the defendant shall have twenty (20) days to answer the Complaint from the

date of his signature before judgment is entered.

If service cannot be made and there is reason to believe that the defendant is residing at another

Indian reservation, a copy of the Summons and Complaint shal1 be forwarded to the B.I.A.

Special Officer for said Reservation along with a letter from the Judge requesting him and

authorizing him to make service upon the defendant and to forward a Return when service is

affected. The defendant shall have twenty (20) days to answer from the date of service before

judgment is entered.

If the defendant, after being served, fails to appear and answer within the required time, the case

shall be heard by the Court at any time thereafter. If the defendant after being served, answers

within the allotted time, the case shal1 be placed on the trial calendar and tried as soon as

possible.

Personal Service of Process Outside the Reservation.

Any person, whether or not a member of the Tribe or resident of the Mescalero Apache

Reservation who in person or through an agent does any of the acts enumerated in this

subsection thereby submits himself or his personal representative to the jurisdiction of the

Courts of the Tribe as to any cause of action arising from:

The transaction of any business within the Reservation;

The operation of a motor vehicle within this Reservation;

The commission of a tortuous act within the Reservation;

With respect to actions for divorce, separate maintenance or annulment, the

circumstance of living in the marital relationship within the Reservation,

notwithstanding subsequent departure from the Reservation as to all obligations

arising from alimony, child support or real or personal property settlements under

Chapter 3 of this Code, if one party to the marital relationship continues to reside

within the Reservation.

Service of process may be made upon any person subject to the jurisdiction of the Courts

of the Tribe under this section by personally serving the Summons upon the defendant

outside the Reservation and such service has the same force and effect as though service

had been personally made within the Reservation.

Only causes of action arising from acts enumerated in this section may be asserted

against a defendant in an action in which jurisdiction is based upon this section.

Nothing contained in this section limits or affects the right to serve any process in any

other manner now or hereafter provided by law.

2-3-6. SUBSTITUTED SERVICE OF PROCESS.

When any plaintiff or his agent in any civil action or proceeding commenced before the Tribal

Court shall have attempted to serve a defendant in the manner and under the form of process for

personal service pursuant to §2-3-5(A) or §2-3-5(B)B of this Code, and having been unable to

secure such personal service, shall file a sworn statement with the Mescalero Apache Tribal

Court, stating that the defendant resides or has gone off the Reservation, or has concealed himself

within the Reservation, has avoided service of process upon him, or his whereabouts cannot he

discovered after due inquiry and search has been made, or is in any manner situated so that

process cannot be served upon him, then and in such case, it shall be the duty of the Tribal Court

to issue a Notice of the Pendency of said action or proceeding, which shall be posted at the

Administrative Offices of the Mescalero Apache Tribe; the Mescalero Service Unit, Indian

Health Service; the United States Post Office, Mescalero; the Tribal Store; and the Mescalero

Apache Tribal Court. In addition, said Notice shall be published in the "Apache Scout, if

possible."

If, after attempting service pursuant to §2-3-5(B) registered mai1, return receipt requested,

service is still unsuccessful, then, in addition to publication as noted in §2-3-6(A) above, the

Court clerk shall mail the Summons and Complaint to Defendant via first class mail to the last

known address of Defendant.

The notice shall contain the names of the plaintiff and the defendant in the cause, or if there is

more than one defendant to the cause, the notice shall contain the name of said plaintiff and the

names of the defendants against whom constructive service is sought, a statement of the general

objects of the action and shall notify the defendant or defendants that unless they enter their

appearance in said cause on or before the, day named in said notice, judgment will be rendered in

said cause against them by default. Said notice shall be signed by the Judge of the Tribal Court

and such notice shall indicate the days for which said notice shall be posted.

Such publication shall be posted for a period of thirty (30) days in the manner indicated above.

A suggestion for such notice is as follows:

TRIBAL COURT OF THE MESCALERO APACHE TRIBE

MESCALERO, NEW MEXICO

___________________ ,

Plaintiff,

vs.

NO._________________________,

___________________

Defendant,

NOTICE OF PENDENCY OF SUIT

THE MESCALERO APACHE TRIBE TO: _________________________________

(Person to whom notice is being given)

against whom said substituted service by posting is hereby sought to be obtained:

GREETINGS:

YOU ARE HEREBY NOTIFIED that there is pending in the Tribal Court of the Mescalero Apache

Tribe, a civil cause wherein the Plaintiff, named above, has filed a Complaint to

_____________________ (indicate nature of Complaint).

Unless you enter your appearance in said cause on or before the ____ day of ______________, 20___,

(twenty (20) days after the end of the fourth week), judgment and decree may be rendered in said cause

against you by default.

WITNESS MY HAND AND SEAL of the said Court at Mescalero, New Mexico, this ____ day of

________________________, 20___.

____________________________________

Tribal Judge

This notice shall be posted from the ___ day of __________________, 20___, to the ___ day of

______________________, 20___.

Whenever notice is given pursuant to this section, a copy of the notice shall be mailed, return

receipt requested, to the last known address, if any, of the defendant.

2-3-7. SETTLEMENT AND WITHDRAWAL OF COMPLAINT. It is the policy of the Tribe to

minimize all litigation to those issues not easily resolved. To this end, settlement negotiations are to be

encouraged. Any party or a witness deemed necessary to settlement by the Court who fails to appear at a

pre-trial settlement conference shall be subject to contempt proceedings. Rules governing the issuance of

Summons to appear at such a settlement conference shall be governed by the Subpoena provisions of §21-17. Such a conference may be called by the Court before a Complaint has formally been filed.

A complainant or plaintiff may withdraw his Complaint at any time upon his own request provided there

has been no Answer filed by any opposing parties or defendant, then such civil action may only be

withdrawn upon the concurrence and agreement of both the complainant or plaintiff and the opposing

parties or defendants having so filed.

2-3-8. JUDGMENTS IN CIVIL ACTIONS.

In all civil actions, judgment may consist of an Order of the Court awarding money damages or

legitimate expenses to be paid to the injured party, or directing the surrender of certain property

to the injured party, or the performance of some other act for the benefit of the injured party.

Where the injury inflicted was the result of carelessness on the part of the defendant, the

judgment shall fairly compensate the injured party for the loss he has suffered.

Where the injury was deliberately inflicted, judgment may impose an additional penalty upon the

defendant, which additional penalty may run either in favor of the injured party or in favor of the

Tribe.

Where the injury was inflicted as the result of an accident where both the complainant and the

defendant were at fault, the Court shall determine the case on the basis of the evidence brought

before it, assessing against the party found to be most at fault the total of damages minus an

amount of damages found to have been caused by the party the least at fault.

After the rendition of a judgment for money damages, the Court may hold a hearing upon five (5)

days’ notice to the judgment debtor to inquire into any property which is not exempt by law in his

possession or under his control to be applied toward the satisfaction of the judgment creditor or

apply on the judgment in installments, such portion of his nonexempt income, however or

wherever earned or acquired, as the Court may deem proper after due regard for reasonable living

expenses and any payments required to be made by the judgment debtor by virtue of law or prior

Order of a Court or under wage assignments outstanding. The Court may, from time to time,

modify an Order made under this Section upon application of either party upon notice to the

other. The failure or neglect to comply with an Order or direction of the Court shall be punished

as for contempt.

2-3-9. COSTS IN CIVIL ACTIONS. The Court may assess the costs of the case against the party or

parties against whom judgment is given.

2-3-10. LAWFUL DEBT. A judgment shall be considered a lawful debt in all proceedings to distribute a

decedent's estate.

2-3-11. RESTRAINING ORDERS AND INJUNCTIONS. The Court upon holding a hearing, may issue

temporary restraining orders or permanent injunctions upon receiving evidence that there is probable

cause that irreparable harm will occur in absence of action by the Court.

2-3-12. DECORUM BEFORE THE COURT. No person shall comport himself at any stage of the legal

proceeding in a drunken fashion. This prohibition against public intoxication shall apply from the time of

filing of either the Complaint or pleadings at the Clerk's office, to trial through any actions for post

judgment relief. Any person violating this rule shall subject themselves to the contempt powers of the

Tribal Court.

2-3-13. PERSONS RENDERING EMERGENCY CARE; RELEASE FROM LIABILITY. No person

who shall administer emergency care in good faith at or near the scene of an emergency, shall be held

liable for any civil damages as a result of any action or omission by such person in administering said

care, except for gross negligence; provided that nothing herein shall apply to the administering of such

care where the same is rendered for remuneration or with the expectation of remuneration or is rendered

by any person or agent of a principal who was at the scene of the accident or emergency because he or his

principal was soliciting business or performing or seeking to perform some services for remuneration.

SECTION 4. APPELATE COURTS.

2-4-1. COURT OF APPEALS. All appeals from the Mescalero Apache Tribal Courts, including all trials

and juvenile Courts as established by Ordinance of the Mescalero Tribal Council, shall be heard by the

Mescalero Apache Court of Appeals.

2-4-2. COMPOSITION OF COURT OF APPEALS. The Mescalero Court of Appeals shall consist of

three (3) judges, consisting of one (1) trial judge and two (2) associate judges, provided that the presiding

judge at trial shall not hear the same case on appeal.

2-4-3. NOTICE OF APPEAL. Any party who is aggrieved by a final order or final judgment of the

Mescalero Tribal Court may appeal to the Mescalero Court of Appeals by filing a written Notice of

Appeal with the Court Clerk within twenty (20) days from the entry of the order of judgment. The Notice

of Appeal must name the parties to the appeal, identify the Order of Judgment appealed from and give a

short statement of the reason or grounds for the appeal in compliance with §2-4-4. The party filing the

appeal must pay the Court Clerk a $25.00 filing fee at the time of filing the Notice of Appeal. The Clerk

shall file the Notice and mail copies, to be provided by the appealing party, to all other parties to the

appeal at their last known address.

2-4-4. GROUNDS FOR APPEAL NOTICE. The Notice of Appeal must state specific grounds for appeal.

Legal grounds for an appeal to be considered on the merits by the Court of Appeals consists of the

following:

No evidence or insufficient evidence is in the record to support the Trial Court's Order of

Judgment;

The Trial Court made a legal error in interpreting or applying the law;

There is no basis in the laws, customs, or traditions of the Tribe for the Trial Court's decision;

In a criminal case, the evidence presented at trial did not show that the defendant was guilty of

the offense charged beyond a reasonable doubt;

The Trial Court erred in admitting illegally-seized evidence or inadmissible testimony, the

decision of the Court was based upon this evidence or testimony, and the Court's decision could

not be supported on the legally-admitted evidence alone;

The Trial Court erred in denying or granting an objection or motion which fundamentally affected

the fairness of the trial;

The Court had no jurisdiction to hear the controversy or no jurisdiction over the parties; or

The Trial Court legally erred in its decision.

2-4-5. PARTIES ON APPEAL. The name of the case on appeal shall be the same as that used in the Trial

Court except that the Appellant and Respondent shall be so indicated by Plaintiff-Appellant and

Defendant-Respondent or by Plaintiff-Respondent and Defendant-Appellant. Forms shall be made

available by the Court Clerk.

2-4-6. STAY PENDING APPEAL. In any case in which an appeal is properly filed, the appellant may

petition the Trial Court for an Order staying the order, commitment or judgment. The Tribal Judge may

grant a stay pending appeal upon reasonable grounds and may require the appealing party to file a bond in

an amount sufficient to guarantee performance of the order or judgment.

2-4-7. SUMMARY REVIEW. Within seven (7) working days of the filing of a Notice of Appeal, the

Court of Appeals shall review the notice and make a decision as to whether proper grounds have been

asserted for an appeal. If legal grounds for an appeal are not stated in the notice, the Trial Court's decision

shall be affirmed and the appeal denied. The appealing party shall be given written notice of the decision

of the Court of Appeals and notice of his right to amend the Notice of Appeal and re-file within three (3)

working days. Only one (l) opportunity to re-file the notices shall be given and no additional filing fee

may be charged. Copies of the refiled notices shall be provided to the parties in accordance with §2-4-3. If

the Court of Appeals fails to rule within (7) working days, the Trial Court's decision shall be deemed

summarily affirmed.

2-4-8. CLERK. The Clerk of the Trial Court shall also serve as the Clerk of the Court of Appeals. Within

twenty (20) days after a notice of appeal is filed, the Clerk shall prepare, certify, and file with the Court of

Appeals all papers comprising the record of the case appealed. A separate docket shall be maintained for

the Court of Appeals in which shall be recorded each stage of the proceedings on each case appealed.

2-4-9. REVIEW BY THE COURT OF APPEALS.

The Court of Appeals will review the record and transcripts and any evidence of the record; the

Court may request or grant permission for argument by the parties but shall not hear new

evidence.

There shall not be a new trial in the Court of Appeals and, except in cases where insufficient

evidence is the basis for appeal, there will be no review of the factual findings at trial.

The Court may request a written statement and argument by each party stating with particularity

the Code sections, laws, customs or traditions which have been misapplied by the Trial Court.

Time and place of oral argument is set by the Chief Judge if serving on the panel hearing the

case; otherwise, the case is set by the Senior Judge designated by the Chief Judge and presiding

on the case.

2-4-10. WRITTEN DECISION. The Court of Appeals shall issue a written decision containing the reason

for the decisions which shall be filed with the Clerk. A decision is reached when at least two of the three

judges agree. Copies of the decision shall be provided to each of the parties by the Clerk.

The Court of Appeals shall have the authority to issue any of the following decisions:

Affirm in whole or in part the decision of the Trial Court;

Reverse in whole or in part the decision of the Trial Court; or

Remand the case to the Trial Court for further hearing or for the taking of new evidence

or testimony on specific issues.

2-4-11. SUBPOENA POWER AND ENFORCEMENT. In addition to the authority vested in the Court of

Appeals by §2-4-10(A), the Court of Appeals shall have the power to issue and enforce subpoenas for the

attendance of parties at oral argument and for the production of documents or evidence entered as

evidence in the Trial Court. The Trial Court shall be primarily responsible for enforcement of its

judgment after affirmation on appeal.

2-4-12. FINAL DECISION. All judgments of the Court of Appeals shall be final unless overturned or

otherwise modified by the Supreme Court.

2-4-13. COMPOSITION OF SUPREME COURT. The Tribal Council shall sit as the Supreme Appellate

Court, with the President as presiding officer but without vote, whenever necessary and may hear

arguments on appeal at regular meetings. At least six (6) members shall sit throughout a hearing. A vote

of at least four (4) of the six, or a majority of more than six hearing the case, shall constitute a decision.

Less than six (6) members may hear a case, if the President determines that conflicts exist, but in that

event, the panel must include all members without conflict. Agreement of a majority of a panel with less

than six (6) members constitutes a decision.

2-4-14. PETITION OF APPEAL TO THE MESCALERO APACHE SUPREME COURT. An appeal to

the Mescalero Apache Supreme Court shall be instituted by the filing of a Petition of Appeal with the

President of the Mescalero Apache Tribe requesting that the Mescalero Apache Tribal Council, sitting as

the Supreme Court, hear the appeal of the aggrieved party. The Petition for Appeal shall include the

names of the parties for the Supreme Court jurisdiction. The Petition for Appeal shall be filed within ten

(10) working days of the decision of the Court of Appeals. Any action taken under § 2-4-6 will continue

until final decision of the Supreme Court.

2-4-15. JURISDICTION OF THE MESCALERO APACHE SUPREME COURT. The jurisdiction of the

Mescalero Apache Supreme Court shall be limited to the following:

In all cases in which the appeal is based on a Tribal or Appeals Court interpretation or application

of a provision of the Revised Constitution of the Mescalero Apache Tribe.

Any other case, having proper grounds as defined by §2-4-4, and which has been accepted for

appeal by the majority vote of the Supreme Appellate Court qualified to hear the appeal.

2-4-16. SUMMARY REVIEW. Within twenty (20) calendar days after the Petition of Appeals has been

filed with the President of the Mescalero Apache Tribe, the President shall present the petition to the

Council. If the Supreme Court fails to rule within twenty-five (25) calendar days of filing of the petition,

the decision of the Court of Appeals shall be deemed summarily affirmed.

If the petition claims that the jurisdiction of the Supreme Court is based on §2-4-15(A), then the

Supreme Court shall review the petition to determine if indeed there is a constitutional claim

raised. If there is a constitutional claim, the President of the Tribe shall order the Tribal Council

secretary to schedule a hearing, notify the parties of the hearing, and if so demanded by the

Supreme Court, require the parties to submit written statements or prepare for oral arguments as

defined in §2-4-17. If, however, the Supreme Court determines that there is no constitutional

question or it is determined that the constitutional claim is frivolous, the decision of the Court of

Appeals shall be final and binding on all parties.

If the jurisdiction of the Supreme Court is based in §2-4-15(B), the Tribal Council, sitting as the

Supreme Court of the Mescalero Apache Tribe, shall vote as whether to accept or deny the

appeal. If denied, the decision of the Court of Appeals shall be final and binding on all parties. If

the appeal is accepted, the Supreme Court shall issue an order for a Writ of Certiorari to the

Appeals Court and the President of the Mescalero Apache Tribe may order the Tribal Council

secretary to schedule oral argument or notify the parties to submit written statements as defined in

§2-4-17. The Supreme Court may, in the alternative, exercise its discretion to rule on the record

without oral or written argument.

2-4-17. REVIEW AND DECISIONS BY THE MESCALERO SUPREME COURT. If an appeal is

accepted by the Mescalero Apache Supreme Court, review by the Supreme Court will be limited to the

record of the Court of Appeals, however the Supreme Court may request a written statement or argument

from each party or other person concerning the issue which was the basis for the appeal to the Supreme

Court. Once the Supreme Court has reviewed the Court of Appeals record and has seen or heard any

arguments it may have requested, the Supreme Court will issue a written decision either:

Affirming in whole or in part the decision of the Court of Appeals;

Reversing in whole or in part the decision of the Court of Appeals;

Remanding the case to Tribal Court for a new trial;

Give any other judgment it deems just and proper.

Copies of the decision shall be given to each of the parties by the Tribal Council secretary.

2-4-18. SUBPOENA POWER AND ENFORCEMENT. In addition to the authority vested in the

Supreme Court by §2-4-15, the Supreme Court shall have the power to issue and enforce subpoenas for

the attendance of parties at oral argument and for the production of documents or evidence entered as

evidence in the Trial Court. The Trial Court shall be primarily responsible for enforcement of its

judgment after affirmation on appeal.

2-4-19. FINALITY. All decisions of the Mescalero Apache Supreme Court shall be final.

SECTION 5. RULES OF EVIDENCE

2-5-1. PURPOSE AND CONSTRUCTION. These rules shall be construed to secure fairness in

administration, elimination of unjustifiable expense and delay, to the end that the truth may be ascertained

and proceedings justly determined.

2-5-2. EVIDENCE. The admissibility of evidence and the competency and privileges of witnesses shall

be governed, except where the Code or these Rules otherwise provide, by the sound discretion of the trial

judge. The Court shall not be bound by common law rules of evidence, or by the rules of evidence which

pertain in state and federal Courts, but shall use its own discretion as to what evidence is deemed

necessary and relevant to the charge and the defense.

2-5-3. ADMISSIBILITY OF EVIDENCE; DISCRETION OF JUDGE. The judge may in his discretion

exclude evidence if he finds that its purported value is outweighed by the risk that its admission will:

Necessitate undue consumption of time;

Create substantial danger of undue prejudice or of confusing the issue or misleading the jury; or

Unfairly surprises a party who has not had reasonable ground to anticipate that such evidence

would be offered.

2-5-4. LIMITED ADMISSIBILITY. Whenever evidence which is admissible as to one party or for one

purpose, but not admissible as to another party or for another purpose is admitted, the Court, upon

request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

2-5-5. MODE AND ORDER OF INTERROGATION AND PRESENTATION.

Control by Court. The Court shall exercise reasonable control over the mode and order of

interrogating witnesses and presenting evidence so as to:

Make the interrogation and presentation effective for the ascertainment of truth;

Avoid needless consumption of time; and

Protect witnesses from harassment or undue embarrassment.

Scope of cross-examination. Cross-examination should be limited to the subject matter of the

direct examination and matters affecting the credibility of the witness. The Court may, in the

exercise of discretion, permit inquiry into additional matters as if on direct.

Leading Questions. Leading questions should not be used on the direct examination of a witness,

except as may be necessary to develop his testimony. Ordinarily, leading questions should be

permitted on cross-examination. Whenever a party calls a hostile witness, an adverse party, or a

witness identified with an adverse party, interrogation may be by leading questions.

2-5-6. ORAL TESTIMONY. In all trials, the testimony of witnesses shall be given orally under oath in

open Court, subject to the right of cross-examination. In all cases wherein an interpreter is used, the

interpreter shall also take the oath.

2-5-7. DOCUMENTARY AND TANGIBLE EVIDENCE. Documents and other tangible evidence,

material and relevant to the case, may be received in evidence if properly identified.

2-5-8. SUBPOENAS FOR ATTENDANCE OF WITNESSES AND PRODUCTION OF

DOCUMENTARY EVIDENCE. On motion for good cause shown by any party to the cause, or on the

Court's own motion, the Court shall issue subpoenas to compel the attendance of witnesses, or the

production of books, records, documents, paper, and things necessary to the determination of the cause,

over which the Court has jurisdiction.

2-5-9. FINAL ARGUMENT. At the conclusion of the evidence, the plaintiff or the prosecutor and the

defendant each shall summarize the proof and make final argument.

2-5-10. JUDICIAL NOTICE. The judge shall take judicial notice of applicable federal and tribal laws,

regulations or ordinances. The judge may take judicial notice of:

Specific facts which are certain as not to be the subject of reasonable dispute;

Facts which are capable of accurate and ready determination by resort to sources whose accuracy

cannot reasonably be questioned; and

Specific facts and propositions which are common every day knowledge within the territorial

jurisdiction of the Court.

2-5-11. REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS. Whenever a

writing or recorded statement or part thereof is introduced by a party, an adverse party may require him to

introduce any other part or other writing or recorded statement which in fairness ought to be considered

contemporaneously with it.

2-5-12. DEFINITION OF “RELEVANT EVIDENCE”. "Relevant evidence" means evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.

2-5-13. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE

INADMISSIBLE. Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

2-5-14. GENERAL RULE OF COMPETENCY. Every person is competent to be a witness except as

otherwise provided in these rules.

2-5-15. LACK OF PERSONAL KNOWLEDGE. A witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove

personal knowledge may, but need not consist of the testimony of the witness himself. This rule of

personal knowledge is subject to the provisions of these rules, relating to opinion testimony by expert

witnesses.

2-5-16. RELIGIOUS BELIEFS OR OPINIONS. Evidence of the beliefs or opinions of a witness on

matters of religion is not admissible for the purpose of showing that by reason of their nature his

credibility is impaired or enhanced.

2-5-17. CALLING AND INTERROGATION OF WITNESSES BY COURT.

Calling by Court. The Court, at the suggestion of a party or on its own motion, may call witnesses

and all parties are entitled to cross-examine witnesses thus called.

Interrogation by Court. The Court may interrogate witnesses, whether called by itself or by a

party.

Objections. Objections to the calling of witnesses by the Court or to interrogation by it may be

made at the time or at the next available opportunity when the jury is not present.

2-5-18. EXCLUSION OF WITNESSES. At the request of a party or on its own motion the Court may

order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not

authorize exclusion of:

a party to the litigation; or

a person whose presence is shown by a party to be essential to the presentation of his cause.

2-5-19. OPINION TESTIMONY BY LAY WITNESSES. If the witness is not testifying as an expert, his

testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

rationally based on the perception of the witness; and

helpful to a clear understanding of his testimony or the determination of a fact in issue.

2-5-20. TESTIMONY BY EXPERTS. If scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or

otherwise.

2-5-21. BASIS OF OPINION TESTIMONY BY EXPERTS. The facts or data in the particular case upon

which an expert bases an opinion or inference may be those perceived by or made known to him at or

before the hearing. If of a type reasonably relied upon by experts in the particular field in forming

opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

2-5-22. OPINION ON ULTIMATE ISSUE. Testimony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

2-5-23. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION. The expert may

testify in terms of opinion or inference and give his reasons therefore without prior disclosure of the

underlying facts or data, unless the Court requires otherwise. The expert may in any event be required to

disclose the underlying facts or data on cross-examination.

2-5-24. COURT APPOINTED EXPERTS.

Appointment. The Court, on motion of any party or its own motion, may enter an order to show

cause why expert witnesses should not be appointed, and may request the parties to submit

nominations. The Court may appoint any expert witnesses agreed upon by the parties, and may

appoint expert witnesses of its own selection. An expert witness shall not be appointed by the

Court unless he consents to act. A witness so appointed shall be informed of his duties by the

Court in writing, a copy of which shall be filed with the Clerk, or at a conference in which the

parties shall have an opportunity to participate. A witness so appointed shall advise the parties of

his findings, if any; his deposition may be taken by any party; and he may be called to testify by

the Court or any party. He shall be subject to cross-examination by each party, including the party

calling him as a witness.

Compensation. Expert witnesses so appointed are entitled to reasonable compensation in

whatever sum the Court may allow. In civil actions and proceedings, the compensation shall be

paid by the parties in such proportion and at such time as the Court directs.

Disclosure of Appointment. In the exercise of its discretion, the Court may authorize disclosure to

the jury of the fact that the Court appointed the expert witness.

Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses

of their own selection.

2-5-25. HUSBAND-WIFE PRIVILEGE.

Definition. A communication is confidential if it is made privately by any person to his or her

spouse and is not intended for disclosure to any other person.

General Rule of Privilege. An accused in a criminal proceeding has a privilege to prevent his

spouse from testifying as to any confidential communication between the accused and the spouse.

Who may Claim the Privilege. The privilege may be claimed by the accused or by the spouse on

behalf of the accused. The authority of the spouse to do so is presumed.

Exceptions. There is no privilege under this rule in a proceeding in which one spouse is charged

with a crime against the person or property of:

The other;

A child or dependent of either;

A person residing in the household of either; or

A third person committed in the course of committing a crime against any of them.

2-5-26. RELIGIOUS PRIVILEGE.

Definitions, as used in this rule:

A "clergyman" is a minister, priest, or simi

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.