# COVER ......................................................................................................................................................... i > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/tribal%3Amescalero_apache%3Afb2398baba194a84 ## Record - **Collection:** Tribal code - **Document type:** Tribal code ## 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 ii 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 iv 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 v 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 vi 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 ix 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: A. President; B. Vice President; C. Members of the Tribal Council; D. Mescalero Apache School Board members; or E. Any proposition, including: 1. Constitutional amendments; 2. Referenda; 3. Recall of elected Tribal officials; or 4. Other questions submitted to the members of the Tribe for a vote. 1-1-4. DEFINITIONS. A. "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;" B. "Serious Offenses" as used in Article VI § 1 of the Revised Constitution includes: 1. Those crimes specifically enumerated in Article VI § 1; and 2. Any other offense involving: 3. C. a. A disregard of the interests of the Tribe as a whole; b. Misconduct or gross neglect of duty; c. Moral turpitude; d. Public intoxication; or e. Driving while intoxicated (DWI). But, only if: a. An actual conviction has been entered by a court of competent jurisdiction; b. Where an individual has been convicted of "habitual drunkenness", the Board has determined that sufficient evidence exists that the condition persists; and c. 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. 1 D. "Policy making position" as used in Article VIII § 4 of the Revised Constitution shall refer to 1. The head of a Tribal program or department; 2. The general manager of a tribal enterprise; or 3. A similar position in an entity doing a significant amount of business on the Mescalero Apache Reservation. E. “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. F. "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. A. 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. B. 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. A. 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. B. 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. C. The Chairperson shall: D. 1. Preside over all meetings or hearings of the Election Board: 2. Call meetings or hearings required by this Code and any other meetings which he or she finds necessary, with appropriate notice; 3. Set the agenda of Board meetings; 4. Establish any rules deemed necessary for the conduct of Board meetings; 5. Have the right to vote on all matters before the Board; and 6. Have the power to delegate duties as necessary to provide for a fair and efficient election process. The Vice-Chairperson shall: 2 E. 1. Serve as Chairperson in the absence of the Chairperson; 2. Have the right to vote on all matters before the Election Board; and 3. Perform any duties delegated to him or her by the Chairperson. The Secretary shall: 1. Keep the minutes of all Election Board meetings; 2. 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; 3. Keep records of: a. Any Board rulings, decisions, and findings; b. All filings; c. The voter registry; and d. Other documents related to the election; 4. 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; 5. Serve as Chairperson in the absence of the Chairperson and Vice-Chairperson; 6. Have the right to vote on all matters before the Board; and 7. Perform any duties delegated to him or her by the Chairperson. 1-2-4. DESIGNATION OF JUDGES, CLERKS, AND INTERPRETERS. A. B. C. 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: 1. Observe voting and other election proceedings; 2. Make decisions in the case of minor procedural disputes needing immediate resolution on the day of the election; and 3. 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: 1. 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; 2. Keep a record of: a. The number of ballots cast; b. The names of voters who cast ballots; c. Any election related disputes and their resolution (if any); d. Problems with voting machines; e. Frequently asked questions; and f. Other significant occurrences on Election Day. Three (3) members of the Election Board appointed by the President, shall be designed by the 3 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: 1. To mark ballots; 2. Insert ballots into the voting machine; and 3. 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. A. 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. B. 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. C. 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: 1. 2. Election Board members shall not: a. Actively or publicly participate in the campaign of any person for Tribal elective office; b. Become involved in any Tribal political activities or actions which could be interpreted in the Tribal community as supporting a particular political position; c. Announce his or her views on disputed legal or political issues related to Tribal elections or candidates for elected office; d. Accept a gift, favor or loan from any person who is a candidate for Tribal elective office; e. Solicit funds or contribute to a Tribal political organization, candidate or political event; and f. 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: a. Give notice of the existence of such conflict; and b. 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. 3. Election Board members shall use the utmost discretion in dealing with confidential information pertaining to candidates. 4. 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. 5. Each Election Board member shall be required to sign a statement under oath that he or 4 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: A. 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. B. 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. C. 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. D. Strive to meet all deadlines in order to ensure an efficient and fair election process. E. 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. 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 B. Presentation of an Election Board Handbook containing: 1. Updated copies of the Revised Constitution and this Election Code; 2. Standard guidelines for the operations and processes of elections, including preelectionday activities, election-day activities and post-election-day activities; 3. Any documents recording past election problems and their solutions promulgated by past Boards; 4. All forms and samples promulgated pursuant to this Code; and 5. Any other materials which may assist the Board in carrying out its duties. 1-2-9. ELECTION BOARD MEETINGS. A. B. All Election Board members must attend all Board meetings as may be regularly scheduled or called by the Board Chairperson, except by reason of: 1. Illness; 2. Disability; or 3. 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. 5 C. 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. A. 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. B. 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. A. B. The tribunal shall be composed of: 1. The President; 2. A member of the Tribal Council selected by the Tribal Council; and 3. 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: 1. A majority of the Election Board; 2. A majority of the Tribal Council, as evidenced by resolution of the Council; or 3. The Tribal President, of his or her own initiative. C. Removal shall occur for good cause only. D. A hearing for removal shall be conducted by the tribunal only after providing timely notice to the affected member of: 1. Intent to remove; 2. The reason(s) for such action; and 3. 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: A. Gross neglect of duty; B. Failing to substantial1y perform those duties prescribed by this Code and/or the Revised Constitution; and/or C. 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. A. Alternate members of the Election Board shall serve in case of an appointed member's 1. Absence; 6 2. Physical incapability; 3. Recusal in the case of a conflict of interest; or 4. Disqualification under the Revised Constitution or this Code. B. Alternates shall attend all meetings and training of the Board. C. 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. A. 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. B. In the case of an election for Tribal President, Vice President or Council member: C. 1. One half (1/2) of the amount determined shal1 be paid one month prior to the Primary; and 2. 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: 2. Half the amount shal1 be paid two (2) weeks prior to the election; and 3. The last half of such amount shal1 be paid two (2) weeks after the election. D. 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. E. 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. A. 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. B. 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. C. 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. D. The Board shall post any rule promulgated immediately. E. 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. A. 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 7 Board. B. 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. A. Election dates shall be established by the Tribal Council by resolution in a manner consistent with Article IX § 8 of the Revised Constitution. B. 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. C. 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. A. B. 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: 1. The candidate's name; 2. The office for which he or her desires to become a candidate; 3. His or her Tribal census number; 4. His or her permanent address; 5. 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; 6. A statement that he or she: a. 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 b. Shall abide by the same; 7. A statement that he or she meets the requirements for candidacy in the Code and the Revised Constitution; 8. A statement that he or she swears that all information contained therein is true as far as he or she is aware; 9. 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. 8 1-3-3. EXTENSION OF DEADLINE FOR DECLARATION OF CANDIDACY. A. 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. B. 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. C. The date of the election shall remain the same as set by the Board and prescribed by the Revised Constitution and this Code. D. 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. E. 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. A. 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. B. 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. C. 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. D. 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. A. The Election Board shall, at least twenty (20) days before the election: 1. Review all filings received; 2. Certify as eligible any and all candidates which have qualified to run for election; 3. 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 9 Code; and B. 4. 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 5. 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. A. 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. 1. 2. B. 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: a. The name and mailing address of the voter; b. The voter's age; c. The reason the voter desires an absentee ballot; d. 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 e. 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. 1. All absentee ballots shall be marked "Absentee Ballot" and include instructions requiring the voter to: a. Properly mark the voter's choice of candidates on the absentee ballot; b. Place the absentee ballot in the empty envelope provided with the absentee ballot which is marked "Absentee Ballot;" 10 C. c. 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 d. 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. 2. 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. 3. 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. a. 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. b. 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. 4. 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. 5. 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. A. 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: 1. President; 2. Vice-President; 3. Member, Tribal Council; and 4. 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. B. 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 11 elections. C. No candidate's name shall appear more than once on the ballot. D. 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. E. 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. A. Tribal voters shall vote for only four (4) Council candidates in the Tribal Primary election. B. 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. C. 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. A. 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. B. 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. C. 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. A. 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. B. 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. A. An eligible voter may request instruction as to: 1. How the ballot is to be marked and deposited in the voting machine; 2. Reading of the candidates' names if the voter is unable to do so; and/or 12 3. Translation of the ballot by an official interpreter. B. 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. C. 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. A. B. 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: 1. 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; 2. Each Board member shall remain in the presence of all other Board members and all ballots cast at all times; 3. Board members shall verify the identification of voters against the list of qualified voters prepared by the Board; 4. Each voter must sign the official registry of voters; 5. Board members shall provide instructions to voters and answer any questions related to the marking of the ballots; 6. Ballots identical to those prepared for use at the voting place shall be used; 7. Measures must be taken to provide the voter the greatest privacy possible under the circumstances to protect the secrecy of the voter's ballot; 8. Each voter shall be provided with an envelope marked "ballot" to the voter in which the ballot may be enclosed and sealed; and 9. 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. 1. Such requests shall be in a form substantially similar to that included in the Appendix to this Code. 2. 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. 13 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: 1. Contain an oath swearing that each signature evidences the authenticity of the document and the accuracy of the election results contained therein; 2. Be signed, under penalty of perjury, by each member of the Board; 3. Contain the following information: a. The number of voters casting ballots in person and the number of voters casting Absentee Ballots; b. The total number of original ballots issued (the number of ballots issued to voters voting in person plus the number of absentee ballots issues; c. The total number of "spoiled" ballots; d. The total number of replacement ballots issued (on the day of the election); e. 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 f. The persons elected to office, the office to which they are election, and the number of votes received by each candidate; 4. Take a form approved by the Election Board and substantially similar to that appearing the Appendix to this Code; and 5. 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. A. 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. B. 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. C. In a referendum election where passage or failure is by a margin of ten (10) or less votes, an automatic recount shall be conducted. D. 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 14 event that a recount is not required, the fee shall be promptly returned to the individual requesting the recount. E. 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. F. 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: A. Shall not conduct campaigning activities during work hours; B. Shall not use Tribal vehicles to conduct such activities; and C. 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: A. Early voting shall be allowed for all elections except for Mescalero School Board elections; B. 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; C. At least three (3) members of the Election Board, including at least one (1) Interpreter, must be present to conduct early voting; D. The Board shall verify that each prospective early voter appears on the list of eligible voters; E. Where the Board verifies that the voter is on the list of eligible voters, then the voter will be allowed to vote; F. No person allowed to vote early shall be permitted to vote on Election Day; and G. 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. 15 1-6-1. PERSONS ALLOWED TO DISPUTE. Only the following persons, hereinafter referred to as “Challengers,” may file a dispute under this Section: A. Candidates whose names appeared or will appear on the ballot; B. 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; C. The Chairperson of the Election Board; or D. 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. 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. B. 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. C. 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. D. 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. A. 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. B. 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: 1. A writing detailing the dispute; 2. Copies of the decisions of the Election Board, if any, and the Tribal Court; and 3. The reason for appeal to the Supreme Court. C. 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. D. 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. E. Any decision by the Supreme Court, promulgated in compliance with this section, shall be 16 deemed FINAL. 1-6-4. REQUIRED INFORMATION TO BE CONTAINED IN A WRITTEN DISPUTE. A written dispute shall contain the following information: A. Name(s), address(es), and phone number(s) of the Challenger(s); B. Detailed description of the occurrence which is disputed; C. Date of the occurrence giving rise to the dispute; D. The names, addresses, and phone numbers of any witnesses to the Board action or other occurrence; E. Any desired remedy or action; F. Signature(s) of the Challenger(s); and G. Date of such signature(s). SECTION 7. PENALTIES. 1-7-1. PENALTIES. A. Any person found guilty of willfully and knowingly: 1. Voting more than once in anyone election; 2. Voting although ineligible to vote; 3. Casting an improper ballot; 4. 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; 5. Detaining, destroying, or altering ballots or documentation pertaining to election results; or 6. 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. B. 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. C. 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). 17 APPENDIX A STATEMENT OF INTENT 18 STATEMENT OF INTENT I, (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: 1. 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.): 2. 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: _______________________. 3. 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 ______________________. 4. 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: 1. 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. 2. 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. 3. 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. 4. 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 19 APPENDIX B AUTHORIZATION TO PERFORM BACKGROUND CHECK 20 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) 21 APPENDIX C NOTICE OF INELIGIBILITY FOR CANDIDACY 22 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 23 APPENDIX D REQUEST FOR ABSENTEE BALLOT 24 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. 25 APPENDIX E ABSENTEE BALLOT AFFIDAVIT 26 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. 27 APPENDIX F STATEMENT OF WATCHERS 28 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: 1. 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. 2. I agree to abide by the Revised Constitution of the Mescalero Apache Tribe and the Tribal Code. 3. I shall abide by rules of common courtesy and tribal custom. 4. I shall exhibit respect for all members of the Election Board. 5. I will under no circumstances be allowed to participate in or interrupt the counting process. 6. 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. 7. 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. 8. I shall remain in the area designated by the Election Board for Watchers while ballots are counted. 9. 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: 1. I am not a candidate for elective office in this election. 2. 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. 3. I am an enrolled member of the Mescalero Apache Tribe and an eligible voter. ___________________________________________ Signature of Watcher 29 ______________________ Date APPENDIX G CERTIFICATION OF ELECTION RESULTS 30 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. 1. __________________________________________________, Chairperson 2. __________________________________________________, Vice-Chairperson 3. __________________________________________________, Secretary 4. __________________________________________________, Member 5. __________________________________________________, Member 6. __________________________________________________, Member 7. __________________________________________________, Member 8. __________________________________________________, Member 31 APPENDIX H REQUEST FOR VOTER ASSISTANCE 32 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: _____________________________ 33 [THIS PAGE INTENTIONALLY LEFT BLANK] 34 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. A. 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. B. Civil Jurisdiction. The jurisdiction of the Tribal Court over civil matters shall extend: C. 1. To all members of the Mescalero Apache Tribe and all other persons who reside on the Mescalero Apache Reservation; and 2. 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. 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. B. 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. A. 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. B. All trials shall be conducted before a single judge. C. Judges. 1. 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 35 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). 2. 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. 3. 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. 4. 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. 5. 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. 6. [Repealed] 7. 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. 8. 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. 9. 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. A. No person shall be appointed to the office of Tribal Judge unless he is an Indian as defined 36 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. B. 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. A. 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. B. 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. C. 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. D. 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. A. The Reservation Law Enforcement Office shall assist the Court in serving as Officers of the Court and carrying out the Orders of the Court. B. 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: 1. Supervise all employees of the Tribal Court, except Tribal Court Judges; 2. Manage the Tribal Court budget and research, apply for and manage grants and other awards; 3. Work with the Chief Judge and Chief Clerk to create and maintain Tribal Court case dockets; and 37 4. C. 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. A. 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. B. Cases will be heard in the Tribal Courtroom at such time as set by the Tribal Judge. 2-1-11. LAWS APPLICABLE. A. 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: 1. Tribal Constitution, ordinances, traditions and customs; 2. Federal laws not in conflict with tribal laws and customs; B. 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. C. 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. A. B. Criminal Complaints: 1. The offense charged; 2. The penalty provided for the offense charged; 3. The right to bail; 4. The right, if any, to trial by jury; 5. The right to an attorney at the defendant's own expense; 6. 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: 1. The nature of the Complaint; 2. The damages or remedy sought by the Complaint; 3. The fight to answer; 38 4. The right to hearing with witnesses to be examined and cross-examined. 5. 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. A. 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. B. 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. C. 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. A. Criminal Cases: 1. The right to a trial by jury upon request made within ten (l0) days of the arraignment shall be afforded to all defendants. 2. No jury fee shall be required in a criminal case. B. 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). C. Procedure. 1. 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. 2. 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. 3. Prior to impaneling the jury, the presiding Judge may excuse any person for good cause shown, such as: age, infirmity, or unavailability. 4. 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. 39 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. D. 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. A. 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. B. 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 C. 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. A. 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. B. 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. A. 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. 40 B. 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. C. 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. A. 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 defenda [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Amescalero_apache%3Afb2398baba194a84. Public record. Not legal advice.