TITLE 14. CRIMES AND

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PUNISHMENTS

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Chapter

Section

1. CRIMINAL PROCEDURE. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 1–101

2. CRIMINAL OFFENSES. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 2–101

Cross References

Elections, criminal violations and penalties, see Title 19, § 12–101 et seq.

Gaming, enforcement provisions, see Title 21, § 11–101 et seq.

Traffic Code, see Title 22, § 1–101 et seq.

United States Code Annotated

Laws governing offenses committed in Indian country, see 18 U.S.C.A. § 1152.

CHAPTER 1.

CRIMINAL PROCEDURE

Subchapter

1. Definitions

2. Prosecutor and Indigent Defense Attorneys

3. General Procedural Provisions

4. Proceedings Before Trial

5. Trial

6. Judgment and Sentence

7. Appeal

8. Bail and Bonds

9. Miscellaneous

Cross References

Jurisdiction, see Title 27, § 1–102.

Juvenile adjudications, see Title 6, § 1–701 et seq.

Law Enforcement Department, see Title 16, § 4–101 et seq.

United States Code Annotated

Indian Tribal justice support, see 25 U.S.C.A. § 3611 et seq.

SUBCHAPTER 1.

DEFINITIONS

Section

1–101. Definitions.

§ 1–101. Definitions

The following words and phrases when used in this chapter shall, for the

purposes of this chapter, have the meanings respectively ascribed to them in

this section, except where the context otherwise requires:

A. ‘‘Arrest’’ means the taking of a person into custody in the manner

authorized by law.

Title 14, § 1–101

CRIMES & PUNISHMENTS

‘‘Clerk’’ means the Muscogee (Creek) Nation District Court Clerk.

‘‘Constitution’’ means the Muscogee (Creek) Nation Constitution.

D. ‘‘Cross-deputization’’ means an agreement between the Nation, the Bureau of Indian Affairs (BIA) and/or any other governmental entity, by which the

Lighthorse Police are authorized to act as law enforcement officers to enforce

the law of another governmental entity within that entity’s territorial jurisdiction, and by which that entity’s law enforcement officers are authorized to act

as law enforcement officers to enforce the Muscogee (Creek) Nation’s laws

within Muscogee (Creek) Nation Indian Country.

E. ‘‘District Court’’ means the District Court of the Muscogee (Creek)

Nation.

[Deleted].

G. ‘‘Indian Country’’ means any real property within the Nation’s constitutional boundaries which is: (1) owned by any Indian subject to federal restrictions against alienation, (2) held in trust by the United States for the benefit of

any Indian, (3) Any real property owned by the Muscogee (Creek) Nation, (4)

held in trust by the United States for the benefit of the Muscogee Creek) Nation,

(5) the Mackey Sandbar site and any other original unallotted fee land owned

by the Muscogee Creek) Nation or (6) any other real property which otherwise

constitutes Indian Country as that term is used in 18 U.S.C. § 1151.

H. ‘‘Lighthorse Police’’ means law enforcement officers of the Muscogee

(Creek) Nation.

I. ‘‘Offense’’ means: (1) any crime as defined by the laws of the Muscogee

(Creek) Nation committed within Muscogee (Creek) Nation Indian country; (2)

any offense as defined by the laws of the Muscogee (Creek) Nation involving the

property or funds of the Muscogee (Creek) Nation, regardless of where the

actions giving rise to the offense occurred; and (3) where applicable, any crime

as defined by the laws of another governmental entity committed outside

Muscogee (Creek) Nation Indian country.

J. ‘‘Other authorized law enforcement officer’’ means any federal law enforcement officer authorized to enforce federal or Tribal law in Muscogee

Creek) Nation Indian Country or any law enforcement officer of a city, county

or state governmental entity who is authorized by a commission received

pursuant to a cross-deputization agreement to enforce federal or Tribal law in

Muscogee Creek) Nation Indian Country.

K. ‘‘Personal property’’ means personal property, including documents,

books, papers, and any other tangible object.

I. ‘‘Supreme Court’’ means the Supreme Court of the Muscogee (Creek)

Nation.

[NCA 01–110, § 101, approved July 6, 2001; amended by NCA 07–179, § 3, eff. July 10,

2007.]

Title 14, § 1–202

CRIMINAL PROCEDURE

SUBCHAPTER 2. PROSECUTOR AND INDIGENT

DEFENSE ATTORNEYS

Section

1–201. Prosecutor; general provisions.

1–202. Assistant Prosecutor.

1–203. Minimum qualifications.

1–204. Indigent Defense Attorneys.

1–205. Law clerks and legal interns.

1–206. Preferences in selection.

1–207. Oath of office.

1–208. Compensation.

§ 1–201. Prosecutor; general provisions

All offenses committed by a person against the laws of the Muscogee (Creek)

Nation shall be prosecuted by a Prosecutor. The Office of the Prosecutor shall

be a division of the Muscogee (Creek) Nation Department of Justice. The

prosecutor shall maintain an office at a location designated by the Muscogee

(Creek) Nation Attorney General, but the Prosecutor shall be empowered to

perform his or her duties at any geographic location within or without the

Muscogee (Creek) Nation Indian Country, and at any time of the night or day.

The Prosecutor shall exercise independent professional judgment related to the

investigation, prosecution and sentencing in all criminal and juvenile matters,

but shall be subject to the general administrative supervision of the Attorney

General with regard to personnel matters and general office procedures.

[NCA 01–110, § 102, approved July 6, 2001; amended by 07–179, § 4, eff. July 10,

2007.]

Cross References

Department of Justice, see Title 16, § 3–101.

Offenses against the person, see Title 14, Ch. 2, subch. 3.

Property offenses, see Title 14, Ch. 2, subch. 3.

Obstruction of justice, see Title 14, Ch. 2, subch. 6.

Crimes against public health and safety, see Title 14, Ch. 2, subch. 7.

Library References

District and Prosecuting Attorneys O1.

Indians O600.

Westlaw Topic Nos. 131, 209.

C.J.S. District and Prosecuting Attorneys §§ 1

to 4.

C.J.S. Indians §§ 151 to 179.

§ 1–202. Assistant Prosecutor

An Assistant Prosecutor may be employed to assist in the performance of the

Prosecutor’s duties if so authorized by the Attorney General. The Assistant

Prosecutor shall possess all of the qualifications required for the Prosecutor set

forth in Title 14, § 1–203, and shall have all authority possessed by the

Prosecutor, but shall be under the direct supervision of the Prosecutor as to the

performance of prosecutorial functions, whose decision regarding the performance of such functions shall be final. The Assistant Prosecutor shall be subject

to the general administrative supervision of the Attorney General.

[NCA 01–110, § 103, approved July 6, 2001.]

Title 14, § 1–203

CRIMES & PUNISHMENTS

§ 1–203. Minimum qualifications

The Prosecutor and the Assistant Prosecutor shall possess the following

minimum qualifications:

1. Be an attorney who has been licensed to practice law before the highest

court of any state for a period of two (2) years or more, and be a member in

good standing of the Oklahoma Bar Association and the Muscogee (Creek)

Nation Bar, except that the Assistant Prosecutor may have been licensed for a

shorter period of time if found to be otherwise qualified for the position;

2. Be at least twenty-one (21) years of age;

3. Have never been convicted of a felony;

4. Have not been convicted of any misdemeanor involving dishonesty or

involving alcohol or substance abuse during the two (2) year period preceding

his or her appointment, and during said two year period shall not have been

subject to supervision of any sort as a result of a conviction of any misdemeanor involving dishonesty or involving alcohol or substance abuse, regardless of

actual date of conviction;

5. Not be Attorney General of the Nation, not be a member of the National

Council, not be a member of a committee or board of the Nation, and not the

holder of any other elective or appointive office of the Nation, provided, that a

candidate who is a member of the National Council, or the holder of some

other appointive or elective Tribal office, may be appointed and confirmed as

Prosecutor, subject to the condition that he or she resign, at which time he or

she may be sworn in as Prosecutor and assume the duties of his or her office;

and

6. Not be employed on a salary or contract basis by the Nation or by

agencies, authorities or other entities of the Nation or by Chartered Indian

Communities of the Nation in any capacity other than as an officer of the Court,

and not be employed by any business owned or operated by the Nation.

[NCA 01–110, § 105, subsec. A, approved July 6, 2001.]

Cross References

Juvenile adjudication not to disqualify from employment or office, see Title 6, § 1–404.

Library References

District and Prosecuting Attorneys O2(3).

Indians O600.

Westlaw Topic Nos. 131, 209.

C.J.S. District and Prosecuting Attorneys

§§ 5, 11 to 14.

C.J.S. Indians §§ 151 to 179.

§ 1–204. Indigent Defense Attorneys

Indigent Defense Attorneys shall be hired to represent as counsel anyone who

appears at the initial appearance without aid of counsel, and who has been

informed by the Judge that it is his or her right to have counsel, and who

desires counsel, if such person is determined by the Court to be indigent

pursuant to court rules setting standards for indigence. Indigent Defense

Attorneys may also be appointed in civil child dependency and neglect cases to

represent parents or guardians who are determined by the Court to be indigent

pursuant to court rules setting standards for indigence.

[NCA 01–110, § 104, approved July 6, 2001.]

Title 14, § 1–208

CRIMINAL PROCEDURE

Library References

Indians O638.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–205. Law clerks and legal interns

The Prosecutor and Assistant Prosecutor may be assisted by law clerks and

legal interns who have not yet been licensed to practice law before the highest

court of any state; provided that if a legal intern is licensed as an intern

pursuant to the rules of a state bar association, the Prosecutor shall ensure that

all the requirements related to supervision of legal interns of such state bar

association, as well as any requirements of the Muscogee (Creek) Nation Bar,

are fully met.

[NCA 01–110, § 105, subsec. A, approved July 6, 2001.]

§ 1–206. Preferences in selection

A hiring preference shall be given, in the following order of preference, to

otherwise qualified applicants for the positions of Prosecutor, Assistant Prosecutor, and Indigent Defense Attorney:

A. First preference: Enrolled members of the Muscogee (Creek) Nation;

B. Second preference: Enrolled members of any other Indian Tribe.

C. Third preference: Non-Indians.

[NCA 01–110, § 106, approved July 6, 2001.]

Cross References

Tribal employees, Indian preference, see Title 37, § 3–201 et seq.

Library References

District and Prosecuting Attorneys O2(2).

Indians O213.

Westlaw Topic Nos. 131, 209.

C.J.S. District and Prosecuting Attorneys §§ 5

to 7.

C.J.S. Indians §§ 59 to 61.

§ 1–207. Oath of office

Upon appointment, the Prosecutor, and the Assistant Prosecutor, shall be

installed and take office as soon as practical. Prior to installation the Prosecutor and Assistant Prosecutor must take the following Oath of Office:

‘‘I,

, do solemnly swear (or affirm) that I will faithfully execute the

office of the Prosecutor, will enforce the laws of the Muscogee (Creek) Nation

in all causes coming before me with integrity and fairness, without regard to

the identities of the parties before me, and will to the best of my ability

preserve, protect and defend the Constitution of the Muscogee (Creek) Nation

of Oklahoma.’’

[NCA 01–110, § 107, approved July 6, 2001.]

§ 1–208. Compensation

The compensation of the Prosecutor, and Assistant Prosecutor shall be paid

by the Muscogee (Creek) Nation pursuant to the Nation’s personnel or employment contract policies.

[NCA 01–110, § 108, approved July 6, 2001.]

Title 14, § 1–208

CRIMES & PUNISHMENTS

Library References

District and Prosecuting Attorneys O4.

Westlaw Topic No. 131.

SUBCHAPTER 3.

C.J.S. District and Prosecuting Attorneys

§§ 64 to 80.

GENERAL PROCEDURAL PROVISIONS

Section

1–301. Scope, purpose and construction.

1–302. Prosecution of offenses.

1–303. Rights of defendant.

1–304. Court appointment of counsel a privilege.

1–305. Limitation of prosecution.

1–306. Search and seizure.

1–307. Arrest.

1–309. Extradition of defendants subject to other jurisdiction.

1–310. Protective custody.

§ 1–301. Scope, purpose and construction

A. Applicability. This Title governs the procedure in all criminal proceedings in the District Court.

B. Criminal proceeding defined. A criminal proceeding includes any proceeding in which a person is charged with a criminal offense of any degree,

brought to trial, convicted, or punished.

C. Construction and intent. This Title is intended to provide for the just

determination of every criminal proceeding. It shall be construed to secure

simplicity in procedure, fairness in administration of justice and the elimination

of unjustifiable expense and delay.

D. Other applicable law. In any case wherein provisions which would

govern specific procedural issues are not contained in this chapter, the District

Court may resort to the Judicial Code or other applicable law of the Nation,

subject always to the due process rights of the defendant and the fundamental

fairness of the proceedings. If no provisions addressing such procedural issues

are contained in the Judicial Code or other applicable law of the Nation, the

Court may proceed in a lawful fashion consistent with Muscogee (Creek) Nation

laws, the Constitution of the Nation, and the federal Indian Civil Rights Act,

subject always to the due process rights of the defendant and the fundamental

fairness of the proceedings; provided, that nothing in this section shall be

construed as authorizing the applicability of any state or federal procedural or

substantive law or statute to criminal proceedings in the Muscogee (Creek)

Nation courts.

[NCA 01–110, § 201, approved July 6, 2001.]

Library References

Indians O600.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–302. Prosecution of offenses

A. Punishment. No person shall be punished for an offense except upon a

legal conviction, including a plea of guilty or nolo contendere in open court, by

Title 14, § 1–303

CRIMINAL PROCEDURE

a court of competent jurisdiction, provided, however, that no incarceration or

other disposition of one accused of an offense prior to trial in accordance with

this title shall be deemed punishment.

B. Plaintiff and defendant. All criminal proceedings shall be prosecuted in

the name of the Muscogee (Creek) Nation as plaintiff, against the person

charged with an offense, referred to as the defendant.

C. Criminal case number. The District Court Clerk shall assign a case

number prefix to criminal actions in a manner approved by the District Court.

[NCA 01–110, § 202, approved July 6, 2001.]

Library References

Indians O600, 620.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–303. Rights of defendant

In all criminal proceedings, the defendant shall have the following rights:

A. Representation. The defendant shall have the right to appear and represent himself; to be represented by a Indigent Defense Attorney upon application

and approval by the Court if found qualified for free representation; to be

represented at his or her own expense by any attorney admitted to practice

before the District Court.

B. Nature of charges. The defendant shall have the right to be informed of

the nature of the charges against him and to have a written copy of the

complaint containing all information required by Title 14, § 1–401 herein.

C. Testimony by defendant. The defendant shall have the right to testify in

his or her own behalf, or to refuse to testify regarding the charge against him or

her, provided, however, that once a defendant takes the stand to testify on any

matter relevant to the immediate proceeding against him or her, he or she shall

be deemed to have waived all right to refuse to testify in that immediate

criminal proceeding. However, such a waiver in one distinct phase of the

criminal trial process, such as a motion hearing, trial or sentencing hearing,

shall not be deemed to constitute a waiver of defendant’s right to remain silent

in other distinct phases of the criminal trial process.

D. Confront witnesses. The defendant shall have the right to confront and

cross-examine all witnesses against him, subject to evidentiary requirements in

the Judicial Code or other applicable law of the Muscogee (Creek) Nation.

E. Subpoena. The defendant shall have the right to compel by subpoena the

attendance of witnesses on his or her own behalf.

F. Speedy trial. The defendant shall have the right to have a speedy public

trial, which shall be held within one-hundred and eighty (180) days of the date

of the defendant’s arraignment if he or she has made bail and within ninety (90)

days of the date of the defendant’s arraignment if he or she is incarcerated due

to his or her failure or inability to make bail, unless the defendant has waived

his or her right to a speedy trial, said trial to be held before an impartial judge

or jury as provided in this Title or other applicable law of the Nation.

Title 14, § 1–303

CRIMES & PUNISHMENTS

Appeal. The defendant shall have the right to appeal in all cases.

H. Spouse’s testimony. The defendant shall have the right to prevent his or

her present or former spouse from testifying against him concerning any matter

which occurred during such marriage, except that:

1. The defendant’s present or former spouse may testify against him in any

case in which the offense charged is alleged to have been committed against the

spouse or the immediate family, or the children of either the spouse or the

defendant, or against the marital relationship; and

2. Any testimony by the spouse in the defendant’s behalf will be deemed a

waiver of this privilege.

I. Double jeopardy. The defendant shall have the right to not be twice put in

jeopardy by the Nation for the same offense, provided that nothing herein shall

be construed as prohibiting the prosecution in the Muscogee (Creek) Nation

Courts of a defendant following a state or federal jeopardy.

[NCA 01–110, § 203, approved July 6, 2001.]

Cross References

Child abuse proceedings, communication not privileged, see Title 6, § 1–506.

Juvenile proceedings, exclusion of certain statements by alleged delinquent, see Title 6, § 1–407.

Library References

Indians O213, 603, 609, 610, 612, 630, 638.

Westlaw Topic No. 209.

C.J.S. Indians §§ 59 to 61, 151 to 179.

§ 1–304. Court appointment of counsel a privilege

Appointment of free legal counsel for a defendant is a privilege which shall be

granted to defendants unable to afford legal counsel by the Court.

[NCA 01–110, § 204, approved July 6, 2001.]

Library References

Indians O638.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–305. Limitation of prosecution

A. Bribery and offenses related to public funds and public property. Prosecutions for the crimes of bribery, embezzlement of public money, assets or

property of the Muscogee (Creek) Nation or other subdivision thereof, or of any

misappropriation of public money, assets or property of the Muscogee (Creek)

Nation or other subdivision thereof, falsification of public records of the

Muscogee (Creek) Nation or other subdivision thereof, and conspiracy to

defraud the Muscogee (Creek) Nation or other subdivision thereof in any

manner or for any purpose shall be commenced within seven (7) years after the

discovery of the crime.

B. Tax laws. Prosecutions for criminal violations of any Muscogee (Creek)

Nation tax laws shall be commenced within five (5) years after the commission

of such violation.

Title 14, § 1–306

CRIMINAL PROCEDURE

C. Rape and forcible sodomy. Prosecution for the crime of rape or forcible

sodomy shall be commenced within seven (7) years after the discovery of the

crime.

D. Other offenses. In all other cases a prosecution for a public offense must

be commenced within seven (7) years after its commission.

[NCA 01–110, § 205, approved July 6, 2001.]

Library References

Indians O602.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–306. Search and seizure

A. Search warrants. A search warrant is an order directed to any federal

law enforcement officer or a Lighthorse Police Officer directing him to search a

particular place in Muscogee (Creek) Nation Indian Country for described

persons or personal property and if found to seize them.

B. Affidavit. A warrant shall issue only on an affidavit or affidavits sworn to

before a District Judge and establishing grounds for issuing the warrant. If the

District Judge is satisfied that grounds for the application exist or that there is

probable cause to believe that they exist, he or she shall issue a warrant

identifying the personal property and naming or describing the person or place

to be searched. The finding of probable cause may be based on hearsay

evidence either in whole or in part.

C. Contents of search warrants. Every search warrant shall contain the

name and address of the Court and the signature of the District Judge issuing

the warrant. It shall specifically describe the place to be searched and the items

to be searched for and seized. The warrant shall be directed to any Lighthorse

Police Officer or other authorized law enforcement officer. The warrant shall

contain the date upon which it was issued and shall command that the search

shall be conducted within a specified period of time not to exceed ten (10) days.

The warrant shall specify the person or place to be searched and shall specify

the objective of the search.

D. Service of search warrants. Search warrants shall be served by any

Lighthorse Police Officer or other authorized law enforcement officer between

the hours of 7:00 a.m. and 9:00 p.m., unless otherwise directed on the warrant

by the District Judge who issued it. A copy of the warrant shall be left with an

occupant or owner over sixteen (16) years of age of the place searched if

present during said search. If the place to be searched is not occupied at the

time of the search, a copy of the warrant shall be left in some conspicuous

place on the premises. In order to serve the warrant, the officer may break

open any outer or inner door or window of a place to be searched, or any part

of any place to be searched, or anything thereon, if after notice of the officer’s

authority and purpose, the officer is denied or refused admittance, or when the

premises to be searched are unoccupied at the time of the search, or if it is

necessary to liberate himself or a person aiding in the execution of the warrant.

Title 14, § 1–306

CRIMES & PUNISHMENTS

E. Inventory. The officer serving a search warrant shall make a signed

inventory of all personal property seized and attached such inventory to the

warrant. A copy of the inventory and search warrant shall be left with an

occupant or owner over sixteen (16) years of age if present during the search or

left in a conspicuous place with the search warrant if an occupant is not

present during the search.

Return of search warrants.

1. The officer shall endorse on the warrant the date, time, and place of

service and the signature of the officer serving it.

2. The warrant shall be returned to the Court with an inventory of personal

property seized within five (5) days of service, Saturdays, Sundays, and legal

holidays excluded.

3. In every case the warrant shall be returned within ten (10) days of the

date of issuance, unless return be due on a Saturday, Sunday, or legal holiday,

in which case, the return shall be made on the next business day.

G. Personal property subject to seizure. Personal property in Muscogee

(Creek) Nation Indian country which is subject to seizure is property in which

there is probable cause to believe such property is:

Stolen, embezzled, contraband, or otherwise criminally possessed; or

Which is or has been used to commit a criminal offense; or

3. Personal property which constitutes evidence of the commission of a

criminal offense.

H. Warrantless searches. A Lighthorse Police Officer or other authorized

law enforcement officer may conduct a search without a warrant in Muscogee

(Creek) Nation Indian country only:

Incident to a lawful arrest; or

With the consent of the person to be searched, or

3. With the consent of the person having actual possession and control of

the property to be searched; or

4. When he has reasonable grounds to believe that the person searched may

be armed and dangerous; or

5. When the search is of a vehicle capable of being moved and the officer

has probable cause to believe that it contains personal property subject to

seizure, or upon inventory of such vehicle after impoundment and seizure; or

6. In any other circumstances wherein federal or Tribal case law has held

that a search without obtaining a warrant prior to the search in those circumstances would not be unreasonable.

I. Unlawful search and seizure. A person aggrieved by an unlawful search

and seizure may move the District Court for the return of the personal

property, not contraband, on the ground that he is entitled to lawful possession

of the personal property illegally seized. The District Court may receive evidence on any issue of fact necessary to the decision of the motion. If the motion

is granted, the personal property shall be returned, if not contraband, and shall

not be admissible at any hearing or trial.

Title 14, § 1–307

CRIMINAL PROCEDURE

J. Questioning of person in act of committing offense; frisk search. A

Lighthorse Police Officer or other authorized law enforcement officer may stop

any person in a public place in Muscogee (Creek) Nation Indian Country whom

he or she has reasonable cause to believe is in the act of committing an offense,

or has committed an offense, or is attempting to commit an offense and

demand of him his or her name, address, an explanation of his or her actions

and may, if he or she has reasonable grounds to believe his or her own safety or

the safety of other nearby is endangered, conduct a frisk type search of such

person for weapons.

[NCA 01–110, § 206, approved July 6, 2001.]

Historical and Statutory Notes

Derivation:

NCA 82–30, § 510.

Cross References

Search warrants for the protection of children, see Title 6, § 1–601 et seq.

Library References

Searches and Seizures O24, 101, 105, 123,

141.

Westlaw Topic No. 349.

C.J.S. Searches and Seizures §§ 13 to 14, 16,

21, 61, 70 to 71, 172 to 176, 183 to 186, 188

to 193, 199 to 200, 203 to 205, 225 to 243,

246 to 247, 250 to 251, 253 to 255, 272,

274.

§ 1–307. Arrest

A. Persons authorized to make arrest. An arrest may be made by either a

Lighthorse Police Officer or other authorized law enforcement officer or by a

private person.

B. Arrest without warrant. A Lighthorse Police Officer or other authorized

law enforcement officer may make an arrest in obedience to an arrest warrant,

or he or she may, without a warrant, arrest a person:

1. When he or she has probable cause to believe that an offense has been

committed in his or her presence.

2. When he or she has probable cause for believing the person has committed an offense, although not in his or he or her presence, and there is

reasonable cause for believing that such person before a warrant can be

obtained may:

Flee the jurisdiction or conceal himself to avoid arrest, or

Destroy or conceal evidence of the commission of an offense, or

c. Injure or annoy another person or damage property belonging to another

person.

C. Citizen’s arrest. A private person may arrest another, for prompt delivery

to a Lighthorse Police Officer or other authorized law enforcement officer,

when an offense is committed or attempted in his or her presence;

D. Request for assistance in making arrest. Any person making an arrest

may orally summon as many persons as he or she deems necessary to help him.

Title 14, § 1–307

CRIMES & PUNISHMENTS

E. Arrest at residence. If the offense charged is an offense in violation of the

Federal Major Crimes Act,1 the arrest may be made at his or her residence at

any time of the day or night. Otherwise the arrest pursuant to a warrant can be

made at a person’s residence only between the hours of 7:00 a.m. and 9:00 p.m.

unless otherwise specifically authorized by the issuing Judge. The arrest shall

be by a Lighthorse Police Officer or other authorized law enforcement officer

pursuant to an arrest warrant, or by a Lighthorse Police Officer or other

authorized law enforcement officer for an offense committed in the home in the

presence of the officer, or by a Lighthorse Police Officer or other law enforcement officer in continuous pursuit of a person who flees to his or her home to

avoid arrest. Arrest at places other than at the residence may be made at any

time.

F. Information to be provided to person arrested. Any person, upon making

an arrest:

1. Must inform the person to be arrested of his or her intention to arrest

him, of the cause or reasons for the arrest, and his or her authority to make it,

except when the person to be arrested is actually engaged in the commission of,

or an attempt to, commit an offense, or is pursued immediately after its

commission or an escape if such is not reasonably possible under the circumstances;

2. Must show the warrant of arrest as soon as is practicable, if such exists

and is demanded;

3. If a Lighthorse Police Officer or other authorized law enforcement

officer, may use reasonable force and use all necessary means to effect the

arrest if the person to be arrested either flees or forcibly resists after receiving

information of the officer’s intent to arrest, provided that deadly force may be

used only when deemed necessary and reasonable for the protection of the

public and in accordance with the rights of the suspect under the Indian Civil

Rights Act;

4. If a Lighthorse Police Officer or other authorized law enforcement

officer, may break open a door or window of a building in which the person to

be arrested is, or is reasonable believed to be, after demanding admittance and

explaining the purpose of which admittance is desired;

5. May search the person arrested and take from him and put into evidence

all weapons he or she may have about his or her person;

6. Shall as soon as is reasonably possible, deliver the person arrested to a

police officer or do as commanded by the arrest warrant or deliver the person

arrested to the jail for processing of a complaint.

[NCA 01–110, § 207, approved July 6, 2001.]

1 18 U.S.C.A. § 1153.

Historical and Statutory Notes

Derivation:

NCA 82–30, § 509.

Cross References

Domestic or family violence, arrests, see Title 6, § 3–305.

Title 14, § 1–310

CRIMINAL PROCEDURE

Library References

Arrest O62, 64, 66, 68(5).

Westlaw Topic No. 35.

C.J.S. Arrest §§ 9 to 13, 48 to 49, 52 to 53,

55.

§ 1–308 Arrest in hot pursuit

A. Pursuit outside Muscogee (Creek) Nation Indian Country. Any Lighthorse Police Officer or other law enforcement officer otherwise empowered to

arrest a person within Muscogee (Creek) Nation Indian Country may continuously pursue such person from a point of initial contact within the Muscogee

(Creek) Nation jurisdiction to any point of arrest within or without Muscogee

(Creek) Nation Indian Country and such arrest shall be valid, provided, that

such officer shall respect and comply with the extradition requirements of the

jurisdiction in which the arrest is finally made.

B. Pursuit inside Muscogee (Creek) Nation Indian Country. Any law enforcement officer commissioned by the federal government, any Indian Tribe,

or any state, when in hot and continuous pursuit of any person for the

commission of a felony within such other jurisdiction, may validly arrest such

person within the Muscogee (Creek) Nation jurisdiction, provided, that any

person so arrested shall be forthwith delivered to the Lighthorse Police for a

show cause hearing pursuant to the requirements governing extradition set

forth in Section 211 of this Title.1

[NCA 01–110, § 208, approved July 6, 2001.]

1 So in original;

no Section 211 was added by NCA 01–110. See Title 14, § 1–309.

Library References

Arrest O66(3).

Westlaw Topic No. 35.

C.J.S. Arrest § 55.

§ 1–309. Extradition of defendants subject to other jurisdiction

[Reserved pursuant to NCA 01–110, § 2, § 209, approved July 6, 2001.]

§ 1–310. Protective custody

Any Indian person who through physical or mental disability or habitual

intemperance is unable to care for himself may be taken into protective custody

and held in jail without criminal charges for a period not to exceed twenty-four

(24) hours.

[NCA 92–14, § 1–603, approved March 4, 1992.]

SUBCHAPTER 4.

PROCEEDINGS BEFORE TRIAL

Section

1–401. The complaint.

1–402. Arrest warrant or summons to appear.

1–403. Criminal citations.

1–404. Initial appearance and arraignment.

1–405. Plea bargaining.

1–406. Withdrawing guilty plea.

Title 14, § 1–401

CRIMES & PUNISHMENTS

Section

1–407. Depositions.

1–408. Discovery.

1–409. Subpoena.

§ 1–401. The complaint

A. Complaint. Every criminal proceeding shall be commenced by the filing

of a criminal complaint. The complaint is a sworn written statement of the

essential facts charging that a named individual(s) has committed a particular

offense.

Contents of complaint. The complaint shall contain:

The name and address of the court;

2. The name of the defendant; if known or some other name if not known

plus whatever description of the defendant is known, including his or her Tribal

membership or Tribal affiliation if known;

3. The signature of the Prosecutor or Assistant Prosecutor and his or her

typewritten name, title, and office address;

4. A written statement describing in ordinary and plain language the facts of

the offense alleged to have been committed including a reference to the time,

date, and place as nearly as may be known. The offense may be alleged in the

language of the statute violated;

5. The person against whom or against whose property the offense was

committed and the names of the witnesses of the Nation if known, otherwise no

statement need be made;

6. The general name and Muscogee (Creek) Nation Code title and section

number of the alleged offense; and

Verification by a Lighthorse Officer.

C. Error. No minor omission from or error in the form of the complaint

shall be grounds for dismissal of the case unless some significant prejudice

against the defendant can be shown to result therefrom.

D. Time of filing complaint. A complaint may be filed at any time within the

period prescribed by Title 14, § 1–406, provided, that if an accused has been

arrested without a warrant the complaint shall be filed promptly and in no case

later than the time of arraignment.

E. Joinder of offenses. Two (2) or more offenses may be charged in one

complaint so long as they are set out in separate counts and:

They are part of a common scheme or plan, or

They arose out of the same transaction.

F. Joinder of defendants. Two (2) or more defendants may be joined in one

complaint if they are alleged to have participated in a common act, scheme, or

plan to commit one or more offenses. Each defendant need not be charged in

each count.

G. Dismissal of complaint. The Court, for the furtherance of justice, may

either on its own motion or upon the application of the prosecuting attorney,

Title 14, § 1–402

CRIMINAL PROCEDURE

order an action be dismissed. An order for the dismissal of the action shall not

be a bar to any other prosecution for the same offense.

[NCA 01–110, § 301, approved July 6, 2001.]

Cross References

Right of defendant to be informed of nature of charges, see Title 14, § 1–303.

Library References

Indians O604.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–402. Arrest warrant or summons to appear

A. Summons and arrest warrants. If it appears from the complaint that an

offense has been charged against the defendant, a Judge of the District Court

may issue a summons to the defendant to bring him before the court in lieu of

an arrest warrant. An arrest warrant shall issue only upon a complaint

charging an offense by the defendant against the law of the Nation supported

by the recorded ex parte testimony or affidavit of some person having knowledge of the facts of the case through which the Judge can determine that

probable cause exists to believe that an offense has been committed and that

the defendant committed it.

B. Contents of summons. A criminal summons shall contain the same

information as an arrest warrant except, that instead of commanding the arrest

of the accused, it shall order the defendant to appear before a District Judge

within five (5) days or on some certain day to enter a plea to the charge, and a

notice that upon the defendant’s failure to appear an arrest warrant shall issue

and that the defendant may be further charged with disobeying a lawful order

of the Court. If the defendant fails to appear in response to a summons or

refuses to accept the summons an arrest warrant shall be issued.

C. Contents of arrest warrants. The warrant of arrest shall be signed by the

Judge issuing it, and shall contain the name and address of the Court; the name

of the defendant, or if the correct name is unknown, any name by which the

defendant is known and the defendant’s description; and, a description of the

offense charged with a reference to the section of the Muscogee (Creek) Nation

Crimes and Punishments Code alleged to have been violated. It shall order and

command the defendant be arrested and brought before a Judge of the District

Court to enter a plea. When two (2) or more charges are made against the same

person only one warrant shall be necessary to commit him to trial.

Service of arrest warrants and summons.

1. Warrants for arrest and criminal summons authorized in writing by the

Judge may be served by any Lighthorse Police or other authorized law enforcement officer or any adult person at any place within Muscogee (Creek) Nation

Indian Country. Warrants for arrest and criminal summons authorized in

writing by the Judge may also be served outside Muscogee (Creek) Nation

Indian Country by any other law enforcement officer who has a Lighthorse

commission pursuant to a cross-deputization agreement or other federal, state

Title 14, § 1–402

CRIMES & PUNISHMENTS

and Tribal law enforcement officer(s) whose assistance has been requested by

the Muscogee (Creek) Lighthorse Police.

2. Warrants for arrest and summons are to be served at a person’s home

only between the hours of 7:00 a.m. and 9:00 p.m., unless an authorization to

serve such process at night is placed on the face thereof by a District Judge.

3. The date, time, and place of service or arrest shall be written on the

warrant or summons along with the signature of the person serving such, and

the warrant returned to the Court. A copy, so signed, shall be given to the

person served or arrested at the time of arrest if reasonably possible, or as soon

thereafter as is reasonably possible.

4. An officer need not have the warrant in his or her possession at the time

of arrest, but if not he or she shall inform the defendant of the charge, that a

warrant of arrest has been issued and shall provide the defendant a copy of the

warrant not later than the time of arraignment.

[NCA 01–110, § 302, approved July 6, 2001.]

Historical and Statutory Notes

Derivation:

NCA 82–30, § 508.

Library References

Indians O604.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–403. Criminal citations

A. Issuance of citation. Whenever a Lighthorse Police or other authorized

law enforcement officer would be empowered to make an arrest without a

warrant for an offense, but has reasonable grounds to believe an immediate

arrest is not necessary to preserve the public peace and safety, he or she may,

in his or her discretion, issue the defendant a citation instead of taking said

person into custody. Such citation, signed by the Lighthorse Police or other

authorized law enforcement officer, shall be considered a court order, and may

be filed in the action in lieu of a formal complaint, if endorsed by the Muscogee

(Creek) Nation Prosecutor, unless the Court orders that a formal complaint be

filed.

Contents of citation.

1. The citation shall contain the name and address of the Court, the name or

alias and description of the defendant, a description of the offense charged, and

the signature of the Lighthorse Police Officer or other authorized law enforcement officer who issued the citation.

2. The citation shall contain an agreement by the defendant to appear

before a District Judge within five (5) days or on a day certain to answer to the

charge, and the signature of the defendant.

3. The citation shall contain a notice that upon defendant’s failure to

appear, an arrest warrant shall issue and that the defendant may be further

charged with disobeying a lawful order of the Court.

CRIMINAL PROCEDURE

Title 14, § 1–404

4. The original copy of the citation shall be delivered to the Criminal

Prosecutor for review and a legible copy shall be given to the defendant.

[NCA 01–110, § 303, approved July 6, 2001.]

§ 1–404. Initial appearance and arraignment

A. Initial appearance: An initial appearance is a hearing at the conclusion

of which the District Court shall determine whether a detention after the arrest

of an accused person is reasonable. The initial appearance shall be held within

forty-eight (48) hours of an accused person’s arrest and confinement.

B. Arraignment defined. An arraignment is the bringing of an accused

person before the District Court Judge in order to inform him of the charge

against him and of his or her rights, receive his or her plea and set bail. The

arraignment shall be held in open court upon the appearance of an accused in

response to a criminal summons, citation or criminal complaint.

C. Procedure at arraignment. Arraignments shall be conducted in the

following order:

The District Judge should request the Prosecutor to read the charges.

2. The Prosecutor should read the entire complaint, deliver a copy to the

defendant unless he or she has previously received a copy thereof, and state the

minimum and maximum authorized penalties.

3. The District Judge should determine that the accused understands the

charge against him and explain to the defendant that he or she has the

following rights:

The right to remain silent;

The right to be tried by a jury upon request; and

c. The right to consult with an attorney at his or her own expense and that if

he or she desires to consult with an attorney the arraignment will be continued.

4. The District Judge shall ask the defendant if he or she wishes to obtain

counsel and, if the defendant so desires, he or she will be given a reasonable

time to obtain counsel. If the defendant shows his or her indigence and counsel

is available for appointment, an Indigent Defense Attorney may be appointed to

serve as counsel.

5. The District Judge should ask the defendant whether he or she wishes to

plead ‘‘guilty’’, ‘‘nolo contendere’’, or ‘‘not guilty’’. If the defendant is allowed

time to obtain or consult with counsel, the District Court shall enter a plea of

‘‘not guilty’’ on the defendant’s behalf.

D. Receipt of plea at arraignment. The defendant shall plead ‘‘guilty’’, ‘‘nolo

contendere’’, or ‘‘not guilty’’ to the offense charged, at which time the Judge

shall proceed as follows:

1. If the defendant refuses to plead, the Judge shall enter a plea of ‘‘not

guilty’’ for him.

2. If the defendant pleads ‘‘not guilty’’, the Judge shall set a trial date and

conditions for bail prior to trial.

Title 14, § 1–404

CRIMES & PUNISHMENTS

3. If the defendant pleads ‘‘guilty’’ or ‘‘nolo contendere’’, the Court shall not

accept the plea without first addressing the defendant personally and determining that the defendant understands the nature of the charge, the rights that he

or she is waiving, and that he or she is making the plea voluntarily. The Court

shall not enter a judgment upon a plea of guilty or nolo contendere unless it is

satisfied that there is a factual basis for the plea. If the guilty plea is accepted,

the Judge may immediately sentence the defendant or order a sentencing

hearing. If the Court refuses to accept a plea of guilty or nolo contendere, the

Court shall enter a plea of not guilty.

4. The defendant, with the consent of the Court and of the prosecuting

attorney, may plead guilty to any lesser offense than that charged which is

included in the offense charged in the complaint or to any lesser degree of the

offense charged.

[NCA 01–110, § 304, approved July 6, 2001.]

Library References

Indians O605.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–405. Plea bargaining

Whenever the defendant plea guilty as a result of a plea arrangement with the

Prosecutor, the full terms of such agreement shall be disclosed to the Judge.

The Judge in his or her discretion, is not required to honor such agreement. In

the event that the Judge decides not to honor such agreement, he or she should

offer the defendant an opportunity to withdraw his or her plea and proceed to

trial.

[NCA 01–110, § 305, approved July 6, 2001.]

Library References

Indians O605.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–406. Withdrawing guilty plea

A motion to withdraw a plea of guilty may be made only before a sentence is

imposed, deferred, or suspended, except that the Court may allow a guilty plea

to be withdrawn to correct a manifest injustice.

[NCA 01–110, § 306, approved July 6, 2001.]

Library References

Indians O605.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–407. Depositions

A. Depositions—when taken. Whenever due to exceptional circumstances of

the case it is in the interest of justice that the testimony of a prospective witness

of a party be taken and preserved for use at trial, the Court may upon motion of

100

Title 14, § 1–407

CRIMINAL PROCEDURE

such party and notice to the parties order that testimony of such witness be

taken by deposition.

B. Oral deposition of defendant. In no event shall a deposition be taken of a

party defendant without the defendant’s consent and the scope and manner of

such deposition including the examination and cross-examination shall be such

as would be allowed in the trial itself. The Nation shall make available to the

defendant or defendant’s counsel for examination and use at the taking of his or

her deposition any statement of a witness which is in their possession to which

the defendant would be entitled to at the trial.

C. Notice of taking deposition. The party who is taking the deposition shall

give to every party reasonable written notice of the time and place for taking

the deposition. The notice shall state the name and address of each person to be

examined.

Depositions—how taken

1. The deposition shall be taken by stenographic means. The Court may

upon motion order that a deposition be taken by telephone, video recording or

other remote electronic means.

2. A deposition upon oral examination shall not last more than six (6) hours

and shall be taken only between the hours of 8:00 a.m. and 5:00 p.m. on a day

other than a Saturday or Sunday and on a date other than a holiday unless

agreed upon by the parties.

E. Objections to deposition. Objections to deposition testimony or evidence

or parts thereof shall be stated at the time of the taking of the deposition

including stating the grounds for the objection.

Use of deposition

1. At the trial or upon any hearing, a part or all of a deposition, so far as

otherwise admissible under the rules of evidence, may be used as substantive

evidence if the witness is unavailable, or the witness gives testimony at the trial

or hearing inconsistent with that witness’ deposition.

2. Any deposition may be used by any party for the purpose of contradicting

or impeaching testimony of the deponent as a witness. If only part of the

deposition is offered in evidence by a party, an adverse party may require the

offering of all of it which is relevant to the part offered; any party may offer

other parts.

G. Payment of expenses. The party that is seeking to depose shall pay the

cost of the deposition, including travel expense, attorney’s fees and the cost of

the transcript of the deposition. Whenever a deposition is taken by the defendant who is unable to bear the expense, the Court may direct that the expenses

be paid by the Nation.

[NCA 01–110, § 307, approved July 6, 2001.]

Library References

Indians O604.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

101

Title 14, § 1–408

CRIMES & PUNISHMENTS

§ 1–408. Discovery

A. Requests for discovery. Requests for discovery shall be accompanied by a

statement of interrogatories or request for admissions and a list of the documents, if any sought to be produced.

B. Disclosure of evidence by the Nation. Upon request of the defense, the

Nation shall disclose the following:

1. The names and address of witnesses which the Nation intends to call at

trial, together with their relevant, written or recorded statement, if any, or if

none summaries of any oral statement;

2. Any written or recorded statements and the substance of any oral

statements made by the accused or made by a co-defendant;

3. Any reports made by experts in connection with the particular case,

including results of physical or mental examination and of scientific tests,

experiments, or comparisons;

4. Any books, papers, documents, photographs, tangible objects, buildings

or places which the prosecuting attorney intends to use in the hearing or trial

or which were obtained from or belonged to the accused;

5. Any record or prior criminal convictions of the defendant or any codefendant; and OSBI rap sheet/records check on any witness listed by the

Nation who will testify at trial, except that the OSBI report shall not provide

date of birth, social security number, home phone number or address.

6. Any evidence favorable to the defendant if such evidence is material to

either guilt or punishment.

C. Disclosure of evidence by the defendant. Upon request of the Nation, the

defense shall be required to disclose the following:

1. The names and addresses of witnesses which the defense intends to call

at trial, together with their relevant written or recorded statement, if any, or if

none, summaries of any oral statement;

2. OSBI rap sheet/records check on any witness listed by the defendant who

will testify at trial, except that the OSBI report shall not provide date of birth,

social security number, home phone number or address.

3. The names and addresses of any witness the defendant will call, other

than himself, for testimony relating to any mental disease, mental defect, or

other condition bearing upon his or her mental state at the time the offense was

allegedly committed, together with the witness’ statement of that fact, unless

the statement is redacted by the court to preclude disclosure of privileged

communication;

4. Upon the prosecuting attorney’s request, the defendant shall allow him

access at any reasonable times and in any reasonable manner to inspect,

photograph, copy, or have reasonable tests made upon any book, paper,

document, photograph, or tangible object which is within the defendant’s

possession or control and which:

The defendant intends to offer into evidence, or

102

Title 14, § 1–409

CRIMINAL PROCEDURE

b. Is a report or statement as to physical or mental examination or scientific

test made in connection with the case prepared by and relating to the anticipated testimony of a person whom the defendant intends to call as a witness,

provided the report or statement is not precluded by privileged communication.

Information not subject to disclosure

1. This Title does not authorize the discovery or inspection of reports,

memoranda or other internal government documents made by the attorney for

the Nation or any other government agent investigating or prosecuting the case.

Nor does the rule authorize the discovery or inspection of statements made by

government witnesses or prospective government witnesses except as provided

above in subsection B.

2. The discovery order shall not include discovery of legal work product of

either attorney which is deemed to include legal research or those portions of

records, correspondence, reports, or memoranda which are only the opinions,

theories, or conclusions of the attorney or the attorney’s legal staff.

E. Time of discovery. All issues relating to discovery, except as otherwise

provided, will be completed at least ten (10) days prior to trial. The court may

specify the time, place and manner of making the discovery and may prescribe

such terms and conditions as are just.

Regulation of discovery

1. Upon motion of the Nation or defendant, the Court may at any time order

that specified disclosures be restricted, or make any other protective order. If

the Court enters an order restricting specified disclosures, the entire text of the

material restricted shall be sealed and preserved in the records of the Court to

be made available to the Appellate Court in the event of an appeal.

2. If at any time during the course of the proceedings it is brought to the

attention of the Court that a party has failed to comply with this rule, the Court

may order such party to permit the discovery or inspection, grant continuance,

or prohibit the party from introducing evidence not disclosed, or it may enter

such other order as it deems just under the circumstances.

3. Reasonable cost of copying, duplicating, videotaping, developing or any

other cost associated with this Code for items requested shall be paid by the

party so requesting; however any item which was obtained from the defendant

by the Nation of which copies are requested by the defendant shall be paid by

the Nation.

[NCA 01–110, § 308, approved July 6, 2001.]

Library References

Indians O604.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–409. Subpoena

A. Issuance and return. The defendant and the prosecutor shall have the

right to subpoena any witnesses they deem necessary for the presentation of

their case, including subpoenas issued in blank. Subpoenas in criminal cases

shall be issued, served and returned as in civil cases.

103

Title 14, § 1–409

CRIMES & PUNISHMENTS

B. Service. A subpoena may be served any place within or without Muscogee (Creek) Nation Indian Country, as provided for service in civil cases.

C. Civil sanctions for failure to comply with subpoena. Failure, without

adequate excuse, to obey a properly served subpoena may be deemed a

contempt of Court, and civil enforcement may proceed upon the order of the

Court. No contempt shall be prosecuted unless a return of service of the

subpoena has been made on which is endorsed the date, time and place of

service and the person performing such service. The Court shall determine on a

case by case basis whether it possesses sufficient civil jurisdiction over nonIndian persons who have failed to obey a subpoena; such determination shall

focus on whether such non-Indian person has sufficient contacts with Muscogee (Creek) Nation Indian Country to justify the exercise of the Nation’s civil

jurisdiction over such person.

[NCA 01–110, § 309, approved July 6, 2001.]

Library References

Indians O604.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

SUBCHAPTER 5.

TRIAL

Section

1–501. Trial by jury or by Court.

1–502. Order of trial.

1–503. Judge conflict or disability.

1–504. Evidence.

1–505. Expert witnesses.

1–506. Interpreters.

1–507. Motion for judgment of acquittal.

1–508. Instructions.

1–509. Verdict.

§ 1–501. Trial by jury or by Court

All trials of offenses which are punishable by incarceration shall be by jury

unless the defendant and the Muscogee (Creek) Nation waive trial by jury, in

which case the proceeding shall be tried by the District Court without a jury.

Jurors shall be selected and jury trials shall be conducted in accordance with

the provisions governing juries contained in the Judicial Procedures Code of

the Muscogee (Creek) Nation.

[NCA 01–110, § 401, approved July 6, 2001.]

Cross References

Jury trials, judicial procedure, see Title 27, § 2–110 et seq.

Library References

Indians O608.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

104

Title 14, § 1–502

CRIMINAL PROCEDURE

§ 1–502. Order of trial

The trial of all criminal offenses shall be conducted in the following manner:

A. Calling case. The Court shall call the case name and number and ask the

parties if they are ready to proceed. If the parties are not ready, the Court may

continue the case or direct the case to proceed in its discretion.

B. Jury selection. If the case is to a jury, the Court should randomly select a

potential jury panel in the manner set forth in the Judicial Code of the

Muscogee (Creek) Nation. The jury panel shall be seated and sworn in following

questioning by the parties and by the Court and following any removals of

prospective jurors for cause or due to peremptory challenge, pursuant to

procedures set forth in said Code.

C. Court’s explanation regarding reading of complaint. After the jury is

sworn, the Court shall request the prosecutor to read the criminal complaint

and to make his or her opening statement. Prior to reading the complaint, the

Court shall explain to the jury that the complaint is not evidence, but is being

read for the sole purpose of informing the defendant and the jury of the offense

charged against the defendant. The Court shall also inform the jury that the

statements of counsel are not evidence but are presented so that the jury will

have an opportunity to hear what counsel for each party expects the evidence to

show.

D. Reading of complaint and opening statement. The prosecutor shall then

read the complaint, state ‘‘to these charges/this charge the defendant has plead

not guilty’’ and briefly present the facts which he or she intends to prove to

show the offense. No argument of the facts or law shall be allowed.

E. Opening statement by defense. The defense may then make an opening

statement or may reserve their opening statement until the beginning of the

presentation of the defense evidence.

F. Presentation of evidence. The prosecutor shall then present his or her

evidence followed by the defendant’s presentation of his or her defense evidence. After the defendant has presented his or her evidence, the prosecutor

may present evidence in rebuttal.

G. Closing arguments. The prosecutor shall then present his or her closing

argument and, the defendant his or her closing argument. The prosecution shall

be entitled to reserve a portion of the time allocated for the prosecutor’s closing

arguments for presentation of final closing argument following closing arguments by the defense.

H. Instructions to jury or decision by court. If trial is to a jury, the Judge

should give them his or her instructions and they shall retire to decide their

verdict. If trial is to the Judge, he or she shall then make his or her decision or

announce the time at which he or she will present his or her decision. When

making his or her decision, the Judge shall make a general finding of guilt or

innocence and shall, upon request of any party, make specific findings which

may be embodied in a written decision.

[NCA 01–110, § 402, approved July 6, 2001.]

105

Title 14, § 1–502

CRIMES & PUNISHMENTS

Library References

Indians O608, 610, 615, 650.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–503. Judge conflict or disability

A. Disability during trial. If by reason of death, sickness or other disability,

the District Judge before whom a jury trial has commenced is unable to

proceed with the trial, any other special District Judge may, upon certifying

that he or she has familiarized himself with the record of the trial, proceed with

the trial.

B. Disability after trial. If by reason of death, sickness or other disability,

the District Judge before whom the defendant has been tried is unable to

perform the required duties of a District Judge after the verdict or finding of

guilt, any other District Judge may perform those duties unless such Judge feels

he or she cannot fairly perform those duties in which case a new trial may be

granted. A new trial shall not be granted if all that remains to be done is the

sentencing of a defendant.

[NCA 01–110, § 403, approved July 6, 2001.]

Library References

Judges O39.

Westlaw Topic No. 227.

C.J.S. Judges §§ 220, 224 to 227, 237 to 238.

§ 1–504. Evidence

The admissibility of evidence and the competence and privileges of witnesses

in criminal proceedings shall be governed by judicial procedures relating to

evidence established in Title 27 of the Code of Laws of the Nation.

[NCA 01–110, § 404, approved July 6, 2001.]

Library References

Indians O610, 612.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–505. Expert witnesses

Either party may call expert witnesses of their own selection and each bear

the cost of such.

[NCA 01–110, § 405, approved July 6, 2001.]

Library References

Indians O610.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–506. Interpreters

The Court may appoint an interpreter of its own selection and each party

may provide his or her own interpreter. An interpreter through whom testimo106

Title 14, § 1–509

CRIMINAL PROCEDURE

ny is received from a defendant or witness or communicated to a defendant or

other witness shall be put under oath to faithfully and accurately translate and

communicate as required by the Court. The trial Judge or Clerk may act as

interpreter only with the consent of all parties.

[NCA 01–110, § 405, approved July 6, 2001.]

§ 1–507. Motion for judgment of acquittal

A. Acquittal at close of evidence. The Court on motion from defendant or on

its own motion, shall order the entry of a judgment of acquittal of one or more

offenses charged in the complaint after the evidence of either side is closed if

the evidence is insufficient as a matter of law to sustain a conviction of such

offenses. A motion for acquittal by the defendant does not affect his or her right

to present evidence.

B. Reservation of decision on motion for acquittal. If a motion for judgment

of acquittal is made at the close of all the evidence, the Court may reserve

decision on the motion, submit the case to the jury and decide the motion any

time either before or after the jury returns its verdict or is discharged.

[NCA 01–110, § 406, approved July 6, 2001.]

§ 1–508. Instructions

At the close of evidence or at such earlier time during the trial as the Court

reasonably directs, any party may file written requests that the Court instruct

the jury on the law as set forth in the request. At the same time, copies of such

requests shall be furnished to adverse parties. The Court shall inform counsel of

its proposed action upon the requests prior to the arguments of counsel to the

jury, but the Court shall instruct the jury after the arguments are completed. No

party may assign as error any portion of the charge or omission therefrom

unless he objects thereto before the jury retires to consider its verdict, stating

distinctly the matter to which he or she objects and the grounds of the

objection. Opportunity shall be given out of the hearing and out of the presence

of the jury.

[NCA 01–110, § 407, approved July 6, 2001.]

Library References

Indians O615.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–509. Verdict

A. Return of verdict. The verdict of a jury shall be unanimous. It shall be

returned by the jury to the judge in open court. If the jury is unable to agree,

the jury may be discharged and the defendant tried again before a new jury.

B. Separate verdicts for separate defendants or charges. If there are multiple defendants or charges, the jury may at any time return its verdict as to any

defendants or charges to which it has agreed and continue to deliberate on the

others.

C. Lesser offense. If the evidence is found to support a verdict of a lesser

included offense or attempt to commit the crime charged, without having been

107

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CRIMES & PUNISHMENTS

formally charged with the lesser included offense or attempt, the defendant may

be found guilty of such charge.

D. Jury poll. Upon return of the verdict, the jury may be polled at the

request of either party. If upon the poll there is not unanimous concurrence,

the jury may be directed to retire for further deliberation or may be discharged.

[NCA 01–110, § 408, approved July 6, 2001.]

Library References

Indians O616.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

SUBCHAPTER 6.

JUDGMENT AND SENTENCE

Section

1–601. Sentence and judgment.

1–602. Presentence investigation.

1–603. Criminal executions.

1–604. Sentence.

1–605. Merger of sentence.

1–606. Victim’s restitution.

1–607. Court costs.

1–608. Reimbursement of costs of imprisonment.

1–609. Deferred judgment procedure.

1–610. Suspended sentence procedure.

1–611. Revocation of suspended sentence; acceleration of deferred sentence; hearing;

review.

1–612. Withdrawal of plea on a deferred imposition of sentence.

1–613. Entry of judgment.

1–614. Jail work release program.

1–615. New trial.

1–616. Arrest of judgment.

1–617. Correction or reduction of sentence.

1–618. Clerical mistakes.

§ 1–601. Sentence and judgment

A. 1. If a verdict of acquittal is rendered the defendant must immediately

be discharged.

2. After a plea or verdict of guilty, or after judgment against the defendant

the Court must designate a time for sentencing, which must be within a

reasonable time after the verdict or judgment is rendered. The sentence must be

entered in the minutes of the Court as soon as it is imposed.

3. If the defendant pleads guilty, or is convicted either by the Court or by a

jury, the Court must impose the sentence imposed by the jury or a sentence in

conformity with the law; or sentence the defendant to pay a fine or both.

4. The determination and imposition of sentence shall be the exclusive duty

of the Court.

B. When a person has been found guilty of a criminal offense under Title

14, Chapter 2, the Court shall sentence the defendant in accordance with the

following subsections of this section, depending upon whether the offense is

108

Title 14, § 1–601

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denominated a misdemeanor or a felony in the provisions of the offense of

which the defendant was convicted, unless the provisions of such offense

expressly specify a different punishment:

1. Misdemeanors: fines and imprisonment. Every person who is convicted

of any criminal offense set forth in this Title 14, Chapter 2, which is denominated a misdemeanor shall be punished by a fine of not less than fifty dollars

($50.00) and not more than two thousand five hundred dollars ($2,500.00); or

by imprisonment of not less than one (1) day and not more than one (1) year;

or by both such a fine and such term of imprisonment. In addition to any

punishment provided for in this subsection A, the Court may also order

community service and/or counseling as authorized by subsections C and D of

this section.

2. Felonies: fines and imprisonment. Every Indian person who is convicted of any criminal offense set forth in this Title 14, Chapter 2, which is

denominated a felony shall be punished by a fine of not less than one thousand

dollars ($1,000.00) and not more than five thousand dollars ($5,000.00); or by

imprisonment of not less than thirty (30) days and not more than one (1) year;

or by both such a fine and such term of imprisonment. In addition to any

punishment provided for in this paragraph 2, the Court may also order

community service and/or counseling as authorized by paragraphs 3 and 4 of

this section.

3. Community service. In addition to or, at the discretion of the sentencing

Judge, in lieu of any fine or any portion thereof or any term of imprisonment or

any portion thereof which may be imposed under paragraph 1 and 2 of this

subsection, the Court may order that the convicted defendant perform community service as determined by the Court in the sound exercise of its discretion.

4. Counseling. In addition to any fines, imprisonment, community service,

restitution and/or other punishment imposed by the Court for violations of this

Title 14, Chapter 2, the Court may also order the defendant to receive counseling through Muscogee Nation Behavioral Health or any other counseling

service.

5. Multiple convictions; concurrent and consecutive sentencing. Each violation of any provision of Title 14, Chapter 2, shall be a separate offense and

shall be punishable as such. Provided, however, when a defendant has been

convicted of multiple offenses under Title 14, Chapter 2, the Judge at the time

of sentencing shall have the discretion to order that any term of imprisonment

for any offense be served concurrently with one or more other terms of

imprisonment or consecutively to one or more other terms of imprisonment.

[NCA 92–14, § 9–701, as amended by NCA 99–04, § 107, effective June 1, 1999; NCA

01–110, § 501, approved July 6, 2001; NCA 07–179, § 5, eff. July 10, 2007.]

Historical and Statutory Notes

Derivation:

NCA 82–30, §§ 123, 135.

Cross References

Property subject to forfeiture, see Title 22, § 2–102.

109

Title 14, § 1–601

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Library References

Indians O616, 619, 620.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–602. Presentence investigation

A. Requirement. No defendant who has plead guilty or nolo contendere to a

crime or has been convicted of a crime which may result in commitment for

three (3) months or more in jail shall be sentenced or otherwise disposed of

before a written report of investigation by a probation officer is presented to

and considered by the Court, unless the Court deems such report unnecessary.

The Court may, in its discretion, order a presentence investigation for a

defendant sentenced to a lesser period than three (3) months in jail.

B. Content of investigation. Whenever a investigation is required, the probation officer shall promptly inquire into the characteristics, circumstances,

needs and potentialities of the defendant; his criminal record and social history;

and circumstance of the offense; the time the defendant has been in detention

and the harm to the victim, his immediate family, and the community. All local

and state mental and correctional institutions, courts, and police agencies shall

furnish the probation officers on request the defendant’s criminal record and

other relevant information. The investigation shall include a physical and

mental examination of the defendant when it is desirable in the opinion of the

court. The presentence investigation shall be filed in the case file and shall

constitute a public record.

[NCA 01–110, § 502, approved July 6, 2001.]

Historical and Statutory Notes

Derivation:

NCA 82–30, § 131.

Library References

Indians O621.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–603. Criminal executions

A. When a judgment for confinement is entered, a certified copy thereof

must be delivered to the Chief of the Lighthorse Administration which shall be

sufficient warrant for its execution.

B. If judgment is rendered imposing a fine or requirement for the performance of a service only, and the defendant is not detained for any legal cause, he

or she must be discharged as soon as judgment is rendered.

C. A judgment that the defendant pay a fine may also direct that defendant

be sentenced to incarceration or community service until the fine is paid, in the

proportion of one (1) day labor at the current minimum wage for every one

dollar ($1.00) of the fine.

[NCA 01–110, § 503, approved July 6, 2001.]

110

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JUDGMENT AND SENTENCE

Historical and Statutory Notes

Derivation:

NCA 82–30, §§ 126, 134.

Library References

Indians O619, 623, 624, 627.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–604. Sentence

A. The Court shall make brief statement of the basic reasons for the

sentence the court imposes. If the sentence is a commitment, the District Court

Clerk shall forward a copy to the jail where the defendant is or will be

incarcerated.

The sentence may:

Release the defendant on probation;

2. Defer the imposition of sentence for a period not to exceed twelve (12)

months;

3. Suspend the execution of the sentence up to the maximum sentence

allowed for a particular offense. However, if any restrictions or conditions are

violated, any elapsed time shall not be a credit against the sentence, unless the

Court shall otherwise order;

Impose a fine as provided by law for the offense;

Commit the defendant to a jail; or

6. Impose any combination of the above, and the Court may also impose

any restrictions or conditions on the above, sentence which it deems necessary.

C. The District Court Judge may upon proper application by the Attorney

General, revoke any suspended sentence or accelerate any deferred sentence

prior to its expiration.

D. Prior to the revocation or the acceleration of an order suspending or

deferring the imposition of sentence, the defendant shall be given a hearing.

[NCA 01–110, § 504, approved July 6, 2001.]

Historical and Statutory Notes

Derivation:

NCA 82–30, §§ 132, 134.

Cross References

Domestic or family violence, sentence, see Title 6, § 3–3011 et seq.

Library References

Indians O620.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–605. Merger of sentence

Unless the Judge otherwise orders:

111

Title 14, § 1–605

CRIMES & PUNISHMENTS

A. When a person serving a term of commitment imposed by a Court in the

Tribe is committed for another offense, the shorter term or consecutively

shorter remaining term shall be added in the other term; and

B. When a person under suspended or on probation or parole for an offense

committed against the Tribe is sentenced for another offense, the period still to

be served on suspended sentence, probation or parole shall be added in any

new sentence of commitment or probation.

[NCA 82–30, § 136, approved Sept. 13, 1982.]

Library References

Indians O620.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–606. Victim’s restitution

In addition to any fines, terms of imprisonment, community service and/or

other punishment imposed by the Court for violations of Title 14, Chapter 2, the

Court may also order that the defendant pay monetary restitution to any

persons who were victims of offenses committed by the convicted defendant.

Such restitution shall be determined by the Court in the use of its sound

discretion after a hearing, conducted prior to sentencing, at which the victims

may present evidence of loss, damage or expense. Any restitution ordered shall

be in an amount sufficient to compensate the victim for the theft, damage or

other loss of the victim’s property or the cost of medical or other professional

services incurred by the victim or victims as a consequence of the convicted

defendant’s criminal actions. All victims’ restitution monies shall be paid to

the Court Clerk, who shall then pay the same over to the victim or victims in

accordance with the Court’s orders. Any award of restitution under this

section shall constitute compensation to the victim for the actual damages,

losses or other costs suffered or incurred by said victim as a direct result of the

defendant’s criminal acts, as opposed to a penalty or fine imposed upon the

defendant as punishment for committing the crime.

[NCA 92–14, § 9–702, as amended by NCA 99–04, § 107, effective June 1, 1999.]

Library References

Indians O626.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–607. Court costs

In addition to any punishment imposed under subsection B of Title 14,

§ 1–601 or any restitution or costs awarded under Title 14, § 1–606 or Title 14,

§ 1–608, the Court in its discretion may order the defendant to pay Court costs

in the amount of sixty dollars ($60.00) for each offense of which the defendant

was convicted. The Court may also charge a service of process fee of thirty

dollars ($30.00) as reimbursement to the Lighthorse Police for every warrant

served.

[NCA 92–14, § 9–703, as amended by NCA 99–04, § 107, effective June 1, 1999.]

112

JUDGMENT AND SENTENCE

Title 14, § 1–609

Library References

Indians O662.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–608. Reimbursement of costs of imprisonment

A. In addition to any fine ordered under subsection B of Title 14, § 1–601

and/or restitution ordered under Title 14, § 1–606, the Court in its discretion

may order any person convicted of a crime and sentenced to a term of

imprisonment pursuant to the provisions of this chapter to reimburse the

Lighthorse Police pursuant to the provisions of this chapter to reimburse the

Lighthorse for food and maintenance for each day of imprisonment of said

convicted person. The costs assessed to the defendant may not exceed the

actual costs paid by the Nation for the costs billed for imprisonment of the

defendant. All funds paid pursuant to this section shall be paid to the Court

Clerk, who shall in turn reimburse the Lighthorse Police. Any award in this

section shall constitute reimbursement to the Lighthorse Police Department for

the actual costs incurred by the Lighthorse Police for imprisonment of the

defendant, as opposed to a penalty or fine imposed upon the defendant as

punishment for committing the crime.

B. All incarceration costs, including medical expenses associated with incarceration, shall be assessed in the prisoner’s District Court case. All incarceration costs that are collected by the District Court Clerk, shall be considered

program income payable to the Lighthorse Police. The Lighthorse Police shall

include in their budget all revenues attributable to incarceration costs.

[NCA 92–14, § 9–704, as amended by NCA 99–04, § 107, effective June 1, 1999; NCA

01–39, § 6, as amended by NCA 02–152, § 2, approved Oct. 30, 2002; NCA 07–179, § 6,

eff. July 10, 2007.]

§ 1–609. Deferred judgment procedure

A. Upon a verdict or plea of guilty or upon a plea of nolo contendere, the

Court may, prior to and without entering a judgment of guilt and with the

consent of the defendant, defer the finding of guilt and place the defendant on

probation under the supervision of the Court of the Muscogee (Creek) Nation

upon the conditions of probation prescribed by the Court in the exercise of its

sound discretion. As part of the terms of probation, the Court may also

consider ordering the defendant to pay a sum of money into the court fund not

to exceed the amount of any fine authorized by this title for the crime charged,

to pay restitution, perform community service and/or attend counseling.

B. The period of probation under this procedure shall not exceed nine (9)

months for any single offense. Where multiple offenses are charged and the

judgment on one or more of said offenses is deferred, the Judge at the time of

sentencing shall have the discretion to order the probationary period for each

offense to be served concurrently with one or more other terms of probation or

consecutively to one or more other terms of probation. Upon completion of all

periods of probation the defendant shall be discharged by the Court without an

entry of judgment of guilt, and the verdict or plea of guilty or plea of nolo

113

Title 14, § 1–609

CRIMES & PUNISHMENTS

contendere shall be expunged by the Court Clerk from the record and said

charge shall be dismissed with prejudice to any further action.

C. Upon proof of any violation of the conditions of probation at a hearing

conducted in accordance with Title 14, § 1–611, the Court may enter a

judgment of guilt and proceed as provided in said section. The deferred

judgment procedure described in this section shall only be available to defendants not having been previously convicted of a crime denominated a felony

under the laws of the Muscogee (Creek) Nation or under the laws of the United

States of America or any state thereof.

[NCA 92–14, § 9–705, as amended by NCA 99–04, § 107, effective June 1, 1999.]

Library References

Indians O625.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–610. Suspended sentence procedure

A. Upon a verdict or plea of guilty or plea of nolo contendere and a

judgment of guilt the Court may suspend in whole or in part the imposition of

any term or terms of imprisonment and place the defendant on probation under

the supervision of the Court of the Muscogee (Creek) Nation upon the conditions of probation prescribed by the Court in the exercise of its sound discretion.

B. Upon proof of any violation of the conditions of probation at a hearing

conducted in accordance with Title 14, § 1–611, the Court shall revoke the

suspended sentence. The Court in its discretion may then order that the

defendant serve the full sentence or that he serve a portion of said sentence

with the remainder to be suspended, subject to the terms and conditions of

probation.

[NCA 92–14, § 9–706, as amended by NCA 99–04, § 107, effective June 1, 1999.]

§ 1–611. Revocation of suspended sentence; acceleration of deferred sentence; hearing; review

A. Any sentence the imposition of which has been suspended or deferred by

the Court may be revoked or accelerated for any one of the following reasons:

1. The defendant has at any time during the period of his probation

committed any act or engaged in any conduct in violation of any of the express

terms and conditions of the defendant’s probation as set forth in the judgment

and sentence or the Court’s order deferring judgment and sentence; or

2. The defendant has at any time during the period of his probation failed to

do or perform any act or service, including without limitation the payment of

any fine or restitution, required to be done or performed under the express

terms and conditions of the defendant’s probation as set forth in the judgment

and sentence or the Court’s order deferring judgment and sentence; or

3. The defendant has at any time during the period of his probation

committed any act or engaged in any conduct in violation of any of the

114

JUDGMENT AND SENTENCE

Title 14, § 1–612

provisions of this chapter or in violation of any other Tribal, state or federal

criminal law.

B. Proceedings to revoke any suspended sentence or accelerate any deferred

sentence shall be initiated by the Attorney General by way of written application requesting same, which application shall be filed in the case wherein the

sentence was ordered prior to the expiration of the suspended or deferred

sentence. The application shall state the reasons why the suspended sentence

should be revoked or why the deferred sentence should be accelerated and shall

request that a warrant issue for the arrest of the defendant. Upon being

brought before the Court on such warrant, the defendant shall either admit or

deny the allegations in the Attorney General’s application or he may stand

silent, in which case the allegations shall be deemed denied. If the defendant

denies or is deemed to have denied the allegations of the Attorney General’s

application to revoke or accelerate, the Court shall order that the application be

set for hearing within twenty (20) days. The Attorney General and the defendant shall have the right to present evidence and testimony at the hearing but

the burden of proof shall be on the Attorney General to prove the allegations

justifying the revocation or acceleration of the sentence by a preponderance of

the evidence. If the defendant admits to the allegations of the application or if,

after the hearing on the application, it appears to the satisfaction of the Court

that grounds for a revocation or acceleration exist, the Court shall revoke the

suspended sentence or accelerate the deferred sentence.

C. Where one of the grounds for the application to revoke the suspended

sentence or to accelerate the deferred sentence is the defendant’s failure to

make timely payment of fines and costs as ordered by the Court, or if at any

time during the defendant’s period of probation the defendant petitions the

Court for a modification of the time for payment of fines or costs, the Court

may hear evidence on the cause of such failure to make timely payment, and if

it appears to the satisfaction of the Court from such evidence that the terms of

the order for payment of fines and costs create a manifest hardship on the

defendant or his or her immediate family, the Court may modify the terms or

method of payment of same. The burden of proving a change of condition

justifying a modification in terms or method of payment shall be on the

defendant and the standard shall be by clear and convincing evidence.

D. The defendant whose suspended or deferred sentence is being considered

for revocation or acceleration at said hearing shall have the right to be

represented by counsel, to present evidence in his own behalf and to be

confronted by the witnesses against him. Any order of the Court revoking such

suspended sentence, in whole or in part, or accelerating a deferred sentence in

whole or part, shall be subject to review on appeal, as in other appeals of

criminal cases.

[NCA 92–14, § 9–707, as amended by NCA 99–04, § 107, effective June 1, 1999.]

§ 1–612. Withdrawal of plea on a deferred imposition of sentence

Whenever the Court has deferred the imposition of sentence, and after

expiration of the time period during which imposition of sentence has been

deferred, the defendant may file a motion for the Court to allow the defendant

115

Title 14, § 1–612

CRIMES & PUNISHMENTS

to withdraw his or her plea of guilty and order that the charge or charges

against him be dismissed and the record expunged.

[NCA 01–110, § 505, approved July 6, 2001.]

Historical and Statutory Notes

Derivation:

NCA 82–30, § 133.

Library References

Indians O605, 620.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–613. Entry of judgment

When a judgment upon a conviction is rendered the Clerk must enter the

same in the minutes, stating briefly the offense for which the conviction was

had, and the fact of prior convictions (if any) and must, within five (5) days,

annex together and file the following papers:

1. The complaint or information and a copy of the minutes of the arraignment, pleas and motions.

A copy of the minutes of the trial.

The instructions given or refused and the endorsements thereon.

A copy of the judgment.

[NCA 01–110, § 506, approved July 6, 2001.]

Library References

Indians O619.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–614. Jail work release program

A. A Court, after having sentenced a person to confinement in a jail may, in

its discretion, upon the request of the Attorney General or Chief of Lighthorse

Police and with the consent of the convicted person, order that any part of the

imprisonment so imposed be served in confinement, with parole during the

hours or periods the convicted person is actually employed.

B. Upon the issuance of such an order under this act, the Attorney General

or Chief of Lighthorse Police shall arrange for the convicted person to continue

his or her regular employment without interruption insofar as is reasonably

possible: However, that said prisoner shall be confined in the jail during the

hours when he or she is not employed and, to the extent directed by the Court

pay the support of his or her dependents, if any, and balance shall be retained

until his or her discharge.

C. The Court may, in its discretion, upon request, reduce the sentence of the

prisoner up to one-fourth (1/4) of the full term, if in the opinion of the Court,

the prisoner’s conduct, diligence and general attitude merit such diminution.

D. In cases where the convicted person violates the conditions of said

sentence, he or she shall be returned to Court; the Court may then require that

116

Title 14, § 1–617

JUDGMENT AND SENTENCE

the balance of his or her sentence be spent in full confinement and further; the

Court may cancel any diminution of sentence granted under this act.

[NCA 01–110, § 507, approved July 6, 2001.]

Historical and Statutory Notes

Derivation:

NCA 82–30, § 138.

Library References

Indians O624, 627.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–615. New trial

The Court, on motion of a defendant, may grant a new trial to him if required

in the interest of justice. If trial was by the Court without a jury, the Court, on

motion of a defendant for a new trial, may vacate the judgment, if entered, take

additional testimony, and direct the entry of a new judgment. A motion for a

new trial based on the ground of newly discovered evidence may be made only

within one (1) month after final judgment, but if an appeal is pending the Court

may grant the motion only on remand of the case. A motion for a new trial

based on any other grounds shall be made within ten (10) days after verdict or

finding of guilty or within such further time as the Court may fix during the

seven-day period.

[NCA 01–110, § 508, approved July 6, 2001.]

Library References

Indians O618.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–616. Arrest of judgment

The Court, on motion of a defendant, shall dismiss the action if the complaint

does not charge an offense or if the Court was without jurisdiction of the

offense charged. The motion in arrest of judgment shall be made within ten (10)

days after verdict or finding of guilty or plea of guilty, or within such further

time as the Court may fix during the seven-day period.

[NCA 01–110, § 509, approved July 6, 2001.]

Historical and Statutory Notes

Derivation:

NCA 82–30, § 129.

§ 1–617. Correction or reduction of sentence

The Court may correct an illegal sentence at any time and may correct a

sentence imposed in an illegal manner within thirty (30) days after the sentence

is imposed, or within thirty (30) days after receipt by the Court of a mandate

issued upon affirmance of the judgment or dismissal of the appeal. The Court

may also reduce a sentence upon revocation of probation.

[NCA 01–110, § 510, approved July 6, 2001.]

117

Title 14, § 1–617

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Library References

Indians O620, 637.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–618. Clerical mistakes

Clerical mistakes in judgments, orders, or other parts of the record and

errors in the record arising from oversight or omission may be corrected by the

Court at any time and after such notice, if any, as the Court orders.

[NCA 01–110, § 511, approved July 6, 2001.]

SUBCHAPTER 7.

APPEAL

Section

1–701. Right of appeal; how taken.

1–702. Stay of judgment; relief pending review.

1–703. Executive order for relief from judgment.

Cross References

Appellate procedure, see Title 27, § 3–101 et seq.

Tribal Court proceedings, appeal, see Title 27, § 2–120.

§ 1–701. Right of appeal; how taken

A. Defendant’s right to appeal. The defendant has the right to appeal from

the following:

A final judgment of conviction; and the sentence imposed thereon.

2. From an order made, after judgment and sentences, affecting his or her

substantial rights.

B. Nation’s right to appeal. The Nation has the right to appeal from the

following:

1. A judgment of dismissal, upon a motion to dismiss based on any procedural irregularity occurring before trial, or an order excluding evidence in

favor of the defendant prior to trial;

2. An order arresting judgment or acquitting the defendant contrary to the

verdict of the jury or before such verdict can be rendered;

An order of the Court directing the jury to find for the defendant;

4. An order made after judgment and sentence affecting the substantial

rights of the Nation.

C. Notice of appeal. A notice of intent to appeal must be filed within ten (10)

days of the entry of the final judgment and sentence or other appealable order

and such notice must be served on all parties except the party filing the appeal.

D. Appellate Procedure Code. Such appeals shall be had in accordance with

the Muscogee (Creek) Nation Supreme Court Appellate Procedure Rules.1

[NCA 01–110, § 601, approved July 6, 2001.]

1 Title 27, Appendix 2, of the Muscogee (Creek) Nation Code.

118

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JUDGMENT AND SENTENCE

Library References

Indians O630.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–702. Stay of judgment; relief pending review

A. Stay of sentence of imprisonment. A sentence of imprisonment may be

stayed if an appeal is taken and the defendant may be given the opportunity to

make bail. Any defendant not making bail or otherwise obtaining release

pending appeal shall have all time spent in incarceration counted towards his

or her sentence in the matter under appeal.

B. Stay of sentence to pay fine. A sentence to pay a fine or a fine and costs,

may be stayed pending appeal upon motion of the defendant, but the Court may

require the defendant to pay such money subject to return if the appeal should

favor the defendant and negate the requirement for paying such.

C. Stay of probation order. An order placing the defendant on probation

may be stayed on motion of the defendant if an appeal is taken.

[NCA 01–110, § 602, approved July 6, 2001.]

Library References

Indians O628.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–703. Executive order for relief from judgment

A. Authority to pardon. The Principal Chief of the Nation shall recommend

to the National Council to pardon, or commute any judgment and sentence

imposed for any criminal offense upon a determination that a pardon or

commutation of sentence promotes the ends of justice.

B. Approval of pardon. Such pardon or commutation will be entered by

filing a copy of the proposed action with the Court Clerk for a period of sixty

(60) days after a copy of the proposed executive action has been submitted for

approval to each Justice of the Supreme Court and to each member of the

National Council. If, within sixty (60) days after the filing thereof, with proof of

service, any such Justice or a majority of the National Council voting at a

National Council meeting shall disapprove the proposed pardon or commutation with written reasons, in a writing delivered to the Principal Chief and filed

with the Court Clerk, such proposed pardon or commutation shall not be

approved. Otherwise, upon expiration of the sixty (60) day period, the pardon

or commutation may be issued by the Principal Chief of the Nation.

[NCA 01–110, § 603, approved July 6, 2001.]

Library References

Indians O637.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

119

Title 14, § 1–801

CRIMES & PUNISHMENTS

SUBCHAPTER 8.

BAIL AND BONDS

Section

1–801. Release prior to arraignment.

1–802. Release prior to trial.

1–803. Appeal from conditions of release.

1–804. Release of flight risk or person who is danger to others.

1–805. Penalties for failure to appear.

1–806. Authority to act as bail bondsman.

1–807. Persons or classes prohibited as bondsmen.

§ 1–801. Release prior to arraignment

A. Posting of jail bond with police. Defendants may be released following

arrest after posting jail bond with the police. The purpose of the bond is to

guarantee the appearance of any person accused of public offense at his or her

hearing and trial with a minimum of inconvenience to him, but with maximum

assurance thereof to the public. The bond shall include notice to the defendant

that he or she must appear for arraignment on the next Court day, and no other

notice of the Court date shall be given to the defendant or bondsmen. The

privilege of making bond prior to formal charging and arraignment incorporates the duty to voluntarily and promptly appear for arraignment, where any

substitution offered by a bondsman for the ‘‘prior approved’’ jail bond form

may be considered by the Judge. The jail bond shall not be used to frustrate the

orderly disposition of the case.

B. Schedule. A schedule of appropriate appearance bond shall be provided

by the District Court on a jail bond schedule, under which the police are

authorized to receive non-cash bonds and release the accused. Licensed bondsmen can post surety bonds with the Lighthorse or Court. Friends or family

members may post cash bound with the Court, however, only money orders or

cashiers checks, endorsed to the Muscogee (Creek) Nation District Court Clerk,

may be posted, with the Lighthorse Police.

[NCA 01–110, § 701, approved July 6, 2001.]

Library References

Indians O604.

Westlaw Topic No. 209.

C.J.S. Indians §§ 151 to 179.

§ 1–802. Release prior to trial

A. General recognizance or appearance bond. Any person charged with an

offense shall, at his or her appearance before a Judge, be ordered released

pending trial on his or her personal recognizance or upon execution of an

unsecured appearance bond in an amount specified by the Judge, subject to the

condition that such person shall not attempt to influence, injure, tamper with

or retaliate against an officer, juror, witness, informant, or victim or violate any

other law, unless the judicial officer determines in the exercise of his or her

discretion, that such a release will not reasonably assure the appearance of the

person as required.

B. Conditions. When such determination is made, the Judge shall, either in

lieu of or in addition to release on personal recognizance or execution of an

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JUDGMENT AND SENTENCE

Title 14, § 1–802

unsecured appearance bond, impose one or any combination of the following

conditions of release which will reasonably assure the appearance of the person

for trial:

1. Place the person in the custody of a designated person or organization

agreeing to supervise him;

2. Place restrictions on the travel, association, or place of abode of the

person during the period of release;

3. Require the execution of an appearance bond in an amount up to five

thousand dollars ($5,000) for each count, and the deposit in the registry of the

Court, in cash or other security as directed, of a sum not to exceed ten percent

(10%) of the amount of the bond, such deposit to be returned upon the

performance of the conditions of release;

4. Require the execution of a bail bond with sufficient solvent sureties, or

the deposit of cash in lieu thereof; or

5. Impose any other condition deemed reasonably necessary to assure

appearance as required, including a condition requiring that the person return

to custody at a specified hour.

C. Considerations. In determining which conditions of release will reasonably assure appearance, the judicial officer shall, on the basis of available

information, take into account the nature and circumstances of the offense

charged, the weight of the evidence against the accused, the accused’s family

ties, employment, financial resources, character and mental condition, the

length of his or her residence in the community, his or her record of convictions, and his or her record of appearance at Court proceedings or of flight to

avoid prosecution or failure to appear at Court proceedings.

D. Order of release. A Judge authorizing the release of a person under this

section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform such person of the penalties applicable to

violations of the conditions of his or her release and shall advise him that a

warrant for his or her arrest will be issued immediately upon any such

violation.

E. Review of conditions of release. A person for whom conditions of release

are imposed and who after seventy-two (72) hours from the time of the release

hearing continues to be detained as a result of his or her inability to meet the

conditions of release, shall, upon application, be entitled to have the conditions

reviewed by the judicial officer who imposed them. Unless the conditions of

release are amended and the person is thereupon released, the judicial officer

shall set forth in writing the reasons for requiring the conditions imposed. A

person who is ordered released on a condition which requires that he or she

return to custody after specified hours shall, upon application, be entitled to a

review by the judicial officer who imposed the condition. Unless the requirement is removed and the person is thereupon released on another condition,

the judicial officer shall set forth in writing the reasons for continuing the

requirement. In the event that the judicial officer who imposed conditions of

release is not available, any other judicial officer of the Court may review such

conditions.

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CRIMES & PUNISHMENTS

F. Amendment of release order. A judicial officer ordering the release of a

person on any condition specified in this section may at any time amend his or

her order to impose additional or different conditions of release; provided that,

if the imposition of such additional or different conditions results in the

detention of the person as a result of his or her inability to meet such conditions

or in the release of the person on a condition requiring him to return to custody

after specified hours, the provisions of subsection E shall apply.

G. Information in release order. Information stated in, or offered in connection with, any order entered pursuant to this section need not conform to the

rules pertaining to the admissibility of evidence in a court of law.

H. Security. Nothing contained in this section shall be construed to prevent

the disposition of any case or class of cases by forfeiture of collateral security

where such disposition is authorized by the Court, nor to prevent the Court by

rule from authorizing and establishing a policeman’s bail schedule for certain

offenses or classes of offenses through which a person arrested may post bail

with the police for transmittal to the Court Clerk and obtain his or her release

prior to his or her appearance before a judicial officer.

[NCA 01–110, § 702, approved July 6, 2001.]

Historical and Statutory Notes

Derivation:

NCA 82–30, § 512.

Cross References

Domestic or family violence, conditions for pretrial release, see Title 6, § 3–308.

Library References

Bail O41.

Indians O604.

Westlaw Topic Nos. 49, 209.

C.J.S. Bail; Release and Detention Pending

§§ 7 to 8, 11 to 60.

C.J.S. Indians §§ 151 to 179.

§ 1–803. Appeal from conditions of release

A. Motion to amend release order. A person who is detained, or whose

release on a condition requiring him to return to custody after specified hours

is continued, after review of his or her application pursuant to subsection E or

F of Title 14, § 1–802 by a District Judge, may move the Court to amend the

order and have such motion determined by a Judge of the Court. Said motion

will be determined promptly.

B. Appeal. In any case in which a person is detained after (1) a District

Judge denies a motion, under subsection A above, to amend an order imposing

conditions of release, or (2) conditions of release have been imposed or

amended by a District Judge, an appeal may be taken to the Supreme Court.

Any order so appealed shall be affirmed if it is supported by the proceedings

below. If an order is not so supported, the Supreme Court may remand the case

for further hearing, or may, with or without additional evidence, order the

person released pursuant to Title 14, § 1–802 upon such conditions as the

Supreme Court determines to be proper. This appeal shall be determined

promptly.

[NCA 01–110, § 703, approved July 6, 2001.]

122

Title 14, § 1–806

JUDGMENT AND SENTENCE

§ 1–804. Release of flight risk or person who is danger to others

A person who has been convicted of an offense and is either awaiting

sentence or has filed an appeal, shall be treated in accordance with Title 14,

§ 1–802 unless the Court has reason to believe that no one or more conditions

of release will reasonably assure that the person will not flee or pose a danger

to any other person or to the community. If such a risk of flight or danger is

believed to exist, or if it appears that an appeal is frivolous or taken for delay,

the person may be ordered detained. The provisions of Title 14, § 1–803 shall

not apply to persons described in this section.

[NCA 01–110, § 704, approved July 6, 2001.]

Library References

Bail O44.

Indians O604.

Westlaw Topic Nos. 49, 209.

C.J.S. Bail; Release and Detention Pending

§§ 7 to 8, 39 to 45, 47 to 54, 56 to 60.

C.J.S. Indians §§ 151 to 179.

§ 1–805. Penalties for failure to appear

Whoever, having been released pursuant to this subchapter willfully fails to

appear before the Court as required, shall incur a forfeiture of any security

which was given or pledged for his or her release, and in addition, shall be

subject to the following penalties:

A. Failure to appear after release following conviction. If the defendant fails

to appear after release following conviction of an offense, he or she shall be

fined not more than the maximum provided for the offense charged or imprisoned for not more than six (6) months or both; or

B. Failure of material witness to appear after release. If the defendant fails

to appear after he or she was released for appearance as a material witness, he

or she shall be fined not more than two hundred fifty dollars ($250.00) or

imprisoned for not more than three (3) months or both.

[NCA 01–110, § 704–A, approved July 6, 2001.]

Library References

Bail O75.3.

Indians O604.

Westlaw Topic Nos. 49, 209.

C.J.S. Bail; Release and Detention Pending

§§ 253 to 257.

C.J.S. Indians §§ 151 to 179.

§ 1–806. Authority to act as bail bondsman

Any person authorized to act as bail bondsmen or runners in the federal or

state courts shall be qualified to act as bondsmen and runners in the District

Court, and shall be liable to the same obligations as in their licensing jurisdiction and comply with all orders of the Supreme Court and District Court.

Bondsmen are on constructive notice of all hearings or trial settings. Those in

the bonding business are expected to give their clients the kind of service their

fee justifies. Bondsmen shall be mailed a copy of all trial dockets, as are

advocates, and are expected to have their clients present for hearing as

scheduled. If a defendant proves uncooperative, bondsmen are encouraged to

advise his or her attorney or advocate, and the prosecutor, and to use all lawful

123

Title 14, § 1–806

CRIMES & PUNISHMENTS

procedures to surrender him and terminate further responsibility on his or her

bail.

[NCA 01–110, § 705, approved July 6, 2001.]

Library References

Bail O60.

Westlaw Topic No. 49.

C.J.S. Bail; Release and Detention Pending

§§ 2 to 5, 160.

§ 1–807. Persons or classes prohibited as bondsmen

The following persons or classes shall not be bail bondsmen and shall not

directly or indirectly receive any benefits from the execution of any bail bond:

jailers, police officers, District Judges, Special Judges, Court Clerks and any

person having the power to arrest or having anything to do with the control of

Tribal prisoners.

[NCA 01–110, § 706, approved July 6, 2001.]

Library References

Bail O60.

Westlaw Topic No. 49.

SUBCHAPTER 9.

C.J.S. Bail; Release and Detention Pending

§§ 2 to 5, 160.

MISCELLANEOUS

Section

1–901. Procedures for unclaimed property in possession of Lighthouse Police.

§ 1–901. Procedures for unclaimed property in possession of Lighthouse

Police

A. Disposition. The Lighthorse Police is authorized to dispose of by public

sale, destruction, donation, or retain for departmental use, personal property

which has come into its possession, or deposit in a special fund, as hereafter

provided, all money or legal tender of the United States which has come into its

possession, whether said property or money be stolen, embezzled, lost, abandoned or the owner of said property or money otherwise being unknown or not

having claimed the same, and which the Lighthorse Police has held for at least

six (6) months, and such property or money, or any part thereof, being no

longer needed to be held as evidence or otherwise used in connection with any

litigation.

B. Destruction of property. Where personal property held under the circumstances provided in subsection A of this section is determined by Lighthorse Police to be unsuitable for disposition by public sale due to its condition

or assessed as having limited or no resale value, it may be destroyed or

discarded. Where disposition by destruction, is made of personal property, a

report describing the property by category and quantity, and indicating what

disposition was made for each item or lot, shall be submitted to the District

Court within ten (10) days following the disposition.

C. Application for public sale. Where disposition by public sale is appropriate, the Lighthorse Police shall file an application in the Muscogee (Creek)

Nation District Court requesting the authority of said Court to dispose of such

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Title 14, § 1–901

personal property, and shall attach to the application a list describing such

property, including all identifying numbers and marks, if any, the date said

property came into its possession and the name and address of the owner, if

known. The Court shall set said application for hearing not less than ten (10)

days nor more than twenty (20) days after filing.

D. Notice. Notice shall be given by the Lighthorse Police of said hearing to

each and every owner known and as set forth in said application by certified

mail directed to their last-known address at least ten (10) days prior to the date

of said hearing. Said notice shall contain a brief description of the property of

said owner and the place and date of the hearing. In addition notice of said

hearing shall be posted in three public places in the Muscogee (Creek) Nation

territorial jurisdiction, one being the courthouse.

E. Authorization for disposing of property. At the hearing, if no owner

appears and establishes ownership to said property, the Court shall enter an

order authorizing the Lighthorse Police to dispose of the property pursuant to

Title 32, § 3–101 et seq.

F. Disposition of money. When the Lighthorse Police has in its possession

money or legal tender under the circumstances provided in subsection A of this

section, prior to appropriating the same for deposit into a special fund, it shall

file an application in the District Court requesting the Court to enter an order

authorizing it to so appropriate said money for deposit in said special fund.

Said application shall describe the money or legal tender, together with serial

numbers, if any, the date the same came into possession of the Lighthorse

Police, and the name and address of the owner, if known. Upon filing, said

application, which may be joined with an application as described in subsection

C of this section, shall be set for hearing not less than ten (10) days nor more

than twenty (20) days from the filing thereof, and notice of said hearing shall be

given as provided in subsection D of this section. Such notice shall state that,

upon no one appearing to prove ownership to said money or legal tender, the

same will be ordered by the Court to be deposited in the special fund by the

Lighthorse Police. Said notice may be combined with a notice to sell personal

property as set forth in subsection D of this section. At the hearing, if no one

appears to claim and prove ownership to said money or legal tender, the Court

shall order the same to be deposited by the Lighthorse Police Agency in the

special fund, as provided in subsection H of this section.

G. Retention of property. Where the Lighthorse Police has in its possession

under the circumstances provided in subsection A of this section, personal

property deemed to have potential utility to the Lighthorse Police or another

Muscogee (Creek) Nation department, prior to appropriating the personal

property for use, the Lighthorse Police shall file an application in the District

Court requesting the Court to enter an order authorizing it to so appropriate or

transfer the property for use. The application shall describe the property,

together with serial numbers, if any, the date the property came into the

possession of the Lighthorse Police and the name and address of the owner, if

known. Upon filing, the application, which may be joined with an application

as described in subsection C of this section, shall be set for hearing not less

than ten (10) days nor more than twenty (20) days from the filing thereof.

Notice of the hearing shall be given as provided in subsection D of this section.

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CRIMES & PUNISHMENTS

The notice shall state that, upon no one appearing to prove ownership to the

personal property, the property will be ordered by the Court to be delivered for

use by the Lighthorse Police or transferred to another Muscogee (Creek) Nation

department for its use. The notice may be combined with a notice to sell

personal property as set forth in subsection D of this section. At the hearing, if

no one appears to claim and prove ownership to the personal property, the

Court shall order the property to be available for use by the Lighthorse Police

agency or delivered to another Muscogee (Creek) Nation department.

H. Special fund; use for certain authorized purpose. The money received

from the sale of personal property as above provided, after payment of the

Court costs and other expenses, if any, together with all money in possession of

the Lighthorse Police, which has been ordered by the Court to be deposited in

the special fund, shall be deposited in such fund to be expended upon the

approval of the Lighthorse Commission for the purchase of equipment, materials or supplies that may be used in crime prevention, education, training or

programming. Said fund or any portion of it may be expended in paying the

expenses of Lighthorse Police Officers to attend law enforcement or public

safety training courses.

I. Firearms. All firearms shall either be appropriated for use by the Lighthorse Police in accordance with subsection G of this section or shall be

destroyed. Prior to destruction of firearms the Lighthorse Police shall file an

application in the District Court requesting the Court to enter an order

authorizing it to destroy the firearms. The application shall describe the

property, together with serial numbers, if any, the date the property came into

the possession of the Lighthorse Police and the name and address of the owner,

if known. Upon filing, the application, which may be joined with an application

as described in subsection C of this section, shall be set for hearing not less

than ten (10) days nor more than twenty (20) days from the filing thereof.

Notice of the hearing shall be given as provided in subsection D of this section.

The notice shall state that, upon no one appearing to prove ownership to the

personal property, the property will be ordered by the Court to be destroyed.

The notice may be combined with a notice to sell personal property as set forth

in subsection D of this section. At the hearing, if no one appears to claim and

prove ownership to the personal property, the Court shall order the property

destroyed. No firearm shall be returned to an owner who is a convicted felon,

who is mentally ill or who is subject to a protective order prohibiting possession of a firearm. Provided, that Lighthorse Police may subsequently release the

firearm to another individual with proof of assignment or sale of the firearm by

the original owner, so long as that individual is not a convicted felon, mentally

ill or subject to a protective order prohibiting possession of a firearm.

[NCA 02–135, § 2, approved Aug. 28, 2002.]

Library References

Searches and Seizures O84.

Westlaw Topic No. 349.

C.J.S. Searches and Seizures §§ 276 to 289.

126

CHAPTER 2.

CRIMINAL OFFENSES

Subchapter

1. General; Purpose; Punishments

2. Crimes Arising From Other Crimes or Potential Crimes

3. Crimes Against Person

4. Arson, Burglary and Related Crimes

5. Controlled Dangerous Substances

6. Crimes Against Public Safety

7. Reserved

8. Crimes Related to Licensing, Tribal Officers and Public Records

9. Crimes Involving Family and Children

10. Defenses

SUBCHAPTER 1.

GENERAL; PURPOSE; PUNISHMENTS

Section

2–101. Title

2–102. Purpose.

2–103. Definition of crime.

2–104. Crimes; punishment.

2–105. Contempt, direct and indirect; definition.

2–106. Forfeiture of property.

2–107. Forfeiture of public office.

2–108. Criminal charges controlling.

2–109. Conduct constituting more than one crime.

2–110. Burden of proof.

2–111. Capacity to commit crime.

2–112. Civil actions.

2–113. Definitions; general.

§ 2–101. Title

This act shall be known and may be cited as the ‘‘Criminal Offenses Code of

the Muscogee (Creek) Nation’’.

[NCA 10–053, approved May 27, 2010.]

§ 2–102. Purpose

The purpose of this Code is to define the conduct constituting crimes and

prescribe the punishment for each. The manner of prosecuting and convicting

persons accused of crime is prescribed in the Code of Criminal Procedure,

MCNCA Title 14.

[NCA 10–053, approved May 27, 2010.]

§ 2–103. Definition of crime

A crime is a social harm which is defined and made punishable by legislative

enactment and codified in this Code. This Code does not affect any power

conferred by the Nation upon the Courts to find a person liable for contempt or

to employ and sanction authorized by the law for the enforcement of an order

of a civil judgment or decree.

[NCA 10–053, approved May 27, 2010.]

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CRIMES & PUNISHMENT

§ 2–104. Crimes; punishment

A. The sentencing policy of the Court in criminal cases is to strive toward

restitution and reconciliation of the offender, the victim and Muscogee (Creek)

Nation. While one goal of sentencing is to impress upon the offender the wrong

he has committed, the paramount goal is to restore the victim and the Nation to

the position that existed prior to the commitment of the offense, and to restore

the offender to harmony with the victim and the community by requiring him

to right his wrongdoing. These goals shall be considered in sentencing for

criminal offenses.

B. All crimes subject to the jurisdiction of the Court are classified as either

misdemeanors or felonies and are punishable by a maximum jail term not to

exceed one year and/or a fine not to exceed five thousand dollars ($5,000.00).

All persons punished by incarceration after conviction of a crime shall be

placed in the custody of an approved jail facility contracted by the Nation to

accept custody. All terms of incarceration and the amount of all fines shall be

fixed by the Court.

C. Unless the Court determines that the ends of justice will not be served

thereby, or that a civil action will more adequately adjudicate damages in the

specific case at hand, then in addition to any sentence otherwise provided by

law, the Court shall order the offender to pay restitution to the victim, including

when the victim is the Muscogee (Creek) Nation.

[NCA 10–053, approved May 27, 2010.]

§ 2–105. Contempt, direct and indirect; definition

Contempt of Court shall be divided into direct and indirect contempt. Direct

contempt shall consist of disorderly or insolent behavior committed during the

session of the Court and in its immediate view and presence; the unlawful and

willful refusal of any person to be sworn as a witness; the refusal to answer any

legal or proper question; or any breach of the peace, noise or disturbance, so

near to it as to interrupt its proceedings. Indirect contempt of Court shall

consist of willful disobedience of any process or order lawfully issued or made

by Court or resistance willfully offered by any person to the execution of a

lawful order or process of a Court. Contempt may be summarily punished by

the Court whether direct or indirect.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–610, added by NCA 92–14,

§ 6–710, amended by NCA 99–04, § 107; NCA

07–179, § 11; NCA 92–14, § 6–711, amended by

NCA 99–04, § 107; NCA 07–179, § 11.

Library References

Indians O639.

Obstructing Justice O7.

Protection of Endangered Persons O91.

Westlaw Topic Nos. 209; 282; 315P.

C.J.S. Breach of the Peace §§ 18 to 19, 23, 28

to 38.

128

C.J.S. Indians §§ 151 to 179.

C.J.S. Obstructing Justice or Governmental

Administration §§ 4, 10, 12 to 29, 31 to 32,

38.

CRIMINAL OFFENSES

Title 14, § 2–109

§ 2–106. Forfeiture of property

The conviction of a person for any crime shall not cause the forfeiture of

property, except when forfeiture is expressly imposed by law of the Muscogee

(Creek) Nation.

[NCA 10–053, approved May 27, 2010.]

§ 2–107. Forfeiture of public office

The omission to specify in this Code any grounds for forfeiture of a public

office, other trust or special authority conferred by law does not affect such

forfeiture. In addition, the omission to specify in this Code any grounds for

impeachment, removal or suspension of any public officer or other person

holding any trust, appointment or other special authority conferred by law does

not affect such impeachment, removal or suspension.

[NCA 10–053, approved May 27, 2010.]

§ 2–108. Criminal charges controlling

If two crimes in this Code cover all the facts in a particular occurrence, the

crime that is the most specific shall control and serve as the basis for the

proper criminal charge.

[NCA 10–053, approved May 27, 2010.]

§ 2–109. Conduct constituting more than one crime

The method of prosecution to be used when conduct constitutes more than

one crime is as follows:

A. When the same conduct of a defendant may establish the commission of

more than one crime, the defendant may be prosecuted for each crime. The

defendant may not, however; be convicted of more than one crime if:

All of the elements of one crime are included in the other;

2. Inconsistent finding of fact is required to establish the commission of the

crimes;

3. The crimes differ only in that one is defined to prohibit a designated kind

of conduct generally and the other prohibits a specific instance of such

conduct; or

4. The crime is defined as a continuing course of conduct and the defendants course of conduct was uninterrupted, unless the law provides that

specific periods of such conduct constitute separate crimes.

B. Except as provided in subsection C of this section, a defendant shall not

be subject to separate trials for multiple crimes based on the same conduct or

arising from the same criminal episode, if such crimes are known to the

Prosecutor at the time of the commencement of the first trial and are within the

jurisdiction of the Court.

C. When a defendant is charged with two (2) or more crimes based on the

same conduct or arising from the same episode, the Court on application of the

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Title 14, § 2–109

CRIMES & PUNISHMENT

Nation or defendant, may order any such charge to be tried separately, if it is

satisfied that justice so requires.

D. A defendant may be convicted of a crime included in any crime charged

in the complaint and information. A crime is so included when:

1. It is established by proof of the same or less elements required to

establish the commission of the crime charged; or

2. It consists of an attempt to commit the crime charges or to commit a

crime otherwise included therein.

E. The Court shall not be obligated to charge the jury with respect to any

included crime, unless there is a rational basis for a verdict acquitting the

defendant of the crime charged and convicting the defendant of the included

crime.

[NCA 10–053, approved May 27, 2010.]

§ 2–110. Burden of proof

A. No person may be convicted of a crime unless each element of such

crime is proved beyond a reasonable doubt. In the absence of such proof, the

innocence of the defendant is presumed.

B. Subsection A of this section does not require the disproof of an affirmative defense unless there is sufficient evidence supporting such defense. If some

evidence of an affirmative defense has been introduced, the Prosecutor must

disprove that affirmative defense beyond a reasonable doubt.

C. A ground of defense is affirmative, within the meaning of subsection B of

this section, when:

It arises under a section of this Code that so provides; or

2. It involves a matter of excuse or justification peculiarly within the

knowledge of the defendant on which the defendant can fairly be required to

present evidence.

[NCA 10–053, approved May 27, 2010.]

§ 2–111. Capacity to commit crime

All persons are capable of committing crimes except:

Children under seven (7) years of age; and

B. Children over the age of seven (7) years and under the age of fourteen

(14) years when there is an absence of proof that at the time of committing the

act or committing to act or omitting the act, the child knew its conduct was

wrong.

[NCA 10–053, approved May 27, 2010.]

§ 2–112. Civil actions

The omission of this Code to refer to any damages, penalty, forfeiture or other

remedy imposed by law and allowed to be recovered or enforced in any civil

130

CRIMINAL OFFENSES

Title 14, § 2–113

action for any act or omission declared punishable herein does not affect any

right to recover or enforce the same.

[NCA 10–053, approved May 27, 2010.]

§ 2–113. Definitions; general

In this Code, unless a different meaning is specified in reference to a

particular crime the following words and phrases shall have the following

meanings:

A. ‘‘Actor’’ means the person who allegedly committed or omitted the act or

acts constituting the crime.

B. ‘‘Bodily injury’’ means a person suffers physical pain, illness or any

impairment of physical condition.

C. ‘‘Carries away’’ means removing an article of the slightest distance. It is

more than a mere change of position. It is a movement for the purpose of

permanent relocation.

D. ‘‘Child’’, ‘‘children’’ or ‘‘minor’’ means a person or person under eighteen (18) years of age.

‘‘Coercion’’ means a threat, however communicated, to:

1. Physically injure the person threatened or any other person, which by its

terms will not be, or based on the circumstances cannot be, carried out at

substantially the same time as its utterance or receipt;

2. Physically injure the person threatened or any other person which is not

made in the presence of the person threatened, but which may be capable of

substantially contemporaneous execution;

3. Injure the property of the person threatened or the property of one with

whom such person has a family, social, business or other similar relationship;

4. Accuse the person threatened of a crime or to so accuse one with whom

such person has a family, social, business or other similar relationship;

5. Expose the person threatened to hatred, contempt, ridicule or disgrace,

or to so expose one with whom such person has a family, social, business or

other similar relationship;

6. Take or withhold action as a public official or employee, or to cause a

public official or employee to take or withhold action; or

7. Expose any secret, fact, report or information sought to be concealed by

the person threatened.

F. ‘‘Court’’ or ‘‘District Court’’ shall mean the District Court of the Muscogee (Creek) Nation.

G. ‘‘Criminal negligence’’ or ‘‘criminally negligent’’ means a gross deviation

from the standard of care that a reasonable person would observe in the Actor’s

situation.

H. ‘‘Dangerous weapon’’ or ‘‘deadly weapon’’ means any firearm, whether

loaded or unloaded, or any other instrument, material or substance, whether

animate or inanimate, which is likely to produce death or serious bodily injury

in the manner it is used or attempted to be used.

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‘‘Duty of care’’ means that one has a legal duty to render aid.

J. ‘‘Extreme indifference to the value of human life’’ means that a person

acts in total disregard of the consequences to others by unjustifiably creating

what a reasonable person would realize in an inordinately high degree of risk

of death to others.

K. ‘‘Force’’ means any touching, no matter how slight, of a person or any

property on the persons body. Such touching must be known to a conscious

victim at the time of the touching.

L. ‘‘Incapacitated’’ means any person who by reason of mental or physical

illness is disabled to the extent that the person lacks the ability to effectively

engage in self-protection.

M. ‘‘Intent’’ or ‘‘intentionally’’ means that in addition to doing the acts or

failing to act which caused the harm, the Actor acted with the specific purpose

of accomplishing that harm.

N. ‘‘In the commission of’’ means the performance of an act which is an

inseparable part of a crime or necessary for its completion, or which is

performed in the process of fleeing from the immediate scene of the crime

before a position of relative safety has been reached.

O. ‘‘Know’’, ‘‘knows’’, ‘‘knowing’’, ‘‘knowingly’’ or ‘‘known’’ means in addition to doing the acts or failing to act which caused the harm, the Actor has a

subjective belief that something exists. Proof of actual or direct knowledge is

not required. It is sufficient if the facts and circumstances are such to cause an

actual belief on the part of the Actor. Of course, ignorance of the law is not an

excuse.

P. ‘‘Law enforcement official’’ means any federal, state or Tribal police

officer, sheriff, deputy sheriff, highway patrol officer, investigator or similar

public officer or official.

Q. ‘‘Legal duty to render aid’’ means one or more of the following is

present:

A law imposes a duty to care for another;

2. One is in a spousal relationship to another or is the parent, guardian or

other person having custody of a child;

One has assumed a contractual duty to care for another; or

4. One has voluntarily assumed the care of another person who acts in

reliance on that care. The recipient is or becomes helpless and is in a situation

where others cannot reasonably render aid.

R. ‘‘Malicious’’, ‘‘maliciously’’ or ‘‘with malice’’ means that, in addition to

doing the acts or failing to act which caused the harm, the Actor either had

specific intent to cause the harm or had a wanton disregard of the pain and

strong likelihood of causing that harm.

S. ‘‘Motor vehicle’’ or ‘‘motor powered vehicle’’ means any self-propelled

instrumentality in, upon, or by which a person or property may be transported.

T. ‘‘Nation’’ means the Muscogee (Creek) Nation, including all of its agencies, boards and commissions, but not including its communities.

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U. ‘‘Official proceeding’’ means a proceeding before any legislative, judicial,

administrative or other governmental agency or official authorized to take

evidence under oath, including any referee, hearing examiner, commissioner,

notary or other person taking testimony or deposition in connection with any

such proceeding.

V. ‘‘Omission’’ means a failure to act in circumstances where a legal duty to

act exists.

W. ‘‘Person’’ means a human being who is a member of a federally recognized Indian Tribe or a human being who is eligible to be a member of a

federally recognized Indian Tribe.

X. ‘‘Personal property’’ means chattels and includes such things as money,

goods, evidences of rights in action, and written instruments effecting a

monetary obligation or right to title or property. The value of the property is

immaterial.

Y. ‘‘Public servant’’ means any officer or employee of the Nation, including

legislators and judges and any person performing an authorized governmental

duty.

Z. ‘‘Serious bodily injury’’ means bodily injury which creates a substantial

risk of death or which causes serious, permanent disfigurement or protracted

loss or impairment of the function of any bodily member or organ.

AA.

‘‘Unlawfully’’ means not authorized by law.

BB.

‘‘Witness’’ means any person who:

1. Has knowledge of the existence or nonexistence of facts relating to any

crime or claim or any other matter which is or may be the subject of an official

proceeding or investigation;

2. Has made a statement under oath which has been or may be received as

evidence in an official proceeding or investigation;

3. Has been legally served with a subpoena issued under the legal authority

of the District Court; or

4. Would be believed by a reasonable person to be a person described in this

paragraph.

[NCA 10–053, approved May 27, 2010.]

Derivation:

Title 14, § 2–101, added by NCA 92–14,

§ 1–701; amended by NCA 99–04, § 107; NCA

07–179, § 7.

SUBCHAPTER 2. CRIMES ARISING FROM OTHER

CRIMES OR POTENTIAL CRIMES

Section

2–201. Classification of parties.

2–202. Classification of persons aiding and abetting.

2–203. Accessory to crime.

2–204. Attempts.

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Section

2–205. Conspiracy crimes; definitions.

§ 2–201. Classification of parties

All parties to crimes are classified as Principals or Accessories.

[NCA 10–053, approved May 27, 2010.]

§ 2–202. Classification of persons aiding and abetting

All persons concerned in the commission of a crime, whether they directly

commit the act constituting the crime or aid and abet in its commission,

although not present, are Principals.

[NCA 10–053, approved May 27, 2010.]

§ 2–203. Accessory to crime

The crime of accessory occurs when a person unlawfully conceals or aids

another person who has committed a crime knowing that the other person has

committed a crime. The aiding or concealing must be done with the intent that

the other person avoid or escape from arrest, trial, conviction or punishment.

[NCA 10–053, approved May 27, 2010.]

§ 2–204. Attempts

An attempt to commit a crime occurs when a person performs an act or acts

toward the commission of a particular crime and that crime was not completed

either because the person was prevented from completing the crime or was

intercepted before its completion or withdrew. The person must:

Have the specific intent to commit that crime; and

B. Have committed a perpetrating act toward the commission of the particular crime. To have a perpetrating act there must be apparent proximity both

as to time and space. If the attempt is an effort to physically harm a person,

that penetrating act must be in dangerous proximity to completion. In all other

situations, the perpetrating act must not be too remote from completion of the

attempted crime.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–202, added by NCA 92–14,

§ 2–702; amended by NCA 99–04, § 107; NCA

07–179, § 8.

Library References

Criminal Law O44.

Westlaw Topic No. 110.

C.J.S. Criminal Law §§ 148 to 158.

§ 2–205. Conspiracy crimes; definitions

A. The crime of conspiracy occurs when a person enters into an agreement

with another person or persons to commit a crime with the intent that the

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crime be committed and any one of the persons does an overt act in furtherance of that agreement.

B. In this section, ‘‘overt act’’ means any act performed by any member of

the conspiracy which is done for the purpose of furthering or carrying out the

ultimate intent of the agreement, or which would naturally accomplish the

object of the conspiracy.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–203, added by NCA 92–14,

§ 2–703; amended by NCA 99–04, § 107; NCA

07–179, § 8.

Library References

Conspiracy O23.

Westlaw Topic No. 91.

SUBCHAPTER 3.

C.J.S. Conspiracy §§ 96 to 98, 100 to 126,

204.

CRIMES AGAINST PERSON

Section

2–301. Homicide

2–302. Assault.

2–303. Battery.

2–304. Use of vehicle to facilitate discharge of weapon in conscious disregard to safety

of others.

2–305. Owner of mischievous animal which kills or severely injures person.

2–306. Willfully poisoning food, drink, medicine, patent or proprietary medicine.

2–307. Unlawful use of dangerous weapon.

2–308. Harassment.

2–309. Stalking.

2–310. Robbery; definitions.

2–311. False imprisonment.

2–312. Interference with custody of committed or entrusted person.

2–313. Exposing others to sexually transmitted disease.

2–314. Rape.

2–315. Rape by instrumentation.

2–316. Offensive sexual contact.

2–317. Indecent exposure.

2–318. False imprisonment.

2–319. Kidnapping/abduction.

2–320. Physical abuse of a child.

2–321. Sexual abuse of a person under the age of sixteen.

2–322. Incest.

§ 2–301. Homicide

The crime of homicide is the killing of one human being by the act,

procurement or culpable negligence of a person; unless it is committed under

such circumstances as constitute excusable or justifiable homicide. Homicide is

a felony. A homicide includes the following:

A. When perpetrated with premeditation;

B. When perpetrated without a design to effect death by a person while

engaged in the commission of a crime;

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C. When perpetrated without a design to effect death, and in a heat of

passion, but in a cruel and unusual manner, or by means of a dangerous or

deadly weapon; or

D. When perpetrated without a design to effect death by a person engaged

in reckless disregard of the safety of others.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–308, added by NCA 92–14,

§ 3–708, amended by NCA 99–04, § 107; NCA

07–179, § 9; NCA 92–14, § 3–709, amended by

NCA 99–04, § 107; NCA 07–179, § 9.

Library References

Homicide O525, 656.

Westlaw Topic No. 203.

C.J.S. Homicide §§ 36 to 3798 to 99, 125.

United States Code Annotated

Offenses committed within Indian country, see 18 U.S.C.A. § 1153.

§ 2–302. Assault

A. The crime of assault occurs when a person makes an unlawful attempt to

batter another person or unlawfully places another person in reasonable

apprehension of receiving an immediate battery. Any person convicted of

violating the foregoing provision shall be guilty of a misdemeanor.

B. The crime of aggravated assault occurs when a person, through the use

of a dangerous or deadly weapon makes an unlawful attempt to commit a

serious bodily injury to another person. Any person convicted of violating the

foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–301, added by NCA 92–14,

§ 3–701, amended by NCA 99–04, § 107; NCA

07–179, § 9; NCA 92–14, § 3–702, amended by

NCA 99–04, § 107; NCA 07–179, § 9.

Library References

Assault and Battery O47, 54.

Westlaw Topic No. 37.

C.J.S. Assault and Battery §§ 1 to 3, 73, 78 to

88, 95 to 96, 98.

C.J.S. Robbery § 108.

United States Code Annotated

Offenses committed within Indian country, see 18 U.S.C.A. § 1153.

§ 2–303. Battery

A. The crime of simple battery occurs when a person unlawfully applies

force to another person. Any person convicted of committing battery shall be

guilty of a misdemeanor.

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B. The crime of protected status battery is a felony and occurs when all of

the elements of battery are present and, in addition, it is knowingly committed

against:

1. Law enforcement officials, referees or umpires, teachers or school officials, during performance of or related to their duties;

A child under fifteen (15) years of age;

A person sixty-two (62) years of age or older;

An incapacitated person;

5. Any person because of that person’s race, religion, ancestry, national

origin, sexual orientation or disability.

Any person convicted of committing protected status battery shall be guilty of

a felony.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–303, added by NCA 92–14,

§ 3–703, amended by NCA 99–04, § 107; NCA

07–179, § 9; NCA 92–14, § 3–704, amended by

NCA 99–04, § 107; NCA 07–179, § 9; NCA

92–14, § 1–527, amended by NCA 92–141,

§ 201.

Cross References

Protection of Tribal elders, see Title 20, § 3–101 et seq.

Library References

Assault and Battery O47, 54.

Protection of Endangered Persons O4.

Westlaw Topic Nos. 37, 315P.

C.J.S. Assault and Battery §§ 1 to 3, 73, 78 to

88, 95 to 96, 98.

C.J.S. Robbery § 108.

United States Code Annotated

Offenses committed within Indian country, see 18 U.S.C.A. § 1153.

§ 2–304. Use of vehicle to facilitate discharge of weapon in conscious

disregard to safety of others

It is a crime for a person to use a vehicle to facilitate the intentional

discharge of any kind of firearm, crossbow or other weapon in conscious

disregard for the safety of another person or persons. Any person convicted of

violating the foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

§ 2–305. Owner of mischievous animal which kills or severely injures

person

It is a crime for a person who is the owner of a mischievous animal, knowing

its propensities, to allow the animal to go at large, or keep it without ordinary

care, when such animal, while so at large or not confined, kills, or causes

serious bodily injury to any human being who has taken all the precautions

which the circumstances permitted, to avoid such animal. Any person convicted

of violating the foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

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§ 2–306. Willfully poisoning food, drink, medicine, patent or proprietary

medicine

A. It is a crime for a person to willfully mingle any poison or Schedule I

through V drug or sharp object, or any other object or substance which if used

in a manner which is not customary or usual is harmful to human life, with any

food, drink, medicine, patent or proprietary medicine with intent that the same

shall be taken, consumed, applied or used in any manner by a human being to

his injury. Any person convicted of violating the foregoing provision shall be

guilty of a felony.

B. It is a crime for a person to willfully poison or place any Schedule I

through V drug or any other object or substance which is used in a manner

which is not customary or usual is harmful to human life in any spring, well or

reservoir of water, unless specifically allowed by law. Any person convicted of

violating the foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

§ 2–307. Unlawful use of dangerous weapon

It is a crime for a person to unlawfully use a dangerous weapon by placing

another person in reasonable apprehension of serious bodily injury. The Actor

must know or should know that such apprehension will result. Any person

convicted of violating the foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–305, added by NCA 92–14,

§ 3–705; amended by NCA 99–04, § 107; NCA

07–179, § 9.

Library References

Assault and Battery O47.

Westlaw Topic No. 37.

C.J.S. Assault and Battery §§ 1 to 3, 73, 78 to

85, 98.

C.J.S. Robbery § 108.

§ 2–308. Harassment

It is a crime for a person to seriously alarm or annoy another person and

cause that person substantial emotional distress through a knowing and willful

course of pattern of conduct directed at a specific person which serves no

legitimate purpose. Any person convicted of violating the foregoing provision

shall be guilty of a misdemeanor.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–307, added by NCA 92–14,

§ 3–707, amended by NCA 99–04, § 107; NCA

07–179, § 9.

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Library References

Extortion and Threats O25.

Westlaw Topic No. 165.

C.J.S. Threats and Unlawful Communications

§§ 1 to 39.

§ 2–309. Stalking

It is a crime for a person to willfully, maliciously and repeatedly follow a

person with the intent of placing that person in reasonable fear of death or

great bodily injury. Any person convicted of violating the foregoing provision

shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

§ 2–310. Robbery; definitions

A. In this section, ‘‘fear’’ means the placing of a robbery victim in reasonable apprehension of an immediate personal bodily injury or a bodily injury to

anyone in the immediate vicinity at the time of the robbery.

B. The crime of robbery occurs when a person wrongfully takes and carries

away the personal property of another from the other’s person or immediate

presence through means of force or fear with the intent to permanently deprive

the other person of the property. Any person convicted of violating the foregoing provision shall be guilty of a felony.

C. The crime of aggravated robbery occurs when all of the elements of

robbery are present and, in addition:

A dangerous weapon is used in the commission of the robbery; or

2. Serious bodily injury is inflicted upon a person as a result of the

commission of the robbery.

Any person convicted of violating the foregoing provision shall be guilty of a

felony.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–402, added by NCA 92–14,

§ 4–702, amended by NCA 99–04, § 107; NCA

07–179, § 10.

Library References

Robbery O1.

Westlaw Topic No. 342.

C.J.S. Robbery §§ 1 to 3, 17 to 18, 106 to 107,

109, 126 to 127, 133.

United States Code Annotated

Offenses committed within Indian country, see 18 U.S.C.A. § 1153.

§ 2–311. False imprisonment

The crime of false imprisonment occurs when a person knowingly and

unlawfully restrains another person so as to substantially interfere with that

persons liberty. Any person convicted of violating the foregoing provision shall

be guilty of a misdemeanor.

[NCA 10–053, approved May 27, 2010.]

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CRIMES & PUNISHMENT

Historical and Statutory Notes

Derivation:

Title 14, § 2–310, NCA 92–14, § 3–710,

amended by NCA 99–04, § 107; NCA 07–179,

§ 9.

Library References

Kidnapping O10.

Westlaw Topic No. 231E.

United States Code Annotated

Offenses committed within Indian country, see 18 U.S.C.A. § 1153.

§ 2–312. Interference with custody of committed or entrusted person

The crime of interference with custody of a committed or entrusted person

occurs when a person unlawfully takes or entices away any person who has

been committed or entrusted by authority of law to the custody of a third

person or agency. The taking or enticement must be done with the intent to

conceal and detain that person from the agency or third person to whom

commitment or entrustment was granted. Any person convicted of violating the

foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–312, added by NCA 92–14,

§ 3–712, amended by NCA 99–04, § 107; NCA

07–179, § 9.

Library References

Kidnapping O23.

Westlaw Topic No. 231E.

§ 2–313. Exposing others to sexually transmitted disease

The crime of exposing others to a sexually transmitted disease occurs when a

person who is infected with a sexually transmitted disease engages in sexual

intercourse or sodomy with another person with the intent to infect that person

with the sexually transmitted disease or when a person who is infected with the

Human Immunodeficiency Virus engages in sexual intercourse, sodomy, donating blood, transferring blood through the skin or membrane of another person

or biting another person. To be guilty, the person must act without using proper

barrier protection and without informing the other person of the presence of

the Human Immunodeficiency Virus and the act or acts must be done with the

intent to infect any other person with the Human Immunodeficiency Virus. Any

person convicted of violating the foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

§ 2–314. Rape

A. The crime of rape occurs when a person commits an act of sexual

intercourse involving vaginal or anal penetration and that act is accomplished

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with a male or female who is not the spouse of the perpetrator and who may be

of the same or the opposite sex as the perpetrator under any of the following

circumstances:

1. Where the victim is under the age of sixteen (16) years of age or younger

and the perpetrator is at least two (2) years older than the victim;

2. Where the victim is incapable through mental illness or any other

unsoundness of mind, whether temporary or permanent, of giving legal consent;

3. Where force or violence is used or threatened, accompanied by apparent

power of execution to the victim or to another;

4. Where there victim is intoxicated by a narcotic or anesthetic agent,

administered by or with the privity of the accused as a means of forcing the

victim to submit;

5. When the victim is at the time unconscious of the nature of the fact and

this is known to the accused;

6. Where the victim submits to sexual intercourse under the belief that the

person committing the act is a spouse, and this belief is induced by artifice,

pretense, or concealment practiced by the accused; or

7. Where the victim is under the legal custody of the Muscogee (Creek)

Nation and engages in sexual intercourse with an employee of the Muscogee

(Creek) Nation or employee of a contractor of the Muscogee (Creek) Nation that

exercises authority over the victim.

B. The crime of rape occurs when a person commits an act of sexual

intercourse accomplished with a male or female who is the spouse of the

perpetrator if force or violence is used or threatened, accompanied by apparent

power of execution to the victim or to another person. Any person convicted of

violating the foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–314, added by NCA 92–14,

§ 3–714, amended by NCA 99–04, § 107; NCA

07–179, § 9.

Library References

Rape O1.

Westlaw Topic No. 321.

C.J.S. Rape §§ 1 to 3, 15.

United States Code Annotated

Offenses committed within Indian country, see 18 U.S.C.A. § 1153.

§ 2–315. Rape by instrumentation

The crime of rape by instrumentation occurs when a person commits an act

within or without the bonds of matrimony in which an inanimate object or any

part of the human body, not amounting to sexual intercourse is used in the

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CRIMES & PUNISHMENT

carnal knowledge of another person and penetration of the anus or vagina

occurs to that person. Provided, further, that at least one of the circumstances

enumerated in the crime of rape has been met. Any person convicted of

violating the foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

§ 2–316. Offensive sexual contact

The crime of offensive sexual contact occurs when any person intentionally

touches the breasts, buttocks or genitalia of another person in a lewd and

lascivious manner and without the consent of that person. Any person convicted of violating the foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

§ 2–317. Indecent exposure

The crime of indecent exposure occurs when any person intentionally displays or exhibits that person’s genitals in a lewd or lascivious manner where

that person knows or should know that the conduct is likely to cause offense or

alarm. Any person convicted of violating the foregoing provision shall be guilty

of a felony.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–317, added by NCA 92–14,

§ 3–717, amended by NCA 99–04, § 107; NCA

07–179, § 9.

Library References

Obscenity O3.

Westlaw Topic No. 281.

C.J.S. Obscenity §§ 9 to 10.

§ 2–318. False imprisonment

It shall be unlawful for any person to confine a person, or cause a person to

be confined, without his or her valid consent and without lawful authority or

justification. Such unlawful confinement shall result from:

A. Any unlawful exercise or show of force by which a person is compelled to

remain in any place where they do not wish to remain;

B. Any unlawful restriction of any person’s freedom by means of causing

that person to be in any place without that person’s consent and without a

reasonable means of escape; or

C. Any unlawful arrest, detention or imprisonment of another person or

persons.

Any person convicted of violating the foregoing provision shall be guilty of a

misdemeanor.

[NCA 10–053, approved May 27, 2010.]

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Historical and Statutory Notes

Derivation:

Title 14, § 2–310, NCA 92–14, § 3–710,

amended by NCA 99–04, § 107; NCA 07–179,

§ 9.

Library References

False Imprisonment O43.

Westlaw Topic No. 168.

C.J.S. False Imprisonment §§ 92 to 95.

§ 2–319. Kidnapping/abduction

It shall be unlawful for any person who, without lawful authority, forcibly

seizes and confines another, or inveigles or kidnaps another, with intent, either:

A. To cause such other person to be confined or imprisoned in this state

against the will of the other person;

B. To cause such other person to be sent out of this state against the will of

the other person; or

C. To cause such person to be sold as a slave, or in any way held to service

against the will of such person.

Any person convicted of violating the foregoing provision shall be guilty of a

felony.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–311, NCA 92–14, § 3–711,

amended by NCA 99–04, § 107; NCA 07–179,

§ 9.

Library References

Kidnapping O10.

Westlaw Topic No. 231E.

United States Code Annotated

Offenses committed within Indian country, see 18 U.S.C.A. § 1153.

§ 2–320. Physical abuse of a child

Any person who causes or permits any harmful or offensive contact to a

child’s body; or, any communication or transaction of any kind which humiliates, shames, or frightens the child;

A. Any parent or other person who shall willfully or maliciously engage in

child abuse shall, upon conviction, be guilty of a felony.

B. Any parent or other person who shall willfully or maliciously engage in

enabling child abuse shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

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Historical and Statutory Notes

Derivation:

Title 14, § 2–313, added by NCA 92–14,

§ 3–713, amended by NCA 99–04, § 107; NCA

07–179, § 9.

Cross References

Abuse and neglect reporting requirements, see Title 6, § 1–501 et seq.

Library References

Assault and Battery O47.

Indians O133, 260.

Mayhem O1.

Westlaw Topic Nos. 37, 209, 256.

C.J.S. Assault and Battery §§ 1 to 3, 73, 78 to

85, 98.

C.J.S. Indians §§ 150, 177 to 187, 191 to 194.

C.J.S. Mayhem §§ 1 to 12.

C.J.S. Robbery § 108.

§ 2–321. Sexual abuse of a person under the age of sixteen

It shall be unlawful for a person to knowingly and intentionally:

A. Make any oral, written or electronically or computer-generated lewd or

indecent proposal to any child under sixteen (16) years of age for the child to

have unlawful sexual relations or sexual intercourse with any person;

B. Look upon, touch, maul, or feel the body or private parts of any child

under sixteen (16) years of age in any lewd or lascivious manner by any acts

against public decency and morality, as defined by law;

C. Ask, invite, entice, or persuade any child under sixteen (16) years of age

to go alone with any person to a secluded, remote, or secret place, with the

unlawful and willful intent and purpose then and there to commit any crime

against public decency and morality, as defined by law, with the child;

D. In any manner lewdly or lasciviously look upon, touch, maul, or feel the

body or private parts of any child under sixteen (16) years of age in any

indecent manner or in any manner relating to sexual matters or sexual interest;

E. In a lewd and lascivious manner and for the purpose of sexual gratification, urinate or defecate upon a child under sixteen (16) years of age or

ejaculate upon or in the presence of a child, or force or require a child to look

upon the body or private parts of another person or upon sexual acts performed

in the presence of the child or force or require a child to touch or feel the body

or private parts of said child or another person.

Any person convicted of violating the foregoing provision shall be guilty of a

felony.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–315, added by NCA 92–14,

§ 3–715, amended by NCA 99–04, § 107; NCA

07–179, § 9.

144

Title 14, § 2–322

CRIMINAL OFFENSES

Cross References

Abuse and neglect reporting requirements, see Title 6, § 1–501 et seq.

Library References

Rape O13.

Westlaw Topic No. 321.

C.J.S. Rape §§ 1, 18, 21.

United States Code Annotated

Offenses committed within Indian country, see 18 U.S.C.A. § 1153.

§ 2–322. Incest

It shall be unlawful for any person who marries or engages in sexual activity,

whether consensual or not, with another person within the degrees of consanguinity within which marriages are, by the laws of the Muscogee (Creek)

Nation, declared incestuous and void. Any person convicted of violating the

foregoing provision shall be guilty of a felony.

[NCA 10–053, approved May 27, 2010.]

Historical and Statutory Notes

Derivation:

Title 14, § 2–316, added by NCA 92–14,

§ 3–716, amended by NCA 99–04, § 107; NCA

07–179, § 9.

Library References

Incest O1.

Indians O260.

Westlaw Topic Nos. 207, 209.

C.J.S. Incest §§ 1, 4 to 6.

C.J.S. Indians §§ 177 to 187, 191 to 194.

United States Code Annotated

Offenses committed within Indian country, see 18 U.S.C.A. § 1153.

SUBCHAPTER 4. ARSON, BURGLARY

AND RELATED CRIMES

Section

2–401. Arson, burglary and related crimes; definitions.

2–402. Arson.

2–403. Breaking and entering.

2–404. Burglary.

2–405. Carrying burglar’s tools.

2–406. Criminal trespass.

2–407. Illegal dumping.

2–408. Forgery and related crimes; definitions.

2–409. Forgery.

2–410. Uttering a forged instrument.

2–411. Tampering with identity of personal property and related crimes; definitions.

2–412. Tampering with identity of personal property.

2–413. Promoting tampering with identity of personal property.

2–414. Exceptions to tampering with identity of personal property.

2–415. Malicious mischief.

145

Title 14, § 2–401

CRIMES & PUNISHMENT

Section

2–416. Theft; definition.

2–417. Theft.

2–418. Intent to permanently deprive another person of property or services.

2–419. Theft of the Nation’s funds, Program Income or other federal funds.

2–420. Cutting down trees.

2–421. Failure to return certain leased or rented property.

2–422. Defrauding casinos, hotels, inns, restaurants.

2–423. False making or embossing of credit or debit card.

2–424. Signing of card; possession of signed or unsigned card.

2–425. Forged or revoked card.

2–426. Poisoning animals.

2–427. Cruelty to animals.

2–428. Instigate fight between animals/keeping place for fighting animals.

2–429. Cockfighting.

2–430. Receiving stolen property; presumption.

2–431. Larceny of domestic animals.

2–432. Tapping pipeline.

2–433. Chattels encumbered by mortgage, conditional sales contract or security.

2–434. Trafficking in telecommunication theft devices.

2–435. Unauthorized use of vehicle or boat.

2–436. Extortion.

2–437. Unlawful removal of dead body or damage to casket or burial vault.

2–438. Unlawful interference with place of burial.

2–439. Unauthorized use of the Great Seal of the Muscogee (Creek) Nation.

2–440. Tax evasion.

2–441. Misuse of Tribal Vendor’s Sales License.

§ 2–401. Arson, burglary and related crimes; definitions

In this subchapter, the following words and phrases shall have the following

meanings:

A. ‘‘Breaks’’ means any act of physical force, however slight, by which

obstructions to entering are removed. It also means entry immediately gained

through the use of trickery, deceit, fraud or threat.

‘‘Burns’’ means the slightest ignition which results in any damage.

C. ‘‘Dwelling’’ means any house, similar structure or motor home, any part

of which is the residence of any person.

D. ‘‘Enters’’ means the insertion of any part o

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