ADMINISTRATION OF TRIBAL COURT ...................................................................1 (2024)
Tribal code
Ask Donna
What actually matters in this document.
Text
TITLE 1
GENERAL PROVISIONS
CHAPTER 1-1
ADMINISTRATION OF TRIBAL COURT ...................................................................1
PRELIMINARY PROVISIONS..........................................................................................1
§1-1-1
Definitions........................................................................................1
§1-1-2
Citation .............................................................................................2
§1-1-3
Constitutional Authority and Name .................................................2
§1-1-4
Prior Inconsistent Ordinances and Code Provisions Repealed ........2
§1-1-5
Principles of Construction................................................................2
§1-1-6
Records of Court Open to Public Inspection; Exceptions ...............3
§1-1-7
Specification of Time for Action .....................................................3
§1-1-8
Court and Clerk ................................................................................3
JURISDICTION ................................................................................................................4
§1-1-9
Scope and Extent..............................................................................4
§1-1-10
Territorial Jurisdiction .....................................................................4
§1-1-11
Original Jurisdiction.........................................................................4
§1-1-12
Personal Jurisdiction ........................................................................4
ESTABLISHMENT OF COURTS; JUDGES AND OTHER
COURT PERSONNEL......................................................................................................5
§1-1-13
Establishment of Court ....................................................................5
§1-1-14
Appointment and Number of Judges of the Nez Perce
Tribal Judiciary ................................................................................6
§1-1-15
Judges - Probationary Period; Selection and Training .....................6
§1-1-16
Eligibility of Persons to Serve as Judges ........................................6
§1-1-17
Judges§ Duties and Powers ..............................................................7
§1-1-18
Removal of Judges or Justices for Cause .........................................7
§1-1-19
Disqualification or Incapacity ..........................................................9
§1-1-20
Nez Perce Court of Appeals .............................................................9
§1-1-21
Court Clerks ...................................................................................10
§1-1-22
Duties of the Court Clerk ...............................................................11
§1-1-23
Indian Child Welfare Worker ........................................................11
§1-1-24
Case Worker ..................................................................................11
§1-1-25
Court Rules ....................................................................................11
JURORS............................................................................................................................12
§1-1-26
Selection of Jury Panel...................................................................12
§1-1-27
Time and Manner of Notification ..................................................11
§1-1-28
Exemption from Jury Service ........................................................11
§1-1-29
List of Eligible Jurors.....................................................................12
§1-1-30
Compensation of Jurors .................................................................13
§1-1-31
Number of Jurors ...........................................................................13
§1-1-32
Verdict of Jury ...............................................................................13
§1-1-33
Jurors' Responsibilities ..................................................................13
§1-1-34
Examination of Jurors ....................................................................13
§1-1-35
Oath to Trial Jury ...........................................................................14
Table of Contents - i
ATTORNEYS; LEGAL INTERNS; PROSECUTOR .................................................14
§1-1-36
Attorneys - Admission ...................................................................14
§1-1-37
Attorneys - Suspension ..................................................................15
§1-1-38
Attorneys - Annual Fees ................................................................15
§1-1-39
Attorneys - Pro Hac Vice ...............................................................16
§1-1-40
Court Bar Roster ............................................................................16
§1-1-41
Legal Interns ..................................................................................16
§1-1-42
Nez Perce Tribal Prosecutor, Deputy Prosecutor, and Public
Defender-Appointment and Duties ................................................16
CONTEMPT ....................................................................................................................18
§1-1-43
Acts or Failures to Act Which Constitute Contempt of Court .......18
§1-1-44
Civil Contempt ...............................................................................18
§1-1-45
Criminal Contempt.........................................................................19
§1-1-46
Contempt Procedure.......................................................................19
SOVEREIGN IMMUNITY.............................................................................................19
§1-1-47
Sovereign Immunity.......................................................................19
CHOICE OF LAW .........................................................................................................20
§1-1-48
Choice of Law ................................................................................20
CHAPTER 1-2
SMALL CLAIMS ..................................................................................................................1
§1-2-1
Scope and Purpose ..........................................................................1
§1-2-2
Procedure .........................................................................................1
§1-2-3
Mediation and Hearings ...................................................................1
CHAPTER 1-3
ALTERNATIVE DISPUTE RESOLUTION .....................................................................1
§1-3-1
Scope and Purpose ...........................................................................1
§1-3-2
Matters Subject to Mediation ...........................................................1
§1-3-3
Application .......................................................................................1
§1-3-4
Certification and Compensation of Mediators .................................2
§1-3-5
Selection of Mediator for Individual Cases .....................................2
§1-3-6
Disqualification ................................................................................2
§1-3-7
Hearings ...........................................................................................3
§1-3-8
Petition to Terminate Mediation ......................................................3
§1-3-9
Judgments ........................................................................................4
CHAPTER 1-4
AMENDMENT OF CODE ...................................................................................................1
§1-4-1
Definitions........................................................................................1
§1-4-2
Amendment Process.........................................................................1
§1-4-3
Emergencies .....................................................................................3
§1-4-4
Timeline/Coordination ....................................................................4
§1-4-5
Elimination of BIA Review .............................................................4
§1-4-6
Hearings ..........................................................................................4
Table of Contents - ii
CHAPTER 1-5
LIMITATIONS ON ACTIONS ............................................................................................1
§1-5-1
Limitations in General .....................................................................1
§1-5-2
Criminal Offenses ............................................................................1
§1-5-3
Contracts ..........................................................................................1
§1-5-4
Statutory Liabilities, Trespass, Trover, Replevin,
and Fraud .........................................................................................1
§1-5-5
Actions Against Officers, for Penalties, on Bonds, and
for Professional Malpractice or for Personal Injuries ......................2
§1-5-6
Limitations Apply to Tribe ..............................................................2
§1-5-7
Actions for Other Relief...................................................................2
§1-5-8
Action, when Commenced ...............................................................3
§1-5-9
Persons under Disabilities ................................................................3
§1-5-10
Aliens in Time of War .....................................................................3
§1-5-11
Reversal Judgment - New Action ....................................................4
§1-5-12
Action Stay by Injunction or Code ..................................................4
§1-5-13
Actions against directors and stockholders ......................................4
CHAPTER 1-6
NEZ PERCE TRIBAL CIVIL RIGHTS ACT ....................................................................1
§1-6-1
Title ..................................................................................................1
§1-6-2
Civil Rights of Persons Within Tribal Jurisdiction ..........................1
CHAPTER 1-7
TRIBAL NOTICE .................................................................................................................1
§1-7-1
Findings............................................................................................1
§1-7-2
Purpose.............................................................................................1
§1-7-3
Notice Required ...............................................................................1
§1-7-4
Manner and Timing of Notice..........................................................1
§1-7-5
Tribal Participation Following Notice .............................................2
§1-7-6
Information Sharing and Consultation .............................................2
§1-7-7
Timeliness of Participation Determinations.....................................2
§1-7-8
Failure to Give Notice Not Jurisdictional or Waiver
of Rights ...........................................................................................2
§1-7-9
Late Notice .......................................................................................2
§1-7-10
Civil Sanctions .................................................................................3
§1-7-11
Jurisdiction .......................................................................................3
§1-7-12
Sovereign Immunity.........................................................................3
CHAPTER 1-8
PEACEMAKER COURT
§1-8-1
Establishment of Peacemaker Court ................................................1
§1-8-2
Definitions........................................................................................1
§1-8-3
Qualifications of Peacemakers .........................................................2
§1-8-4
Selection and Appointment of Peacemaker Section Committee and
Table of Contents - iii
§1-8-5
§1-8-6
§1-8-7
§1-8-8
§1-8-9
§1-8-10
§1-8-11
of Peacemakers ................................................................................3
Role of Peacemakers ........................................................................5
Duties of Peacemakers .....................................................................6
Peacemaker Handbook.....................................................................7
Matters Which May Be Heard by Peacemaker Court ......................7
Powers of the Peacemaker Court .....................................................8
Resolutions .......................................................................................8
Peacemaker Court Services Requested by Parties Not Subject to
the Jurisdiction of the Nez Perce Tribal Court or Other Specialty
Court ................................................................................................9
Table of Contents - iv
TITLE 1
GENERAL PROVISIONS
CHAPTER 1-1
ADMINISTRATION OF TRIBAL COURT
PRELIMINARY PROVISIONS
§1-1-1
Definitions
The following definitions will apply to this code:
(a)
"Business day" means any day in which the business of the Nez Perce Tribe is
normally conducted and excluding weekends and holidays.
(b)
"Child or minor" means a person who is less than eighteen (18) years old and has
not been emancipated by order of a court of competent jurisdiction.
(c)
"Code" shall mean the Code of the Nez Perce Tribe and "chapter" shall mean an
individual code chapter such as the "Criminal Offenses Chapter," "Civil Procedures Chapter,"
etc.
(d)
"Guardian ad litem" means a guardian who is appointed to represent a party for
the purpose of actual, threatened or contemplated litigation.
(e)
"Indian" means a member of any Indian tribe, band, group, pueblo or community
recognized by the United States and any Alaskan native as defined in the Alaska Native Claims
Settlement Act, 43 U.S.C. §1601-1628.
(f)
"In-lieu fishing site" means certain federal lands along the Columbia River
designated by the federal government via PL 79-14 for Indian treaty fishing activities in lieu of
usual and accustomed fishing placed inundated by construction of Bonneville Dam. (definition was
added by NPTEC 5/25/10 the addition changed the numerical order of the following subsections)
(g)
"Member of the Nez Perce Tribe" shall include a person whose name appears on
the membership roll of the Nez Perce Tribe.
(h)
"Nez Perce Tribal Executive Committee," "Executive Committee" or "NPTEC"
shall mean the Nez Perce Tribal Executive Committee as described in Article VI of the
Constitution and By-Laws of the Nez Perce Tribe.
(i)
"Party" means any person having a legal interest in or anything which is the
subject of a legal action. A party shall not include any person who may be affected indirectly or
consequently by the proceedings but has no legal interest in such proceedings.
(j)
"Person" includes but is not limited to, natural persons, corporations, partnerships,
trusts, unincorporated business associations, governmental entities, Indian tribes and any other
organization or entity involved in private, commercial, or non-profit activity.
(k)
“Proceedings” in the Tribal Court shall mean or include all arraignments in
criminal cases and all hearings and trials in civil and criminal cases before the Court. (added by
NPTEC 1/12/16)
Administration of Tribal Court - 1
(l)
"Reservation" shall include all lands within the exterior boundaries of the Nez
Perce Reservation as defined in Article III of the Constitution and By-Laws of the Nez Perce
Tribe.
(m)
"Treaty fishing access site (tfas)" means certain federal lands along the Columbia
River designated or acquired by the federal government via Public Law PL 100-581 for Indian
treaty fishing activities in lieu of usual and accustomed fishing places inundated by the
construction of Bonneville, The Dalles and John Day Dams. (definition was added by NPTEC 5/25/10
the addition changed the numerical order of the following subsections)
(n)
"Tribal Police" means BIA Law Enforcement, tribal police officers, or any other
peace officer authorized by the Nez Perce Tribe to enforce the laws of the tribe.
(o)
"Tribe" shall mean the Nez Perce Tribe unless another or no specific Indian tribe
is clearly intended.
(p)
"Court" or "Tribal Court" means the Tribal Court of the Nez Perce Tribe unless
another court is clearly intended.
(q)
"Tribal member" means any person enrolled as a member of the Nez Perce Tribe
unless another tribe is clearly intended.
§1-1-2
Citation
This code shall be known as the Nez Perce Tribal Code and may be cited as "N.P.T.C."
§1-1-3
Constitutional Authority and Name
This code is adopted pursuant to the authority vested in the Nez Perce Tribal Executive
Committee under Article VIII of the Constitution and By-Laws of the Nez Perce Tribe.
§1-1-4
Prior Inconsistent Ordinances and Code Provisions Repealed
Any ordinances or codes previously adopted by the Nez Perce Tribal Executive
Committee which are in conflict with this code are hereby repealed.
§1-1-5
Principles of Construction
In this code:
(a)
masculine words shall include the feminine and singular words shall include the
plural and vice versa, unless another meaning is clearly stated;
(b)
words shall be given their plain meaning and technical words shall be given their
usually understood meaning where no other definition is specified;
(c)
whenever a term is defined for a specific section or chapter, that definition shall
apply to all sections and chapters of this code unless a contrary meaning is clearly intended;
(d)
provisions shall be construed as a whole to give effect to all its parts (i.e. titles,
chapters, sections, etc...) in a logical, consistent manner; and
Administration of Tribal Court - 2
(e)
if any provisions of this code or their application to any person or circumstance is
held invalid, the remainder of this code, or the applications of the affected provisions to other
persons or circumstances is not affected.
§1-1-6
Records of Court Open to Public Inspection; Exceptions
Except for files and records in adoptions, incompetency proceedings, juvenile court
matters and records sealed by court order, the files and records of the courts of the Nez Perce
Tribe shall be open for public inspection. The Court may authorize inspection of closed files and
records upon motion and showing of extraordinary need.
§1-1-7
Specification of Time for Action
When, pursuant to this code:
(a)
the doing of an act within a specified time period is required or authorized, the
period of time indicated shall commence on the next day following the act which initiated the
time period.
(b)
the doing of an act between certain dates, or from one date to another, is allowed
or prohibited, the period of time indicated shall include both dates specified. The first date
specified designates the first day of the period and the second date specified designates the last
day of the period.
§1-1-8
Court and Clerk
(a)
The Court shall be deemed always open for the purpose of filing any pleading or
other proper paper, of issuing and returning mesne and final process, and of making and
directing all interlocutory motions, orders, and rules.
(b)
All acts or proceedings other than those closed to the public pursuant to this code
or sealed by order of the presiding judge shall be done or conducted in open session and on the
record, whether conducted at the Court in Lapwai, Kamiah, or at any other place within the
reservation. The judge may not engage in ex-parte communications with either party or either
party’s attorney in a matter which is before the Tribal Court, with the exception of those matters
which may be conducted ex-parte pursuant to this Code, or limited communications required for
scheduling, administrative purposes or emergencies that do not deal with substantive matters.
(amended by NPTEC 1/12/16)
(c)
All motions and application in the clerk's office for issuing mesne process, for
issuing final process to enforce and execute judgments, for entering defaults or judgments by
default, and for other proceedings which do not require allowance or order of the Court are
grantable of course by the clerk; but the clerk's action be suspended or altered or rescinded by the
Court upon cause shown.
(d)
Immediately upon the entry of an order or judgment the clerk shall serve a notice
of the entry by mail in the manner provided for in this code upon each party who is not in default
for failure to appear and shall make a note in the docket of the mailing. Any party may in
addition serve a notice of such entry in the manner provided in this code for the service of
papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve a
party for failure to appeal within the time allowed except as authorized by the Court.
Administration of Tribal Court - 3
JURISDICTION
§1-1-9
Scope and Extent
The judicial power of the Nez Perce Tribe shall be vested in the tribal judiciary of the
Nez Perce Tribe and shall extend to all cases and controversies in law and equity, arising under
the Constitution, By-Laws, laws and regulations of the Nez Perce Tribe, or to which an Indian or
Indian owned property is a party.
§1-1-10
Territorial Jurisdiction
(a)
The territorial jurisdiction of the Nez Perce Tribe shall include all land within the
exterior boundaries of the Nez Perce Reservation as defined under Article III of the Nez Perce
Tribe's Constitution and By-Laws, and to the greatest extent permissible by law, such other
lands as have been or may be added to the reservation, held in trust by the United States for the
Nez Perce Tribe or its members or which consist of usual and accustomed fishing locations, inlieu fishing sites, and treaty fishing access sites (tfas) of the Nez Perce Tribe or open and
unclaimed lands. (amended by NPTEC 5/25/10)
(b)
The jurisdiction of the courts of the Nez Perce Tribe shall extend beyond the Nez
Perce Tribe's territorial jurisdiction as set forth above to the extent permissible by law.
§1-1-11
Original Jurisdiction
The Nez Perce Tribal Court shall have original jurisdiction over all:
(a)
crimes committed by any Indian within the Nez Perce Reservation;
(b)
violations of the Nez Perce Tribe Fish and Game laws committed by a member of
the Nez Perce Tribe outside the Nez Perce Reservation at any usual and accustomed fishing
place or upon open and unclaimed lands; and
(c)
any and all violations of the Nez Perce Tribal Code committed by a member of
the Nez Perce Tribe outside the Nez Perce Reservation at any in-lieu site or any treaty fishing
access site (tfas); and (added by NPTEC 5/25/10)
(d)
civil actions at law or in equity, involving any person or entity and arising under
the Constitution, By-laws, laws and regulations of the Nez Perce Tribe, or to which an Indian or
Indian owned property is a party.
§1-1-12
(a)
Personal Jurisdiction
The Nez Perce Tribe shall have civil jurisdiction over:
(1)
any person residing or present within the reservation or land protected by
treaty with the United States government;
(2)
any person who transacts, conducts, or performs any business or activity
within the reservation by being present on the reservation or by mail,
phone, broadcast, cable either in person or by an agent or representative;
Administration of Tribal Court - 4
(b)
(3)
any person who owns, uses or possesses any real or personal property
situated within the reservation, for any civil cause of action arising from
such ownership, use or possession;
(4)
any person who commits a tortious act or engages in tortious conduct
within the reservation;
(5)
persons under the age of eighteen (18) years who are eligible for
membership in any federally-recognized tribe; (amended by NPTEC 4/28/15)
(6)
children and their parent(s), guardian, legal custodians or other persons
with responsibility for or control of the child who leave the exterior
boundaries of the reservation and over whom the Court had jurisdiction at
the time they left;
(7)
any real or personal property located on the reservation, the determination
of ownership thereof or rights therein or to determine the application of
such property to the satisfaction of a claim for which the owner of the
property may be liable; and
(8)
all causes of action, which involve either the tribe, its officers, agents,
employees, property or enterprises, a member of the tribe, a member of a
federally recognized tribe, or any other matter which effects the interest or
rights of the tribe.
The Nez Perce Tribe shall have criminal jurisdiction over:
(1)
all crimes committed by any Indian within the boundaries of the Nez Perce
Reservation; and
(2)
all violations of the Nez Perce Fish and Wildlife Code committed by a
member of the Nez Perce Tribe outside the Nez Perce Reservation at any
usual and accustomed fishing place or upon open and unclaimed lands.
ESTABLISHMENT OF COURTS; JUDGES AND OTHER COURT PERSONNEL
§1-1-13
Establishment of Court
There is hereby established the Nez Perce Tribal Court. The Court shall exercise the
jurisdiction of the Nez Perce Tribe including any civil, criminal or juvenile action.
§1-1-14
Appointment and Number of Judges of the Nez Perce Tribal Judiciary
The Nez Perce Tribal Court shall consist of one chief judge and as many associate judges
as the Nez Perce Tribal Executive Committee shall appoint.
§1-1-15
Judges - Probationary Period; Selection and Training
(a)
The Nez Perce Tribal Executive Committee shall appoint for a probationary term
of ninety (90) days, a chief judge and one or more associate judges who shall be empowered to
act in the absence of the chief judge. During such probationary term, the chief judge or any
associate judge may be removed by the Nez Perce Tribal Executive Committee without cause.
Administration of Tribal Court - 5
(b)
Following satisfactory completion of their probationary term, judges may be
appointed by NPTEC to a regular term of four years; provided that during such term, a chief
judge or associate judge may be removed by NPTEC for cause.
(c)
Any judge may be reappointed for any number of terms by the Nez Perce Tribal
Executive Committee. Any judge who is not subject to removal for cause may be reappointed
for a subsequent term of 4 years.
(d)
The Chief and Associate Judge(s) of the Tribal Court shall be required to
complete and provide to the Law and Order Executive Officer evidence of completion of 30
hours of state-bar approved Continuing Legal Education (CLE) training every three years,
including no less than 10 hours of state-bar approved CLE training in subject matter relevant to
the practice of law before a tribal court, and no less than 3 hours of ethics training as a minimum
for continuing in their positions. (amended by NPTEC 1/12/16)
§1-1-16
Eligibility of Persons to Serve as Judges
(a)
Any person, who has attained the age of twenty-five years, has graduated from an
accredited law school, is a member of the bar of any state and has 3 years of judicial experience
and/or has at least 10 years of experience as a practicing attorney shall be eligible to serve as
chief judge of the Tribal Court. When there are otherwise equally qualified candidates for chief
judge, those persons who have experience in tribal courts will be given preference in hiring
decisions. (Amended by NPTEC 09/13/2022)
(b)
Any person, who has attained the age of twenty-five years, has graduated from an
accredited law school and is a member of the bar of any state shall be eligible to serve as an
associate judge of the Tribal Court. Prior experience as a judge or in litigation shall be preferred.
(c)
The chief judge may appoint a judge pro tempore of the Nez Perce Tribal Court as
necessary. A judge pro tempore shall meet the minimum requirements of an appointed associate
judge with tribal court experience preferred. (Amended by NPTEC 12/26/12)
(d)
No person having been convicted of a crime shall be eligible to be chief judge or
associate judge of the Tribal Court.
§1-1-17
(a)
Judges' Duties and Powers
The chief judge shall have general supervisory powers over the Tribal Court.
(b)
The chief judge may assign an associate judge or a judge pro tempore to hear and
adjudge a particular case. A judge designated by the chief judge shall hear and determine each
matter filed in the Nez Perce Tribal Court. If the chief judge is a party to any case before the
Tribal Court or Court of Appeals, the most senior associate judge shall appoint a judge pro
tempore to hear and adjudge that case.
(c)
The chief judge shall be responsible for administration of the courts, shall assign
cases, and insure management of the Court's calendar and business. The chief judge may
designate an associate judge to act in his absence.
(addition of subsection (d) and (e) adopted by NPTEC 5/28-29/02)
(d)
The chief judge shall prescribe all necessary rules concerning:
Administration of Tribal Court - 6
(1)
The application process for the selection of Tribal Court of Appeals
justices.
(2)
Training of Tribal Court judges, Tribal Court of Appeals justices, and
court clerks.
(3)
The operation of the Tribal Court, subject to the rules being in compliance
with NPTEC-approved administrative policies and procedures for the
Court’s operation. (amended by NPTEC 1/12/16)
(4)
The operation of the Tribal Court of Appeals.
The rules shall be approved by the Nez Perce Tribal Executive Committee prior to
becoming effective and shall be consistent with the provisions of this Code.
(e)
On an annual basis, the chief judge with the assistance of the associate judges
shall submit a report to the Nez Perce Tribe Office of Legal Counsel of recommended
amendments to the Nez Perce Tribal Code, which are deemed necessary for the efficient function
of the Tribal Court, the Tribal Court of Appeals, and the exercise of justice.
§1-1-18
Removal of Judges or Justices for Cause (section amended by NPTEC action 5/28-29/02)
(a)
In order to remove a judge of the Tribal Court or a justice of the Court of Appeals
for cause, a written complaint recommending such removal for cause shall be prepared by the
Nez Perce Tribal Executive Committee Office of Legal Counsel at the direction of the Nez Perce
Tribal Executive Committee Chairman. Such complaint shall set forth with specificity the facts
constituting the basis for such removal. Copies of such complaint shall be delivered to the
accused judge or justice, the Nez Perce Tribal Executive Committee, and the Law and Order
Subcommittee.
(b)
Sufficient cause for such action shall include any of the following:
(1)
use of intoxicants or illegal drugs while on duty or to the extent that the
person’s capacity to perform duties of the position are impaired;
(2)
behavior reflecting adversely on the position of the judge or justice of the
Nez Perce Tribe, or subject to sanction by the licensing authority of the
State in which the judge or justice is licensed to practice law or
constituting a violation of the Code of Judicial Conduct approved by the
American Bar Association;
(3)
conviction of any offense other than minor traffic violations;
(4)
desertion of office;
(5)
blatant and repeated violations of the civil rights of persons appearing
before the Tribal Court or Court of Appeals; or
(6)
a pattern of undignified and/or discourteous conduct towards litigants,
jurors, witnesses, lawyers and others with whom the judge deals in an
official capacity; (added by NPTEC 1/12/16)
Administration of Tribal Court - 7
(7)
failure to maintain licensure in good standing with a state bar; or (added by
NPTEC 1/12/16)
(8)
the judge or justice fails to comply with his oath of office and duties.
(c)
The complaint shall be investigated by an independent investigator hired by the
tribe who shall report his findings and recommendations within ten (10) business days to
NPTEC.
(d)
A hearing shall be held by NPTEC within ten (10) business days after its receipt
of the report from the Office of Legal Counsel and after due notice to the judge or justice
involved. At the hearing, the accused judge or justice shall be provided the opportunity to hear
and answer all charges made against him, and to present evidence in his defense. Removal can
occur only with a majority vote by the members of NPTEC. An action taken by NPTEC to
remove a judge or justice is final and not subject to any appeal.
(e)
The court clerk shall report any removal for cause under this section to the state
bar or bars of which the removed judge or justice is a member.
(f)
The chief judge shall periodically review the qualifications of all judges and
justices to ensure that continue to be qualified to continue in their duties.
(1)
§1-1-19
If the chief judge determines that a judge or a justice is no longer qualified
to serve as judge or justice, the chief judge shall provide a written report
setting forth with specificity the reasons to NPTEC.
Disqualification or Incapacity
(a)
A judge shall disqualify himself from acting in any judicial proceeding in which
he has any direct interest or when any party in the proceeding is a relative by marriage or blood
in the first or second degree. A judge may otherwise disqualify himself when he believes he is
unable to be an impartial fact finder in any case.
(b)
Disqualification of a judge may be petitioned for by any party to a proceeding by
filing a motion setting forth with specificity the reasons for the disqualification. The judge shall
refer such a petition to another judge for decision. Such a motion shall only be granted when an
actual basis exists that indicates that actual conflict or bias exists so as the judge will be unable to
be impartial in a case. (amended by NPTEC action 5/28-29/02)
(1)
If such a motion to disqualify is denied, the case shall be heard by the
original judge in question.
(c)
In case of death, illness, incapacity or removal of an associate or pro tempore
judge during the course of a trial, the chief judge shall order a new trial and designate another
judge to preside.
§1-1-20
Nez Perce Court of Appeals (amendments to section approved by NPTEC 5/28-29/02)
(a)
The Nez Perce Tribal Court of Appeals is hereby established and granted
jurisdiction to hear and determine all appeals from the Nez Perce Tribal Court. Unless otherwise
prohibited by this Code or other regulations, ordinances, or resolutions, a party aggrieved by a
Administration of Tribal Court - 8
final judgment or order of the Tribal Court shall be entitled to appeal to the Nez Perce Court of
Appeals. The Appeals Court shall:
(1)
consist of three (3) justices who have not participated in the case being
appealed and are selected randomly by the chief judge. If the decision
being appealed is that of the chief judge, an associate judge shall randomly
select the justices;
(2)
hear an appealed case and other motions via telephonic or video hearing;
(A)
A party may move in a timely fashion to have an appealed case or
other motion heard at the location of the Nez Perce Tribe Court by
demonstrating a compelling reason why such a request is necessary
to prevent prejudice to the movant. Any hearing on such a motion
shall be via telephone or video conference.
(3)
delegate a presiding justice to be chosen by the three (3) justice panel;
(4)
rule on all properly filed motions filed during the pendency of an appeal
no later than two (2) weeks before a scheduled hearing on the merits of the
appeal; and
(5)
issue written appellate opinions within three (3) months of the appeals
hearing that comply with NPTC § 2-9-8.
(b)
Any person who has attained the age of twenty-five years, has graduated from an
accredited law school, is a member in good standing of the bar of any state, and has at least three
years of legal experience shall be eligible to serve as a justice for the Nez Perce Court of
Appeals.
(c)
The chief judge shall nominate all candidates to serve as justices to the Nez Perce
Tribal Executive Committee for confirmation and approval.
(d)
Justices of the Nez Perce Court of Appeals are subject to removal for cause as
provided in NPTC § 1-1-18.
(e)
A justice shall disqualify himself from acting in any judicial proceeding in which
he has any direct interest or when any party in the proceeding is a relative by marriage or blood
in the first or second degree. A justice may otherwise disqualify himself when he believes he is
unable to be unbiased in any case.
(1)
Any party may move to disqualify a justice by setting forth with
specificity the reasons for the disqualification. Such a motion shall only
be granted when evidence of an actual conflict or bias exists.
(2)
A motion to disqualify a justice shall be referred to the Chief Judge of the
Tribal Court, who shall only hear the issue of disqualification.
(f)
In case of death, illness, incapacity or removal of a justice, the Chief Judge shall
designate another justice to preside and may grant other necessary relief as necessary to avoid
prejudice to a party.
Administration of Tribal Court - 9
§1-1-21
Court Clerks
(a)
The court clerk and any deputy clerks shall be appointed in accordance with tribal
policies and procedures.
(b)
§1-1-22
The court clerk and any deputy clerks shall:
(1)
be twenty-one (21) years of age or older and of good moral character;
(2)
have never been convicted of a felony or of a misdemeanor within the year
prior to appointment;
(3)
have demonstrated competence in the skills essential to the preparation
and maintenance of court records, including word processing and
(4)
computer docketing skills, filing skills and basic understanding of court
procedure;
(5)
have obtained a high school diploma or equivalent experience;
(6)
be bondable; and
(7)
be a notary public or become a notary public within six (6) months
following hiring.
Duties of the Court Clerk
The court clerk and any deputy clerks shall:
(a)
supervise the receipt and maintenance of all court records, files and dockets;
(b)
keep a record of all proceedings of the Court;
(c)
administer oaths and affirmations;
(d)
collect and account for all fines, bail or bond money, fees or other funds which
come to the Court, issue receipts and promptly deliver such funds to the finance department;
(e)
assist the Court in the preparation and issuance of documents at the direction of
any tribal court judge; and
(f)
§1-1-23
perform other functions as directed by the chief judge.
Indian Child Welfare Worker
NPTEC shall appoint an Indian child welfare worker to carry out the duties and
responsibilities set forth in this code and to perform such other duties in connection with the care
or custody of children as the Court may require.
§1-1-24
Case Worker
A case worker shall be a case worker or social worker employed by or authorized to act
on behalf of the tribe to carry out the duties and responsibilities set forth in this code and to
Administration of Tribal Court - 10
perform such other duties in connection with the welfare of individuals as the Court may require.
§1-1-25
Court Rules
The Nez Perce Tribal Court and all courts established under this chapter may from time
to time prescribe rules for the conduct of court business. Such rules shall be consistent with and
supplement the NPTEC-approved policies and procedures, manuals, handbooks, etc., for the
operation of the Tribal Court as well as the rules of procedure and other provisions of this code.
Copies of such rules shall be made available for public inspection and copying. (amended by NPTEC
1/12/16)
JURORS
§1-1-26
Selection of Jury Panel
In January of each year, the court clerk shall select at least fifty (50) names from the list
of eligible jurors and each shall be notified of his or her selection. This selected list shall
comprise the trial jury list for the ensuing year from which jury panels shall be selected from
time to time. A jury panel shall consist of not less than eighteen (18) names. The selection from
the list of eligible jurors shall be by lot or some other means of random impartial selection.
§1-1-27
Time and Manner of Notification
Those persons who are selected to serve on a jury panel shall be notified at a reasonable
time prior to the trial date and the notice shall state the date, time and place they are to report for
jury duty. Written notice shall be mailed or delivered to the prospective juror in person and
proof of service filed.
§1-1-28
(a)
(b)
Excusing or Postponing Jury Duty (Amended by NPTEC 7/8/14)
The following persons are exempt from jury duty:
(1)
Nez Tribal Executive Committee (NPTEC) Members - tribal members
who are actively sitting as NPTEC members shall be exempt from jury
service.
(2)
Members of police departments.
In addition, the judge may excuse the prospective jurors as described below:
(1)
A person who is sixty-five (65) years of age or older excused if the person
indicates that he or she wishes to be excused. This excusal shall be
permanent.
(2)
Anyone who is incapable, by reason of mental or physical infirmity, of
rendering satisfactory jury service.
(c)
The judge may determine that the person requesting to be excused, may instead
have their jury service postponed.
§1-1-29
List of Eligible Jurors
Administration of Tribal Court - 11
(a)
annually.
The court clerk shall be responsible for developing a list of eligible jurors
(b)
The jury list shall be drawn from the names of all tribal members residing within
the 1855 reservation boundaries who are eighteen (18) years or older and any tribal employee
eighteen (18) years or older.
§1-1-30
Compensation of Jurors
Each juror who is called and reports for jury duty or who serves on a jury shall be entitled
to receive such fees for daily service and/or mileage if any, as established by court rule.
§1-1-31
Number of Jurors
(a)
A jury shall consist of six (6) persons seated by the judge selected from the jury
list. The Court may allow one or two additional jurors to be chosen as alternate jurors. In the
event an alternate juror is chosen he shall be treated as a regular juror in all respects unless
dismissed by direction of the Court prior to the jury's deliberation.
(b)
§1-1-32
When the jury has been seated, the jurors' oath shall be administered by the judge.
Verdict of Jury
The verdict of the jury may be rendered by a majority vote of four (4) jurors in a civil
case but must be unanimous in a criminal case. In the event the jury shall be unable to agree
upon a verdict within a reasonable period of time and shall declare to the Court that they are
hopelessly deadlocked, the Court shall declare a mistrial and discharge the jury. In the event a
mistrial is declared and the jury discharged, the case shall be set for a new trial before a different
jury as soon as practicable unless the prosecution should move the Court for dismissal of the
case, and such motion is granted by the Court.
§1-1-33
Jurors' Responsibilities
The Court may order the jury to view the premises where the offense or other material
facts occurred. The Court may order the discharge of a juror who becomes sick or is otherwise
unable to perform his duty and substitute an alternate juror. In the absence of an alternate and
the failure of the parties to stipulate to continue the trial with five (5) or less jurors, the jury shall
be discharged, and a new jury shall be formed to hear the case.
§1-1-34
Examination of Jurors
(a)
Prior to voir dire examination by the attorneys of the parties, the Court may
conduct a preliminary examination of all prospective jurors. Following examination of the jury
by the Court, if any, the plaintiff and defense, in that order, shall have the opportunity to ask
questions of the prospective jurors to determine if there is any reason why a particular candidate
for the jury should not be seated as a juror.
(b)
Either party may challenge any prospective juror for cause based upon bias or
inability to sit as a fair and impartial juror. The Court shall make all final determinations of law
and fact on any challenges for cause. The number of challenges for cause by either party is
unlimited.
Administration of Tribal Court - 12
(c)
A person is unable to sit as a fair and impartial juror under this section if he:
(1)
is not a tribal member residing on or near the Nez Perce Reservation or an
employee of the tribe, and eighteen (18) years of age;
(2)
is incapable, by reason of physical or mental disability of rendering
satisfactory jury service;
(3)
is unable to read, speak and understand the English language; and
(4)
has lost his right to vote because of a criminal conviction.
(d)
A person is biased under this section if he has a state of mind in reference to the
case, or to either of the parties which in the exercise of a sound discretion on the part of the
Court, leads to the inference that he will not act with entire impartiality.
(e)
When both sides have completed their voir dire questioning of the prospective
jurors and alternates, each side shall exercise its preemptory challenges. Each party shall have
four (4) peremptory challenges with which they may disqualify any prospective juror and need
not state any reason for so doing.
§1-1-35
Oath to Trial Jury
After the six (6) members of the jury and the alternate, if applicable, have been selected
and seated, the Court shall administer an oath by which the jury swears or affirms that it will act
fairly and impartially in the trial it will hear.
ATTORNEYS; LEGAL INTERNS
§1-1-36
Attorneys – Admission
(a)
Any person appearing as a party in any civil, criminal or juvenile action shall
have the right to be represented by an attorney of his own choice at his own expense.
(b)
Any attorney who is licensed to practice in any state or the District of Columbia is
eligible to be admitted to practice before the courts of the Nez Perce Tribe.
(c)
To practice before the courts of the Nez Perce Tribe, an attorney must certify:
(amended by NPTEC 1/12/16)
(1)
that he is eligible to be admitted to the Court;
(2)
that he will abide by the rules of the courts of the Nez Perce Tribe and any
orders issued by such courts; and
(3)
that he has never in the past been convicted of any crime.
(d)
Upon receipt of an application for admission to practice before the courts of the
Nez Perce Tribe, the chief judge shall review the application and may investigate into the truth of
the matters contained therein. If satisfied that the applicant meets the qualifications set forth
herein, the chief judge shall notify the attorney that he has been admitted to practice.
Administration of Tribal Court - 13
(e)
The chief judge shall require any attorney admitted to practice before the courts of
the Nez Perce Tribe to take the following oath either orally or in writing:
"I do solemnly swear (or affirm) that I will support the Constitution and laws of
the United States and support and defend the Nez Perce treaties, constitution and
laws of the Nez Perce Tribe, and that I will maintain proper respect for the courts
and judicial officers of the Nez Perce Tribe."
(f)
An attorney may appear in person to take the oath prescribed herein or may
subscribe his signature to the oath and forward it to the chief judge. Upon administering the
oath, the Court shall issue a certificate of admission to practice before the courts of the Nez Perce
Tribe.
(g)
All persons employed as attorneys in the Law and Justice Department shall be
required to complete and provide to the Law and Order Executive Officer evidence of
completion of 30 hours of state-bar approved Continuing Legal Education (CLE) training every
three years, including no less than 10 hours of state-bar approved CLE training in subject matter
relevant to the practice of law before a tribal court, and no less than 3 hours of ethics training as
a minimum for continuing their positions. (added by NPTEC 1/12/16)
§1-1-37
Attorneys – Suspension
(a)
The chief judge may suspend or disbar any attorney from practice before the
courts of the Nez Perce Tribe after due notice and a hearing if such attorney shall be found guilty
of the following:
(1)
a violation of his oath to the Court;
(2)
suspension or disbarment from practice before any state, federal or tribal
court;
(3)
a violation of the rules of professional conduct of any state bar to which he
is a member; and
(4)
the conviction of a felony. (amended by NPTEC 2/14/17)
(b)
All suspensions and disbarments from practicing before the Nez Perce Tribal
Court shall be for a period as determined by the judge.
(c)
The court clerk shall report all suspensions and disbarments from the Tribal Court
to the licensing authority of each jurisdiction in which the affected attorney is licensed.
(d)
Any attorney who has been suspended from the Nez Perce Tribal Court may
appeal to the Nez Perce Tribal Court of Appeals.
§1-1-38
Attorneys - Annual Fees
As a condition of admittance to practice before the courts of the Nez Perce Tribe, an
attorney shall pay a fee of $50.00 unless waived by the tribal court chief judge. On February 1st
of each year thereafter, the attorney shall pay to the Court $50.00 as an annual fee. Any attorney
failing to pay such annual fee by February 1 of each year shall forfeit the right to practice before
the courts of the Nez Perce Tribe until formally readmitted. The Chief Court Clerk/designee shall
Administration of Tribal Court - 14
keep timely and accurate records of attorneys admitted to practice in the Court and shall remove
all attorneys from the admittance list who have not paid annual fees as required herein by
February 1 of each year and notify the attorney in writing of his or her removal from the
admittance list. (amended by NPTEC 1/12/16)
§1-1-39
Attorneys – Pro Hac Vice
A judge of a court of the Nez Perce Tribe may waive the formal admission procedure and
payment of the annual fee as required herein only on motion of an attorney making an
appearance for the limited purpose of a single, specific case, and only if such attorney is
associated in such case with an attorney who is formally admitted to practice before the courts of
the Nez Perce Tribe. Any attorney wishing to appear in Tribal Court under this section shall
submit a $50.00 filing fee with the motion provided above.
§1-1-40
Court Bar Roster
The clerk of the Court of the Nez Perce Tribe shall maintain a roster of all attorneys
admitted to the Tribal Court.
§1-1-41
Legal Interns
Any person who has obtained a legal intern license under the Idaho State Bar
Commission Rules shall be eligible to practice in the Nez Perce Tribal Court provided the
supervisory attorney of any such person is eligible to practice before the Court. A legal intern
admitted to practice before the Tribal Court under this section shall be considered an attorney
while engaged in such practice and for the purposes of this code.
§1-1-42
Law and Order Executive Officer, Nez Perce Tribal Prosecutor, Deputy
Prosecutor, and Public Defender, Conflict Prosecutor and Public Defender,
Child Support Enforcement Attorney-Appointment and Duties (section amended
by NPTEC 1/12/16)
(a)
Prior to the beginning work for the Tribe, the following positions must be
appointed by resolution of Nez Perce Tribal Executive Committee:
(1)
the Law and Order Executive Officer (LOEO) to oversee the Law and
Justice Department (Department). The LOEO shall directly supervise the
Chief Judge, Tribal Prosecutor and Tribal Public Defender, conflict
Prosecutor(s) and Public Defender(s) and other program managers in the
Department in regards to administrative matters, and have the authority to
develop comprehensive written policies and procedures which must be
approved by the NPTEC, as well as other documents such as written
guidelines to assure the integrity, fairness, consistency, independence,
timeliness and transparency of all entities within the Law and Justice
Department. The LOEO shall be law-trained and possess a license to
practice law from any state.
(2)
the Prosecutor and Deputy Prosecutor(s) for the Nez Perce Tribe to pursue
criminal prosecutions and other matters on behalf of the Nez Perce Tribe.
The Prosecutor and any Deputy Prosecutor(s) shall be law trained and
possess a license to practice law from any state.
Administration of Tribal Court - 15
(3)
the Public Defender and Deputy Public Defender(s) for the Nez Perce
Tribe to provide free public defense services to eligible criminal
defendants in the Nez Perce Tribal Court. The Public Defender and any
Deputy Public Defender(s) shall be law trained and possess a license to
practice law in from any state.
(4)
Conflict Public Defender(s) and Conflict Prosecutor(s), who shall be lawtrained and possess a license to practice law in any state. These attorneys
may represent either the Nez Perce Tribe or eligible criminal defendants in
the Nez Perce Tribal Court when a conflict of interest exists for both the
Prosecutor and the Deputy Prosecutor, or for both the Public Defender and
the Deputy Public Defender, in a case before the Nez Perce Tribal Court.
Prior to appointment in any case, conflict counsel must be under a contract
approved by resolution of the NPTEC.
(5)
a Child Support Enforcement attorney(s) who shall be law-trained and
possess a license to practice law in any state to assist in the enforcement of
laws pertaining to the Tribe’s Child Support Enforcement Program.
(b)
No such attorney shall be appointed unless the appointee is admitted to practice
before the Court as provided herein.
(c)
The Prosecutor and Public Defender and any conflict Prosecutor(s) or Public
Defender(s) shall be under the supervision of the Law and Order Executive Officer, the Deputy
Prosecutor and the Child Support Enforcement Attorney shall be under the supervision of the
Prosecutor, and the Deputy Public Defender shall be under the direct supervision of the Public
Defender. Decisions regarding which cases will be charged and the manner in which
prosecution is conducted will be made at the discretion of the Prosecutor/conflict Prosecutor.
Decisions regarding the manner in which a defense is to be conducted will be made at the
discretion of the Public Defender/conflict Public Defender.
(d)
The Prosecutor/Deputy Prosecutor is authorized to represent the tribe in the
prosecution of all civil infractions, criminal prosecutions, and juvenile matters. The Prosecutor
shall make all final decisions on the submission of complaints or other legal action to be taken in
the prosecution of cases.
(e)
The Public Defender is authorized to represent adult and juvenile tribal members
charged with a crime or crimes in the Tribal Court and civil matters before the Court, under the
Nez Perce Tribal Code, so long as the opposing parties in a civil matter are not both Nez Perce
tribal members. The Public Defender may also represent other eligible defendants in Tribal
Court in cases where the Nez Perce Tribe has jurisdiction over that defendant. The Public
Defender shall zealously represent his or her clients as required by the rules of professional
conduct in the jurisdiction in which he/she is licensed to practice law.
CONTEMPT
§1-1-43
Acts or Failures to Act Which Constitute Contempt of Court
Any person may be held in contempt of court for any of the following reasons:
(a)
disorderly or contemptuous or insolent behavior, committed in immediate view
and presence of any tribal court which interrupts its proceedings;
Administration of Tribal Court - 16
(b)
any breach of the peace, noise or other disturbance which interrupts the
proceedings of the Court;
(c)
disobedience or resistance to any process, judgment, summons or order lawfully
issued by the Court;
(d)
misbehavior in office, or other willful neglect or violation of duty as an attorney
or a clerk, court administrator, police officer or other person appointed, elected, or hired to
perform a representative, judicial or ministerial service in connection with the operation of the
Court;
(e)
proceeding;
deceit or abuse of process of the Court by a party or attorney to a judicial
(f)
authority;
acting as an attorney, officer, spokesman or official of the Court without
(g)
refusing to be sworn or answer as a witness; and
(h)
any other interference with the process, proceedings, or dignity of the Court or a
judge of the Court while in the performance of his official duties.
§1-1-44
Civil Contempt
(a)
A civil contempt consists of the omission or refusal to perform an act that is yet in
the person's power to perform, or a past act which violates a Tribal Court rule or the authority of
the Court.
(b)
§1-1-45
Relief in a civil contempt proceeding may include:
(1)
a fine payable to the Court; or
(2)
the imposition of a fine or imprisonment for the purpose of coercing
performance. Such fine or imprisonment shall remain in effect for so long
as the party in contempt has the ability to comply with the Court order or
directive.
Criminal Contempt
(a)
Criminal contempt is a past act which knowingly or willfully violates a Tribal
Court rule or the authority of the Court.
(b)
Criminal contempt is an offense which may be punishable by a fine or
imprisonment.
§1-1-46
Contempt Procedure
(a)
A direct contempt is one committed in the presence of the Court or so near thereto
as to be disruptive of the Court proceedings, and as such may be adjudged and punished
summarily.
Administration of Tribal Court - 17
(b)
All other contempts shall be determined at an outside hearing. Notice of the
hearing shall be given orally by the judge in open court in the presence of the defendant, upon
the filing of a complaint by the prosecutor, by an order to show cause or the issuance of an arrest
warrant. The notice shall state:
(c)
(1)
the time and place for the contempt hearing, allowing a reasonable time
for the preparation of the defense;
(2)
the exact contempt charges and the essential facts constituting such
charges;
(3)
whether the contempt proceedings are civil or criminal as provided by this
chapter; and
(4)
the sanctions which may be imposed against the defendant.
In proceedings involving other than direct contempt cases:
(1)
the defendant in a criminal contempt proceedings shall have the right to a
jury trial in any case where the punishment to be imposed may exceed six
(6) months;
(2)
if the charge involved disrespect to or criticism of a judge, such judge is
disqualified from presiding at the trial or hearing except with the
defendant’s consent.
SOVEREIGN IMMUNITY
§1-1-47
Sovereign Immunity (addition authorized 10/9/01)
(a)
Except when explicitly and unequivocally provided in this Code or specifically
waived by a resolution of the Nez Perce Tribal Executive Committee specifically referring to
such a waiver, the Nez Perce Tribe shall be immune from suit in any civil action, and its officers
and employees immune from suit for any liability arising from the performance of their official
duties.
(b)
Any waiver of sovereign immunity shall be narrowly construed and any
ambiguities in any waiver of sovereign immunity shall be construed in favor of the Nez Perce
Tribe.
CHOICE OF LAW (section added by NPTEC 12/24/02)
§1-1-48
Choice of Law
(a)
When choosing what law applies, the Tribal Court and Tribal Court of Appeals
shall apply the law of the Tribe except to the extent that federal law governs. In construing and
applying the Nez Perce Tribal Code or other tribal regulations, ordinances, or resolutions, the
Tribal Court and Tribal Court of Appeals shall consider Nez Perce Tribal Code or other tribal
regulations, ordinances, or resolutions first and secondly, tribal case law.
(b)
To the extent no law of the Tribe is applicable, the Tribal Court and Tribal Court
of Appeals shall consider and, if appropriate, apply customs and traditions of the Tribe as they
are relevant to the controversy.
Administration of Tribal Court - 18
(c)
The Tribal Court and Tribal Court of Appeals may consider other tribal and
federal laws and procedures as persuasive authority in ruling on questions of procedure and case
law of other tribal and federal courts as persuasive authority in ruling on questions of substance.
In the absence of any persuasive tribal or federal authority, the Tribal Court and Tribal Court of
Appeals may look to the statutes or case law of the states for guidance.
Administration of Tribal Court - 19
CHAPTER 1-2
SMALL CLAIMS
§1-2-1
Scope and Purpose
(a)
The purpose of this chapter is to provide an alternative means of resolving
disputes for the parties to appropriate civil lawsuits. Specifically, this chapter will allow
individuals to save time and costs by reaching early resolution of cases in an informal setting
without sacrificing the quality of justice.
(b)
This chapter shall apply only to claims for money damages of $3,500 or less
including interest or property disputes in which the property involved is valued at $3,500 or less.
No appeal shall be available from the judge’s decision under this chapter and the losing party
shall be responsible for the payment of court costs.
§1-2-2
Procedure
(a)
A party may petition the Tribal Court for a hearing under this chapter or, at any
time prior to trial, request that rather than continue with formal litigation proceedings the matter
be submitted to small claims proceedings.
(b)
A request or petition for small claims proceedings shall be submitted to the Tribal
Court in writing, signed by the party submitting the request or petition and shall include:
(1)
the names and addresses of the person(s) requesting the proceedings;
(2)
the names and addresses of any other person(s) involved in the dispute that
could contribute to resolution of the matter; and
(3)
a short statement of the problem involved and the reason the proceedings
are requested.
(c)
If formal litigation proceedings have already been instigated and based upon the
best interest of all parties involved and whether significant and complex issues of law exist, the
judge, prior to the date set for trial:
§1-2-3
(1)
shall grant or deny a request for small claims proceedings; and
(2)
may transfer an eligible case to small claims proceedings regardless of
whether a request has been submitted.
Mediation and Hearings (amendment to section adopted by NPTEC 5/28-29/02)
(a)
Upon petition to the Court, all small claims proceedings are subject to mandatory
court-ordered mediation established pursuant to NPTC Chapter 1-3 prior to any hearing.
(b)
If no agreement is reached through mediation, the Mediator shall file a written
report signed by the parties with the Court stating that the parties were unable to reach an
agreement and the clerk shall set a date for a small claims hearing within twenty (20) business
days after the Mediator contacts the court. The date for hearing shall not be changed except for
extreme and unanticipated emergencies as established in writing and approved by the judge
assigned to the case. The Court shall issue a notice of the petition or request for transfer which
shall be served upon the other party in the manner provided by the Rules of Civil Procedure.
Small Claims - 1
(c)
At least ten (10) business days prior to the hearing, each party shall submit a
detailed summary of his position together with copies of all documents including medical
reports, bills, records, photographs and any other materials supporting the party's claim to the
opposing party by certified mail and the clerk of the Court.
(d)
Each individual party shall attend the hearing in person. Corporations,
governmental bodies, or other entities shall be represented at the hearing by an officer or other
person. Attorneys shall be barred from participating in any small claims proceedings. During
the hearing, the parties may call and subpoena witnesses and present evidence on their behalf.
Following the hearing, the Court shall decide the matter in dispute and issue a judgment.
Small Claims - 2
CHAPTER 1-3
ALTERNATIVE DISPUTE RESOLUTION
(amendments to chapter adopted by NPTEC 5/28-29/02)
§1-3-1
Scope and Purpose
The purpose of this chapter is to provide an alternative means of resolving disputes for
the parties to certain civil lawsuits. Specifically, this chapter will allow individuals to save time
and costs by reaching early resolution of cases in an informal setting without sacrificing the
quality of justice. Mediation is a process by which a neutral mediator appointed by the court or
agreed to by the parties in reaching a mutually acceptable agreement. The role of the mediator is
to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities,
exploring areas of compromise, and finding points of agreement. The decision made is that of
the parties, not of the mediator. No appeal shall be available from an agreement reached by the
parties under this chapter.
§1-3-2
Matters Subject to Mediation
(a)
All small claims cases defined in NPTC Chapter 1-2 are subject to mandatory
court-ordered mediation prior to trial.
(b)
All civil domestic relations matters involving a controversy over custody or
visitation of minor children are subject to mediation by agreement of the parties prior to trial.
(c)
The Court has the discretion to order mediation in other civil cases prior to trial
where the Court believes such mediation is in the best interests of all the parties and is not
otherwise inappropriate under the facts of the particular case.
(d)
The parties to any civil action may petition the Tribal Court for mediation at any
time prior to trial.
(e)
Matters involving housing or gaming disputes, employment termination, domestic
relations matters where domestic violence is alleged, and any dispute where there is a risk of
severe prejudice to a party from delay are exempt from this Chapter.
§1-3-3
Application
(a)
The parties to a civil action who have petitioned the Court for mediation shall
submit their request to the Tribal Court in writing, signed by all parties to the dispute including:
(b)
(1)
the names and addresses of the parties;
(2)
the names and addresses of any other persons involved in the dispute who
may contribute to resolution of the matter; and
(3)
a short statement of the problem involved, and the reason mediation is
requested.
The judge:
(1)
shall grant or deny a request for mediation;
Alternative Dispute Resolution - 1
(2)
may refer an eligible case to mediation regardless of whether a request has
been submitted; or
(3)
once mediation is granted or otherwise imposed, shall stay the proceedings
in the litigation unless the parties agree to lift the stay.
(c)
Any action may be exempt or withdrawn from mediation by the presiding judge at
any time upon a determination that, for any reason, the case is not suitable for mediation.
§1-3-4
Certification and Compensation of Mediators
(a)
The chief judge shall compile a list to be maintained by the clerk of court of
persons certified as mediators. An individual may be certified as a mediator if he:
(1)
is determined by the chief judge to be qualified and competent to perform
the duties of a mediator based on experience and official training;
(2)
has read and understands this Code and all applicable ethical standards;
(3)
takes the following oath either orally or in writing:
"I do solemnly swear (or affirm) that I will support the Constitution and laws of
the United States and support and defend the Nez Perce Treaties, Constitution and laws
of the Nez Perce Tribe, and that I will maintain proper respect for the Courts and Judicial
Officers of the Nez Perce Tribe."
(b)
The chief judge may require additional training of certified mediators if deemed
necessary and appropriate.
(c)
Mediators shall be paid a fee of $10.00 per day and shall be reimbursed for
expenses reasonably incurred. At the time when the mediator files his report, or when a case is
withdrawn from mediation, the mediator shall submit a voucher on the form prescribed by the
clerk for payment of compensation and reasonable expenses necessarily incurred in the
performance of his duties. In determining whether actual expenses incurred are reasonable, the
mediator shall be guided by the limitations placed upon travel and subsistence expenses of tribal
employees in accordance with tribal policy and procedures. All mediator costs shall be borne by
the parties. Where the court orders mediation, the party’s filing fee shall be applied to the costs
of the mediator.
§1-3-5
Selection of Mediator for Individual Cases
A certified mediator may be chosen to mediate a dispute by written agreement of the
parties. If the parties do not select a mediator, one shall be appointed by the chief judge.
§1-3-6
Disqualification
(a)
A mediator shall be disqualified to preside at mediation if he:
(1)
violates the Canons of Judicial Ethics which apply to Nez Perce tribal
judges under this code;
(2)
has a personal or financial interest or is a close relation to a party.
Alternative Dispute Resolution - 2
(b)
Any person whose name appears on the roster maintained in the clerk's office may
ask at any time to have his name removed or, if selected to serve, decline to serve, but remain on
the roster.
(c)
Complaints regarding mediators shall be made to the chief judge in writing and
shall be treated as any complaint against a judge of the Nez Perce Tribe.
§1-3-7
Hearings
(a)
The mediator shall contact the parties to schedule an initial meeting within twenty
(20) business days after the case is referred to mediation.
(b)
At least ten (10) business days prior to the meeting, each party shall submit a
detailed summary of his position together with copies of all documents including, bills, records,
photographs and any other materials supporting the party's claim to the mediator and the
opposing party by means of certified mail.
(c)
Each individual party shall attend the meeting in person. Corporations,
governmental bodies, or other entities shall be represented at the hearing by an officer or other
person with complete settlement authority. Attorneys shall be barred from participating in any
mediation proceedings except to assist their clients in filing complaints against mediators or
petitions for protective orders.
(d)
The parties may upon obtaining the advance consent of the mediator, bring with
them such other persons, not including their attorney, as will tend to further the resolution of the
issues of the case.
(e)
The conduct of the meeting shall be within the discretion of the mediator. The
mediator shall define and describe the process of the mediation, confidentiality, the duties and
requirements of the mediator and the parties, the fact that any agreement reached will be reached
by mutual consent of the parties, and the ability of the parties to seek advice of counsel. The
mediator shall objectively listen to the positions of the parties and assist the parties in reaching a
settlement of all or some of the issues of the case.
(f)
Mediator meetings may be held at the Tribal Court or other room in a tribally
owned building made available to the mediator by the clerk's office. When no such room is
available, the meeting shall be held at any other suitable location selected by the mediator. In
making the selection, the mediator shall consider the convenience of the parties.
(g)
(omitted in original by error)
(h)
The mediator shall be authorized to establish reasonable rules and issue orders
necessary to make the meeting productive and may with the agreement of the parties, hold
additional meetings to attempt resolution of the issues.
§1-3-8
Petition to Terminate Mediation
Any party in a mediation proceeding may petition the Court in writing for an order to
terminate the mediation process. Upon receipt of the petition, the Court shall grant the request
and issue an order lifting the stay of proceedings in the litigation.
§1-3-9
Judgments
Alternative Dispute Resolution - 3
(a)
If an agreement is reached during the mediation, the mediator shall file a report
with the clerk's office not more than five (5) business days following the date of the agreement.
The clerk shall serve copies of the report filed on the parties.
(b)
The mediators report shall be in writing, signed by the mediator and shall include:
(1)
the names and addresses of each party;
(2)
a statement that the parties have agreed to a particular resolution to a
disputed issue, if such is the case;
(3)
a statement that all parties agreed that the mediator would decide on a
disputed issue, if such is the case;
(4)
a general description of the dispute;
(5)
the final resolution of any disputed issues.
(c)
A copy of any agreement between the parties shall be signed by the parties and
appended to the mediator's report.
(d)
Promptly upon the filing of the mediator's report and the parties' agreement with
the clerk, the Court shall review the documents and enter judgment thereon if the Court finds the
agreement to be consistent with the laws of the Nez Perce Tribe and is satisfied that the parties
entered into the agreement knowingly and freely. The judgment shall have the same force and
effect as any judgment of the Tribal Court in a civil action.
Alternative Dispute Resolution - 4
CHAPTER 1-4
AMENDMENT OF CODE
(chapter amendments adopted effective 9/14/99)
§1-4-1
Definitions
(a)
"BIA-NIA" means the North Idaho Agency of the Bureau of Indian Affairs.
(b)
Committee.
"OLC" means the Office of Legal Counsel of the Nez Perce Tribal Executive
(c)
§1-4-2
"Subcommittee" means the Law and Order Subcommittee of the Nez Perce Tribe.
Amendment Process
(a)
A proposed amendment to the Nez Perce Tribal Code shall be in writing and
presented to the OLC. Any proposed amendment shall include:
(1)
the reason for the proposed amendment;
(2)
the specific action the proponent wishes the Nez Perce Tribal Executive
Committee (NPTEC) to take on the amendment; and
(3)
the code sections which would be amended (each numbered) or a
statement that the amendment would create new sections.
(b)
Upon receipt of the amendment, the OLC shall research the code and other
applicable laws to determine if conflicting provisions exist. Upon completion of this review, the
OLC shall submit the amendment to the subcommittee along with OLC comments including the
identification of any conflicting code provisions or other laws and any appropriate legislative
history.
(c)
Following receipt of the proposed amendment and comments from the OLC, the
subcommittee shall determine whether the amendment is meritorious. If so, at least fifteen (15)
business days prior to subcommittee action on the proposed amendment, it shall post in a
conspicuous location in Lapwai, Kamiah, and Orofino:
(1)
a statement of the purpose and effect of the intended action;
(2)
the text of the proposal;
(3)
those provisions of the code which would be repealed by the proposed
amendment, if any;
(4)
that written comments may be submitted over the next fifteen (15)
business days to the chairman of the subcommittee; and
(5)
that any comments submitted after the close of the fifteen (15) day
comment period will not be considered in subcommittee or NPTEC action
on the proposed amendment.
(d)
The subcommittee shall determine whether to hold a public hearing on the
amendment. Such determination may be based upon the potential controversy related to the
Amendment of Code - 1
proposal or whenever the subcommittee otherwise determines that additional public input would
be useful and constructive. If a hearing is to be held, the subcommittee shall post in a
conspicuous location in Lapwai, Kamiah and Orofino:
(1)
a statement of the purpose and effect of the intended action;
(2)
the text of the proposal;
(3)
those provisions of the code which would be repealed by the proposed
amendment, if any;
(4)
that on a specified date not sooner than fifteen (15) business days from the
time of posting, a hearing will take place at a specified location for the
purpose of taking public comment; and
(5)
that the comment period on the proposed amendment will be extended
until the end of the hearing.
(e)
The public comment provisions of this chapter shall not apply when the
subcommittee determines that a proposed amendment is an interpretive rule, general statement of
policy, or rule which addresses the internal management of the Nez Perce Tribe so long as such a
rule does not substantially affect the legal rights of, or procedures available to, the public or any
segment thereof.
(1)
No resolution is necessary to enact an amendment if the amendment is
made to correct a non-substantive clerical or typographical error. (NPTEC
authorized addition of section July 9, 2002).
(f)
After the end of the comment period, if any, the subcommittee shall work with the
OLC to produce an acceptable draft of the amendment by incorporating any comments
determined to be meritorious by the subcommittee and any subcommittee directives and
converting the proposed amendment into the appropriate code and resolution format.
(g)
Once an acceptable draft is produced, the subcommittee shall present it to NPTEC
along with a summary of written public comments, the public hearing record, if any, and its own
recommendations and/or comments related to the proposed amendment.
(h)
Following presentation of the amendment to NPTEC, it shall approve, reject or resubmit the amendment to the subcommittee with further instructions. NPTEC shall make the
final determination of any matter related to the amendment including whether public comment
must be provided or whether to hold a public hearing.
(i)
Following approval of an amendment by NPTEC, NPTEC staff shall present it to
the office of the superintendent of the BIA-NIA for review as provided in the Constitution and
By-Laws of the Nez Perce Tribe Art. VIII, Section 3.
(j)
Following the enactment of an amendment, NPTEC staff shall:
(1)
index it by both recording the resolution number and placing a copy of the
resolution in the annual indexes;
Amendment of Code - 2
(2)
post in a conspicuous location in Lapwai, Kamiah and Orofino a copy of
the final amendment. The amendment shall also be listed in the NPTEC
minutes mailed to tribal members.
(k)
Within twenty (20) business days following receipt of the adopted amendment
from NPTEC staff, the OLC shall submit pre-codification notices to a pre-determined list of
individuals who have copies of the code and have requested updates. Actual codification shall
be conducted annually, according to a schedule determined by the subcommittee.
§1-4-3
Emergencies
(a)
The regular amendment process shall not apply when NPTEC determines that
prompt action is necessary for the preservation of life, health, property, order or natural
resources. Emergency amendments may only be proposed by NPTEC, the NPTEC chairman or
the subcommittee and shall be submitted to the OLC.
(b)
The OLC shall research the code and other applicable law to determine if
conflicting provisions exist. Following OLC review, it shall present the amendment to the
subcommittee along with OLC comments, any conflicting code provisions, appropriate
legislative history and the rationale for an emergency amendment. If necessary, the NPTEC
chairman may direct that an emergency amendment be submitted directly to NPTEC without
subcommittee review.
(c)
Following presentation of the emergency amendment to the subcommittee, it shall
work with the OLC to produce an acceptable draft of the amendment by incorporating any
subcommittee directives and converting the proposed amendment into the appropriate code and
resolution format.
(d)
Once an acceptable draft is produced, the subcommittee shall present it to NPTEC
along with any recommendations and/or comments related to the proposed amendment.
Emergency amendments shall be reviewed by NPTEC following receipt of the amendment from
the subcommittee. If necessary, the NPTEC chairman may call a special NPTEC meeting for
this purpose. During such review, NPTEC shall adopt, reject or return the amendment to the
subcommittee with further modifications and/or instructions.
(e)
Following approval of an emergency amendment by NPTEC, NPTEC staff shall
present it to the office of the superintendent of the BIA-NIA for review as provided in the
Constitution and By-Laws of the Nez Perce Tribe Art. VIII, Section 3.
(f)
Following enactment of an emergency amendment, NPTEC staff shall:
(1)
index the amendment by both recording the resolution number and placing
a copy of the resolution in the annual indexes in a separate section
designated and labeled specifically for emergency amendments;
(2)
post in a conspicuous location in Lapwai, Orofino and Kamiah a copy of
the amendment. If possible, the amendment shall also be listed in the
NPTEC minutes mailed to tribal members. Posting of emergency
amendments shall clearly provide that such an amendment is an
emergency, include the rationale for the emergency rule.
Amendment of Code - 3
(g)
An emergency amendment shall be effective immediately for a period of not
longer than ninety (90) business days thereafter unless during that time it is enacted as a regular
amendment pursuant to this chapter.
§1-4-4
Time Line/Coordination
The time period from the initial submission of a proposed amendment to the OLC to
posting and indexing of an enacted amendment shall not exceed ninety (90) business days for
regularly adopted amendments and shall not exceed forty (40) business days for emergency
amendments. The chairman of the subcommittee shall ultimately be responsible for the
oversight, enforcement and coordination of the procedures under this chapter.
§1-4-5
Elimination of BIA Review
In the event the Constitution and By-Laws of the Nez Perce Tribe are amended to
eliminate BIA review and approval of amendments to the code, the provisions related to such
review and approval in this chapter are hereby repealed and all amendments shall be enacted
upon approval by NPTEC.
§1-4-6
Hearings
(a)
All available members of the subcommittee shall attend hearings scheduled for
the purpose of taking both oral and written public comment on proposed amendments.
(b)
The chairman of the subcommittee shall preside over the proceedings. During the
hearing the chairman shall:
(1)
call upon each individual in the order provided on the registration list to
present his testimony;
(2)
limit each speaker to the amount of time that the chairman determines is
appropriate and announced at the beginning of the proceedings;
(3)
direct questions presented to the speakers by members of the
subcommittee and questions presented to members of the subcommittee or
NPTEC staff by speakers;
(4)
designate appropriate staff to be present at the hearing to assist in
answering questions from speakers.
(c)
Written comments shall be presented to the chairman of the subcommittee
following the hearing. Such comments shall be presented to NPTEC at the time of NPTEC
review of the proposed amendment.
Amendment of Code - 4
CHAPTER 1-5
LIMITATIONS ON ACTIONS
§1-5-1
Limitations in General (amended 8/24/99)
(a) Any action or prosecution under this code must be commenced within the periods
prescribed in this chapter except when a different limitation is prescribed by tribal law.
(b) The period of limitation shall not run during any period in which a party is not
physically on the Nez Perce Reservation, is in the custody of another sovereign, or in any way
knowingly avoids service.
§1-5-2
Criminal Offenses (amended 8/24/99)
(a) A complaint shall be filed within five (5) years following the commission of a
criminal offense.
(b) The period of limitations shall commence upon the commission of the offense,
except that the period of limitations will commence on the date that the Tribe knows or should
reasonably know of the offenses commission for:
(1)
offenses involving deceit, fraud, breach of trust;
(2)
where the defendant has acted to conceal the offense; or
(3)
where the offense is of the nature that its commission is unlikely to be
discovered upon commission.
(c) The period of limitation shall not run during any period in which the defendant is
not physically on the Nez Perce Reservation, is in the custody of another sovereign, or in any
way knowingly avoids service.
§1-5-3
Contracts
An action upon any contract, obligation or liability founded upon an instrument in writing
shall be commenced within five (5) years. An action upon a contract obligation or liability not
founded upon an instrument of writing shall be commenced within four (4) years.
§1-5-4
Statutory Liabilities, Trespass, Trover, Replevin, and Fraud
(a)
The following actions shall be commenced within (3) years:
(1)
an action upon a liability created by this code, other than a penalty or
forfeiture. The cause of action in favor of the Nez Perce Tribe or any
political subdivision thereof, upon a surety bond or undertaking provided
for or required by this code shall not be deemed to have accrued against
any surety on such bond or undertaking until the discovery by the tribe or
any political subdivision thereof of the facts constituting the liability;
(2)
an action for trespass upon real property;
(3)
an action for taking, detaining or injuring any goods or chattels, including
actions for the specific recovery of personal property;
Limitations on Actions - 1
(4)
§1-5-5
Actions Against Officers, for Penalties, on Bonds, and for Professional
Malpractice or for Personal Injuries
(a)
§1-5-6
an action for relief on the ground of fraud or mistake. The cause of action
in such case shall not be deemed to have accrued until the discovery, by
the aggrieved party, of the facts constituting the fraud or mistake.
The following actions shall be commenced within two (2) years:
(1)
an action against a tribal police officer, upon the liability incurred by the
doing of an act in his official capacity and in virtue of his office, or by the
omission of an official duty, including the nonpayment of money collected
upon an execution;
(2)
an action provided by this code in relation to a criminal action for a
forfeiture or penalty;
(3)
an action to recover damages for professional malpractice, or for an injury
to the person, or for the death of one caused by the wrongful act or neglect
of another, including any such action arising from breach of an implied
warranty or implied covenant. When the action is for damages arising out
of the placement and inadvertent, accidental or unintentional leaving of
any foreign object in the body of any person by reason of the professional
malpractice of any hospital, physician or other person or institution
practicing any of the healing arts or when the fact of damage has, for the
purpose of escaping responsibility therefor, been fraudulently and
knowingly concealed from the injured party by an alleged wrongdoer
standing at the time of the wrongful act, neglect or breach in a professional
or commercial relationship with the injured party, the action shall be
deemed to accrue when the injured party knows or in the exercise of
reasonable care should have been put on inquiry regarding the condition
or matter complained of. In such a case, the action must be commenced
within one (1) year following the date of accrual or two (2) years
following the occurrence, act or omission complained of, whichever is
later. In all other actions, whether arising from professional malpractice
or otherwise, the cause of action shall be deemed to have accrued as of the
time of the occurrence, act or omission complained of, and the limitation
period shall not be extended by reason of any continuing consequences or
damages resulting therefrom or any continuing professional or commercial
relationship between the injured party and the alleged wrongdoer;
(4)
an action for defamation, assault, battery or false imprisonment.
Limitations Apply to Tribe
The limitations prescribed in this chapter apply to actions brought in the name of the
Tribe, or for the benefit of the Tribe, in the same manner as to actions by private parties.
§1-5-7
Actions for Other Relief
An action for relief not otherwise provided for in this chapter must be commenced within
four (4) years after the cause of action shall have accrued.
Limitations on Actions - 2
§1-5-8
Action, when Commenced
An action is commenced within the meaning of this chapter when the complaint is filed.
§1-5-9
Persons under Disabilities
(a) If a person entitled to bring an action, other than for the recovery of real property,
be, at the time the cause of action accrued, either:
(1)
under the age of majority;
(2)
insane; or
(3)
imprisoned on a criminal charge or under the sentence of a criminal court
for a term less than for life; the time of such disability is not a part of the
time limited for the commencement of the action, provided however, that
the time limited for the commencement of an action shall not be tolled for
a period of more than six (6) years on account of minority, incompetency,
any legal disability or for other cause or reason except as specifically
provided in this section.
(b) If a person entitled to commence an action for the recovery of real property, or for
the recovery of the possession thereof, or to make any entry or defense founded on the title to
real property, or to rents or services out of the same, be at the time such title first descends or
accrues, either:
(1)
under the age of majority;
(2)
insane; or
(3)
imprisoned on a criminal charge, or in execution, upon conviction of a
criminal offense, for a term less than for life; then the term during which
such disability continues is not deemed any portion of the time limitation
for the commencement of such action or the making of such entry or
defense, but such action may be commenced, or entry or defense made,
within the period of five (5) years after such disability shall cease, or after
the death of the person entitled who shall die under such disability; but
such action shall not be commenced or entry or defense made after that
period.
(c) No person can avail himself of a disability unless it existed when his right of
action accrued. When two (2) or more disabilities coexist at the time the right of action
accrues, the limitation does not attach until they are removed.
§1-5-10
Aliens in Time of War
When a person is an alien subject, or citizen of a country at war with the United States,
the time of the continuance of war is not part of the period limited for the commencement of the
action.
§1-5-11
Reversal Judgment - New Action
Limitations on Actions - 3
If an action is commenced within the time prescribed therefor and a judgment therein for
the plaintiff be reversed on appeal, the plaintiff, or if he dies and the cause of action survive, his
representatives, may commence a new action within one (1) year after the reversal.
§1-5-12
Action Stay by Injunction or Code
When the commencement of an action is stayed by injunction or prohibition under this
code the time of the continuance of the injunction or prohibition is not part of the time limited for
the commencement of the action.
§1-5-13
Actions against directors and stockholders
This chapter does not affect actions against directors or stockholders of a corporation to
recover a penalty or forfeiture imposed or to enforce a liability created by law; but such actions
must be brought within three (3) years after the discovery by the aggrieved party of the facts
upon which the penalty or forfeiture attached, or the liability was created.
Limitations on Actions - 4
CHAPTER 1-6
NEZ PERCE TRIBAL CIVIL RIGHTS ACT
(chapter added 10/24/00)
§1-6-1
Title
This chapter shall be known as the Civil Rights Act of the Nez Perce Tribe.
§1-6-2
Civil Rights of Persons Within Tribal Jurisdiction
The Nez Perce Tribe in exercise of its sovereign powers of self-government shall not:
(a)
Make or enforce any law prohibiting the free exercise of religion, or abridging the
freedom of speech, or of the press, or the right of the people peaceably to assemble and to
petition the tribal council for a redress of grievances.
(b)
Take private property for public use without just compensation.
(c)
Make or enforce any law which divests title of a tribal member or his heirs or
assigns to an allotment of tribal land.
(d)
Deny any person within its jurisdiction the equal protection of the law or to
deprive any person within its jurisdiction of liberty or property without the due process of the
law.
(e)
Subject any person for the same tribal offense to be twice put in jeopardy.
(f)
Compel any person in any criminal case to be witness against himself.
(g)
Deny any person in a criminal proceeding the right to a speedy and public trial, to
be informed of the nature and cause of the accusation, to be confronted with the witnesses
against him, to have compulsory process for obtaining witnesses in his favor, and at his own
expense, to have assistance of counsel and to have these rights explained to him at the time of
arrest. If the defendant can show to the satisfaction of the court that he cannot afford counsel,
counsel may be provided at tribal expense if funds for this purpose are available in the tribal
judicial budget.
(h)
Require excessive bail, impose excessive fines, inflict cruel and unusual
punishments.
(i)
Pass any bill of attainder or ex post facto law.
(j)
Violate the right of the people to be secure in their persons, houses, papers and
effects against unreasonable search and seizures, nor issue warrants, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched and the
person or thing to be seized.
(k)
Full Disclosure.
The members of the Nez Perce Tribe are guaranteed full disclosure of information
concerning criminal and civil proceedings in which they are a party, pursuant to §1-1-6 of
Chapter 1-1, Administration of Tribal Court of the Nez Perce Tribal Code.
Nez Perce Tribal Civil Rights Act - 1
CHAPTER 1-7
TRIBAL NOTICE
(Chapter adopted 10/9/01)
§1-7-1
Findings
(a)
The Nez Perce Tribe has a compelling interest in protecting tribal sovereignty and
jurisdiction and the validity of tribal laws; and
(b)
Tribal sovereignty and jurisdiction or the validity of tribal law may be questioned
in cases in the Tribal Court or the Nez Perce Tribal Court of Appeals in which the Nez Perce
Tribe or any agency, officer, or employee thereof is not a party; and
(c)
With adequate, timely, and uniform notice of cases in the Tribal Court or the Nez
Perce Tribal Court of Appeals that question tribal sovereignty and jurisdiction or the validity of
tribal law, the Nez Perce Tribe can effectively assess whether and how to participate in such
cases.
§1-7-2
Purpose
The purpose of this Chapter is to provide the Nez Perce Tribe with adequate, timely, and
uniform notice of any and all cases in the Tribal Court or the Nez Perce Tribal Court of Appeals
that question tribal sovereignty and jurisdiction or the validity of any tribal law and in which the
Nez Perce Tribe or any agency, officer, or employee thereof is not a party.
§1-7-3
Notice Required
(a)
Upon the filing of any action or proceeding in which the Nez Perce Tribe or any
agency, officer or employee thereof is not a party, the Tribal Court or the Nez Perce Tribal Court
of Appeals will promptly inform all parties in writing of the requirements of this Chapter. Any
party to such a proceeding that questions tribal sovereignty or jurisdiction, or the validity of any
tribal law will give notice thereof to Chairman of the Nez Perce Tribal Executive Committee and
the Office of Legal Counsel. Such notice will identify the action or proceeding and will include
a brief written explanation of the grounds upon which tribal sovereignty or jurisdiction or the
validity of tribal law is being questioned. Any party giving notice under this Chapter will
simultaneously file proof with the Tribal Court or the Nez Perce Tribal Court of Appeals that
notice has been given as required by this Chapter.
(b)
If notice is required under this Chapter, upon the Nez Perce Tribe's timely written
request, the Tribal Court or the Nez Perce Tribal Court of Appeals or any party will timely serve
copies of all subsequent filings and orders in the case on the Chairman of the Nez Perce Tribal
Executive Committee and the Office of Legal Counsel.
§1-7-4
Manner and Timing of Notice
(a)
Notice required under this Chapter will be given in writing and simultaneously
with the raising of a question about tribal sovereignty or jurisdiction or the validity of any tribal
law.
(b)
Notice required under this Chapter will be made by certified mail.
§1-7-5
Tribal Participation Following Notice
Tribal Notice - 1
(a)
Upon timely motion or application, the Nez Perce Tribe may intervene as a matter
of right in any action or proceeding in the Tribal Court or the Nez Perce Tribal Court of Appeals
that questions tribal sovereignty or jurisdiction or the validity of any tribal law. Upon
intervening under this Chapter, the Nez Perce Tribe may assert any and all available claims and
defenses and may present any and all admissible evidence relating to the question of its
sovereignty or jurisdiction or the validity of any tribal law, and is entitled to the same relief, as if
the Nez Perce Tribe had instituted a separate action or proceeding; provided that, the Tribe will
not be required to pay costs of litigation in any action or proceeding in which it has intervened
under this Chapter. Intervention under this Chapter does not abridge, limit, or otherwise affect
the right of the Nez Perce Tribe to commence, maintain, defend, or otherwise intervene in
actions or proceedings in the Tribal Court or the Nez Perce Tribal Court of Appeals.
(b)
Upon timely motion or application, the Nez Perce Tribe may appear as amicus
curiae (friend of the court) in any action or proceeding that questions tribal sovereignty or
jurisdiction or the validity of any tribal law.
(c)
The Nez Perce Tribe may timely determine that it is in the best interest of the
Tribe not to intervene, appear as amicus curiae, or otherwise participate in an action or
proceeding in the Tribal Court or the Nez Perce Tribal Court of Appeals that questions tribal
sovereignty or jurisdiction or the validity of any tribal law.
§1-7-6
Information Sharing and Consultation
In any action or proceeding in the Tribal Court or the Nez Perce Tribal Court of Appeals
that questions tribal sovereignty or jurisdiction or the validity of any tribal law in which the Nez
Perce Tribe does not intervene or appear as amicus curiae, the Nez Perce Tribe may nevertheless
share important knowledge with any party involved in the action or proceeding. This could
include assistance in responding to formal discovery requests or acting as an informal consultant.
§1-7-7
Timeliness of Participation Determinations
Unless the Tribal Court or the Nez Perce Tribal Court of Appeals orders otherwise, where
timely and proper notice has been given under this Chapter, the Nez Perce Tribe will notify the
Tribal Court or the Nez Perce Tribal Court of Appeals and parties in writing within sixty (60)
days of receipt by the Tribe of such notice of any determination to participate in any action or
proceeding by way of intervention or appearance as amicus curiae.
§1-7-8
Failure to Give Notice Not Jurisdictional or Waiver of Rights
The failure of the Tribal Court or the Nez Perce Tribal Court of Appeals or any party to
give notice as required by this Chapter does not deprive the Tribal Court or the Nez Perce Tribal
Court of Appeals of jurisdiction and is not a waiver or modification of any rights otherwise
timely asserted by any party. Any notice given under this Chapter is not a substitute for, or a
waiver or a modification of, any other requirement under this Code.
§1-7-9
Late Notice
If the Tribal Court or the Nez Perce Tribal Court of Appeals or any party discovers that
notice to the Nez Perce Tribe under this Chapter should have been but has not been given, the
Tribal Court or the Nez Perce Tribal Court of Appeals or party will promptly give notice in
writing to the Tribe as required by this Chapter. The Tribal Court or the Nez Perce Tribal Court
Tribal Notice - 2
of Appeals may stay the action or proceeding at any stage to allow compliance with this Chapter.
If final judgment has already been entered, the Tribe may motion or apply for rehearing as of
right, the Tribal Court or the Nez Perce Tribal Court of Appeals will entertain promptly any such
motions or applications for rehearing by the Tribe, and in disposing of such motions the Tribal
Court or the Nez Perce Tribal Court of Appeals, for good cause shown, may vacate a judgment
or any portion thereof.
§1-7-10
Civil Sanctions
The Tribal Court or the Nez Perce Tribal Court of Appeals may impose civil sanctions on
any party for willful or unreasonable failure to give notice as required by this Chapter, and may
use other reasonable means to cure any significant harm caused by failure to give notice as
required by this Chapter.
§1-7-11
Jurisdiction
Nothing in this Chapter shall be deemed or construed to deprive, limit, or extend the
jurisdiction of the Tribal Court or the Nez Perce Tribal Court of Appeals.
§1-7-12
Sovereign Immunity
Notice required under this Chapter does not authorize any party to name the Nez Perce
Tribe or any agencies, officers, or employees thereof as a party to any action or proceeding.
Nothing in this Chapter shall be deemed or construed as a waiver or limitation of the sovereign
immunity from suit of the Nez Perce Tribe, its agencies, officers, or employees.
Tribal Notice - 3
CHAPTER 1-8
PEACEMAKER COURT
(Chapter adopted by NPTEC 06/25/19)
§1-8-1 Establishment of Peacemaker Court
(a) There is hereby established a Nez Perce Tribal Peacemaker Court, which shall be a
division of the Nez Perce Tribal Court, and which shall operate in accordance with the
provisions of this Chapter.
(b) The purpose of the Peacemaker Court is to provide a voluntary forum for the practice of
traditional, non-adversarial Nez Perce methods of dispute and conflict resolution, as an
alternative to the Nez Perce Tribal Court, other Nez Perce specialty courts, and courtimposed sanctions. The Peacemaker Court will not determine or ascribe fault. Rather, the
Peacemaker Court will use dialogue to develop consensus-based solutions to disputes and
conflicts within the tribal community, in a manner that protects the health and welfare of
the participating individuals and the broader community.
§1-8-2 Definitions
(a) Adult: An individual who is 18 years of age or older; or who is 16 years of age or older
and has been married or is otherwise emancipated.
(b) Child: any person under the age of 18 not otherwise emancipated.
(c) Delinquent act: An act which would be a crime if committed by an adult.
(d) Immediate family: Includes mother, father, son, daughter, husband, wife, brother and
sister both biologic and in-laws. Also includes biologic grandparents and grandchildren
as well as any other relative living in the same household.
(e) Juvenile Delinquent: a child who commits a delinquent act.
(f) Participants: Participants are people who have consented to use the Peacemaking Court to
attempt to resolve their dispute or conflict.
(g) Peacemaker: a person appointed by the Tribal Court who meets the qualifications of
Peacemaker as described below.
(h) Peacemaker Code Revision Workgroup: a group that assists in the development of the
Nez Perce Tribal Peacemaker Code.
(i) Peacemaker Court: A panel of three (3) Peacemakers chosen to preside over disputes
referred to the Peacemakers for resolution.
(j) Peacemaker Court Handbook: The Peacemaker Court Handbook contains the guidelines
and processes by which the Peacemaker Court will abide.
Peacemaker Court - 1
(k) Peacemaker Selection Committee: a committee as set out at 1-8-4(a) which is assembled
to select and appoint Peacemakers.
(l) Peacemaking: Peacemaking describes the process employed by the Peacemaker Court
and is fully described in the Peacemaker Court Handbook. Peacemaking encourages
people to develop solutions to their problems by communicating with a supportive
community in a safe environment.
(m) Specialty Courts: Specialty courts include the Nez Perce Tribal Healing to Wellness
Court, any other court housed within the Nez Perce Tribal Court system, or any
attendance court in any school on the Nez Perce Reservation.
(n) Serious Crime: includes, but is not limited to, those crimes enumerated in the Nez Perce
Tribal Code, §4-1-35 through §4-1-92, and §4-1-114 through §4-1-158, or a similar crime
in another jurisdiction.
(o) Traditional family member: a person who culturally takes the place of any immediate
family member or who is considered a family member under Tribal law or custom.
§1-8-3 Qualifications of Peacemakers
(a) To be eligible to be a Peacemaker, a person must:
(1) Be at least twenty-one (21) years of age or older;
(2) Be knowledgeable and respectful of Nez Perce history, culture, and traditions;
(A) Preference will be given to Nez Perce Tribal members and to those applicants
with knowledge of the Nez Perce language;
(3) Have the respect of the Tribal community, have a reputation for honesty, integrity,
humanity, and have a demonstrated ability to resolve local problems by means that
honor Nez Perce Tribal values of healing, reconciliation, and accountability;
(4) Must maintain a position of trust and responsibility in order for Peacemaker decisions
to be accepted and honored by others;
(5) Submit to and pass a criminal background check; and
(6) To pass a criminal background check, a person cannot have been convicted in any
court of competent jurisdiction of any of the criminal offenses listed below within ten
(10) years of applying to be a Peacemaker. The criminal offenses include:
(A) child or elder abuse or neglect;
(B) domestic violence or dating violence;
Peacemaker Court - 2
(C) stalking;
(D) harassment;
(E) intimidation;
(F) any crime resulting in serious bodily harm to another person;
(G) rape;
(H) sexual assault;
(I) sexual abuse of a child or elder; or
(J) any other criminal conviction determined by the Peacemaker Selection
Committee to be disqualifying.
§1-8-4 Selection and Appointment of Peacemaker Section Committee and of Peacemakers
(a) An initial panel of Peacemakers will be selected by a panel of at least five (5) individuals,
two of whom shall have served on the Peacemaker Code Revision Workgroup and three
(3) of whom shall be from any of the following positions within the Nez Perce Tribe:
(1) The Chief Judge or Interim Chief Judge of the Nez Perce Tribal Court;
(2) An Appellate Judge of the Nez Perce Tribal Court;
(3) The HTWC Coordinator;
(4) The Nez Perce Tribal Police Chief;
(5) The Nez Perce Tribal Public Defender or Deputy Public Defender;
(6) The Nez Perce Tribal Prosecutor or Deputy Prosecutor; or
(7) A Nez Perce Tribal Probation Officer.
(b) A tribal elder on the Peacemaker Selection Committee shall be automatically and
immediately recused from the Peacemaker Selection Committee if they apply to be a
Peacemaker or are subject to the jurisdiction of the Peacemaker Court.
(c) The Peacemaker Court will be staffed by the Law and Order Executive Assistant who
will function as the Court Administrator.
(d) Appointment of Peacemakers.
Peacemaker Court - 3
(1) Peacemakers shall be selected from any community within the boundaries of the Nez
Perce Reservation. Preference will be for those applying from the Lapwai, Orofino
and Kamiah, Idaho areas.
(2) When appointed to be a Peacemaker, a person shall sign an oath of office and abide
by its ethical rules.
(3) When appointed to be a Peacemaker, a person shall sign a confidentiality agreement
and abide by its terms.
(4) Peacemakers are volunteers and shall not receive compensation for their services,
unless programs using Peacemaker Services, have funding to pay a limited stipend to
be determined by the Chief Judge.
(e) Removal of a Peacemaker
(1) A Peacemaker shall serve until the Peacemaker is unable or unwilling to provide their
service as a Peacemaker or is removed pursuant to the terms of this Chapter.
(2) A Peacemaker may resign by submitting a written notification of such resignation to
the Law and Order Executive Officer’s assistant.
(3) Any Peacemaker convicted of any serious crime as defined in this Chapter in any
jurisdiction will be immediately removed from his or her position.
(4) A proven violation of the oath of office may be deemed good cause for removal of a
Peacemaker.
(5) A proven violation of the confidentiality agreement may be deemed good cause for
removal of a Peacemaker.
(6) Any Peacemaker who engages in conduct or behavior that is not illegal, but which
significantly undermines the person’s ability to serve as a Peacemaker may be
removed from his or her position by consensus of the other Peacemakers.
(7) Upon submission of a written complaint against a Peacemaker, supported by proof of
the behavior listed in (4) – (6) above, a majority of the remaining Peacemakers will
convene a Peacemaking session which comports with the requirements of due process
(notice and opportunity to be heard) and provides the Peacemaker with the
opportunity to address and resolve the behavior or conduct that is the subject of the
session. If resolution of the matter is not achieved through this process to the
satisfaction of the remaining Peacemakers, the Peacemakers may recommend, by
written and signed consensus, that the person no longer serve as a Peacemaker and
require the person’s removal.
Peacemaker Court - 4
(8) A decision by the Peacemakers made in accordance with (7) is final and not subject to
appeal.
(f) Voluntary Recusal of a Peacemaker
A Peacemaker must recuse him or herself from any proceedings in which the following
conditions occur:
(1) If the case transferred to Peacemakers Court involves a Peacemaker or their
immediate family, as “immediate family” is described in the Nez Perce Tribe’s
Human Resources Manual 4.3.1, or a Peacemaker’s “traditional family,” as that term
is understood by the Peacemakers.
(2) If a Peacemaker has a personal or financial interest in the outcome of the Peacemaker
Court proceeding.
(3) A Peacemaker shall immediately notify in writing all other Peacemakers as well as
the Tribal Court Judge or specialty court judge or official who has transferred the
matter to the Peacemaker Court of the conflict-of-interest described above and of
their recusal from the proceedings.
§1-8-5 Role of Peacemakers
Although Peacemakers will be sworn officers of the Nez Perce Tribal Court and subject to the
applicable provisions of the Nez Perce Tribal Code, their job is to assist in the development of
solutions to conflicts that are not patterned on solutions, sanctions, or punishments found in state
or federal courts but are more closely aligned with the conflict resolution processes and methods
traditionally used in Nez Perce culture. Peacemakers shall help participants referred to
Peacemakers Court to reconnect to the Nez Perce culture, history and traditions by suggesting
participation in a variety of Nez Perce activities and practices. These may include but are not
limited to participation in sweat lodge ceremonies, traditional drumming or dancing and
instruction in the Nimiipuu language. Peacemakers shall be immune from suit for good faith
actions and omissions made within the scope of their authority and in compliance with applicable
laws.
(a) The role of a Peacemaker includes:
(1) Mediating disputes among participants in the Peacemaker Court.
(2) Using Nez Perce Tribal cultural and traditional methods of achieving healing,
reconciliation, and appropriate accountability so long as the civil rights of
participants, as defined under the Indian Civil Rights Act, are not violated.
(3) Instructing or counseling individuals on traditional Nez Perce teachings and values
relevant to the dispute of the parties in Peacemaker Court.
Peacemaker Court - 5
(4) Using any reasonable means to obtain the peaceful, cooperative, and voluntary
resolution of the dispute or conflict subject to the Peacemaker Court. No force,
violence, or harassment may be used by any Peacemaker in this process.
(5) Participating as a team member in specialty court proceedings to provide progress
reports and recommendations to that court.
§1-8-6 Duties of Peacemakers
(a) Peacemakers shall perform the following duties:
(1) Schedule Peacemaker Court proceedings at times and in places that are reasonably
convenient to all persons involved in the proceedings, providing reasonable written
notice of the time and place of the proceedings to all persons who should attend.
(2) Follow the guidelines and processes for Peacemaker Court established by the
Peacemaker Court Handbook.
(3) Maintain an atmosphere in all proceedings which honors Nez Perce Tribal traditions
and values and promotes healing, respect, accountability, and reconciliation.
(4) Use reasonable means to obtain the peaceful, cooperative, and voluntary resolution of
a dispute or conflict subject to the jurisdiction of the Peacemaker Court. No force,
violence, threats, or violation of the lawful rights of any participant will be permitted.
(5) Report to Tribal Police if:
(A) In the course of a Peacemaker Court proceeding, any participant discloses that
she/he is the victim of neglect, physical or sexual abuse.
(B) In the course of a Peacemaker Court procedure, a participant makes a credible
threat to do harm to him or herself or another.
(C) In the course of a Peacemaker Court procedure, a participant confesses to causing
serious physical injury to another person, or causing the death of another person,
and this conduct previously has not been charged by a prosecutor in a court of
competent jurisdiction.
(b) Peacemakers shall provide regular status reports to the Tribal Court or specialty court
with regard to the matter referred. Peacemakers shall also provide a semi-annual report
to the Nez Perce Tribal Court Chief Judge indicating the number of matters heard by the
Peacemaker Court in the past six months, describing the types of matters heard, the
resolutions reached as a result of Peacemaker Court proceedings, and the number of
transferred cases which were returned to the Tribal Court, or other specialty court,
without resolution.
Peacemaker Court - 6
§1-8-7 Peacemaker Handbook
Before Peacemakers may begin to address disputes in the Peacemaker Court, pursuant to the
provisions in this Chapter, the Peacemakers must develop, and adopt by consensus, a written
“Peacemaker Handbook” describing in detail the guidelines, processes and ethics of the
Peacemaker Court. The Handbook processes must comply with all applicable federal and Tribal
law. The Peacemaker Court must follow the guidelines and processes established in the
Peacemaker Handbook.
§1-8-8 Matters Which May Be Heard by Peacemaker Court
(a) The Peacemaker Court, upon order of a judge of the Nez Perce Tribal Court or other
specialty court official, may hear the following cases:
(1) Any criminal matter or infraction charged against an adult defendant, which does not
involve an allegation of serious bodily harm or threat of serious bodily harm, sexual
assault, sexual abuse, domestic violence, dating violence, stalking, harassment,
intimidation, theft, or damage to property valued at more than three thousand dollars
($3,000.00).
(2) Any juvenile delinquency matter.
(3) Any civil matter or dispute, excluding contract disputes, when a judge of a Nez Perce
Tribal Court determines it would be in the best interest of justice, public safety, and
reconciliation to make such a transfer, and all parties agree to the transfer.
(4) Any matter from a specialty court judge or official referred to the Peacemaker Court.
(b) In a criminal or juvenile delinquency matter, the prosecutor, defendant, and victim(s)
must agree to the transfer to Peacemaker Court. Non-parties may not request or object to
the transfer of a matter to or from the Peacemaker Court.
(c) If at any time during Peacemaker proceedings, the victim(s), prosecutor, defense attorney
or defendant determines that Peacemaker Court is unable to effectively resolve the
conflict or dispute, any of these persons may request in writing to the Nez Perce Tribal
Court that the case be transferred back to the Nez Perce Tribal Court and an order
transferring the case must be issued by the Nez Perce Tribal Court.
(d) If at any time during Peacemaker Court proceedings, the specialty court judge or official
determines that Peacemaker Court is unable to effectively resolve the conflict or dispute,
the specialty court judge or official may order that the case be transferred back to the
specialty court.
Peacemaker Court - 7
§1-8-9 Powers of the Peacemaker Court
(a) The Peacemaker Court does not have the power to compel third parties to appear and
participate in its proceedings or to compel the attendance of the participants. This
includes parent(s), and legal guardian(s) in juvenile matters.
(b) The Peacemaker Court must abide by all applicable Tribal or federal law and cannot take
any action that may jeopardize the health, safety, or welfare of any person in the
Peacemaking Court or the community.
(c) The Peacemaker Court must follow the process and guidelines established in the
Peacemaker Handbook.
(d) The Peacemaker Court may request the advice of the Tribal Prosecutor or defense
counsel, or the Nez Perce Tribal Office of Legal Counsel, but no attorneys are permitted
to participate as legal counsel for a participant in Peacemaker Court proceedings without
the prior express consent of the Peacemakers.
§1-8-10
Resolutions
(a) The Peacemaker Court may request that the matter be transferred back to the Tribal Court
or other specialty court because it cannot be resolved. Under such circumstances, the
Peacemakers shall submit a signed statement indicating the matter cannot be resolved and
the reasons for the decision. Upon receipt of such statement from the Peacemakers, a
Tribal Court judge or specialty court judge or official must issue an order transferring the
matter back to their court.
(b) The Peacemaker Court may issue a Peacemaking Resolution and submit the Resolution to
the Tribal Court or authorized official of a specialty court when the parties participating
in the Peacemaker Court have reached an agreement they wish to have confirmed and
recorded by the Court. The Tribal Court may issue the Judgment/Order if:
(1) The Tribal Court or specialty court has jurisdiction over the parties and subject matter
of the agreement;
(2) The Peacemaker Court provides reasonable evidence that all necessary persons and
parties have agreed to be bound by the terms of the agreement;
(3) The proposed Judgment or Order contains the complete agreement of the parties such
that a dispute regarding the agreement reached in Peacemaker Court is unlikely to
arise;
(4) The proposed Judgment or Order would otherwise be proper and enforceable by the
Tribal Court or specialty court.
Peacemaker Court - 8
(c) The Judgment or Order may be enforced by the Tribal Court as any other judgment of the
Tribal Court or specialty court may be enforced.
(d) A violation of the order would be handled by the Tribal Court in the same manner as
violations of other Tribal Court orders. A violation of specialty court order or
determination would be handled in the same manner as violations of other specialty court
orders or determinations.
§1-8-11
Peacemaker Court Services Requested by Parties Not Subject to the
Jurisdiction of the Nez Perce Tribal Court or Other Specialty Court
The Peacemaker Court may be used to provide services for a matter that is not before the Tribal
Court, or other specialty court, at the written request of all parties involved in the matter, and
with the consensus approval of all Peacemakers who will hear the matter. This provision applies
only to minor disputes such as nuisance, animal trespass or annoyance, non-violent disorderly
conduct, non-violent breaches of the peace, drug abuse or alcohol overuse by adults. Agreements
resulting from these Peacemaker Court sessions are not enforceable in Tribal Court or other
specialty court. More serious matters may not be heard by the Peacemaker Court unless
transferred from Tribal Court, or other specialty court, pursuant to the provisions outlined in this
Chapter.
Peacemaker Court - 9
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
TITLE 2
RULES OF PROCEDURE
Ch. 2.10 Criminal Procedures
TABLE OF CONTENTS
PART I.
APPLICABILITY ....................................................................................................1
Section 2.10.001
Section 2.10.002
Section 2.10.003
PART II.
DEFENDANT’S RIGHTS ......................................................................................4
Section 2.10.010
Section 2.10.011
PART III.
Section 2.10.028
Section 2.10.029
Arraignment [Rule 10] ........................................................................................ 17
Plea Procedures [Rule 10(c)] ............................................................................... 19
Reserved............................................................................................................... 21
Motions during Arraignment ............................................................................. 21
Reserved............................................................................................................... 22
RELEASE FROM CONFINEMENT AND EXTRADITION ............................ 22
Section 2.10.035
Section 2.10.036
Section 2.10.037
Section 2.10.038
Section 2.10.039
Section 2.10.040
Section 2.10.041
Section 2.10.042
Section 2.10.043
TITLE 2
Search and Seizure [Rule 19] ............................................................................... 6
Reserved............................................................................................................... 10
Method of Arrest [Rule 8] ................................................................................... 10
Arrest Without a Warrant [Rule 7] .................................................................... 10
Arrest Procedure [Rule 8] ................................................................................... 10
Fresh Pursuit [Rule 9] ........................................................................................ 11
Reserved............................................................................................................... 11
Defendant’s Presence .......................................................................................... 11
Reserved............................................................................................................... 11
Reserved............................................................................................................... 11
Commencing Criminal Prosecution [Rule 4] ..................................................... 11
Arrest Warrant or Summons on a Complaint [Rules 5 & 6] ............................ 14
Complaint, Warrant or Summons by Telephone or Other Reliable
Electronic means ................................................................................................. 15
Reserved............................................................................................................... 17
Reserved............................................................................................................... 17
ARRAIGNMENT ................................................................................................. 17
Section 2.10.030
Section 2.10.031
Section 2.10.032
Section 2.10.033
Section 2.10.034
PART V.
Rights of a Defendant in Criminal Proceedings [Rule 3] ................................... 4
Habeas Corpus [Rule 18] ...................................................................................... 5
SEARCH, SEIZURE, AND ARREST ....................................................................6
Section 2.10.015
Section 2.10.016
Section 2.10.017
Section 2.10.018
Section 2.10.019
Section 2.10.020
Section 2.10.021
Section 2.10.022
Section 2.10.023
Section 2.10.024
Section 2.10.025
Section 2.10.026
Section 2.10.027
PART IV.
Interpretation ........................................................................................................ 1
Definitions [Rule 1] ............................................................................................... 1
Jurisdiction [cross-reference with 1-1-9 through 1-1-12] ................................... 3
Bail or Release on Own Recognizance [Rule 21] ............................................... 22
Bail or Release in Cases Involving Domestic Violence [Rules 21 (d) +
10a] ....................................................................................................................... 23
Bail Form and Conditions................................................................................... 24
Reserved............................................................................................................... 26
Reserved............................................................................................................... 26
Extradition [Rule 20] .......................................................................................... 26
Furlough Release................................................................................................. 27
Reserved............................................................................................................... 28
Reserved............................................................................................................... 28
CH. 2.10 CRIMINAL PROCEDURES
TOC - i
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
Section 2.10.044
PART VI.
PRE-TRIAL .......................................................................................................... 28
Section 2.10.045
Section 2.10.046
Section 2.10.047
Section 2.10.048
Section 2.10.049
PART VII.
Procedures for Appeal [cross-reference Ch. 2-9] ............................................... 39
Record on Appeal [cross-reference 2-9-4]........................................................... 39
Reserved............................................................................................................... 39
Reserved............................................................................................................... 39
Reserved............................................................................................................... 39
GENERAL PROVISIONS................................................................................... 39
Section 2.10.075
Section 2.10.076
Section 2.10.077
Section 2.10.078
Section 2.10.079
Section 2.10.080
TITLE 2
Revocation of Probation ...................................................................................... 38
Reserved............................................................................................................... 38
Reserved............................................................................................................... 38
Reserved............................................................................................................... 39
Reserved............................................................................................................... 39
CRIMINAL APPEALS ........................................................................................ 39
Section 2.10.070
Section 2.10.071
Section 2.10.072
Section 2.10.073
Section 2.10.074
PART XI.
Sentencing Procedure ......................................................................................... 37
Misdemeanor Sentencing Limitations ............................................................... 37
Felony Sentencing Limitations .......................................................................... 37
Reserved............................................................................................................... 37
Reserved............................................................................................................... 38
POST-SENTENCING ......................................................................................... 38
Section 2.10.065
Section 2.10.066
Section 2.10.067
Section 2.10.068
Section 2.10.069
PART X.
Procedures to Ensure a Speedy and Public Trial [Rule 3a] ............................. 31
Trial Procedures [Rule 14] .................................................................................. 32
Jury Pool Procedures [cross-reference 1-1-26 through 1-1-35] ........................ 33
Trial by Jury ........................................................................................................ 34
Motions at Trial [Rules 14 + Rule 17] ................................................................ 35
Evidence ............................................................................................................... 36
Jury Deliberations and Verdict [Rule 15] .......................................................... 36
Findings of Fact, Conclusions of Law in Bench Trials ..................................... 37
Reserved............................................................................................................... 37
Reserved............................................................................................................... 37
SENTENCING..................................................................................................... 37
Section 2.10.060
Section 2.10.061
Section 2.10.062
Section 2.10.063
Section 2.10.064
PART IX.
Pre-Trial Motions [Rule 11] ................................................................................ 28
Discovery [Rule 12] ............................................................................................. 29
Subpoenas ............................................................................................................ 30
Reserved............................................................................................................... 31
Reserved............................................................................................................... 31
TRIAL ................................................................................................................... 31
Section 2.10.050
Section 2.10.051
Section 2.10.052
Section 2.10.053
Section 2.10.054
Section 2.10.055
Section 2.10.056
Section 2.10.057
Section 2.10.058
Section 2.10.059
PART VIII.
Reserved............................................................................................................... 28
Time ..................................................................................................................... 39
Contempt of Court [1-1-45] ................................................................................. 40
Service and Filing of Papers [Rule 24] .............................................................. 41
Filing Fees ........................................................................................................... 41
Court Costs .......................................................................................................... 41
Vacating Conviction – Marijuana Offenses ....................................................... 41
CH. 2.10 CRIMINAL PROCEDURES
TOC - ii
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
TITLE 2 • RULES OF PROCEDURE
CHAPTER 2.10
PART I.
CRIMINAL PROCEDURES
APPLICABILITY
Section 2.10.001 Interpretation
These rules are to be interpreted to provide for the just determination of every
criminal proceeding, to secure simplicity in procedure and fairness in administration,
and to eliminate unjustifiable expense and delay.
Section 2.10.002 Definitions [Rule 1]
A.
Arraignment. Proceeding in which the accused is brought before the Court
to plead guilty or not guilty to the violation charged against them.
B.
Bail. An amount of money set by the Judge which must be posted by a
defendant in order to gain their release until trial, or appellate proceedings;
the amount of bail is set at such amount as to reasonably ensure that the
defendant comes to Court when he is required.
C.
Bail Bond. Cash, some type of surety arrangement, or other type of security
posted by a defendant to meet the bail set by the Judge as a prerequisite to
defendant's release from custody until a trial or appellate proceedings.
D.
Civil Infraction. An act or omission for which a sentence of incarceration is
not authorized.
E.
Complaint. A written statement of the essential facts constituting the
offense charges.
F.
Crime. An act or omission for which a sentence of incarceration is
authorized.
G.
Criminal action means a procedure by which a person is accused of
committing a crime is charged, brought to trail, and judged.
H.
Dating Violence. For purposes of the exercise of criminal jurisdiction over
non-Indians, the term ‘dating violence’ means violence committed by a person
who is or has been in a social relationship of a romantic or intimate nature
with the victim, as determined by the length of the relationship, the type of
relationship, and the frequency of interaction between the persons involved
in the relationship.
I.
Domestic Violence. For the purposes of exercising criminal jurisdiction over
non-Indians, the term ‘domestic violence’ means violence committed by a
current or former spouse or intimate partner of the victim, by a person with
whom the victim shares a child in common, by a person who is cohabitating
with or has cohabitated with the victim as a spouse or intimate partner, or by
TITLE 2
CH. 2.10 CRIMINAL PROCEDURES
Page 1 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
a person similarly situated to a spouse of the victim under the domestic- or
family- violence laws of an Indian tribe that has jurisdiction over the Indian
country where the violence occurs.
J.
Firearm means:
1.
Any weapons (including a starter gun) which will, or is designed to, or
may readily be converted to, expel a projectile by the action of an
explosive; but does not include an antique firearm or any device that
expels a projectile by means of compressed air;
2.
The frame or receiver of any such weapon;
3.
Any firearm muffler or firearm silencer; or
4.
Any destructive device shall not include any device which is neither
designed nor redesigned for use as a weapon; any device, although
originally designed for use as a weapon, which is redesigned for use as
a signaling, pyrotechnic, line throwing, safety, or similar device; an
antique, or is a rifle which the owner intends to use solely for sporting,
recreational or cultural purposes.
K.
In Lieu Fishing Sites (ILFS). Those certain federal lands along the
Columbia River designated by the federal government via Public Law 79-14
for Indian treaty fishing activities in lieu of usual and accustomed fishing
places inundated by construction of Bonneville Dam.
L.
In Person. For purposes of arraignments, pleas, sentencing, or other court
hearings, ‘in person’ may, upon a judge’s approval and finding of good cause,
include appearance by phone, video, or other appropriate electronic means.
M.
Motions. Requests, either written or oral, made to the Court for an order.
N.
Offense. A violation of criminal law.
O.
Personal Recognizance. A promise by a defendant to appear at trial or
appellate proceeding upon which promise the Judge orders their release from
custody.
P.
Presence means a defendant shall be present at all stages of the proceeding.
The court may allow electronic attendance by phone, video, or other means
only upon a finding of good cause and that the defendant’s rights will not be
prejudicially affected.
Q.
Probable Cause exists under this chapter when an officer or the court has
substantial objective basis for believing that a person has committed an
offense. In determining whether probable cause exists, the officer or judge
may take into account all information which a prudent officer or judge would
deem relevant to the likelihood that an offense has been committed and that
the person charged has committed it.
TITLE 2
CH. 2.10 CRIMINAL PROCEDURES
Page 2 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
R.
Spouse or Intimate Partner. For purposes of exercising criminal
jurisdiction over non-Indians, the term ‘spouse or intimate partner’ has the
meaning given the term in 18 U.S.C. § 2266.
S.
Summons. A notice to appear before the Court.
T.
Summons and Complaint. A single document containing all the requisites
of both a summons and complaint.
U.
Treaty Fishing Access Sites (TFAS). Those certain federal lands along the
Columbia River designated or acquired by the federal government via Public
Law No. 100-581 to provide access for Indian treaty fishing activities.
V.
Warrant, Arrest/Search. Document issued by the Court expressly
authorizing and directing an officer to execute an arrest or conduct a search
specifically delineated premises.
Section 2.10.003 Jurisdiction [cross-reference with 1-1-9 through 1-1-12]
A.
Criminal Jurisdiction – generally. The Nez Perce Tribal Court is vested
with jurisdiction to enforce all provisions of this Code, as amended from time
to time, against any person violating the same within the boundaries of the
Tribe’s Indian country, including any person at any In Lieu Fishing Site or
Treaty Fishing Access Site and against any tribal member exercising treaty
hunting and fishing rights beyond the boundaries of the Nez Perce
Reservation. In the cases where the person in violation of this Code is not an
Indian and is not covered by paragraphs C or D in this Section, the Court’s
exercise of power shall be civil rather than criminal and punishment subject
only to the applicable fine. The Court is also vested with the power to impose
protection orders against non-Indians in accordance with the provisions of
this Code.
B.
Jurisdiction over Felony Crimes. [cross-reference with draft Chapter
4.10, Part VII] The Nez Perce Tribal Court shall have jurisdiction over
specific offenses that may be subject to punishment greater than one year or
a fine of $5,000 or both under specific circumstances and conditions. Such
offenses are considered felony crimes and classified as a Class F crime under
the resolution codified in this section.
C.
Criminal Jurisdiction Over Non-Indian Offenders of Domestic or
Dating Violence. The Nez Perce Tribal Court is vested with jurisdiction to
enforce all provisions of this Code against a non-Indian who has committed
an act of Dating Violence or Domestic Violence against an Indian victim
within the Tribe’s Indian country provided the non-Indian has sufficient ties
to the Nez Perce Tribe.
1.
A non-Indian has sufficient ties to the Nez Perce Tribe for purposes of
criminal jurisdiction if they:
a.
TITLE 2
Reside in the Nez Perce Tribe’s Indian country;
CH. 2.10 CRIMINAL PROCEDURES
Page 3 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
D.
b.
Are employed in the Tribe’s Indian country; or
c.
Are a spouse, intimate partner, or dating partner of either
i.
A member of the Nez Perce Tribe; or
ii.
A non-member Indian who resides in the Tribe’s Indian
country.
Criminal Jurisdiction Over Protection Order Violations committed
by Non-Indians. The Nez Perce Tribal Court is vested with criminal
jurisdiction to enforce all provisions of this Code related to violations of
protection orders against a non-Indian that has sufficient ties to the Tribe as
identified above in paragraph C(1), and who has violated a protection order
within the Nez Perce Tribe’s Indian country provided the protected person is
an Indian, and following conditions are met.
1.
The protection order was issued against the non-Indian;
2.
The protection order is consistent with 18 U.S.C. § 2265(b); and
3.
The violation relates to that portion of the protection order that
provides protection against violent or threatening acts or harassment
against, sexual violence against, contact or communication with, or
physical proximity to, the protected person.
Sections 2.10.04 through 2.10.09 Reserved
PART II.
DEFENDANT’S RIGHTS
Section 2.10.010 Rights of a Defendant in Criminal Proceedings [Rule 3]
A.
Defendant’s Rights.
1.
To be free from excessive bail and cruel punishment;
2.
To defend in person or by counsel;
3.
To be informed of the nature of the charges pending against them and
to have a copy of those charges;
4.
To confront and cross-examine all witnesses;
5.
To compel by subpoena;
6.
The attendance of witnesses necessary to defend against the charges;
and
7.
The production of any books, records, documents, or other things
necessary to defend against the charges;
8.
To have a public and speedy trial, unless the right to a speedy trial is
waived by the defendant;
TITLE 2
CH. 2.10 CRIMINAL PROCEDURES
Page 4 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
9.
To have a jury trial, unless the right to a jury trial is waived by the
defendant;
10.
To appeal any final decision of the Nez Perce Tribal Court to the Nez
Perce Tribal Court of Appeals;
11.
To not be subjected to Double Jeopardy within the Nez Perce Tribal
Court;
12.
To not to be required to testify, and no inference may be drawn from a
defendant’s exercise of the right not to testify; and
13.
To petition for a writ of habeas corpus.
B.
Presence of the Defendant. A defendant shall be present at all stages of
the proceeding. The court may allow electronic attendance by phone, video, or
other means only upon a finding of good cause and that the defendant’s rights
will not be prejudicially affected.
C.
Right to Counsel. During the arraignment before the court, every
defendant must be informed of the right to have court appointed counsel or
pay for one at their own expense. If the defendant wishes to obtain counsel,
the court shall grant a reasonable time prior to arraignment for defendant’s
attorney to enter an appearance in the case.
D.
Attorney Qualifications. The defendant shall have the right to be
represented by an attorney who is a member of the Nez Perce Tribal Bar and
who is licensed to practice law by any jurisdiction in the United States that
applies appropriate professional licensing standards and effectively ensures
the competence and professional responsibility of its licensed attorneys.
E.
Right to a Jury Trial. The defendant shall have a right to a trial by an
impartial jury of no less than six (6) persons, that is drawn from sources that
reflect a fair cross section of the community; and do not systematically
exclude any distinctive group in the community, including non-Indians.
F.
Right to a Speedy Trial. [Rule 3a] To have a speedy trial unless waived by
the defendant.
G.
Right Against Double Jeopardy. The defendant shall not to be subject to
subsequent prosecution in the Nez Perce Tribal Court for the same offense
arising out of the same act.
H.
Writ of Habeas Corpus. Any person detained or imprisoned by order,
authority or action of the Nez Perce Tribe may challenge the legality of that
detention or imprisonment by application for a writ of habeas corpus.
Section 2.10.011 Habeas Corpus [Rule 18]
A.
Any person detained or imprisoned by order, authority or action of the Nez
Perce Tribe may challenge the legality of that detention or imprisonment by
application to the Nez Perce Tribal Court for a writ of habeas corpus. The
TITLE 2
CH. 2.10 CRIMINAL PROCEDURES
Page 5 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
application shall be heard by a judge who has not participated in any
proceeding related to the detention or imprisonment of the applicant.
B.
C.
D.
The application for writ of habeas corpus shall be in writing and must
include:
1.
The facts concerning the person’s commitment or detention;
2.
The cause or reason why detention is illegal; and
3.
A copy of the warrant of commitment or other documentary authority,
if any, or an affidavit that such copy has been requested and refused.
Upon receipt of a writ of habeas corpus, the court may:
1.
Issue an order directing the person(s) alleged to be detaining the
petitioner to show cause why the writ should not be issued; or
2.
Deny the writ.
If an order to show cause is issued it will be served on the person(s) alleged to
have custody of the petitioner. Once served, the person(s) to whom the order
is directed shall make a return of such order to the court certifying the true
cause for detention. Following service, the court shall hear the petition and
order the petitioner be brought before it for the hearing. If the writ is
granted, it shall be served on the person(s) having custody of the petitioner.
Sections 2.10.12 through 2.10.14 Reserved
PART III.
SEARCH, SEIZURE, AND ARREST
Section 2.10.015 Search and Seizure [Rule 19]
A.
B.
Judge’s Authority.
1.
Every judge has the authority to issue warrants for the search of or
persons, premises, and property and the seizures of goods,
instruments, articles, or items. A warrant issued under this part shall
not be held invalid due to minor irregularities in the warrant which do
not substantially affect any rights of a person named in the warrant.
2.
A judge may require the applicant to furnish testimony or
documentary evidence in support of the application for the warrant.
Search Warrants. A search warrant shall not be valid unless it:
1.
Is in writing;
2.
Is in the name of the Nez Perce Tribe;
3.
Is signed by a judge of the Nez Perce Tribal Court; and
4.
Particularly describes the premises, property, place, or person to be
searched and the instruments, articles, or items to be seized.
TITLE 2
CH. 2.10 CRIMINAL PROCEDURES
Page 6 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
C.
D.
E.
Grounds for a Search Warrant. No search warrant shall issue except upon
a written or oral sworn statement of a law enforcement officer or prosecutor
that establishes probable cause to search for and seize any of the following:
1.
Evidence of a crime;
2.
Contraband, fruits of a crime, or other items illegally processed;
3.
Property designed for use, intended for use, or used in committing a
crime, or
4.
A person whose arrest is authorized by law.
Warrant on Sworn Testimony. When a warrant is requested based on oral
testimony, communicated by telephone or otherwise, a judge shall:
1.
Immediately place the requesting person(s) under oath;
2.
Record by voice recording device if available, or otherwise make a
verbatim record, of the requesting person’s statement and certify the
accuracy of this record;
3.
Enter on an original warrant the grounds indicating probable cause
exists to issue a warrant and the scope of the search warrant as
requested or as modified;
4.
Sign the original warrant and enter on the face of the original warrant
the exact time when the warrant was ordered to be issued; and
5.
Direct the requesting party to:
a.
Prepare a document identical to the original warrant to be
known as a duplicate original warrant;
b.
Sign the duplicate original warrant on behalf of the judge; and
c.
Enter the exact time of execution on the face of the duplicate
original warrant.
Exception to the Warrant Requirements. [Rule 19 (e)] In addition to
federally recognized exceptions to the warrant requirement, the following
exceptions shall apply:
1.
When the search is incident to a lawful arrest, conducted on the person
arrested and within the area of the person’s immediate reach and
control;
2.
By consent of the person being searched;
3.
When there is a reasonable belief that the person searched may be
armed and dangerous;
4.
When the search is of a vehicle actually moving or temporarily stopped
and the officer has probable cause to believe that it contains
contraband, stolen, or embezzled property;
TITLE 2
CH. 2.10 CRIMINAL PROCEDURES
Page 7 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
F.
5.
Search of a vehicle is made incident to completion of a regular and
routine inventory;
6.
When there are reasonable grounds to believe that contraband or
evidence is present and there is no time to obtain a warrant without it
being destroyed; or
7.
Objects seized are in the officer’s plain view.
Execution of a Search Warrant. [Rule 19 (c)-(d)]
1.
Generally. Search warrants shall be executed between the house of
6:00 a.m. and 10.00 p.m., unless the issuing judge otherwise
authorizes. A warrant shall be executed within fourteen (14) days of
the date of issuance and warrants not executed within this time limit
are void.
2.
Return of Warrant. The executing officer shall return the warrant to
the court promptly, and under no circumstances more than seven (7)
days following execution of the warrant, unless a greater time
allowance is provided in the warrant. The warrant return shall include
the time and date the warrant was executed, and an inventory of any
property seized. Upon request, the court must give a copy of the
inventory to the person from whom, or from whose premises, the
property was taken.
3.
Reasonable Force. Only reasonably necessary force may be used to
execute a search warrant.
4.
Notice. Unless otherwise specified by the warrant, before entering the
premises named in the search warrant, the law enforcement officer
shall give appropriate notice of their identity, authority, and purpose
to the person to be searched, or to the person in apparent control of the
premises to be searched, if reasonably available. Before undertaking
any search or seizure pursuant to the warrant, the executing law
enforcement officer shall show and give a copy of the original or
duplicate original warrant to the person to be searched, or to the
person in apparent control of the premises to be searched, if reasonably
available. If the premises are unoccupied or there is no one is apparent
control, the law enforcement officer shall leave a copy of the warrant
suitably affixed to the premises.
5.
Receipt for Seized Items. If the warrant is executed, a receipt for all
articles taken shall be left with any person at the place from which any
items were seized. The inventory of the items shall be made in the
presence of an officer and the person from whose possession or
premises the property was taken, if present, or in the presence of at
least one other credible person. Failure to give or leave a receipt of all
items seized shall not render the seized property inadmissible at any
TITLE 2
CH. 2.10 CRIMINAL PROCEDURES
Page 8 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
subsequent trial. If the premises are unoccupied or there is no one in
apparent control, the law enforcement officer shall leave a copy of the
receipt suitably affixed to the premises.
G.
Scope of Search Pursuant to Warrant. The scope of any search shall only
include those areas specifically authorized by the warrant and is limited to
the least restrictive means reasonably necessary to discover the persons or
property specified in the warrant. Upon discovery of the person or property
named in the warrant, the law enforcement officer shall take possession or
custody of the person or property and search no further under the authority
of the warrant. If, in the course of an authorized search, the law enforcement
officer discovered property constitutes evidence of the commission of a
criminal offense, the officer may also take possession of that property.
H.
Extensions of Delay. Any period of delay authorized by this section may be
extended by the court for good cause shown, subject to the condition that
extensions should only be granted upon an updated showing of the need for
further delay and that each additional delay should be limited to periods of
thirty (30) days or less, unless the facts of the case justify a longer period of
delay.
I.
Procedures for Execution of State, County, Municipal, or other
Tribal Search Warrant. Where a search and/or seizure is performed within
the boundaries of the Nez Perce Reservation, or any trust, or Nez Perce tribal
member or Nez Perce tribally owned land or buildings, vehicles, or vessels,
for a crime committed within the jurisdiction of the issuing court, such search
and/or seizure must substantially comply with the procedural search and
seizure requirements of Nez Perce tribal law and shall be governed by the
following process:
1.
Nez Perce Tribal Court Approval. The state, county, municipal or other
tribal law enforcement officer shall provide a copy of their judicially
approved search warrant and probable cause affidavit, along with any
other supporting documents, to a law enforcement officer from the Nez
Perce Tribal Police Department prior to the execution of the warrant.
The Nez Perce law enforcement officer shall prepare an affidavit
stating that they have received and are incorporating the state, county,
municipal, or other tribal law enforcement officer’s affidavit and
judicially approved search warrant for presentation to a Nez Perce
Tribal Court Judge. The Nez Perce Tribal Court Judge shall review the
state, county, municipal, or tribal warrant and if the court finds the
warrant was issued with proper jurisdiction and substantially complies
with the procedural search and seizure requirements of Nez Perce
tribal law, shall endorse the warrant for execution.
2.
Coordination. Any search warrant issued pursuant to this section shall
be executed in the presence of and in coordination with a law
TITLE 2
CH. 2.10 CRIMINAL PROCEDURES
Page 9 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
enforcement officer from the Nez Perce Police Department. Nez Perce
Tribal Police and other law enforcement agencies shall cooperate to the
fullest extent possible.
Section 2.10.016 Reserved
Section 2.10.017 Method of Arrest [Rule 8]
A.
An arrest is made by actually restraining the person to be arrested or by that
person voluntarily submitting to the custody of the person making the arrest.
All necessary and reasonable force may be used in making an arrest, but the
person arrested shall not be subject to any greater restraint than is necessary
to hold or detain the person. All necessary and reasonable force may be used
to effect an entry into any building or property or part thereof to make an
arrest authorized by search warrant or by exemption to the warrant
requirements. An arrest made outside the boundaries of the Nez Perce
Reservation shall be valid if made pursuant to the laws of the jurisdiction
where the arrest occurred.
B.
Advisement of Miranda Rights prior to Interrogation. Upon taking a
person into custody and before interrogation (questioning), the police officer
shall inform the arrested person that:
1.
The arrested person has right to remain silent;
2.
Anything the arrested person says can be used against them in court;
and
3.
The arrested person has the right to talk with an attorney before they
are asked any questions and to have an attorney present during
questioning.
Section 2.10.018 Arrest Without a Warrant [Rule 7]
A law enforcement officer may make an arrest without a warrant if the officer has
probable cause to believe a person has committed an offense within the jurisdiction
of the Nez Perce Tribe or is named in an arrest warrant.
Section 2.10.019 Arrest Procedure [Rule 8]
Upon taking an arrested person into custody and before interrogation, any arresting
law enforcement officer shall inform the arrested person of their “Miranda Rights”
as noted above in Section 2.10.009 Method of Arrest. Those rights are:
A.
The arrested person has right to remain silent;
B.
Anything the arrested person says can be used against them in court; and
C.
The arrested person has the right to talk with an attorney before they are
asked any questions and to have an attorney present during questioning.
TITLE 2
CH. 2.10 CRIMINAL PROCEDURES
Page 10 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
Section 2.10.020 Fresh Pursuit [Rule 9]
A.
B.
Any arresting officer may continue in fresh pursuit of a person including
outside the boundaries of the Nez Perce Reservation, if the person:
1.
Is reasonably believed by the officer to have committed an offense on
the reservation;
2.
Has committed, or attempted to commit, any offense or civil infraction
on the reservation in the presence of the officer; or
3.
Named in an outstanding warrant of arrest for a criminal offense.
When an arrest following fresh pursuit occurs outside of the boundaries of
the Nez Perce Reservation but within the state of Idaho the arresting officer
may return the arrested individual to the reservation. When an arrest
following fresh pursuit occurs outside the state of Idaho, then the arresting
officer shall turn the arrested person over to the local police officials pending
extradition.
Section 2.10.021 Reserved
Section 2.10.022 Defendant’s Presence
A defendant shall be present at all stages of the proceeding. The court may allow
electronic attendance by phone, video, or other means only upon a finding of good
cause and that the defendant’s rights will not be prejudicially affected. If the
defendant fails to be present, the court may issue a bench warrant. Appearance by
counsel is insufficient to avoid issuance of a bench warrant.
Section 2.10.023 Reserved
Section 2.10.024 Reserved
Section 2.10.025 Commencing Criminal Prosecution [Rule 4]
A.
Complaint. A formal criminal proceeding shall be initiated on behalf of the
Nez Perce Tribe when the prosecutor files a criminal complaint against a
person.
1.
TITLE 2
Content. The complaint must be supported by probable cause and shall
contain:
a.
The name of the person accused, and if known, their address,
date of birth, and tribal enrollment number;
b.
The general location where the alleged offense was committed
and facts showing the offense to be within the original
jurisdiction of the court;
c.
The name, class, and code citation of the alleged offense
committed; special notice shall be given to the defendant for
CH. 2.10 CRIMINAL PROCEDURES
Page 11 of 42
NEZ PERCE TRIBE REVISED CODES
As Amended through Resolutions NP 22-212 and NP 22-214 (March 22, 2022)
Class F offenses that the charged offense is a felony crime for
which the defendant may be subject to the maximum sentence
authorized by the resolution codified in this section;
B.
d.
A concise statement of the specific acts or omissions to act
constituting an offense;
e.
The name of the persons, if any, against whom the alleged
offense was committed. For offenses involving a minor or for
sexual offenses the use of initials is sufficient to identify.
f.
The approximate date and time of the commission of the alleged
offense, if known; and
g.
The signature of the prosecutor.
2.
Minor Omissions. No minor omission from, or error in, the form of the
complaint shall be grounds for dismissal unless the defendant is shown
to be significantly prejudiced by the omission or error.
3.
Amending the Complaint. The defendant shall be arraigned on the
amended complaint with
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.