Adding Chapter 44 to Title Five, and Repealing Title 5, Chapter 38 in its entirety (2020)

Attachment #1

Adding Chapter 44 to Title Five, and Repealing Title 5, Chapter 38 in its entirety

Ordinance # 2020-01

Title Five, Chapter 44, Domestic and Dating Violence

5-44-1 PURPOSE

5-44-2 DEFINITIONS

5-44-3 SPECIAL JURISDICTION

5-44-4 DOMESTIC VIOLENCE

5-44-5 AGGRAVATED DOMESTIC VIOLENCE

5-44-6 DATING VIOLENCE

5-44-7 CRIMINAL PROTECTION ORDER VIOLATION

5-44-8 MANDATORY ARREST

5-44-9 MANDATORY HOLD UPON ARREST

5-44-10 FILING OF COMPLAINT

5-44-11 LIABILITY OF LAW ENFORCEMENT OFFICERS

5-44-12 NOTICE OF RIGHTS TO VICTIMS

5-44-13 NO ARREST, WRITTEN REPORT

5-44-14 REPORTING

5-44-15 PENALTIES

5-44-16 SEVERABILITY

5-44-1 PURPOSE.

The purpose of this code is to recognize that domestic and dating violence are serious crimes

against our Lakota values and family system. This code recognizes the trauma that domestic

violence and dating violence creates in the lives of our Wakanyeja (children). It is the Oyate's

intention to ensure that the victims of domestic and dating violence receive the maximum

protection from abuse which the Rosebud Sioux Tribe's laws, and those who enforce the laws

can provide.

It is the intent of the Rosebud Sioux Tribal Council that the official response to cases of

domestic, dating violence and criminal violations of protection orders shall be that violent

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Attachment #1

Adding Chapter 44 to Title Five, and Repealing Title 5, Chapter 38 in its entirety

Ordinance # 2020-01

behavior is not to be excused or tolerated, whether or not the abuser is intoxicated. Furthermore,

it is the intent of the Tribal Council that criminal laws be enforced without regard to whether the

persons involved are family members, were or are married, cohabiting, or involved in a dating

relationship. It is the intent of the Tribal Council that the Elders, two-spirit and Wakanyeja

(children) of this Tribe be cherished and protected according to the traditions of the tribe.

It is also the intent of the Rosebud Sioux Tribal Council to provide services to both the victims

and perpetrators of domestic and dating violence that will assist in healing and stopping the

violence within the Tiwahe. The use of alternative sentencing, while providing for the protection

of victims of this crime, shall be a priority for the Tribe.

5-44-2 DEFINITIONS.

Terms used in Title 5, Crimes, unless a different meaning is clearly indicated by context, are

defined as follows:

"Bodily injury" shall mean physical pain, illness, or any impairment of physical condition.

"Causes apprehension of bodily injury" shall mean any physical act which is intended to cause

another person reasonably to fear imminent bodily injury.

"Dangerous weapon" shall mean any weapon, firearm, device, instrument, material, or substance,

animate or inanimate, that is used for, or is readily used for, or designed for or through its use, is

capable of threatening or producing death or bodily injury, including but not limited to knives,

clubs, metal knuckles, nunchaku, throwing stars, explosives, Taser® guns.

"Dating violence" shall mean violence committed by a person who is or who 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.

"Domestic violence" means violence committed by;

(J) a current or former spouse or intimate partner of the victim;

(2) a person with whom the victim shares a child in common;

(3) the victim or the defendant is pregnant by the other;

(4) a person who is cohabitating with or who has cohabitated with the victim as a spouse or

intimate partner; or

(5) a person similarly situated to a spouse under the Rosebud Sioux Tribe Law and Order

Code, Title 4, Chapter 2.

"Family Member" means related by blood, legal proceeding, or traditional kinship as set out in

Title 2, Chapter 2 and Chapter 4, as a parent, child, grandchild, grandparent, brother, sister or by

marriage as parent-in-law, stepparent, stepchild, step-grandchild, brother-in-law, sister-in-law,

persons who have had a child together, are residing in the same household, have resided in the

same household as the defendant.

Attachment #1

Adding Chapter 44 to Title Five, and Repealing Title 5, Chapter 38 in its entirety

Ordinance # 2020-01

"Family Violence" means the same or similar acts committed in domestic violence, when such

acts are directed towards family or household member,

"Intimate partner” means;

(1) a current or former spouse, a person with whom the defendant shares a child in common, the

victim or the defendant is pregnant by the other, a person who is cohabitating with or who has

cohabitated with the defendant as a spouse or intimate partner, including same-sex relationships

or by a person similarly situated to a spouse under Rosebud Sioux Tribe Law and Order Code,

Title 4, Chapter 2.; or

(2) a person who is or who has been in a social relationship of a romantic or intimate nature with

the defendant, including same-sex relationships, as determined by the length of the relationship,

the type of relationship, and the frequency of interaction between the persons involved in the

relationship.

"Knowingly" means that the defendant was conscious and aware of defendant's actions/

omissions, realized what the defendant was doing or what was happening around the defendant,

and did not act through ignorance, mistake, or accident.

"Protection order" means any injunction, restraining order, or other order issued by a civil or

criminal court for the purpose of preventing violent or threatening acts or harassment against,

sexual violence against, contact or communication with, or physical proximity to, another

person; and includes any temporary or final order issued by a civil or criminal court, whether

obtained by filing an independent action or as a pendente lite order in another proceeding, if the

civil or criminal order was issued in response to a complaint, petition, or motion filed by or on

behalf of person seeking protection.

"Purposeful or purposely" means a person acts with intent with respect to the nature of the

defendant's conduct or a result thereof if it is the defendant's conscious object to engage in

conduct of that nature or to cause such a result.

"Recklessly" means a conscious disregard as to a substantial and unjustifiable risk that could

result from the defendant's conduct. The risk must be of such a nature and degree that

considering the nature and purpose of the defendants' conduct and the circumstances known to

the defendant, its disregard involves a gross deviation from the standard of conduct that a lawabiding person would observe in the defendant's situation.

"Strangulation” means impeding the normal breathing or circulation of blood of another person

by applying pressure on the throat or neck.

"Suffocation" means to block or impair a person's intake of air at the nose and mouth, whether by

smothering or other means, with the intent to obstruct the person's ability to breathe.

"Traumatic brain injury" (TBD means a disruption in the normal function of the brain that can be

caused by a bump, blow, or jolt to the head, or penetrating head injury.

Attachment #1

Adding Chapter 44 to Title Five, and Repealing Title 5, Chapter 38 in its entirety

Ordinance # 2020-01

"Unborn child" means a child in utero, and the term "child in utero" or "child, who is in utero"

means a member of the species homo sapiens, at any stage of development, who is carried in the

womb.

"Wakanyeja" Lakota word for child, means a person under the age of 18 years of age.

5-44-3 SPECIAL JURISDICTION.

Criminal Jurisdiction Over Non-Indians in Domestic Violence, Dating Violence and

Criminal Protection Order Violations

(1) The Rosebud Sioux Tribe will exercise special domestic violence criminal jurisdiction over

any non-Indian defendant who violates the Tribe's domestic violence (5-44-4, 5-44-5) dating

violence (5-44-5, 5-44-6) and protection order violations (5-44-7) within the Tribe's territorial

jurisdiction provided that the protected person is an Indian and the non-Indian has any of the

following ties to the Rosebud Sioux Tribe:

a. Resides within the territorial jurisdiction of the Rosebud Sioux Tribe; or

b. Is employed within the territorial jurisdiction of the Rosebud Sioux Tribe; or

c. Is a spouse, intimate partner, or dating partner of:

i. A member of the Rosebud Sioux Tribe; or

ii. An Indian who resides within the territorial jurisdiction of the Rosebud Sioux Tribe.

(2) And the following conditions must be met in order for the Rosebud Sioux Tribe to exercise

special domestic violence and dating violence criminal jurisdiction over any non-Indian and any

other person who violates a protection order:

a. The violation occurred within the territorial jurisdiction of the Rosebud Sioux Tribe;

b. The protection order was issued against the defendant,

c. The protection order is enforceable by the Tribe;

d. The protection order is consistent with 18 U.S.C. 2265(b);

e. The defendant violated the portion of the protection order that prohibits or provides protection

against: violent or threatening acts or harassment against, sexual violence against, contact or

communication with, or physical proximity to, another person; and

f, The victim must be a person specifically protected by the protection order that the defendant

allegedly violated.

Attachment #1

Adding Chapter 44 to Title Five, and Repealing Title 5, Chapter 38 in its entirety

Ordinance # 2020-01

5.44-4 DOMESTIC VIOLENCE. A person commits the crime of domestic violence if the

defendant:

(1) Purposely or knowingly causes bodily injury to an intimate partner or family member; or

(2) Purposely or knowingly causes apprehension of bodily injury in an intimate partner or family

member.

The crime of domestic violence shall be a Class B crime.

5-44-5 AGGRAVATED DOMESTIC OR DATING VIOLENCE. A person commits the

crime of aggravated domestic violence or dating violence if the defendant:

(1) Uses or attempts to use a dangerous weapon during the commission of the crime of domestic

violence or dating violence;

(2) Strangulation or suffocation of domestic violence or dating violence victim occurs;

(3) The defendant caused an injury to the victim of domestic violence or dating violence which

required medical treatment;

(4) The victim suffered a traumatic brain injury and the injury stems from being a victim of

domestic violence or dating violence; or

(5) The victim is pregnant with an unborn child and is a victim of domestic violence or dating

violence.

The crime of aggravated domestic violence shall be a Class F crime.

5-44-6 DATING VIOLENCE. A person commits the crime of dating violence if the defendant:

(1) Purposely or knowingly causes bodily injury to a romantic or intimate partner; or

(2) Purposely or knowingly causes apprehension of bodily injury to a romantic or intimate

partner

The crime of dating violence shall be a Class B crime.

5.44-7 PROTECTION ORDER VIOLATION. A person commits the crime of violation of a

protection order if the defendant:

(1) purposely or knowingly violates a protection order, within the territorial jurisdiction of the

Rosebud Sioux Tribe that prohibits or provides protection against violent or threatening acts or

sexual assault, harassment against, contact or communication with, or physical proximity to

another person.

The crime of protection order violation shall be a Class B crime.

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Attachment #1

Adding Chapter 44 to Title Five, and Repealing Title 5, Chapter 38 in its entirety

Ordinance # 2020-01

5-44-8. MANDATORY ARREST.

A. The law enforcement officer shall arrest a person, anywhere, with or without a warrant,

including at the person's residence, if the officer has probable cause to believe:

(1) an assault has occurred which has resulted in bodily injury to the to an intimate partner or

family member, whether the injury is observable to the officer or not; or

(2) that the defendant has caused apprehension of bodily injury to an intimate partner or family

member; or

(3) that the defendant violated a protection order after the law enforcement officer has verified

the existence of the protection order.

B. For a violation of 5-44-4, 5-44-5, 5-44-6 or 5-44-7, the officer, under this chapter is not

required to arrest both parties when he or she believes the parties have assaulted one another.

The decision to arrest shall not require the consent of the victim.

C. The officer shall arrest the person whom he or she believes to have been the primary

aggressor. In making this determination, the officer shall make every reasonable effort to

consider:

(1) the Rosebud Sioux Tribe's the intent to protect the victims of domestic violence, dating

violence, and stalking;

(2) the comparative extent of injuries inflicted or serious threats creating fear of physical injury;

(3) the history of domestic violence, dating violence and stalking between the persons involved;

and

(4) whether one of the persons acted in self-defense.

D. The officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties

in order to discourage requests for intervention by law enforcement by any party. The officer will

not consider the use or abuse of alcohol or controlled substances by either party in making a

determination as to whether the crime of domestic, dating violence or stalking has been

committed.

5-44-9 MANDATORY HOLD UPON ARREST.

Any person arrested under this chapter shall be held in custody without bail and the defendant

shall be taken before the Judge not more than 24 hours after the defendant's arrest. This is a

mandatory "cooling off" period. In no case shall any person be released prior to the expiration of

24 hours from arrest, unless good cause is shown before the court, the court may consider a

continuance of custody or release through a hearing on the matter.

5-44-10 FILING OF COMPLAINT.

Attachment #1

Adding Chapter 44 to Title Five, and Repealing Title 5, Chapter 38 in its entirety

Ordinance # 2020-01

(1) The law enforcement officer shall submit a detailed report of the circumstances of the arrest,

along with statements from the victim and other witnesses to the Tribal Prosecutor. The law

enforcement officer will collect all credible evidence of the alleged crime, taking special note in

the detailed report of any Wakanyeja present.

(2) The law enforcement officers report shall describe the relationship of the alleged abuser and

the victim, whether the alleged abuser is an Indian or non-Indian, whether the victim is an Indian

and the nature of their relationship.

(3) The victim may be subpoenaed as the primary witness for the prosecution but must not be

forced to testify under threat of warrant (7-1-6 (5)(d)).

5-44-11 LIABILITY OF LAW ENFORCEMENT OFFICERS.

A law enforcement officer shall not be held liable in any civil action for an arrest based on

probable cause, enforcement in good faith of a court order, or any other action or omission in

good faith under this chapter arising from an alleged incident of domestic violence or dating

violence or violation of a protection order brought by any party to the incident.

5-44-12 NOTICE OF RIGHTS.

The law enforcement officer shall inform the victim of domestic or dating violence whether a

shelter or other services are available in the community and give the victim immediate notice of

the legal rights and remedies available. The notice must include all of victim's right to the

following:

(1) The victim has a right to seek an order restraining the abuser from further acts of violence;

(2) The victim has a right to seek an order directing the abuser to leave the household;

(3) The victim has a right to seek an order preventing the abuser from entering the victims'

residence, school, business or place of business;

(4) The victim has a right to seek an order awarding custody or visitation with any minor

Wakanyeja (children); and

(5) The victim has a right to seek an order directing the abuser to pay support to the victim and

minor Wakanyeja (children) where appropriate.

(6) The victim has a right to seek restitution for any property destroyed or damaged.

5.44-13. WRITTEN REPORT. Whenever a law enforcement officer is called to the scene of a

reported incident of domestic violence or dating violence, and he or she does not make an arrest,

he or she shall file a written report with his or her supervisor, setting forth the reason or reasons

for his or her decision. These reports will then be complied and on a quarterly basis be presented

to the Rosebud Sioux Tribe's Judiciary Committee and other agencies to be reviewed,

Attachment #1

Adding Chapter 44 to Title Five, and Repealing Title 5, Chapter 38 in its entirety

Ordinance # 2020-01

5-44-14 PENALTIES.

Sentencing. Any person convicted of Domestic Violence, Dating Violence or Violation of a

Protection Order shall be sentenced to the following:

There is no time limit between the previous conviction and the current charge to increase

the penalty under this section.

(1). A person convicted for a first offense for domestic violence and dating violence or violation

of a protection order is a Class B offense. A person convicted of a first offense under 5-44-4, 5-

44-6, 5-44-7 shall be imprisoned for a term of not less than 15 days or more than 90 days and

maybe fined in an amount not to exceed, five hundred dollars ($500.00).

(2). A person convicted of a second offense for domestic violence and dating violence or

violation of a protection order is a Class A. A person convicted of a second offense under 5-44-4,

5-44-6, 5-44-7 shall be imprisoned for a term of not less than 30 days or more than 180 days and

maybe fined an amount not to exceed, one thousand dollars ($1,000.00).

(3). A person convicted of third or subsequent domestic violence and dating violence or

violation of a protection order is a Class F Offense. A person convicted of a third or subsequent

offense 5-44-4, 5-44-6, 5-44-7 shall be imprisoned for a term for not less than 120 days or more

than 3 years and maybe fined in an amount not to exceed ten thousand dollars ($10,000) or both.

(4). A person convicted of a first offense aggravated domestic violence or dating violence, 5-44-

5 is a Class F Offense and shall be imprisoned for a term of not less than 180 days or more than 3

years and maybe fined an amount not to exceed ten thousand dollars ($10,000.00).

(5). A person convicted of a second or third offense of aggravated domestic violence or dating

violence, 5-44-5 is a Class F Offense and shall be imprisoned for a term of not less than one (1)

year or more than 3 years and maybe fined an amount not to exceed ten thousand dollars

($10,000.00).

A. In addition to the penalties proscribed in this section, the court shall order mandatory

batterer's intervention as part of the sentence, and other such interventions may include, but is

not limited to alcohol/drug abuse assessments, and if recommended treatment, mental health

assessments, and treatment, parenting classes for defendants whose children were exposed to the

abuse that had taken place. Counseling shall be made available for the Wakanyeja (children) of

the defendant and the Wakanyeja (children) of the victim. Persons who practice traditional

Indian religion shall be entitled to counseling by a Medicine Man recognized in the community

as such. Defendants may at the discretion of the Court be ordered to pay restitution to the victim,

pay the costs of the counseling for Wakanyeja, pay the costs of batterer's intervention programs,

alcohol/drug assessment and any other treatment, including parenting classes. The Defendant

may be ordered to pay for his or her defense. The Court may order any other alternative

sentencing, such as community service, assisting the elderly, attending local program and

organizational educational programs or cultural relevant activities.

Attachment #1

Adding Chapter 44 to Title Five, and Repealing Title 5, Chapter 38 in its entirety

Ordinance # 2020-01

5-44-15 REPORTING STATISTICS.

In all cases of domestic violence, dating violence, and violation of protection orders under this

chapter, the officer-involved shall make a written report and the numbers of such cases shall be

tabulated. A quarterly report shall be made by the police department, setting out the numbers of

reports of domestic violence, dating violence, and violation of protection orders under this

chapter, including investigations and arrests. Reports will also include the number of alleged

non-Indian suspects and victims, and the gender of alleged suspects. Such statistics shall be made

available to appropriate agencies and the public.

§ -44-16 SEVERABILITY.

If any part of this Code is invalidated by a court of competent jurisdiction, all valid parts that are

severable from the invalid part remain in effect. If a part of the Code is invalid in one or more of

its applications, that part remains in effect in all valid applications that are severable from the

invalid applications.

(History-Adopted Ord. 88-07," Illegal Misuse and Sale of Commodities", Ord. 89-01 to Amend

to "Domestic Abuse" Chapter, Res. 89-8, Corrects 88-07, changes" Illegal Misuse and Sale of

Commodities" to Title 41, reaffirms "Domestic Abuse" Chapter 38, Ord. 90-02, Chapter 38 to

"Fireworks", Res. 95-22]amends Ord. 90-02 "Fireworks" amended and moved to Title 16, Ord.

2016-171, Amends Sec, 5-38-1).