CHAPTER 16-1
PRELIMINARY PROVISIONS

16-1-1 Scope, Purpose and Construction.

(A)    This Title governs the procedure in all criminal proceedings in the Nation’s Tribal District Court and all preliminary or supplementary procedures as specified herein.

(B)    Every proceeding in which a person is charged with a criminal offense of any degree and brought to trial and punished is a criminal proceeding.

(C)    This Title is intended to provide for the just determination of every criminal proceeding. It shall be construed to secure simplicity in procedure, fairness in administration of justice and the elimination of unjustifiable expense and delay.

(D)    In any case wherein no particular procedure in provided herein, resort shall be made to the civil and appellate procedure provisions of this Code or other applicable tribal law, subject always to the rights of the defendant. If no procedure is provided in either this Title, the Code, or other tribal law, the court may proceed in any lawful fashion while protecting the rights of the defendant.

16-1-2 Prosecution of Offenses.

(A)    No person shall be punished for an offense except upon a legal conviction, including a plea or admission of guilt or nolo contendere in open court, by a court of competent jurisdiction, provided, however, that no incarceration or other disposition of one accused of an offense prior to trial in accordance with this Title shall be deemed punishment.

(B)    All criminal proceedings shall be prosecuted in the name of the Nation plaintiff, against the person charged with an offense, referred to as the defendant.

(C)    The case number prefix assigned to criminal actions shall be sufficiently different and unique from the prefix assigned to other types of cases to clearly distinguish them.

16-1-3 Rights of Defendant.

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

(A)    To appear and defend in person or by counsel at the defendant’s expense except:

(1)    Trial of traffic, hunting and fishing offenses not resulting in injury to any person nor committed while using alcohol or non-prescription drugs, or offenses of a civil regulatory nature involving a non-Indian offender may be considered civil proceedings and may be prosecuted without the presence of the defendant upon a showing that the defendant received actual and reasonable notice prior to the proceeding.

(2)    The defendant may represent himself or be represented by an adult enrolled Tribal member with leave of the court, if such representation is without charge to the defendant, or by any attorney or advocate admitted to practice before the tribal court, but no defendant shall have the right to have appointed professional counsel provided at the Nation’s expense. However, the privilege to have counsel appointed may be granted by the court or any tribal law as may be provided in the rules of the court relating to attorneys and lay advocates.

(3)    If the defendant is charged with a crime, with potential sentencing in excess of one year and the Tribal Court is not exercising Special Tribal Criminal Jurisdiction:

(a)    The defendant shall have the right to be represented by an attorney 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; and

(b)    If the defendant is indigent, the Court shall, at the Nations’ expense, provide the defendant with an attorney meeting the qualifications in subsection (3)(a) of this section at all critical stages of the criminal proceeding.

(B)    In all proceedings in which the Tribal Court is exercising Special Tribal Criminal Jurisdiction as a participating tribe,

(1)    all rights afforded by the Nation’s Constitution and Law and Order Code shall apply and those enumerated in the Indian Civil Rights Act, 25 U.S.C. 1302 to all defendants. Should there be any inconsistency between the Nation’s Constitution or Law and Order Code and 25 U.S.C. 1302, those of 25 U.S.C. 1302 shall apply.

(2)    every non-Indian defendant has the privilege of the writ of habeas corpus to test the legality of the detention by order of the Nation and may petition the Court to stay further detention pending the habeas proceeding.

(i)    An application for a writ of habeas corpus on behalf of a person in custody pursuant to an order of a Tribal court shall not be granted unless:

(a)    the applicant has exhausted the remedies available in the Tribal court system;

(b)    there is an absence of an available Tribal corrective process; or

(c)    circumstances exist that render the Tribal corrective process ineffective to protect the rights of the applicant.

(3)    where a term of imprisonment of any length may be imposed on a defendant, the Nation shall—

(i)    provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and

(ii)    at the expense of the Nation, provide an indigent defendant the assistance of a defense attorney 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

(C)    To be informed of the nature of the charges against the defendant and to have a written copy thereof.

(D)    To testify in his or her own behalf, or to refuse to testify regarding the charge, provided, however, that once a defendant takes the stand to testify on any matter relevant to the immediate proceeding, the defendant shall be deemed to have waived all right to refuse to testify in that immediate criminal proceeding. The defendant shall not, however, be deemed to have waived the right to remain silent in other distinct phases of the criminal trial process.

(E)    To confront and cross-examine the witnesses against the defendant.

(F)    To compel by subpoena the attendance of witnesses in the defendant’s own behalf.

(G)    To have a speedy public trial by an impartial judge or jury as provided in this Code and; upon request for an offense punishable by imprisonment, to have a trial by jury of not less than six persons.

(H)    To appeal in all cases.

(I)    To prevent a present spouse from testifying against the other spouse concerning any matter, which occurred during such marriage, except;

(1)    In any case in which the offense charged is alleged to have been committed against the spouse or the immediate family, or the children of either the spouse or the defendant, or against the marital relationship and

(2)    Any testimony by the spouse in the defendant’s behalf will be deemed a waiver of this privilege.

(J)    Not to be twice put in jeopardy by the Nation for the same offense.

(Amended by PBP TC No. 2023-276, September 21, 2023)

16-1-4 Limitation of Prosecution.

(A)    Every criminal proceeding except an offense for which banishment is a possible punishment shall be commenced within three years of the date of commission and diligent discovery of the offense, or prosecution for that offense shall be forever barred. Every criminal offense for which banishment is a possible punishment shall be commenced within seven years of the date of commission and diligent discovery of the offense, or prosecution for that offense shall be forever barred.

(B)    If an offense is committed by actions occurring on two or more separate days, the offense will be deemed to have been committed on the day the final act causing the offense to be completed occurred.

(C)    The date of “diligent discovery” is the date at which, in the exercise of reasonable diligence, some person other then the defendant and the co-conspirator(s) know or should have known that an offense had been committed.

(D)    Time spent outside the jurisdiction of the Nation for the purpose of avoiding prosecution shall not be counted toward the limitation period to begin prosecution.

16-1-5 No Common Law Offenses.

No act or failure to act shall be subject to criminal prosecution unless made an offense by some statute of the Nation.