Subpart D-Joint Use Trial Court

§ 12.8 Composition.

The Trial Courts shall consist of a Judge appointed by the Commissioner of Indian Affairs or his duly appointed representative. There shall be a Chief Judge whose duties shall be full time; and there may be one or more Associate Judges who may be called to serve when the occasion arises. The Associate Judges may be hired on contract and compensated on a per diem basis.

§ 12.9 Court sessions.

(a) Regular sessions of the Trial Courts may be held on a regular workday at times and places designated by the Chief Judge.

(b) Special sessions of the Trial Courts may be held as necessary upon call of the Chief Judge: Provided, That such sessions are held at reasonable times and places.

§ 12.10 Qualification of judges.

Any person over the age of 21 years shall be eligible to serve as a Judge of the Court if he has never been convicted of a felony or, within the preceding year, been convicted of a misdemeanor other than a minor traffic violation. Such person shall complete a course of training in judicial procedures.

§ 12.11 Disqualification.

No Judge shall hear or determine any case wherein he has any direct interest or wherein any relative, by marriage or blood in the first or second degree, is a party. Any party to a proceeding may raise the issue of the qualification of the Judge to hear the

case.

§ 12.12 Removal.

(a) Any Judge of the Court may be suspended, dismissed, or removed by the Commissioner of Indian Affairs or his representative for any of the following reasons:

(1) Conviction of felony in any court; (2) Conviction of any offense involving moral turpitude in any court;

(3) Conviction of the offense of disorderly conduct;

(4) Being under the influence of alcoholic beverages while presiding over the Court;

(5) Any other conduct unbecoming to a Judge of the Court.

(b) A Judge shall be given full and fair opportunity to reply to any and all charges for which he may be removed from his judicial office.

Subpart E-Jurisdiction of Court

§ 12.13 Jurisdiction.

(a) The Trial Court of the Courts of the former Joint Use Area shall have jurisdiction over all offenses enumerated in the code when committed by any person within the former Joint Use Area.

(1) All persons employed by the Bureau of Indian Affairs shall be subject to jurisdiction of the Courts.

(b) The jurisdiction of the Courts shall be exclusive of any other court over those matters pertaining to livestock reduction, range restoration, surveying, monumenting and fencing within the former Joint Use Area with respect to any offense enumerated herein over which a Federal Court may assert jurisdiction, the jurisdiction of the Courts shall be concurrent and not exclusive.

Subpart F-Rules and Court Powers § 12.14 Court rules.

The Chief Judge of the Trial Court shall promulgate rules to govern the proceedings in the Trial Courts, subject to the approval of the Project Officer of the former Joint Use Area, Provided, That such rules shall not abridge, enlarge, or modify any substantive rights and shall preserve the right of trial by jury as provided in Subpart H, § 12.45 of this chapter.

§ 12.15 Powers of the courts.

The Court of Appeals and the Trial Courts shall have, but not be limited to, the following powers:

(a) To punish for contempt any of its officers or other persons present at judicial proceedings;

(b) To compel witnesses to attend and testify and to produce documents

or other tangible objects to be used as evidence, Provided, That a defendant in a criminal trial may not be compelled to be a witness against himself.

Subpart G-Court Officials

§ 12.16 Officers of the courts.

Officers of the Courts shall include: (a) Court Clerks and court interpreters;

(b) Police Officers, Probation Officers, and other persons when carrying out orders of the Courts;

(c) Professional and lay counsel representing parties before the Courts; (d) Bailiffs; and

(e) Prosecutor.

§ 12.17 Court clerks.

(a) A person shall be employed to serve the Courts and shall be known as the Clerk of the Court. Additional clerks may be employed as necessary.

(b) The Clerk of the Court is charged with the duty of assisting the lawful functioning of the courts. Such duties shall include, but not be limited to, the following:

(1) Drafting complaints, subpeonas, warrants, writs, or other orders of the Court;

(2) Maintaining records of court proceedings;

(3) Administering oaths;

(4) Collecting and accounting for fines and other property taken into the custody of the Courts;

(5) Accepting bonds; and

(6) Filing notices of appeal and petitions.

§ 12.18 Representation before the courts.

A person before the Courts may represent himself or have another person or a professional attorney serve as his counsel.

Subpart H-General Provisions

$12.19 Public records.

Except as otherwise provided in this Code, the Courts shall keep open for inspection a record of all proceedings of each Court. Such record shall reflect the title of the case, the names and addresses of parties and witnesses,

the substance of the complaint the date of the hearing or trial, by whom conducted, the findings of the Court or jury, and the judgment or order entered, together with any other facts or circumstances deemed of importance to the case.

§ 12.20 Copies of laws.

The Courts shall be provided with. or have access to, all tribal, Federal and state laws and regulations of the Bureau of Indian Affairs applicable to the conduct of persons within the boundaries of the former Joint Use Area.

§ 12.21 Complaints

(a) All prosecutions for violation of the Code of Offenses shall be initiated by complaint. A Complaint is a written statement sworn to by the complaining witness and charging that a named individual(s) has committed a particular criminal offense.

(b) Complaints shall contain:

(1) The signature of the complaining witness sworn to before a judge or an individual designated by the Chief Judge; and

(2) A written statement by the complaining witness describing in ordinary language the nature of the offense committed including the time and place as nearly as may be ascertained; and

(3) The name or description of the person alleged to have committed the offense; and

(4) The section of the Code of Offenses allegedly violated.

(c) The Chief Judge of the Court may designate an individual who shall be available to assist persons in drawing up complaints and who shall screen them for sufficiency. Complaints shall then be submitted without unnecessary delay to a judge to determine whether a warrant or summons should be issued.

(d) If the complaint, or the complaint together with other sworn statements, is sufficient to establish probable cause to believe that a crime has been committed by the person charged, the court shall issue a warrant pursuant to § 12.23 of this Code instructing the police to arrest the

named accused or, in lieu thereof, the court shall issue a summons commanding the accused to appear before the court at a specified time and place to answer to the charge.

(e) When an accused has been arrested without a warrant, a complaint shall be filed forthwith with the court for review as to whether probable cause exists to hold the accused, and in no instance shall a complaint be filed later than at the time of arraignment.

§ 12.22 Arrests.

(a) Arrest is the taking of a person into police custody in order that he may be held to answer for a criminal offense.

(b) No police officer shall arrest any person for a criminal offense set out in the Code except when:

(1) The officer shall have a warrant signed by a Judge of the Courts commanding the arrest of such person, or the officer knows for a certainty that such a warrant has been issued; or

(2) The offense shall occur in the presence of the arresting officer; or

(3) The officer shall have probable cause to believe that an offense has been committed and that the person to be arrested has committed the offense.

§ 12.23 Arrest warrants.

(a) Every Judge of the Courts shall have authority to issue warrants to arrest and such warrants shall be issued only upon a showing of probable cause in sworn written statements. The Trial judge shall deny the issuance of a warrant, if he finds that there is not probable cause to believe that the offense charged has been committed by the named accused.

(b) The arrest warrant shall contain the following information:

(1) Name or description and address, if known, of the person to be arrested. (2) Date of issuance of the warrant. (3) Description of the offense charged.

(4) Signature of the issuing judge.

§ 12.24 Notification of rights at time of arrest.

Upon arrest the suspect shall be advised of the following rights:

(a) That he has the right to remain silent.

(b) That any statements made by him may be used against him in court. (c) That he has the right to obtain counsel at his own expense.

(d) That if he wishes to answer questions of the police, he may have his counsel present with him.

§ 12.25 Summons in lieu of warrant.

(a) When otherwise authorized to arrest a suspect a police officer or a judge may, in lieu of a warrant, issue a summons commanding the accused to appear before the Court at a stated time and place and answer to the charge.

(b) The summons shall contain the same information as a warrant, except that it may be signed by a police offi

cer.

(c) If a defendant fails to appear in response to a summons, a warrant for his arrest shall be issued.

§ 12.26 Hot pursuit.

A police officer may arrest a person beyond the territorial boundaries of the former Joint Use Area when such officer has probable cause to believe that the person has committed an offense and is attempting to escape arrest.

§ 12.27 Search warrant-defined.

A search warrant is a written order signed by a Court judge, and directed to a police officer ordering him to conduct a search and seize items or property specified in the warrant. A warrant shall describe the property or place to be searched and shall describe the items or person to be seized.

§ 12.28 Issuance of search warrant.

(a) Every Court judge shall have the power to issue warrants for the search and seizure of property and premises of any person under the jurisdiction of the court.

(b) No warrant of search and seizure shall be issued except upon probable cause that a search will discover:

Stolen, embezzled or contraband or otherwise criminally possessed property; property which has been or is being used to commit a criminal offense; or property which constitutes evidence of the commission of a criminal offense. Such probable cause shall be supported by a duly signed, written and sworn statement based upon reliable information.

§ 12.29 Execution and return of search

warrant.

Warrants of search and seizure shall only be executed by police officers. The executing officer shall return the warrant to the Court within the time limit shown on the face of the warrant, which in no case shall be longer than 10 days from the date of issuance. Warrants not returned within such time limit shall be void.

§ 12.30 Search without a warrant.

No police officer shall conduct any search without a valid warrant except: (a) Incident to making a lawful arrest; or

(b) With consent of the person being searched; or

(c) When he has probable cause to believe that the person searched may be armed and dangerous; or

(d) When the search is of a moving vehicle and the officer has probable cause to believe that it contains contraband, stolen, or embezzled property.

§ 12.31 Contraband, confiscated, and

abandoned property.

(a) The disposition of all property, confiscated as contraband, seized as evidence, or otherwise taken into the custody of the Court, shall be determined at a hearing before a Trial Court.

(b) The Trial Court shall, upon satisfactory proof of ownership, order such property to be delivered to the rightful owner, unless such property is required as evidence, it shall not be returned until final judgment in the case is entered. In no case shall property be returned where possession of such property is unlawful; such property may be declared property of the United States. However, property de

livered to the custody of the Court by a private person shall become the property of such person if it is not claimed within 30 days after the hearing.

(c) Any property declared to be the property of the United States may be dealt with as authorized by Federal law.

(d) The Clerk of the Court shall keep written records of all transfers and dispositions of property taken into the custody of the Court.

(e) Contraband shall mean:

(1) Any property, under this Code, which is illegal to possess.

§ 12.32 Arraignment.

(a) Arraignment is the bringing of an accused before the court, informing him of his rights and of the charge against him, receiving his plea, and setting bail as appropriate in accordance with § 12.35.

(b) Arraignment shall be held in open court without unnecessary delay after the accused is taken into custody and in no instance shall arraignment be later than the next regularly scheduled session of court.

§ 12.33 Rights of accused at arraignment.

Before an accused is required to plead to any criminal charge the judge shall:

(a) Read the complaint to the accused and determine that he understands the complaint and the section of the Code which he is charged with violating, including the maximum authorized penalty; and

(b) Advise the accused that he has the right to remain silent; to be tried by a jury; and to be represented by counsel at his own expense and that the arraignment will be postponed should he desire to consult with counsel.

§ 12.34 Receipt of plea at arraignment.

(a) If the accused pleads "not guilty" to the charge the judge shall then inform him of a trial date and set conditions for bail prior to trial.

(b) If the accused pleads "guilty" to the charge the judge shall determine that the plea is made voluntarily and that the acused understands the con

sequences of the plea, including the rights which he is waiving by the plea. The judge may then impose sentence or defer sentencing for a reasonable time in order to obtain any information he deems necessary for the imposition of a just sentence. The accused shall be afforded an opportunity to inform the court of facts in mitigation of the sentence.

(c) If the accused refuses to plead, the judge shall enter a plea of not guilty on his behalf.

§ 12.35 Bail-Release prior to trial.

Every person charged with a criminal offense before the Court shall be entitled to release from custody pending trial under whichever one or more or the following conditions is deemed necessary to reasonably assure the appearance of the person at any time lawfully required:

(a) Release on personal recognizance upon execution by the accused of a written promise to appear at trial and all other lawfully required times.

(b) Release to the custody of a designated person or organization agreeing to assure the accused's appearance.

(c) Release with reasonable restrictions on the travel, association, or place of residence of the accused during the period of release.

(d) Release after deposit by the accused or a bail bondsman's bond in either cash or other sufficient collateral in an amount specified by the judge or a bail schedule. The judge, in his discretion, may require that the accused post only a portion of the total bond, the full sum to come due if the accused fails to appear as ordered.

(e) Release after execution of bail agreement by two responsible members of the community.

(f) Release upon any other condition deemed reasonably necessary to assure the appearance of the accused as required.

§ 12.36 Bail-Release by police officer.

Any Police Officer authorized to do so by the court may admit an arrested person to bail pursuant to the bail schedule or release upon personal recognizance. Police Officers shall have available a bail schedule prepared by

the court which shall be used for setting money bond where such condition of release is deemed necessary. Any Police Officer who refuses to release an accused on bail or who specifies a bail condition which the accused is unable to satisfy shall bring such accused before a judge for review of the release conditions at the first available opportunity and without unnecessary delay.

§ 12.37 Bail-Release pending appeal.

Every person who has been convicted of an offense and who has filed an appeal or a petition for a writ of habeas corpus shall be treated in accordance with the provisions of § 12.36 of this chapter unless the judge has substantial reason to believe that no conditions of release will reasonably assure the apearance of the accused or that release of the accused is likely to pose a danger to the community, to the accused, or to any other person. If the judge finds such to be the case he may order detention of the accused.

§ 12.38 Withdrawal of guilty plea.

The court may, in its discretion, allow a defendant to withdraw a plea of guilty whenever it appears that the interest of justice and fairness would be served by doing so.

§ 12.39 Issuance of subpoenas.

(a) Upon request of any party to a case or upon the court's own initiative, the court shall issue subpoenas to compel the testimony of witnesses, or the production of books, records, documents or any other physical evidence which is relevant and necessary to the determination and not an undue burden on the person possessing the evidence of the case. The clerk of the court may act on behalf of the court and issue subpoenas which have been signed by a judge and which are to be served within the confines of the former Joint Use Area.

(b) A subpoena shall bear the signature of the Chief Judge or an Associate Judge of the Court and it shall state the name of the court, the name of the person or description of the physical evidence to be subpoenaed, the title of the proceeding, and the