CHAPTER 8

CRIMINAL PROCEDURES

SECTION 1. COMPLAINT.

1-1. Complaint.

(a) A complaint is a written statement of the essential facts charging that a named individual has committed a particular offense. All criminal prosecutions shall be initiated by a written complaint filed with the Tribal Prosecutor and sworn to by a person having personal knowledge of the offense.

(b) Complaint shall contain:

The signature of the complaining witness, or witnesses, sworn to before a Tribal Prosecutor or any law enforcement officer.
A written statement by the complaining witness and/or witnesses having personal knowledge of the violation describing in ordinary language the nature of the offense committed including the names of all persons involved, time and place as nearly as may be ascertained.
The name or description of the person alleged to have committed the offense.
A description of the offense charged.

(c) The Chief Prosecutor may designate an individual or individuals 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 prosecutor to determine whether an arrest warrant or summons should be issued.

1-2. Time limit for commencing criminal prosecution.

No prosecution for an offense under this Code shall be maintained unless the complaint is filed within one (1) year after the commission of the offense.

SECTION 2. ARRESTS.

2-1. Arrest.

(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 law enforcement officer shall arrest any person for a criminal offense except when:

A judge has signed a warrant commanding the arrest of such person, and the arresting officer has the warrant in his possession or knows for a certainty that such warrant has been issued; or
The offense shall occur in the presence of the arresting officer; or
In the case of a felony, an officer shall have probable cause to believe that the person arrested committed the offense.

(c) All law enforcement officers shall immediately arrest any person who commits a criminal offense in the presence of the officer.

2-2. Arrest Warrants.

(a) Judges shall have authority to issue warrants to arrest if they find that there is probable cause to believe that an offense against tribal law has been committed by the named accused, based on sworn written statements.

(b) The 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.

(c) The warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, but upon request shall, as soon as possible, show it to the defendant.

(d) A warrant shall not be executed outside the boundaries of the Reservation.

2-3. Notification of rights at time of arrest.

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

That he has the right to remain silent and to terminate interrogative interviews at any time.
That any statements made by him may be used against him in court.
That he has the right to obtain counsel at his own expense, and to have such retained legal counsel present at each and every stage of the proceedings.
That he has the right to make at least one completed telephone call to a friend and at least one completed call to a lay counselor or attorney immediately after being registered and identified at the jail, or sooner if there is an unreasonable delay in taking the accused to jail or in processing at the jail.

2-4. Summons in lieu of warrant.

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.
The summons shall contain the same information as a warrant.
The summons shall state that if a defendant fails to appear in response to a summons, a warrant for his arrest shall be issued.
The summons, together with a copy of the complaint, shall be served upon the defendant by delivering a copy to the defendant personally. Service shall be made by an authorized law enforcement officer, who shall make a return of service which shall be filed with the records of the case.

SECTION 3. SEARCHES.

3-1. Search Warrant.

(a) A search warrant is a written order, signed by a tribal judge, directing a law enforcement officer to conduct a search and seize property specified in the warrant. A warrant shall describe with reasonable detail the person, property, or place to be searched and shall describe with reasonable detail the property to be seized.

(b) A warrant shall be issued only by a judge and only upon probable cause that a search will discover: (a) stolen, embezzled, contraband or otherwise unlawfully possessed property; (2) property which has been or is being used to commit a criminal offense; or (3) property which constitutes evidence of the commission of a criminal offense. Such probable cause shall be supported by a sworn affidavit. Warrants shall be served only by authorized law enforcement officers.

3-2. Execution and return of search warrant.

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 limits shall be void. The warrant shall be served between 7:00AM and 7:00PM, unless the judge, upon a showing of good cause therefore authorizes it be served at some other time, and such authorization is noted on the search warrant.

3-3. Search without a warrant.

No law enforcement officer shall conduct any search without a valid warrant except:

Incident to a lawful arrest; or
With the voluntary consent of the person being searched or person entitled to possession of property being searched; or
When the search is of a moving vehicle and the officer has probable cause to believe that it contains contraband, stolen property, or property otherwise unlawfully possessed.
When law enforcement officers have an articulable or reasonable suspicion that someone may be involved in criminal activity.

3-4. Disposition of seized property.

(a) The officer serving and executing a warrant shall make an inventory of all property seized and a copy of this inventory shall be left with every person from whom property is seized. The list shall bear the name of the officer.

(b) A hearing shall be held by the Court to determine the disposition of all property seized by the police. Upon satisfactory proof of ownership, the property shall be delivered immediately to the owner, unless the property is contraband or is to be used as evidence in a pending case. Property seized as evidence shall be returned to the owner after final judgment. Property confiscated as contraband shall be destroyed or otherwise lawfully disposed of as ordered by the Court. Where there is no claimant of seized property after a reasonable period of time, the Court shall authorize the sale or other deposition of unclaimed property. Proceeds of any sale shall be paid into the OST treasury.

(c) Articles of contraband or property of an illegal nature including illegal firearms shall be destroyed by orders of the Court, except that any articles which are capable of lawful use may in the discretion of the Court be sold.

SECTION 4. ARRAIGNMENT AND RELEASE.

4-1. Arraignment.

Arraignment is the bringing of the accused before the Court, informing him of his constitutional and statutory rights and of the charge against him, receiving his plea, and setting conditions of pre-trial release as appropriate in accordance with this code.
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 then 36 hours after apprehension. Provided that the 36-hour arraignment rule shall not apply to weekends and holidays, but shall begin to run at 8:00 a.m. on the following Monday after a weekend, or at 8:00 a.m. on the day following a holiday. (Amended by Ordinance 94-06).
Before an accused is required to plead in any criminal charges the Judge shall:

Read the complaint to the accused and determine that he understands the complaint and the section of the tribal code which he is charged with violating, including the maximum authorized penalty; and
Advise the accused that he is presumed innocent, that the Government has the burden of providing the elements of the offense beyond a reasonable doubt, that he has the right (a) against self incrimination, (b) to have a speedy and public trial, (c) to confront and cross examine witnesses against him, (d) to be tried by a six member jury if the offense charged is punishable by imprisonment exceeding 30 days, and (d) to be represented by counsel at his own expense, at all stages of the proceeding.

(d) If the arrest was without a warrant, and the defendant is to be continued in custody the Judge shall also determine during arraignment whether there is probable cause to believe that an offense against tribal law has been committed by the named accused. Probable cause may be established by written Offense/Incident Reports.

(e) The Judge shall call upon the defendant to plead to the charge:

If the accused pleads "not guilty" to the charge, the Judge shall then set a trial date and consider conditions for release prior to trial as provided in Section 4-2(a).
If the accused pleads "guilty" or "no contest" to the charge, the Judge shall accept the plea only if he is satisfied that the plea is made voluntarily and the accused understands the consequences 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 be heard by the Court prior to sentencing.
If the accused refuses to plead, the Judge shall enter a plea of "not guilty" on his behalf.

4-2. Release before final judgment of conviction.

(a) Prior to Trial. At arraignment, the Judge shall decide whether to release the defendant from custody pending trial. As conditions of release, the Judge may, to assure the accused's appearance at all times lawfully required:

require the accused to deposit cash or other sufficient collateral, in an amount specified by the Judge;
require the accused, and/or any other designated person or organization satisfactory to the Judge, to execute written promise to appear or to deliver the accused at all required times;
impose reasonable restrictions on the travel, association or place of residence of the accused;
impose any other condition deemed reasonably necessary to assure the appearance of the accused as required.

(b) By Police Officer. Any law enforcement officer authorized to do so by the Court may admit an arrested person to bail pending trial pursuant to a bail schedule and conditions prepared by the Court. The Court may order the release of any person for good cause notwithstanding any prescribed bail schedules and conditions.

(c) Pending Appeal. A convicted person may be released from custody pending appeal on such conditions as the Judge determines will reasonably assure all appearances of the accused unless the Judge determines that the release of the accused is likely to pose a danger to the community, to himself, or to any other person.

(d) The court may revoke its release of the defendant and order him committed at any time where it determines that the conditions of release will not reasonably assure the appearance of the defendant, or if any conditions of release have been violated.

4-3. Withdrawal of guilty plea.

The Court may, in its discretion, allow a defendant to withdraw a plea of guilty, within five days of such plea if it appears that the interest of justice and fairness would be served in doing so.

4-4. Bond forfeiture.

If the defendant fails to appear for any court proceeding after posting a cash bail bond, the cash bail bond shall be forfeited, as a "no contest" determination to the Oglala Sioux Tribe and shall not be refunded.

In the event of the cash bail bond forfeiture the forfeiture shall be considered a "no contest" determination and shall not be refunded. The Tribal Prosecutor in his/her discretion may request the Court for the imposition of additional penalty as authorized by the OST law and order Code.

SECTION 5. TRIAL PROCEEDINGS.

5-1. Rights of defendant in criminal cases.

No person shall twice be put in jeopardy for the same offense, nor shall he be compelled in any criminal case to be a witness against himself. The accused shall have the right to a speedy and public trial, the right to be confronted with and to cross examine witnesses against him, the right to assistance of counsel at his own expense and the right to demand trial by an impartial six member jury if the offense, or combination of offenses, charged is punishable by imprisonment of 30 days or more.

5-2. Issuance of subpoenas.

(a) Upon request of the defendant or upon the Court's own initiative, the Court shall issue subpoenas to compel the testimony and presence of witnesses, or the production of books, records, documents or any other physical evidence relevant to the determination of the case. The subpoena shall not place an undue burden on the person possessing the evidence.

(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 time and place where the witness is to appear or the evidence is to be produced.

5-3. Service of subpoenas.

A subpoena may be served at any place within the confines of the Reservation.
A subpoena may be served by any law enforcement officer or other person appointed by the Court for such purpose. Service of a subpoena shall be made by delivering a copy of it to the person named.
Proof of service of the subpoena shall be filed with the Court by noting on the back of a copy of the subpoena the date, time and place to whom it was delivered. Proof of service shall be signed by the person who actually served the subpoena.

5-4. Failure to obey subpoena.

In the absence of a justification satisfactory to the Court, a person who fails to obey a subpoena may be deemed to be in contempt of court and subject to criminal penalties found in Section 9 Criminal Contempt.

5-5. Witness expenses.

(a) Each witness answering a subpoena shall be entitled to reimbursement of his mileage expenses at the current rate paid by the Court.

(b) The expenses provided for in this section shall be paid by the Tribe upon completion of the trial.

(c) If the Court finds that a complaint was not filed in good faith but with a frivolous or malicious intent, it may order the complainant to reimburse the Tribe for expenditures incurred under this section, and such order shall constitute a judgment against the complainant.

5-6. Trial procedure.

(a) The time and place of court sessions, the rules of evidence to be followed by the Court and all other details of judicial procedure may be set out in rule of court.

(b) The defendant shall be present in court at every stage of the trial; including impaneling the jury, return of the verdict, and imposition of the sentence.

(c) All testimony of witnesses shall be given orally under oath in open court and subject to cross examination. Documentary and tangible evidence shall also be received in open court and available to the defendant.

(d) The defendant is presumed to be innocent. The prosecution has the burden of proving the defendant's guilt beyond a reasonable doubt, including the facts that a crime has actually been committed, and that the defendant committed it with the requisite intent, when intent is an element of the offense.

(e) The prosecution shall present its case first, followed by the case of the defendant. If rebuttal is required, the prosecution shall proceed first, followed by the defendant.

(f) At the conclusion of the evidence, the prosecution and defendant each in turn shall summarize the proof and make final argument, with the prosecution having the right of final rebuttal.

(g) All records relating to statements of confessions of the defendant, or reports of physical, mental, or other scientific tests or examinations relating to or performed on the defendant, when in the possession or control of the Tribe, shall be open to inspection and copying by the defendant.

(h) At any time in the trial process, the Judge may appoint an interpreter of his own selection and may fix the reasonable compensation of such interpreter. An interpreter through whom testimony is communicated shall be put under oath to faithfully and accurately translate and communicate as required by the Judge.

5-7. Jury Trial.

(a) Any person accused of a crime punishable by imprisonment of 30 days or shall be granted a jury trial, upon his or her request made at time of arraignment. A jury consists of at least six members of the Tribe selected at random from a list of eligible jurors prepared each year by the Court.

(b) An eligible juror is a tribal member who has reached the age of 18 years, is of sound mind and discretion, has not been convicted of a felony, has not been dishonorably discharged from the Armed Services, is not a member of the Tribal Council, or a judge, officer, or employee of the Court, and is not otherwise disqualified according to standards established by the Court.

(c) A list of at least 18 resident eligible jurors shall be prepared and maintained by the clerk. Each voting district on the Reservation shall be represented on the list.

(d) Under the supervision of the presiding Judge, a panel of jurors shall consist of six (6) qualified jurors selected from a panel of ten (10) eligible persons taken from the jury list, none of whom has an interest in the case, or is related as spouse, parent, brother, or sister to any of the parties or their attorneys. If the jury panel is exhausted before a sufficient number of jurors are selected for the trial jury, additional jurors shall be drawn by a lot from the jury list for the panel until a trial jury is selected.

(e) The judges of the Court shall have the power to issue subpoenas to compel the attendance of members of the jury panel and of trial jurors. Subpoenas shall be signed by the Judge issuing them.

(f) The Judge assigned to the case shall have the power to excuse persons from jury duty on account of sickness or disability, or for other good cause.

(g) Each party may question members of the panel of prospective jurors for the purpose of selecting a trial jury.

(h) In criminal cases, in addition to disqualifying jurors for cause as determined by the Judge, the prosecution and the defendant shall each be entitled to two preemptory challenges without assigning any cause.

(i) Each member of the jury panel called to service and each juror who serves upon a jury shall be entitled to compensation at a rate to be fixed by the Court, and may, in the discretion of the presiding Judge, be allowed mileage at a rate to be fixed by the Court. All payments or per diem and mileage shall be supported by vouchers signed by the presiding Judge. Such vouchers shall be paid in order of presentation, from available funds on deposit for the purpose.

(j) The judge shall instruct the jurors in all matters of law necessary for their information in reaching their verdict. The judge must also inform the jurors that they are the exclusive judges of all questions of fact. At the close of evidence or at such earlier time during the trial as the Judge directs, any party may file with the Judge written instructions on the law which the party requests the Judge to deliver orally to the jury. At the same time copies of such requests shall be furnished to the opposing party. The Judge shall inform each party of his proposed action upon each request prior to the arguments to the jury, but the Judge shall deliver his instructions to jury after the arguments are completed. No party may assign as error any portion of the Judge's charge or any omission unless he makes his objection and gives his reasons for it before the jury retires to consider the verdict. Opportunity shall be given to make the objection out of the hearing of the jury. Written jury instruction shall be submitted to the jury after they are delivered orally by the Court.

(k) After deliberation in private, the jury in criminal cases shall return to the Judge in open court a verdict of "Guilty" or "Not Guilty" with respect to each defendant. A verdict in criminal cases shall be rendered by the jury unanimously.

SECTION 6. SENTENCES.

6-1. Sentences.

Any person who has been convicted of an offense enumerated in this Code may be sentenced by the Court to one or a combination of the following penalties:

Imprisonment for a period not to exceed the maximum permitted by the code provision defining the offense. Imprisonment may be continuous or intermittent. On any sentence of imprisonment, credit shall be given for all time spent in custody in a institution as a result of the charge for which the sentence was imposed. Imprisonment may include commitment to an appropriate institution or program, either on or off the reservation, for care, treatment, evaluation, or rehabilitation of the offender. Anyone receiving physical custody of a person sentenced by the Court shall be acting solely as an agent of the Tribe and Court. Jurisdiction over a person sentenced to a program or institution off the reservation shall be absolutely retained by the Tribe and the Court. No placement off the reservation shall be valid unless first approved in writing by the Chief Judge and any order of such placement shall specify that the Tribe and the Court retain jurisdiction over any person so placed.
A money fine in an amount not to exceed the maximum permitted by the code provision defining the offense. If the Court determines that a convicted offender is unable to pay for with a money fine assessed under this section, the Court shall allow him a reasonable period of time to pay the entire sum or allow him to make installment payments to the Clerk of the Court at specified intervals until the entire sum is paid. If the offender defaults on such payments the Court may find him in contempt of court and punish him accordingly, but no person shall be held in contempt of court where nonpayment is because of indigence. Any convicted person may, if he so chooses, elect to serve detention time at the rate to be determined by the Court per day as a trustee to be credited against any fine or costs such person owes.
In addition to or in lieu of the penalties above, the Court may require a convicted offender who has inflicted injury upon the person or property of another to make restitution or compensation to the injured person by means of the surrender of property, payment of money damages, or the performance of any other act, including appropriate work detail, for the benefit of the injured party.
In its discretion, the Court may suspend all or any portion of such sentences at any time and release the convicted offender on probation under reasonable conditions imposed by the Court. These conditions may include a requirement that the convicted offender perform labor for the benefit of the Tribe under the supervision of such person as the Court shall direct. If the convicted offender violates the conditions of his probation, the Court may, after giving him notice and the opportunity for a hearing in open court, revoke or alter the terms of his probation, and may, as a penalty for violation of the probation, impose an additional fine or imprisonment.
In determining the character and duration of the sentence to be imposed, the Court shall take into consideration the previous conduct of the defendant, the circumstances under which the offense was committed, whether the offense was malicious or willful, and whether the defendant has attempted to make amends, and shall give due consideration to the extent of the defendant's financial resources and the needs of his dependents.

SECTION 7. CONTEMPT.

The following acts or omission may serve as the basis for finding an individual in contempt of court.

7-1. Disorderly, contemptuous, or insulting behavior toward a Judge while holding Court, which tends to interrupt the course of the proceedings or undermine the dignity of the courts.

7-2. A breach of the peace, or loud boisterous conduct which tends to interrupt the course of a judicial proceeding.

7-3. Deceit, or abuse of process or proceedings of the Court by a party or counselor to a judicial proceeding.

7-4. Disobedience to a lawful judgment, order or process of the Court.

7-5. Assuming to be an Officer, spokesman or other official of the Court and acting as such without authority.

7-6. Rescuing or taking any person or property from the Court or an officer acting under Court order, contrary to the order of the Court.

7-7. Unlawfully detaining or otherwise interfering with a witness or party to an action while such person is going to or from a Court proceeding or attending Court.

7-8. Disobedience to a subpoena duly served, or refusing to be sworn or answer as a witness.

7-9. Any other interference with the process, proceeding, or dignity of the Court while in the performance of his official duties.

SECTION 8. CIVIL CONTEMPT.

A civil contempt is prosecuted to preserve, protect, enforce or restore the duly adjudicated rights of the party to a civil action against one under legal obligation to do or refrain from doing something as a result of a judicial decree or order.

Relief in a civil contempt proceeding may be coercive or compensatory in nature as to the complaining party and may include a fine payable to the Court or to the complaining party or imprisonment of the party in contempt to secure compliance, or both.

SECTION 9. CRIMINAL CONTEMPT.

Conduct which is directed at, or is detrimental to the dignity and authority of the Court is a criminal contempt. Criminal contempt is an offense which may be punishable, at the discretion of the Court based on the nature of the conduct in question, with a fine of up to $500.00 and/or up to six (6) months in jail.

CONTEMPT PROCEDURES:

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 such may be adjudged and punished summarily.
All other contempt shall be determined at a court hearing at which the person accused of contempt is given notice and an opportunity to be heard. The accused shall be given the same rights as guaranteed all other criminal defendants.

RULES OF COURT:

The Chief Judge and Associate Judge, together, may prescribe written rules of Court consistent with the provisions of this Code.

The rules shall be published Rules of Court and filed with the Clerk of Courts and the Secretary of Oglala Sioux Tribal Council.

History: Ordinance 92-14.

SENTENCES

*** Whenever, in the Tribal Code there are imprisonment and fine penalties indicated for the conviction of a crime, said penalties are to be read in the alternative as "and/or" even though said quoted words do not appear between the two penalties indicated in the Resolution or Ordinance.

*** All Justices of the Oglala Sioux Tribal Court are granted the discretion to determine and add costs to any criminal case coming before them where the defendant has pleaded guilty or Nolo Contendere or has been found guilty by the Court.

*** The term "with costs" shall be affixed to all presently legal criminal resolutions, ordinances, and criminal code sections, and as a matter of legislative course in all future criminal code provisions and amendments.

Hist: Per Res. No. 77-161, dtd. 12/12/77, approval on 4/7/78, effective 2/17/78, applicable sections of Code amended.

SECTION 57. NATURE OF SENTENCE.

Any Indian who has been convicted by the Oglala Sioux Tribal Court for violation of a provision of the Penal Code of the Pine Ridge Reservation shall be sentenced by the Court to work for the benefit of the Tribe for any period found by the Court to be appropriate, but the period fixed shall not exceed the maximum period set for the offense in the Code, and shall begin to run from the day of the sentence. During the period of sentence the convicted Indian may be confined in the Agency jail, if so directed by the Court. The work shall be done under the supervision of the Superintendent or of any authorized agent or committee of the Tribal Council as the Court may provide.

Hist: 1937 Code, Ch. 5, Sec. 1.

SECTION 57.1 FAILURE TO WORK - FINE OR IMPRISONMENT.

Whenever any convicted Indian shall be unable to or unwilling to work, the Court shall, in its discretion, sentence him to imprisonment for the period of the sentence or to pay a fine equal to three dollars ($3.00) a day for the same period. For each day that a prisoner works he shall be allowed six dollars ($6.00) per day to be deducted from his fine or credited to his sentence as good time.

Hist: 1937 Code, Ch. 5, Sec. 1, as amended by Ord. #38, and amended by Res. #60-77.

SECTION 57.2 ADDITIONAL PENALTIES.

In addition to any other sentences, the Court may require an offender who has inflicted injury upon the person or property of any individual to make restitution or to compensate the party injured, through the surrender of property, the payment of money damages, or the performance of any other act for the benefit of the injured party.

SECTION 57.3 DETERMINING FACTORS.

In determining the character and duration of the sentence which shall be imposed, the Court shall take into consideration the previous conduct of the defendant, the circumstances under which the offense was committed, and whether the offender has attempted to make amends, and shall give due consideration to the extent of the defendant's resources and the needs of his dependents. The penalties listed in Chapter 6 of these ordinances are maximum penalties to be inflicted only in extreme cases.

Hist: 1937 Code, Ch. 5, Sec. 1.

SECTION 57.4 PROBATION.

Where the sentence has been imposed upon any Indian who has not previously been convicted of any offense, the Oglala Sioux Tribal Court may in its discretion suspend the sentence imposed and allow the offender his freedom on probation upon his signing a pledge of good conduct during the period of the sentence upon the form provided therefore and made a part of these ordinances.

Hist: 1937 Code, Ch. 5, Sec. 2.

SECTION 57.5 VIOLATION OF PROBATION.

Any Indian who shall violate his probation shall be required to serve the original sentence plus an additional half of such sentence as penalty for the violation of his pledge.

Hist: 1937 Code, Ch. 5, Sec. 2.

SECTION 57.6 PAROLE.

Any Indian committed by the Oglala Sioux Tribal Court who shall have, without misconduct, served one-half the sentence imposed upon him by such Court shall be eligible for parole. Parole shall be granted only by a Judge of the Oglala Sioux Tribal Court upon the signing of the form provided therefore and made a part of these ordinances.

Hist: 1937 Code, Ch. 5, Sec. 3.