C:\My Documents\wtmthtml\Criminalcode.html

(5) "Dangerous weapon"or "Dangerous instrument" means anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury, and includes but is not limited to any:

(a) airgun, CO² gun, stun gun, blowgun, explosive device, pistol, or other firearm;

(b) crossbow, bow and arrow;

(d) sling shot, club, blackjack or chain;

(e) sword, sword cane, or spear;

(f) metal knuckles; or

(g) any other instrument capable of lethal use, possessed under circumstances not appropriate for lawful use.

(6) "Deadly weapon" means any instrument, including but not limited to a motor vehicle, used in such manner as to render it capable of causing death or serious physical or psychological injury.

(7) "Defacing" means any unnecessary act of substantially marring any surface or object, by any means, or painting any notice upon any structure, without permission from the owner.

(8) "Drive by Shooting" means intentionally discharging a firearm or the propulsion of any explosive or explosive device from a motor vehicle whether moving or stopped, at a person, another motor vehicle, or structure.

(9) "Firearm" means any weapon which propels an object through the use of gunpowder.

(10) "Judicial Officer" means any Tribal Court Judge, Bailiff, Clerk, Prosecutor, and any attorney, advocate or legal representative licensed to practice in Tribal Court, appearing in court, acting in his/her professional capacity.

(11) "Litter" includes any rubbish, refuse, waste water or material, paper, glass, cans, bottles, organic or inorganic trash, debris, filthy or odoriferous objects, dead animals, sewage or any foreign substance of whatever kind or description, including junked or abandoned vehicles, whether or not any of these items are of value.

(12) "Malicious" means a deliberate act in an unlawful manner with or without ill will.

(13) "Offense" means any criminal conduct prohibited by this Code.

(14) "Participant" means a person who of his or her own will is in the vehicle used in a drive-by shooting, during the drive-by shooting.

(15) "Peace Officer," "Police Officer," "Law Enforcement Officer," or "Officer" means any officer of the White Mountain Apache Tribe Police Department, White Mountain Apache Tribe Game and Fish Department and any other officer authorized by the White Mountain Apache Tribe to enforce this Code and includes reserve officers while authorized to engage in official law enforcement duties for the White Mountain Apache Tribe.

(16) "Person", "he" and "actor" means any natural person and, where relevant, a corporation or unincorporated association.

(17) "Physical injury" means the impairment of physical condition and includes, but is not limited to any skin or bone bruising, pressure sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture of any bones, subdural hematoma, soft tissue swelling, injury to any internal organ, or any physical conditions which imperils the health or welfare of a person.

(18) "Public Servant" means any employee, servant, agent, attorney, or appointed official or contractor of the Tribe.

(19) "Public Office" means any position of employment or appointment with the White Mountain Apache Tribe.

(20) "Reckless" means an act done in conscious disregard of a unjustifiable risk and in gross deviation from reasonable standards of conduct. Ignorance of reasonable standards of conduct resulting from voluntary intoxication is no defense to recklessness.

(21) "School" means any public, private, government, or parochial facility of instruction, including a Head Start or kindergarten program, elementary school, or high school, and any institution of higher learning, including a college or junior college.

(22) "School grounds" means the area within three hundred feet of a school or its accompanying grounds, any public property within one thousand feet of a school or its accompanying grounds, a school bus stop, or any school bus or vehicle which transports pupils to any school.

(23) "Security Officer" means any person employed as a watchman, patrolman, bodyguard, private security guard or other person who performs security guard services, but does not include any regularly commissioned police or peace officer.

(24) "Serious physical injury" means physical injury which creates a risk of death; or which causes serious or permanent disfigurement, or serious impairment of health, or loss or protracted impairment of the function of any bodily organ or limb, or psychological/emotional impairment.

(25) "Sexual contact" means any direct or indirect touching, fondling or manipulating of any part of the genitals, anus, or female breast by any part of the body or by any object, or causing a person to engage in such contact.

(26) "Sexual intercourse" means penetration into the penis, vulva or anus by any part of the body or by any object or manual masturbatory contact with the penis or vulva.

(27) "Tamper" means any act of interference.

(28) "Tribal Council" means the White Mountain Apache Tribal Council.

(29) "Tribe" means the White Mountain Apache Tribe.

SECTION 1.2 JURISDICTION

The White Mountain Apache Tribe has original and absolute jurisdiction on any basis consistent with its sovereignty, constitution and laws to prosecute any person for acts covered under this code, except as may be expressly limited by the laws of the United States. This jurisdiction is not affected by, nor shall it be deemed to preclude, any federal prosecution.

SECTION 1.3 SEVERABILITY

If any provision of this Code, or the application thereof, is held invalid, the remainder of this Code, or other applications of such provision, shall not be affected.

CHAPTER TWO

OFFENSES

SECTION 2.1 ABDUCTION

A. A person is guilty of an offense who wilfully takes, keeps, or entices away:

(1) Any child under the age of 18 years from his parent, guardian or custodian without the consent of the parent, guardian or custodian, or

(2) Any person from his lawful custodian, knowing he has no lawful right to do so.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Three Hundred and Sixty-Five (365) days or to pay a fine not to exceed Five Thousand Dollars ($5,000.00), or both.

SECTION 2.2 ACCOMPLICE LIABILITY

A. A person is an accomplice of another person in the commission of an offense if with the purpose of promoting or facilitating the commission of an offense he:

(1) Solicits such person to commit it; or

(2) Aids or agrees or attempts to aid such other person in planning or committing it; or

(3) Knowingly fails to report injury to and/or death of a person; or

(4) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed one half (1/2) the maximum sentence for the underlying offense or to pay a fine not to exceed one half (1/2) the maximum fine for the underlying offense, or both such term of imprisonment and payment of fine.

SECTION 2.3 ADULTERY

A. A person who has sexual intercourse with another person, either of such persons being married to a third person, is guilty of an offense.

B. No prosecution for adultery shall commence except upon the complaint of an aggrieved wife or husband.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Ninety (90) days or to pay a fine not to exceed One Hundred Fifty Dollars ($150.00), or both.

SECTION 2.4 ASSAULT

A. A person commits assault by:

(1) Intentionally, knowingly, or recklessly causing any physical injury to another person; or

(2) Intentionally placing another person in reasonable apprehension of imminent physical injury; or

(3) Knowingly touching another person with the intent to injure, insult, or provoke such person; or

(4) Threatening another person with death, even if not imminent; or

(5) By threatening force or violence causes another to harm himself or herself.

B. A person found guilty under this Section, may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both.

SECTION 2.5 ASSAULT; AGGRAVATED

A. A person commits aggravated assault if such person commits assault as defined in Section 2.4 under the following circumstances:

(1) Causing serious physical injury to another; or

(2) Using a deadly weapon or dangerous instrument; or

(3) Assaulting a law enforcement officer, security officer, or judicial officer or Tribal Council member while such officer or Council member is acting in his or her official capacity.

B. A person found guilty under this Section shall be sentenced to imprisonment for a period not to exceed Three Hundred Sixty Five (365) days, but not less than Thirty (30) days, and to pay a fine not to exceed Five Thousand Dollars ($5,000.00). Any person sentenced under this Section shall not be eligible for suspension of sentence, probation, parole, or any other release from custody until the sentence imposed by the court is served.

SECTION 2.6 ASSAULT WITH A DEADLY WEAPON

A. A person who willfully causes, attempts to cause, or threatens to cause bodily injury to another by means of a deadly weapon is guilty of an offense.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed One Thousand Dollars ($1,000.00) or both.

C. A person found guilty under this Section of assaulting a law enforcement officer, judicial officer, or Tribal Council member, while such officer or Council member is acting in his or her official capacity, shall be sentenced to imprisonment for a period not to exceed Three Hundred Sixty Five (365) Days or to pay a fine not less than Five Thousand Dollars ($5,000.00), or both.

SECTION2.7 ASSAULT WITH INTENT TO COMMIT RAPE

A. A person who unlawfully attempts to threaten to cause bodily injury, or willfully and unlawfully uses force or violence upon another person, with intent to induce, coerce, or force such other person to submit to sexual intercourse is guilty of an offense.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Three Hundred Sixty-Five (365) days or to pay a fine not to exceed Five Thousand Dollars ($5,000.00), or both.

SECTION 2.8 ASSAULT WITH INTENT TO CAUSE SERIOUS PHYSICAL INJURY

A. A person is guilty of an offense who willfully and unlawfully causes or attempts to cause serious physical injury to another.

SECTION 2.9 ASSAULT WITH INTENT TO KILL

A. A person is guilty of an offense who with intent to kill, willfully and unlawfully causes or attempts to cause physical injury to another.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed Three Hundred Sixty-Five (365) days or to pay a fine not to exceed ) Five Thousand Dollars ($5,000.00) or both.

SECTION 2.10 ATTEMPT

A. A person is guilty of an attempt to commit a crime when, with the intent to commit a specific offense, he does any act which constitutes a substantial step towards the commission of that offense.

(1) Conduct shall not be held to constitute a substantial step under this Section unless it is strongly corroborative of the actor's criminal purpose.

(2) When the actor's conduct would otherwise constitute an attempt under this Section, it is an affirmative defense that he abandoned his efforts to commit the specific offense, or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

(a) Renunciation is not complete if it is in response to law enforcement surveillance or detection, or if it is motivated by any effort/ decision to postpone the criminal conduct until a more advantageous time, or if it is motivated by any effort/decision to transfer the criminal effort to another but similar objective or victim.

(b) The renunciation of one actor does not affect the liability of an accomplice who did not join in such abandonment or prevention.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed of one-half (1/2) the maximum sentence of the underlying offense or to pay a fine not to exceed one-half (1/2) the maximum fine for the underlying offense, or both such term of imprisonment and payment of fine.

SECTION 2.11 BAD CHECKS - ISSUANCE OF

A. A person who issues or passes a check knowing that he does not have sufficient funds in, or on deposit with, the bank or other drawee for the payment in full of the check as well as all other checks outstanding at the time of issuance is guilty of an offense.

B. For purposes of this Section, the issuer's knowledge of insufficient funds may be presumed if either:

(1) The issuer had no account with the bank or other drawee at the time he issued the check; or

(2) Payment was refused by the bank or other drawee for lack of funds on presentation within thirty days after issue and the issuer failed to pay the holder in full the amount due on the check, together with reasonable costs, within twelve days after receiving notice of that refusal.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Five Hundred ($500.00) dollars, or both; and

(1) An order to make restitution to the victim in an amount not less than the face amount of the check or checks, together with all applicable costs and fees. Completion of restitution may be a mitigating factor in any imposition of punishment under this Section.

(2) If a person has been previously convicted for violation of this Section, the court may require restitution in an amount not to exceed twice the amount of the dishonored check or checks or Fifty Dollars ($50.00), whichever is greater, together with all applicable costs and fees.

SECTION 2.12 BEGGING OR SOLICITING

A. A person is guilty of an offense who begs or solicits gifts of money, property or other thing(s) of value on the streets, sidewalks or other public places.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Thirty (30) days, or to pay a fine not to exceed Ninety Dollars ($90.00), or both.

C. This Section shall not apply to any person acting in behalf of any civic, charitable, religious or social organization authorized by the Tribal Council to solicit gifts of money, property or other things of value on the Fort Apache Indian Reservation.

SECTION 2.13 BIGAMY

A. A person is guilty of an offense who marries another person while having a husband or wife living.

B. Subsection A shall not apply to any person whose husband or wife has been absent for five successive years, without being known to such person within that time to be living, nor to any person whose former marriage has been dissolved by any court of competent jurisdiction.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Ninety (90) days or to pay a fine not to exceed Ninety Dollars ($90.00), or both.

SECTION 2.14 BRANDING LIVESTOCK OF ANOTHER

A. A person is guilty of an offense who brands or marks an animal with a brand other than the recorded brand of the owner, or alters or obliterates any brand or mark on any animal not his own, with intent to convert the animal to his or some third person's use without consent of the owner .

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both.

SECTION 2.15 BRIBERY - GIVING

A. A person is guilty of an offense who gives or offers to give to another person money, property or any other thing of value with intent to influence a public servant in the discharge of his public duties.

SECTION 2.16 BRIBERY - RECEIVING

A. A public servant is guilty of an offense who receives or asks to receive any money, property, or other thing of value from any person with the promise or intent to be influenced in the discharge of his or her public duties. This section does not apply to political contributions made without corrupt intent.

C. In addition to any sentence imposed under Subsection B, a person found guilty under this Section forfeits his or her public office.

SECTION 2.17 BRIBERY - SOLICITING

A. A person is guilty of an offense who obtains or seeks to obtain money, property or any other thing of value, upon a claim or representation that he can or will improperly influence the action of a public servant in the discharge of his public duties.

C. In addition to any sentence imposed under Subsection B, a person found guilty under this Section forfeits his or her public office.

SECTION 2.18 CARRYING A CONCEALED WEAPON

A. A person is guilty of an offense who has concealed on or about his person, or within his immediate control, a Dangerous Weapon.

B. Subsection A shall not apply to any person authorized by any tribal government, or state government, or by the government of the United States or any subdivision of any of the aforementioned governments to carry such weapon.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to any a fine not to exceed Five Hundred Dollars ($500.00), or both.

D. Any weapons concealed in violation of this Section shall be subject to seizure and forfeiture as provided in the White Mountain Apache Rules of Criminal Procedure.

SECTION 2.19 CONSPIRACY

A. A person is guilty of conspiracy with another person, or persons, to commit a crime if, with the purpose of promoting or facilitating the crime's commission, he agrees to aid such other person(s) in the planning or commission of such crime.

(1) No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.

(2) Any person guilty of conspiracy, who knows that a person with whom he conspired has also conspired with another person or persons to commit the same crime, is guilty of conspiring with such other person(s), whether or not he knows their identity.

(3) If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

(4) Defense to Conspiracy: Renunciation. In a prosecution for conspiracy, it is a defense that the defendant, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, gave timely warning to law enforcement authorities of the conduct or result which is the object of the conspiracy, or otherwise made a reasonable effort to prevent such conduct or result.

(5) A renunciation is not voluntary and complete within the meaning of this section if it is motivated in whole or in part by:

(a) A belief that circumstances exist which either increase the probability of immediate detection or apprehension of the accused or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose; or

(b) A decision to postpone the criminal conduct or to transfer the criminal effort to another victim, place or another but similar objective.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed one-half (1/2) the maximum sentence for the underlying offense or to pay a fine not to exceed one-half (1/2) the maximum fine for the underlying offense, or both such term of imprisonment and payment of fine.

SECTION 2.20 CONTRIBUTING TO THE DELINQUENCY OF A MINOR

A. An adult person is guilty of an offense who:

(1) Knowingly causes, encourages, or advises a minor to commit an offense as defined under the provisions of the White Mountain Apache Tribe Law and Order Code; or

(2) Knowingly causes, encourages or assists a minor to be delinquent or in need of supervision as defined under the provisions of the Juvenile Code.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Three Hundred Sixty-Five (365) days or pay a fine not to exceed Five Thousand Dollars ($5,000.00), or both.

SECTION 2.21 CRIMINAL NEGLIGENCE

A. A person is guilty of an offense who:

(1) Recklessly endangers the safety of another, or

(2) Acts with careless disregard for the safety of another.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days, or pay a fine not to exceed Five Hundred Dollars ($500.00), or both.

SECTION 2.22 CRIMINAL DAMAGE

A. A person who commits the following is guilty of an offense:

(1) Defacing or damaging property of any person, organization, corporation, government or other entity; or

(2) Tampering with property of any person, organization, corporation, government or other entity so as to substantially impair its function or value; or

(3) Parking any vehicle in such a manner as to deprive livestock of access to the only reasonably available water.

B. A person found guilty under this Section may be imprisoned for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or both.

SECTION 2.23 CRIMINAL DAMAGE; AGGRAVATED

A. A person who commits the following is guilty of an offense:

(1) Defacing, damaging, or in any way changing the appearance of any tribal governmental building or tribally owned building.

(2) Defacing, damaging, or in any way changing the appearance of any building, structure, personal property, or place used for sunrise dance, holy ground shrines, sacred places, holy grounds and any other property, or place used for worship or any religious purpose; or

(3) Defacing or damaging any building, structure, or place used as a school or as an educational facility; or

(4) Defacing, damaging, or tampering with any cemetery, mortuary, or personal property of the cemetery or mortuary or other facility used for the purpose of burial or memorializing the dead.

B. A person found guilty under this Section shall be sentenced to imprisonment for a period not to exceed Three Hundred Sixty Five (365) days or to pay a fine not to exceed Five Thousand Dollars ($5,000.00), or both.

SECTION 2.24 CRIMINAL TRESPASS

A. A person is guilty of an offense who:

(1) Enters or remains upon any public property for an unlawful purpose; or

(2) Without good cause enters, remains upon or traverses private lands or other private property not his own, where notice against trespassing has been reasonably communicated by the owner; or

(3) Knowingly allows his livestock or livestock under his control to occupy or graze on the lands of another.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Ninety (90) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both.

SECTION 2.25 CUSTODIAL INTERFERENCE

A. A person commits custodial interference if, knowing or having reason to know that he or she has no legal right to do so, such person knowingly takes, entices or keeps from lawful custody any child less than eighteen (18) years of age or incompetent, entrusted by authority of law to the custody of another person or institution.

B. If a child is born out of wedlock, the mother is the legal custodian of the child for the purposes of this Section until paternity is established and custody is determined by the court.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred and Eighty (180) days or to pay a fine not to exceed Three Thousand Dollars ($3,000.00) or both.

SECTION 2.26 CRUELTY TO ANIMALS

A. A person is guilty of an offense who:

(1) Recklessly or maliciously inflicts injury, pain, suffering, or death upon any animal; or

(2) Recklessly or maliciously subjects any animal to cruel mistreatment, neglect, deprivation of water or food, or abandonment.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Thirty (30) days or to pay a fine not to exceed Thirty Dollars ($30.00), or both.

SECTION 2.27 DEFAMATION

A. A person is guilty of an offense who, with malice towards another and with intent to harm such other person in his relationship with others, publishes, declares or otherwise communicates to a third person in an unprivileged communication a statement, knowing the statement is false or in reckless disregard of the truthfulness of such statement, which exposes such other person to public hatred, contempt, or ridicule.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Fifty (50) days or to pay a fine not to exceed Fifty ($50), or both.

SECTION 2.28 DISOBEDIENCE TO A LAWFUL ORDER OF THE COURT

A. A person who willfully disobeys any order, subpoena, warrant, or command duly issued by the Tribal Court or any official thereof is guilty of an offense.

SECTION 2.29 DISORDERLY CONDUCT

A. A person is guilty of an offense who:

(1) Engages in fighting or provokes a fight;

(2) Disrupts any lawful public or religious meeting;

(3) Causes unreasonable noise; or

(4) Uses language or gestures knowing them to be obscene or likely to provoke a fight.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed sixty (60) days or to pay a fine not to exceed Sixty Dollars ($60.00), or both.

SECTION 2.30 DISPOSING OF PROPERTY OF DECEDENT'S ESTATE

A. A person is guilty of an offense who, without proper authority, uses, transfers or otherwise disposes of any property of a decedent's estate before the determination of devises, heirs, or other distributees.

SECTION 2.31 DRIVE-BY SHOOTING

A. Any person who is a participant in a drive-by shooting is guilty of an offense.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Three Hundred Sixty Five (365) days or to pay a fine not to exceed Five Thousand Dollars ($5,000.00), or both. Such person shall not be eligible for suspension of sentence, probation, parole or any other release from custody until the sentence imposed by the Court is served.

SECTION 2.32 ESCAPE

A. A person is guilty of an offense who willfully escapes, attempts to escape, assists in an escape from lawful custody, or fails to return to custody at the scheduled time.

B. "Lawful custody" means confinement by court order or actual or constructive restraint by a police officer pursuant to an arrest.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed One Hundred Eighty Dollars ($180.00), or both.

D. Any sentence imposed under this Section shall run consecutively to that of the original offense.

SECTION 2.33 EXTORTION

A. A person is guilty of an offense who compels or induces another person to deliver property to himself or to a third person by threatening that if the property is not delivered, the actor or another will:

(1) Cause physical injury to some person; or

(2) Cause damage to property; or

(3) Accuse some person of a crime or cause criminal charges to be instituted against some person; or

(4) Expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule.

SECTION 2.34 FAILING TO SUBMIT TO TREATMENT OR KNOWINGLY TRANSMITTING A CONTAGIOUS DISEASE

A. A person who knows or has reason to know that he or she is infected with a venereal disease, active tuberculosis, Acquired Immune Deficiency Syndrome (A.I.D.S.), or other contagious disease capable of being transmitted by immediate or intermediate contact, and who willfully exposes another to the disease, in a place other than a medical facility, is guilty of an offense.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Twenty (120) days, provided that any such sentence shall be suspended if the offender submits to and completes medical treatment.

C. The court, upon finding reasonable cause to believe that a person has any of the above diseases, may order the person examined. If upon examination, the person is found to be infected with any of the diseases, the court may order the person to submit to medical treatment as prescribed by competent medical authority.

SECTION 2.35 FAILURE TO SEND CHILDREN TO SCHOOL

[REFER TO SECTIONS 1.1 - 7.4 OF THE WHITE MOUNTAIN APACHE EDUCATION CODE.]

SECTION 2.36 FAILURE TO SUPPORT

A. A person is guilty of an offense who knowingly and without justification fails to support, care for, or protect a spouse, child, or other person for whose support he or she is responsible.

SECTION 2.37 FORGERY

A. A person is guilty of an offense who, with intent to defraud

(1) Alters, falsely signs, or completes any written instrument, or

(2) Passes as genuine that which he knows to be a forged instrument.

B. "Forged instrument" means a written instrument which has been altered, falsely signed or falsely completed.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Five Thousand Dollars ($5,000.00), or both.

SECTION 2.38FRAUD

A. A person is guilty of an offense who obtains property:

(1) By willful misrepresentation of fact; or

(2) By failure to reveal facts which he knows should be revealed.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed One Hundred Eighty Dollars ($180.00), or both.

SECTION 2.39 GAMBLING

A. A person is guilty of an offense who knowingly stakes or risks a thing of value in a game of chance upon an agreement understanding that he or some other person may receive some thing of value depending on the outcome.

B. Under subsection A of this section, "bingo", raffles and lotteries shall not be considered games of chance when conducted by religious or charitable organizations authorized by the Tribal Council to conduct such games.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Twenty (20) days or to pay a fine not to exceed Twenty Dollars ($20) or both.

D. This Section does not apply to entities or the patrons therof authorized to conduct such activities pursuant to the White Mountain Apache Tribe and State of Arizona Gaming Compact and White Mountain Apache Tribe Gaming Ordinance.

SECTION 2.40 HARBORING A FUGITIVE

A. A person is guilty of harboring a fugitive if, with the intent to hinder apprehension, prosecution, conviction or punishment of another for any offense, such person renders assistance to that person.

B. A person renders assistance under this Section, by:

(1) Concealing the other person or the identity of the other person; or

(2) Warning the other person of impending discovery, apprehension, prosecution or conviction. This does not apply to a warning given in connection with an effort to bring another into compliance with the law; or

(3) Providing the other person with money, transportation, a weapon, a disguise or other similar means of avoiding discovery, apprehension, prosecution or conviction; or

(4) Preventing or obstructing by means of force, deception or intimidation anyone from performing an act that might aid in the discovery, apprehension, prosecution or conviction of the other person; or

(5) Suppressing by an act of concealment, alteration or destruction any physical evidence that might aid in the discovery, apprehension, prosecution or conviction of the other person.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Three Hundred Sixty-Five (365) days or to pay a fine not to exceed Five Thousand Dollars ($5,000.00), or both.

SECTION 2.41 ILLICIT COHABITATION

A. A person who lives or cohabits as a man and wife with another person, while not being married to such person, is committing a crime against the cultural integrity of the Tribe and is guilty of an offense.

B. A person found guilty under this section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both.

SECTION 2.42 IMPERSONATING A TRIBAL OFFICIAL

A. A person who impersonates or pretends to be a Tribal official and engages in any conduct with the intent to induce another to submit to his pretended official authority or to rely upon his pretended official acts is guilty of an offense.

B. It is no defense to impersonating a Tribal official that the office the person pretended to hold did not in fact exist.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Sixty (60) days or to pay a fine not to exceed One Hundred Eighty ($180.00), or both.

SECTION 2.43 INCEST

A. A person is guilty of an offense who has sexual intercourse with another person knowing that he or she and such person are related, whether naturally or through adoption as either:

(1) Parent and child,

(2) Grandparent and grandchild (any degree),

(3) Siblings,

(4) Uncle and niece/nephew,

(5) Aunt and nephew/niece, or

(6) First cousins.

SECTION 2.44 INHALING TOXIC VAPORS

A. A person is guilty of an offense who inhales the vapors or fumes of paint, gas, glue, or any other toxic product for the purpose of becoming intoxicated.

SECTION 2.45 INTERFERENCE WITH AN OFFICER

A. A person is guilty of an offense who willfully prevents or attempts to prevent a police officer from effecting an arrest or from otherwise discharging his or her official duty by:

(1) Creating a substantial risk of physical harm to the officer or any other person; or

(2) Employing means of resistance which justify or require substantial force to overcome; or

(3) Knowingly making a false, fraudulent, or unfounded report or statement to an officer; or

(4) Knowingly misrepresenting a fact to an officer.

SECTION 2.46 INTERFERENCE WITH JUDICIAL PROCEEDINGS

A. A person commits interference with Judicial Proceedings if such person knowingly:

(1) Engages in disorderly, disrespectful or insolent behavior during the session of a court which directly tends to interrupt its proceedings or impairs the respect due to its authority; or

(2) Disobeys or resists the lawful order, process or other mandate of a court; or

(3) Refuses to be sworn or affirmed as a witness in any court proceeding; or

(4) Publishes a false or grossly inaccurate report of a court proceeding; or

(5) Refuses to serve as a juror unless exempted by law; or

(6) Fails inexcusably to attend a trial at which he has been chosen to serve as a juror; or

(7) Intimidates a witness or victim or dissuades a witness from testifying.

SECTION 2.47 JOYRIDING

A. A person who, without proper authority, drives, operates or otherwise uses any vehicle, not his own, is guilty of an offense.

SECTION 2.48 LITTERING

A. A person who intentionally commits any of the following is guilty of an offense:

(1) Discards or deposits any litter upon any highway, road or public place, or upon any land, not his own; or

(2) Permits any litter to be thrown from a vehicle which he is operating.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Sixty (60) days or to pay a fine not to exceed One Hundred Eighty Dollars ($180.00), or both.

SECTION 2.49 MAINTAINING A PUBLIC NUISANCE

A. A person is guilty of an offense who:

(1) Endangers the health or safety of another; or

(2) Interferes with the enjoyment of property by willfully or negligently permitting a hazardous, unsightly or unhealthy condition to exist on property under his possession or control; or

(3) Knowingly conducts or maintains a premise or place where persons gather for purposes of engaging in unlawful conduct.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Ninety (90) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both.

C. In addition to any penalty imposed under Subsection B, the court shall order that the nuisance or condition be abated within a reasonable time.

SECTION 2.50 MISUSING PROPERTY

A. A person who, without proper authority, knowingly uses or damages any property not his own is guilty of an offense.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Ninety (90) days or to pay a fine not to exceed Ninety Dollars ($90.00), or both.

SECTION 2.51 NARCOTICS AND DANGEROUS DRUGS

A. A person is guilty of an offense who:

(1) Knowingly possesses, sells, produces, trades, transports, gives away or uses any opium, cocaine, methamphetamine, heroin, or any derivative thereof; or

(2) Knowingly possesses, sells, produces, transports, gives away or uses any controlled substance; or

(3) Knowingly possesses, sells, trades, produces, transports, gives away or uses peyote which is not being used, or intended for use in connection with the bona fide practice of a religious belief, or as an integral part of a religious exercise; or

(4) Knowingly possesses, sells, produces, trades, transports, gives away or uses any vapor-releasing substance containing a toxic substance, including paint, gas or glue or other vapor-releasing toxic substance for the purpose of becoming intoxicated.

B. Subsection A of this Section shall not apply to any transaction, possession, production, transportation, or use for medical purposes, under the prescription or supervision of a person licensed to administer, prescribe, control or dispense the prescribed substances in that Subsection.

C. A person found guilty under Subsection A (1), (2) or (3) may be sentenced to imprisonment for a period not to exceed Three Hundred Sixty-Five (365) days or to pay a fine not to exceed Five Thousand Dollars ($5,000.00), or both; a person found guilty under Subsection A (4) may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or both.

SECTION 2.52 PARTICIPATING IN OR ASSISTING A CRIMINAL STREET GANG

A. A person is guilty of an offense who:

(1) Organizes, manages, directs, or supervises a Criminal Street Gang with the intent to promote or further the criminal objectives of the Criminal Street Gang; or

(2) Entices or induces others to engage in violence or intimidation with the intent to promote or further the criminal objectives of a Criminal Street Gang; or

(3) Furnishes advice or direction in the conduct, financing or management of a Criminal Street Gang's affairs with the intent to promote or further the criminal objectives of a Criminal Street Gang; or

(4) Hires, engages or uses a minor for any conduct preparatory to or in completion of any criminal conduct of a Criminal Street Gang; or

(5) Commits any offense with the intent to promote or further the objectives of a Criminal Street Gang.

B. Any person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days for the first offense and for a period not to exceed Three Hundred and Sixty-Five (365) days for any repeated offense, or to pay a fine not to exceed Five Thousand Dollars ($5,000.00), or both such term of imprisonment and payment of fine. Such person shall not be eligible for suspension of sentence, probation, parole or any other release from custody until the sentence imposed by the court is served.

C. For the purposes of this Section, "Criminal Street Gang" means any group of three or more persons which engages in or has its purpose to engage in conduct prohibited by this Code.

D. Evidence concerning indicia of gang membership including gang related

paraphernalia, tattoos, clothing or colors may be submitted into evidence in any case brought under this Section, with proper foundation.

SECTION 2.53 PERJURY

A. A person who knowingly makes a false statement while under oath, or induces another to do so, is guilty of an offense.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Ninety (90) days or to pay a fine not to exceed Ninety Dollars ($90.00), or both.

SECTION 2.54 POSSESSION, USE OR SALE OF DANGEROUS DRUGS IN DRUG FREE SCHOOL ZONE

A. A person who commits any of the following is guilty of an offense:

(1) To intentionally be present in a drug free school zone to sell marijuana, peyote, prescription-only drugs, dangerous drugs, or narcotic drugs; or

(2) To possess or use marijuana, peyote, dangerous drugs or narcotic drugs in a drug free school zone.

B. A person found guilty under Subsection A(1) of this Section shall be sentenced to imprisonment for a period not to exceed Three Hundred Sixty-Five (365) days, but not less than Ninety (90) days, and to pay a fine not to exceed Five Thousand ($5,000.00) Dollars, or both.

C. A person found guilty under Subsection A(2) of this Section may be sentenced to imprisonment for a period not to exceed Three Hundred Sixty-Five (365) days or to pay a fine not to exceed Five Thousand ($5,000.00) Dollars, or both.

SECTION 2.55 POSSESSION OF DRUG PARAPHERNALIA

A. A person who knowingly uses, or possesses with intent to use, drug paraphernalia is guilty of an offense.

(1) "Drug paraphernalia" means and includes all equipment, products and materials of any kind which are used, intended for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance.

SECTION 2.56 POSSESSION OF MARIJUANA

A. A person who knowingly uses, possesses, plants, cultivates, harvests, sells, possesses for sale, trades, or gives away, marijuana is guilty of an offense.

SECTION 2.57 PROSTITUTION

A. A person is guilty of an offense who:

(1) Solicits or practices prostitution; or

(2) Knowingly provides, keeps, rents, leases, or otherwise maintains any place or premises for the purpose of prostitution.

B. "Prostitution" means engaging in, agreeing to, or offering to engage in sexual intercourse or sexual contact for consideration.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Ninety (90) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both.

SECTION 2.58 PUBLIC INTOXICATION

A. A person is guilty of an offense who appears in a public place while under the influence of alcohol, marijuana, toxic vapors, or any substance, the use or possession of which is prohibited by this Code, and which is not therapeutically administered, to the degree that he may reasonably endanger himself or other persons or property, .

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Sixty (60) days or to pay a fine not to exceed Sixty Dollars ($60.00), or both.

SECTION 2.59 RECEIVING STOLEN PROPERTY

A. A person is guilty of an offense who buys, receives, conceals or aids in concealing any property which he knows or should know has been obtained by theft, extortion, fraud, or other means declared to be unlawful under the provisions of the White Mountain Apache Tribe Law and Order Code .

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Three Hundred Sixty-Five (365) days or to pay a fine not to exceed Two Thousand Five Hundred Dollars ($2,500.00), or both.

SECTION 2.60 REFUSING TO AID AN OFFICER WITH ARREST; FIRES

A. A person is guilty of an offense who willfully refuses to assist a peace officer:

(1) In the lawful arrest of any person; or

(2) In conveying a lawfully arrested person to the nearest place of confinement when such assistance is reasonably requested.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Ninety (90) days or pay a fine not to exceed Ninety Dollars ($90.00), or both.

C. Any able-bodied person residing within the Reservation who shall refuse without good reason to render assistance when summoned by any forest officer, peace officer or other authorized person to suppress forest or range fires or fires threatening the forest or range, within the boundaries of the Reservation is guilty of an offense.

D. Any person found guilty under Subsection C above shall be sentenced to labor or imprisonment for a period of not less than Twenty-Five (25) days and not more than One Hundred (100) days, or to pay a fine not less than Twenty Five Dollars ($25.00) and not more than One Hundred Dollars ($100.00), or any combination thereof.

E. Any able bodied person residing, hunting, fishing, camping, and/or traveling upon the Fort Apache Indian Reservation, who shall refuse without good reason to render assistance when summoned by any forest officer, peace officer or other authorized person to suppress range and forest fires within the boundaries of the Reservation is guilty of an offense.

F. Any person found guilty under Subsection E above shall forfeit or cause to be revoked all rights, privileges, leases and/or permits granted to said person by the White Mountain Apache Tribe.

SECTION 2.61 REMOVAL OR DESTRUCTION OF ANTIQUITIES

A. A person is guilty of an offense who, without proper authority, removes, excavates, injures, or destroys any historic or prehistoric ruin or monument, or any object of antiquity.

SECTION 2.62 SALES OF TOXIC SUBSTANCES TO MINORS

A. Any person is guilty of an offense who sells, permits the sale of, attempts to sell, conspires to sell, trades, gives, or transfers any toxic substance or tobacco product to any person under the age of eighteen (18) years of age.

(1) As used in this Section the term "toxic substance" shall include glue, cement or other substance containing one or more of the following chemical compounds: acetone and acetate, benzene, butyl-alcohol, ethyl-alcohol, menthyl alcohol, methyl ethyl, ketone, pentachlorophenol, petroleum ether, or other chemical substance capable of causing a condition of intoxication, inebriation, excitement, stupefaction, or of the dulling of the brain or nervous system as a result of the inhalation of the fumes or vapors of such chemical substance.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty Days (180) days and to pay a fine not to exceed Five Hundred Dollars ($500.00) or both.

SECTION 2.63 SHOPLIFTING

A. A person is guilty of an offense who willfully takes possession of any good offered for sale by any mercantile establishment, without the consent of the owner or manager, with the intent to convert such goods to his own use without paying for them.

B. A person who willfully conceals or attempts to conceal any goods offered for sale on his or among his belongings, or on the person or among the belongings of another, is presumed to have taken possession of such goods with the intent to convert them to his own without paying for them.

C. A police officer, merchant or merchant's employee who has reasonable cause to believe that a person has willfully taken possession of goods with the intent to convert them without paying for them may detain and interrogate the person in regard thereto in a reasonable manner and for a reasonable time.

D. If a police officer, merchant or merchant's employee detains and interrogates a person pursuant to Subsection C, and the person thereafter brings a civil or criminal action against the police officer, merchant or merchant's employee, based upon the detention or interrogation, such reasonable cause shall be a defense to the action if the detention and interrogation were performed in a reasonable manner and for a reasonable time.

E. A person found guilty under this Section may be sentenced to imprisonment for period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both.

SECTION 2.64 SOLICITATION

A. A person is guilty of solicitation to commit a crime if, with the purpose of promoting or facilitating its commission, he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime.

(1) It is immaterial under this section that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication.

(2) It is an affirmative defense that the actor, after soliciting another person to commit a crime, persuaded him not to do so or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

(a) Renunciation is not complete if it is in response to law enforcement surveillance or detection or is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

(b) The renunciation of one actor does not affect the liability of an accomplice who did not join in such abandonment or prevention.

SECTION 2.65 STALKING

A. A person is guilty of stalking if he intentionally or knowingly engages in conduct directed against another person which would cause a reasonable person to either:

(1) Fear for his own safety or the safety of his immediate family; or

(2) Fear for imminent physical injury or death to his person or his immediate family.

B. "Conduct" under this Section means maintaining visual or physical proximity to a specific person or directing verbal or written threats, whether express or implied, to a specific person on two or more occasions over a period of time, however short, not including constitutionally protected activity.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both.

SECTION 2.66 TELEPHONE CALLS

A. A person who commits any of the following is guilty of an offense:

(1) Uses, during a telephone call with the intent to terrify, intimidate, threaten, harass, annoy or offend, any obscene, lewd or profane language to suggest any lewd or lascivious act, or threatens to inflict injury or physical harm to the person or property of any person; or

(2) Extorts money or other thing of value from any person, or otherwise disturbs by repeated anonymous telephone calls the peace, quiet, or right of privacy of any person at the place where the telephone call or calls were received.

B. Any offense committed by use of a telephone as set forth in this Section shall be deemed to have been committed at either the place where the telephone call or calls originated or at the place where the telephone call or calls were received.

C. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed Sixty (60) days or to pay a fine not to exceed Two Hundred Fifty Dollars ($250.00), or both.

SECTION 2.67 THEFT

A. A person is guilty of an offense who unlawfully takes or exercises control of property not his own, whether or not possession was originally obtained with consent of the owner, with the intent of permanently depriving the owner of the value or use of the property for the benefit of himself or another.

SECTION 2.68 THREATENING OR INTIMIDATING

A. A person commits threatening and intimidating if such person threatens or intimidates by word or conduct:

(1) To cause physical injury to another person or serious damage to the property of another; or

(2) With reckless disregard, causes serious public inconvenience including, but not limited to, evacuation of a building, or place of assembly.

B. A person found guilty of Threatening or Intimidating may be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both.

SECTION 2.69 UNLAWFUL BURNING

A. A person is guilty of an offense who:

(1) Willfully and unlawfully causes or attempts to cause damage to any property by fire or explosion; or

(2) Negligently causes damage to any property by fire or explosion; or

(3) Sets fire to any forest, brush or grasslands, or sets a campfire, with careless disregard for the spread or escape of such fire.

B. A person found guilty under this Section may be sentenced to imprisonment for a period not to exceed One Hundred Twenty (120) days or to pay a fine not to exceed One Hundred Twenty Dollars ($120.00), or both.

SECTION 2.70 UNLAWFUL RESTRAINT

A. A person is guilty of an offense who unlawfully causes the removal, detention or confinement of another person, so as to interfere with the person's liberty.

SECTION 2.71 WEAPONS OFFENSES

A. Possession by minors.

(1) Notwithstanding any other provision of this Code, except as otherwise permitted under the Game and Fish Code, any person under eighteen (18) years of age is guilty of an offense who is found in the possession of a firearm or other dangerous weapon and not under the direct supervision of a parent or legal guardian.

(2) Any person found guilty under this Subsection shall forfeit such firearm or weapon and shall be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to a fine not to exceed Five Hundred Dollars ($500.00), or both such imprisonment and fine, with costs.

B. Possession on school grounds.

(1) A person, except for a peace officer while in the performance of his official duties or any person summoned by a peace officer to assist, is guilty of an offense who enters any public establishment sponsoring a school activity, or school grounds or school building or attends any event while carrying a firearm or other dangerous weapon; or who is otherwise in the possession of a firearm or other dangerous weapon in such establishment or at such events.

(2) Any person found guilty under this Subsection shall be sentenced to imprisonment for a period not to exceed One Hundred Eighty (180) days or to pay a fine not to exceed Five Hundred Dollars ($500.00), or both such imprisonment and fine.

C. Possession by persons convicted of crimes of violence.

(1) A person previously convicted for any crime of violence against a person in which a firearm was used, who thereafter possesses any firearm, is guilty of an offense.

(2) Any person found in violation of this Subsection shall be sentenced to imprisonment for a period not to exceed Three Hundred Sixty-Five (365) days or to pay a fine not exceed One Thousand Dollars ($1000.00), or both.

CHAPTER THREE

CRIMINAL EXTRADITION PROCEDURE

[NOTE: Chapter Three is derived from Ordinance No. 168, enacted August 27, 1991]

SECTION 3.1 DEFINITIONS

A. In this procedure, unless the context otherwise requires:

(1) Tribal Chairman: shall be the Chief Executive Officer of the White Mountain Apache Tribe.

(2) Executive Authority: includes the Tribal chairman, or in his absence the Tribal Vice-Chairman, performing the functions of Chief Executive Officer of the White Mountain Apache Tribe.

(3) State: Shall mean any of the United States of America and the political subdivisions thereof.

(4) Commissioned Police Officer: Means any police officer who is commissioned by the White Mountain Apache Tribal Chief of Police to enforce federal, tribal and state laws within the White Mountain Apache Reservation.

(5) Fugitive: Means any enrolled member of the White Mountain Apache Tribe, or any non-member Indian, who is charged with a criminal offense and who has fled from justice and is found within the exterior boundaries of the Fort Apache Indian Reservation.

(6) Warrant of Extradition: Documents issued by any state or another Indian tribe in accordance with this extradition procedure, requesting the deliverance of a fugitive from justice.

(7) Extradition Waiver: Means a voluntary acknowledgment in written form, by the fugitive, that he/she is voluntarily willing to surrender to the demanding jurisdiction and waive this extradition procedure.

(8) Habeas Corpus: Shall mean 25 U.S.C. Section 1303.

SECTION 3.2 FUGITIVES FROM JUSTICE; DUTY OF THE TRIBAL CHAIRMAN

Subject to this procedure, the White Mountain Apache Constitution, the White Mountain Apache Tribal Law and Order Code, and the laws of the United States which are applicable to Indians or Indian Tribes, it is the duty of the Tribal Chairman to insure review and compliance with this extradition procedure and to order the arrest and delivery to the demanding jurisdiction a fugitive charged with a criminal offense who has fled from justice and is found within the exterior boundaries of the Fort Apache Indian Reservation.

SECTION 3.3 FORM OF DEMAND

A. No demand for the extradition of an Indian charged with a crime in a state or another Indian reservation shall be recognized by the Tribal Chairman unless the demand is in writing and accompanied by a copy of an indictment found or by an information supported by affidavit in the state or Indian reservation having jurisdiction of the crime, or by a copy of a complaint supported by affidavit made before a state magistrate or a Tribal Chief Judge.

B. The indictment, information, or complaint supported by affidavit made before a state magistrate or Tribal chief Judge must substantially charge the person demanded with having committed a crime under the laws of the state or other Indian reservation, and the copy must be authenticated by the executive authority making the demand, which shall be prima facie evidence of its truth.

SECTION 3.4 TRIBAL CHAIRMAN MAY INVESTIGATE CASE

When demand shall be made upon the Tribal Chairman by the Executive authority of the state or Indian reservation for the surrender of a person so charged with a crime, the Tribal Chairman may call on the White Mountain Apache Tribal Attorney to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he/she ought to be surrendered.

SECTION 3.5 WHAT PAPERS MUST SHOW

A. A warrant of extradition shall not be issued unless the documents presented by the executive authority making the demand show that:

(1) The accused was present in the demanding jurisdiction at the time of the commission of the alleged crime, and he/she thereafter fled the demanding jurisdiction;

(2) The accused is now on the Fort Apache Indian Reservation; and

(3) The accused is lawfully charged by indictment or by information filed by a prosecuting officer and supported by affidavit to the facts, or by complaint supported by affidavit made before a state magistrate or Tribal Chief Judge, with having committed a crime under the laws of the demanding jurisdiction or has been convicted of a crime in the demanding jurisdiction and has escaped from confinement or broken parole.

SECTION 3.6 ISSUE OF TRIBAL CHAIRMAN'S WARRANT OF ARREST: ITS RECITAL

If the Tribal Chairman determines that the demand should be complied with, a warrant of arrest shall be signed, which shall be sealed with the Tribal Seal, and be directed to any commissioned police officer for the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issue.

SECTION 3.7 MANNER AND PLACE OF EXECUTION

Such warrant shall authorize any commissioned police officer to arrest the accused at any time and any place where the accused may be found on the Fort Apache Indian Reservation, and to deliver the accused, subject to the provisions of this Tribal Extradition Procedure, to the duly authorized agent of the demanding jurisdiction.

SECTION 3.8 AUTHORITY OF ARRESTING OFFICER

Every commissioned police officer shall have the authority to arrest the accused and to command assistance therein as empowered by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.

SECTION 3.9 DUTY OF ARRESTING OFFICER; APPLICATION FOR WRIT OF HABEAS CORPUS

No person arrested upon such warrant shall be delivered over to the demanding jurisdiction unless the accused has been informed of the demand made for his/her surrender and of the crime with which he/she is charged. The accused shall further be advised that he/she has the right to obtain counsel and may contest the legality of his/her arrest in accordance with the habeas corpus provisions of the Indian Civil Rights Act, 25 U.S.C. Section 1303. The accused may also waive extradition and voluntarily surrender himself/herself to the demanding jurisdiction. In either case, the accused, as soon as is practical after arrest, shall be taken before the White Mountain Apache Tribal Chief Judge who shall fix a reasonable time for the accused to apply for a writ of habeas corpus or record that the arrestee has waived extradition.

SECTION 3.10COMMITMENT TO AWAIT REQUISITION; BAIL

If from the examination before the Chief Tribal Judge it appears that the person held is the person charged with having committed the crime alleged and that he/she has fled from justice, the Chief Tribal Judge must commit him/her to jail by virtue of the Tribal Chairman's warrant for such a time not exceeding thirty days, as will enable the appointed agent for the demanding jurisdiction to take personal charge of the prisoner, unless the accused gives bail as provided in Section 3.11 or until he/she is legally discharged.

SECTION 3.11 BAIL; IN WHAT CASES; FORFEITURE OF BAIL

The Chief Judge of the Tribal Court may admit the person arrested to bail or bond or undertaking for such time as will allow him/her to apply for a writ of habeas corpus as prescribed herein. If the prisoner is admitted to bail or fails to press his/her writ of habeas corpus within he time allowed, or fails to appear and surrender himself/herself according to the conditions of the bond, the court by proper order shall declare the bond forfeited and order the rearrest of the accused.

SECTION 3.12 IF NO ARREST IS MADE ON TRIBAL CHAIRMAN'S WARRANT BEFORE THE TIME SPECIFIED

If the accused is not arrested under the warrant of the Tribal Chairman by the expiration of the time specified in the warrant, only the Tribal Chairman may extend such time specification.

SECTION 3.13 FUGITIVE UNDER CRIMINAL PROSECUTION BY THE WHITE MOUNTAIN APACHE TRIBE WHEN DEMAND IS MADE

If a criminal prosecution has been instituted against a named fugitive by the White Mountain Apache Tribe, the Tribal Chairman may, in his discretion, either surrender him/her to the demand jurisdiction or hold the fugitive until he/she has been tried and discharged or convicted and punished on the Fort Apache Indian Reservation.

SECTION 3.14 TRIBAL CHAIRMAN MAY RECALL WARRANT OR ISSUE ALIAS

The Tribal Chairman may recall his warrant of arrest or may issue another warrant whenever he deems proper.

SECTION 3.15 APPLICATION FOR ISSUANCE OF REQUISITION; BY WHOM MADE; CONTENTS

When the return to the Fort Apache Indian Reservation of a person charged with crime on the reservation is required, the Tribal Attorney shall present to the Tribal Chairman his written application for the requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him/her and the state or other Indian Reservation in which he/she is believed to be, including the location of the accused therein at the time the application is made and certifying that, in the opinion of the Tribal Attorney, the ends of justice require the arrest and return of the accused to the reservation for trial and that the proceeding is not instituted to enforce a private claim. The application shall be verified by affidavit and shall be accompanied by a certified copy of the complaint made to the Tribal Judge stating the offense with which the accused is charged. The Tribal Attorney may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application.

SECTION 3.16 WRITTEN WAIVER OF EXTRADITION PROCEEDINGS; PRIOR WAIVER

A. Any person arrested on the Fort Apache Indian Reservation who is charged with having committed a crime in another state or another Indian reservation or alleged to have escaped from confinement or broken the terms of his/her bail, probation or parole may waive the issuance and service of the warrant provided for herein and all other procedures incidental to extradition proceedings by executing or subscribing in the presence of the Chief Tribal Judge a writing which states that he/she consents to return to the demanding jurisdiction, except that before the waiver is executed or subscribed to by the person it is the duty of the Chief Tribal Judge to inform the person of his/her right to the issuance or service of a warrant of extradition, the right to contest extradition by habeas corpus as provided for in 25 U.S.C. Section 1303, and the right to bail as provided in Section 3.11.

B. If the consent is duly executed, the Chief Tribal Judge shall direct the officer who has custody of the person to deliver the person promptly to the accredited agents or agents of the demanding jurisdiction and to deliver or cause to be delivered to the agent or agents a copy of the consent.

C. Notwithstanding subsection A of this section, a law enforcement agency holding a person who is alleged to have broken the terms of his probation, parole, bail or any other release shall immediately deliver the person to the duly authorized agent of the demanding jurisdiction without the requirement of a Tribal Chairman's warrant if the following apply:

(1) The person signed a prior waiver of extradition as a term of his/her current probation, parole, bail or other release in the demanding jurisdiction.

(2) The law enforcement agency holding the person has received both of the following:

(a) An authenticated copy of the prior waiver of extradition signed by the person; and

(b) A photograph and fingerprints properly identifying the person as the person who signed the waiver.

[NOTE: Sections 3.17 through Section 3.20 are derived from Ordinance No. 201, enacted August 2, 1995]

SECTION 3.17 CLOSE PURSUIT; DEFINITIONS

In this Chapter, unless the context otherwise requires:

(1) "Close pursuit" does not necessarily imply instant pursuit, but pursuit without unreasonable delay, and includes:

(a) Close pursuit as defined by the common law.

(b) Pursuit of a person who has committed a criminal offense, or who is reasonably suspected of having committed a criminal offense.

(c) Pursuit of a person suspected of having committed a supposed criminal offense, though no criminal offense has actually been committed, if there is reasonable grounds for believing that a criminal offense has been committed.

(2) "Criminal Offense" means any misdemeanor, felony, petty offense or other criminal act.

(3) "Fort Apache Indian Reservation" or "Reservation" includes all lands within the exterior boundaries of the Fort Apache Indian Reservation as defined in the Constitution of the White Mountain Apache Tribe, Article 1, Section 1.

(4) "Person" means any person over whom the White Mountain Apache Tribe may assert criminal jurisdiction.

(5) "Tribal Court" or "Court" means the courts of the White Mountain Apache Tribe.

(6) "Tribal Police Officer" means a duly sworn officer of the Whiteriver Police Department.

SECTION 3.18 AUTHORITY OF PEACE OFFICER ENTERING RESERVATION IN CLOSE PURSUIT

A member of a duly organized tribal, state, county or municipal law enforcement agency of a reservation or state who enters the Fort Apache Indian Reservation in close pursuit, and continues within the Reservation in close pursuit of a person in order to arrest him on the ground that he is believed to have committed a criminal offense in such other reservation or state shall have the same authority to arrest and hold the person in custody as has a Tribal police officer to arrest and temporarily hold a person in custody within the Reservation on the ground that he is believed to have committed a criminal offense within the Reservation.

SECTION 3.19 ARREST AND HEARING; TRANSFER TO TRIBAL POLICE; TRIBAL JUDGE'S DETERMINATION

A. Upon crossing into the Reservation, the officer in pursuit shall immediately notify and maintain contact with the Whiteriver Police Department until a Tribal police officer responds to the scene, or the arresting officer transports the person arrested pursuant to paragraph B.

B. If an officer of another jurisdiction makes an arrest within the Reservation in accordance with Section 3.18, he shall immediately deliver the person arrested to the custody of the Tribal police. If no Tribal police officer responds to the scene, the arresting officer shall immediately transport the person arrested to Tribal Police headquarters.

C. Upon taking custody of an arrested person, the Tribal police officer shall within 24 hours take the person arrested before a Tribal Court judge, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest.

D. If the judge determines that the arrest was unsupported by probable cause or was otherwise unlawful, the judge shall order the person released from custody.

E. If the judge determines that the arrest was lawful, the judge shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Tribal Chairman pursuant to this Chapter.

SECTION 3.20 INTERPRETATION

The provisions of this procedure shall be interpreted and construed so as to effectuate its general purpose to make uniform the law of the state and Indian reservations that are involved; provided that under no circumstances shall the provisions of this procedure be interpreted to authorize the extradition, pursuit, or arrest of any person within the exterior boundaries of the Fort Apache Indian Reservation without complying with this Chapter.

SECTION 3.21 SHORT TITLE

This procedure may be cited as the Tribal Criminal Extradition Procedure.

CHAPTER FOUR

COMPREHENSIVE SEX CRIMES ACT

[NOTE: CHAPTER FOUR IS DERIVED FROM ORDINANCE NO. 170, ENACTED JULY, 1991]

SECTION 4.1 DEFINITIONS

A. "Culpable mental state" means intentionally, knowingly, recklessly or with criminal negligence as those terms are thusly defined:

(1) "Intentionally" or "with the intent to" means, with respect to a result or to conduct described by a statute defining an offense, that a person's objectives is to cause that result or to engage in that conduct.

(2) "Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.

(3) "Recklessly" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.

(4) "Criminal negligence" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

B. "Oral sexual contact" means oral contact with the penis, vulva or anus.

C. "Producing" means financing, directing, manufacturing, issuing, publishing or advertising for pecuniary gain.

D. "Sexual conduct" means actual or simulated:

(a) Sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, whether between persons of the same or opposite sex.

(b) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure.

(d) Masturbation, for the purpose of sexual stimulation of the viewer.

(e) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer.

(f) Lewd exhibition of the genitals, pubic or rectal areas of any person.

(g) Defecation or urination for the purpose of sexual stimulation of the viewer.

E. "Sexual contact" means any direct or indirect fondling or manipulating of any part of the genitals, anus or female breast.

F. "Sexual intercourse" means penetration into the penis, vulva or anus by any part of the body or by any object or manual masturbatory contact with the penis or vulva.

G. "Simulated" means any depicting of the genitals or rectal areas which gives the appearance of sexual conduct or incipient sexual conduct.

H. "Spouse" means a person who is legally married and cohabiting.

I. "Visual or print medium" means:

(1) Any film, photograph, videotape, negative, slide or,

(2) Any book, magazine or other form of publication or photographic reproduction containing or incorporating in any manner any film, photograph, videotape, negative or slide.

J. "Without consent" includes the following:

(1) The victim is coerced by the immediate use or threatened use of force against a person or property.

(2) The victim is incapable of consent by reason of mental disorder, drugs, alcohol, sleep or any other similar impairment of cognition and such condition is known or should have reasonably been known to the defendant.

(3) The victim is intentionally deceived as to the nature of the act.

(4) The victim is intentionally deceived to erroneously believe that the person is the victim's spouse.

SECTION 4.2 INDECENT EXPOSURE; CLASSIFICATIONS

A. A person commits indecent exposure if he or she exposes his or her genitals or anus or she exposes the areola or nipple of her breast or breasts and another person is present, and the defendant is reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act.

B. Indecent exposure is a class 1 minor offense. Indecent exposure to a person under the age of fifteen years is a class 3 major offense.

SECTION 4.3 PUBLIC SEXUAL INDECENCY; PUBLIC SEXUAL INDECENCY TO A MINOR; CLASSIFICATIONS

A. A person commits public sexual indecency by intentionally or knowingly engaging in any of the following acts, if another person is present, and the defendant is reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act:

(1) An act of sexual contact.

(2) An act of oral sexual contact.

(3) An act of sexual intercourse.

(4) An act involving contact between the person's mouth, vulva or genitals and the anus or genitals of an animal.

B. A person commits public sexual indecency to a minor if he intentionally or knowingly engages in any of the acts listed in subsection A and such person is reckless whether a minor under the age of fifteen years is present.

C. Public sexual indecency is a class 1 minor offense. Public sexual indecency to a minor is a class 3 major offense.

SECTION 4.4 SEXUAL ABUSE; CLASSIFICATIONS

A. A person commits sexual abuse by intentionally or knowingly engaging in sexual contact with any person fourteen or more years of age without consent of that person or with any person who is under fourteen years of age if the sexual contact involves only the female breast.

B. Sexual abuse is a class 2 major offense unless the victim is under fourteen years of age which case sexual abuse is a class 1 major offense punishable pursuant to 4.19.

SECTION 4.5 SEXUAL CONDUCT WITH A MINOR; CLASSIFICATIONS

A. A person commits sexual conduct with a minor by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age.

B. Sexual conduct with a minor under fourteen years of age is a class 2 major offense and is punishable pursuant to §4.19. Sexual conduct with a minor fourteen years of age or over is a class 3 major offense.

SECTION 4.6 SEXUAL ASSAULT; CLASSIFICATION; INCREASED PUNISHMENT

A. A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person.

B. Sexual assault is a class 2 major offense, and the person convicted is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement until the sentence imposed by the court has been served. If the victim is under fifteen years of age, sexual assault is punishable pursuant to §4.19.

C. Notwithstanding the provisions of §4.19, if the sexual assault involved the use or exhibition of a deadly weapon or dangerous instrument or involved the intentional o knowing infliction of serious physical injury and the person has previously been convicted of sexual assault, or any offense committed outside the reservation which if committed on the reservation would constitute sexual assault, the person shall be sentenced to one year imprisonment and a $5,000.00 fine and is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement.

SECTION 4.7 SEXUAL ASSAULT OF A SPOUSE; DEFINITIONS; VIOLATION; CLASSIFICATION

A. A person commits sexual assault of a spouse by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with a spouse without consent of the spouse by the immediate or threatened use of force against the spouse or another.

B. A first offense sexual assault of a spouse is a class 3 major offense. The judge has discretion to enter judgement for conviction of a class 1 minor offense with mandatory counseling. Any subsequent sexual assault of a spouse is a class 2 major offense and the person convicted is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement until the sentenced imposed by the court has been served. Convictions for two or more major offenses not committed on the same occasion but consolidated for trial purposes shall not be counted as prior convictions for purposes of this section.

C. A person convicted under this section may, in the discretion of the court, be exempt from the registration requirements of § 4.22 of this Chapter.

SECTION 4.8 DEFENSES

A. It is a defense to a prosecution pursuant to §§ 4.4 and 4.5, involving a minor, if the act was done in furtherance of lawful medical practice.

B. It is a defense to a prosecution pursuant to §§ 4.4 and 4.5, in which the victim's lack of consent is based on incapacity to consent because the victim was fourteen, fifteen, sixteen or seventeen years of age, if at the time the defendant engaged in conduct constituting the offense the defendant did not know and could not reasonably have known the age of the victim.

C. It is a defense to a prosecution pursuant to §§ 4.2, 4.4, 4.5 and 4.6, if the act was done by a duly licensed physician or registered nurse or a person acting under his or her direction, or any other person who renders emergency care at the scene of an emergency occurrence, and consisted of administering a recognized and lawful form of treatment which was reasonably adapted to promoting the physical or mental health of the patient and the treatment was administered in an emergency when the duly licensed physician or registered nurse or a person acting under his or her direction, or any other person rendering emergency care at the scene of an emergency occurrence, reasonably believed that no one competent to consent could be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

D. It is a defense to a prosecution pursuant to §§ 4.4, 4.5 or 4.6 that the person was the spouse of the other person at the time of commission of the act. It is not a defense to a prosecution pursuant to § 4.7 that the defendant was not motivated by a sexual interest.

E. It is a defense to prosecution pursuant to § 4.9 that the defendant was not motivated by a sexual interest. It is a defense to prosecution pursuant to § 4.4 involving a victim under fourteen years of age that the defendant was not motivated by a sexual interest.

F. It is a defense to prosecution pursuant to §§ 4.4 and 4.9 if both the defendant and the victim are of the age of fourteen, fifteen, sixteen or seventeen and the conduct is consensual.

SECTION 4.9 MOLESTATION OF CHILD; CLASSIFICATION

A person who knowingly molests a child under the age of fourteen years by directly or indirectly touching the private parts of such child or who causes a child under the age of fourteen years to directly or indirectly touch the private parts of such person is guilty of a class 2 major offense and is punishable pursuant to §4.19.

SECTION 4.10 CHILD ABUSE; DEFINITIONS; CLASSIFICATION

A. In this section, unless the context otherwise requires:

(1) "Abuse" means the infliction or allowing of physical injury, impairment of bodily function or disfigurement or the infliction of or allowing another person to cause serious emotional damage as evidence by severe anxiety, depression, withdrawal or outward aggressive behavior and which emotional damage is diagnosed by a medical doctor or psychologist and which is caused by the acts or omissions of an individual having care, custody and control of a child. Abuse shall include inflicting or allowing sexual abuse pursuant to §4.4, sexual conduct with a minor; pursuant to §4.5, sexual assault; pursuant to §4.6, molestation of a child; pursuant to §4.9, commercial sexual exploitation of a minor; pursuant to §4.13, sexual exploitation of a minor; pursuant to §4.14, incest; pursuant to Chapter 2 of the White Mountain Apache Criminal Code; or child prostitution.

(2) "Child, youth or juvenile" means an individual who is under the age of eighteen years of age.

(3) "Physical injury" the impairment of physical condition and includes but shall be limited to any skin bruising, bleeding, failure to thrive, malnutrition, burns, fracture of any bone, subdural hematoma, soft tissue swelling, injury to any internal organ or any physical condition which imperils a child's health or welfare.

(4) "Serious physical injury" means physical injury which creates a reasonable risk of death, or which causes serious or permanent disfigurement, or serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb.

B. Under circumstances likely to produce death or serious physical injury, any person who causes a child to suffer physical injury or, having the care or custody of such child, causes or permits the person or health of such child to be injured or causes or permits such child to be placed in a situation where its person or health is endangered is guilty of an offense as follows:

(1) If done intentionally or knowingly, the offense is a class 1 major offense and if the victim is under fifteen years of age it is punishable pursuant to §4.19.

(2) If done recklessly, the offense is a class 2 major offense.

(3) If done with criminal negligence, the offense is a class 3 major offense.

C. Under circumstances other than those likely to produce death or serious physical injury to a child, any person who causes a child to suffer physical injury or abuse except for those acts in the definition which are declared unlawful by another section of this chapter or, having the care or custody of such child, causes or permits the person or health of such child to be injured or causes or permits such child to be placed in a situation where its person or health is endangered is guilty of an offense as follows:

(1) If done intentionally or knowingly, the offense is a class 2 major offense.

(2) If done recklessly, the offense is a class 3 major offense.

(3) If done with criminal negligence, the offense is a class 1 minor offense.

SECTION 4.11 JUSTIFICATION; USE OF PHYSICAL FORCE

The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under the following circumstance:

A. A parent or guardian and a teacher or other person entrusted with the care and supervision of a minor or incompetent person may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent reasonably necessary and appropriate to maintain discipline, self defense, or to protect the child from injuring itself or others.

SECTION 4.12 DUTY AND AUTHORIZATION TO REPORT NONACCIDENTAL INJURIES; PHYSICAL NEGLECT AND DENIAL OR DEPRIVATION OF NECESSARY MEDICAL OR SURGICAL CARE TO NOURISHMENT OF MINORS; DUTY TO MAKE MEDICAL RECORDS AVAILABLE; EXCEPTION; VIOLATION; CLASSIFICATION

A. Any physician, hospital intern or resident, surgeon, dentist, osteopath, chiropractor, podiatrist, county medical examiner, nurse, psychologist, school personnel, social worker, peace officer, parent counselor, clergyman or priest or any other person having responsibility for the care or treatment of children whose observation or examination of any minor discloses reasonable grounds to believe that a minor is or has been the victim of injury, sexual abuse pursuant to §4.4, sexual conduct with a minor pursuant to §4.5, sexual assault pursuant to §4.6, molestation of a child pursuant to §4.9, or commercial sexual exploitation of a minor pursuant to §4.13, abuse or physical neglect which appears to have been inflicted upon such minor by other than accidental means or which is not explained by the available medical history as being accidental in nature or who has reasonable grounds to believe there has been a denial or deprivation of necessary medical treatment or surgical care or nourishment with the intent to cause or allow the death of an infant shall immediately report or cause reports to be made of such information to a peace officer or to the child protective services of the tribal social services.

B. A clergyman, priest, traditional medicine man or medicine woman who has received a confidential communication or a confession in his role as a clergyman, priest or a traditional medicine man or medicine woman, the course of the discipline enjoined by the church to which he or she belongs may withhold reporting of the communication or confession if the clergyman, priest, medicine man or medicine woman determines that it is reasonable and necessary within the concepts of the religion. This exemption applies only to the communication or confession and not to personal observations the clergyman, priest, traditional medicine man, or medicine woman may otherwise make of the minor.

C. No report is required under this section for conduct prescribed by §4.4 and §4.5 if the conduct involves only minors age fourteen, fifteen, sixteen or seventeen and there is nothing to indicate that the conduct is other than consensual. Such reports shall be made forthwith by telephone or in person forthwith and shall be followed by a written report within seventy-two hours. Such reports shall contain:

(1) The names and addresses of the minor and his parents or person or persons having custody of such minor, if known.

(2) The minor's age and the nature and extent of his injuries or physical neglect, including any evidence of previous injuries or physical neglect.

(3) Any other information that such person believes might be helpful in establishing the cause of the injury or physical neglect.

B. Any person other than one required to report or cause reports to be made in subsection A of this section who has reasonable grounds to believe that a minor is or has been a victim of abuse or neglect may report the information to a peace officer or to the child protective services of the tribal social services department.

C. A person having custody or control of medical records of a minor for whom a report is required or authorized under this section shall make such records, or a copy of such records, available to a peace officer or child protective services worker investigating the minor's neglect or abuse on written request for the records signed by the peace officer or child protective services worker. Records disclosed pursuant to this subsection are confidential and may be used only in a judicial or administrative proceeding or investigation resulting from a report required or authorized under this section.

D. When such telephone or in-person reports are received by the peace officer, they shall immediately notify the Tribal Social Services and make such information available to them. Notwithstanding any other statute, when the Tribal Social Services receives these reports by telephone or in person, it shall immediately notify the White Mountain Apache Tribal Police Department.

E. Any person required to receive reports pursuant to subsection A of this section may take or cause to be taken photographs of the child and the vicinity involved. Medical examinations including, but not limited to, radiological examinations of the involved child may be performed.

F. A person furnishing a report, information or records required or authorized under this section, or a person participating in a judicial or administrative proceeding or investigation result from a report, information or records required or authorized under this section, shall be immune from any civil or criminal liability by reason of such action unless such person acted with malice or unless such person has been charged with or is suspected of abusing or neglecting the child or children in question. Except as provided in subsection G of this section, the physician-patient privilege, provided for by professions such as the practice of social work or nursing covered by law or a code of ethics regarding practitioner-client confidences, both as they relate to the competency of the witness and to the exclusion of confidential communications, shall not pertain in any civil or criminal litigation or administrative proceeding in which a child's neglect, dependency, abuse or abandonment is an issue not in any judicial or administrative proceedings resulting from a report, information or records submitted pursuant to this section nor in any investigation of a child's neglect or abuse conducted by a peace officer or the child protective services of the Tribal Social Services Department.

G. In any civil or criminal litigation in which a child's neglect, dependency, abuse or abandonment is an issue, a clergyman, priest, traditional medicine man, or medicine woman shall not, without his or her consent, be examined as a witness concerning any confession made to him or her in his or her role as a clergyman, a priest, a traditional medicine man or medicine woman in the course of the discipline enjoined by the church or tradition to which he or she belongs. Nothing in this subsection discharges a clergyman, priest, traditional medicine man or medicine woman from the duty to report pursuant to subsection A of this section.

H. If psychiatric records are requested pursuant to subsection C of this section, the custodian of the records shall notify the attending psychiatrist, who may excise from the records, before they are made available:

(1) Personal information about individuals other than the patient.

(2) Information regarding specific diagnosis or treatment of a psychiatric condition, if the attending psychiatrist certifies in writing that release of the information would be detrimental to the patient's health or treatment.

I. If any portion of a psychiatric record is excised pursuant to subsection H of this section, a court, upon application of a peace officer or child protective services worker, may order that the entire record or any portion of such record containing information relevant to the reported abuse or neglect be made available to the peace officer or child protective services worker investigating the abuse or neglect.

J. A person who violates any provision of this section is guilty of a minor offense.

SECTION 4.13 COMMERCIAL SEXUAL EXPLOITATION OF A MINOR; CLASSIFICATION

A. A person commits commercial sexual exploitation of a minor by knowingly:

(1) Using, employing, persuading, enticing, inducing or coercing a minor to engage in or assist others to engage in sexual conduct for the purpose of producing any visual or print medium or live act depicting such conduct.

(2) Using, employing, persuading, enticing, inducing or coercing a minor to expose the genitals or anus or the areola or nipple of the female breast for financial or commercial gain.

(3) Permitting a minor under such person's custody or control to engage in or assist others to engage in sexual conduct for the purpose of producing any visual or print medium or live act depicting such conduct.

(4) Transporting or financing the transportation of any minor through or across this reservation with the intent that such minor engage in prostitution or sexual conduct for the purpose of producing a visual or print medium or live act depicting such conduct.

B. Commercial sexual exploitation of a minor is a class 2 major offense and if the minor is under fifteen years of age it is punishable pursuant to 4.19.

SECTION 4.14 SEXUAL EXPLOITATION OF A MINOR; CLASSIFICATION

A. A person commits sexual exploitation of a minor by knowingly:

(1) Recording, filming, photographing, developing or duplicating any visual or print medium in which minors are engaged in sexual conduct.

(2) Distributing, transporting, exhibiting, receiving, selling, purchasing, possessing or exchanging any visual or print medium in which minors are engaged in sexual conduct.

B. Sexual exploitation of a minor is a class 2 major offense and if the minor is under fifteen years of age it is punishable pursuant to 4.19.

SECTION 4.15 PORTRAYING ADULT AS MINOR; CLASSIFICATION

A. It is unlawful for any person depicted in a visual or print medium or live act as a participant in sexual conduct to masquerade as a minor.

B. It is unlawful for any person knowingly to produce, record, film, photograph, develop, duplicate, distribute, transport, exhibit, sell, purchase or exchange any visual or print medium whose text, title or visual representation depicts a participant in sexual conduct as a minor even though any such participant is an adult.

C. Any person who violates this section is guilty of a class 1 minor offense.

SECTION 4.16 PERMISSIBLE INFERENCES

In a prosecution relating to the sexual exploitation of children, the trier of fact may draw the inference that a participant is a minor if the visual or print medium or live act through its title, text or visual representation depicts the participant as a minor.

SECTION 4.17 ADMITTING MINORS TO PUBLIC DISPLAYS OF SEXUAL CONDUCT; CONSTRUCTIVE KNOWLEDGE OF AGE; CLASSIFICATION

A. It is unlawful for an owner, operator or employee to admit a person under the age of eighteen into any business establishment where persons, in the course of their employment expose their genitals or anus or the areola or nipple of the female breast.

B. An owner, operator or employee who admits a person to an establishment without evidence of the person's age is deemed to have constructive knowledge of the person's age.

C. A person who violates this section is guilty of a class 1 minor offense.

SECTION 4.18 DETENTION FOR OBTAINING EVIDENCE OF IDENTIFYING PHYSICAL CHARACTERISTICS

A. A peace officer who is engaged, within the scope of his authority, in the investigation of an alleged criminal offense punishable up to one year under this Chapter may make written application upon oath or affirmation to a tribal court judge for an order authorizing the temporary detention, for the purpose of obtaining evidence of identifying physical characteristics, of an identified or particularly described individual residing in or found in the tribal court's jurisdiction. The order shall require the presence of the identified or particularly described individual at such time and place as the court shall direct for obtaining the identifying physical characteristic evidence. Such order may be issued by the tribal judge upon a showing of all of the following:

(1) Reasonable cause for belief that a specifically described criminal offense punishable under this Chapter has been committed.

(2) Procurement of evidence of identifying physical characteristics from an identified or particularly described individual may contribute to identification of the individual who committed such offense.

(3) Such evidence cannot otherwise be obtained by the investigating officer form either the law enforcement agency employing the affiant or the criminal identification division of the Bureau of Indian Affairs Police Federal Bureau of Investigation, or Whiteriver Police Department.

B. Any order issued pursuant to the provisions of this section shall specify the following:

(1) The alleged criminal offense which is the subject of the application.

(2) The specific type of identifying physical characteristic evidence which is sought.

(3) The relevance of such evidence to the particular investigation.

(4) The identity or description of the individual who may be detained for obtaining such evidence.

(5) The name and official status of the investigative officer authorized to effectuate such detention and obtain such evidence.

(6) The place at which the obtaining of such evidence shall be effectuated.

(7) The time that such evidence shall be taken except that no person may be detained for a period of more than three hours for the purpose of taking such evidence.

(8) The period of time, not exceeding fifteen days, during which the order shall continue in force and effect. If the order is not executed within fifteen days, a new order may be issued, pursuant to the provisions of this section.

C. The order issued pursuant to this section shall be returned to the court not later than thirty days after its date of issuance and shall be accompanied by a sworn statement indicating the type of evidence taken. The court shall give to the person form whom such evidence was taken a copy of the order and a copy of the sworn statement indicating what type of evidence was taken, if any.

D. For the purpose of this section, "identifying physical characteristics" includes, but is not limited to, the fingerprints, palm prints, footprints, measurements, handwriting, handprinting, sound of voice, blood samples, urine samples, saliva samples, hair samples, comparative personal appearance, or photographs of an individual.

SECTION 4.19 DANGEROUS CRIMES AGAINST CHILDREN; SENTENCES; DEFINITIONS

A. "Dangerous crime against children" means of any of the following committed against a minor under fifteen years of age.

(a) Second degree murder.

(b) Aggravated assault resulting in serious physical injury or committed by the use of a deadly weapon or dangerous instrument.

(d) Molestation of a child.

(e) Sexual conduct with a minor.

(f) Commercial sexual exploitation of a minor.

(g) Sexual exploitation of a minor.

(h) Child abuse as defined in 4.10.

(i) Kidnaping.

(j) Sexual abuse.

(k) Taking a child for the purpose of prostitution.

(l) Child prostitution.

(m) Involving or using minors in drug offenses.

B. Classification

(1) A dangerous crime against children is a class 1 major offense if it is a completed offense.

(2) A dangerous crime against children is a class 3 major offense if it is a preparatory offense.

C. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who stands convicted of a dangerous crime against children shall be sentenced to a presumptive term of imprisonment for one year.

D. A person sentenced for a dangerous crime against children pursuant to this section is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release form confinement until the sentence imposed by the court has been served.

E. In addition to the term of imprisonment imposed pursuant to this section and notwithstanding any other law, the court shall order that a person convicted of any dangerous crime against children be supervised on parole after release from confinement on such conditions as the court deems appropriate.

F. The sentence imposed on a person by the court for a dangerous crime against children shall be consecutive to any other sentence imposed on the person at any time.

SECTION 4.20 CLASSIFICATION OF SEXUAL OFFENSES; IMPRISONMENT AND FINES

A. A sentence of imprisonment for sexual offenses shall be a definite term and the person sentenced, unless otherwise provided by law, shall be committed to the custody of the White Mountain Apache Tribal Police Department.

B. The term of imprisonment and fine for major sexual offenses shall be determined as follows for the first offense:

(1) Class 1 major offense: A person found guilty of a class 1 major offense may be sentenced to imprisonment for a period not to exceed one year and to pay a fine not to exceed Five Thousand Dollars ($5,000).

(2) Class 2 major offense: A person found guilty of a class 2 major offense may be sentenced to imprisonment for a period not to exceed eight (8) months and to pay a fine not to exceed Two Thousand Dollars ($2,000).

(3) Class 3 major offense: A person found guilty of a class 3 major offense may be sentenced to imprisonment for a period not to exceed four (4) months and to pay a fine not to exceed One Thousand Dollars ($1,000).

C. The term of imprisonment and fine for minor sexual offenses shall be determined as follows for the first offense:

(1) Class 1 minor offense: A person found guilty of a class 1 minor offense may be sentenced to imprisonment for a period not to exceed sixty (60) days and pay a fine not to exceed Two Hundred Dollars ($200.00).

(2) Class 2 minor offense: A person found guilty of a class 2 minor offense may be sentenced to imprisonment for a period not to exceed thirty (30) days and pay a fine not to exceed One Hundred Dollars ($100.00).

(3) Class 3 minor offense: A person found guilty of a class 3 minor offense may be sentenced to imprisonment for a period not to exceed twenty (20) days and pay a fine not to exceed Fifty Dollars ($50.00).

SECTION 4.21 SENTENCING

A. Increase in Sentencing: Sentencing provided in §4.20 for first conviction of a major or minor sexual offense, except those offenses involving a use or exhibition of a deadly weapon or dangerous instrument or when the intentional or knowing infliction of serious physical injury upon another has occurred, nay be increased by the court up to twenty-five per cent, not to exceed on year imprisonment or $5,00 fine. Said increase shall be based on the following circumstances.

(1) Infliction or threatened infliction of serious physical injury.

(2) Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of a crime.

(3) If the offense involves the taking of or damage to property, the value of the property so taken or damaged.

(4) Presence of an accomplice.

(5) Especially heinous, cruel or depraved manner in which the offense was committed.

(6) The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.

(7) The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.

(8) At the time of the commission of the offense, the defendant was a public servant and the offense involved conduct directly related to his office or employment.

(9) The physical, emotional and financial harm caused to the victim or, if the victim has died as a result of the conduct of the defendant, the emotional and financial harm caused to the victim's immediate family.

(10) During the course of the commission of the offense, the death of an unborn child at any stage of its development occurred.

(11) The defendant was previously convicted of a sexual offense within the ten years immediately preceding the date of the offense. A conviction outside the jurisdiction of the White Mountain Apache Tribe for an offense which if committed within the Tribe's jurisdiction would be punishable as a sexual offense is a sexual offense conviction for the purposes of this paragraph.

(12) If the victim of the offense is sixty-five or more years of age or is a handicapped person.

(13) Any other factors which the court may deem appropriate to the ends of justice.

B. Reduction in Sentencing: Sentenced provided in §4.20 for a first conviction of a major or minor sexual offense, except those offenses involving a use of exhibition of a deadly weapon or dangerous instrument or when the intentional or knowingly infliction of serious physical injury upon another has occurred, may be reduced by the court up to twenty-five per cent of the sentence and fine prescribed for said offense. Said reduction shall be based on the following circumstances:

(1) The age of the defendant.

(2) The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirement of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.

(3) The defendant was under unusual or substantial duress, although not such as to constitute a defense to prosecution.

(4) The degree of the defendant's participation in the crime was minor, although not so minor as to constitute a defense to prosecution.

(5) Any other factors which the court may deem appropriate to the ends of justice.

C. The upper or lower term imposed pursuant to this section may be imposed only if the alleged circumstances of the crime are found to be true by the tribal judge upon any evidence or information introduced or submitted to the court prior to sentencing or any evidence previously heard by the judge at the trial, and factual findings and reasons in support are set forth on the record at the time of sentencing.

D. The victim of any sexual offense or the immediate family of the victim if the victim has died as a result of the conduct to the defendant may appear personally or by counsel at any sentencing proceeding to present evidence and express opinions concerning the crime, the defendant or the need for restitution. The court in imposing sentence shall consider the evidence and opinions presented by the victim or the victim's immediate family at any sentencing proceeding or in the presentence report.

E. Notwithstanding any other provisions of this Chapter, if a person is convicted of any class 3 major offense not involving the intentional or knowing infliction of serious physical injury or the use of a deadly weapon or dangerous instrument if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a class 3 major offense, the court may enter judgment of conviction for a class 1 minor offense and make disposition accordingly or may place the defendant on probation and refrain form designating the offense as a major offense or minor offense until the probation is terminated. The offense shall be treated as a class 3 major offense for all purpose until such time as the court may actually enter an order designating the offense as a minor offense. The provisions of this subsection shall not apply to any person who stands convicted of a major offense and who has previously been convicted of two or more minor offenses. When a crime is punishable in the discretion of the court by a sentence as a class 3 major offense or a minor offense, the offense shall be deemed a class 1 minor offense if the prosecuting attorney files a complaint, with the consent of the defendant, amending the complaint to charge a minor offense.

SECTION 4.22 REGISTRATION OF SEX OFFENDERS

A. Person required to register; procedure:

(1) Any person eighteen years of age or older or who has been tried as an adult who has been convicted of a violation of this Chapter or who has been convicted of an offense committed in another state which committed on the Fort Apache Indian Reservation would be a violation of this chapter shall, within thirty days after the conviction or within thirty days after entering the Reservation for the purpose of residing, employment, or setting up a temporary domicile for the thirty days or more, shall register with the White Mountain Apache Police Department.

(2) At the time of registering, the person shall sign a statement in writing giving such information as required by the Chief of Police. The Police Department shall fingerprint and photograph the person and within three days thereafter shall send copies of the statement, fingerprints and photographs to Chief of Police.

B. Violation; classification: A person who, being subject to registration under the provisions of subsection A fails to register as prescribed, is guilty of a class 1 minor offense.

SECTION 4.23 EXCLUSION OF NON-MEMBER

Any non-member convicted for violation of this chapter may be excluded from the Fort Apache Indian Reservation in accordance with the Law and Order Code of the White Mountain Apache Tribe in addition to any other penalties provided herein.

CHAPTER FIVE

VICTIM'S RIGHTS ACT

[NOTE: CHAPTER FIVE IS DERIVED FROM ORDINANCE NO. 171, ENACTED JULY, 1991]

SECTION 5.1 VICTIM'S BILL OF RIGHTS

A. To preserve and protect victim's rights to justice and due process, a victim of crime has a right:

(1) To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process.

(2) To be informed, upon request, when the accused or convicted person is released from custody or has escaped.

(3) To be present at and, upon request, to be informed of all criminal proceedings where the defendant has the right to be present.

(4) To be heard at any proceeding involving a post-arrest release decision, a negotiated plea, and sentencing.

(5) To refuse an interview, deposition, or other discovery request by the defendant, the defendant's attorney, or other person acting on behalf of the defendant.

(6) To confer with the prosecution after the crime against the victim has been charged, before trial or before any disposition of the case and to be informed of the disposition.

(7) To read pre-sentence reports relating to the crime against the victim when they are available to the defendant.

(8) To receive prompt restitution from the person or persons convicted of the criminal conduct that caused the victim's loss or injury.

(9) To be heard at any proceeding when any post-conviction release from confinement is being considered.

(10) To a speedy trial or disposition and prompt and final conclusion of the case after the conviction and sentence.

(11) To have all rules governing criminal procedure and the admissibility of evidence in all criminal proceedings protect victims' rights and to have these rules be subject to amendment or repeal by the Tribal Council to ensure the protection of these rights.

(12) To be informed of victims' constitutional rights.

B. A victim's exercise of any right granted by this section shall not be grounds for dismissing any criminal proceeding or setting aside any conviction or sentence.

C. "Victim" means a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person's spouse, parent, child or other lawful representative, except if the person is in custody for an offense or is the accused.

D. The Tribal Council, or the people by initiative or referendum have the authority to enact substantive and procedural laws to define, implement, preserve and protect the rights guaranteed to victims by this section, including the authority to extend any of these rights to juvenile proceedings.

E. The enumeration in the constitution of certain rights for victims shall not be construed to deny or disparage others granted by the tribal council or retained by victims.

CHAPTER SIX

DOMESTIC VIOLENCE

SECTION 6.1 POLICY

The people of the white Mountain Apache Tribe recognize that domestic violence is a serious crime. The official response to cases of domestic violence shall stress the enforcement of laws to protect the victim and shall communicate the policy of the White Mountain Apache Tribe that domestic violence presents a clear and present danger to the mental and physical well-being of the Apache people. It is also a policy of the White Mountain Apache Tribe to assure the victim of domestic violence the maximum protection that the law and those that enforce it can provide and to hold the perpetrator accountable for his or her conduct.

SECTION 6.2 GENERAL DEFINITION

[HISTORICAL NOTE: Section 6.2 and 6.3 have been amended by Ordinance No. 216, enacted 4/8/98]

A. "Abuse" means intentionally or recklessly or negligently causing or attempting to cause physical harm or mental anguish to another person, or placing another person in reasonable apprehension of imminent serious physical injury to himself or another.

B. "Counseling" means services provided by Tribal Social Services, Apache Behavioral Health, or other authorized agencies that provide services for, but not limited to, alcohol and drug rehabilitation, parenting, mental health and domestic violence education.

C. "Court" means the White Mountain Apache Tribal Court.

D. "Domestic Violence" means abuse, mental anguish, physical harm, bodily injury, assault, or the infliction of reasonable fear or bodily injury, between family or household members, or sexual assault of one family or household member by another. Domestic violence offenses shall consist of the following:

1. Assault

2. Assault with a Deadly Weapon

3. Assault with Intent to Commit Rape

4. Assault with Intent to Cause Serious Bodily Injury

5. Assault with Intent to Kill

6. Battery

7. Criminal Negligence

8. Disobedience to a Lawful Order of the Court

9. Sexual Abuse

10. Sexual Conduct with a Minor

11. Sexual Assault

12. Sexual Assault of a Spouse

13. Molestation of Child

14. Child Abuse

15. Sexual Exploitation of a Minor.

E. "Domestic Violence Shelter" means a confidential location which provides emergency housing on a 24-hour basis for victims of sexual assault, domestic violence, or both.

F. "Family or Household Member" means spouses, former spouses, parents, grandparents, children, siblings, half-siblings, cousins, aunts, uncles, adult persons or emancipated minors presently residing together, or who have a child in common regardless of whether they have been married at any time.

G. "Mandatory Arrest" means that the victim need not sign a complaint for an arrest to occur. A police officer shall arrest, with or without a warrant, if there is probable cause to believe the person to be arrested has committed an offense as defined by this Chapter even though the arrest may be against the expressed wishes of the victim.

(1) "Probable Cause" means the reasonable belief, based on the officer's observations and statement made by the parties involved and witnesses, if any, that the person arrested committed an act of Domestic Violence.

H. "Mental Anguish" means causing a person psychological or emotional damage by physical or verbal intimidation, threatening, verbal abuse, physical abuse, harassment, stalking, or any contact that is detrimental to the psychological and mental well-being of that person or any other family or household member, characterized by behavioral change or physical symptoms.

I. "Order of Protection" means a court order granted for the protection of victims of domestic violence.

J. "Physical Harm" means the impairment of physical condition and includes bu t shall not be limited to any skin bruising, pressure sores, bleeding, failure to thrive, malnutrition, dehydration, burns, fracture of any bone, subdural hematoma, soft tissue swelling, injury to any internal organ or any physical condition which imperils health or welfare.

K. "Perpetrator" means a person who is alleged to have committed or has been convicted of committing an act of abuse or domestic violence on his or her family member or household member.

L. "Police officer," "officer," or "police" means a law enforcement officer of the White Mountain Apache Police Department, White Mountain Apache Game and Fish Officers, White Mountain Apache Reserve Officers, or other applicable law enforcement officer having legal jurisdiction.

M. "Primary Physical Aggressor" means a person who has caused or has threatened to cause the most significant physical or emotional harm to another in his family or household, as compared to the other party involved, regardless of whether or not the other party was the first aggressor, depending on the past history with violent behavior, the relative ability to inflict harm and severity of injuries inflicted on each party.

N. "Victim" means a family or household member who has been subjected to domestic violence.

SECTION 6.3 PENALTIES

A. Criminal Penalties

(1) First Offense:

(a) Any person who commits an act of domestic violence defined by this Chapter shall be deemed guilty of the offense of domestic violence. A person convicted of a first offense of domestic violence shall be imprisoned for a term of not less than ten (10) days or more than one (1) year and shall be fined an amount not less than One Hundred Dollars ($100.00) or more than Five Thousand Dollars ($5000.00). Mandatory counseling shall be part of sentencing as provided in Section 6.4 of this Chapter, as well as restitution when appropriate.

(b) The Court may suspend imposition of fines and imprisonment for the first offense and place defendant on probation for not less than three (3) months nor more than one (1) year. When a sentence is suspended there must be complete cooperation with the orders of the Court requiring cooperation with the domestic violence program and counseling as ordered.

(2) Second Offense: A person convicted of a second offense of domestic violence within five (5) years shall be imprisoned for a term of not less than ninety (90) days or more than one (1) year and fined an amount not less than One Thousand Dollars ($1,000.00) or more than Five Thousand Dollars ($5,000.00). Mandatory counseling shall be part of sentencing as provided in Section 5.4 of this Chapter, as well as restitution when appropriate.

(3) Third and Subsequent Offenses: A person convicted of a third or subsequent offense of domestic violence within five (5) years of the last conviction shall be imprisoned for a term of not less than one hundred eighty (180) days or more than one (1) year and fined an amount not less than Two Thousand Dollars ($2,000.00) or more than Five Thousand Dollars ($5,000.00). Mandatory counseling shall be part of sentencing as provided in Section 6.4 of this chapter, as well as restitution when appropriate.

(4) In cases of failure to comply with the Court's orders of counseling under this Section, the Court shall find the person in contempt and shall impose a sentence no greater than the original sentence for the offense, and again require the perpetrator to complete the entire domestic violence program upon release from jail.

(5) Failure to attend counseling, violation of an order for protection, commission of any crime during the order for protection period, or violation of any condition of sentencing will result in a violation of probation and upon a finding of such will result in the imposition of a sentence no greater than the original sentence and require the perpetrator to complete the entire domestic violence program again.

(6) Prosecution for the offense of domestic violence shall not preclude prosecution for any other offense arising from the same circumstances.

(7) A person convicted of domestic violence shall not be released from custody for community service or to attend funeral or wake services unless said services are for a member of the person's immediate family.

(a) Immediate family as used in the foregoing Subsection A(7) shall mean husband, wife, son, daughter, brother, sister, father, mother or grandparent.

B. Civil Penalties.

In addition to any other penalties herein, any person who engages in the act of domestic violence, may be fined an amount not to exceed Five Thousand Dollars ($5,000.00). Restitution shall be required when appropriate.

C. Other Offenses; Entering Reservation and Committing Domestic Violence.

(1) A person who enters the White Mountain Apache Reservation with the intent to injure, harass, or intimidate that person's family or household member, and who, in the course of or as a result of such travel, intentionally commits an act of domestic violence and thereby causes injury to the family or household member, shall be punished as provided by Section 6.3 A. of this Chapter.

(2) A person who causes a family or household member to enter or leave the White Mountain Apache Reservation by force, coercion, duress, or fraud and, in the course of, or as a result of that conduct, intentionally commits an act of domestic violence and thereby causes injury to the person's family or household member, shall be punished as provided by Section 6.3A. of this Chapter.

D. Other Conditions in Addition to Penalties.

(1) In addition to the penalties above, the Court shall impose any condition it deems necessary to prevent further domestic violence, including but not limited to, additional orders restricting the defendant's ability to have contact with the victim and other family or household members and the requirement that defendant make timely reports to the Court for the duration of the sentence.

(2) A Peace Officer may remove any weapons or firearms that are in plain view or discovered during the domestic violence related investigation. Such weapons will be subject of the forfeiture proceedings under Section 2.5 of the White Mountain Apache Rules of Criminal Procedure.

E. Pre-Sentencing Evaluation

(1) Prior to sentencing a person convicted under this chapter for a domestic violence offense, the Court shall order a domestic violence evaluation upon motion of either party.

(2) The Court shall consider the findings, conclusions and recommendations of an evaluation completed pursuant to Section E (1) in sentencing under this chapter.

SECTION 6.4 TREATMENT AND COUNSELING

A. Alcohol and substance abuse.

If alcohol, drugs, or other substance abuse plays a part in the domestic violence of which a person is convicted, a mandatory chemical dependency evaluation shall be conducted and complete cooperation with any recommendations for treatment shall be part of the sentencing.

B. Mandatory Counseling.

(1) A person convicted of domestic violence shall be ordered to participate in appropriate mandatory counseling which may include family counseling.

(2) Prior to the release of the defendant, qualified personnel if possible, will talk with the victim and discuss the availability of domestic violence services and groups.

C. Mandatory Referral to Social Services.

(1) If a law enforcement officer has reason to believe that the victim of domestic violence has abused alcohol, drugs or other substances, and such abuse contributed in part to a domestic violence incident which has occurred in the presence of a child(ren) under the care and control of such victim, the law enforcement officer shall report the circumstances of the incident to Tribal Social Services within 24 hours.

(2) Once Tribal Social Services receives a report as provided in Subsection C.(1), Tribal Social Services shall commence an investigation of the home environment of the victim and the child(ren) within 48 hours and shall take appropriate action as provided in the Juvenile Code.

D. Religious Consideration.

Persons who practice a traditional Indian religion or any other religion may participate in additional counseling or ceremonies at their own expense, as appropriate to their sentence.

E. Cost for Counseling or Other Treatment.

The Court may order the person convicted of domestic violence to pay any cost for counseling or other treatment ordered pursuant to this Section.

F. Follow-up Assessment

(1) At a minimum a follow-up assessment will be done at the end of the mandated counseling.

(2) A treatment provider shall do the assessment and shall forward a written copy of the findings and recommendations to the Court.

(3) All treatment records will be sealed by the Court and may be reviewed only on a need to know basis with written permission of the judge.

SECTION 6.5 PROCEDURE FOR MANDATORY ARREST

A. Police Department.

(1) If probable cause exists, the officer shall arrest the perpetrator of domestic violence whether or not the victim signs a complaint and whether or not the arrest is against the expressed wishes of the victim.

(2) Whenever a police officer investigates an allegation of domestic violence, whether or not an arrest is made, the officer shall make a written incident report of the alleged abuse and submit that report to the office of the Tribal Prosecutor within 24 hours.

(3) If a law enforcement officer receives complaints of domestic violence from two or more opposing persons, circumstances shall be evaluated to determine if there was a primary physical aggressor. If the officer determines that one person was primary physical aggressor, the officer need not arrest the other person believed to have committed domestic violence. In determining whether one person is a primary physical aggressor, consideration shall include but is not limited to:

(a) Prior history of domestic violence;

(b) The relative severity of the injuries inflicted on each person;

(d) Whether one of the persons acted in self-defense; and

(e) Relative ability to inflict harm between the parties involved.

B. Office of the Tribal Prosecutor.

(1) The Office of the Tribal Prosecutor shall evaluate the complaint based upon all available facts. A case shall not be dismissed solely on the grounds that the victim may be an uncooperative witness.

(2) The Office of the Tribal Prosecutor shall make reasonable efforts to notify a victim of an alleged crime involving domestic violence when the prosecutor has decided to decline prosecution of the crime, or dismiss the criminal charges filed against the defendant.

C. Court.

(1) When a defendant is arrested, automatic orders of protection will be issued as provided in Section 6.8 of this Chapter.

(2) Anyone immediately arrested under this chapter shall be held in the custody of the Police Department for a period not less than 24 hours as a mandatory "cooling off" period, regardless of when arraignment occurs.

(3) Prior to release of the defendant, if possible, police department liaison will talk with the victim and discuss the availability of domestic violence services and groups, or refer the victim to appropriate service providers.

(4) Because of the serious nature of domestic violence:

(a) Disposition of cases shall not be delayed or dismissed because of concurrent dissolution of marriage proceedings or other civil actions.

(b) Proof that either party is seeking a dissolution of marriage prior to initiation of criminal proceedings shall not be required.

(c) Any requirement that the victim's location be disclosed shall be waived and communication to victim regarding the domestic violence case shall be conducted through the victim's advocate or the Court; and

(d) Docket sheets of criminal actions arising from acts of domestic violence shall be identified by any reasonable means.

SECTION 6.6 DUTIES OF POLICE OFFICERS

A. Primary duty of officers.

The primary duty of officers when responding to a domestic violence situation is to enforce the laws and ensure victim safety.

B. Notification to victim.

If the victim is present when the officer arrests a person for domestic violence, the officer shall advise the victim of reasonable means to prevent further abuse, the availability of a shelter or other services in the community, and give the victim immediate notice of any legal rights and remedies available in accordance with policies and protocols adopted in accordance with Section 6.8 of this Chapter. The victim shall be furnished with a copy of the following statement.

If you are a victim of domestic violence, the Office of the Tribal Prosecutor will be notified of the incident and they shall determine whether to file charges against your abuser. An emergency order of protection will be issued against your abuser at the time of the arrest or at your request. You also have the right to go to Court and file a petition requesting any or all of the following temporary orders for relief:

1. An order restraining your abuser from abusing, harassing, stalking, threatening, annoying, telephoning or otherwise contacting you and committing other acts of domestic violence;

2. An order directing your abuser to leave your household and to stay away with no contact;

3. An order preventing your abuser from removing any property from your household except for clothing and other such personal effects, which may only be removed when the abuser is accompanied by a police officer;

4. An order awarding you custody or visitation of a minor child or children;

5. An order specifying arrangements for visitation by your abuser, including required supervised visitation;

6. An order restraining your abuser from harassing or interfering with minor children in your custody;

7. An order directing the party not granted custody to pay support of minor children or to pay support of the other party if there is already a legal obligation to do so; and

8. An order protecting other family and household members.

C. Protection of the Victim.

A law enforcement officer who responds to an allegation of domestic violence shall use all reasonable means to protect the victim and prevent further violence, including but not limited to:

(1) Taking action necessary to provide for the safety of the victim and any family or household member.

(2) Transporting or obtaining transportation for the victim or any minor child (or children) to a temporary shelter.

(3) Assisting the victim and any minor child (children) in obtaining immediate medical treatment, including obtaining transportation to a medical facility.

D. Notification of Release of a Perpetrator.

When a perpetrator is scheduled to be released from custody, the police department shall immediately notify the Office of the Tribal Prosecutor and make reasonable efforts to notify the victim prior to, or upon release of, the perpetrator from custody.

SECTION 6.7 SPECIAL COURT RULES

In addition to the Rules of Court generally applicable to such proceedings, the Court is authorized to take the following actions in a proceeding involving alleged domestic violence offenses.

A. Conditions of Release:

The Court shall, at the earliest stage of the proceedings, impose release conditions restraining the accused from committing any further acts of violence against the alleged victim or any other person regardless of whether the Court orders bond release, recognizance release or denies bond.

B. Arraignment.

At the arraignment, any Domestic Violence Victim Advocate may accompany the alleged victim to the hearing and may accompany the victim to all other subsequent hearings..

C. Admissibility of Victim's Allegations.

Any written statement made by the alleged victim under oath and signed by the victim describing the alleged acts of domestic violence shall not be considered inadmissible solely because of an hearsay objection, but shall be subject to ordinary judicial analysis for admissibility of evidence in the White Mountain Apache Tribal Court.

D. Victim - Impact Statement.

When offered to the court, input from the victim shall be considered when determining the sentence to be imposed.

E. Conviction.

Upon conviction, the perpetrator shall be ordered to participate in an appropriate counseling program consisting of at least the following:

(1) The perpetrator shall attend and cooperate in an intake session at Apache Behavioral Health for evaluation and preparation of a treatment plan.

(2) Such evaluation and treatment plan shall be completed by the appropriate agency no later than twenty (20) calendar days after the entry of the order requiring the evaluation, unless the Court extends that time period.

(3) A copy of the evaluation and treatment plan shall be provided to the Court and made available to the Office of the Tribal Prosecutor.

F. Failure to Comply with Court Order.

Failure to comply with a court order requiring a perpetrator to attend and cooperate in evaluation and/or undergo treatment as described in a treatment plan shall constitute contempt of court punishable as such. The Court may also order the imposition of any sentence that has been suspended.

SECTION 6.8 CIVIL ORDERS OF PROTECTION

Any person may seek relief under this Section by filing a petition, as a civil action, with the Court alleging that the person has been a victim of domestic violence committed by the Respondent. The person may petition for relief on behalf of himself or herself and on behalf of minors within the family or household members. The Petition need not specify irreparable harm as a casual factor.

A. Availability of Civil Petition for Orders of Protection in General.

(1) A civil Petition to obtain an Order of Protection under this Section may be filed by:

(a) Any person claiming to be the victim of domestic violence;

(b) Any family member or household member of a person claimed to be the victim of domestic violence, on behalf of the alleged victim;

(d) The Office of the Tribal Prosecutor.

(2) A Petition shall briefly describe the incident(s) of domestic violence and shall be a verified petition or supported by an affidavit made under oath stating the specific facts and circumstances justifying the requested order.

(3) No filing fees shall be required for filing a petition, nor shall a bond be required to obtain relief, under this section.

(4) The Petitioner, or the victim on whose behalf a petition has been filed is not required to file for annulment, separation, or divorce as a prerequisite to obtaining an order of protection; but the petition shall state whether any such action is pending.

(5) Standard, simplified petition forms with instructions for completion shall be available upon request from the Court Clerk.

(6) Mutual restraining orders of protection are prohibited except in cases where both parties file a claim and the court makes detailed findings of fact indicating that both parties acted as primary aggressors and that neither party acted in self-defense.

(7) An order for protection does not preclude the rights of a party or any child which are to be adjudicated at subsequent hearings in the proceedings.

(8) An order for protection may be revoked, modified, or extended.

(9) An order for protection may be presented in a proceeding for the modification of an existing order, judgment or decree.

B. Procedure for Issuance of an Order of Protection in General.

(1) The order shall include the immediate granting of an ex parte order of protection without bond if, based on the specific facts stated under oath, the Court has reasonable cause to believe that the Petitioner, or the person on whose behalf the petition is filed, is the victim of an act of domestic violence committed by the Respondent.

(2) Within five (5) days of the issuance of an ex parte order excluding holidays and weekends, a hearing shall be held to determine whether the order should be vacated, extended for an additional period of time, made permanent, or modified in any respect with reasonable notice to the Respondent.

(3) If the Court does not find sufficient reasonable cause to grant an ex parte order, the Court shall serve notice to appear upon both parties and hold a hearing on the Petition for an Order of Protection within five (5) days after the filing of the Petition, excluding holidays and weekends.

(4) An Order of Protection granted pursuant to this Section shall be forwarded by the Clerk of the Court to the Whiteriver Police Department within 24 hours of issuance. In the case of an emergency Order for Protection, it shall be filed immediately upon issuance. The Police Department shall make available to each officer information as to the existence and status of every Order for Protection issued under this Section.

D. Contents of an Order of Protection in General.

(1) An Order of Protection shall include provisions:

(a) Restraining the Respondent from committing any acts of domestic violence.

(b) Restraining the Respondent from harassing, stalking, threatening, annoying, telephoning, or otherwise contacting the Petitioner, directly or indirectly, or engaging in any other conduct that would place any named family or household members in reasonable fear of bodily injury.

(c) Prohibiting the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury.

(d) Restraining Respondent from receiving, possessing, or transporting a firearm or ammunition within the exterior boundaries of the Fort Apache Indian Reservation.

(e) Restraining one or both parties from transferring, removing, encumbering, mortgaging, concealing, disposing, altering or damaging property except as authorized by the Court, and requiring that an accounting be made to the Court for all authorized transfers, encumbrances, disposition, and expenditures.

(f) Notifying the parties involved that the knowing violation of and provision of the order may constitute contempt of court punishable by fines, imprisonment, or both.

(g) The order shall include the following statement:

Warning

This is an official Court Order. If you disobey this Court Order, the Court may find you in contempt of Court. You may also be arrested and prosecuted for the willful disobedience of an order lawfully issued by the Court and any other crime you may have committed in disobeying this Order.

(2) An order of Protection may include any other relief the Court deems appropriate, including but not limited to:

(a) Excluding the Respondent from the residence of the victim (whether or not the Respondent and the victim share the residence), school, place of employment, or a specified place frequented by the Petitioner and any named family or household member.

(b) Awarding temporary child custody, temporary child support, or establishing temporary visitation rights of the minor children of the parties, with the primary consideration of the least disruption of the children, including but not limited to health, safety, education, and normal routines of the children.

(c) If visitation is granted there shall be set rules for exchange of children for visitation, including but not limited to times, places, persons, and the non-custodial parent may be required to post a bond as determined by the Court.

(d) Ordering temporary possession and use of the parties' property.

(e) Ordering the Respondent to make timely payments on existing debts of the Respondent, including mortgage or rental payments and necessary utilities in order to maintain the Petitioner in their residence.

(f) Ordering any other lawful relief as the Court deems necessary for the protection or any claimed or potential victim of domestic violence, including orders or directives to the Whiteriver Police Department or other appropriate departments and programs.

E. Duration and Amendments to Orders of Protection in General.

(1) An Order of Protection shall be enforced until further order of the Court but not to exceed one hundred eighty (180) days, and may be subject to amendment for extension at the discretion of the Court or at the request of one of the parties.

(2) The Court may, in its discretion, conduct a review of the Order of Protection at the request of the parties.

F. Emergency Orders of Protection.

(1) During the hours that the Court is closed, the Court shall provide for the availability of a judge or other authorized personnel who shall authorize the issuance of emergency and temporary orders for protection by telephone or by any other appropriate and effective method.

(2) If an officer, for any reason, cannot make an arrest under Section 6.5 of this Chapter, but states there is probable cause to believe a person is in immediate and present danger of domestic violence, the judge or other person authorized to issue emergency Orders for Protection may issue an ex parte Order of Protection if such authorized person finds that the officer's grounds are reasonable.

(3) Written procedures for issuance of emergency Orders of Protection shall be promulgated.

G. Violation of Order of Protection.

(1) In addition to any other penalties available under law or equity, a person, who knowingly violates, or a person who aides and abets another person to knowingly violate an Order of Protection is guilty of an offense and shall be sentenced to a minimum of sixty (60) days imprisonment, or fined an amount not to exceed Three Thousand Dollars ($3,000.00) or both.

(2) A person who enters the Fort Apache Indian Reservation with the intent to engage in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the Protection order was issued, shall be punished as provided in subsection G.(1) above.

(3) A person who causes a family or household member to enter or leave the Fort Apache Indian Reservation by force, coercion, duress, or fraud, and in the course or as a result of that conduct, intentionally commits an act that injures the person's family or household member in violation of a valid protection order issued by the court shall be punished as provided in Subsection G.(1).

SECTION 6.9 REPORTING OF DOMESTIC VIOLENCE

A. Reporting Requirements

Any physician, physician's assistant, nurse, community health representative, social worker, dentist, school teacher, parent aide, adult services worker, law enforcement officer, court personnel, hospital intern or resident, substance abuse worker, health program worker, alcohol program worker, or domestic violence program worker who reasonable suspects that a person has been a victim of domestic violence shall report in accordance with Subsection D. of this Section.

B. Report to Law Enforcement.

The report required by Subsection D. of this Section shall be made orally and immediately by telephone or otherwise to a law enforcement officer.

C. Immunity for Reporting

Except for malicious acts as described under Subsection D.(2) of this Section, anyone other than the perpetrator participating in good faith in the making of a report pursuant to this Section shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed, and shall have the same immunity with respect to participation in any Court proceeding resulting from such a report.

D. Penalties for False Reports or Failure to Report

(1) Any person who knowingly fails to make a report required under this Section is guilty of an offense and shall be imprisoned for a term of not less than ten (10) days nor more than thirty (30) days and shall be fined an amount not less than One Hundred Dollars ($100.00) nor more than Three Hundred Dollars ($300.00) or both

(2) A person acting with malice who knowingly and intentionally makes a false report of domestic violence or a person acting with malice who coerces another person to make a false report of domestic violence, is guilty of an offense and shall be sentenced to jail not less than thirty (30) days, or fined an amount not to exceed Five Hundred Dollars ($500.00) or both.

(3) A person who knowingly and intentionally makes a false report that a person has violated the provisions of Subsection 2 above, is guilty of an offense and shall be sentenced to jail not to exceed thirty (30) days, or fined an amount not to exceed Five Hundred Dollars ($500.00) or both.

(4) A person not subject to the criminal jurisdiction of the White Mountain Apache Tribal Court but who violates either Subsections 1, 2, or 3 above, is liable for a civil offense and shall be fined not less than Three Hundred Dollars ($300.00) nor more than One Thousand Dollars ($1,000.00).

SECTION 6.10 DISCLOSURE OF DOMESTIC VIOLENCE SHELTERS

A. Any person who knowingly publishes, disseminates or otherwise discloses the location of any domestic violence shelter or any place designated as a domestic violence shelter as defined in Section 6.2, without the authorization of that domestic violence shelter, is guilty of a crime and shall be sentenced to jail no less than five (5) days or more than thirty (30) days or fined an amount not less than One Hundred Dollars ($100.00) or to exceed Five Hundred Dollars ($500.00), or both.

B. A person not subject to the criminal jurisdiction of the White Mountain Apache Tribal Court but who violates either Subsections 1, 2, or 3 above, is liable for a civil offense and shall be fined not less than Three Hundred Dollars ($300.00) nor more than One Thousand Dollars ($1,000.00).

SECTION 6.11 CIVIL SANCTIONS

A. Removal and Exclusion.

(1) Whenever a non-member is involved in a situation of domestic violence as the perpetrator, the mandatory arrest provisions of Section 6.5 shall apply.

(2) Proceedings for removal and exclusion of the non-member perpetrator from the Fort Apache Indian Reservation shall be initiated by the Legal Department with a finding that exclusion is a proper remedy to ensure the safety of the victim(s) and uphold the policy of this Chapter.

B. Civil Fines.

A person found to have committed an act of domestic violence may be liable for civil fines for domestic violence pursuant to Section 6.3 of this Chapter.

SECTION 6.12 APPELLATE REVIEW

Appeals under this Chapter shall be pursuant to the Rules of Civil Procedure.

SECTION 6.13 SEVERABILITY

If any part or parts, or the application of any part, of this Chapter is held invalid, such holding shall not affect the validity of the remaining parts of the Chapter.