The Cherokee Code: Published by Order of the Tribal Council of the Eastern Band of Cherokee Indians

Sec. 15-1. Search warrants.

(a) Every judge of the Cherokee Court of Indian Offenses shall have authority to issue warrants for search and seizure of the premises and property of all Tribal members and all other persons subject to the jurisdiction of the court.

(b) No warrant of search and seizure shall be issued except upon a duly signed and written complaint based upon reliable information or belief and charging the commission of some offense against the Tribe.

(c) No warrant for search and seizure shall be valid unless it contains the name or description of the person or property to be searched and describes the articles or property to be seized and bears the signature of a duly qualified judge of the Cherokee Court.

(d) Service of warrants of search and seizure shall be made only by members of the Cherokee Indian Police.

(e) No member of the Cherokee Indian Police shall search or seize any property without a warrant unless he shall have reasonable cause to believe that the person in possession of such property is engaged in the commission of an offense under the Code of Federal Regulations or under Tribal law.

(Res. No. 173, 3-19-1982)

Sec. 15-2. North Carolina Highway Patrol.

(a) The North Carolina Highway Patrol is hereby authorized to patrol the roads and highways on the Cherokee Indian Reservation and to enforce the North Carolina traffic laws as adopted by the Eastern Band of Cherokee Indians.

(b) The North Carolina Highway Patrol is hereby authorized to enforce the North Carolina criminal laws against all persons who are not subject to the criminal laws of the Tribe or the criminal jurisdiction of the Cherokee Court.

(c) Nothing in this section is intended to grant or surrender jurisdiction to the Courts of the State of North Carolina nor to constitute any waiver of the sovereign immunity of the Eastern Band of Cherokee Indians.

(Res. No. 159, 6-17-1980)

Sec. 15-3. Cooperative law enforcement arrangements.

(a) The Cherokee Chief of Police is hereby authorized to enter into mutual assistance arrangements with other municipal and county law enforcement agencies, provided that the head of the requesting law enforcement agency makes such a request in writing, or that the Cherokee Chief of Police makes such a request in writing to another municipal or county law enforcement agency in order to receive assistance.

(b) The Chief of Police is hereby authorized to permit officers of the Cherokee Police Department to work temporarily with officers of the requesting agency, including in an undercover capacity, and the Chief of Police may lend such equipment and supplies to requesting agency as he deems advisable.

(c) All such requests and authorizations shall be in accordance with N.C.G.S. 160A-288, Chapter 427 of the 1987 Session Laws of North Carolina and the inherent authority of the Tribe to govern itself and to enter into agreements with other governmental entities.

(d) While working with a requesting agency an officer shall have the same jurisdiction powers, rights, privileges and immunities (including those relating to the defense of civil actions and payment of judgments) as the officers of the requesting agency in addition to those he normally possesses.

(e) While on duty with the requesting agency, an officer shall be subject to the lawful operational commands of his superior officers in the requesting agency, but he shall, for personnel and administrative purposes, remain under the control of his own agency, including for purposes of pay. An officer shall furthermore be entitled to worker's compensation and the same benefits to the extent as though he were functioning within the normal scope of his duties.

(f) The Chief of Police is hereby authorized to enter into mutual assistance agreements with the other law enforcement agencies in accordance with such reasonable arrangements, terms and conditions as may be agreed upon between the respective heads of the law enforcement agencies.

(g) The Cherokee Chief of Police is hereby instructed to give an annual report to the Tribal Council on such agreements.

(Res. No. 538, 6-26-1989)

Sec. 15-4. Probation Officer.

(a) The position of Probation Officer and Work Detail Supervisor is hereby authorized and created.

(b) Such person shall maintain records for all persons convicted of misdemeanors in the Cherokee Court who are assigned to work detail as a part of their judgment and shall assign and supervise the work for all such persons.

(c) Persons assigned to work detail shall perform work for the benefit of the Tribe and community including, but not limited to: clean Police Department vehicles and grounds; clean and maintain the grounds, parking lot, and roadways to the Cherokee Hospital; clean and maintain roadsides throughout the Cherokee Indian Reservation; clean and maintain the grounds of the Cherokee Civic Center; cut and deliver wood to the elderly and invalids residing on the Reservation.

(d) The position of Probation Officer shall be funded through Community Service funds.

(Res. No. 187, 3-22-1982)

Sec. 15-5. Pretrial release and adult rehabilitation program.

(a) The Tribe shall administer a Pretrial Release and Adult Delinquent Rehabilitation Program under the supervision of the Community Services Committee of the Tribal Council.

(b) The program will assume jurisdiction over and responsibility for individuals released by courts of the United States and the State of North Carolina.

(c) The program shall be administered in accordance with guidelines approved by the Law Enforcement Assistance Administration.

(Res. No. 87, 1-8-1976)

Sec. 15-6. Police manual.

The Eastern Band of Cherokee Indians hereby adopts the "Cherokee Police Manual and Traffic Regulation Procedures" to regulate and govern the operation and personnel of the Cherokee Police Department.

(Res. No. 23, 10-20-1975)

Sec. 15-7. Indian Civil Rights Act.

The Eastern Band of Cherokee Indians adopts all the protections afforded in the Indian Civil Rights Act of 1968, 25 U.S.C. 1301—1303.

(Ord. No. 407, 11-7-1996)

Sec. 15-8. Rules of criminal procedure.

The Judicial Branch is authorized to develop and propose rules of criminal procedure for adoption by the Tribal Council. Until such rules are adopted by the Tribal Council, the Cherokee Court shall follow the rules set forth in 25 C.F.R. Part 11, Subpart C. To the extent that one or more of those rules is inconsistent with the Cherokee Code, the court shall follow the Cherokee Code.

(Ord. No. 117, 3-3-2000)

 

APPENDIX A. THE CHEROKEE RULES OF CRIMINAL PROCEDURE*

*Editor's note --Ord. No. 402, ratified December 14, 2004, adopted the Cherokee Rules of Criminal Procedure.

I. APPLICABILITY

Rule 1. Scope; definitions

(a) Scope.

(1) In General. These rules govern the procedure in all criminal proceedings in the Cherokee Court and the Cherokee Supreme Court, and may be cited as the Cherokee Rules of Criminal Procedure.

(2) Excluded Proceedings. Proceedings not governed by these rules include:

(A) Civil proceedings;

(B) A proceeding under an ordinance governing juvenile delinquency or undisciplined petitions, except as specifically noted in Rule 5(C)(3)(d);

(C) Matters otherwise governed by the North Carolina Rules of Evidence; and

(D) Matters otherwise governed by the Cherokee Rules of Appellate Procedure.

(b) Definitions. The following definitions apply to these rules:

(1) "Attorney for the Tribe^" means:

(A) The Attorney General or an authorized assistant or deputy;

(B) The Tribal Prosecutor or an authorized assistant; and

(C) Any other attorney authorized by law to conduct proceedings under these rules as a prosecutor.

(2) "Court" means a Cherokee Court Judge or Supreme Court Justice performing functions authorized by law.

(3) "Magistrate" means: a Cherokee Court Magistrate as defined in C.C. § 50B-4

(4) EBCI or Tribe means Eastern Band of Cherokee Indians, a Federally recognized Indian Tribe.

(5) "Judge" means a Cherokee Court Judge.

(6) "Justice" means a member of the Cherokee Supreme Court

(7) "Oath" means the traditional swearing to tell the truth and may include an affirmation.

(8) "Qualla Boundary" means the entire Cherokee Indian Reservation located in North Carolina including lands in Graham and Cherokee Counties and lands owned by the Tribe in fee simple.

(9) "State or local judicial officer" means: a Judge or Justice of the North Carolina General Court of Justice or a State Court Magistrate.

(10) "Marshal" means the Marshal of the Supreme Court, who also serves as the Court security officer for the Cherokee Court.

(11) "CIPD" means the Cherokee Indian Police Department.

(c) Authority of a Justice or Judge of the Cherokee Court. When these rules authorize a Magistrate to act, any other Cherokee Court Judge or Supreme Court Justice may also act.

Rule 2. Interpretation.

These rules are to be interpreted to provide for the just determination of every criminal proceeding, to secure simplicity in procedure and fairness in administration, and to eliminate unjustifiable expense and delay.

II. PRELIMINARY PROCEEDINGS

Rule 3. The Criminal Complaint.

The criminal complaint is a written statement of the essential facts constituting the offense charged. It must be made under oath before a Magistrate or, if none is reasonably available, before a Judge or Justice.

Rule 4. The Statement of Charges.

The Tribal Prosecutor may issue a statement of charges. The statement of charges is a written statement of the charges brought by the Tribe. It may be issued by the Tribal Prosecutor after a review of the facts and circumstances of the alleged crime and the probable cause or lack thereof, including a determination by the Tribal Prosecutor of the likelihood of prevailing at trial., The Tribal Prosecutor may issue a statement of charges even when the Magistrate has determined that there was no probable cause to issue a warrant for arrest or criminal summons upon a criminal complaint in the same case.

Rule 5. Arrest Warrant or Criminal Summons.

(a) Issuance. If the complaint, or one or more affidavits filed with the complaint establish probable cause to believe that an offense has been committed and that the defendant committed it, the Magistrate must issue an arrest warrant to an officer authorized to execute it. The Magistrate, in his or her discretion, may issue a criminal summons, instead of a warrant, to a person authorized to serve it. More than one warrant or summons may be issued on the same complaint. If a defendant fails to appear in response to a summons, a Judge may, in the Court's discretion, and upon request of an attorney for the Tribe must, issue an arrest warrant.

(b) Form.

(1) Warrant. A warrant must:

(A) Contain the defendant's name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty;

(B) Describe and cite the offense charged in the criminal complaint;

(C) Command that the defendant be arrested; and

(D) Be signed by a Magistrate.

(2) Criminal Summons. A criminal summons must be in the same form as a warrant except that it must require the defendant to appear before a Judge at a stated time and place.

(c) Execution or Service, and Return.

(1) By Whom. The CIPD, Marshal or other authorized officer may execute a warrant or serve a criminal summons.

(2) Location. A warrant may be executed, or a summons served, within the jurisdiction of the Eastern Band of Cherokee Indians, within the State of North Carolina as provided for by law, or anywhere else a federal or state statute authorizes an arrest.

(3) Manner.

(A) A warrant is executed by arresting the defendant. Upon arrest, an officer possessing the warrant must show it to the defendant. If the officer does not possess the warrant, the officer must inform the defendant of the warrant's existence and of the offense charged and, at the defendant's request, must show the warrant to the defendant as soon as practicable.

(B) A criminal summons is served on an individual defendant:

(i) by delivering a copy to the defendant personally; or

(ii) by leaving a copy at the defendant^'s residence or usual place of abode with a person of suitable age and discretion residing at that location or by mailing a copy to the defendant's last known address.

(C) A criminal summons is served on an organization by delivering a copy to an officer of the organization, to a managing or general agent or to an other agent appointed or legally authorized to receive service of process. A copy must also be mailed to the organization's last known address within the Qualla Boundary or to its principal place of business elsewhere in the United States.

(D) A juvenile summons and petition pursuant to C.C. § 7A may be served by the Marshal, any CIPD officer or by the Director of the Division of Juvenile Services or his or her designee.

(4) Return.

(A) After executing a warrant, the officer must return it to the Clerk of the Cherokee Court.

(B) The person to whom a criminal summons was delivered for service must return it on or before the next day following the day of service. If Court is closed on the next day following service, the person returning the summons may deliver it to the Magistrate on duty.

(C) At the request of the Tribal Prosecutor, a Judge may deliver an unexecuted warrant, an unserved criminal summons, or a copy of the warrant or criminal summons to the CIPD, Marshal or other authorized person for execution or service. At the request of the Tribal Prosecutor, an un-executed warrant may be brought back to and dismissed by a Judge..

Rule 6. Initial Appearance.

(a) In General.

(1) Appearance Upon Arrest. A person making an arrest within the Qualla Boundary must take the defendant without unnecessary delay before a Magistrate or Judge, unless the person taken into custody is arrested on Federal or State process, in which case they shall be taken before the appropriate person as provided for in N.C. Gen. Stat. § 15A or the Federal Rules of Criminal Procedure. It is not necessary for persons arrested for violating conditions of release to be brought before the Magistrate.

(2) Appearance Upon a Summons. A person served with a criminal summons must appear before the Magistrate on duty during the first business day following service with the summons. Upon failure of any defendant to report as Ordered, the Magistrate on duty during the day shall issue a Warrant for the defendant's arrest and charge him or her with Failure to Obey a Lawful Order of the Court.

(b) Procedures.

(1) Determining Jurisdiction. The Magistrate shall conduct the "St. Cloud" test to confirm that the defendant is an Indian. This test is conducted as follows:

(A) Inquire if the defendant is an enrolled member of any Federally recognized Indian Tribe;

(B) Inquire if the defendant is a First Descendent of the EBCI;

(C) Inquire if the defendant is a citizen of another country;

(D) Inquire if the defendant is a member of any State recognized Indian Tribe; and

(E) Inquire if the defendant participates in any Indian cultural events, lives on a Reservation, receives any benefits reserved exclusively for Indians, or otherwise holds herself out as an Indian.

If the answers to questions (A)-(C), or any one of them, is "yes," the inquiry ends there and the Court has jurisdiction over the defendant. If the answers to questions (A)-(C) is "no," but the answer to question (D) or (E) is "yes," further inquiry may be in order to satisfy the Magistrate that the defendant is an Indian for the purposes of the exercise of jurisdiction. If the Magistrate determines that the defendant is a non-Indian, then the Magistrate should notify the CIPD of same, dismiss the charges and turn the defendant over to the CIPD for transport to the appropriate State or local judicial officer or to the Federal authorities.. In lieu of inquiring of the defendant as outlined above, an Affidavit such as the one attached in Appendix I to these Rules may be utilized. If the defendant exercises his or her right to remain silent, the Magistrate shall determine that the defendant is an Indian for the purposes of jurisdiction, without prejudice to the defendant's right to challenge jurisdiction at a later date. If the defendant is too intoxicated or impaired for the Magistrate to conduct this inquiry, the Magistrate shall order that the defendant appear before the Magistrate on duty on the following business day for the conclusion of this proceeding..

(2) Waiver of Personal Jurisdiction. A non-Indian may waive the issue of personal jurisdiction and consent to proceeding in the Cherokee Court

(3) Notice of Charges. Following the determination of jurisdiction, the Magistrate shall inquire as to whether the defendant has received a copy of the Warrant, Criminal Complaint, and/or Criminal Summons. If the defendant has not, he or she will be provided a copy at this time. The Magistrate will read the charges to the defendant if he or she does not understand what the charges are.

(4) Advising of Rights. The Magistrate shall advise the defendant and make findings that the defendant understands:

(A) That he or she has the right to remain silent;

(B) That he or she cannot be compelled to testify in this case;

(C) That he or she has the right to a speedy trial;

(D) That he or she has the right to a public trial;

(E) That he or she has the right to confront the witnesses against him or her;

(F) That he or she has the right to call witnesses on his or her own behalf;

(G) That, if he or she wishes, witnesses for his or her behalf may be compelled to attend by subpoena served by the CIPD or other law enforcement agency;

(H) That he or she has the right to be represented by counsel;

(I) That counsel will be appointed for him or her, upon request, if he or she cannot afford counsel and is likely to face an active term of incarceration if convicted;

(J) That he or she has the right to trial by Jury; and

(K) That he or she, if found guilty, has the right to appeal the Judgment to the Cherokee Supreme Court.

(5) Inquiries. Upon advising the defendant of his or her rights, the Magistrate will inquire whether the defendant wants to be represented by counsel, and, if so, whether the defendant requests to apply for Court appointed counsel. Additionally, the Magistrate will inquire of the defendant whether he or she elects trial by Jury. The defendant may defer this decision until consulting with counsel, or until coming before a Judge.

(6) Conditions of Release. After the Magistrate has made the appropriate inquiries of the defendant, the Magistrate shall establish conditions for the defendant's release. If the Magistrate finds that the defendant is a danger to the community or a risk of flight, and that no conditions will reasonably secure the defendant's attendance or provide for the safety of the community, the Magistrate may Order that the defendant be held without bond until a Release Hearing may be held before the Cherokee Court. Permitted conditions of release, including combinations, are:

(A) Cash bond;

(B) Secured bond

(1) Surety bond;

(2) Property bond;

(3) Bond shall not be secured by per capita garnishment;

(C) Third Party Custody;

(D) Pre-trial Supervision by the Probation Office; and

(E) Unsecured bond (written promise to appear).

Additionally, the Magistrate may impose restrictions on the defendant in his or her discretion, including, but not limited to:

(A) Prohibiting the defendant from possessing a firearm, ammunition or other weapon;

(B) Prohibiting the defendant from contacting the alleged victim(s);

(C) Prohibiting the defendant from possessing or consuming alcohol;

(D) Restricting the defendant to the jurisdiction of the Cherokee Court at all times, or other geographical restrictions; and

(E) Prohibiting the defendant from violating the laws of this or any other jurisdiction.

In the event the defendant's release is not authorized, or the defendant is unable to satisfy the conditions of release, the defendant shall be taken by the CIPD to an approved jail facility. If a surety who has posted a bond produces a defendant and requests to be released from the bond, a Judge may discharge the surety from his or her obligations under the bond upon such conditions as the Court thinks appropriate.

Rule 7. Pretrial Proceedings.

(a) Appointment of Counsel. The Court contracts with an attorney to accept appointments in criminal cases. Additionally, the Court maintains a roster of attorneys available for appointment in criminal cases, in the event of a conflict or in multiple defendant cases. The Court determines whether a defendant is eligible for appointment of counsel. If a defendant receives appointed counsel and is convicted, the Court may Order the defendant to pay the counsel fees as part of the Judgment or as part of the costs of Court.

(b) Recording of Proceedings. All criminal proceedings before the Cherokee Court shall be recorded.

(c) Pleas. The pleas before the Cherokee Court are: guilty, not guilty, nolo contendere or guilty pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).

(d) Motions.

(1) Joinder/Severance of Offenses or Defendants.

(A) Joinder of Offenses. Two or more offenses may be joined for trial on Motion by either the Prosecutor or the defense. Either party may move for severance of offenses.

(B) Joinder of Defendants. Two or more defendants may be joined for trial on Motion of the Tribe if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each criminal case or count. The defendants, or one of them, may move for severance.

(2) Pretrial Motions. A party applying to the Court for an Order must do so by Motion. Motions may be made orally or in writing, with the preference that they are in writing. A Motion must state the grounds on which it is based and the ruling or Order sought. Written Motions must be served twenty-four hours prior to a hearing.

A. Motions That May Be Made Before Trial. A party may raise any defense, objection or request that the Court can determine without a trial of the general issue.

B. Motions That Must Be Made Before Trial. The following must be raised before trial or are subject to waiver:

1. A Motion alleging a defect in instituting the prosecution;

2. A Motion alleging a defect in the Warrant or Summons, but at any time while the case is pending, the Court may hear a claim that the Court does not have jurisdiction or that the charge does not state an offense.

3. A Motion to suppress evidence.

4. A Motion sever charges or defendants; and

5. A Motion for discovery.

(e) Notice of lnsanity / Incompetence Defense. A defendant who intends to assert a defense of insanity at the time of the offense or incompetence to stand trial must file a notice of such in writing and serve the Prosecutor before trial or the defendant cannot rely on either of these defenses. The Court may conduct such proceedings and Order such examinations of the defendant as is necessary to determine such Motions.

(f) Discovery.

(1) The Tribe. The Tribe shall maintain an "open file" policy. The defense may review the Prosecutor's file upon request. The Prosecutor is presumed to be in possession of CIPD reports and other evidence in the possession of the CIPD..

(2) The Defense. The defendant shall, at the request of the Prosecutor, provide the Prosecutor with a written summary of anticipated expert testimony pursuant to NC R.E. 701, et seq.

(g) Pretrial Conference. On its own, or on Motion of a party, the Court may hold one or more pretrial conferences to promote a fair and expeditious trial. The Tribe may not use any statement made during the conference by the defendant or his or her attorney unless it is writing and is signed by the defendant and his or her attorney. The Court may issue a scheduling Order without a pretrial conference.

(h) Interpreters. The Court may select, appoint, and set the rate of compensation for an interpreter. The Court will administer an oath to interpreters.

(i) Subpoenas. The issuance of and compliance with subpoenas are controlled by Rule 45 of the North Carolina Rules of Civil Procedure.

III. TRIAL

Rule 8. Non-jury Trials.

A defendant may waive his right to a jury trial and proceed with a bench trial in which the Court will determine whether the defendant is guilty or not guilty. The Court may, in its discretion, empanel a jury to determine a fact or facts.

Rule 9. Jury Trials.

(a) Jury Composition. The jury venire shall be of enrolled members of the EBCI.

(b) Jury Size. A jury consists of six persons, unless this rule provides otherwise.

(1) Stipulation For a Smaller Jury. At any time before the verdict, the parties may, with the approval of the Court stipulate that:

(A) The jury may consist of fewer than six persons, or

(B) A jury of fewer than six persons may return a verdict if the Court finds it necessary to excuse a juror for good cause after the trial begins.

(2) Court Order For a Jury of Five. After the jury has retired to deliberate, the Court may permit a jury of five persons to return a verdict, even without a stipulation by the parties, if the Court finds good cause to excuse a juror.

(c) Trial Jurors.

(1) Examinations. The Court may examine prospective jurors and may permit the parties to do so.

(2) Peremptory Challenges. Each side is entitled to three peremptory challenges. The Court may, in its discretion, allow additional peremptory challenges

(3) Alternate Jurors. The Court may impanel up to two alternate jurors to replace any jurors who are either unable to perform or disqualified from performing their duties.

(A) Procedure. Alternate jurors are selected in the same manner as other jurors. The prosecution and defense are allotted one additional peremptory challenge each for use in selecting alternate jurors.

(B) Replacement. Alternate jurors replace jurors in the order in which the alternate jurors were selected. Alternate jurors have the same powers and responsibilities as other jurors.

(d) Judges. Any Cherokee Court Judge may complete a jury trial if:

(1) The Judge before whom the trial began cannot complete the trial because of death, sickness, other disability or because the Judge is unavailable; and

(2) The Judge completing the trial certifies that he or she is familiar with the record.

After a verdict or finding of guilt, any Cherokee Court Judge may complete the Court's duties, including sentencing, if the Judge who presided over the trial cannot perform those duties because of absence, death, sickness, and other disability or because the Judge is unavailable. Alternatively, the successor Judge may Order a new trial.

(e) Taking Testimony. In every trial, the testimony of the witnesses must be taken in open Court, unless otherwise ordered by a Judge..

(f) Mistrial. Before declaring a mistrial, the Court must give each party an opportunity to comment on the proprietary of such a declaration, to state whether the party consents or objects and allow each party to suggest alternatives.

Rule 10. Foreign Law Determination.

A party intending to raise an issue of foreign law, excluding North Carolina or Federal law, must provide the Court and all other parties with reasonable written notice. Issues of foreign law are questions of law, but in deciding such issues, the Court may consider any relevant material or source, including testimony, without regard to the North Carolina Rules of Civil Procedure,

Rule 11. Producing a Witness's Statement.

(a) Motion to Produce. After a witness (other than the defendant) has testified on direct examination, the Court on Motion of a party who did not call the witness, must order the production of any statement of the witness that is in the possession of the party who called the witness and which relates to the subject matter of the witness's testimony so that the moving party may examine and use the entire statement. If the party producing the statement objects to portions of the statement being provided on the grounds of privilege, the Court will review the statement in camera and determine whether the entire statement or a redacted version shall be provided. Although the better practice is for the statement to be provided pretrial or pre-hearing, the Court may order a recess for the moving party to review the statement before questioning the witness. Failure to provide a statement following an Order of Disclosure shall be grounds for sanctions.

Rule 12. Sanctions.

Sanctions are governed by Rule 11 of the North Carolina Rules of Civil Procedure.

Rule 13. Proving an Official Record.

A party may prove an official record, an entry in such a record, or the lack of such a record or entry in the same manner as in a civil action.

Rule 14. Motion for a Judgment of Acquittal.

(a) Before Submission to the Finder of Fact. After the close of the Tribe's evidence or at the close of all of the evidence, the Court on the defendant's motion must enter a Judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The Court may, on its own, consider whether the evidence is insufficient to sustain a conviction. If the Court denies a Motion for Judgment of Acquittal at the close of the Tribe's evidence, the defendant may offer evidence without having reserved the right to do so. The Court may reserve the decision on such a motion and proceed with the trial, but the Court must decide the motion on the basis of the evidence at the time the ruling was reserved.

(b) Following Jury Verdict or Discharge. The defendant may move for a verdict of acquittal or renew such a motion within seven (7) days of the verdict or within (7) days of the discharge of the jury; whichever is later, or at any other time set by the Court. It is not a prerequisite for the defendant to have made such a motion at the close of the Tribe's evidence or at the close of all of the evidence.

Rule 15. Closing arguments.

Closing arguments may be limited in duration by the Court.

Closing arguments proceed in the following order if the defendant puts on evidence:

(a) The Tribe argues;

(b) The defense argues; and

(c) The Tribe rebuts.

If the defendant does not adduce evidence, the Tribe may not rebut.

Rule 16. Jury Instructions.

(a) In General. The Court adopts the North Carolina Pattern Instructions. Any party may request in writing that the Court give an instruction on the law as specified in the request. The request must be made at the close of the evidence, or at such earlier time as the Court might direct. Jury instructions may be given before or after closing arguments, or at both times. The Court may create its own instructions, as well.

(b) Charge Conference The Court will conduct a charge conference at which time it will consider requests of the parties for specific instructions and advise the parties of its intended instructions.

(c) Objections. The Court shall give each party an opportunity, following the instructions to the jury to register any objections outside the presence of the jury and prior to deliberations. Failure to object in accordance to this Rule may preclude appellate review except for plain error.

Rule 17. Jury Verdict.

(A) Return. The jury must return its verdict to the Judge in open Court. The Clerk will take the verdict. The verdict must be unanimous.

(B) Partial Verdicts, Mistrial and Retrial.

(1) Multiple Defendants. If there are multiple defendants, the jury may return a verdict as to any defendant as to whom it has agreed at any time during its deliberations.

(2) Multiple Charges. If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those charges as to which it has agreed.

(3) Mistrial and Retrial. If the jury cannot agree as to one or more charges, or as to one or more defendants, the Court may declare a mistrial as to those charges or defendants. The Tribe may retry any defendant on any charge on which the jury could not agree.

(C) Jury Poll. After the return of a verdict by the jury, but before the discharge of the jury, the Court, at the request of a party, must poll the jurors individually. The Court may poll the jury on its own motion. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further, or may declare a mistrial and discharge the jury.

IV. POST-CONVICTION PROCEEDINGS.

Rule 18. Sentencing and Judgment.

(A) Time of Sentencing. The Court must impose sentence without unnecessary delay. Prayer for Judgment may be continued.

(B) Proceedings. Either party may call witnesses or adduce evidence during the sentencing hearing. The Court may call witnesses. The defendant may speak in allocution, although he or she does not have to do so.

Rule 19. Probation Revocation Hearings.

(A) Arrest. A Magistrate may order the arrest of a probationer if the Magistrate finds probable cause that the probationer is in willful violation of the terms and conditions of his or her probationary Judgment. The probationer may waive the finding of probable cause.

(B) Revocation Hearing. Upon a finding of probable cause, a Cherokee Court Judge shall conduct a revocation hearing within a reasonable time. The probationer is entitled to:

(1) Notice of the alleged violation(s);

(2) Disclosure of the evidence against the probationer;

(3) An opportunity to appear, contest the evidence, present evidence and question any adverse witnesses, unless the Court determines that the interests of justice do not require the witness to appear; and

(4) Notice of the probationer's right to counsel, including an opportunity to apply for Court-appointed counsel.

(C) Disposition. If the Court finds the probationer to be in willful violation of the terms and conditions of his or her probation, the Court may:

(1) Activate any suspended portion or part thereof of the probationer's sentence;

(2) Modify the probationer's Judgment; or

(3) Continue the probationer on probation under the same terms and conditions.