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GENERAL PROVISIONS

§ 2-3-1 Definitions

(a) "Business day" means any day in which the business of the Nez Perce Tribe is normally conducted and excluding weekends and holidays.

(b) "Contraband" means any item which is unlawful to possess or produce.

(c) "Defendant" means the person against whom an action is filed under this chapter.

(d) "Infraction" means a civil offense in which the remedy involved shall be a civil fine. An infraction is not a crime and the punishment imposed therefor shall not be deemed for any purpose a penal or criminal punishment and shall not affect or impair the credibility of a witness or otherwise of any person convicted thereof.

(e) "Instrumentality" means any item used in connection with an infraction.

(f) "Probable cause" exists under this chapter when an officer has substantial objective basis for believing that a person has committed an infraction. In determining whether probable cause exists, the officer may take into account all information which a prudent officer would deem relevant to the likelihood that an infraction has been committed and that the person to be cited has committed it.

(g) "Personal delivery" means the physical presentation of a citation to a person accused of an infraction violation.

(h) "Notice" means to hand deliver notice to a party or mail such notice to the party's most recently known address.

(i) "Tribal Police Officer" means BIA law enforcement officers, tribal police officers, or other peace officers authorized by the Nez Perce Tribe to enforce the laws of the Tribe.

(j) "Tribe" means the Nez Perce Tribe.

§ 2-3-2 Application

The procedures in this chapter shall apply to any general or traffic infraction listed in this code. Unless otherwise provided, the sole remedy for a violation of a general or traffic infraction under this code shall be those which are provided herein.

§ 2-3-3 Rights of Defendant

A defendant charged with a general or traffic infraction, shall have the right to:

(a) present evidence and examine witnesses;

(b) compulsory process for obtaining witnesses in his favor and at his own expense; and

(c) have the assistance of counsel for his defense at his own expense.

INFRACTION PROCEDURES

§ 2-3-4 Citations

(a) Issuance of a Nez Perce Tribal infraction citation will initiate prosecution of an action under this chapter. An infraction citation may be issued by:

(1) a tribal police officer once the officer has probable cause to believe an infraction under this code has been committed;

(2) service by the Court clerk upon the filing of a complaint by the tribal prosecutor.

(b) A tribal police officer shall serve a copy of a tribal citation on the defendant by personal delivery to him when the defendant is present, or when the citation is for a traffic infraction and the defendant is not present, by issuing the citation to the registered owner of the vehicle involved and affixing it in plain view on the vehicle. Certification of service of a citation shall be indicated on the face of the citation by the issuing officer. The original citation shall be filed with the Tribal Court and a copy delivered to the tribal prosecutor within one (1) business day of serving.

(c) The filing of a complaint by the tribal prosecutor and service of a citation by the Court clerk shall be in accordance with the Rules of Civil Procedures except that a citation shall be served in lieu of a summons.

(d) The Tribal Court may permit the amendment of any process or pleading at any time so long as the substantial rights of the defendant are not prejudiced. If an amendment of a citation complaint is made, the Court may grant a continuance of the trial for good cause.

(e) Only one person and one violation may be charged by a complaint on a single citation. A citation shall require that the defendant appear in Tribal Court not less than five (5) nor more than fifteen (15) business days after the date of the citation.

(f) Any person charged with a violation of this chapter may pay the fine prior to the date set for trial by returning the citation and fine to the Tribal Court by mail or in person. Payment of the fine in such a manner shall constitute an admission of the charge. The payment must be received by the Court on or before the appearance date set forth in the citation.

§ 2-3-5 Preliminary Hearing/Trial (revised 6/22/99)

A. Preliminary Hearing

(a) Unless the defendant pays an infraction fine prior to a preliminary hearing, he shall appear before the tribal judge on the date listed in the citation. At the preliminary hearing the defendant shall admit or deny the allegations in the civil infraction citation. If the defendant admits the allegations the tribal judge may consider any evidence presented by the defendant in imposing an appropriate fine.

(b) If the defendant denies the allegations in the civil infraction citation the tribal judge shall schedule a trial date.

B. Trial

(a) If the defendant is not represented by counsel, the citing officer may present evidence on behalf of the Tribe. If the defendant is represented by counsel, the Court shall notify the tribal prosecutor who shall appear on the Tribe’s behalf.

(b) The burden of proof shall be on the tribe to establish the commission of the violation by a preponderance of the evidence. If the trier of fact does not find by a preponderance of the evidence that the defendant committed the infraction offense, the Court shall enter judgment for the defendant. If the trier of fact finds by a preponderance of the evidence, that the defendant committed the infraction, the Court shall enter judgment against the defendant.

(c) The Rules of Evidence shall apply to trial proceedings under this chapter.

§ 2-3-6 Remedies

(a) Unless otherwise provided, fines for individual infractions shall be fixed as determined by NPTEC and shall reflect the severity of the offense and the tribe's interest in protecting individuals and property. A list of such fines, which shall be updated periodically as the Court shall determine is necessary, shall be provided to the tribal police for use in issuing citations.

(b) A fixed fine shall be the primary remedy for a traffic infraction under this code. Fines for traffic infractions shall be in an amount equal to the total amount charged by the State of Idaho for the same offense as provided by the "Idaho Court Rules" as of the date of adoption of this chapter and as amended, less $5.00; provided, that no fine shall be reduced below the amount of $5.00. In addition to a fine, violators of the Nez Perce traffic laws may also be subject to the assessment of points, suspension or revocation of driving privileges and assessment of costs or fees related to revocation or suspension in accordance with the applicable law of the jurisdiction where the violator resides.

(c) For civil infractions other than traffic violations, the Nez Perce Tribal Court may apply any of the following remedies singularly or in combination:

(1) issue an injunction, by ordering the defendant to temporarily or permanently refrain from conducting the acts or actions that gave raise to the complaint;

(2) order the defendant to pay compensation or restitution to the tribe, an individual or any other entity injured by the actions of the defendant. In the event that evidence of damage or loss to an individual or entity other than the tribe arises in the course of an infraction proceeding, the victim shall be so notified by the citing officer. Compensation or restitution shall reflect the actual documented damages or loss suffered as determined by the Tribal Court at a separate hearing and shall not include compensation for emotional distress or other special damages. The victim shall bear the burden of proving damages in damage hearings and mitigating circumstances shall be taken into account. Once a damage determination is made the victim shall bear the burden of collecting any and all judgments;

(3) assess a fine; or

(4) order community service.

(d) In any proceedings in which the defendant is found to have committed an infraction, the Tribal Court may assess court costs against the defendant to be added to any fine, restitution or other remedy prescribed. The Court may also allow the assessment of attorneys fees against the defendant if the tribe is required to pursue the collection of a judgment under this chapter. Where the infraction involves a controlled substance or alcohol either as an element of the offense or as a factor contributing to the commission of the offense, the Court may impose a period of probation and order drug and/or alcohol evaluation, counseling and random testing as a condition of probation, the violation of which probation shall itself be an offense under § 4-1-33 of the Nez Perce Tribal Code punishable by up to sixty days in detention/jail and a fine up to $500. In the event of a repeated offense by a minor, the Court may require the family of the offender residing with the offender to participate in counseling.

(e) When in the judgment of the Prosecutor it would be appropriate, the Prosecution may also commence an action for forfeiture under Chapter 2-6 of the Nez Perce Tribal Code.

§ 2-3-7 Failure to Appear

(a) If the defendant fails to appear before the Court at or before the time stated in the infraction citation or to otherwise pay the fine in accordance with this chapter, the Court shall enter default judgment against the defendant.

(b) If a default judgment is entered against a defendant, the Court clerk shall issue notice of judgment to the defendant advising him that he must pay the judgment by a date certain which shall not be less than ten (10) business days after the date of the notice. The notice shall state that failure to pay the judgment will result in suspension of his driver's license and/or proceedings for contempt.

(c) If a defendant fails to pay a civil infraction fine or other penalty within the time allowed by a notice of default judgment under this section then the Court shall:

(1) for traffic infractions, sign a notice of nonpayment of traffic fine and send it to the Idaho Department of Transportation for suspension of defendant's driver's license; and

(2) find the defendant in contempt of court in accordance with this code.

§ 2-3-8 Method of Payment of Penalty and Costs

The judgment and court costs for an infraction offense shall be paid by cash, money order, cashier's check or other certified funds payable to the Nez Perce Tribe.

§ 2-3-9 Appeals

(a) Any party may appeal a final decision of the Tribal Court on an infraction violation. In addition, the victim of such violation may appeal the final judgment in a damages hearing.

(b) Upon review, the Appeals Court shall reverse the judgment of the Trial Court if it finds there are no facts to support the Trial Court's determination or the law was misinterpreted or misapplied.

(Chapter revised 8/24/99)

§ 2-4-0 Purpose

The purpose of this Chapter is to secure for each child coming before the Tribal Court, such care, guidance, and control preferably in his/her own home or with an extended family member, that will serve his/her welfare and the best interests of the Nez Perce Tribe; to preserve and strengthen family ties whenever possible; to preserve and strengthen the child’s cultural and ethnic identity whenever possible; to improve any home conditions or home environment which may be contributing to his/her delinquency; and, at the same time, to protect the peace and security of the Nez Perce Reservation and its individual residents from juvenile violence. To this end, this Chapter shall be liberally construed.

INTRODUCTORY PROVISIONS

§ 2-4-1 Definitions

(a) "Adult" means an individual who is eighteen (18) years of age or older or who is sixteen (16) years of age or older and has been married or who is sixteen (16) years of age or older and is the custodial parent of a child or who has been otherwise emancipated by the Court.

(b) "Child" or "minor" means an individual who is less than eighteen (18) years old who does not fall within the meaning of "Adult" as set out in §2-4-1(a).

(c) "Custodian" means a person, other than a parent or guardian, to whom custody of a child has been given.

(d) "Delinquent act" means an act which would be a crime if committed by an adult.

(e) "Detention" means exercising authority over a child by physically placing him in any juvenile facility designated by the Court and restricting the child's movement in that facility.

(f) "Domicile" means a person's residence in which they intend to remain indefinitely.

(g) "Emergency foster home" means a foster home which has been licensed to accept emergency placements of children at any hour of the day or night.

(h) "Foster home" means a home licensed by the tribe as provided in the Minor in Need of Care chapter.

(i) "Guardian" means a person, other than a parent, assigned by a court of law, having the duty and authority to provide care and control of a child.

(j) "Habitual status offender" means any minor who has been found to have committed three (3) status offenses within twelve months.

(k) "Home Detention" means a dispositional alternative available to the Court whereby a juvenile offender may be released to the parent or legal guardian provided that the juvenile offender may not be out between the hours of 6:00 P.M. and 6:00 A.M. nor go beyond fifty (50) yards of the residence in which the Court ordered them to be detained without twenty-four (24) hour prior approval of the Court.

(l) "Juvenile delinquent" means a child who commits a delinquent act.

(m) "Juvenile shelter care facility" means any juvenile facility (other than a school) that cares for juveniles, including alcohol or substance abuse programs, emergency shelter or halfway houses, foster homes, emergency foster homes, group homes, shelter homes and medical facilities.

(n) "Parent" includes a natural or adoptive parent, but does not include persons whose parental rights have been legally terminated, nor does it include the unwed father who has not been acknowledged or established as the child's biological father.

(o) "Probable cause" exists under this chapter when a tribal police officer has substantial objective basis for believing that a minor has committed or will commit a delinquent act. In determining whether probable cause exists, the officer may take into account all information which a prudent officer would deem relevant to the likelihood that an act has or will be committed and that the juvenile involved has committed or will commit such act.

(p) "Probation" means a legal status created by court order whereby a juvenile delinquent is permitted to remain in his home under prescribed conditions and under the supervision of a person designated by the court. A juvenile delinquent on probation is subject to return to court for further proceedings in the event of his failure to comply with any of the prescribed conditions of probation.

(q) "Secure juvenile facility" means a facility which (1) contains locked cells or rooms which are separated by sight and sound from any adult inmates; (2) restricts the movement of those placed in the locked cells or rooms, and (3) complies with the other requirements of the Juvenile Justice and Delinquency Prevention Act, 42 U.S.C. 5601 et. seq.

(r) "Status offense" means truancy, running away from or being beyond the control of parents, guardian or custodian and curfew violations.

§ 2-4-2 Personal Jurisdiction

(a) Except as otherwise specifically provided, the Nez Perce Tribal Court shall have jurisdiction over any child who is a member or eligible to become a member of the Nez Perce Tribe no matter where domiciled, residing, or found and any other Indian child domiciled or found within the territorial boundaries of the Nez Perce Tribe. The Court may decline jurisdiction where a forum with concurrent jurisdiction is exercising its authority or in cases where neither the child nor either parent is a Reservation resident in cases where justice may require declination.

(b) To the extent necessary to make a proper disposition of the case, the Nez Perce Tribal Court shall have authority to exercise jurisdiction over all persons having the care, custody or control of a child over whom the Court exercises jurisdiction. This authority shall include the power to punish for contempt whether or not such contempt is committed in its presence.

§ 2-4-3 Extension of Jurisdiction

Under this Chapter, the Court has exclusive jurisdiction to try a child under eighteen (18) limited jurisdiction between eighteen (18) and twenty-one (21), and none thereafter. If the child turns eighteen (18) before a Petition is filed but after offense is committed, the child shall be tried as a juvenile, subject to §2-4-6.

Jurisdiction can be extended to twenty-one (21) if done before the juvenile is eighteen (18) in order to retain jurisdiction to impose sentence or to have time to execute full sentence.

§ 2-4-4 Capacity

A child under the age of six (6) is deemed incapable of committing a crime. A child of six (6) and under ten (10) is presumed incapable of committing a crime, but the presumption is rebuttable. A child ten (10) or over is deemed to be capable of committing a crime for capacity purposes.

§ 2-4-5 Nature of Juvenile Cases

Adjudication of a juvenile matter by the court shall not under any circumstances be deemed a criminal conviction unless the minor is tried as an adult for the alleged act.

§ 2-4-6 Trial as Adult

(a) The Tribal Prosecutor or the child may file a petition requesting the court to try a child as an adult if the child is fourteen (14) years of age or older and is alleged to have committed an act which would have been considered a crime if committed by an adult. Once the petition is filed, the court shall conduct a hearing on the matter.

(1) The court may try the minor as an adult only if it:

(A) finds clear and convincing evidence that:

(i) there are no reasonable prospects for rehabilitating the child through resources available to the court; and

(ii) the act(s) allegedly committed by the child demonstrate conduct which constitutes a substantial danger to the public.

(B) issues a written order that the child shall be tried as an adult with respect to the delinquent acts alleged in the petition after the conclusion of the hearing.

(b) If the child is between the ages of sixteen (16) and eighteen (18) and is accused of a violent offense: Aggravated Assault §4-1-39, Aggravated Battery §4-1-40, Aggravated Stalking §4-1-42, Murder §4-1-43, Manslaughter §4-1-44, Kidnapping §4-1-45, False Imprisonment §4-1-46, Rape §4-1-48, Forcible Sexual Penetration with a Foreign Object §4-1-49,Unlawful Sexual Intercourse §4-1-50, Sexual Assault §4-1-51, Sexual Molestation of a Minor under Sixteen §4-1-52, Aggravated Arson §4-1-55, Extortion §4-1-68, Domestic Violence §4-1-88, Abuse of Vulnerable Adults §4-1-89, Child Abuse §4-1-90, Riot §4-1-121, Setting a Dangerous Device §4-1-125, Weapons Offense §4-1-126, or Committing an Offense While Armed §4-1-127, the child will automatically be tried as an adult.

(c) Once a juvenile is transferred to Adult Court he/she no longer meets the definition of a child or minor and all subsequent charges will be brought in Adult Court.

§ 2-4-7 Comity

State, federal or other Tribal Court orders involving children over whom the court has jurisdiction may be recognized by the court only after an independent review of such state proceedings has determined:

(a) the court has jurisdiction over the child;

(b) due process was provided to all participants; and

(c) the proceeding did not violate the public policies or law of the tribe.

§ 2-4-8 Juvenile Probation Officers

(a) Such Juvenile Probation Officers as may be required to carry out the purposes of this Chapter shall be appointed by the Tribe. Juvenile Probation Officers shall be chosen for their ability and special aptitude for working with children. In addition, any members of Tribal Law Enforcement assigned duties similar to those of Juvenile Probation officers shall be deemed "Juvenile Probation Officers" for all purposes under this Chapter.

(b) Juvenile Probation Officers shall have the power and duty to carry out the objectives and provisions of this Chapter with regard to juvenile offender cases and shall:

(1) make preliminary inquiries, social studies, and such other investigations as the Court may direct;

(2) keep written records of such inquiries, social studies, and such other investigations and shall make written reports to the Court;

(3) supervise and assist each child placed on probation or under his/her supervision;

(4) keep informed concerning the conduct and conditions of each person on probation or under protective supervision and shall report thereon to the Court as the Judge may direct;

(5) use all suitable methods to aid children on probation or under protective supervision to bring about improvements in their conduct or conditions;

(6) take children into custody when there is reasonable cause to believe that they have violated conditions of their probation; and

(7) perform such other duties in connection with the care, custody, or transportation of children as the Court may require;

(c) Juvenile Probation officers shall have the powers of Tribal Police Officers for purposes of this Chapter, but shall, whenever possible, refrain from exercising such powers except in urgent situations in which an on-duty Tribal Police Officer is not immediately available.

CUSTODY

§ 2-4-9 When Juvenile may be Taken into Custody

A Tribal police officer may take a child into custody when:

(a) the child commits a delinquent act in the presence of the officer;

(b) the officer has probable cause to believe the child has committed a delinquent act;

(c) a custody order or warrant for child has been issued by the court;

(d) when the officer has reasonable grounds to believe the child has committed a status offense; or

(e) when the juvenile probation officer has reasonable cause to believe that the child has violated conditions of their probation.

§ 2-4-10 Notification of Rights

A Tribal police officer taking a child into custody shall inform the child that:

(a) he has a right to remain silent;

(b) anything he says can be used against him in court;

(c) he has a right to the presence of his parent, guardian, or custodian and/or counsel during questioning; and

(d) he has a right to an attorney at his own expense.

§ 2-4-11 Custody Procedures

(a) While in custody, a child shall not be finger printed or photographed except by order of the court.

(b) After taking a child into custody the officer shall:

(1) release the child to the child's parent, guardian or custodian and issue verbal counsel or warning as may be appropriate;

(2) release the child to a relative or other responsible adult if the child's parent, guardian or custodian consents to the release; or

(3) deliver the child to a juvenile shelter care facility or a secure juvenile facility. Status offenders shall not be placed in any secure juvenile facility, but instead, may be placed in a juvenile shelter care facility.

COURT PROCEDURES IN JUVENILE MATTERS

§ 2-4-12 Petition

An advisory hearing shall be initiated by a petition filed by the tribal prosecutor on behalf of the tribe. The petition shall set forth with specificity:

(a) the name, birth date, residence, and tribal affiliation of the child;

(b) the names and residences of the child's parent, guardian or custodian;

(c) a citation to the section containing the offense which the child is alleged to have committed;

(d) a plain and concise statement of facts upon which the allegations are based, including the date, time and location at which the alleged acts occurred; and

(e) whether the child is in custody and, if so, the place of detention, date and time he was taken into custody.

§ 2-4-13 Juvenile Proceedings (amendment authorized 10/9/01)

(a) During proceedings in juvenile matters:

(1) unless otherwise provided by this chapter, the rules of procedure shall be the same as that for adult criminal proceedings;

(2) the child and his parent, guardian or custodian present in court shall be informed by the court of the rights provided to the child by the arresting officer and the:

(A) allegations against the child;

(B) right to cross-examine witnesses;

(C) right of the child to subpoena witnesses and to introduce evidence on his own behalf;

(D) privilege against self-incrimination;

(E) there is no right to a jury trial; and

(F) possible consequences if the allegations in the petition are found to be true.

(3) the child has a right to an attorney at his own expense;

(4) the child has no right to a jury trial; and

(5) the general public shall be excluded.

(b) Discovery

(1) At the expense of the defendant and upon his request, the prosecutor shall permit the defendant to inspect and copy or photograph the following items which are within the possession, custody or control of the prosecutor and/or tribal police:

(A) relevant written or recorded statements made by the defendant or copies thereof;

(B) copies of the defendant's prior criminal record;

(C) books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof obtained in connection with the defendant's case;

(D) results or reports of physical or mental examinations, scientific tests or experiments, or copies thereof made in connection with the defendant's case.

(2) Regardless of a request by the defendant, the prosecution and/or tribal police shall at least fifteen (15) business days before the Adjudicatory Hearing if the defendant is not in custody and five (5) business days if defendant is in custody, provide the defendant with:

(A) any evidence of an exculpatory nature in their possession or of which they may be aware;

(B) written notice staling names and addresses of the witnesses the prosecution intends to call at trial.

(3) Upon the request of the prosecutor and at the expense of the tribe, the defendant shall permit the prosecutor to inspect and copy or photograph:

(A) results or reports of physical or mental examinations, scientific tests or experiments made in connection with the defendant's case;

(B) books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof obtained in connection with the defendant's case.

(4) Regardless of a request by the prosecutor, the defendant shall at least seven (7) business days before the Adjudicatory Hearing if defendant is not in custody and three (3) business days if the defendant is in custody, provide the prosecution with written notice of names and addresses of the witnesses it intends to call at the Adjudicatory Hearing.

(5) If, prior to or during trial, a party discovers additional evidence or material which is subject to discovery or inspection under this rule, such party shall promptly notify the other party or the court of the existence of the additional evidence or material.

(6) Except to the extent such material is otherwise subject to discovery, this rule shall not authorize the discovery or inspection of:

(A) reports, memoranda, or other internal documents made by the defendant, an attorney for either party or agents of the either party in connection with the investigation, prosecution or defense in the case;

(B) statements made by the defendant, witnesses or prospective witnesses in connection with the case.

(7) Upon motion by a party, the court may deny or restrict discovery or issue such other order as is appropriate. If the court enters an order granting relief all items or documents reviewed in camera shall be sealed and preserved in the record of the court to be made available to the appellate court in the event of an appeal.

(8) Once the court determines that a party has failed to comply with this rule, it may grant a motion to compel submitted by the opposing party, grant a continuance, prohibit the party from introducing evidence not disclosed or it may enter such other order as it deems just. In addition to any other action taken by the court upon a finding that a party has failed to comply with this rule, the court may award attorneys fees and costs to the prevailing party resulting from procedures to compel discovery.

§ 2-4-14 Detention Hearing

(a) When a child is placed into secured confinement upon being taken into custody, the court shall hold a detention hearing within one (1) business day of the initial detention. At such hearing, the court shall determine:

(1) whether probable cause exists to believe the child committed the alleged delinquent act; and

(2) whether continued detention is necessary pending further proceedings.

(b) If the court determines that there is a need for continued detention, it shall specify where the child is to be placed until the adjudicatory hearing.

INFORMAL ADJUSTMENT/ADVISORY HEARING

§ 2-4-15 Informal Adjustment (section amended effective 3/12/02)

(a) In the case of a minor who commits a status offense or is a first time offender, the Prosecutor may hold an informal conference with the child and the child’s parent, guardian or custodian, and/or other persons whose presence is considered appropriate to discuss alternatives to the filing of a petition for an adjudicatory hearing if:

(1) The admitted facts bring the case within the jurisdiction of the Court;

(2) An informal adjustment conference of the matter would be in the best interest of the child and the Tribe;

(3) The child and his parent, guardian or custodian consent to an informal adjustment conference; and

(4) An informal adjustment is not in conflict with §2-4-6.

(b) Notice of the informal adjustment conference shall be given to the child and his parent, guardian or custodian and their counsel as soon as the time for the conference has been established.

(c) Any statement made during the informal adjustment conference may be admitted into evidence at any adjudicatory hearing or any other proceeding under this Code. The child and his parent, guardian or custodian shall be informed of this provision.

(d) At the conclusion of the informal hearing the Prosecutor will:

(1) Refer the child and the parent, guardian or custodian to a community agency for needed assistance;

(2) Order, by agreement of the child and his/her parent(s,) terms of supervision calculated to assist and benefit the child which regulate the child’s activities and which are within the ability of the child to perform, such an order must be approved by the Court;

(3) Recommend restitution to be made by the child; or

(4) Make a decision to file a petition with the Court.

(e) Upon the successful completion of the informal adjustment, the case shall be closed and no further action taken. If the child fails to attend the informal adjustment conference, the Prosecutor shall file a petition for an adjudicatory hearing. If the child fails to successfully complete the terms of the agreement, the prosecutor shall file a petition for an adjudicatory hearing.

§ 2-4-16 Advisory Hearing

(a) After receipt of the petition, the Court shall schedule an advisory hearing and inform the parties of the date and time of the hearing in the summons. If a child is in custody the advisory hearing must be held within ten (10) business days after receipt of the petition or the petition shall be dismissed unless:

(1) The hearing is continued upon motion of the child;

(2) The hearing is continued upon motion of the Prosecutor by reason of the unavailability of material evidence or witnesses and the Court finds the Prosecutor has exercised due diligence to obtain the evidence or witnesses and reasonable grounds exist to believe that the evidence or witnesses will become available;

(3) The hearing is continued upon motion of the Prosecutor by reason of difficulty of serving the summons and upon a showing of due diligence in attempting to discover the address or whereabouts of the person(s) to be served; or

(4) The hearing is continued upon the Court’s determination that a continuance is in the best interest of the child.

(b) At the Advisory Hearing the Court shall:

(1) Read the Petition to the child and explain the allegation(s) in the petition;

(2) Explain the consequences of the Petition to the child;

(3) Give an explanation to the child of his rights in the proceedings, including the right to request a continuance to obtain counsel; and

(4) Offer the child the opportunity to admit or deny the allegation(s) in the petition.

(c) If the child admits to the allegation(s) in the petition, the Court shall schedule a Dispositional Hearing within ten (10) business days if the child is in custody. If the child is released from custody or was not taken into custody, then the dispositional hearing shall be held within twenty (20) business days thereafter, if the Court finds:

(1) The child fully understands his/her rights and the potential consequences of his/her admission.

(2) The child voluntarily, intelligently, and knowingly admits to all facts necessary to constitute a basis for the action; and

(3) The child has not, in his/her purported admission to the allegation(s), set forth facts which, if found to be true, constitute a defense to the allegation(s).

(d) If the child denies the allegation(s) in the petition, the Court shall schedule an Adjudicatory hearing.

ADJUDICATORY HEARING/DISPOSITIONAL HEARING

§ 2-4-17 Adjudicatory Hearing

(a) The court shall conduct the adjudicatory hearing to determine whether the child has committed a delinquent act or status offense. If the child remains in custody, the adjudicatory hearing shall be held within ten (10) business days after the advisory hearing. If the child is released from custody or was not taken into custody, the hearing shall be held within thirty (30) business days after the advisory hearing. If the Adjudicatory Hearing is not held within ten (10) business days after the advisory hearing when the child is in custody, the Petition shall be dismissed and cannot be filed again unless:

(1) The hearing is continued upon motion of the child;

(2) The hearing is continued upon motion of the Prosecutor by reason of the unavailability of material evidence or witnesses and the Court finds the Prosecutor has exercised due diligence to obtain the evidence or witnesses and reasonable grounds exist to believe that the evidence or witnesses will become available; or

(3) The hearing is continued upon the Court’s determination that a continuance is in the best interest of the child.

(b) The Court shall conduct the adjudicatory hearing for the sole purpose of determining the guilt or innocence of the child. The hearing shall be private and closed.

(c) The Court shall hear testimony concerning the circumstances which gave rise to the Petition. If the court finds beyond a reasonable doubt that the allegations contained in the juvenile delinquent petition are true it shall schedule a disposition hearing and specify whether the child is to be placed or continued in out-of-home placement pending the hearing. If the court finds that the allegations in the petition have not been established beyond a reasonable doubt it shall dismiss the petition and order the child released from any detention imposed in connection with the proceeding.

§ 2-4-18 Consolidation of Proceedings

When more than one child is alleged to be involved in the same delinquent act, the proceedings may be consolidated, except that separate hearings may be held with respect to disposition.

§ 2-4-19 Predisposition Report

(a) Once a juvenile is found to have committed a delinquent act or status offense, the Juvenile Probation Officer shall prepare a written report describing reasonable and appropriate alternative dispositions. The report shall contain specific recommendations for the care of and assistance to the child calculated to resolve the problems presented in the Petition. The Juvenile Probation Officer shall present the predispositional report to the Court, the child or his/her representative, and the Prosecutor at least two (2) days before the dispositional hearing.

(b) By motion of a party or by its own authority, the Court shall continue the dispositional hearing pending the receipt of a predispositional study and report.

(c) The Court may order a psychiatric examination of the child, parent, guardian or custodian. The parent, guardian or custodian may refuse to be examined but such refusal can be considered by the Court in making its determination on disposition.

§ 2-4-20 Dispositional Hearing

(a) A date for a dispositional hearing shall be set by the Court at the conclusion of the advisory hearing or the adjudicatory hearing as appropriate. The court shall conduct dispositional hearings to determine how to resolve a case after a finding that a child has committed a delinquent act or status offense. If the child remains in custody after the advisory hearing or adjudicatory hearing, the dispositional hearing shall be held within ten (10) business days thereafter. If the child is released from custody or was not taken into custody after the advisory hearing or adjudicatory hearing, then the dispositional hearing shall be held within twenty (20) business days thereafter.

(b) If a child has been adjudicated a juvenile offender, a habitual status offender or the child has admitted the allegation(s) in an advisory hearing, the Court may make the following dispositions:

(1) Place the child on probation subject to conditions set by the Court and subject to the probation requirements set by the Probation Officer;

(2) Place the child in an institution or agency designated by the Court for the purpose of treatment and/or rehabilitation;

(3) The Court may order home detention where such disposition is in the best interests of the child and the Tribe;

(4) The Court may order community service where appropriate supervision is available by any individual or organization duly authorized by the Court to supervise such community service;

(5) The child may be committed to a detention facility.

(6) The Court may order the child and/or the parent, guardian or custodian to attend any counseling or treatment that the Court finds is in the best interests of the child and the Tribe;

(7) The Court may order the child and the parent, guardian or custodian to pay any restitution for damages to person or property that have resulted from the actions of the child. Restitution shall include payment of money damages, surrender of property, or performance of any other act for the benefit of any person or party injured personally or in his property by the juvenile offender.

(8) The Court may order the child and the parent, guardian or custodian to pay Court costs not to exceed twenty-five dollars ($25.)

(9) The Court may enter any other order it deems appropriate.

§ 2-4-21 Jurisdiction Over Parents

Whenever a juvenile is found to come under the purview of this chapter, the court shall have jurisdiction and authority to have the juvenile and the juvenile’s parent(s), legal guardian or custodian sign a probationary contract with the court containing terms and conditions that the juvenile and the juvenile’s parent(s), legal guardian or custodian must adhere to as a condition of the juvenile’s probation. The probationary contract may provide that upon a violation or breach of the terms and conditions of the probationary contract the juvenile’s parent(s), legal guardian or custodian shall be liable to the court for a specific monetary sum not to exceed one thousand dollars ($1,000) for the breach of contract. All such monies received by the court pursuant to this section shall be paid to the Nez Perce Tribal Court. In lieu of or in addition to a monetary payment, the court may order that the parent(s), legal guardian or custodian provide community service, attend parenting classes or undergo other treatment or counseling.

§ 2-4-22 Status Offenses

(a) Truancy. Any minor who violates § 4-3-53(a) may be charged, petitioned and adjudicated with the status offense of being a Truant; (subsection amended eff. 11/12/02)

(b) Runaway. Any minor who violates § 4-3-53(c) Runaway may be charged, petitioned and adjudicated with the status offense of being a Runaway; (subsection amended eff. 11/12/02)

(c) Beyond Parental Control. Any minor who behaves in such a way as to be deemed by the court’s caseworker as beyond the control of his parent(s), guardian or custodian may be charged, petitioned and adjudicated with the status offense of being Beyond Parental Control;

(d) Curfew Violation. Any minor who violates §4-3-52 may be charged, petitioned and adjudicated with the status offense of Curfew Violation;

(e) Habitual Status Offender. Any juvenile who has been adjudicated for commission of two (2) status offenses within twelve (12) months may be charged, petitioned and adjudicated as an habitual status offender for the third status offense committed within that twelve (12) month period. (previous subsection (e) deleted eff. 11/12/02).

JUVENILE RECORDS

§ 2-4-23 Maintenance of Records/Confidentiality (section amended 4/10/01)

(a) A record of all hearings under this chapter shall be made and preserved. Law enforcement records and files concerning a child shall be kept separate from the records and files of adults. All court records and law enforcement records related to juveniles shall be confidential and shall not be open to inspection to any but the following:

(1) the child;

(2) the child's parent(s), guardian or custodian;

(3) the child's counsel;

(4) law enforcement, juvenile court, and social services personnel directly involved in the handling of the case;

(5) the tribal prosecutor;

(6) other prosecuting attorneys or courts of competent jurisdiction; and/or

(7) any other person by order of the court, upon a showing of extraordinary need.

(b) The victim of misconduct shall always be entitled to the name of the juvenile involved, the name of the juvenile's parents or guardian, and their addresses and telephone numbers, if available in the records of the court;

(c) Records or statistical information may be released for purposes of legitimate research or study upon order of the court as long as such information does not identify or tend to reveal the identity of any individual upon which it is based.

§ 2-4-24 Destruction of Records

The court may destroy the records of any juvenile once such person reaches the age of twenty one (21).

(amendments to chapter adopted by NPTEC 5/28-29/02)

§ 2-5-1 Definitions

(a) "Adjudication" means the process provided by this chapter for the formulation of an order through a hearing before the tribal agency.

(b) "Appellant" means a person who files an appeal under this chapter.

(c) "Commission" means any Nez Perce Tribal entity of appointed or elected members empowered with specific authority and duties in relation to particular subject matter such as the adoption of rules or regulations and conducting hearings on disputed matters.

(d) "Department" means a unit of Nez Perce tribal staff members established to implement the goals and objectives of the Nez Perce Tribe in a specific area and operating under the supervision and direction of NPTEC.

(e) "Ex Parte communication" means a communication between one party to a proceeding and the hearing officer, tribal agency staff or any other decision maker without notice to or participation by any other party to the proceeding.

(f) "Manager" means the highest ranking staff person in a department.

(g) "Order" means the whole or part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of a tribal agency in a matter other than rule making but including licensing.

(h) "Rule" means the whole or part of a tribal agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of a tribal agency.

(i) "Tribal agency" or "agency" for purposes of this chapter, includes a program, department, board, commission or other tribal entity authorized or mandated by this code or NPTEC to issue rules or hold hearings and issue orders.

§ 2-5-2 Procedural Rules/Policies

A tribal agency may adopt procedural rules or policies such as deadlines, hearing procedures and commenting criteria to assist in implementation of the provisions of this chapter. To the extent that either a tribal agency or NPTEC through ordinance or resolution has enacted procedures for rulemaking or adjudications which specifically address hearing procedures and other such matters in a manner more detailed than that of this Code, those procedures control to the extent that such rules or policies do not conflict with the provisions of this chapter.

RULE MAKING

§ 2-5-3 Rule Making Procedure

(a) At least fifteen (15) business days prior to tribal agency action on a proposed rule, such agency shall post in a conspicuous place in Lapwai, Kamiah, and Orofino and if possible, publish in the NPTEC minutes to be mailed to tribal members:

(1) a statement of the purpose and effect of the proposed rule;

(2) the reason for proposing adoption of the rule;

(3) reference to the legal authority under which the rule is adopted;

(4) that written comments may be submitted over the next fifteen (15) business days to a designated representative of the tribal agency; and

(5) that any comments submitted after the close of the fifteen (15) day comment period will not be considered in tribal agency action on the proposed rule.

(b) Following completion of the written comment period, the tribal agency may hold a public hearing. A decision to hold a public hearing may be based upon the written public comment received on the proposed rule, the potential controversy related to the proposal or whenever the tribal agency otherwise determines that additional public input would be useful and constructive. If such a hearing is held, the tribal agency shall post in a conspicuous place in Lapwai, Kamiah and Orofino and publish in the local newspapers:

(1) a statement of the purpose and effect of the proposed rule;

(2) references to the legal authority under which the rule is proposed;

(3) notice that on a specified date not less than five (5) but no more than ten (10) business days from the time of posting, a hearing will take place at a specified location for the purpose of taking public comment; and

(4) notice that the comment period on the proposed rule will be extended until the end of the hearing.

(c) This section shall not apply so long as the rule does not substantially affect the legal rights of, or procedures available to, the public and when the tribal agency finds and determines that:

(1) a proposed amendment is an interpretive rule, general statement of policy, or rule which addresses the internal management of the tribal agency; or

(2) for good cause, notice and public procedures are impracticable, unnecessary, or contrary to the public interest.

(d) The notice and comment provisions of this section shall not apply when the agency determines that prompt action is necessary for the preservation of life, health, property, order or natural resources.

(e) Following a tribal agency's final action on a rule it shall submit the rule to the NPTEC for review. Within five (5) business days of NPTEC approval, if any, the agency shall post a copy of the final rule in a conspicuous place in Lapwai, Orofino and Kamiah. The rule shall also be included with the NPTEC minutes mailed to tribal members.

(f) Posting of emergency rule shall clearly provide that such rule is an emergency and include the rational for the emergency. An emergency rule shall be effective immediately upon approval by the NPTEC and for a period of not longer than ninety (90) business days thereafter unless, during that time, the agency provides for regular notice and comment under this chapter.

(g) The notice and comment provisions of this section do not apply to agency rulemaking necessary for the exercise, protection, and enhancement of treaty reserved rights and resources.

ADJUDICATIONS

§ 2-5-4 Timing

Each tribal agency shall conduct an adjudication whenever this Code or NPTEC requires that such agency issue an order after opportunity for hearing on the record, or when a tribal employee is aggrieved by an employment action or a denial of license and seeks a hearing before the Board or hearings officer of a tribal agency. Immediately thereafter, the tribal agency shall designate a Board or hearings officer to schedule a hearing and resolve the dispute in the manner prescribed by this Chapter.

§ 2-5-5 Exhaustion of Other Remedies

Before seeking a hearing before the Board or hearings officer of a tribal agency, the party seeking a hearing must have exhausted all other available administrative remedies established by the tribal agency.

§ 2-5-6 Notice

Within ten (10) business days after the Code requires a hearing on the record or an employee has sought a hearing before the tribal agency, the Board or hearings officer of a tribal agency assigned to hear the dispute shall inform all persons known to have an interest in the hearing of:

(a) the time, place, and nature of the hearing;

(b) the legal authority under which the hearing is to be held; and

(c) the matters of fact and law asserted by the party seeking a hearing.

§ 2-5-7 Appearance by Parties

A party may appear in person or by or with counsel in a tribal agency adjudicatory proceeding.

§ 2-5-8 Submission of Evidence

Prior to the hearing, each party may submit such relevant documentary evidence in support of their position as necessary to assist the Board or hearing officer in making their decision. This documentary evidence shall serve as the basis of the Board or hearings officer’s decision.

§ 2-5-9 Hearings (amended by NPTEC 8/12/03)

(a) Each tribal agency may adopt their own hearing procedures provided that they conform with rules of evidence, due process, and any other applicable tribal or federal law. To the extent that a tribal agency fails to adopt specific hearing procedures, or those procedures are in conflict with this Code, the procedures of this Chapter shall apply.

(b) The Board or hearings officer presiding at the hearing may:

(1) administer oaths and affirmations;

(2) upon a showing of general relevance and reasonable scope of the evidence sought, issue subpoenas authorized by law and when requested by a party;

(3) rule on offers of proof and receive relevant evidence;

(4) take depositions or have depositions taken when the ends of justice would be served;

(5) regulate the course of the hearing;

(6) hold conference for the settlement or simplification of issues by consent of the parties;

(7) dispose of procedural requests or similar matters;

(8) directly question the parties to a hearing; and

(9) take other action consistent with this chapter.

(c) The party seeking the hearing has the burden of proof.

(d) The parties may present any additional oral or documentary evidence, but irrelevant, immaterial or unduly repetitious evidence shall be excluded. The parties may also submit rebuttal evidence, and conduct cross examination where the hearings officer determines such actions will produce evidence material to the resolution of the case.

(e) The Board or hearings officer shall issue a written opinion and order within ten (10) days of the hearing. The decision shall:

(1) be based solely on those issues properly raised to the hearings officer and on all oral and documentary evidence submitted by the parties that is supported by substantial evidence; and

(2) be in writing and include the findings and conclusions of law of the Board or hearings officer and the reason or basis for such conclusions on all material issues of fact, law or discretion as presented by the parties, and the appropriate rule, order, sanction, relief, or denial thereof.

(f) The decision of the Board or hearings officer shall be the final agency decision.

§ 2-5-10 The Record

(a) The exclusive record for hearings shall be compiled by the tribal agency and shall include:

(1) complete audio or written recorded transcripts of testimony provided at the hearing,

(2) all documents, papers, requests, and exhibits filed prior to and during hearing; and

(3) the written decision of the Board or hearings officer.

(b) The record shall provide the basis for any subsequent appeal of the Board or hearing officer’s decision to Tribal Court.

(c) The record shall be provided to a party upon request and payment of costs by such party.

§ 2-5-11 Ex Parte Contacts and Conflict of Interests

(a) No interested person outside a tribal agency involved in an adjudication shall make or knowingly cause to be made to any person in such tribal agency, a hearing officer or other tribal employee who is or may reasonably be expected to be involved in the decision making process of the proceedings an ex parte communication relevant to the merits of the proceeding.

(b) No member of the tribal agency, the hearing officer or tribal employee who is or may reasonably be expected to be involved in the decisional process related to an adjudication, shall make or knowingly cause to be made to any interested person outside the tribal agency an ex parte communication relevant to the merits of the proceeding;

(c) A member of the tribal agency, a hearing officer or other tribal employee who is or may reasonably be expected to be involved in the decisional process related to an adjudication who receives or who makes or knowingly causes to be made a communication prohibited by this subsection shall place on the record of the proceedings:

(1) all such written communications or memoranda stating the substance of such communications; and

(2) all written responses or memoranda stating the substance of responses, to the materials described above.

(d) Upon a violation of this section by a party and absent good cause shown to the contrary, the hearing officer may dismiss, deny, disregard or make other appropriate determinations in relation to such parties claim.

(e) Any member of the Board or a hearings officer who has an actual or potential personal, financial, or propriety interest in the outcome of a hearing or has a personal, financial, or propriety relationship with the employee seeking a hearing must disclose such interests and, if unable to act in a non-biased manner, must recuse himself from the hearing.

(f) The prohibitions of this section apply to any Nez Perce Tribal Executive Committee member who may sit on the Board or Commission of a tribal agency.

§ 2-5-12 Exclusion of Certain Employees From Decision

An employee or agent engaged in investigative or prosecuting functions for a tribal agency in a case may not, in that or a factually related case, participate or advise in the decision except as witness or counsel at the hearing unless the case involves the determination of an application for initial licenses.

JUDICIAL REVIEW

§ 2-5-13 Petition for Review

(a) Any party to a hearing before a Board or hearings officer may petition for review from the Nez Perce Tribal Court of a final decision by an agency for which there is no other adequate remedy by filing a written petition with the Court within thirty (30) business days after such final decision. A written notice of appeal must provide the Court with sufficient information and argument to show why the order or rule should be changed or reversed. At a minimum, a Petition for Review must:

(1) state that the document is an appeal;

(2) list the name, address and telephone number of the appellant;

(3) identify the decision or portion of a decision being appealed;

(4) identify by title and date, the written notice or posting in which the decision is found;

(5) state the reason for appeal including issues of fact, law, regulation, or policy;

(6) identify the authority for the Tribal Court to modify or set aside the decision; and

(7) identify the specific substantive or procedural errors of law or fact in the decision of the Board or hearings officer and the remedy sought.

(b) Within ten (10) business days after the filing of a Petition for Review, the Board or hearings officer shall submit to the Tribal Court the Record as described in §2-5-9. Should the Board or hearings officer fail to do so, the Tribal Court may order the Board or Hearings Officer to comply.

(c) Tribal Court may grant or deny the Petition for Review. The failure to include any of the items described in § 2-5-12(a) may be grounds for denying the Petition for Review. Should the Tribal Court grant the Petition, the Court shall establish a briefing schedule and set a date for a hearing.

§ 2-5-14 Appeal Record

(a) The appeal record shall provide the sole evidentiary record for the Tribal Court to review the decision of the Board or hearings officer. The record on appeal shall include:

(1) the Record as described in §2-5-9; and

(2) all appeal related documents filed with Tribal Court and any additional information requests by the Tribal Court.

(b) if an appeal of an adjudication, the record established in conducting the adjudication. Should the record from the hearing fail to include a recorded transcript, the Tribal Court may refuse to hear the petition for lack of evidence or decide, based on other evidence in the record, to hear the petition without the transcript.

§ 2-5-15 Scope and Standard of Review

(a) In reviewing the decision of the Board or hearings officer, the Tribal Court shall decide only those issues raised in the Petition for Review and developed within the Record, including all relevant questions of law and fact.

(b) The Tribal Court shall have exclusive jurisdiction to affirm, modify or set aside the decision of the Board of hearings officer; issue prohibitory or mandatory injunctions; issue declaratory judgments; or remand the matter to the tribal agency.

(c) If the Petition seeks review of a tribal agency rulemaking the Tribal Court shall review the action and compel tribal agency action unlawfully withheld or unreasonably delayed or hold unlawful and set aside agency action, findings, and conclusions found to be contrary to tribal or federal law or issued without observance of procedure required by law.

(d) If the Petition seeks review of a decision of a Board or hearings officer reached after a hearing on the record, the Tribal Court shall review the decision and hold unlawful and set aside agency action, findings, and conclusions found to be:

(1) arbitrary, capricious and an abuse of discretion, unsupported by substantial evidence or otherwise not in accordance with Tribal or federal law;

(2) contrary to constitutional right, power, privilege or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law.

(e) The Tribal Court shall render a decision on a petition for review no later than twenty (20) business days after the appeal is filed and shall set a date and time for hearing on the petition for review within the twenty (20) day time limit. The decision of the Tribal Court shall be based solely on those issues properly raised to the Court in the Petition for Review and on the appeal record as a whole.

(f) The decision of the Tribal Court shall be final, subject only to review by the Nez Perce Tribal Court of Appeals.

§ 2-5-16 Request for Stay

(a) Where a project or activity would be implemented before an appeal decision could be reached, the Court shall consider a written request to stay implementation of the order or rule pending such decision. The party requesting the stay shall send a copy of the request to any other party to the proceeding. Such request must:

(1) provide a description of the specific project(s), activity(s), or action(s) to be stopped;

(2) include specific reasons why the stay should be granted in sufficient detail to permit the Court to evaluate and rule upon the stay request.

(b) Within ten (10) business days of receipt of the request, the Tribal Court shall issue a written decision on a stay to the party requesting the stay and any other appellants or intervenors party involved in the appeal. The decision shall state:

(1) if the stay is granted, the specific activity(s) to be stopped, duration of the stay and reasons for granting the stay; or

(2) if the stay is denied, in whole or in party, the reasons for the denial.

(c) Should the Court grant the stay, the Court may require the prevailing party to post a bond, the amount of which shall be established at the Court’s discretion.

(d) This section shall not apply to employment related disputes.

§ 2-6-1 Definitions

(a) "Contraband" means any item which is unlawful to possess or produce.

(b) "Probable cause" exists under this chapter when the prosecutor has substantial objective basis for believing that a piece of property was used in association with an infraction or criminal offense as provided in this code. In determining whether probable cause exists, the prosecutor may take into account all information which a prudent prosecutor would deem relevant to the likelihood that the property was used in such a manner.

(c) "Proceeds" means any property obtained through the commission of a criminal offense under this code and includes any appreciation in value of such property or any secondary property obtained or gain realized by the sale or exchange of the original proceeds of a crime.

(d) "Instrumentality" means any item used in connection with an infraction or criminal offense under this code.

(e) "Real property instrumentality" means an interest in real property used in connection with a criminal offense under this code.

§ 2-6-2 Forfeiture Actions

(a) In addition to any remedy or penalty imposed against any person found to have committed a criminal offense or a civil infraction other than a traffic infraction under this code, the Nez Perce Tribe may bring a forfeiture action against any:

(1) property which constitutes contraband, the proceeds, instrumentalities, or real property instrumentalities associated with a criminal offense; or

(2) contraband or instrumentality used in connection with a civil infraction, other than a traffic infraction.

(b) Any action under this chapter shall be civil, remedial and in rem in nature and shall not be deemed to be a penalty for any purpose.

§ 2-6-3 Seizure

(a) If a tribal police officer finds or is made aware of evidence that a particular item other than a real property instrumentality or proceeds held in a checking, savings, or other account is subject to forfeiture under this chapter, he shall seize the item. Once seized, the tribal police shall notify the tribal prosecutor of the seizure and hold the item as evidence until forfeiture is declared or a release ordered.

(b) If a tribal police officer finds or is made aware of evidence that a real property instrumentality or proceeds held in a checking, savings, or other account are subject to forfeiture under this chapter, he shall notify the tribal prosecutor who shall determine whether probable cause exists to seize the item in question.

(c) The tribal prosecutor may file a notice of intention to institute forfeiture proceedings with the clerk of the Court. Within two (2) business days of receipt of the notice, the clerk shall:

(1) publish notice of the seizure and intent to institute forfeiture proceedings in a newspaper of general circulation in the area where the property is located or seized; and

(2) if the item to be seized constitutes real property, file a notice of seizure and intent to institute forfeiture proceedings with the appropriate county recorders office and post a copy upon the property involved; or

(3) if the item to be seized constitutes proceeds held in a checking, savings or any other account, file a notice of seizure and intent to institute forfeiture proceedings with the bank or any other person having in his possession or control the proceeds to be seized directing such person or bank to freeze the account and requesting copies of the account records.

(d) The notice of seizure and intent to institute forfeiture proceedings shall provide that any interested parties with potential claims to the item in question are required to file a request for hearing within twenty (20) business days of publication of the notice and that failure to do so will be deemed forfeiture by default.

§ 2-6-4 Forfeiture Determination (revised 6/22/99)

(a) If the Tribal Court determines that an infraction or criminal offense has been committed in relation to an item seized, the prosecutor may file an action for forfeiture. Subject to this section, the proceedings governing forfeiture shall be the same as that prescribed for civil proceedings under this code.

(b) If any interested party with potential claims to the property involved has contacted the Tribal Court within twenty (20) business days after publication of notice of seizure, a forfeiture hearing shall be held before the Court no later than thirty (30) business days after the date of judgment on the underlying infraction or offense. Such party shall have the right at hearing to present evidence and produce witnesses as to why such property should not be forfeited.

(c) There shall be no right to a jury in forfeiture hearings and the burden of proof shall be a preponderance of the evidence.

Following the hearing the Tribal Court shall determine whether the property in question shall be forfeited to the Tribal Law Enforcement.

(d) In the event that a forfeiture hearing is not requested by an interested party with potential claims to the property involved, such property shall be forfeited to the Tribal Law Enforcement.

(e) All property forfeited to Tribal Law Enforcement shall be placed into service, destroyed, or sold at auction as per Tribal Law Enforcement guidelines and policies.

§ 2-7-1 Definitions

(a) "Garnishee" means an employer, trustee, financial agency or institute, or other person found within the reservation boundaries who has in his possession or control any credits or other personal property belonging to the defendant, or owes any debt to the defendant.

(b) "Homestead" means a dwelling house or the mobile home in which the owner resides or intends to reside, with appurtenant buildings, and the land on which the same are situated and by which the same are surrounded, or improved; or unimproved land owned with the intention of placing a house or mobile home thereon and residing thereon. A mobile home may be exempted under this chapter whether or not it is permanently affixed to the underlying land and whether or not the mobile home is placed upon a lot owned by the mobile home owner. Property included in the homestead must be actually intended or used as a principal home for the owner. (added 6/22/99)

(c) "Owner" means, but is not limited to, a purchaser under a deed of trust, mortgage, or contract.

§ 2-7-2 Writ of Attachment/Hearing

If within sixty (60) days after entry of a judgment awarding money damages and/or costs against a party or within sixty (60) days after final resolution of an appeal to the appellate court from such a judgment, it is made to appear to the Court that the judgment debtor has not paid the judgment amount in full or commenced making installment payments in a manner agreed to by the parties, or is not current in such payments owed to the creditor, the Court shall upon motion of the judgment creditor, issue an order to the debtor to show cause why a writ of attachment should not issue. Such order shall fix the date and time for hearing, which shall be no sooner than five (5) business days from the issuance of the order. The order shall inform the debtor he may file an affidavit on his behalf with the Court and may appear and present testimony on his behalf at the time of such hearing and if he fails to appear, the writ of attachment shall issue. Following the hearing, the Court may have the property of the judgment debtor attached as security for satisfaction of the judgment.

§ 2-7-3 Intervening Creditors

Within two (2) business days after issuing the writ of attachment, the court clerk shall publish notice in a newspaper of general circulation in the area where the property is located or seized. Any creditor of the debtor, who, within twenty (20) business days after publication of the notice, shall commence and thereafter diligently prosecute to final judgment, his claim against the debtor, shall share with the attaching creditor in an amount as determined by the Court, the proceeds of debtor's property where there are not sufficient funds to pay all judgments in full against him.

§ 2-7-4 Execution of Writ

(a) Upon issuing a writ of attachment, the Court shall order the judgment debtor to appear before it and answer under oath regarding all his personal property. The Court shall then determine what property of the judgment debtor is available for execution and order the tribal police to seize as much of such property as reasonably appears necessary to pay any judgment meeting the standards for payment under this chapter.

(b) Failure of the judgment debtor to appear may be deemed a contempt of court and the Court may proceed without such appearance. Any sale of seized property shall be at public auction conducted by the tribal police after giving at least ten (10) business days public notice posted in at least three conspicuous public places on the reservation. Property shall be sold to the highest bidder who shall make payment for the property at the time of sale. The person conducting the auction such in his discretion if there is inadequate response to the auction or the bidding, and may reschedule such upon giving the required notice. The person conducting the sale shall give a certificate of sale to the purchaser and shall make a return to the Court reciting the details of the sale.

(c) Proceeds of the sale shall first go to satisfy the cost of the sale, second to any unpaid court costs, next to satisfy any portion of a judgment still owing and meeting the standards for payment under this chapter. Any amount remaining after the above has been paid shall be paid over to the debtor.

(d) The Court shall only order seizure and sale of such property of the judgment debtor to satisfy a money judgment the loss of which will not impose an immediate substantial hardship on the judgment debtor's immediate family.

(e) At any time within six (6) months after sale under this section, the judgment debtor may redeem his property from the purchaser by paying the amount such purchaser paid for the property plus eight (8) percent interest, plus any expenses actually incurred by the purchaser, such as taxes and insurance to maintain the property.

§ 2-7-5 Garnishment

(a) Upon receiving information in writing from the creditor or his attorney of the existence of a garnishee, the tribal police shall serve upon the garnishee, a copy of the writ and notice that any credits or debts which the garnishee owes to the debtor or any property of the debtor which the garnishee has in his possession, are attached to the writ. Upon attachment, the garnishee shall pay or deliver to the police all debts he owes to the debtor or any of the debtor's money in his possession, or any portion thereof sufficient to discharge the claim of the creditor. The police shall issue the garnishee a receipt for any funds or property delivered.

(b) A person who is a garnishee at the time of service upon them of a copy of the writ and notices, shall be liable to the creditor for the amount of any credits or debts which the garnishee owes to the debtor or any property of the debtor which the garnishee has in his possession until the attachment is discharged or any judgment recovered by the creditor is satisfied unless such property is delivered or such debts paid to the Court.

§ 2-7-6 Writ of Recovery

(a) Whenever the Court has issued a judgment ordering the party to deliver possession of real or personal property to another party and such delivery has not taken place within the time limit prescribed in the judgment, the Court shall upon motion of the aggrieved party, issue an order to the debtor to show cause why a writ of attachment should not issue. Such order shall fix the date and time for hearing, which shall be no sooner than five (5) business days from the issuance of the order. The order shall inform the debtor he may file an affidavit on his behalf with the Court and may appear and present testimony on his behalf at the time of such hearing and if he fails to appear, the writ of attachment shall issue. Following the hearing, the Court may issue a writ of recovery for the property involved.

(b) The writ shall describe the real or personal property involved in enough detail to enable the Tribal Police to locate such property, and shall authorize a Tribal Police Officer to take possession of specified real or personal property from a wrongful holder and deliver possession to the party indicated on the writ. If real or personal property is within the jurisdiction of the Court, it may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law.

§ 2-7-7 Specific Acts

If a judgment directs a party to perform any specific act and the party fails to comply within the time specified, the Court may direct the act to be done at the cost of the disobedient party by some other person appointed by the Court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment against the property of the disobedient party to compel obedience to the judgment. The Court may also in proper cases adjudge the party in contempt.

§ 2-7-8 Service of Writ

Service of a writ under this chapter shall be in accordance with service of process as provided in the Rules of Civil Procedure.

§ 2-7-9 Exempt Property

Any property, wages or other assets which are exempt from execution by federal law and any Indian regalia, relics and family heirlooms, as determined by the tribal court judge, are exempt from execution under this chapter.

§ 2-7-10 Homestead Exemption

A homestead is automatically protected by exemption, in addition to those exemptions set forth in § 2-7-9. If the homestead exemption is made by a married person from the community property, the property, on the death of either of the spouses, vests in the survivor, subject to no other liability; in other cases, upon the death of the person whose property was selected as a homestead, it shall go to his heirs or devisees, subject to the power of the Tribal Court to assign the same for a limited period to the family of the decedent; but in no case shall it be held liable for the debts of the owner. (added 6/22/99)

GENERAL PROVISIONS

Rule 1. Scope

These rules govern proceedings in the courts of the Nez Perce Tribe to the extent and with the exceptions stated in rule 67.

Rule 2. Purpose and Construction

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

Rule 3. Rulings on Evidence

(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the Court by offer or was apparent from the context within which questions were asked.

(b) Record of Offer and Ruling. The Court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of Jury. In jury cases, proceedings shall be conducted to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain Error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the Court.

Rule 4. Preliminary Questions

(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the Court, subject to the provisions of subsection (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(c) Hearing of Jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

(d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Rule 5. Limited Admissibility

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the Court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Rule 6. Remainder of or Related Writings or Recorded Statements

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

JUDICIAL NOTICE

Rule 7. Judicial Notice of Adjudicative Facts

(a) Scope of Rule. The rule governs only judicial notice of adjudicative facts.

(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:

(1) generally known with the territorial jurisdiction of the Tribal Court or;

(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When Discretionary. A court may take judicial notice, whether requested or not.

(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing Jury. In a civil action or proceeding, the Court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the Court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

Rule 8. Presumptions in General in Civil Actions and Proceedings

In all civil actions and proceedings, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

RELEVANCY AND ITS LIMITS

Rule 9. Definition of "Relevant Evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Rule 10. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by these rules. Evidence which is not relevant is not admissible.

Rule 11. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Rule 12. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;

(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of Witness. Evidence of the character of a witness, as provided in rules 35, 36, and 37.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the Court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Rule 13. Methods of Proving Character

(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.

Rule 14. Habit: Routine Practice

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Rule 15. Subsequent Remedial Measures

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Rule 16. Compromise and Offers to Compromise

Evidence of (a) furnishing or offering or promising to furnish, or (b) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Rule 17. Payment of Medical and Similar Expenses

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

Rule 18. Inadmissibility of Pleas, Plea Discussions, and Related Statements

(a) Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) any statement made in the course of any proceedings under rule 11 of the Rules of Criminal Procedure or comparable tribal, state or federal procedure regarding a guilty plea; or

(3) any statement made in the course of plea discussions with the tribal prosecutor which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

(b) However, such a statement is admissible:

(1) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it; or

(2) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath and on the record.

Rule 19. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

Rule 20. Sex Offense Cases; Relevance of Victim's Past Behavior

(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape, forcible sexual penetration with a foreign object, unlawful sexual intercourse, sexual assault or indecent exposure, reputation or opinion evidence of the past sexual behavior of an alleged victim of such offense is not admissible.

(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape, forcible sexual penetration with a foreign object, unlawful sexual intercourse, sexual assault or indecent exposure, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is:

(1) admitted in accordance with subsections (c)(1) and (c)(2);

(2) admitted in accordance with subsection (c) and is evidence of::

(A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or

(B) past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which such offense is alleged.

(c)

(1) If the person accused of committing rape, forcible sexual penetration with a foreign object, unlawful sexual intercourse, sexual assault or indecent exposure intends to offer under subsection (b) evidence of specific instances of the alleged victim's past sexual behavior, the accused shall make a written motion to offer such evidence not later than fifteen (15) days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the Court may allow the motion to be made at a later date, including during trial, if the Court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this subsection shall be served on all other parties and on the alleged victim.

(2) The motion described in subsection (c)(1) shall be accompanied by a written offer of proof. If the Court determines that the offer of proof contains evidence described in subsection (b), the Court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may call witnesses, including the alleged victim, if the relevancy of the evidence which the accused seeks to offer in the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue.

(3) If the Court determines on the basis of the hearing described in subsection (c)(2) that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the Court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined.

(d) For purposes of this rule, the term "past sexual behavior" means sexual behavior other than the sexual behavior with respect to which an offense of rape, forcible sexual penetration with a foreign object, unlawful sexual intercourse, sexual assault or indecent exposure is alleged.

PRIVILEGES

Rule 21. Claim of Privilege

An objection that information is privilege must be made by the person seeking to have such information excluded from being presented as evidence. If both privileged and nonprivileged information is in the same testimony, the Court may exercise the privileged matter and allow presentation of the remaining information.

Rule 22. Waiver of Privilege

Privilege can be waived voluntarily by disclosing information or consenting to disclosure of any part of privileged information to a nonprivileged source. This rule does not apply if the disclosure itself is a privileged communication.

Rule 23. Self Incrimination

Every natural person has a privilege to refuse to disclose in court proceedings or to a public official of the tribe or any government agency or division, any matter that will incriminate him.

Rule 24. Advocate-Client Privilege

(a) A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of receiving professional or other legal services.

(b) The privilege provided by this rule is not available:

(1) if the services of the advocate were obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or a fraud;

(2) if the communications are relevant to an issue between parties who claim the same deceased client;

(3) if the communications are relevant to prove breach of duty by an advocate or client;

(4) if the documents at issue were attested to by the advocate; or

(5) when a communication relevant to the matter and of common interest between or among two or more clients is made by any of them to a lawyer retained or consulted in common when offered in an action between or among any of the clients.

Rule 25. Diagnosis or Treatment

(a) A patient has a privilege to refuse to disclose and to prevent other persons from disclosing a confidential communication made for purposes of diagnosis or treatment of his physical, mental or emotional condition including alcohol or drug addiction among himself, his physician or psychotherapist and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist.

(b) No privilege shall be available under this rule:

(1) for proceedings to decide appointments of a guardian or conservator for a patient for mental illness or to hospitalize the patient for mental illness;

(2) if the Court orders an examination of the physical, mental or emotional condition of a patient and the communication is made in the course of such examination with respect to the particular purpose for which the examination is ordered unless the Court orders otherwise;

(3) if the physical, mental or emotional condition of the patient is an element of his claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his claim or defense; or

(4) in a trial or proceeding as to a communication relevant to an issue concerning the physical, mental or emotional condition of or injury to a child, or concerning the welfare of a child including, but not limited to the abuse, abandonment or neglect of a child.

Rule 26. Husband-Wife Privilege

(a) A party has a privilege to prevent testimony as to any confidential communication between the party and his or her spouse made during the marriage.

(b) No privilege shall be available under this rule:

(1) in a trial or proceeding as to a communication relevant to an issue concerning the physical, mental or emotional condition of or injury to a child, or concerning the welfare of a child including, but not limited to the abuse, abandonment or neglect of a child;

(2) in a criminal action or proceeding in which one spouse is charged with a crime against the person or property of:

(A) the other spouse;

(B) a person residing in the household of either spouse; or

(C) a third person committed in the course of committing a crime against the other spouse or a person residing in the household of either spouse.

Rule 27. Religious Privilege

A person has a privilege to refuse to disclose and prevent others from disclosing a confidential communication made by the person to a recognized religious or spiritual leader, counselor or advisor in the course of his capacity as such leader, counselor or advisor.

Rule 28. Public Officer Privilege

A public officer acting in his capacity as such may claim privilege limited to official information communicated to him in an official confidence.

WITNESSES

Rule 29. General Rule of Competency

Every person is competent to be a witness except as otherwise provided in these rules.

Rule 30. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 46, relating to opinion testimony by expert witnesses.

Rule 31. Oath or Affirmation

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.

Rule 32. Interpreters

An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.

Rule 33. Competency of Judge as Witness

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

Rule 34. Competency of Juror as Witness

(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

Rule 35. Who May Impeach

The credibility of a witness may be attacked by any party, including the party calling the witness.

Rule 36. Evidence of Character and Conduct of Witness

(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) the evidence may refer only to character for truthfulness or untruthfulness; and

(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in rule 37, may not be proved by extrinsic evidence. They may, however, in the discretion of the Court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness:

(1) concerning the witness' character for truthfulness or untruthfulness; or

(2) concerning the character for truthfulness or untruthfulness of another witness as to the character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters which relate only to credibility.

Rule 37. Impeachment by Evidence of Conviction of Crime

(a) General Rule. For the purpose of attacking the credibility of a witness:

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to rule 11, if the Court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and evidence that an accused has been convicted of such a crime shall be admitted if the Court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; or

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the Court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten (10) years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of juvenile adjudication is generally not admissible under this rule. The Court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the Court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

Rule 38. Religious Beliefs or Opinions

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

Rule 39. Mode and Order of Interrogation and Presentation

(a) Control by Court. The Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:

(1) make the interrogation and presentation effective for the ascertainment of the truth;

(2) avoid needless consumption of time; and

(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The Court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Rule 40. Writing Used to Refresh Memory

If a witness uses a writing to refresh memory for the purpose of testifying, either:

(a) while testifying; or

(b) before testifying, if the Court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the Court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the Court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the Court in its discretion determines that the interests of justice so require, declaring a mistrial.

Rule 41. Prior Statements of Witnesses

(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 50(d)(2).

Rule 42. Calling and Interrogation of Witnesses by Court

(a) Calling by Court. The Court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by Court. The Court may interrogate witnesses, whether called by itself or by a party.

(c) Objections. Objections to the calling of witnesses by the Court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

Rule 43. Exclusion of Witnesses

At the request of a party the Court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of:

(a) a party who is a natural person;

(b) an officer or employee of a party which is not a natural person designated as its representative by its attorney; or

(c) a person whose presence is shown by a party to be essential to the presentation of the party's cause.

OPINIONS AND EXPERT TESTIMONY

Rule 44. Opinion Testimony by Lay Witnesses

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

(a) rationally based on the perception of the witness; and

(b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Rule 45. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Rule 46. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Rule 47. Opinion on Ultimate Issue

(a) Except as provided in subsection (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Rule 48. Disclosure of Facts or Data Underlying Expert Opinion

The expert may testify in terms of opinion or inference and give reasons therefore without prior disclosure of the underlying facts or data, unless the Court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Rule 49. Court Appointed Experts

(a) Appointment. The Court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The Court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the Court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the Court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the Court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

(b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the Court may allow. The compensation thus fixed may be payable from any funds available to the Court for this purpose.

(c) Disclosure of Appointment. In the exercise of its discretion, the Court may authorize disclosure to the jury of the fact that the Court appointed the expert witness.

(d) Parties' Experts of Own Selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.

HEARSAY

Rule 50. Definitions

The following definitions apply under this article:

(a) "Statement" is:

(1) an oral or written assertion; or

(2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b) "Declarant is a person who makes a statement.

(c) "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) "Statements Which Are Not Hearsay" - statement is not hearsay if:

(1) Prior Statements by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

(A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;

(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive;

(C) one of identification of a person made after perceiving the person.

(2) Admission by Party-Opponent. The statement is offered against a party and is:

(A) the party's own statement in either an individual or a representative capacity;

(B) a statement of which the party has manifested an adoption or belief in its truth;

(C) a statement by a person authorized by the party to make a statement concerning the subject;

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Rule 51. Hearsay Rule

Hearsay is not admissible except as provided by these rules.

Rule 52. Hearsay Exceptions; Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(a) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(b) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(c) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

(d) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(e) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(f) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this subsection included business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(g) Absence of Entry in Records Kept in Accordance With the Provisions of subsection (f). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of subsection (f), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(h) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:

(1) the activities of the office or agency;

(2) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by tribal police officers and other law enforcement personnel; or

(3) in civil actions and proceedings and against the tribe in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(i) Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(j) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 57, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(k) Records of Religious Organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(l) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(m) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(n) Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(o) Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(p) Statements in Ancient Documents. Statements in a document in existence twenty (20) years or more the authenticity of which is established.

(q) Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(r) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

(s) Reputation Concerning Personal or Family History. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

(t) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State, Indian reservation or nation in which located.

(u) Reputation as to Character. Reputation of a person's character among associates or in the community.

(v) Judgment of Previous Conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty, adjudging a person guilty of a crime, to prove any fact essential to sustain the judgment, but not including, when offered by the tribe in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(w) Judgment as to Personal, Family, or General History, or Boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

(x) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the Court determines that:

(1) the statement is offered as evidence of a material fact;

(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

(3) the general purposes of these rules and the interest of justice will best be served by admission of the statement into evidence.

However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

Rule 53. Hearsay Exceptions; Declarant Unavailable

(a) Definition of Unavailability. "Unavailability as a witness" includes situations in which the declarant:

(1) is exempted by ruling of the Court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the Court to do so;

(3) testifies to a lack of memory of the subject matter of the declarant's statement;

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

(2) Statement Under Belief of Impending Death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

(4) Statement of Personal or Family History.

(A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or

(B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

(5) Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the Court determines that:

(A) the statement is offered as evidence of a material fact;

(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

(C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

Rule 54. Hearsay Within Hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

Rule 55. Attacking and Supporting Credibility of Declarant

When a hearsay statement, or a statement defined in rule 50(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

AUTHENTICATION AND IDENTIFICATION

Rule 56. Requirement of Authentication or Identification

(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.

(2) Nonexpert Opinion on Handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if:

(A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called; or

(B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7) Public Records or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8) Ancient Documents or Data Compilation. Evidence that a document or data compilation, in any form,

(A) is in such condition as to create no suspicion concerning its authenticity;

(B) was in a place where it, if authentic, would likely be; and

(C) has been in existence twenty (20) years or more at the time it is offered.

(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10) Methods Provided by Statute or Rule. Any method of authentication or identification provided by Act of Congress or by tribal law.

Rule 57. Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(a) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, of any federally recognized Indian Tribe, or of a political subsection, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(b) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in subsection (a) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subsection of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(c) Foreign Public Documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position:

(1) of the executing or attesting person; or

(2) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation.

A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the Court may for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

(d) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with subsection (a), (b), or (c) of this rule.

(e) Official Publications. Books, pamphlets, or other publications purporting to be issued by public authority.

(f) Newspapers and Periodicals. Printed materials purporting to be newspapers or periodicals.

(g) Trade Inscriptions and the Like. Inscriptions, signs, tags, or labels, purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(h) Acknowledged Documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(i) Commercial Paper and Related Documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

(j) Presumption Under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic.

Rule 58. Subscribing Witness' Testimony Unnecessary

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

CONTENTS OF WRITINGS, RECORDINGS AND PHOTOGRAPHS

Rule 59. Definitions

For purposes of this article the following definitions are applicable:

(a) Writings and Recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

(b) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.

(c) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

(d) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

Rule 60. Requirement of Original

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules.

Rule 61. Admissibility of Duplicates

A duplicate is admissible to the same extent as an original unless:

(a) a genuine question is raised as to the authenticity of the original; or

(b) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

Rule 62. Admissibility of Other Evidence of Contents

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

(a) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed the in bad faith;

(b) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;

(c) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(d) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.

Rule 63. Public Records

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 57 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

Rule 64. Summaries

The contents of voluminous writings, records, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The Court may order that they be produced in court.

Rule 65. Testimony or Written Admission of Party

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original.

Rule 66. Functions of Court and Jury

When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the Court to determine in accordance with the provisions of rule 4. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

MISCELLANEOUS RULES

Rule 67. Applicability of Rules

(a) Courts. These rules apply to the Nez Perce Tribal Courts, in the actions, cases, and proceedings and to the extent hereinafter set forth.

(b) Proceedings Generally. These rules apply generally to civil actions and proceedings, to criminal cases and proceedings, and to contempt proceedings except those in which the Court may act summarily.

(c) Rule of Privilege. The rule with respect to privileges applies at all stages of all actions, cases, and proceedings.

(d) Rules Inapplicable. The rules (other than with respect to privileges) do not apply in the following situations:

(1) Preliminary Questions of Fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the Court under rule 4.

(2) Miscellaneous Proceedings. Proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; proceedings with respect to release on bail or otherwise; and in small claims proceedings.

(amendments to chapter adopted by NPTEC 5/28-29/02)

§ 2-9-1 Definitions

(a) "Habeas corpus" means the determination by the Court of the legality of a person's detention or imprisonment.

(b) "Injunction" means a court order prohibiting or allowing a particular action.

(c) "Interlocutory" means a court order deciding some point before the end of suit or prosecution that is not a final decision of the controversy.

(d) "Mandamus" means a court order to a lower court or tribal official to perform a particular act as part of his official duties or to restore a party's rights or privileges of
which he has been illegally deprived.

(e) "Tribal official" means any officer, member of the Nez Perce Tribal Executive Committee, or employee of the tribe.

§ 2-9-2 Notice of Appeal

(a) Any party wishing to appeal a decision of the Tribal Court shall within thirty (30) business days of entry of final judgment or final order, file a notice of appeal with the clerk of the Court. The notice of appeal shall specify the party taking the appeal and shall designate the final order, commitment, judgment, or part thereof appealed from, and shall contain a short statement of reasons for the appeal. Failure to properly file a notice of appeal under this section within the designated time lines shall result in a denial of the appeal by the trial court judge. Within five (5) business days of filing a notice of appeal, the appellant shall serve a copy of the notice of appeal on the respondent.

(b) The appellant shall file along with the notice of appeal a fee in an amount established on the fee schedule of the Court of Appeals. Upon motion of the respondent, the trial court may set a bond that will provide adequate assurance of the serving of the sentence or paying of the fine or judgment if the Court of Appeals affirms or modifies the action of the lower court. Such bond in no event shall exceed double the amount of the fine or judgment rendered.

(c) The appellant must certify to the Court of Appeals that a copy of the notice of appeal was served on the opposing party. Upon appointment of an appeals panel, the clerk of the Court will provide copies to the Court of Appeals justices.

§ 2-9-3 Briefs

(a) Within twenty (20) business days of filing a notice of appeal, or in such other time as ordered by the Appeals Court, the appellant shall submit an original and two copies of his brief to the clerk of the Court. The content of briefs be as provided by rules established by the Court of Appeals shall concisely state the grounds for appeal pursuant to NPTC § 2-9-7(b). If for good cause, the appellant cannot meet the deadline for filing of briefs, the Appellate Court may grant an extension at its discretion.

(b) Each respondent shall file an original and two copies of his response brief with the clerk of the Court within twenty (20) business days from the date of receipt of the appellant's brief. The respondent shall serve one copy of his brief on the appellant.

(c) Within five (5) business days of receipt of the opposing parties' response, the clerk of the Court shall submit the briefs to the Court of Appeals.

(d) Should the appellant fail to file a brief within the time provided by this section, the appeal shall be dismissed. If the respondent fails to file a brief within the time provided, then the Appellate Court shall consider the case on its merits without the benefit of the respondents' brief. In addition, a respondent who has not filed a brief shall, in the discretion of the Court of a Appeals, waive his right to present an oral argument.

§ 2-9-4 Record

(a) At the time of filing its brief, the appellant shall also file with the clerk of the Court the relevant portion of the record from the Tribal Court and shall serve one copy on each respondent.

(b) At the time the respondent files his response brief he shall also file an original of any proposed amendments or additions to the record and shall serve one copy on each appellant.

(c) The clerk of the Court shall submit a certified copy of the record to the Court of Appeals when it submits the briefs.

§ 2-9-5 Costs

(a) During the appeal, the parties shall bear their own costs of an appeal.

(b) Costs associated with copying court files, tapes, documents, other evidence, and other portions of the record shall be paid by the party requesting such copies.

§ 2-9-6 Stay

(a) Any party to an appeal may move the trial court to stay the imposition of its judgment pending the review by the Court of Appeals. The motion must include the reasons for granting the relief requested and the facts relied upon.

(b) The moving party must give reasonable notice of the motion to all parties.

(c) The trial court may condition such relief on the filing of a bond or other appropriate security.

§ 2-9-7 Standard of Review; Disposition

(a) Upon written request by either party, the Court may allow oral argument of a duration to be specified by the Court. The Appellate Court will base its determination exclusively on the record of the trial court, briefs and oral argument if allowed. No new evidence or testimony shall be presented or considered by the Court that was not properly raised before the appeal and included in the record.

(b) The Appellate Court may only affirm, modify, reverse or remand the Tribal Court’s decision. The Tribal Court’s decision is inviolate absent a showing by the Appellant that there are no facts in the record to support the Tribal Court’s determination or the law was misinterpreted or misapplied. Unless otherwise authorized by the Code, NPTEC resolution, or tribal ordinance, the Court of Appeals shall not grant equitable relief or monetary damages.

§ 2-9-8 Opinion

(a) Within three (3) months of the later of the date the last brief was submitted or the last day of oral arguments, the Appellate Court shall deliver its opinion in writing, stating the type of order appealed, the facts, the rules of law applied, all conclusions of law and fact, and the decision to the parties in the case.

(b) If no decision and opinion is issued by the Tribal Court of Appeals within the time designated, the clerk of court shall contact the presiding justice to determine the status of the decision and opinion if requested by any party. The clerk of court shall report the status of the decision and opinion in writing to all parties. If it appears from the clerk of court’s report that no written decision and opinion is forthcoming, any party may apply to the chief judge or other designated judge of the Tribal Court to establish a time for a decision to be rendered or for a new panel to hear the appeal.

(c) The clerk of the Court shall keep a permanent record of the Appellate Court opinions which shall be available to the public upon request.

(e) A two justice majority is required to overturn, reverse, remand, or modify a lower court decision. Two justices may alone render an opinion if the third justice is unable to issue an opinion for any reason. In the event that no majority opinion can be reached, the lower court decision shall be affirmed.

(f) A justice may issue a dissenting opinion to the majority. This dissenting opinion shall be attached to the opinion.

§ 2-9-9 Judgments

All judgments and orders of the Appellate Court shall be enforceable through and by the Tribal Court. The clerk of the Court will notify the Appellate Court justices of compliance with and satisfaction of the judgment or order.

§ 2-9-10 Immediate Appeals

(a) A party may file a notice of appeal to the Appellate Court before a final order or decision of the trial court in the case of an immediate appeal which may include
injunction, mandamus, interlocutory appeal or habeas corpus.

(b) The notice for an immediate appeal must be filed with the clerk of the Court. Any one member of the Appellate Court shall hear an immediate appeal. The hearing shall be held as soon as possible, but no later than ten (10) business days from the date of request. The appeals judge hearing the issue will respond, in writing stating the type of order appealed, the facts, the rules of law applied, the reasoning and the decision within three (3) business days of the hearing.

(c) The appealing party shall notify the opposing parties of an immediate appeal at, or prior to the time notice is filed. A violation of this provision shall result in dismissal
of the appeal.

(d) Both parties may submit briefs on an immediate appeal. Information not submitted by the parties will not be considered by the judge in reaching a decision.

(e) The judge on an immediate appeal may affirm, modify, reverse, or remand the lower court's order. The order may be modified or reversed only if there was no evidence to support the order or the law was misinterpreted or misapplied.

§ 2-9-11 Full Appeal

Use of the immediate appeal under the above listed circumstances does not preclude an appeal of the final decision.

§ 2-9-12 Clerical Mistakes

(a) Any party may move for correction of any clerical mistakes in an order, decision, or opinion of the Appellate Court, provided that the Motion is made within ten (10) days of issuance of the order, decision, or opinion. Such a correction is limited to corrections of party names, descriptions of property, monetary figures, and other such errors resulting from an oversight or omission of the Appellate Court and may not be utilized to address errors of law. The moving party must specifically identify the matter to be corrected by the Court.

(b) Within thirty (30) days after receipt of the motion, the Court may grant or deny the motion for a correction. If granted, the Court shall issue a new or amended order, decision, or opinion correcting the matter identified by the moving party.

§ 2-9-13 Reconsideration

(a) The Court of Appeals shall entertain Motions for Reconsideration of any final order, decision, or opinion, issued by the Court, provided that the Motion is made within twenty (20) days of issuance of the order, decision, or opinion.

(b) A Motion for Reconsideration is an extraordinary remedy that can only be granted for compelling reasons. A motion for reconsider may be presented on the following grounds and no others:

(1) that some fact, material to the decision, or some question of law decisive of the case submitted by counsel, was overlooked by the Court;

(2) the presence of new and material facts (e.g. juror misconduct, etc.) which were fraudulently withheld or could not have been reasonably known to the aggrieved party during the pendency of the appeal proceedings;

(3) that the decision is in direct conflict with the Code, other tribal ordinances, regulations, resolution, controlling case law, or fundamental principles of Indian law; or

(4) that the Court employed inappropriate procedures, considered facts outside the record on appeal in violation of NPTC § 2-9-7, or failed to issue an opinion in compliance with NPTC § 2-9-8(a).

(c) The grounds for reconsideration must be pled with specificity and be supported by facts or law in the appeal record and a supporting brief as provided in NPTC § 2-9-3.

(d) A party opposing reconsideration may file a brief in opposition within ten (10) days of the receipt of the movant’s motion and brief.

(e) Oral argument on the issue of reconsideration is within the discretion of the Court.

(f) The Court of Appeals may hear additional argument and allow supplemental briefing if necessary. Within thirty (30) days of receipt of the motion or additional argument, the Court may grant or deny the motion for reconsideration and issue an opinion pursuant to NPTC § 2-9-8.

§ 2-9-14 Finality of Decision / Motion to Reinstate Appeal

Unless the Court grants a motion for clarification under NPTC § 2-9-12 or a motion for reconsideration under NPTC § 2-9-13, all decisions of the Tribal Court of Appeals shall be final. The Tribal Court of Appeals shall not entertain any motions to reinstate an appeal.

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