RULES OF THE
Adopted by
Resolution No. 79-55 (October 8, 1979)
Amended by
Resolution No. 82-38 (August 27, 1982)
Amended by
Resolution No. 92-68 (July 22, 1992)
Amended by
Resolution No. 01-06 (January 17, 2001)
Amended by
Resolution No. 04-113 (September 8, 2004)
Amended by
Resolution No. 09-04 (January 21, 2009)
Amended by
Resolution No. 09-24 (February 4, 2009)
TABLE OF
CONTENTS
ADMINISTRATIVE RULES
3.01.001 Clerk
3.01.002 Court Records
3.01.003 Court Sessions
3.01.004 Filing and Notice
3.01.005 Timing
3.01.006 Form of Pleadings
3.01.007 Court Behavior
3.01.008 Absence of Judge
3.01.009 Compelling Witnesses to Appear
(Subpoena)
3.01.010 Costs
3.01.011 Contempt of Court
3.01.012 Achieving the Court’s Purpose
RULES GOVERNING REPRESENTATIVES
3.01.020 Right to Representation
3.01.021 Permission to Appear as Representative
3.01.022 Representative as Witness
3.01.023 Admission Fee
3.01.024 Revocation of Permission to Appear
RULES OF JUDGES’ CONDUCT
3.01.030 Scope of Rules
3.01.031 Contacts Outside Court
3.01.032 Conflicts of Interest
3.01.033 Fairness and Diligence
3.01.034
RULES OF EVIDENCE
3.01.040 Purpose
3.01.041 General Rule
3.01.042 Self - Incrimination
3.01.043 Oaths
3.01.044 Questioning Witnesses
3.01.045 Written Testimony
RULES OF CIVIL PROCEDURE
3.01.050 Limitation on Actions
3.01.051 Commencement of a Lawsuit
3.01.052 Jurisdiction
3.01.053 Defenses
3.01.054 Default
3.01.055 Pre-trial Conference
3.01.056 Motions
3.01.057 Order of Trial
3.01.058 Burden and Standard of Proof
3.01.059 Amendment, Withdrawal, Dismissal of
the Complaint
3.01.060 Discovery
3.01.061 Judgments
3.01.062 Preliminary Injunctions and Temporary
Restraining Orders
3.01.063 Proceedings After Judgment
3.01.064 Enforcement of Judgments
3.01.065 Civil Forfeiture
RULES OF CRIMINAL PROCEDURE
3.01.070 Limitation of Prosecutions
3.01.071 Complaint
3.01.072 Arrest Warrants
3.01.073 Arrest Without Warrant
3.01.074 Summons Instead of Arrest Warrant
3.01.975 Notification of Rights at Arrest
3.01.076 Searches Without Warrant
3.01.077 Search Warrants
3.01.078 Disposition of Seized Property
3.01.079 Amendment of the Complaint
3.01.080 Arraignment
3.01.081 Plea
3.01.082 Withdrawal of Guilty Plea
3.01.083 Bail
3.01.084 Motions During Arraignment
3.01.085 Time of Trial
3.01.086 Joining or Separating Defendants’
Trials
3.01.087 Discovery
3.01.088 Pre-trial Motions and Conferences
3.01.089 Order of Trial
3.01.090 Burden of Proof
3.01.091 Presence of Defendant
3.01.092 Jury Trials
3.01.093 Verdict
3.01.094 Sentencing
3.01.095 Post-conviction Procedures
RULES OF APPELLATE PROCEDURE
3.01.100 Scope
3.01.101 Right to Appeal
3.01.102 Notice of Appeal
3.01.103 Stay of Judgment Pending Appeal
3.01.104 Bond
3.01.105 Record on Appeal
3.01.106 Appeal Judges
3.01.107 Sending the Record to Appeal Judges
3.01.108 Scheduling
3.01.109 Briefs
3.01.110 Additional Evidence
3.01.111 Motions
3.01.112 Dismissal of an Appeal
3.01.113 Hearing
3.01.114 Judgment
3.01.115 Costs
FULL FAITH AND CREDIT OF
FOREIGN JUDGMENTS
3.01.120 Full
Faith and Credit
3.01.121 Procedure
for Enforcing Foreign Judgments
3.01.122 Entry
of Judgment
PETITION FOR RELEASE FROM
CUSTODY
3.01.130 Right to Petition
3.01.131 Power to Order Release
3.01.132 Response to Petition
3.01.133 Hearing Date
3.01.134 Evidence
3.01.135 Bail
3.01.136 Presence of Petitioner
3.01.137 Petition Barred by Previous Decision
3.01.138 Appeal
UNCLAIMED PROPERTY
3.01.140 Applicability of Section
3.01.141 Methods
of Disposition-Notice-Sale, Retention, Destruction or Trade
3.01.142 Notice
of
3.01.143 Disposition
of Proceeds
3.01.144 Reimbursement
to Owner
3.01.145 Donation
of Unclaimed Personal Property to Tribal Program
Administrative
Rules
3.01.001 Clerk
(Rule 1)
(a) Before taking office, the court clerk shall
state in the presence of the judge that he or she will perform the clerk's
duties faithfully and honestly, will not let personal views and relationships
affect the performance of the clerk's duties, will not attempt to influence the
course of court proceedings, and will not reveal confidential matters which the
clerk learns in the course of official duties.
(b) Duties of the court clerk include:
(1) Making and keeping records of all lawsuits
and criminal prosecutions brought in the tribal court, all actions taken by the
parties or the court during such cases, and all court hearings;
(2) Keeping a calendar of court hearing dates and
deadlines, and helping with scheduling of court proceedings;
(3) Notifying the judges and parties, as required
in these rules, of actions taken, hearings scheduled, and other developments
requiring their attention during cases filed in tribal court;
(4) Receiving and recording money for fines and
costs charged to parties in court cases; and keeping records of property
seized, held for use as evidence, disposed of, and returned in the course of
court proceedings;
(5) Participating in training programs identified
as necessary by the court administrator;
(6) Maintaining for the use of court personnel
and parties an up-to-date set of Rules of the
(7) Maintaining a list of persons who are
permitted to appear in tribal court as representatives for parties and
witnesses;
(8) Maintaining a list of persons eligible to
serve on juries, and summoning jurors as provided in these rules.
(c) The court clerk shall have authority to do
the following:
(1) Administer oaths of persons who make out
complaints and affidavits;
(2) Prepare and certify the official record of a
court hearing;
(3) Sign and issue summonses for potential jurors
and witnesses, as long as such summonses will be served within the Skokomish
Reservation.
(4) Charge reasonable costs for reproduction of
court files.
3.01.002 Court Records (Rule 2)
(a) Official records of the
(b) All testimony and arguments given in open
court shall be recorded electronically, stenographically, or by both
means. Such records shall be part of the
official record of each case and shall be kept by the clerk with other official
records. A transcript shall be made of
such record upon request of a judge, when a case is appealed, or at the request
of a party. A party who requests a
transcript shall bear the costs of preparing it unless the judge excuses the
party from paying.
(c) Records kept by the clerk shall include:
(1) A calendar of scheduled court hearings;
(2) A list of representatives permitted to appear
in the tribal court;
(3) A separate file for each lawsuit and criminal
prosecution brought in the tribal court, with a copy of every document
submitted in the case;
(4) A payment ledger showing all funds received
and disbursed in the course of each lawsuit or prosecution brought in tribal
court;
(5) A docket book which shows, for each case
filed in tribal court, the case file number, the parties' names, and a short
description of every document filed and every order issued in the case,
including the date of the order or filing.
(d) All official records of the tribal court
shall be public records, available for inspection by any interested person, unless
a tribal ordinance or an order of the court requires that a record be kept
confidential.
3.01.003 Court Sessions (Rule 3)
(a) All sessions of the tribal court shall be
held on the Skokomish Reservation unless otherwise agreed by the parties.
(b) The court shall set and publish a schedule for
regular court sessions. The schedule may
include a regular time that the judge will consider motions.
(c) Unless otherwise provided in these rules, the
time for trials and other hearings shall be set and recorded by the clerk, who
shall consult with the court administrator and the judge, as appropriate.
(d) A police officer who serves a criminal
summons or makes an arrest and a party who requests court action at a time
other than a regularly scheduled court session shall have responsibility for
getting a hearing date from the clerk and for providing all other parties with
written notice of the time, place, and nature of the hearing. In all other cases, unless a court hearing is
scheduled in court when all parties or their representatives are present, the
clerk shall send the parties written notice of the hearing. Notice required in this section shall be
mailed or delivered to all parties at least five days before the scheduled
hearing.
3.01.004 Filing and Notice (Rule 4)
(a) A copy of every complaint, summons, warrant,
motion, written argument, agreement, order, or other document which records
action taken by the parties and by the court during a case in tribal court
shall be filed with the clerk.
(b) The clerk shall give a copy of every document
filed in a court case to the judge who has responsibility for the case.
(c) A party who files any document with the court
clerk in a lawsuit or criminal prosecution shall give a copy of the same
document to every other party in the case.
If a party is represented by an attorney or spokesperson, the document
shall be given to that representative.
Delivery of a copy as required by this rule may be made either by giving
it to the party in person or by putting it in the mail.
(d) Unless the judge issues an order or makes a
decision in open court when all parties are present, decisions and orders of
the court shall be written down, and the clerk shall give or send a copy of
each such ruling to each party in the case.
3.01.005 Timing
(Rule 5)
(a) Whenever a rule, an ordinance, or an order of
the court requires that an action be taken within a certain number of days, the
day of the event from which the time limit runs should not be counted; but the
last day should be counted unless it is a Saturday, Sunday, or tribal
holiday. When the last day is a
Saturday, Sunday, or tribal holiday, the deadline shall be the first work day
following the day that is not counted.
Where the time limit is less than seven days, Saturdays, Sundays, and
tribal holidays shall not be counted at all.
(b) When a time limit is counted from or to the
time that notice is delivered to a person and the notice is delivered by mail
rather than given directly to the person, it shall be presumed that delivery
takes place three days after the notice is mailed.
(c) On request of a party, the judge may allow an
extension of any time limit described in this rule, as long as the right to a
speedy trial in criminal cases is not denied.
3.01.006 Form of Pleadings (Rule 6)
(a) Unless otherwise specified by the judge or in
these rules, defenses, motions, arguments, and other requests made to the court
do not have to be in writing. Parties
are encouraged, however, to put such requests and arguments in writing,
especially where the matters to be
considered by the judge are complex.
Where parties are required to submit something in writing, the clerk may
assist any party in putting his or her statements in writing.
(b) There shall be no required form for written
material filed with the court. All
pleadings should be clear and legible and shall contain the name of the court,
the names of all parties, the court file number of the case, the signature of
the party filing it or of the party's representative, and any other information
required by these rules. For convenience
the administrator and clerk may develop standard forms for pleadings and
notices.
3.01.007 Court Behavior (Rule 7)
(a) All persons who attend tribal court hearings
as parties, witnesses, or spectators shall be quiet and orderly while court is
in session. No spectator shall make loud
noises or speak out during a court session unless called as a witness.
(b) The judge may appoint a person to keep order
in the courtroom. Persons who disrupt
the court proceedings or are disrespectful of the court may be ordered to leave
the courtroom.
(c) Persons who violate this rule or any court
orders intended to maintain order in the courtroom may be found in contempt of
court.
3.01.008 Absence of Judge (Rule 8)
(a) In the event that the chief judge is
disqualified from hearing a case, ill, or otherwise unavailable, the court
administrator shall designate an associate judge to hear a particular case or
to hear all cases during the chief judge's absence.
(b) In the event that all judges of the tribal
court are unavailable, the tribal council shall appoint a judge or judges to
serve temporarily as associate judges.
The appointment shall be for a specified period no longer than six months.
3.01.009 Compelling Witnesses to Appear
(Subpoena) (Rule 9)
(a) Any party to a lawsuit or proceeding in
(b) Upon request of a party or of a judge, the
court shall issue a summons which commands a named person to appear in court
and/or to bring certain evidence or documents to court.
(c) The clerk may sign and issue summonses for
witnesses if they are to be served within the Skokomish Reservation. In all other situations, the summonses shall
be issued by and include the signature of a judge.
(d) Every summons commanding a witness to appear
shall be in writing and shall include the name of the court, the names of all
parties, the time and place that the witness must appear, and a clear and
detailed description of any documents or evidence which the witness is required
to bring.
(e) A summons issued as provided in this rule
shall be delivered to the witness by a person named by the court for that
purpose. The summons may be delivered
either by giving it to the witness directly or by leaving it at the witness's
residence or place of employment with a person at least 14 years old who lives
or works there.
(f) A person who delivers a summons to a witness
shall promptly file with the clerk a copy of the summons and a written signed
statement describing where, when, and how delivery was made.
(g) Failure of a witness to obey a summons shall
be grounds for holding the witness in contempt of court.
(h) A witness who responds to a summons shall be
entitled to a fee of $10 for each day that he or she must appear in court. The judge may, in addition, order that the
witness be paid reasonable travel and living expenses incurred in responding to
the summons.
3.01.010 Costs
(Rule 10)
(a) Upon judgment, the judge shall order the
losing party to pay the prevailing party the costs of the lawsuit or
prosecution unless the applicable ordinance provides otherwise or the judge
determines that such an order would be unjust.
Costs shall not be imposed on the Skokomish Tribe or any branch of the
tribe unless specifically permitted by an applicable tribal law or agreement.
(b) Costs shall include civil filing fees, any
costs of delivering complaints and summonses, postage for court notice sent to
the parties, and fees and expenses paid to witnesses and jurors but shall not
include attorney's fees and the costs to each party of reproducing and
delivering to other parties copies of pleadings other than the original
summons.
(c) No person shall be jailed because he or she
is unable to pay costs.
3.01.011 Contempt of Court (Rule 11)
(a) Any person who is found by a tribal judge to
have committed one of the following acts may be declared in contempt of court
and punished by a fine no greater than $500 or by imprisonment no longer than
six months or both:
(1) Disobedience of a lawful court order,
including a summons to appear as a witness and a summons to serve as a juror;
(2) Violent or disorderly conduct in the
courtroom while court is in session;
(3) Repeated, willful disregard of court
procedures demonstrating utter lack of respect for the court's authority and
function.
(b) If a person charged with contempt of court
commits the acts on which the charge is based in the presence of the judge, the
judge may find the person guilty of contempt at the time of the act. In all other cases, the person shall be
prosecuted according to the rules of criminal procedure for the
3.01.012 Achieving the Court's Purpose (Rule 12)
(a) Whenever the tribal court has jurisdiction
over a person and subject, it shall also have the power to use reasonable means
to protect and carry out its jurisdiction.
If the means to enforce its jurisdiction are not spelled out in these
rules or in the tribal code, the court may use any appropriate procedure that
is fair and consistent with the spirit of the tribal law which is being
applied.
(b) The rules of procedure for the
(c) As long as a party does not waive unknowingly
a right or protection guaranteed by tribal law, the parties and the court may
agree to depart from procedures established in these rules in order to save
time and expense while achieving the purposes of these rules and the tribal
laws.
(d) In a situation where the rules of the tribal
court do not prescribe a procedure, the parties and the judge may agree on a
procedure or the judge may determine the procedure which will be followed.
(e) Judges and the administrator of the tribal
court have a duty to tell the Skokomish tribal Council which additional rules
are needed to govern common procedural questions faced by the court.
Rules
Governing Representatives
3.01.020 Right to Representation (Rule 20)
Any party or person who appears in
3.01.021 Permission to Appear as
Representative (Rule 21)
(a) Any person at least 18 years old who is of
good moral character may appear as a representative in Skokomish Tribal Court
as long as he or she has applied in writing for permission, has paid the
admission fee, has read the constitution and ordinances of the Skokomish Tribe
and the Rules of the Skokomish Tribal Court, has been certified by the chief
judge as qualified to appear, and has taken an oath to uphold the tribal
constitution.
(b) Before a person is permitted to appear as a
representative in the tribal court, he or she shall state before the chief
judge: I have read and understand the
tribal constitution, ordinances, and rules of the
3.01.022 Representative as Witness (Rule 22)
A Representative may not act as a witness in any
matter in the
3.01.023 Admission Fee (Rule 23)
In order to cover the cost of maintaining a list of
representatives permitted to appear in tribal court and the cost of reproducing
the tribal code, every person who is permitted to appear as a representative
shall be charged an admission fee of $10.00.
3.01.024 Revocation of Permission to
Appear (Rule 24)
(a) Any representative who breaks the promises
which he or she made upon admission to practice in the tribal court may be
barred from appearing in court either permanently or for a period set by the
judge.
(b) When a representative is accused of violating
his or her oath, the charges shall be written up in a complaint signed by the
person who makes the accusation. The
complaint shall be given or mailed to the accused representative and filed with
the court. The representative shall be
summoned to appear at a hearing before a judge of the tribal court who is not
the complaining witness. The hearing
shall be held no sooner than ten days and no longer than 30 days after the
complaint and summons are delivered to the spokesperson. The decision of the judge after such hearing
shall be final.
Rules of
Judges' Conduct
3.01.030 Scope of Rules (Rule 30)
The following rules shall govern all judges of the
3.01.031 Contacts Outside the Court (Rule 31)
(a) Except in open court, a judge shall not
discuss a case or any judicial business related to a case which the judge is
assigned to with a party in that case, a party's representative, or any person
who has an interest in the case, unless all parties are present.
(b) A judge shall avoid informal contacts with tribal
police in which judicial business is discussed.
(c) A judge shall not seek advice or opinions
from other persons including judges and lawyers, regarding the merits of a
particular case. A judge may, however,
discuss general principles affecting cases and hypothetical examples with other
judges and lawyers.
3.01.032 Conflicts of Interest (Rule 32)
(a) A judge should disqualify himself or herself
from hearing a case in which a close relative is a party or witness.
(b) A judge should disqualify himself or herself
from hearing a case in which the judge has interests which may be affected by
the outcome, has formed an opinion about the merits of the case, or has
personal knowledge of facts which would prevent him or her from considering all
sides impartially.
3.01.033 Fairness and Diligence (Rule 33)
(a) A judge shall respect and comply with tribal,
federal, and state law and always conduct himself or herself in such a way as
to promote respect for the law.
(b) A judge shall not let social relationships,
his or her political or religious views, or criticism or praise influence the
decisions he or she makes in court.
(c) A judge shall be patient, courteous, careful,
and conscientious in the performance of all official duties.
(d) A judge shall maintain order in the
courtroom.
3.01.034
(a) A tribal judge shall not engage in outside
activity which would be inconsistent with the tribal court's status as an
independent government branch. In
particular, the judge shall not participate as a legislator or administrator in
the tribal government.
(b) A judge shall not be swayed by public
criticism or clamor regarding his or her official actions.
(c) A judge shall make no public comment on
matters pending before the court except in the course of official proceedings.
Rules of
Evidence
3.01.040 Purpose (Rule 40)
The purpose of these rules of evidence is to ensure
that the tribal court is able to determine the truth of a matter with a minimum
of delay, confusion, and uncertainty.
3.01.041 General Rule (Rule 41)
(a) The rules of evidence used in state and
federal courts shall not apply to hearings in the
(b) Evidence admitted in the tribal court must be
related either to the issues before the court or to the weight and credibility
which should be given to other evidence.
When questioned by the judge or another party, the party who wishes to
present certain evidence shall explain why he or she thinks the evidence is
relevant. In a jury trial, the judge may
hear argument out of the jury's presence about whether to admit challenged
evidence in order to avoid prejudice to the objecting party.
(c) When the relevance or reliability of evidence
is challenged and the judge decides whether or not to use the evidence, the
judge shall explain the decision and, if the evidence is used, state what
importance the judge assigns to the evidence.
(d) The judge may take notice of facts which are
a matter of official public record, even if no party introduces them into
evidence.
3.01.042 Self-Incrimination (Rule 42)
(a) The defendant in a criminal prosecution shall
not be made to testify against his or her will.
However, incriminating statements which the defendant made voluntarily
out of court may be presented in court.
(b) If a defendant in a criminal prosecution
chooses to testify on matters other than those related to his or her guilt or innocence,
cross-examination shall be limited to the areas of defendant's testimony and to
matters which indicate defendant's credibility.
(c) Every person who appears as a witness in
3.01.043 Oaths
(Rule 43)
Before testifying in the tribal court, every witness
shall first state before the judge, parties and spectators that he or she will
answer with the truth and nothing but the truth.
3.01.044 Questioning Witnesses (Rule 44)
(a) When questioning a witness, the judge and
parties or their representatives shall not ask questions in such a way as to
suggest the answer desired, unless the witness is being cross-examined or is
clearly hostile to the person asking questions.
(b) The judge shall determine the order in which
parties or their representatives shall be allowed to question witnesses. The judge shall protect the witnesses from
harassment or unnecessarily repetitive questioning.
(c) During the questioning of a witness, the
judge may exclude witnesses who have not yet testified from the courtroom if
this seems necessary to ensure that all witnesses will give truthful testimony.
(d) The judge may call and/or question any witnesses
on his or her own initiative.
3.01.045 Written Testimony (Rule 45)
(a) Testimony of a witness may be presented in
written form if the witness is unable to appear in person to testify, if the
evidence presented in writing is not contradicted by other parties, or if the
written testimony is offered to support a motion or an uncontested request for
relief. Written testimony should show
clearly who gave it and when the witness gave it. Testimony should be given under oath if
possible.
(b) Copies of written records, photographs, and
other documentary evidence may be presented as long as there is a reasonably
reliable way to identify the items.
Rules of
Civil Procedure
3.01.050 Limitation on Actions (Civil Rule 50)
(a) A civil lawsuit in
(b) The year within which a civil lawsuit must be
filed shall be counted from the date on which the injury or breach was first
known to the injured party or should have been known to a reasonably aware
person.
(c) For the purpose of meeting the deadline set
in this rule, a civil suit is started when the complaint is filed with the
clerk of the court.
3.01.051 Commencement of a Lawsuit (Civil Rule 51)
(a) A person who wishes to bring a civil lawsuit
in
(b) Within 30 days after plaintiff files a civil
complaint, plaintiff shall cause a copy of the complaint, together with a
notice that the defendants must respond within 20 days, to be delivered to all
defendants named in the complaint. The
complaint must be delivered by a person who has no stake in the outcome of the lawsuit. It may either be delivered by giving it to
the defendant directly or by leaving it at defendant's residence or place of
employment with a person at least 14 years old who lives or works there.
(c) Every person who files a civil lawsuit shall
pay a fee of $10.
3.01.052 Jurisdiction (Civil Rule 52)
(a) The
(b) The Skokomish Tribal Court shall have
jurisdiction over all causes of action arising outside the boundaries of the
Skokomish Reservation, to the fullest extent authorized by Treaty or Federal law,
at the tribe's usual and accustomed fishing grounds and stations, on open and
unclaimed lands reserved to the tribe by treaty for hunting and gathering, and
on lands and waters which are used for access to fishing, hunting, and
gathering territories, over all parties to such actions, and over the personal
property of all parties to such actions.
3.01.053 Defenses (Civil Rule 53)
(a) Within 20 days after defendant receives a
copy of a civil complaint, he or she must contact the court clerk and state whether
he or she will appear in court to respond to the complaint. Defendants are encouraged but not required to
submit a written answer to the complaint.
If defendant does not submit a written answer, he or she should explain
to the clerk the nature of the defense which will be presented; and the clerk
shall then enter in the case file a notation describing defendant's answer.
(b) In addition to or as a way of raising a
defense to the complaint, defendant may counterclaim against plaintiff, where
appropriate, as long as the injury which defendant complains of occurred on the
Skokomish Reservation.
3.01.054 Default (Civil Rule 54)
(a) Failure of a defendant to answer within 20
days after a complaint is delivered shall be a default and provide grounds for
judgment against defendant as asked for in the complaint. No judgment of default shall be made,
however, unless the plaintiff makes a written motion for a default judgment and
serves a copy of the motion on defendant(s) in the same manner as the complaint
was served. The motion for default
judgment shall state a time, no sooner than three days after service of the
motion, when plaintiff will present the motion to the judge. If defendant answers at or before the time
that the motion is presented, no default judgment shall be granted.
(b) In granting a default judgment, the judge may
refuse to grant relief requested by plaintiff if granting the relief would be
contrary to tribal law or would be unjust.
The judge may not grant plaintiff greater relief on default than was
requested in the complaint.
3.01.055 Pre-trial Conference (Civil Rule 55)
(a) In the interest of saving time, simplifying
issues, and avoiding unnecessary litigation, the judge may schedule a pre-trial
conference with all parties in each civil case.
In general, the pre-trial conference should be held early enough to aid
parties in planning for trial and pre-trial discovery. Where urgent questions require that a case be
heard quickly, the pre-trial conference may be held just before trial.
(b) The pre-trial conference shall be held in an
informal setting and shall be conducted without formal procedures. The parties and the judge should discuss
areas where the parties are in agreement and areas where they disagree. The discussion shall have the following
purposes:
(1) To identify and dispose of issues which may
be resolved without trial:
(2) To narrow and focus issues of law which
remain to be decided and to identify central facts which are still in dispute;
(3) To limit the number of witnesses and the
evidence which will be presented so that testimony is not repetitious or
irrelevant.
(c) No offer of settlement which is made by a
party during a pre-trial conference may be used as evidence against that party
if settlement is not then achieved.
Agreements reached as a result of a pre-trial conference shall be put in
writing and signed by all parties. Such
agreements shall be made part of the final judgment issued by the judge.
3.01.056 Motions (Civil Rule 56)
(a) Any questions regarding procedure or the
rights of the parties which arise during a lawsuit and which are neither
covered by these rules nor settled by agreement of the parties may be
represented to the judge in a motion.
(b) Motions may be made in writing or
orally. A party who makes a motion must
notify other parties of the nature and basis of the motion. If the motion is not made during and as a
consequence of events at a trial or other hearing, the moving party shall
notify other parties of the motion and hearing time at least five days before
the motion is presented in court.
(c) Motions to dismiss the lawsuit because the
court lacks jurisdiction or because the plaintiff has not stated a basis for
relief may be made at any time. All
other motions which, if granted, could eliminate the need for trial of all or
some issues and motions which would determine the procedures used at trial
should be made at least ten days before trial.
The judge may keep a party from making a motion which could and should have
been made early in the case if it appears that the moving party knew or should
have known earlier about the basis for the motion and has raised it late
because of negligence or an intent to harass the other party.
3.01.057 Order of Trial (Civil Rule 57)
(a) At trial of a civil case, presentations shall
be made in the following order unless otherwise agreed by the parties or
determined at the pre-trial conference:
(1) Motions by either party regarding procedure
at trial, evidence to be presented, jurisdiction of the court, or the
sufficiency of a claim;
(2) Evidence and statements presented by the
party who filed the original complaint;
(3) Evidence, statements, or motions presented by
defendant(s);
(4) Motions of either party which are based on
events at trial;
(5) Final remarks by both parties.
(b) The judge may announce a final decision at
the close of trial or may issue a written decision at a later time.
3.01.058 Burden and Standard of Proof (Civil Rule 58)
(a) Unless otherwise provided in the applicable
ordinance, the burden of proving a civil claim shall be on the party who makes
the claim.
(b) Unless otherwise provided in the applicable
ordinance, a party shall be considered to have met the burden of proof if most
of the evidence presented tends to prove that party's claim.
3.01.059 Amendment, Withdrawal, Dismissal of
the Complaint (Civil Rule 59)
(a) A complaining party may change the complaint
without court permission any time before the responding party answers, as long
as a copy of the changed complaint is delivered to all parties. After the defendant answers, the judge may
allow plaintiff to change the complaint as long as the change does not
prejudice or unreasonably burden defendant.
(b) The judge shall allow plaintiff to withdraw
the complaint and shall dismiss the case any time plaintiff requests unless the
defendant has counterclaimed against plaintiff or dismissal of the case would
otherwise prejudice the defendant. The
judge may order a plaintiff who withdraws a complaint to pay all costs of the
suit.
3.01.060 Discovery (Civil Rule 60)
(a) The truth will be revealed more readily if
all parties in a civil case have access to all information and evidence related
to the case. In preparation for trial,
therefore, the parties may ask each other for and shall then make available to
each other all information in each other's possession or control which can
reasonably be expected to lead to admissible evidence.
(b) Methods of discovering the exchanging
information may include but need not be limited to written questions, oral
examination, requests for witnesses' names, requests for admissions, physical
inspection of property, requests to perform scientific or physical tests, and
requests for documents. The party who
makes a request under this rule shall be as clear and specific as possible in
describing what he or she wants.
(c) A party may refuse to make available the
information requested pursuant to this rule if its release would cause the
responding party or a third person undue hardship, would violate a confidence
which it is tribal policy to protect, or would violate the party's right to be
free from forced self-incrimination. If
the parties disagree about whether the responding party is required to release
the information, the judge shall decide the dispute. The judge may place conditions on the release
of information in order to protect confidential material, prevent unreasonable
burden or expense to one party, or otherwise ensure fairness to all parties.
(d) A party who receives a request for
information under this rule shall respond either with the information, with an
indication where and when the information will be available, or with an
objection within ten days after he or she receives the request. Failure to respond is grounds for a court
order requiring response.
3.01.061 Judgments (Civil Rule 61)
(a) A judgment is a final order of the court
which disposes of a claim in whole or in part.
The judge may announce a judgment orally or in writing, at the time of
hearing or after hearing; but no judgment is final or effective until it is
recorded by the clerk in the docket book.
(b) As long as there is an actual controversy,
the tribal court may hear a case and pass judgment for the sole purpose of
declaring the legal rights and responsibilities of the parties under tribal
law.
3.01.062 Preliminary Injunctions and Temporary
Restraining Orders (Civil Rule 62)
(a) A party to a civil suit may ask the judge for
a pre-trial order prohibiting or requiring particular action by another party,
and the order shall be granted if the petitioner demonstrates a substantial
chance that he or she will win the suit and further demonstrates that he or she
will suffer immediate and permanent loss or injury if the order is not issued.
(b) Unless otherwise stated in the injunction, a
pre-trial injunction shall remain in effect until final judgment in the case.
(c) Except as provided in subsection (d) of this
rule, no pre-trial injunction shall be issued unless the party enjoined first
has notice and an opportunity to be heard in court.
(d) A judge may issue a short-term order
prohibiting or requiring particular action by a party without prior
notice to the affected party when the party who requests such an order shows by
affidavit or oral testimony that he or she will suffer permanent loss or injury
if the order is not issued before the opposing party can be notified and heard.
(e) A short-term restraining order shall be
effective only for the time period specified in the order but in no event for
longer than ten days. A short-term
restraining order may be renewed once for good cause.
(f) The judge may require a party who requests a
restraining order or pre-trial injunction to provide security for any loss or
injury which may be suffered if a party is wrongfully enjoined or restrained;
but the judge shall not require such security from the Skokomish Tribe or any
of its branches.
3.01.063 Proceedings After Judgment (Civil Rule 63)
(a) No later than seven days after judgment is
final, a party may ask the judge for a rehearing, reconsideration, correction,
vacation, or modification of the judgment.
(b) The judge may grant a new hearing or
reconsider and change the judgment if he or she finds one of the following to
be true:
(1) The original judgment was based on or reached
as a result of fraud or mistake;
(2) There is new information available which
could have affected the outcome of the case and which could not, with
reasonable effort, have been discovered in time for the hearing of the case;
(3) The court did not have jurisdiction over a
party or over the subject matter.
(c) No later than ten days after judgment is
final or after a motion made pursuant to subsection (a) of this rule is denied,
a party may appeal an adverse judgment as provided in the Rules of Appellate
Procedure.
(d) No civil judgment shall be carried out sooner
than ten days after judgment is entered in the docket. A motion or appeal made pursuant to this rule
shall automatically prevent enforcement of the judgment until the court has
ruled on the motion or appeal.
3.01.064 Enforcement of Judgments (Civil Rule 64)
A civil judgment of the tribal court awarding money
or imposing a fine shall become a lien on any property of the defendant which
is located within the court's jurisdiction.
The lien may be foreclosed by seizure and sale of the property according
to the following procedure:
(a) The judgment creditor or the tribe, as
appropriate, shall ask the judge for an order of execution. The judge shall issue an order which directs
a tribal law enforcement officer to seize property belonging to the judgment
debtor. The property to be seized shall
be described as specifically as possible in the order.
(b) The officer shall promptly carry out the
order of execution by seizing any property described. The officer shall return a copy of the order
to the court together with a signed statement indicating when and where the
property was seized and describing the property. The officer shall deliver a copy of the order
and an inventory of all property seized to the owner of the property and to the
person who was in possession of the property at the time it was seized. If the owner of the property cannot be found,
the officer shall post the order and inventory at the place where the property
was found and at two public places on the reservation.
(c) If the judgment debtor pays the total amount
of the judgment or fine plus interest of two percent each month on the unpaid
balance plus the costs of enforcing the judgment within five days after the
property is seized pursuant to this rule, the property seized shall be returned
to the owner. Otherwise the property
shall be sold.
3.01.065 Civil Forfeiture (Civil Rule 65)
(a) The court may order forfeiture of the
following kinds of property located within its jurisdiction:
(1) Property which is made contraband by tribal
law;
(2) Property being used to violate or in
violation of Skokomish tribal ordinance or regulation;
(3) Property otherwise subject to forfeiture by
specific tribal law.
(b) Forfeiture proceedings shall be in the nature
of a civil suit against the property to be forfeited. The tribe shall file a petition for
forfeiture and deliver a copy of the petition to all persons believed to have
an ownership interest in the property at issue.
(c) Any time after a petition for forfeiture is
filed, if the tribe demonstrates that there is probable cause to believe the
property named is subject to forfeiture under tribal law, the judge may issue
an order which directs tribal law enforcement officers to seize and hold the
property pending resolution of the forfeiture suit.
(d) The tribe, through its law enforcement officers,
may seize any property which is subject to forfeiture before filing a petition
for forfeiture or obtaining an order of seizure in the following circumstances:
(1) When a tribal law or regulation allows
immediate seizure;
(2) When the property presents an urgent danger
to persons, property, or wildlife within the tribe's jurisdiction;
(3) When the tribe has probable cause to believe
that the property is subject to forfeiture and is likely to be removed from the
tribe's jurisdiction if it is not seized immediately.
Whenever the tribe seizes
property before it has filed and served a petition for forfeiture, it must file
and serve the petition no later than five days after seizure takes place. At the time of filing or as soon after that
as the judge can schedule a hearing, the tribe shall request an order of
seizure as provided in subsection (c) of this rule.
(e) The tribal officer who seizes property
pursuant to this rule shall prepare a complete list of all items seized. The officer shall attach a copy of this list
to a notice which states the time and place of seizure, the name and address of
the owner, if known, and the authority for seizure. The officer shall promptly deliver a copy of
the notice and list to the court, to the owner of the property, and to the
person in whose possession the property was found. If the owner of the property cannot be
identified or located, the officer shall post the notice and list at the place
where the property was found and at two other public places on the reservation.
(f) Pending the forfeiture trial, a person who
presents satisfactory proof that he or she owns property which has been seized
pursuant to this rule may gain possession of the property by posting a bond or
cash deposit with the tribe. The bond or
deposit shall be in an amount equal to the market value of the property. The amount and form of the bond shall be
subject to approval of the tribal court.
The court shall order the bond or cash forfeited if it is shown by a
preponderance of the evidence that the owner used his or her property in
violation of tribal law after posting the bond.
If the court ultimately rules in the tribe's favor on the petition for
forfeiture, the court shall order either the bond or the property itself
forfeited.
(g) Procedures and burdens of proof in a
forfeiture proceeding shall be the same as in any civil suit, except that in
cases where the property owner does not post bond and regain possession of the
property trial of the principal issue in the case must be held no later than 30
days after the petition for forfeiture is filed. The property owner may voluntarily waive this
right to a speedy hearing.
(h) If the court rules in favor of the property
owner, all property seized or bonds deposited shall promptly be returned to the
owner. If the court rules in favor of
the tribe and orders the property forfeited, the court's order shall transfer
title to the property to the Skokomish Indian Tribe. The tribe may then use or dispose of the
property as it sees fit.
Rules of
Criminal Procedure
3.01.070 Limitation of Prosecutions (Criminal Rule 70)
No person shall be prosecuted for a criminal offense
in
3.01.071 Complaint (Criminal Rule 71)
(a) In every prosecution a written complaint must
be filed with the court. The complaint
may be filed before or after the accused person is arrested. If the complaint is filed after arrest, it
shall be filed promptly and not later than the time of arraignment so that the
judge may review the complaint to determine whether there is probable cause to
hold the accused. If the complaint is
filed before arrest, the judge shall review it in determining whether an arrest
warrant or summons should issue.
(b) A complaint prepared pursuant to this rule
shall contain the following information:
(1) The signature of the complaining witness
given under oath.
(2) A written description of the offense,
including the time and place:
(3) The name and/or description of the person
accused of committing the offense;
(4) The section of the Skokomish Tribal Code
which has been violated.
(c) The court clerk may help a complaining
witness prepare a written complaint.
3.01.072 Arrest Warrants (Criminal Rule 72)
(a) A tribal judge shall have authority to issue
an arrest warrant when presented with a complaint which shows that probable
cause exists to issue an arrest warrant when presented with a complaint which
shows that probable cause exists to believe the person named in the complaint
has committed an offense under tribal law.
(b) A tribal
judge shall have authority to issue an arrest warrant for a violation of a
Promise to Appear which had been signed by the person and filed with the
Court.
(c)
A tribal judge shall have authority to issue an arrest warrant for any
circumstance consistent with the
Tribe’s Constitution, the Indian Civil Rights Act and Skokomish tradition.
(d) Every arrest warrant shall contain the
following information:
(1) The name and/or description of the accused
person, with his or her address if it is known;
(2) The name and a brief description of the
offense charged, with the section of the tribal code which has allegedly been
violated;
(3) The date that the warrant is issued;
(4) The judge's signature.
(e) The judge may issue a summons to appear
rather than an arrest warrant.
3.01.073 Arrest Without Warrant (Criminal Rule 73)
No law enforcement officer shall take a person into
custody on charges that he or she committed a criminal offense unless one of
the following things is true:
(a) The officer has an arrest warrant or knows
for sure that the warrant has been issued;
(b) The person committed an offense in the
officer's presence;
(c) The officer has probable cause to believe
that the accused has committed an offense.
3.01.074 Summons Instead of Arrest Warrant (Criminal Rule 74)
(a) Whenever there is a basis for arresting a
person, a judge or law enforcement officer may instead issue a written summons
which orders the accused person to appear in tribal court at a stated time.
(b) A summons issued pursuant to this rule shall
contain the same information as an arrest warrant except that it may be signed
by a police officer.
(c) A summons may be delivered by any tribal law
enforcement officer or by anyone authorized by the judge. The summons may be delivered by giving it to
the accused person directly or by leaving it at the accused's residence or
workplace with a person at least 14 years old who lives or works there.
(d) The person who delivers a summons shall
promptly file with the clerk a copy of the summons and a written statement
describing when, where, and how delivery was made.
(e) If the accused person fails to appear in
response to a lawful summons, the judge shall issue a warrant for the accused's
arrest.
3.01.975 Notification of Rights at Arrest (Criminal Rule 75)
Every person arrested by a tribal police officer
shall be told immediately by the arresting officer that he or she has the
following rights:
(a) The right to remain silent;
(b) The right to speak with and be represented by
a lawyer or representative.
The accused shall also be told that any statements
he or she makes may be used against him or her in court.
3.01.076 Searches Without Warrant (Criminal Rule 76)
No tribal officer shall search a person or property
unless the officer has a search warrant issued by the tribal court or unless
the search is made under one of the following circumstances:
(a) During and in close relation to a lawful
arrest;
(b) With the consent of the person whose body,
property, or premises are being searched;
(c) When the officer has probable cause to
believe the person searched is armed and dangerous;
(d) Of a moving vehicle and the officer has
probable cause to believe it contains contraband or stolen property.
3.01.077 Search Warrants (Criminal Rule 77)
(a) The tribal judge shall have authority to
issue warrants commanding tribal officers to search the premises and property
and seize property of any person within the tribal court's jurisdiction.
(b) No warrant for search and seizure shall be
issued unless the judge is presented with a written, sworn statement which
shows that there is probable cause to believe a search will discover stolen or
contraband property, property which has been used or is being used to commit a
crime, or evidence that a crime has been committed.
(c) A search warrant shall order a tribal law
enforcement officer to search premises and/or property, which shall be
described in the warrant as fully as possible, and to seize items which shall
also be described as fully as possible.
The warrant shall be signed by a judge.
(d) Warrants for search and seizure shall be
carried out only by tribal law enforcement officers. A warrant shall be carried out within a time
period stated in the warrant, and this time period shall not be longer than ten
days. After carrying out a warrant, the
officer shall file with the clerk a copy of the warrant and a written, signed
statement describing the time the search was conducted and listing things
seized pursuant to the warrant.
3.01.078 Disposition of Seized Property (Criminal Rule 78)
(a) The police shall make a written list of all
things seized in a search immediately after seizure. One copy of this list shall be left with the
person from whom the things are taken, and one copy shall be filed with the
court.
(b) Within ten days after property has been
seized by police, the tribal court shall hold a hearing to determine what will
be done with the property. When the
person who claims ownership of the property or the person from whom the
property was seized has been arrested or summoned to answer criminal charges
and the charges are related to the search and seizure, the hearing referred to
in this section may be combined with the trial of the charges as long as the
trial is held within the ten-day limit or the accused waives the ten-day
deadline.
(c) Upon satisfactory proof of ownership,
property seized by police shall be returned to the owner, unless the judge
finds that the property is illegal to possess or will be used as evidence in an
upcoming case. Property held as evidence
which is not also contraband shall be returned to the owner after final
judgment. Property which is contraband
shall become the property of the Skokomish Tribe, which may destroy it, sell
it, keep it, or dispose of it as the judge orders.
3.01.079 Amendment of the Complaint (Criminal Rule 79)
A complaint charging a criminal offense may be
changed at any time up to arraignment.
After arraignment the complaint may be changed only with the judge's
permission. The judge should permit
changes in a complaint unless the defendant's right to notice of the charges
would be violated or the defendant would be prejudiced in any other way.
3.01.080 Arraignment (Criminal Rule 80)
(a) As soon as possible after a defendant is
arrested, he or she shall be brought before a judge for an initial hearing,
which shall be called the arraignment.
When the defendant is in custody, the arraignment shall be held no later
than 48 hours after arrest. When the
defendant is out on bail or is given a summons in place of being arrested, the
arraignment shall be held no later than the next regularly scheduled court
session. At defendant's request, part or
all of the arraignment hearing may be postponed.
(b) At arraignment the judge shall first read the
charges to defendant, including the section of the tribal code which defendant
is accused of violating. The judge shall
make sure that defendant understands what has been read. The judge shall also tell defendant the
maximum penalty which may be given if the defendant is convicted.
(c) At arraignment, the judge shall advise
defendant that he or she has the following rights:
(1) The right to remain silent;
(2) The right to trial by jury when the crime
charged carries a possible jail sentence, unless the prosecutor, prior to plea,
informs the defendant that there shall be no jail time imposed in the event of
a successful prosecution;
(3) The right to be represented by a lawyer or
other spokesperson at defendant's expense;
(4) The right to have the rest of the arraignment
postponed if defendant wants to talk with a representative first;
(5) The right to have the court order any
witnesses against the defendant to appear and to testify at trial;
(6) The right to question all witnesses against
defendant;
(7) The right to call witnesses on defendant's
behalf; and
(8) The right to a speedy, public trial.
3.01.081 Plea
(Criminal Rule 81)
(a) At arraignment, or as soon after that as the
defendant has a chance to talk with a representative, the accused person shall
state how he or she pleads in response to the charge(s). The accused may plead "guilty" or
"not guilty".
(b) If the defendant pleads guilty, the judge
shall make sure that the plea is made voluntarily and that the defendant
understands what will happen as a result of the guilty plea. The judge may then either impose a punishment
immediately or put sentencing off to allow the parties to bring in information
which will help the judge to determine a fair sentence.
(c) If the accused person pleads not guilty, the
judge shall set a trial date and a schedule for pre-trial motions and
discovery. The judge shall also set bail
or other conditions for the defendant's release before trial.
(d) If the defendant refuses to plead to the
charges, the judge shall enter a plea of not guilty on the defendant's behalf.
(e) A representative for the defendant may appear
at arraignment in place of the defendant and may enter a plea on the
defendant's behalf.
3.01.082 Withdrawal of Guilty Plea (Criminal Rule 82)
A defendant who has pleaded guilty may be allowed to
withdraw that plea and substitute a plea of not guilty at any time up to
sentencing if it appears that otherwise an injustice will be done.
3.01.083 Bail
(Criminal Rule 83)
(a) Every person charged with a criminal offense
has the right to be released while waiting for trial if he or she deposits cash
bail with the court or meets other reasonable conditions designed to ensure
that the accused will appear in court at any time it is lawfully required. Conditions for release may include making a
written promise to appear, depositing security or a bond issued by a licensed
bondsman, restrictions on travel or association, and release to the custody of
another person.
(b) Any tribal law enforcement officer may set
bail and permit an accused person to be released upon deposit of the bail. The judges shall prepare a bail schedule for
offenses in the tribal code, and this bail schedule shall be used in setting
the amount of cash bail required for defendants' release in all but exceptional
cases.
(c) If an officer refuses to release an accused
person on bail, or if the accused person is unable or unwilling to deposit the
amount of bail required, the officer shall bring the accused before a judge at
the first opportunity so that the judge can determine the conditions under
which accused should be released. In no
event shall the bail hearing be held later than the arraignment.
(d) This rule shall also apply to persons
convicted of an offense in tribal court who have filed a notice of appeal or
petition for release. But the judge may
refuse to let a convicted person be released if it appears that release will
result in danger to the community or to any person or that no conditions of
release can reasonably guarantee the convicted person's reappearance.
(e) If the accused person violates any conditions
set for his or her release from custody, the judge may declare any bail or
security which has been deposited to be forfeited, may establish new conditions
for the accused's continued freedom, and/or may order the accused person
jailed. Upon conclusion of a case in
which the defendant has deposited cash bail or other security, the clerk shall
return such deposit to the defendant unless the court orders it forfeited.
(f) For certain kinds of minor offenses, the
judges or tribal council may allow forfeiture of bail to operate as a plea of
guilty, and the bail forfeited shall be recorded as a fine paid. Persons charged with such offenses shall sign
a bail agreement which informs them that they have the choice of pleading
guilty and paying a fine by simply forfeiting bail. Persons charged with such offenses who are
given a summons in place of being arrested may enter a guilty plea by paying
the amount of bail/fine set for that offense to the court clerk on or before
the date they are summoned to appear.
But when an accused person is charged with an offense of the kind
described in this rule and has been found guilty of the same offense within the
year just past, the arresting officer may deny the accused the option of
forfeiting bail and may instead require accused to appear in court.
3.01.084 Motions During Arraignment (Criminal Rule 84)
(a) Any defense or objection which may be decided
by the court without a trial of the facts and any request for change in the
conditions of release until trial may be raised at arraignment.
(b) Motions which raise complaints about the way
a prosecution was started must be made at arraignment or not at all. Such motions include motions to dismiss
because of a defective complaint, a defective warrant, improper delivery of the
summons, or an unnecessary delay in the arraignment.
3.01.085 Time of Trial (Criminal Rule 85)
(a) Every person charged with a criminal offense
in the
(b) In no case shall trial be held more than 90
days after the arraignment unless the defendant asks for or agrees to delay and
the judge approves.
3.01.086 Joining or Separating Defendants'
Trials (Criminal Rule 86)
(a) At arraignment, the judge may order two or
more defendants to be tried together if they are charged with offenses based on
the same event or interrelated series of events. All defendants shall be given adequate notice
that they will be tried together.
(b) Defendants shall not be tried together if a
joint trial would prejudice the ability of any defendant to present a defense
or would prejudice the tribe's ability to present its evidence.
3.01.087 Discovery (Criminal Rule 87)
(a) Upon request of the defendant, at or before
trial, the tribe shall give the defendant the following:
(1) The names of witnesses the tribe intends to
present;
(2) Copies of or access to any documents,
photographs, results and reports of examinations or tests, and objects which
are within the custody and control of the tribe and which the tribe intends to
use as evidence against the defendant or which may be relevant to the accused
person's defense;
(3) Copies or written summaries of any statements
made by defendant which the tribe intends to offer as evidence against the
defendant.
(b) If the defendant requests information as
provided in subsection (a) of this rule, then defendant shall give the tribe,
upon the tribe's request, the names of defendant's witnesses, and copies of or
access to all evidence which defendant intends to use.
(c) Nothing in this rule shall require a party to
provide the other with reports, memoranda, or other internal communications
which were made by the party or by his/her representative solely in preparation
for trial, except items specifically listed in this rule.
(d) A party who receives a request for
information under this rule shall respond either with the information, with an
indication when and where the information will be made available, or with an
objection to the request within ten days after he or she receives the request. Failure to respond is grounds for a court
order requiring response.
(e) If the parties disagree about whether a party
is required to provide the information requested pursuant to this rule, the
judge shall decide. The judge may impose
reasonable conditions on the release of information requested under this rule.
3.01.088 Pre-trial Motions and Conferences (Criminal Rule 88)
(a) Questions and disputes regarding procedure
and any defenses, objections, or issues which may be resolved without a trial
of the facts on which the prosecution is based may be raised with the court in
the form of a motion. Except those
motions which must be made at arraignment (see Rule 3.01.084) motions shall be
made at the time and in the way provided in Rule 3.01.056.
(b) At any time after arraignment up to and
including the beginning of trial, the judge may schedule an informal conference
of the judge and all parties to consider questions of procedure and other
matters which will promote a fair and efficient trial. Such pre-trial conferences shall be conducted
according to Rule 3.01.055.
3.01.089 Order of Trial (Criminal Rule 89)
At trial, evidence and arguments should be presented
in the following general order, unless the judge sets or the parties agree to a
different procedure:
(a) Opening statements. The tribal representative shall have first
opportunity to summarize evidence he or she will present and arguments he or
she will make. The defendant may then
make a similar summary or may wait to give a summary at the beginning of the
defense presentation. Either party may
give up the right to make an opening statement.
(b) Tribal presentation. The tribal representative shall present all
evidence in support of the charge.
Defendant shall have the right to object to evidence presented and to
cross-examine witnesses but shall not present his or her own evidence at this
time.
(c) Defense presentation. This may include motions to dismiss the
charges. The tribal representative may
object to defense evidence and cross-examine witnesses.
(d) After each party has presented evidence, the
judge may allow the tribe to present evidence intended to rebut directly any
evidence presented by defendant. The
judge may then allow either side to present evidence which was mistakenly left
out or unavailable earlier in the trial.
(e) Closing Arguments. At the close of trial, both parties shall
have the right to make closing statements in which they argue the law,
interpret the evidence, and summarize the case as they see it. Presentation of additional evidence is not
appropriate at this time.
3.01.090 Burden of Proof (Criminal Rule 90)
In all criminal prosecutions, the burden shall be on
the tribe to prove defendant's guilt beyond a reasonable doubt; and if the
tribe does not meet this standard, the accused shall be declared not guilty.
3.01.091 Presence of Defendant (Criminal Rule 91)
The defendant shall be present at all proceedings on
criminal charges unless the judge or these rules permit defendant's
representative to appear on his or her behalf.
3.01.092 Jury Trials (Criminal Rule 92)
(a) Every person accused of a crime which carries
a possible jail sentence has the right to trial by a six-member jury unless the
person is accused of a crime which is not punishable by imprisonment, or the
prosecutor, prior to plea, informs the defendant that there shall be no jail
time imposed in the event of a successful prosecution.. Criminal cases shall be heard by a judge
unless the defendant asks for a jury trial.
A request for a jury trial may be made at arraignment and must in all
cases be made at least thirty (30) days before the scheduled trial.
(b) The following persons are eligible to serve
as jurors in the
(c) The clerk of the court shall prepare and
shall keep up to date a list of persons eligible to serve as jurors.
(d) When a defendant asks for a jury, the clerk
shall draw the names of 18 persons by lot from the jury list. The clerk shall then send a summons to each
person whose name is drawn, ordering the person to appear in court at the time
set for trial of the case. The summons
shall give the names of all defendants.
The summons shall be sent no later than five days before the trial date.
(e) The judge may excuse any person from jury
service if the person demonstrates hardship or other good reason to be
excused. A juror may be excused
temporarily or permanently.
(f) Of the potential jurors who are not excused
from serving, the judge shall dismiss any person who is a close relative of a
party or of a representative in the case, any person who has already formed an
opinion about the defendant's guilt or innocence, and any person who for other
reasons would not be able to decide the facts in an unprejudiced way. In order to find out whether a juror is
prejudiced, the judge shall question the prospective jurors and may allow the
parties to question prospective jurors.
The judge shall give the parties a chance to say whether and why they
think any of the prospective jurors is unqualified or prejudiced.
(g) After jurors are dismissed pursuant to
Section (f) of this rule, each party shall dismiss without stating a reason
half the number of jurors left over six.
If an odd number of jurors is left, the judge shall dismiss the last
one. If fewer than six persons are left,
the trial shall be postponed until the clerk can summon twelve more persons as
provided in Section (d) of this rule.
(h) The jury shall hear all evidence about the
facts of the case. At the close of
presentations, the judge shall explain to the jury what the law is and shall
instruct the jury to decide what the facts are in light of the law as
explained. The parties may suggest to
the judge the explanations which they think the judge should give the jury.
(i) The jury shall discuss the case in secret
until all members agree on a verdict. If
a jury is unable to agree on a verdict, the judge shall dismiss the jury. If a majority of the hung jury voted to
acquit defendant, the judge may dismiss the charges and forbid the tribe to
refile the charges. Otherwise, upon the
tribe's request, the judge shall order that a new jury be summoned and a new
trial be held.
(j) Every person who is called for jury service
may be paid for reasonable costs of traveling to court plus $10 for every day
that he or she sits as a juror.
3.01.093 Verdict (Criminal Rule 93)
(a) At the end of the trial, the judge or the
jury shall announce a verdict of guilty or not guilty on every charge against
defendant.
(b) If a verdict of not guilty is announced, the
judge shall record that defendant was acquitted, and the defendant shall
immediately be released from custody.
(c) If a verdict of guilty is announced, the
judge shall set a time for sentencing.
If all parties agree, sentencing may take place immediately.
3.01.094 Sentencing (Criminal Rule 94)
(a) Within a reasonable time after defendant is
convicted or pleads guilty, the judge shall set punishment within the limits
established for defendant's offense in the Skokomish code. The tribal prosecutor is given the authority
under this ordinance to stipulate that no jail time will be imposed on a particular
defendant in the event of a successful prosecution. The judge shall abide by any such stipulation
if the tribal prosecutor exercised his or her authority in accordance with
Rules 3.01.080 and 3.01.092 of this ordinance.
(b) At the judge's request or on their own, the
parties may give the judge any information which should be considered in
setting the punishment. Relevant
information may include the circumstances of the offense and defendant's
previous offenses, employment history, social history, attitude, needs,
potential.
(c) Upon setting a penalty, the judge shall sign
and file with the clerk a written judgment.
The judgment shall state the defendant's name, the offense charged, the
verdict, and the punishment given. When
sentence is carried out, the clerk shall make a note of that and close the
file.
3.01.095 Post-conviction Procedures (Criminal Rule 95)
(a) A person who is convicted by a judge or by a
jury may ask for a new trial within seven days after sentencing. The judge shall grant a new trial if the
interests of justice require it.
(b) All persons who are found guilty either by a
judge or by a jury shall have the right to appeal the verdict, the punishment,
or both. Upon sentencing a defendant,
the judge shall tell the defendant about the right to ask for a new trial, the
right to appeal, and the time limits for exercising these rights.
(c) If a convicted person appeals the conviction,
the punishment shall not be carried out until and unless the appeal is
denied. Upon receiving a notice that
defendant appeals, the judge shall set conditions for releasing a defendant who
is in custody until the appeal is decided.
Rules of
Appellate Procedure
3.01.100 Scope
(Appellate Rule 100)
The Rules of appellate Procedure apply to appeals
from all judgments of the
3.01.101 Right to Appeal (Appellate Rule 101)
Any person who claims, in good faith, that the
3.01.102 Notice of Appeal (Appellate Rule 102)
(a) Any person who wishes to appeal the judgment
of the tribal court shall notify the clerk within ten days after the judgment
is final. If a party first asks for a
new trial, rehearing, or reconsideration and the motion is denied, the ten-day
limit shall be counted from the day when the motion is denied.
(b) A party may notify the clerk that he/she
appeals either orally or in writing.
Within the next five days the clerk shall prepare a written notice of
appeal and send or give a copy of it to the trial judge and to all parties. The notice of appeal shall contain the name
of the parties, the case docket number, the date and nature of the judgment
appealed from, and the reasons why the party appealing thinks the court made a
mistake.
3.01.103 Standard
of Review (Appellate Rule 103)
The
standard of review for an appeal from a trial court decision shall be as
follows:
(a)
for questions of fact, the standard shall be the ‘clearly-erroneous’
standard;
(b)
for questions of law, the standard shall be ‘de novo’ to determine whether a mistake of law was made by the trial court;
(c)
for questions of fact for which it is asserted the trial court made a
decision which is grossly unsound,
unreasonable, illegal or unsupported by the evidence, the standard shall be ‘abuse of discretion’.
3.01.104 Stay of Judgment Pending Appeal (Appellate Rule 104)
(a) When a party appeals the judgment of the
trial court, the judgment shall not be carried out until and unless the appeals
court upholds the judgment. Injunctions,
however, shall take effect unless the trial judge suspends them.
(b) Upon receipt of a notice of appeal and after
the trial judge gives the parties an opportunity to be heard, the judge may set
terms and conditions governing the release of a person convicted of a crime,
the disposition of property which has been used as evidence or is the subject
of the judgment, and other matters necessary to preserve the court's
jurisdiction while the appeal is being considered.
3.01.105 Bond
(Appellate Rule 105)
The trial judge may require the party who appeals a
judgment to deposit cash or other security with the court while the appeal is
being processed if there is a clear showing that some security is needed to
guarantee that the court's judgment will be enforceable later. The security required shall not be greater in
value than the amount of the judgment or fine imposed by the trial court, plus
costs.
3.01.106 Record on Appeal (Appellate Rule 106)
(a) The record on appeal shall be made up of all
papers filed in a case plus the tape recordings and/or transcript made of all
court hearings in the case.
(b) Upon receipt of a notice of appeal, the clerk
shall make sure that the case record is complete and in order and shall make
the record available to all parties for inspection and for copying at the
parties' expense.
3.01.107 Appeal Judges (Appellate Rule 107)
(a) For each case which is appealed, a panel of
three judges shall be designated to hear the appeal. None of the judges should have participated
in the case at the trial level and none of them should have personal knowledge
of or interest in the case. The clerk or
administrator shall select the names of three judges to hear an appeal by a
system of regular rotation among available judges.
(b) Of the three judges on an appeal panel, the
judge who has served longest as a tribal judge shall be designated senior
judge.
3.01.108 Sending the Record to Appeal
Judges (Appellate Rule 108)
(a) At the same time as the clerk sends or gives
a copy of the notice of appeal to the parties, the clerk shall also send a copy
to each of the three judges chosen to sit on the appeal panel.
(b) No longer than ten days after the notice of
appeal is delivered to the appeal judges, the clerk shall deliver a copy of the
case record to each of the three judges.
3.01.109 Scheduling (Appellate Rule 109)
(a) After consulting with the two associate
judges and the court clerk, the senior judge of the appeal panel shall schedule
a hearing at which the parties' arguments on appeal will be considered. The hearing shall be scheduled no fewer than
30 days and no more than 90 days after the judges receive the notice of appeal.
(b) The clerk shall immediately notify all
parties of the time and place of the hearing on appeal.
3.01.110 Briefs
(Appellate Rule 110)
The parties may, but shall not be required to, make
their arguments on appeal in writing. If
the party who appeals wishes to submit written arguments, he or she shall tell
the clerk within ten days after appealing.
The judge shall then notify all parties of a schedule for the filing of
written arguments. The schedule shall
require the party appealing to file written arguments first, giving both sides
equal time to prepare their arguments and leaving at least ten days between the
deadline for completing the last arguments and the scheduled court hearing.
3.01.111 Additional Evidence (Appellate Rule 111)
Cases appealed pursuant to these rules shall be
decided on the basis of the trial court record and any written or oral arguments
presented by the parties. But the appeal
judges may allow the parties to present additional evidence at or before the
hearing if refusal to consider the evidence would result in a clear injustice.
3.01.112 Motions (Appellate Rule 112)
(a) A party who wishes to raise a question of
procedure or request court action during an appeal shall present the issue to
the judges in a written motion which the party files with the clerk. The clerk may help any party put a motion in
writing.
(b) The party who makes a motion pursuant to this
rule shall give or send a copy of the motion to all other parties on the same
day as the motion is filed with the clerk.
Other parties may respond to the motion in the same way within five days
after receiving a copy.
3.01.113 Dismissal of an Appeal (Appellate Rule 113)
(a) On the request of the appealing party, an
appeal shall be dismissed at any time up to submission of respondent's written
arguments or five days before the scheduled hearing, whichever is sooner. The court may order the appealing party to pay
all costs of a dismissed appeal.
(b) If the appealing party requests that the
appeal be dismissed after the deadline set in Section (a) of this rule, the
judges may dismiss the appeal subject to the condition that the appealing party
pay costs, if the dismissal will not prejudice any other party.
(c) If the judges determine that an appeal was
filed frivolously and without good faith, they shall dismiss the appeal and
charge all costs to appellant.
3.01.114 Hearing (Appellate Rule 114)
At the time set for hearing on appeal, the parties
may present orally any arguments relevant to the issues raised by the
appeal. The party who appealed shall
speak first and shall have a chance later to respond briefly to any remarks
made by the other parties. The judges
may set limits on the time each party is allowed to speak.
3.01.115 Judgment (Appellate Rule 115)
(a) The judges shall announce their decision on
an appeal after discussing the case with each other. The decision on appeal may be by a majority
vote of the judges.
(b) The appeals judges shall put their decision
in writing and have a copy of the decision delivered to all parties.
(c) The appeals court may dismiss an appeal,
reverse the trial court decision in whole or in part, order a new trial, or
make any other ruling which disposes of the issues raised by the appeal.
3.01.116 Costs
(Appellate Rule 116)
The appeals judges shall order the party who loses
the appeal to pay costs, unless it appears that such an order would result in a
clear injustice.
Full Faith and Credit of Foreign
Judgments
3.01.120 Full
Faith and Credit
Full
faith and credit shall be given by the
3.01.121 Procedure
for Enforcing Foreign Judgments
Any
person in whose favor a judgment has been entered by a court of competent
jurisdiction in any Tribal, state or federal court may seek enforcement of the
judgment in accordance with the following procedures:
(a)
Written Petition. The
judgment creditor shall file a petition, accompanied by a verified copy of the judgment, and
ask the
(b)
Written Response. Within twenty (20)
days of receipt of the petition, the person against
whom the judgment was entered may file a response to the petition containing: any correction of significant facts in
the petition; an admission or denial of the specific facts in the petition; an explanation of the facts denied, any other
matters which show why the judgment
should not be enforced.
(c)
Hearing on the Petition. After reasonable
notice to the defendant, the Court shall hold
a hearing on the petition. The defendant
shall have the burden of showing why the judgment
should not be enforced. The Court shall
also inquire into the following matters:
(1) whether the court had proper subject matter
jurisdiction and personal jurisdiction
to render the judgment; and
(2) whether the defendant had fair notice and an
opportunity for a hearing.
3.01.122 Entry
of Judgment
If
the
Petition
for Release from Custody
3.01.130 Right to Petition (Appellate Rule 130)
(a) Any person who is being held in the custody
of tribal law enforcement officers or is confined pursuant to an order of the
Skokomish Tribal Court or any other tribal action may petition the Skokomish
Tribal Appeals Court for release if he or she believes that the confinement is
in violation of the rights guaranteed in the Skokomish tribal constitution and
the Indian Civil Rights Act.
(b) A petition for release made pursuant to these
rules must be in writing and must be mailed or delivered to the clerk of the
court. The clerk shall immediately
deliver the petition to a judge of the appeals court selected according to Rule
3.01.106 of the Rules of Appellate Procedure.
(c) A petition for release shall contain the
following information:
(1) Name of the petitioner;
(2) Name of the person who is responsible for
keeping petitioner in custody;
(3) The place where petitioner is being held;
(4) The authority for keeping petitioner in
custody, if known;
(5) The reasons why petitioner believes the
confinement is illegal.
3.01.131 Power to Order Release (Appellate Rule 131)
Any judge of the Skokomish Tribal Appeals Court
shall have power to order a person released from custody, as requested pursuant
to this rule, if the judge finds that petitioner is held in violation of the
rights guaranteed in the Skokomish Tribal Constitution and the Indian Civil Rights
Act.
3.01.132 Response to Petition (Appellate Rule 132)
(a) Immediately after receiving a petition for
release filed according to these rules, the judge shall order the person who
has custody of the petitioner to respond.
The judge shall send the responding party a copy of the petition along
with the order to respond.
(b) No later than five days after he or she
receives the judge's order and the petition for release, the person who has a
petitioner in custody shall file a response by sending it or delivering it
directly to the judge. The responding
party shall also send a copy of the response to the clerk and copy to the
petitioner. The response shall state the
reason why petitioner is in custody.
(c) If the petitioner is in custody pursuant to a
tribal court order or conviction, the responding party shall include a copy of
the order or judgment with the response.
3.01.133 Hearing Date (Appellate Rule 133)
(a) Upon receipt of a response to the petition
for release, the judge shall set and shall notify all parties of a date for a
hearing on the petition. The date shall
not be later than ten days after the judge receives the response.
(b) At or before the hearing, petitioner may
submit any additional written material relevant to the petition and the
response.
3.01.134 Evidence (Appellate Rule 134)
Statements made in written material which is
submitted pursuant to this rule shall be considered true unless the parties
dispute them or unless the judge finds otherwise. At the hearing the judge may take additional
testimony, if necessary, or ask the parties to present additional arguments
orally.
3.01.135 Bail
(Appellate Rule 135)
The judge may order petitioner released before a
hearing on the petition. The judge shall
set any reasonable conditions necessary to guarantee that petitioner will
appear at the hearing.
3.01.136 Presence of Petitioner (Appellate Rule 136)
Unless the petitioner has been released on bail or
other terms before the hearing, the responding party shall bring the petitioner
to court at the time of the hearing.
3.01.137 Petition Barred by Previous
Decision (Appellate Rule 137)
No petition filed pursuant to this rule shall be
considered if all the issues raised in the petition have already been
considered and decided finally by the
3.01.138 Appeal
(Appellate Rule 138)
Petitioner may appeal the denial of a petition for
release from custody according to the Rules of Appellate Procedure.
3.01.140 Applicability of
Section (Rule 130)
(a) The
provisions of this section are applicable to all types of personal property
held by the Skokomish Public Safety
Department which is not subject to civil forfeiture as stated in 3.01.065.
(b) “Department”
as used in this section refers to the Skokomish Public Safety Department.
(c) “Director” as used in this section
refers to the Director of the Skokomish Public Safety
Department.
3.01.141 Methods of
disposition-Notice-Sale, Retention, Destruction, or Trade (Rule 131)
Whenever any personal
property shall come into the possession of the Department in connection with
the official performance of his duties and said personal property shall remain
unclaimed or not taken away for a period of sixty days from date of written
notice to the owner thereof, if known, which notice shall inform the owner of
the disposition which may be made of the property under this section and the
time that the owner has to claim the property and in all other cases for a
period of sixty days from the time said property came into the possession of
the Director's office, unless said property has been held as evidence in any
court, then, in that event, after sixty days from date when said case has been
finally disposed of and said property released as evidence by order of the
court, said Director may:
(a) At any
time thereafter sell said personal property at public auction to the highest
and best bidder for cash in the manner
hereinafter provided;
(b) Retain
the property for the use of the Department subject to giving notice in the manner prescribed in 3.01.132 and the right of
the owner, or his or her legal representative,
to reclaim the property within one year after the receipt of notice, without compensation for ordinary wear and
tear if, in the opinion of the Director, the property
consists of firearms or other items specifically usable in law enforcement
work: PROVIDED, that at the end of each
calendar year during which there has been such a retention, the Director shall provide the Tribal Council
and retain for public inspection a list
of such retained items and an estimation of each item's replacement value. At
the end of the one-year period any
unclaimed firearm shall be disposed of safely;
(c)
Destroy an item of personal property at the discretion of the Director if the Director determines that the following
circumstances have occurred:
(1)
The property has no substantial commercial value, or the probable cost of sale exceeds the value of the
property;
(2)
The item has been unclaimed by any person after notice procedures have been met, as prescribed in
this section; and
(3)
The Director has determined that the item is unsafe and unable to be made safe
for use by any member of the general public;
(d) If the
item is not unsafe or illegal to possess or sell, such item, after satisfying
the notice requirements as
prescribed in 3.01.132, may be offered by the Department to bona fide dealers, in trade for law
enforcement equipment, which equipment shall be treated as retained property for purpose of annual
listing requirements of subsection (2) of this section;
or
(e) If the
item is not unsafe or illegal to possess or sell, but has been, or may be used,
in the discretion of the Director, in a
manner that is illegal, such item may be destroyed.
3.01.142 Notice of
Before personal property
shall be sold pursuant to this section, a notice of such sale fixing the time
and place thereof which shall be at a suitable place, which will be noted in
the advertisement for sale, and containing a description of the property to be
sold shall be published at least once in an official newspaper in said county at
least ten days prior to the date fixed for said sale. The notice shall be
signed by the Director or his deputy. If the owner fails to reclaim said
property prior to the time fixed for the sale in such notice, the Director or
his deputy shall conduct said sale and sell the property described in the
notice at public auction to the highest and best bidder for cash, and upon
payment of the amount of such bid shall deliver the said property to such
bidder.
3.01.143 Disposition of
Proceeds (Rule 133)
The moneys arising from
sales under the provisions of this chapter shall be first applied to the
payment of the costs and expenses of the sale and then to the payment of lawful
charges and expenses for the keeping of said personal property and the balance,
if any, shall be paid into the county current expense fund.
3.01.144 Reimbursement to
Owner (Rule 134)
If the owner of said
personal property so sold, or his legal representative, shall, at any time
within three years after such money shall have been deposited in the county
current expense fund, furnish satisfactory evidence to the county treasurer of
said county of the ownership of said personal property he or they shall be
entitled to receive from said county current expense fund the amount so
deposited therein.
3.01.145 Donation of
Unclaimed Personal Property to Tribal Program
(Rule 135)
In addition to any other
method of disposition of unclaimed property provided under this section, the
Director may donate unclaimed personal property to a suitable Tribal
Program. A Tribal Program receiving
personal property donated under this section must use the property, or its
proceeds, to benefit needy persons.