Chapter 4.100
SPECIAL DOMESTIC VIOLENCE JURISDICTION
Sections:
4.100.005 Special Domestic Violence Jurisdiction Court – Created.
4.100.010 Special domestic violence criminal jurisdiction.
4.100.020 Special jurisdiction – Criminal conduct applicable.
4.100.005 Created.
There is hereby created a Special Domestic Violence Jurisdiction Court, which shall be subject to all criminal procedures of the Chehalis Tribe to the extent they do not conflict with the provisions contained within this chapter. All proceedings under this chapter shall be recorded. All Tribal laws related to these proceedings shall be published by posting on the Tribal Court website and available at the Tribal Court to all those subject to this chapter. [Res. 2018-83.]
4.100.010 Special domestic violence criminal jurisdiction.
A. The Confederated Tribes of the Chehalis Reservation hereby exercise “Special Domestic Violence Criminal Jurisdiction” as a “participating tribe,” as defined within 25 U.S.C. 1304 (2013), subject to applicable exceptions defined therein, in this chapter.
B. In all proceedings in which the Chehalis Tribal Court is exercising special domestic violence criminal jurisdiction as a participating tribe, the rights in this section shall be provided in addition to all rights enumerated in the Indian Civil Rights Act, 25 U.S.C. 1302, to all defendants. Should there be any conflict between the rights herein and 25 U.S.C. 1302, those of 25 U.S.C. 1302 shall apply.
C. The Confederated Tribes of the Chehalis Reservation hereby declare its special domestic violence criminal jurisdiction over any person only if he or she:
1. Resides within the Chehalis Tribe’s Indian Country; or
2. Is employed within the Chehalis Tribe’s Indian country; or
3. Is a spouse, intimate partner, or dating partner of:
a. A member of the Chehalis Tribe; or
b. An Indian who resides within the Chehalis Tribe’s jurisdiction. [Res. 2018-83.]
4.100.020 Special jurisdiction – Criminal conduct applicable.
The Chehalis Tribe’s exercise of the special domestic violence criminal jurisdiction of a defendant for criminal conduct that falls into one or more of the following categories:
A. Domestic Violence and Dating Violence. An act of domestic violence or dating violence as defined in 25 U.S.C. 1304(a) that occurs within the jurisdiction of the Chehalis Tribe.
B. Violations of Protection Orders. An act that occurs in the Chehalis Tribe’s Indian country, and:
1. Violates the portion of a protection order that:
a. Prohibits or provides protection against violent or threatening acts of harassment against, sexual violence against, contact or communication with, or physical proximity to the person protected by the order;
b. Was issued against the defendant;
c. Is consistent with 18 U.S.C. 2265(b). [Res. 2018-83.]
4.100.030 Rights applicable.
A. Right to Counsel.
1. All defendants, regardless of the length of the potential sentence for the crime being charged, have the right to effective assistance of counsel meeting the requirements of 25 U.S.C. 1302 while the Special Domestic Violence Jurisdiction Court is exercising its jurisdiction. An indigent defendant shall be provided the assistance of a defense attorney meeting the requirements of 25 U.S.C. 1302 at the expense of the Tribal government.
2. Any person appearing as a party in Tribal Court shall have the right to counsel at his or her own expense. “Counsel” includes attorneys and spokespersons. Such counsel shall be of the parties’ own choosing and need not be an attorney or admitted to practice before the bar of any state, but must be members of the Tribal Bar.
B. Right to Jury Trial for the Special Domestic Violence Court Jurisdiction.
1. A defendant charged under special domestic violence jurisdiction has a right to a trial by jury of six fair and impartial jurors drawn from the community. A defendant may waive the right to a jury trial in a written, voluntary statement to the Court. All jury verdicts must be unanimous.
2. A list of eligible jurors shall be prepared by the Tribal Court. The eligible juror list shall be updated from time to time, but no less than once in each year. It shall reflect a fair cross-section of the community, and not systematically exclude any distinctive group in the community, including non-Indians. The Court shall provide for the selection of names of persons eligible for service as jurors. Jurors shall be 18 years of age or older and, notwithstanding any other law of the Chehalis Tribe or any of its agencies, shall be chosen from the following classes of persons:
a. Tribal members living on or near the Chehalis Reservation;
b. Employees of the Chehalis Tribe or any of its enterprises, agencies, subdivisions, or instrumentalities who have been employed by the Chehalis Tribe for at least one continuous year prior to being called as a juror.
3. Presiding Judge.
a. To have a Judge presiding over the criminal proceeding the Judge must:
i. Have sufficient legal training to preside over criminal proceedings; and
ii. Be licensed to practice law in any jurisdiction in the United States.
b. Judge(s) meeting the qualifications in subsection (B)(3)(a) of this section can be designated to preside in the Special Domestic Violence Court. The Chief Judge shall designate and assign Judges to the Special Domestic Violence Court every January by standing order, and the standing order and qualifications of the Judge will become part of the trial record.
C. Writ of Habeas Corpus.
1. Availability of Writ.
a. Except as provided in subsection (C)(1)(b) of this section, every person within the jurisdiction of the Chehalis Tribe imprisoned or otherwise restrained of liberty may prosecute a writ of habeas corpus to inquire into the cause of imprisonment or restraint and, if illegal, to be delivered from imprisonment or restraint.
b. The writ of habeas corpus is not available to attack the validity of the conviction or sentence of a person who has been adjudged guilty of an offense by a court of competent jurisdiction and has exhausted the remedy of appeal, nor is it available to attack the legality of an order revoking a suspended or deferred sentence. Moreover, a person may not be released on a writ of habeas corpus due to any technical defect in commitment not affecting the person’s substantial rights.
c. When a person is imprisoned or detained in custody by the Chehalis Tribe on any criminal charge for want of bail, such person is entitled to a writ of habeas corpus for the purpose of giving bail upon averring that fact in his petition, without alleging that he is illegally confined.
2. Issuance of Writ. Application for a writ of habeas corpus is made by petition signed either by the party for whose relief it is intended or by some person on the petitioner’s behalf, and must be filed with the Clerk of the Court. It must specify:
a. That the petitioner is unlawfully imprisoned or restrained of liberty;
b. Why the imprisonment or restraint is unlawful;
c. Where or by whom the petitioner is confined or restrained; and
d. The parties to a writ, namely the Prosecutor, Chief Judge of the Tribal Court, and the Chief of Police, must be named. All parties must be named if they are known or otherwise described so that they may be identified.
e. The petition must be verified by the oath or affirmation or declaration under penalty of perjury that the contents of the declaration are true to the best of the declarant’s belief of the party making the application.
3. Granting of the Writ. Any Justice of the Court of Appeals may grant a writ of habeas corpus upon petition by or on behalf of any person restrained of liberty within the Justice’s jurisdiction. If it appears to such Justice that a writ ought to issue, it shall be granted without delay, and may be made returnable to the Court of Appeals.
a. Time of Issuance and Requirements for Service.
i. A writ of habeas corpus or any associated process may be issued and served on any day at any time. The writ should be served on the Tribal Prosecutor and Chief Judge of the Tribal Court.
ii. The writ must be served upon the person to whom it is directed. If the writ is directed to a Tribal agency or employee, a copy of the writ must be served upon the Tribal Prosecutor.
iii. The writ must be served by a Chehalis Tribal Police officer, or any other person directed to do so by the Justice or the Court, in the same manner as a civil summons, except where otherwise expressly directed by the Justice, the Court, or the employee of any correctional facility in which the petitioner is held.
b. Return of the Writ. The Prosecutor or his or her designee shall make a return and state in that return:
i. Whether the person is in custody or under that person’s power of restraint; and
ii. If the person is in custody or otherwise restrained, the authority for and cause of the custody or restraint; or
iii. If the person has been transferred to the custody of or otherwise restrained by another to whom the party was transferred, the time and place of the transfer, the reason for the transfer, and the authority under which the transfer took place.
The return must be signed and verified by affirmation.
c. Hearing. The Prosecutor, Chief of Police, and or the Chief Judge commanded by the writ shall cause the petitioner to be brought before the Court as commanded by the writ unless the petitioner cannot be brought before the Court without danger to the petitioner’s health. Sickness or infirmity must be confirmed. If the Court is satisfied with the truth of the writing, the Court may proceed and dispose of the case as if the petitioner were present or the hearing may be postponed until the petitioner is present. Any Chehalis Tribal Police officer may bring the person as directed. Unless the Court postpones the hearing for reasons of the petitioner’s health, the Court shall immediately proceed to hear and examine the return. The hearing may be a summary in nature. Evidence may be produced and compelled as provided by the laws governing criminal procedures and evidence.
d. Refusal to Obey Writ Is Contempt. If the person commanded by the writ refuses to obey, that person must be adjudged to be in contempt.
e. Disposition of Petitioner. If the Court finds in favor of the petitioner, an appropriate order must be entered with respect to the judgment or sentence in the former proceeding and any supplementary orders as to reassignment, retrial, custody, bail, or discharge as may be necessary and proper. If the Court finds for the prosecution, the petitioner must be returned to the custody of the person to whom the writ was directed. [Res. 2018-83.]