Approved Ordinances for the Te-Moak Tribe of Western Shoshone

Approved Ordinances for the Te-Moak Tribe of Western Shoshone

Last amended: 2003

TITLE 5 - CHILDREN'S WELFARE ORDINANCE

See the enacting ordinance below.

CHAPTER 1 - PURPOSE OF THE ORDINANCE

Section 5-1-1. The Te-Moak Tribe of Western Shoshone, referred to in this Ordinance as "the tribe," has determined that:

(1) Children are the tribe's most valuable resource, and the welfare of tribal children is a vital concern of the tribe;

(2) It is essential that: tribal resources, identity, and culture be preserved by providing for enhancement and strengthening of the family as the primary means of securing a vital tribal community ;

(3) The best interests of the tribe and its children are served when the children of the tribe receive the care and guidance necessary for their spiritual, emotional, mental, and physical development; all of which will prepare them to become contributing members of the tribe;

(4) When problems involving tribal children arise, the Jurisdictional Court with assistance of Social Services and the Indian Child Welfare program is best able to resolve the problems and provide tribal children with the care and guidance that is necessary for their well-being;

(5) The Jurisdictional Court, whenever practicable, is preferable to state court for consideration of matters involving tribal children;

(6) When problems involving tribal children arise and the Court must make a placement outside of the home,the best interests of the tribe and its children are served by providing for their care and placement in an environment which will ensure that tribal children receive the care and guidance necessary for their spiritual, emotional, mental, and physical development; and

(7) When problems involving tribal children arise, the best interests of the community are served if the Tribal Court has jurisdiction over all persons in the family or household who are a part of the problem(s).

CHAPTER 2 - DEFINITIONS

Section 5-2-1. For purposes of this Ordinance, the following definitions shall apply:

Abandon- When a parent leaves a child, fails to communicate with or fails to support that child, and the parent does not indicate a willingness to assume parental responsibilities for a period of six (6) months or longer.

Abuse- (1) Any case in which -

(a) a child is dead or exhibits evidence of skin bruising, bleeding, malnutrition, failure to thrive, burns, fracture of any bone, subdural hematoma, soft tissue swelling, and

(b) such condition is not justifiably explained or may not be the product of an accidental occurrence; and

(2) Any case in which a child is subjected to sexual assault, sexual molestation, sexual exploitation, sexual contact, or prostitution;

Adult- A person eighteen (18) years of age or older.

Child Protective Services- That agency of the federal government, state, or of an Indian tribe that has the primary responsibility for child protection on any Indian reservation or within any community in Indian country;

Counsel- An attorney or a representative who, as an official of the court, provides legal assistance to any party during the course of any proceedings under this Ordinance.

Custodian- One who has physical custody of a minor and who is providing food, shelter, and supervision to that minor.

Delinquent Act- Any act or omission by a minor included in the following: Violation of the Te-Moak Tribe of Western Shoshone Ordinance; failure to follow the lawful commands of parent(s), guardian or custodian; or any act or omission causing harm or the probability of harm to themselves or others.

Detention- The placement of a minor in a physically restrictive facility.

Guardian- A person other than the minor's parent, who is legally responsible for that minor.

Juvenile Offender- A person who commits a delinquent act prior to his/her eighteenth (18th) birthday.

Least Restrictive Alternative- This disposition concept, when used in this Ordinance, directs the Court to select the least drastic method of achieving its goal, i.e., the restrictions placed on the child must be reasonably related to the Court's objectives, and must be the least restrictive method of achieving that objective. For example if a person is held in detention before trial to ensure the person will not attempt to escape the reach of the court, the only restraint on that person should be a restriction on freedom of movement. No other restriction, such as mail censorship or being placed in solitary confinement, is reasonably related to the stated purpose of pretrial detention.

Minor-

(1) A person under eighteen (18) years of age;

(2) A person eighteen (18) years of age or older concerning whom proceedings were commenced in Tribal Court prior to that person's eighteenth (18th) birthday; or

(3) A person eighteen (18) years of age or older who is under the continuing jurisdiction of the Tribal Court.

Minor-In-Need-of-Care- A minor who:

(1) Has no parent, guardian, or custodian available and willing to care for him/her;

(2) Has been the subject of, or is likely to suffer from, physical abuse;

(3)Has not been provided with the food, clothing, shelter, medical care, education, or supervision necessary for good health and well-being;

(4)Has been sexually abused;

(5)Has committed delinquent acts because of a lack of parental guidance,pressure, or approval; or

(6) Has been emotionally abused or neglected.

Neglect- Includes but is not limited to, negligent treatment or maltreatment of a child by a person, including a person responsible for the child's welfare, under circumstances which indicate that the child's health or welfare is harmed or threatened thereby;

Notice- The method by which the Court informs the parties, counsel, and others of the date, time, and place of proceedings to be conducted by the Court.

Parental Rights- Entitlement to the legal custody and control of a minor.

Petition- The instrument which commences proceedings in the Court.

Presenting Officer-

(1) Court appointed officer to carry out the duties and responsibilities set forth in this ordinance.

(2) Minimum qualifications shall be the same as the minimum qualifications for the official who functions as prosecutor in the Adult Division of the Court.

(3)He/she shall represent the Tribe in all proceedings under this ordinance.

Respondent- A minor in a juvenile offender or adoption proceeding; a parent or custodian in a minor-in-need-of-care termination proceeding.

Summons- The instrument with which the Court directs a party to appear before the Court.

Jurisdictional Court- The tribal court exercising jurisdiction under this Ordinance shall be known as the Court of Indian Offenses or' Children's Court.

Jurisdictional Court Judge- A judge of the tribal court system exercising jurisdiction under this Ordinance.

Tribal Land- All land within the exterior boundaries of:

(1) the Te-Moak Tribe of Western Shoshone which includes the communities of the South Fork Reservation, Battle Mountain Indian Colony, Wells Indian Colony, Ruby Valley Allotments, Elko Indian Colony and Odgers Ranch.

(2) land held in trust for the benefit of the tribe by the United States; and

(3) any land in which the tribe has a beneficial ownership interest.

CHAPTER 3 - JURISDICTION AND COURT AUTHORITY

Section 5-3-1. Statement of Jurisdiction.

The competent court system shall have jurisdiction over:

(1) Proceedings in which the minor is alleged to be a juvenile offender, if the minor is:

(a) A member of, or eligible for membership in, the tribe;

(i) and the alleged offense occurred on tribal land; or unless and until the Court transfers jurisdiction to Adult Division of the Court;

(b) Not eligible for membership in the tribe, but whose primary residence is on tribal land if the alleged offense occurred on tribal land.

(2) Proceedings which involve a minor who is a member of, or eligible for membership in, the tribe; if the matter(s) arise:

(a) In the tribe's service area and the proceedings are minor-in-need-of-care proceedings;

(b) Anywhere in the United States; and the proceedings involve transfers to the tribe under the provisions of the Indian Child Welfare Act (ICWA), 25 USC Section 1901 et seq.;

(d) In the tribe's service area and the proceedings involve voluntary relinquishment or involuntary termination of parental rights.

Section 5-3-2. Community Problem.

The jurisdiction of the tribal court system shall encompass that which is necessary to treat any problem involving tribal children as a community problem. The courts shall have the jurisdiction to treat a problem in its totality. The courts shall have jurisdiction over all members of the family or household who are a part of the problem, or who may be a part of the solution to the problem.

Section 5-3-3. Adjudication Classification.

No adjudication of the status of any child under the jurisdiction of the Court shall be deemed criminal, unless the Court refers the matter to the Adult Division of the Court.

Section 5-3-4. Closed Proceedings.

Juvenile proceedings shall be closed to the general public to protect the privacy interests of the parties. Disposition of any juvenile proceeding, and evidence presented at such proceedings, shall not be admissible as evidence against the child in any other proceeding heard by another division of the tribal court system, except when the evidence is discovered by independent means.

Section 5-3-5. Authority to Cooperate.

TheCourt is authorized to cooperate with any court or federal, state, tribal, public, or private agency; to participate in any diversion, rehabilitation, training programs, or other service programs; and to receive grants-in-aid to carry out the purposes of this Ordinance.

Section 5-3-6. Least Restrictive Alternative.

The least restrictive alternative applies to all actions taken by the Court under this Ordinance.

Section 5-3-7. Court Records.

(1) A record of all hearings under this Ordinance shall be made and preserved.

(2) All Court records shall be confidential, and shall only be open to inspection by the following:

(a) The minor;

(b) The minor's parent(s), guardian, or custodian;

Section 5-3-8. Law Enforcement Records.

(1) Law enforcement records and files concerning a minor shall be kept separate from records and files of adults.

(2) All law enforcement records and files shall be confidential, and shall only be open to inspection by the following:

(a) The minor;

(b) The minor's parent(s), guardian, or custodian;

Section 5-3-9. Expungement.

When a minor who has been the subject of any proceeding before the Court attains his/her eighteenth (18th) birthday, the Court shall seal both the court and law enforcement records relating to that minor.

Section 5-3-10. Contempt of Court.

(1) Willful disobedience of, or willful interference with, an order of the Court constitutes contempt of court.

(2) A minor may be punished for contempt of court with extension of probation, additional probation conditions, a fine not to exceed three hundred dollars ($300.00), a jail term not to exceed three (3) months or any combination thereof.

Section 5-3-11. Medical Examination.

If services are available through the Indian Health Service or public assistance, the Court may order a psychiatric or psychological examination of a minor who is alleged to be a juvenile offender if issues of competence to stand trial or insanity (i.e., responsibility) are raised by the defense, or for any other reason that the Court deems appropriate. Reports shall be available to defense and presenting officer.

Section 5-3-12. Fingerprints.

If latent fingerprints are found during the investigation of an offense and a law enforcement officer has reasonable grounds to believe that the fingerprints are those of a minor in custody, the officer may fingerprint that minor for the purpose of immediate comparison with the latent fingerprints; provided that the law enforcement officials have obtained the written approval of the Court prior to the taking of prints. Copies of the fingerprints shall be immediately destroyed if the comparison is negative or if a petition is not filed against the minor.

Section 5-3-13. Appeal.

(1) For purposes of appeal, a record of the proceedings shall be made available to the minor, the minor's parent(s), guardian, or custodian. Costs of obtaining this record shall be paid by the party seeking the appeal.

(2) Any party to a Court hearing may appeal a final order or disposition of a case by filing a written notice of appeal with the Court within thirty (30) days of the final order of disposition.

(3) No decree or disposition of a hearing shall be stayed by appeal.

(4) All appeals shall be conducted in accordance with applicable tribal ordinances and court rules.

CHAPTER 4 - PROCEDURAL RIGHTS; NOTICE REQUIREMENTS

Section 5-4-1. Notice.

(1) Notice of proceeding shall be given to:

(a) The minor;

(b) The minor's parent(s), guardian, guardianad litem, custodian; and

(2) Notice shall be given when a time for the proceedings has been established; provided at least ten (10) days is given before any non-preliminary hearing except in cases of emergency; provided further that notice is given as soon as possible in the case of a preliminary hearing or in the event of an emergency.

(3) If the proceeding is an adjudicatory hearing (juvenile offender or minor-in-need-of-care) or termination hearing, notice shall be by summons as set forth in Section 5-4-2.

(4) The notice shall contain:

(a) The name of the court;

(b) The title of the proceedings;

(d) The date, time, and place of the proceeding; and

(5) The notice shall be delivered by a tribal/BIA law enforcement officer or an appointee of the Court. Beyond the service area, notice may be provided through other law enforcement agencies, by certified mail, or in the manner and preference provided by Section 5-4-3 of this Ordinance for the service of summons.

Section 5-4-2. Summons.

(1) At least ten (10) days prior to an adjudicatory or termination hearing, the Court shall issue summons to:

(a) The minor;

(b) The minor's parent(s), guardian, guardianad litem, or custodian;

(d) Any person the minor believes necessary for proper adjudication of the matter(s) before the Court; subject to the Court's discretion.

(2) The summons shall contain the name of the court and title of the Proceedings; and the date, time, and place of the hearing.