Tribe: Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan / Gun Lake Tribe
§ 5.2-8 Juvenile procedure.
A.
Incident report. Tribal law enforcement may file an incident report with the Presenting Officer. The incident report shall contain:
(1)
Name, age, date of birth, address, name of custodial parent or guardian, tribal affiliation, and tribal ID number, if applicable;
(2)
A concise statement of the facts upon which the allegations are based, including the date, time, and location at which the alleged act(s) occurred; and
(3)
A list of witnesses known to the person who files the complaint.
B.
Juvenile petition. Proceedings under this chapter shall commence upon the filing of a juvenile petition by the Presenting Officer on behalf of the Tribe. The juvenile petition shall include:
(1)
The name, birth date, address, tribal affiliation and ID number, if applicable;
(2)
The names and addresses of the juvenile’s parent(s), guardians, or custodian;
(3)
Citation to the specific provision(s) of this chapter which gives the Court jurisdiction of the proceedings;
(4)
Citation to the tribal criminal statutory provision(s) which the juvenile is alleged to have violated;
(5)
If the juvenile is in detention or shelter care, the place of detention or shelter care and the time he/she was taken into custody;
(6)
A statement of the facts which brings the juvenile within the jurisdiction of the Court; and
(7)
A list of witnesses known to the Tribe upon filing of the juvenile petition.
C.
Warrant. The Court may enter an order called a “warrant,” directing that a juvenile be taken into custody if:
(1)
The Court finds probable cause to believe that the juvenile committed the delinquent act alleged in the petition and there is probable cause to believe that the juvenile will fail to appear for a hearing on the matter; or
(2)
The juvenile is not taken into custody, she/he is likely to endanger himself/herself or others.
D.
Custody. A juvenile may be taken into custody by a law enforcement officer if:
(1)
The officer has reasonable cause to believe that a delinquent act has been committed and that the juvenile has committed the delinquent act; or
(2)
A warrant pursuant to § 5.2-8C of this chapter has been issued for the juvenile.
E.
Law enforcement officer’s duties. A law enforcement officer who takes a juvenile into custody, pursuant to § 5.2-8D of this chapter, shall proceed as follows:
(1)
Explain the following rights to any juvenile taken into custody prior to questioning:
(a)
The juvenile has a right to remain silent;
(b)
Anything the juvenile says can be used against the juvenile in court; and
(c)
The juvenile has the right to the presence of his or her parent or guardian, and/or attorney during questioning.
(d)
Release the juvenile to the juvenile’s parent(s), guardian, or custodian and give such counsel and guidance as may be appropriate, unless shelter care or detention is necessary because:
[1]
The juvenile is in danger of injury;
[2]
The juvenile is pending placement;
[3]
The juvenile is under the influence of alcohol or controlled substances; or
[4]
The juvenile will not cease illegal conduct and release is likely to result in injury to the juvenile or others.
(e)
If the juvenile is not released, an officer shall make immediate and recurring efforts to notify the juvenile’s parent(s), guardian, or custodian to inform them that the juvenile has been taken into custody.
(f)
If the juvenile is not released, the juvenile shall be placed in detention or shelter.
F.
Detention. A juvenile alleged to be a juvenile in need of correction or juvenile in need of supervision may be detained pending a court hearing in an approved tribal or State of Michigan detention facility.
(1)
A juvenile who is 16 years of age or older may be detained in a jail or other licensed detention facility, used for the detention of adults only if:
(a)
A facility in § 5.2-8N is not available or would not assure adequate supervision of the juvenile;
(b)
Detention is in a cell separate from adults; and
(c)
Adequate supervision is provided 24 hours a day.
(2)
A juvenile who is 16 years of age or older may also be detained in a jail or other licensed detention facility used for the detention of adults if that juvenile is intoxicated, provided that:
(a)
A juvenile detention facility is not immediately available or is not equipped to hold/supervise the intoxicated youth;
(b)
Detention is in a cell separate from adults; and
(c)
The juvenile is released as soon as he or she is sober, unless further detention under § 5.2-8D is warranted.
G.
Preliminary hearing.
(1)
If a juvenile has been released to his/her parent(s), guardian, or custodian, the Court shall conduct a preliminary hearing within 10 days of the filing of the juvenile petition to determine whether probable cause exists to believe that the juvenile committed the alleged delinquent act(s).
(2)
If a juvenile is placed in custody or detention the Court shall conduct a preliminary hearing within 72 hours of the placement for the purpose of determining:
(a)
Whether probable cause exists to believe that the juvenile committed the alleged delinquent act; and
(b)
Whether continued detention is necessary pending further proceedings.
(c)
If the juvenile’s parent(s), guardian, or custodian is not present at the preliminary hearing, the Court shall make an inquiry into what efforts have been made to notify and to obtain the presence of the parent(s), guardian, or custodian. If it appears that further efforts are likely to produce the appearance of the juvenile’s parent(s), guardian, or custodian, the Court shall recess for not more than 24 hours and direct the Presenting Officer to make continued efforts to obtain the presence of the juvenile’s parent(s), guardian, or custodian; if it does not appear that further efforts are likely to produce the parent(s), guardian, or custodian or if it appears that the parent(s), guardian, or custodian is/are unable or unwilling to provide effective support or guidance to the juvenile during the pendency of the juvenile in need of correction or juvenile in need of supervision proceedings, the Court shall appoint an attorney to serve until adjudication and disposition of the petition.
(3)
The Court shall advise the juvenile as follows:
(a)
Explain the nature of the proceedings.
(b)
Read the allegations in the petition unless waived.
(c)
Advise the juvenile of right to an attorney.
(d)
Advise the juvenile of the privilege against self-incrimination and that any statement by the juvenile may be used against the juvenile.
(e)
Advise the juvenile that parents, guardians, or custodians may not be compelled to give testimony against himself or herself or the juvenile.
(f)
Advise the juvenile that he or she or his or her legal representative may introduce evidence, to examine (confront) witnesses against him or her, and be heard on their own behalf.
(g)
The circumstances that gave rise to the juvenile petition and/or the taking of the juvenile into custody; and
(4)
If the juvenile admits the allegations in the juvenile petition, the Court shall proceed to the disposition hearing only if the Court finds:
(a)
The juvenile fully understands his/her rights as set forth in § 5.2-8E of this chapter and fully understands the potential consequences of his/her admission; and
(b)
The juvenile voluntarily, knowingly, and intelligently admits to all facts necessary to constitute a basis for Court jurisdiction.
(5)
If the juvenile denies the allegations in the juvenile petition, the Court shall hear testimony concerning:
(a)
The circumstances that gave rise to the juvenile petition and/or the taking of the juvenile into custody; and
(b)
The need for detention.
(6)
If the Court finds that probable cause exists to believe that the juvenile committed the delinquent act:
(a)
The juvenile shall be ordered to appear at a trial on a date and at a time set by the Court; and
(b)
The juvenile shall be released to his/her parent(s), guardian, or custodian unless the alleged act is serious enough to require detention. The Court may order the juvenile to detention if:
[1]
There is reasonable cause to believe that the juvenile will run away and/or be unavailable for further proceedings; or
[2]
There is reasonable cause to believe that the juvenile will commit a serious act causing damage to persons or property.
(7)
If a juvenile is released to his or her parent(s), guardian, or custodian, the Court may impose conditions on the release, which may include, but not limited to, the posting of a bond, electronic monitoring, house arrest, travel restrictions, mandatory attendance at school, no contact with named individuals, or a juvenile may be prohibited from participating in nonessential tribal programs or entering designated tribal property.
(8)
The Court may release a juvenile to a relative or other responsible adult tribal member if the parent(s), guardian, or custodian consents to the release. If the juvenile is 14 years of age or older, the juvenile and the juvenile’s parent(s), guardian, or custodian must consent to the release.
(9)
If the juvenile admits to the allegations, the Court may take the plea under advisement and refer the juvenile for a predisposition investigation report. The Court will proceed with the disposition and place the juvenile on probation. If the juvenile successfully completes the terms and conditions of probation within the prescribed time, the Court may dismiss the matter without entering a judgment of disposition. If the juvenile does not successfully complete probation, the Court will then enter a judgment of disposition into the records of the Court.
(10)
If the Court does not find probable cause to believe that the juvenile committed the alleged delinquent act, the petition shall be dismissed and the juvenile released.
H.
Transfer to the Adult Division of Tribal Court.
(1)
If the juvenile is at least 16 years of age at the time of the alleged delinquent act, the Presenting Officer shall have the option of filing the action as a juvenile in need of correction proceeding or as an adult criminal matter. If the juvenile is between the ages of 14 and 16 and is alleged to have committed an act that would have been considered a crime if committed by an adult, the Presenting Officer may file a petition requesting the Court to transfer the juvenile to the Adult Division of the Court. No juvenile under the age of 14 years of age shall be transferred to the Adult Division of the Court.
(2)
The Court shall conduct a hearing to determine whether jurisdiction of the juvenile should be transferred to the Adult Division of the Court.
(3)
The Court shall hold a transfer hearing within 10 days after the petition to transfer to the adult division is filed.
(4)
Written notice of the transfer hearing shall be given to the juvenile and the juvenile’s parent(s), guardian, legal representative, or custodian at least 72 hours prior to the hearing.
(5)
Prior to the hearing, the Court shall order the MBPI Department Health and Human Services to conduct an investigation and prepare a written report to be submitted to the Court.
(6)
The following factors shall be considered in determining whether to transfer jurisdiction of the juvenile to the Adult Division of the Court:
(a)
The seriousness of the offense, and the offense would need to be violent in nature and considered a felonious crime if committed by an adult; and
(b)
The juvenile’s age, mental and physical condition, past record of offenses, and responses to previous Court efforts at rehabilitation.
(7)
The Court may transfer jurisdiction of the juvenile to the Adult Division of the Court if the Court finds clear and convincing evidence that both of the following circumstances exist:
(a)
There are no reasonable prospects for rehabilitating the juvenile through resources available to the Court; and
(b)
The alleged offense is serious and constitutes a substantial danger to the public.
(8)
When a juvenile is transferred to the Adult Division of the Court, the Court shall issue a written transfer order containing reasons for the order. The transfer order constitutes a final order for purposes of appeal.
I.
Diversion.
(1)
The Presenting Officer may choose to divert the juvenile rather than initiate a formal juvenile in need of correction or juvenile in need of supervision proceeding.
(2)
The Presenting Officer shall hold an informal conference with the juvenile and the juvenile’s parent(s), guardian or custodian to discuss diversion in lieu of filing a juvenile petition if:
(a)
The admitted facts bring the case within the jurisdiction of the Court;
(b)
Diversion of the matter would be in the best interests of the juvenile and the Tribe; and
(c)
The juvenile’s parent(s), guardian or custodian voluntarily consents to the diversion after they have received an explanation of their rights.
(3)
This section does not authorize the Presenting Officer to compel involuntary action of the parties involved.
(4)
The Presenting Officer shall set forth, in writing, the diversion agreed to by the parties.
(5)
Any disposition arranged through the diversion shall be concluded within six months unless an extension is agreed to by all parties.
J.
Trial. The Court shall conduct a bench trial for the purpose of determining whether the Court has jurisdiction over the juvenile. The trial shall be closed to the public. The Court shall hear testimony concerning the circumstances that give rise to the juvenile petition.
K.
Burden of proof.
(1)
If the allegations of the petition for a juvenile in need of correction are sustained by clear and convincing evidence, the Court shall find that the juvenile is in need of correction and schedule a disposition hearing.
[Amended at time of adoption of Code (see Ch. 1.1, Adoption of Tribal Code)]
(2)
If the allegations of the juvenile in need of supervision petition are sustained by clear and convincing evidence, the Court shall find that the juvenile is a juvenile in need of supervision and schedule a disposition hearing.
(3)
A finding that the juvenile is a juvenile in need of correction or juvenile in need of supervision shall constitute a final order for purposes of appeal.
L.
Trial continuances. Continuances of a trial may be granted upon:
(1)
Motion of the juvenile for good cause shown; or
(2)
Motion of the Presenting Officer that material evidence or witnesses are unavailable, a finding by the Court that the Presenting Officer has exercised due diligence to obtain the evidence or appearance of witnesses, and reasonable grounds exist to believe that the evidence will become available or that the witnesses will appear.
M.
Disposition hearing.
(1)
A disposition hearing shall take place not more than 28 days after the trial or after the admission of responsibility at the preliminary hearing.
(2)
The Court shall take testimony and receive evidence concerning proper disposition at the hearing.
(3)
The Court shall consider the predisposition report submitted by the MBPI Department of Health and Human Services. Prior to the hearing, the affected parties shall be given an opportunity to review all reports and supporting documentation. During the hearing, the parties shall have the opportunity to controvert the factual contents and the conclusions of any reports. The Court shall also consider the alternative predisposition report prepared by the juvenile or the juvenile’s legal representative.
(4)
The judgment of disposition order shall constitute a final order for purposes of appeal.
N.
Disposition alternatives. The dispositional focus of a youth depends upon whether the youth is found to be a juvenile in need of correction as defined in § 5.2-4 or a juvenile in need of supervision as defined in § 5.2-4. In all cases, the Court shall look to methods of rehabilitation of both the juvenile and the family unit. The dispositional focus of a youth found to be a juvenile in need of correction is the reformation and rehabilitation of the offender and the family as well as the reintegration of the juvenile in need of correction into the community. The dispositional focus of a youth deemed to be a juvenile in need of supervision is to pursue the best interest of the youth while strengthening family and community solutions to the youth’s misconduct. If a juvenile has been found to be a juvenile in need of correction or juvenile in need of supervision, the Court may make the following disposition for any term until the juvenile reaches the age of 19 and shall include rehabilitation services for the youth and his or her family, i.e., mental health, substance abuse, educational services, etc.:
(1)
Place the juvenile on probation subject to conditions set by the Court;
(2)
Place the juvenile in a detention and/or a treatment facility with an agency designated by the Court;
(3)
Order the juvenile to perform community service;
(4)
Order the juvenile to pay restitution, court fines and court costs, including costs related to detention, or to provide restorative services to the injured party or parties. The Court may access the juvenile’s per capita trust or distributions, if otherwise allowed by the Tribe’s Revenue Allocation Plan, to provide restitution upon the motion of the Presenting Officer or an aggrieved party based upon proper proofs offered at an evidentiary hearing; or
(5)
Order any other measure the Court deems necessary and proper to correct the behavior of the juvenile in need of correction or juvenile in need of supervision to ensure the safety of the community.
O.
Modification of disposition order. A disposition order of the Court may be modified, for good cause, upon a showing of a change of circumstances. The Court may modify an order of disposition at any time, upon motion of the following:
(1)
The juvenile;
(2)
The juvenile’s parent(s), guardian, or custodian; or
(3)
The Presenting Officer. […] 5.2-5 Jurisdiction and court authority. A. Jurisdiction. The Tribal Court system shall have jurisdiction over juveniles in need of correction and juveniles in need of supervision proceedings, if:
(1)
The alleged offense occurred on tribal land and the juvenile’s primary residence is on tribal trust lands;
(2)
The juvenile commits an offense while on a tribally sponsored event off tribal trust lands; or
(3)
A juvenile case is transferred to Tribal Court from any other court.
B.
Jurisdiction over the family or household. The Tribal Court shall have jurisdiction over all members of the family or household who are a part of the concerns giving rise to jurisdiction, or who may be a part of the solution to the concerns.
C.
Transfers from other courts. The Tribal Court may accept transfers of a case from any other court if the alleged juvenile in need of correction or juvenile in need of supervision is a juvenile who resides on Tribal trust lands.
D.
Transfers to other courts. The Tribal Court may transfer a case to another court if the alleged offense occurred on tribal land and the alleged juvenile in need of correction or juvenile in need of supervision does not reside on tribal land, and the other court is willing to accept transfer.
E.
Adjudication classification. No adjudication of the status of any juvenile under the jurisdiction of the Court shall be deemed criminal.
F.
Closed proceedings. Juvenile proceedings shall be closed to the general public to protect the privacy interests of the individuals and families involved.
G.
Authority to cooperate. The Court 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 chapter.
H.
Least restrictive alternative. The least restrictive alternative applies to all placement disposition actions taken by the Court under this chapter.
I.
Court records.
(1)
A record of all hearings under this chapter shall be made and preserved.
(2)
All Court records shall be confidential, and shall only be open to review by the following:
(a)
The juvenile or his or her legal representative;
(b)
The juvenile’s parent(s), guardian, custodians or their legal representatives;
(c)
The Presenting Officer;
(d)
The tribal probation officer;
(e)
The Court staff; and
(f)
The Judge or Justices involved in the case.
J.
Sealing Court records. When a juvenile who has been the subject of any proceeding before the Court attains his/her 21st birthday, the Court shall seal the Court records from review or release, absent a showing of good cause relating to that juvenile.
K.
Contempt of Court as applicable to this chapter only.
(1)
Willful disobedience of, or willful interference with an order of the Court constitutes contempt of Court.
(2)
The Court may fine an adult for contempt of Court with a fine not to exceed $1,000 or may order detention to compel compliance.
(3)
A juvenile may be punished for contempt of court with extension of probation, additional probation conditions, and/or a fine not to exceed $500 or may be ordered detention to compel compliance.
L.
Medical examination. The Court may order any medical examination necessary for the proceedings of a juvenile who is alleged to be a juvenile in need of correction or juvenile in need of supervision if issues of competence to stand trial or insanity are raised by the defense, or for any other reason that the Court deems appropriate. Reports shall be available to the defense and Presenting Officer.
M.
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 juvenile in custody, the officer may fingerprint that juvenile 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 juvenile petition is not filed against the juvenile.
N.
Appeal.
(1)
For purposes of appeal, a record of the proceedings shall be made available to the juvenile, the juvenile’s parent(s), guardian, custodian or legal representative. The party seeking the appeal shall pay costs of obtaining this record.
(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 28 days of the final order of disposition.
(3)
All appeals shall be conducted in accordance with applicable tribal ordinances and court rules.