Statutes | WOTCL Title V Chapter 4 ยง 5.407 | 2020
A. Incident Report. Tribal Law Enforcement may file an Incident Report with the Tribal Prosecutor. The Incident Report shall contain:
1. Name, age, date of birth, address, name of custodial parent or guardian, Tribal affiliation, Tribal ID # 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 Statute shall commence upon the filing of a juvenile petition by the Tribal Prosecutor on behalf of the Tribe. The juvenile petition shall include:
1. The name, birth date, address, Tribal affiliation and ID# if applicable.
2. The names and addresses of the juvenile&rsquos parent(s), guardians, or custodian
3. Citation to the specific provision(s) of this Statute 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 Section VII (C) of this Statute has been issued for the juvenile.
E. Law Enforcement Officer&rsquos Duties. A law enforcement officer who takes a juvenile into custody, pursuant to Section VII (D) of this Statute, 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 parent or guardian, and/or attorney during questioning.
d. Release the juvenile to the juvenile&rsquos parent(s), guardian, or custodian and give such counsel and guidance as may be appropriate, unless shelter care or detention is necessary because:
i. The juvenile is in danger of injury
ii. Is pending placement or
iii. The juvenile is under the influence of alcohol or controlled substances or
iv. 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&rsquos 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 offender 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 sixteen (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 Section 1.606 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 twenty-four (24) hours a day.
2. A juvenile who is sixteen (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 Section VII (E) 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 ten (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 seventy-two (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&rsquos 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&rsquos parent(s), guardian, or custodian, the Court shall recess for not more than twenty-four (24) hours and direct the Tribal Prosecutor to make continued efforts to obtain the presence of the juvenile&rsquos 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 offender 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 his 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 Section V(D) of this Statute 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:
i. There is reasonable cause to believe that the juvenile will run away and/or be unavailable for further proceedings or
ii. 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 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 non-essential 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 fourteen (14) years of age or older, the juvenile and the juvenile&rsquos parent(s), guardian, or custodian must consent to the release.
9. If the juvenile pleads guilty to the charges, the Court may take the plea under advisement and refer the juvenile to the Community Justice Coordinator 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 sixteen (16) years of age at the time of the alleged delinquent act, the Prosecutor shall have the option of filing the action as a juvenile offender proceeding or as an adult criminal matter. If the juvenile is between the ages of fourteen (14) and sixteen (16) and is alleged to have committed an act that would have been considered a crime if committed by an adult, the Prosecutor may file a petition requesting the Court to transfer the juvenile to the Adult Division of the Court. No juvenile under the age of fourteen (14) years of age shall be eligible for transferring to 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 ten (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&rsquos parent(s), guardian, legal representative, or custodian at least seventy-two (72) hours prior to the hearing
5. Prior to the hearing, the Tribe&rsquos Community Justice Coordinator shall be responsible for an investigation and the preparation of 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&rsquos 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 Tribal Prosecutor may choose to divert the juvenile rather than initiate a formal juvenile offender or juvenile in need of supervision proceeding.
2. The Tribal Prosecutor shall hold an informal conference with the juvenile and the juvenile&rsquos 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&rsquos 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 Tribal Prosecutor to compel involuntary action of the parties involved.
4. The Tribal Prosecutor and the Community Justice Coordinator shall set forth in writing the diversion agreed to by the parties.
5. Any disposition arranged through the diversion shall be concluded within six (6) months unless an extension is agreed to by all parties.
6. The Community Justice Coordinator shall file monthly progress reports with the Prosecutor. If at any time after thirty (30) days the Tribal Prosecutor concludes that positive results are not being achieved, the Prosecutor may file a juvenile petition pursuant to Section VII (B) of this Statute.
7. No statement made during the diversion process may later be admitted into evidence at a trial or any other proceeding against the juvenile under this Statute.
8. Upon successful completion of the diversion, The Community Justice Coordinator will notify the Tribal Prosecutor and no further action will be required.
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 juvenile petition are sustained by proof beyond a reasonable doubt, the Court shall find that the juvenile is a juvenile offender and schedule a disposition hearing.
2. If the allegations of the juvenile 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 offender 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 Tribal Prosecutor that material evidence or witnesses are unavailable, a finding by the Court that the Tribal Prosecutor 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. Pre-disposition Report.
1. The Community Justice Coordinator shall prepare a written report describing all reasonable and appropriate alternative dispositions. The report shall contain a specific plan for the care of, and assistance to the juvenile, designed to resolve the problems presented in the juvenile petition.
2. The report shall contain a detailed explanation of the necessity for the proposed disposition and its benefits to the juvenile.
3. Preference shall be given to the disposition alternatives that are listed in Section VII (O). The alternative least restrictive of the juvenile&rsquos freedom, consistent with the interests of the Tribe, shall be selected.
4. If the report recommends placement of the juvenile somewhere other than with the juvenile&rsquos parent(s), guardian, or custodian, it shall state the specific reasons underlying its placement recommendation.
5. The Community Justice Coordinator shall review the pre-disposition report with the Court, the juvenile&rsquos legal representative, and the Tribal Prosecutor prior to the disposition hearing.
N. Disposition Hearing.
1. A disposition hearing shall take place not more than twenty-eight (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 pre-disposition report submitted by the Tribe&rsquos Community Justice Coordinator. 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&rsquos legal representative.
4. The judgment of disposition order shall constitute a final order for purposes of appeal.
O. Disposition Alternatives. The dispositional focus of a youth depends upon whether the youth is found to be a juvenile offender as defined in Section III (L ) or a juvenile in need of supervision as defined in Section III (M ) 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 offender is the reformation and rehabilitation of the offender and the family as well as the reintegration of the juvenile offender 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 misconduct. If a juvenile has been found to be a juvenile offender or juvenile in need of supervision, the Court may make the following disposition for any term until the juvenile reaches the age of nineteen (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 work at the direction of the Community Justice Coordinator
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&rsquos per capita trust or distributions, if otherwise allowed by the Tribe&rsquos Revenue Allocation Plan, to provide restitution upon the motion of the Tribal Prosecutor 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 offender or juvenile in need of supervision to insure the safety of the community.
P. 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&rsquos parent(s), guardian, or custodian
3. The Tribal Prosecutor or
4. The Tribal Community Justice Coordinator.
Q. Probation Supervision.
1. Probation/Diversion Responsibility. The Community Justice Office is supervised by the Court. The Community Justice Coordinator will be responsible for supervising probationers and juveniles released on pre-dispositional release. Terms of release or probation will be set by the Court upon recommendation of the Community Justice Coordinator.
2. Power to Take Into Immediate Custody for Violation of Pre-Dispositional Release. The Community Justice Coordinator may, upon direct knowledge or receipt of reliable information, take into immediate custody, a juvenile who has violated terms of predispositional release.
3. Power to Take Into Immediate Custody for Probation Violation. The Community Justice Coordinator may, upon direct knowledge or reliable knowledge, take a probationer into immediate custody for violation of the terms of probation. The Community Justice Coordinator must file a motion for a Show Cause Hearing, listing the reasons for violation and the basis for violation.
4. Terms Subject to Modification. The Community Justice Coordinator or the Prosecutor may motion the Court to alter any term of probation at the discretion of the Community Justice Coordinator.
5. Facility Visits Discretionary. The Community Justice Coordinator may visit any juvenile who is in jail or in a treatment facility.
(Source: WOS 2007-011, January 3, 2008, Section VII)