Rule 6. Initial Appearance

(a) In General.

(1) Appearance Upon Arrest. A person making an arrest within the Qualla Boundary must take the defendant without unnecessary delay before a Magistrate or Judge, unless the person taken into custody is arrested on Federal or State process, in which case they shall be taken before the appropriate person as provided for in N.C. Gen. Stat. § 15A or the Federal Rules of Criminal Procedure. It is not necessary for persons arrested for violating conditions of release to be brought before the Magistrate.

(2) Appearance Upon a Summons. A person served with a criminal summons must appear before the Magistrate on duty during the first business day following service with the summons. Upon failure of any defendant to report as Ordered, the Magistrate on duty during the day shall issue a Warrant for the defendant's arrest and charge him or her with Failure to Obey a Lawful Order of the Court.

(b) Procedures.

(1) Determining Jurisdiction. The Magistrate shall conduct the "St. Cloud" test to confirm that the defendant is an Indian. This test is conducted as follows:

(A) Inquire if the defendant is an enrolled member of any Federally recognized Indian Tribe;

(B) Inquire if the defendant is a First Descendent of the EBCI;

(C) Inquire if the defendant is a citizen of another country;

(D) Inquire if the defendant is a member of any State recognized Indian Tribe; and

(E) Inquire if the defendant participates in any Indian cultural events, lives on a Reservation, receives any benefits reserved exclusively for Indians, or otherwise holds herself out as an Indian.

If the answers to questions (A)—(C), or any one of them, is "yes," the inquiry ends there and the Court has jurisdiction over the defendant. If the answers to questions (A)—(C) is "no," but the answer to question (D) or (E) is "yes," further inquiry may be in order to satisfy the Magistrate that the defendant is an Indian for the purposes of the exercise of jurisdiction.

If the Magistrate determines that the defendant is a non-Indian, then the Magistrate shall notify the CIPD of same, dismiss the Tribe's charges and turn the defendant over to the CIPD for transport to the appropriate State or local judicial or law enforcement officer or to the Federal authorities. If the defendant exercises his or her right to remain silent, the Magistrate may detain the defendant to determine jurisdiction, without prejudice to the defendant's right to challenge jurisdiction at a later date. If the defendant is too intoxicated or impaired for the Magistrate to conduct this inquiry, the Magistrate shall order that the defendant appear before the Magistrate on duty on the following business day for the conclusion of this proceeding.

(2) Reserved.

(3) Notice of Charges. Following the determination of jurisdiction, the Magistrate shall inquire as to whether the defendant has received a copy of the Warrant, Criminal Complaint, and/or Criminal Summons. If the defendant has not, he or she will be provided a copy at this time. The Magistrate will read the charges to the defendant if he or she does not understand what the charges are.

(4) Advising of Rights. The Magistrate shall advise the defendant and make findings that the defendant understands:

(A) That he or she has the right to remain silent;

(B) That he or she cannot be compelled to testify in this case;

(C) That he or she has the right to a speedy trial;

(D) That he or she has the right to a public trial;

(E) That he or she has the right to confront the witnesses against him or her;

(F) That he or she has the right to call witnesses on his or her own behalf;

(G) That, if he or she wishes, witnesses for his or her behalf may be compelled to attend by subpoena served by the CIPD or other law enforcement agency;

(H) That he or she has the right to be represented by counsel;

(I) That counsel will be appointed for him or her, upon request, if he or she cannot afford counsel and is likely to face an active term of incarceration if convicted;

(J) That he or she has the right to trial by Jury; and

(K) That he or she, if found guilty, has the right to appeal the Judgment to the Cherokee Supreme Court.

(5) Inquiries. Upon advising the defendant of his or her rights, the Magistrate will inquire whether the defendant wants to be represented by counsel, and, if so, whether the defendant requests to apply for Court appointed counsel. Additionally, the Magistrate will inquire of the defendant whether he or she elects trial by Jury. The defendant may defer this decision until consulting with counsel, or until coming before a Judge.

(6) Conditions of Release. After the Magistrate has made the appropriate inquiries of the defendant, the Magistrate shall establish conditions for the defendant's release. If the Magistrate finds that the defendant is a danger to the community or a risk of flight, and that no conditions will reasonably secure the defendant's attendance or provide for the safety of the community, the Magistrate may Order that the defendant be held without bond until a Release Hearing may be held before the Cherokee Court. Permitted conditions of release, including combinations, are:

(A) Cash bond;

(B) Secured bond:

(1) Surety bond;

(2) Property bond;

(3) Bond shall not be secured by per capita garnishment;

(C) Third Party Custody;

(D) Pre-trial Supervision by the Probation Office; and

(E) Unsecured bond (written promise to appear).

Additionally, the Magistrate may impose restrictions on the defendant in his or her discretion, including, but not limited to:

(A) Prohibiting the defendant from possessing a firearm, ammunition or other weapon;

(B) Prohibiting the defendant from contacting the alleged victim(s);

(C) Prohibiting the defendant from possessing or consuming alcohol;

(D) Restricting the defendant to the jurisdiction of the Cherokee Court at all times, or other geographical restrictions; and

(E) Prohibiting the defendant from violating the laws of this or any other jurisdiction.

In the event the defendant's release is not authorized, or the defendant is unable to satisfy the conditions of release, the defendant shall be taken by the CIPD to an approved jail facility. If a surety who has posted a bond produces a defendant and requests to be released from the bond, a Judge may discharge the surety from his or her obligations under the bond upon such conditions as the Court thinks appropriate.

(Ord. No. 608, 9-23-2013 )