SB 117: "An Act relating to a tribal court diversion program for certain offenses; relating to superior court jurisdiction; and amending Rules 215, 609, 610, and 611, Alaska Rules of Appellate Procedure."
00 SENATE BILL NO. 117 01 "An Act relating to a tribal court diversion program for certain offenses; relating to 02 superior court jurisdiction; and amending Rules 215, 609, 610, and 611, Alaska Rules of 03 Appellate Procedure." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 12.80 is amended by adding new sections to read: 06 Article 2. Tribal Court Diversion Program. 07 Sec. 12.80.100. Tribal court diversion program. (a) Subject to (e) of this 08 section, upon recommendation of the appropriate law enforcement agency, the state 09 may elect to defer prosecution of a tribal member in a criminal case and refer the tribal 10 member to a tribal court under the procedure provided in this section when the tribal 11 member has been accused of committing one of the following offenses: 12 (1) an attempt under AS 11.31.100 or solicitation under AS 11.31.110 13 to commit a class B misdemeanor under AS 11; 14 (2) assault in the fourth degree under AS 11.41.230 if the tribal
01 member has not previously 02 (A) been convicted of 03 (i) a felony crime against a person under AS 11.41; or 04 (ii) assault in the fourth degree; or 05 (B) been referred to a tribal court under this section; 06 (3) a class B misdemeanor under AS 11; 07 (4) AS 04.11.501; 08 (5) AS 04.16.050; 09 (6) AS 28.35.280. 10 (b) The state may not consent to a referral under this section unless the state 11 has consulted with the victim and explained the process and consequences of the 12 referral to the victim. The state may not elect to proceed under this section if the tribal 13 member has previously been referred to a tribal court under the procedure provided in 14 this section two or more times. 15 (c) The state may not make a referral under this section unless the state obtains 16 written consent from the tribal member stating that the tribal member 17 (1) agrees to be adjudicated before the appropriate tribal court; 18 (2) agrees to comply with the tribally imposed remedy, if any, and that, 19 if the tribal member fails to comply with the tribally imposed remedy, the state may 20 initiate prosecution for the offense in state court; 21 (3) will not have the right to legal counsel in tribal court; and 22 (4) acknowledges that the tribal court is not bound by Alaska law or 23 procedure. 24 (d) Once the state makes a referral under this section and the tribal member 25 consents to be adjudicated before the appropriate tribal court for the alleged offense, 26 the state may withhold prosecution for the offense. The tribal court may incorporate 27 culturally derived procedures, including restorative justice hearings and circle 28 sentencing, imposing fines, or requiring forfeiture of property under procedures 29 adopted by the tribal court. It is the intent of the legislature that the tribal court 30 (1) shall use the fines collected for restitution for the victim of the 31 crime and, if any funds remain after victim restitution has been paid, for the benefit of
01 the tribe; 02 (2) shall notify the appropriate law enforcement agency if the tribal 03 court becomes aware of potential criminal conduct involving a felony, misdemeanor, 04 or violation not listed under (a) of this section. 05 (e) If a tribal member is accused of committing an offense listed under (a) of 06 this section involving domestic violence, the mandatory arrest provisions of 07 AS 18.65.530 still apply. The arresting or investigating officer shall also comply with 08 the provisions of AS 18.65.515 and 18.65.520. If there is a mandatory arrest for an 09 offense listed under (a) of this section, the state may elect to make a referral under this 10 section at the state court arraignment. 11 (f) If the state elects to make a referral under this section and the tribal 12 member does not comply with the tribally imposed remedy under (d) of this section, 13 the state may prosecute the tribal member in state court. 14 (g) If the state makes a referral under this section and the tribal member 15 complies with the tribally imposed remedy under (d) of this section, the state may not 16 prosecute the tribal member in state court. 17 Sec. 12.80.110. Tribal court diversion program; notice required. (a) If the 18 state elects to refer a criminal case to tribal court under AS 12.80.100, the appropriate 19 tribal court shall promptly provide notice to the state on a form created by the 20 department after a remedy is ordered that includes the following information: 21 (1) the name of the tribal member; 22 (2) the circumstances of the offense; and 23 (3) the remedy ordered by the tribal court. 24 (b) The tribal court shall promptly notify the state on a form provided by the 25 department if 26 (1) the tribal member complies with the tribally imposed remedy and 27 the date of that compliance; 28 (2) the tribal member fails to comply with the tribally imposed remedy 29 within 120 days after the date the tribal court imposes the remedy. 30 (c) If the tribal member is later referred to tribal court under 31 AS 12.80.100(a)(1) or (2) after committing another offense, the tribal court shall use a
01 new form applicable to that new offense. 02 (d) The tribal court shall provide the forms under (a) and (b) of this section to 03 the department at least on a quarterly basis. 04 Sec. 12.80.120. Appeals. (a) If a tribal member consents to a referral to a tribal 05 court in a criminal case under AS 12.80.100, the tribal member may appeal the tribal 06 court's decision or tribally imposed remedy to the superior court within 30 days after 07 the tribal court's decision. 08 (b) On appeal, the tribal member shall be afforded all rights and privileges 09 available by law or under the Constitution of the State of Alaska. 10 Sec. 12.80.130. Jurisdiction. Nothing in AS 12.80.100 - 12.80.200 limits, 11 alters, or diminishes the sovereignty or jurisdiction of the tribal court or the tribe. 12 Sec. 12.80.200. Definitions. In AS 12.80.100 - 12.80.200, 13 (1) "department" means the Department of Law; 14 (2) "tribal court" means a tribal justice system established by a tribe; 15 (3) "tribal member" means a member of a federally recognized Indian 16 tribe; 17 (4) "tribe" means an Indian tribe or band or Alaska Native village that 18 is recognized by federal law. 19 * Sec. 2. AS 22.10.020 is amended by adding a new subsection to read: 20 (j) The superior court has jurisdiction in matters appealed to it under 21 AS 12.80.100 - 12.80.120. The superior court, in its discretion, may grant a trial de 22 novo, in whole or in part. 23 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 24 read: 25 INDIRECT COURT RULE AMENDMENTS. (a) AS 12.80.120, added by sec. 1 of 26 this Act, and AS 22.10.020(j), added by sec. 2 of this Act, have the effect of changing Rule 27 215, Alaska Rules of Appellate Procedure, by giving a tribal court member the right to appeal 28 a sentence for a misdemeanor offense imposed by a tribal court where the sentence imposed is 29 less than 120 days imprisonment. 30 (b) AS 12.80.120, added by sec. 1 of this Act, and AS 22.10.020(j), added by sec. 2 of 31 this Act, have the effect of changing Rules 609, 610, and 611, Alaska Rules of Appellate
01 Procedure, by giving a tribal court member the right to appeal a decision or sentence imposed 02 by a tribal court to the superior court.