ARTICLE XIV SEPARATION
OF POWERS
(Amendment XI approved November 3, 1992)
Judiciary
Section 1. Purpose:
To provide for a separate branch of government free from
political interference and conflicts of interest for the
development and enhancement of the fair administration of
justice. Establishment:
This section shall create a separate and equal judicial branch
of government. All judicial powers of
the Turtle Mountain Band
of Chippewa Indians shall be vested in the Judicial Branch of
government (exhaustion of any applicable administrative remedy
requirement is still required) and such branch shall consist of
the Turtle Mountain Appellate Court, the Tribal Court, the
Judicial Board and the elected officials, appointees and
employees of said courts. Section 3. Powers:
a) The Judicial Branch of government of the Turtle Mountain
Band of Chippewa Indians shall have jurisdiction, as
determined by legislative action pursuant to Chapter 1.05
and Chapter 2.01 of the Turtle Mountain Tribal Code and
applicable federal law, to adjudicate actual cases an
controversies that arise under the Turtle Mountain
Constitution, statutes, resolutions, civil and criminal
causes of action and legal decisions, and to ensure due
process, equal protection, and protection of rights arising
under the Indian Civil Rights Act of 1968, as amended, for
all persons and entities subject to the criminal and civil
jurisdiction on the Turtle Mountain Tribe. b) The Judicial Branch shall have authority to independently
develop its operating budget and independently secure
funding for its operations directly from funding sources. Nothing within this section shall prohibit the Tribal
Council from providing funds from its general accounts to
supplement the budget of the court or assist the court in
obtaining needed funding.
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Section 4. Selection of Judges and Chief Clerk of Court:
a) The Office of Chief Judge shall be filled as follows:
Persons who possess the requisite qualifications as
developed by the Judicial Board and approved by the Tribal
Council, shall file their intention of seeking such office
with the Secretary/Treasurer in the manner described in
ARTICLE V, Section 4 (b) of the Turtle Mountain
Constitution. Properly registered candidates for the
Office of Chief Judge shall then be subjected to a
reservationwide
or at large election. The candidate
receiving the most votes, as determined by the vote of the
people at a duly held election held in conjunction with the
tribal general election, shall then be seated as the Chief
Judge of the Turtle Mountain Tribe. b) The position of Associate Judge shall be filled as follows:
Persons who possess the requisite qualifications as
developed by the Judicial Board and approved by the Tribal
Council, shall file their intention of seeking such office
with the Secretary/Treasurer in the manner described in
ARTICLE V, Section 4 (b) of the Turtle Mountain
Constitution. Properly registered candidates for the
Office of the Associate Judge shall then be subjected to a
reservationwide
or at large election. The candidate
receiving the most votes, as determined by the vote of the
people at a duly held election held in conjunction with the
tribal general election, shall then be seated as the
Associated Judge of the Turtle Mountain Tribe. The
candidate in the general election for the position of
Associate Judge who shall receive the second largest
popular vote for this position shall also be seated as an
Associate Judge of the Turtle Mountain Tribe if more than
one Associate Judge is required. The determination of the
number of Associate Judges needed to serve the court shall
be made by the Judicial Board prior to the election. c) The position of Chief Clerk of Court shall be filled as
follows: Persons who possess the requisite qualifications
as developed by the Judicial Board and approved by the
Tribal council, shall file their intention of seeking such
office with the Secretary/Treasurer in the manner described
in ARTICLE V, Section 4 (b) of the Turtle Mountain
Constitution. Properly registered candidates for the
office of Chief Clerk of Court shall then be subjected to a
reservation wide
or at large election. The candidate
receiving the most votes, as determined by the vote of the
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people at a duly held election held in conjunction with the
tribal general election, shall then be seated as the Chief
Clerk of the Tribal Court of the Turtle Mountain Tribe. The Chief Clerk of court shall not serve in any judicial
capacity. d) All Trial and/or Special judges shall be appointed in the
manner as presently provided in Section 1.0506 of the
Turtle Mountain Tribal Code. e) The term of office of the Chief Judge of the Turtle
Mountain Tribe and all other judges and Chief Clerk of
Court shall be four years. Vacancy in the office of Chief
Judge by reason of impeachment, illness or incapacity shall
be filled by appointment of one of the currently sitting
judges of the Judicial Branch by the Judicial Board. This
appointment shall be effective only for the remaining term
of the duly elected Chief Judge. Associate Judges, during
the first election term of judges pursuant to this
amendment, shall serve for a period of two years. Thereafter, all terms of Associate Judge(s) shall be for a
fouryear
term. The effect of this provision to provide
continuity to the court by providing staggered terms for
the Chief Judge and Associate Judge(s). Vacancy in the
Office of Associate Judge(s) shall be filled by appointment
in the manner presently provided in Section 1.0506 of the
Turtle Mountain Tribal code. This appointment shall be
effective only for the remaining term of the duly elected
Associate Judge. f) Appellate Court Judges shall be appointed by the Judicial
Branch of Government and ratified by the Tribal Council. g) No justice of the appellate court or judge of the tribal
court shall engage in the practice of law before the Turtle
Mountain Tribal or Appellate Court nor shall they hold any
public office, elective or appointive, not judicial in
nature. h) All other employees of the judicial branch of government
shall be deemed staff employees and shall not serve in any
judicial capacity.
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Section 5. Impeachment of Judges, including Chief Judge:
a) All judges of the judicial branch of government shall be
subject to impeachment based only upon cause, as developed
by the Judicial Board, only after due process of law is
provided. The applicable standard shall be clear and
convincing evidence. b) Impeachment proceedings shall be heard before an
impeachment judge empowered to hear only impeachment
hearings and who shall serve n no other capacity in the
Turtle Mountain Judicial Branch of Government. c) Qualifications of said special Impeachment Judge: This
judge must be currently licensed to practice law in any
State with previous experience as a tribal, state or
federal judge. This position shall be appointed by the
Judicial Board and ratified by the Tribal Council. Funding
for this position shall be provided by the Tribal Council. Section 6. Judicial Board:
a) This section shall establish a Judicial Board that shall
consist of the following voting members:
(i) one lay person from each district; and
(ii) one lay person elected at large who shall serve as the
Chairperson of the Judicial Board; and
(iii) one member of the Turtle Mountain Tribal Council;
and
The following nonvoting
advisors:
(iv) two attorneys; and
(v) one member of the Turtle Mountain Judicial Branch. The lay members of the Judicial Board must be enrolled members
of the Turtle Mountain Tribe residing within the district he/she
represents and must not serve in any tribal elective or
appointive position. Attorneys must be licensed in the Turtle
Mountain Tribal Court and be members in good standing with any
state or federal court. (Amendment XVII, Approved February 3,
1995)
b) Duties:The Judicial Board shall have authority to develop,
and implement the overall general policy of the Judicial
Branch of government, to develop and implement a code of
judicial and professional ethics, to establish rules of
procedure for the court, develop and implement impeachment
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procedures and to recommend legislative change to the
Tribal Council for the enhancement and development of the
Judicial Branch of Government. Nothing within this policy
shall be construed to grant the Judicial Board authority to
regulate the daytoday
activities of the court, develop
the court’s budget or to interfere with the administration
of justice. c) Selection of Judicial Board members and terms of Office:
District lay members shall be enrolled members of the
Turtle Mountain Band of Chippewa, residents of the
districts they represent (See also Section 6(a) above) and
shall be elected by majority vote of eligible voters of
each district at the regularly scheduled general election. Candidates for the Judicial Board shall file their
candidacy with the Secretary/Treasurer in the manner
described in ARTICLE V, Section 4 (b) of the Turtle
Mountain Constitution. Attorney Positions shall be
appointed by the Judicial Branch of government by consensus
of the Chief Judge and Associate Judge(s). The Judicial
Branch representatives shall be appointed by consensus of
all judges, except the impeachment judge, of the judicial
branch of government. The Tribal Council representative
shall be appointed by the majority vote of the Tribal
Council. Terms of office shall be for a twoyear
period. No member of the Judicial Board may serve more than two
consecutive terms but may be reappointed after their
absence from the Judicial Board by at least one term. c) A special election shall be held no later than 45 days
after the effective date of ARTICLE XIV for the purpose of
selection the lay members of the Judicial Board. Thereafter, the election of lay members shall occur in
conjunction with the regularly scheduled general election.
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