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Authority
Juveniles
Adults
Juvenile Probation
Adult Probation and Parole
Diversion
Reports
Recommending Sentences and Determining
Nályééh
Monitoring Peacemaking Agreements
Navajo Offenders
Adult Non-Indian Offenders
Juvenile Non-Indian Offenders
Delinquency Proceedings
Children in Need of Supervision
(CHINS)
Courtesy Supervision Over Transferees
Hadane
Probation and Parole Services (“PPS”) has long been the responsibility
of the Judicial Branch and is an essential component of judicial
services under the Judicial Branch Public Law 93-638 contract.
Probation and Parole Officers derive their power and duties, and also
are limited in their authority and duties by the following authorities:
1.
All provisions referenced in this
section.
2.
Uniform Sentencing Policy of the
Navajo Nation Courts, eff. Aug. 13, 1994.
3.
Rules 50 – 57, Navajo Rules of
Criminal Procedure, eff. Nov. 1, 1990.
4.
9 N.N.C. §§ 1001 – 1405 (Navajo
Nation Children’s Code).
5.
Part II, Navajo Policy on
Appointment of Counsel and Indigency, eff. Oct. 2, 1993
6.
Standard Operating Procedures, as
adopted by the Judiciary Committee.
Juveniles
9
N.N.C. §§ 1052(C)(1) of the Navajo Nation Children’s Code provides for
the establishment of the Probation Office of the Family Court. 9 N.N.C.
§ 1052(C)(2) provides the authority for juvenile probation officers to
carry out their duties and responsibilities.
Adults
The
Adult PPS office is necessary to enable judges to sentence adults to
probation or parole as provided in various sections of the Navajo Nation
Code. Authority is found at 7 N.N.C. § 201(C) (Effective October 24,
2003) which provides:
The
Judicial Branch of the Navajo Nation shall also consist of such
additional Judicial Branch divisions, departments, offices or programs
that further the purposes of the Courts as may be created, subject to
amendment or abolishment, by the Judiciary Committee through adoption of
their plans of operation.
Adult and juvenile PPS services were combined when PPS field offices
were established in the district courts. The Standard Operating
procedures drafted by the Chief Probation Officer and approved by the
Chief Justice, General Order No. SOP 91-1-AJ0001, effective April 15,
1992 and amended December 21, 1992, provides in part:
IV (B) … Navajo probation and parole
field services shall be established by districts. Each district court of
the Navajo Nation will have a combined Adult PPS and Juvenile Probation
Office, with assigned personnel to meet the public need.
Juvenile Probation
9
N.N.C. § 1152(A)(3) and 1152(B)(3) respectively provide that an
adjudicated delinquent child and a child in need of supervision may be
placed “on probation under such conditions and limitations as the Court
may prescribe.”
Adult Probation and Parole
Authority to sentence adults to probation and parole, with conditions,
is found in various sections of the Code and in the Navajo Rules of
Criminal Procedure including those set forth below.
17
N.N.C. § 220(B) provides:
The
Court may suspend the imposition of sentence of a person who has been
convicted of a crime, may order him or her to be committed in lieu of
sentence to a hospital or other institution for medical, psychiatric or
other rehabilitative treatment, or may sentence him or her as follows:
1.
To pay a fine;
2.
To be placed on probation;
3.
To imprisonment for a definite
period within the term authorized;
4.
To fine and probation or fine and
imprisonment;
5.
To community service;
6.
To pay restitution or nályééh.
17
N.N.C. § 224 provides:
The
Court shall have the discretion in any case except where prohibited by
statute to suspend all or part of an offender’s sentence and release the
defendant on probation. The offender shall sign a probationary pledge,
the conditions and limitations of which shall be set forth by the court.
17
N.N.C. § 1818 provides:
A. The Court of the Navajo Nation
may in its discretion suspend any sentence imposed and allow the
offender his or her freedom on probation upon his or her signing a
pledge of good conduct during the period of the sentence upon the form
provided therefore.
B. Any person who shall violate
his or her probation pledge shall be required to serve the original
sentence.
. . .
D. Individuals who are convicted
of any offense may be sentenced to a term of probation not to exceed two
years and individuals convicted of multiple offenses may be sentenced to
a term of probation not to exceed five years.
17
N.N.C. § 1819 provides:
A. Any person committed by a Court
of the Navajo Nation who shall have without misconduct served one-half
the sentence imposed by such a court may be eligible to parole. Parole
shall be granted only by a judge of the Court of the Navajo Nation where
the prisoner was convicted after hearing of the issue and upon the
signing of the form provided therefor. The Court shall file findings of
fact and conclusions of law stating its reasons for granting or denying
parole.
B. Any person who shall violate
any of the provisions of such parole shall be punished by being required
to serve the whole of the original sentence.
Rule 52(a) and (b) of the Navajo Rules of Criminal Procedure provides
that after conviction, and prior to actual incarceration, the defendant
may be placed on probation as provided by law; and after conviction and
a period of actual incarceration, a defendant may be placed on parole as
provided by law.
Diversion
The
Sentencing Policy of the Navajo Nation Courts and the Navajo Rules of
Criminal Procedure provides that the Court may issue a diversion order,
or the Prosecutor may enter into Deferred Prosecution Agreements with
defendants, at any stage prior to a plea or finding of guilt in order
for the defendant to fulfill certain terms and conditions, after which
the court may dismiss the case without determination of guilt. Such
agreements become part of a diversion order.
Reports
Rule (50(a)(2) Navajo Rules of Criminal Procedure
permits the court to direct that a presentence report be
prepared and submitted to the court by the Probation and Parole Officer.
9
N.N.C. § 1054 authorizes probation officers to make predisposition
studies and submit reports and recommendations to the Court.
Provision 2.6 of the Uniform Sentencing Policy permits the sentencing
court to receive reports from a probation and parole officer regarding
violations of conditions and bring the defendant before the court to
address them.
D. Merging of Probation and Peacemaking Functions; Promotion of
Rehabilitation; Serving Interests of Victims
17
N.N.C. § 1818(C) provides:
The
Courts of the Navajo Nation may establish a program to merge the
functions of probation and peace making to promote the rehabilitation of
offenders and serve the interest of victims and the program may charge
participants reasonable fee or assessment for serious services and
expend such funds for probation and peace making functions.
Recommending Sentences and Determining Nályééh
Peacemakers may be used by the trial court to make a sentencing
recommendation and determine nályééh in criminal cases generally [17
N.N.C. § 221(C)] and in cases involving the sale or possession of
controlled substances specifically [17 N.N.C. § 394(D)]. Courts
may use peacemakers to obtain recommendations regarding sentences or a
diversion plan pursuant to Section 5.4 of the Uniform Sentencing Policy of the
Navajo Nation Courts.
Monitoring Peacemaking Agreements
Under Section 5.9(c) of the Uniform Sentencing Policy, compliance with
Peacemaker agreements may be done by a probation officer with the
consent of the court, or by the peacemaker or any other designated
person. Under Section 5.9(d), the court retains the power to suggest
additional provisions in a peacemaking agreement and ask the defendant
to agree with them. The court may require a probation officer to work
with peacemakers to suggest satisfactory agreement provisions.
E. PPS Authority to Place Regulations to Implement Conditions
Rule 52(c) of the Navajo Rules of Criminal Procedures provides:
The
court may impose conditions on probation/parole to promote as a
priority, education and rehabilitation. In addition, the probation
officer may place regulations on the probation/parole to implement the
conditions imposed by the court and not inconsistent with them. All
conditions and regulations shall be in writing signed by the
probationer/parolee and the probation officer and a copy given to the
probationer/parolee.
PPS
authority to supervise individual offenders flows solely from court
orders. It is useful for all PPS Officers to be aware of differences in
the prosecutorial treatment of Navajo and non-Navajo offenders, which
directly affects whether certain offenders may be sentenced to PPS
supervision.
Navajo Offenders
Adult Navajos who commit offenses in Navajo Indian Country, and Adult
Navajos who commit an offense against another Navajo anywhere, may be
criminally prosecuted in Navajo Nation Courts and may be placed under
PPS supervision.
Juvenile Navajos may be proceeded against in delinquency actions in the
Family Court for curfew violations and any act that would be an offense
under the laws of the Navajo Nation if they were an adult. Any
juvenile Navajo over the age of 15 can be prosecuted in the District
Court for DUI, reckless driving, or for leaving the scene of an accident
causing death or personal injuries.
17
N.N.C. §203 provides:
The
Navajo Nation Courts shall have jurisdiction over any person who commits
an offense by his or her own conduct … within the territorial
jurisdiction of the Navajo Nation Courts as defined in 7 N.N.C. §254, or
such other dependent Indian communities as may hereafter be determined
to be under the jurisdiction of the Navajo Nation and the Courts of the
Navajo Nation.
The
Navajo Nation Courts shall also have jurisdiction over any member of the
Navajo Nation who commits an offense against any other member of the
Navajo Nation wherever the conduct which constitutes the offense
occurs. [Also 7 N.N.C. 253(A)(1)].
(7
N.N.C. § 254(A) provides: “The territorial jurisdiction of the Navajo
Nation shall extend to Navajo Indian Country, defined as all land within
the exterior boundaries of the Navajo Indian Reservation or of the
Eastern Navajo Agency, all land within the limits of dependent Navajo
Indian communities, all Navajo Indian allotments, all land owned in fee
by the Navajo Nation, and all other land held in trust for, owned in fee
by, or leased by the United States to the Navajo Nation or any Band of
Navajo Indians.”)
Adult Non-Indian Offenders
Adult Non-Indians who are not Hadane may not be criminally
prosecuted in Navajo Nation Courts. They may be civilly prosecuted for
crimes, and the judge may impose a limited set of civil penalties which
does not include PPS supervision.
17
N.N.C. §204 provides, in part:
(A) Any non-Indian alleged to have
committed any offense enumerated in (Title 17) may be civilly
prosecuted. In no event shall such a civil prosecution permit
incarceration of a non-Indian or permit the imposition of a criminal
fine against a non-Indian.
(B) Civil penalties. Upon a
finding that a non-Indian has committed any of the offenses enumerated
in (Title 17) the Court may impose … (1) a civil fine … ; (2) … civil
forfeiture … ; … nályééh … ; (4) Exclusion …
As
probation has not been listed as a civil penalty that may be imposed on
non-Indian offenders, PPS presently can play no role in the supervision
of adult non-Indian offenders.
Juvenile Non-Indian Offenders
Delinquency Proceedings. The
Navajo Nation Supreme Court has determined that as long as detention is
not allowed, delinquency jurisdiction over non-Indian juveniles is civil
in nature and, therefore, within the jurisdiction of Navajo Nation
courts. This means that juvenile non-Indian offenders may be sentenced
to probation and, thereby, come under PPS supervision. The Supreme
Court has stated:
Our
Children’s Code, like those of states, classifies juvenile proceedings
as civil. 9 N.N.C. § 1157 … That classification, without more, does not
mean it is truly “civil” in nature … Under general principles of federal
Indian law, as interpreted by this Court, we hold that the Navajo Nation
has civil jurisdiction to adjudicate non-Indian children in a
delinquency proceeding for activity on tribal lands, as long as
detention is not a possible disposition … we hold that under Navajo
statutory law, family courts have delinquency jurisdiction over
non-Indian children.
In the Matter of A.P., 8 Nav.
R. 671 (Nav. Sup. Ct. 2005), pp. 679-680.
Children in Need of Supervision (CHINS).
Non-Indian Juveniles may also be
proceeded against in the Family Courts for any act described in 9 N.N.C.
§ 1002(G) and may be placed under PPS supervision.
Courtesy Supervision Over Transferees
The
authority for PPS to provide courtesy supervision over transfers of
probationers and parolees from one judicial district to another within
the Navajo Nation, and from foreign jurisdictions (i.e. state and
federal) to Navajo Nation jurisdiction, is based on inter-jurisdictional
mutual understanding and SOP No. 91-1-AJ0001, effective April 15, 1992
and amended December 21, 1992.
Tribes and states in the Four Corners are presently pursuing a “Four
Corners Compact” that will formalize tribal-state courtesy supervision.
Hadane
17
N.N.C. §204(C) provides:
Nothing in this section shall be deemed to preclude exercise of criminal
jurisdiction over any person who, by reason of assuming tribal relations
with the Navajo people or being an “in law” or hadane or relative as
defined by Navajo common law, custom, or tradition, submits himself or
herself to the criminal jurisdiction of the Navajo Nation.
Note:
Section 204(C) was enacted following the Navajo Nation Supreme Court’s
opinion in Means v. District Court of the Chinle Judicial District,
7 Nav. R. 382 (1999). In that case, Russell Means, a member of the
Oglala Sioux Nation, sought to dismiss criminal offenses allegedly
committed by him against Navajo relatives by marriage within the Navajo
Nation. The Court held that (1) The Navajo Nation has criminal
jurisdiction over all Indians who enter the Navajo Nation under Article
II of the United States-Navajo Nation Treaty of 1868 under the "set
apart for the use and occupation" language of that article. In addition,
the Navajo Nation has criminal jurisdiction over nonmember Indians under
the "bad men" clause of Article I of the treaty; (2) Individuals who
"assume tribal relations" with Navajos by intermarriage, residence, and
other activities are subject to the criminal jurisdiction of the Navajo
Nation. That includes any individual, regardless of racial or ethnic
membership, who assumes the status of hadane or in-law; and (3) The
assertion of criminal jurisdiction over nonmember Indians violates
neither the "Indian preference legislation" or "racial classification"
doctrines of equal protection of the law.
The
“traditional probation officer” is a Navajo common law concept provided
for in the Uniform Sentencing Policy of the Navajo Nation Courts. It is
that when an offender injures another, the offender’s clan is
responsible to assist with the payment of nályééh and help conclude a
plan by consensus. The family and clan then assume responsibility to
assure future good conduct by the offender.
The Navajo Peacemaking Program can guide
parties to enter into a form of peace bond, using the family and clan as
the guarantors or “traditional probation officers.”
A
“peace bond” is a written promise to keep the peace or refrain from
specified conduct (e.g. assault on a person or a member of that person’s
family; having contact with someone) under penalty of forfeiting money
or property. A peace bond can consist of money paid into court,
property, or the written promise to pay a certain sum of money if the
conditions are violated. The court may require sureties to promise to
make payment if conditions are violated. Payment can be to the Navajo
Nation, a victim, or a program (e.g. a battered woman’s shelter).
PPS
shall provide services as requested, pursuant to rules, protocols, and
guidelines of Judicial Branch pilot programs and programs established
pursuant to 7 NNC 201(C).
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