[Adopted 5-6-1994 by Ord. No. 94-01; amended in its entirety 10-15-2020 by Ord. No.
20-30]
This article shall be titled "Probation and Parole Regulations."
The purpose of this article is to develop procedures consistent
with applicable tribal laws regulating the practice of probation and
parole which is commonly afforded persons who have, through merit
or rehabilitation, shown that they can make meaningful contributions
to society provided certain conditions are maintained.
The jurisdiction of this article shall apply to all persons
subject to the laws of the Menominee Indian Reservation, including
any lands which may hereafter be added to the Reservation under any
law of the United States. This article shall, consistent with applicable
federal law, also extend outside the exterior boundaries of the Reservation
to any persons subject to the laws of the Menominee Indian Tribe which
are, or may hereafter be, included within the jurisdiction of the
Tribe under any law of the United States or of the Tribe.
For the purpose of this article, the following definitions apply:
The Menominee Tribal Court of the Menominee Indian Tribe
of Wisconsin.
The Department of Probation and Parole, and any of its officers
or agents employed thereunder, of the Menominee Indian Tribe of Wisconsin.
A conditional release of a prisoner, generally under the
supervision of the Department, who has served part of the original
term for which he or she was sentenced and contingent upon good behavior.
A determination made by the Department based on evidence
which as a whole shows that the fact sought to be proved is sufficient
or insufficient grounds to request the apprehension and detention
of said probationee/parolee and proceed with a revocation hearing.
Such evidence shall include, but not be limited to, the following:
police records, court records and said person's reporting requirements.
A system of permitting a person convicted of a crime to go
free with a suspended sentence, subject to the supervision of the
Department and contingent upon good behavior.
The Menominee Indian Tribe of Wisconsin, a federally recognized
Indian tribe.
Imposition of probation or parole shall have the effect of placing
the person so named in the custody of the Department and shall subject
the person so named to the control of the Department under conditions
set by the Court, provided that the period of probation or parole
shall not exceed the maximum term of sentence for such offense, subject
to the following provisions:
A.
Probation.
(1)
Where a sentence of imprisonment has been imposed upon a convicted
offender by the Court, the Court may, in its discretion, suspend the
serving of such sentence and release the person on probation. The
Courts shall have the sole discretion to allow probation for multiple
convictions of any offenses to run concurrently or consecutively.
(2)
Any person who violates the terms, conditions, agreements, or pledges
of his or her probation may be required by the Court to serve not
more than 1.5 times the sentence originally imposed minus time already
served. However, such revocation of probation shall not be ordered
without a hearing before the Court, at which time the offender shall
have the opportunity to explain his or her actions, with or without
counsel, at his or her own expense. Signing the Probation and Parole
Rules shall not be a pre-requisite for revocation, as the individual
is under the control of the Department and under conditions set by
the Court at the time of sentencing, and a person may be revoked even
if they have not signed such rules and have violated the same. The
Court may revoke all consecutive or concurrent terms of probation
so that the jail sentences are aggregated into one continuous period.
The Court may not aggregate consecutive or concurrent sentences for
offenses in a single criminal proceeding in which the term of imprisonment
imposed on the defendant is more than 12 months unless the enhanced
sentencing rights required by the Indian Civil Rights Act[1] are provided by the Court.
[1]
Editor's Note: See 25 U.S.C. § 1301 et seq.
B.
Parole. Any person who violates the terms, conditions, agreements,
or pledges of his or her parole may be required by the Court to serve
not more than the sentence originally imposed minus time already served.
However, such revocation of parole shall not be ordered without a
hearing before the Court, at which time the offender shall have the
opportunity to explain his or her actions, with or without counsel
at his or her own expense.
A.
The Tribal Legislature shall have cause to hire one or more persons
to be probation and/or parole officers of which the Menominee Indian
Tribe, pursuant to administrative policy, shall determine the qualifications,
terms of employment, and compensation in accordance with Ordinance
No. 83-6, Personnel Policies and Procedures.[1]
[1]
Editor's Note: The Personnel Policies and Procedures Manual
is on file at the office of the Administrative Manager.
B.
The Department, subject to the supervision of the Chief Justice, pursuant to the administrative structure adopted under Chapter 98, Government Plan, of this Code, shall have the responsibility of assuring the faithful performance of probation or parole terms, conditions, agreements, or pledges by persons subject thereto, referral or counseling such persons and their families, and preparing pre-sentence or such other reports as requested or ordered by the Courts or otherwise required by law.
[Amended 6-16-2022 by Ord. No. 22-26]
A.
Preliminary determination and request for apprehension and detention.
(1)
Upon
a complaint received by the Police Department or from a private citizen
and based upon a preliminary determination that a person has violated
his or her parole or probation, the Department shall put in writing
the alleged violation and state the grounds for revocation of parole
or probation.
(2)
The
Department shall have the authority to issue an apprehension and detention
request to the tribal police directing any police officer of the Menominee
Indian Tribe to take into custody the person(s) so named after a preliminary
determination that a person has violated his or her probation or parole.
(3)
The Department shall provide a copy of any apprehension and detention
request to the Tribal Prosecutor's office and the Courts at the same
time it is issued to the tribal police.
(4)
Upon taking the person so named in the apprehension and detention
request into custody, the tribal police shall immediately notify the
Department, the Tribal Prosecutor's office and the Court of said action.
B.
Revocation hearings.
(1)
The
Department shall compile a statement of facts and forward them to
the Prosecutor's office for prosecution within seven working days,
excluding weekends and federal/tribal holidays, of the apprehension
and detainment of the person(s) so named in the apprehension and detention
request.
(2)
A person held under this section shall be released unless the Tribal
Prosecutor proceeds with the revocation by petitioning the Court within
seven working days after receiving the statement of facts, excluding
weekends and federal/tribal holidays.
(3)
The statement of facts shall be filed and served by the designee
of the Tribal Prosecutor along with a notice of hearing and petition.
The hearing shall be set by the Court not less than three nor more
than seven calendar days from the service of notice and petition and
shall be made a matter of record. The person so detained under the
detention order may call witnesses on his or her behalf at the hearing
and have counsel at his or her own expense.
(4)
A person detained under Subsection B(3) above shall not be eligible for release from custody until the conclusion of the probation/parole revocation hearing.
(5)
The Tribal Prosecutor or the Assistant Prosecutor shall be present
at all probation or parole revocation hearings to offer testimony
or evidence as the Court may require.
C.
Order of probation or parole.
(1)
Orders revoking probation or parole shall be executed by the Court
at the conclusion of the revocation hearing. The judgment of the Court
shall be sufficient to authorize the tribal police to receive, confine,
or to release the offender named in such order in accord with the
provisions of such order.
(2)
Such decision and order may be made orally by either party and entered
into the hearing record at the conclusion of the hearing. Record of
the hearing may, by request of counsel, be transcribed and mailed
to all parties within 30 days thereafter.
(3)
Prior to the expiration of any probation period, the Court, for cause
and by order, may extend probation for a stated period or modify the
terms and conditions thereof.
(4)
The Court shall hold a review hearing prior to the expiration date,
unless the hearing is voluntarily waived by the probationer with the
understanding that waiver may result in an extension or revocation
of the probationary period.
(5)
Any of the following may constitute cause for the extension of probation:
(a)
The probationer has not made a good faith effort to discharge
Court-ordered payment obligations.
(b)
The probationer has not satisfied Court-ordered counseling.
(c)
The probationer stipulates to extension of supervision.
(d)
The probationer has not made a good faith effort to complete
Court-ordered community service hours.
(e)
The Court finds that extension would serve the purposes for
which probation was imposed; however, extension shall not exceed the
maximum period of probation time the Court could have imposed for
the particular crime, and the probation may be extended only one time.
Upon notification to the Department, a convicted offender who
is sentenced in tribal or another jurisdiction while serving on probation
or parole under the provisions of this article shall not be credited
with service of his or her sentence under this article for the duration
of custody or commitment.
In calculating the time served pursuant to a probation or parole
sentence, the time shall start from the time period that the subject
of the probation or parole physically presents himself or herself
to the Department and signs required departmental forms.
A.
Violation of a condition is both necessary and sufficient grounds
for revocation of probation/parole. Revocation followed by imprisonment
should not be the disposition, however, unless the Court finds on
the basis of the original offense and the intervening conduct of the
offender that:
(1)
Confinement is necessary to protect the public from further criminal
activity by the offender;
(2)
The offender is in need of correctional treatment which can most
effectively be provided if he or she is confined; or
(3)
It would unduly depreciate the seriousness of the violation if probation
were not revoked.
B.
The following intermediate steps should be considered in every case
as possible alternatives to revocation:
C.
Administrative extension. The Department may, upon the consent of
the individual on probation, administratively extend a probation period
if the probationer has failed to complete all the probationary requirement
imposed by the Court or the Department. The extension shall not exceed
the maximum period of probation time the Court could have imposed
for the particular crime, and the probation may be extended only one
time.
Any offender having been revoked of his or her probation or
parole shall have the right to petition for review of such order after
having served half the time ordered by the Court.
A.
Whether the Department acted within its jurisdiction;
B.
Whether the Department's action was arbitrary, oppressive, or unreasonable
and represented its will and not its judgment; and
C.
Whether the evidence was such that the Department might reasonably
make the preliminary determination in question.
If an order or judgment releasing a prisoner from the tribal
jail on habeas corpus is reversed, the time spent during which he
or she was at liberty thereunder shall not be counted as part of his
or her term.
Where this article imposes greater restrictions than those contained
in other ordinances, the provisions of this article shall govern.
In the interpretation and application of this article, the provisions
of this article shall be held to be minimum requirements and shall
be liberally construed in favor of the Tribe and shall not be deemed
a limitation or repeal of any other tribal power or authority. The
Tribe's sovereign immunity is not waived or affected hereby.
Upon enactment of this article, Section 11.34 and 11.35 of Menominee
Nation Ordinance 79-14 is repealed.
