[HISTORY: Adopted by the Legislature of the
Menominee Indian Tribe 2-4-2016 by Ord. No. 15-38. Amendments noted where applicable.]
The Menominee Indian Tribe of Wisconsin, recognizing the fact
that all victims of crime should be treated with dignity, respect,
and sensitivity, enact this chapter for the purpose of providing basic
rights and protections to victims of crime on the Menominee Indian
Reservation that are no less vigorous than the protections afforded
criminal defendants.
This chapter shall be entitled "Victim Rights."
For the purpose of this chapter, the following terms shall have
the meaning indicated:
A professional primarily employed, either through a government
agency or nonprofit agency, to assist victims of crime.
The alleged perpetrator of a criminal act.
Any member of the Menominee Tribal Police Department, Menominee
Tribal Conservation Warden, or other bona-fide peace officer acting
within his or her official capacity.
All property except weapons involved in the commission of
the crime, currency, contraband, or disputed ownership items (unless
otherwise determined by the court).
Any court proceeding or administrative hearing that is open
to the public.
Any of the following: any person who suffers direct or threatened
physical, emotional or financial harm as the result of the commission
or attempted commission of a crime, as defined under the laws of the
Menominee Indian Tribe. Does not include the person charged with or
who is culpable for the crime being investigated or prosecuted. If
a victim is under 18 years of age, incompetent, incapacitated, or
deceased, the victim can be represented by (in order of preference):
a spouse, legal guardian, parent, child, sibling or another family
member.
Any one of the following: a minor victim, any victim age 55 and over with physical disabilities, a victim who has mental health disabilities and/or meets the definition of "adult at risk" in § 368-17, and/or whomever the Court determines falls under this category.
A victim has the rights and is eligible for the services outlined
in this chapter if the crime has been reported to a law enforcement
officer or if disclosure of a crime is imminent. Services to crime
victims should be rendered in accordance with the existing policy.
A crime victim has the following fundamental rights:
A.Â
The right to attend court hearings.
(1)Â
To attend all public proceedings at which a defendant has the right
to be present, including, but not limited to, initial appearances,
motion hearings, trials, sentencing hearings and probation/parole
hearings.
(2)Â
To be accompanied by an advocate at all proceedings at which a defendant
has the right to be present as outlined above.
(3)Â
To not be excluded from any such public court proceeding, unless
the court, after receiving clear and convincing evidence, determines
that testimony by the victim would be materially altered if the victim
heard other testimony at that proceeding.
(4)Â
To have proceedings free from unreasonable delay.
B.Â
The right to reasonable protection.
(1)Â
To be provided a waiting area separate from the defendant(s), defendant's
relatives and defense witnesses.
(2)Â
To have the prosecutor move that the victim not be compelled to identify
in his testimony his/her address, place of employment or other personal
identification.
(3)Â
To have the prosecutor, in the case of minors and/or vulnerable victims,
move to have closed-circuit testimony or close the courtroom to the
general public.
(4)Â
To be notified, as soon as is reasonable, of the escape or release
of a defendant from the tribal jail.
C.Â
The right to be heard.
(1)Â
To be reasonably heard at any public proceeding, involving release,
plea, or sentencing.
(2)Â
To have the opportunity to confer with the prosecution with regard
to major case decisions (e.g., dismissal of charges, release of the
accused, possible plea agreements).
(3)Â
To provide to the court verbal and/or written victim impact statements
and recommendations pertaining to the sentencing of convicted offender(s).
(4)Â
To have his/her interest considered at probation, parole, and/or
other criminal justice proceedings, including but not limited to revocation
hearings.
D.Â
The right to be informed.
(1)Â
To be notified of the arrest of the accused.
(2)Â
To be notified of major prosecutorial decisions, including the decision
not to file charges.
(3)Â
To be notified of public hearings and/or court proceedings, including
changes in charges, dismissal of charges, and release from incarceration
for any reason.
(4)Â
To be notified of prisoner escape or release from tribal jail as
quickly as possible.
(5)Â
To be notified, as soon as reasonable, if any department listed in § 535-6 has been notified of the escape or release of a defendant from an outside jurisdiction.
(7)Â
To be notified of rights and procedures outlined in this chapter.
(8)Â
To be informed of financial assistance and other social services
available as a result of being a victim of crime.
(9)Â
To be notified of any or all appeals by defendant(s).
(10)Â
The Court will make known that the failure to provide a right,
privilege, or notice to a victim under this chapter shall not be grounds
for the defendant(s) to seek to have the conviction set aside or have
a retrial.
E.Â
The right to compensation and restitution.
(1)Â
To have personal property promptly returned by law enforcement officers
when no longer needed as evidence.
(2)Â
To have the Court, if possible, authorize a photograph of the property
item to be used as evidence to expedite the prompt return of property.
(3)Â
To restitution that covers out-of-pocket expenses relating to the
crime, including medical expenses, therapy costs, prescription charges,
lost wages, counseling costs, lost or damaged property, insurance
deductibles, and/or any other expenses that resulted directly from
the crime.
(4)Â
To a judgment for unpaid restitution.
(5)Â
To be informed of benefits from the tribal, state or federal programs.
(6)Â
To have restitution payments deducted from the defendant's annual
per capita and/or tribal distribution payments in accordance with
the payment capture hierarchy established by ordinance authorizing
the per capita or tribal distribution.
A.Â
The Menominee Tribal Police Department, Crime Victims Program, Menominee
Tribal Prosecutor's Office, Menominee Tribal Court, local social
service agencies, Menominee Tribal Jail, and Menominee Probation and
Parole Department shall all cooperate with each other to ensure, through
the best efforts possible, that victims of crimes receive the rights
and services outlined in this chapter.
B.Â
The Tribal Police Department will be responsible for providing victims
information about services and rights within 24 hours of initial contact
with the victim.
Nothing in this chapter shall be construed as creating a cause
of action for money damages against the Tribe, county or state, or
any of their agencies or employees.
The failure to provide a right, privilege or notice under this
chapter shall not be grounds for the defendant to seek to have the
conviction, sentence set aside, or retrial.
A.Â
The Court shall assess a convicted defendant at sentencing a penalty
fee in the amount of $25 for crimes where there are victims. All fees
ordered and collected per this section shall be deposited into a Crime
Victim Assistance Fund, to be used for the sole purpose of victim
assistance and compensation.
B.Â
The Crime Victim Assistance Fund shall be created and funded by the
fees described above.
A.Â
Policies and procedures. No later than 120 days after the effective date of this chapter, the director(s) of the tribal departments listed in § 535-6 shall promulgate policies and procedures to enforce the rights of crime victims and to ensure compliance by responsible employees with the obligations described in this chapter respecting crime victims.
B.Â
Contents. The policies and procedures promulgated under Subsection A shall:
(1)Â
Designate an administrative authority within the department to receive
and investigate complaints relating to the provision or violations
of the rights of crime victims;
(2)Â
Require training be created for initial implementation of the policies
and procedures regarding crime victim's rights;
(3)Â
Require additional training for employees that fail to comply with
provisions of this chapter pertaining to the treatment of crime victims,
and otherwise assist such employees in responding more effectively
to the needs of the crime victims;
(4)Â
Contain disciplinary sanctions per Section E, Standard of Conduct,
in the Tribe's Personnel Policies and Procedures Manual,[1] including suspension or termination from employment, for
employees who willfully or wantonly fail to comply with provisions
of this chapter pertaining to the treatment of crime victims; and
[1]
Editor's Note: The Personnel Policies and Procedures
Manual is on file at the Chairperson's Office, Department of
Administration and Human Resources Department.
(5)Â
Provide a notice process for complainants on the departmental complaint
process, or if no such departmental complaint process exists, to the
Tribe's General Complaint Policy.
If any portion of this chapter is found to be unconstitutional
or in violation of tribal or applicable federal law, the remainder
of this chapter shall remain in effect.
This chapter shall take effect upon final approval by the Menominee
Tribal Legislature.