Muskogee Area Director

Attention: Area Tribal Operations Officer

Approval of Choctaw Nation of Oklahoma Criminal Code

Talihina Agency Superintendent

By memorandum dated January 15, 1922, your office transmitted the Choctaw Nation of Oklahoma Criminal Code to this office for review and approval. Also attached was Council Bill CB-033-92 which was enacted on December 14, 1991, approving the Choctaw Nation Criminal Code by an affirmative vote of ten (10) members and two (2) negative votes and, zero (0) abstaining.

We have reviewed the code and find that it essentially adopts and restates the Oklahoma Criminal Code almost verbatim, although there are differences. We would like to make a few comments on particular sections of the code that the Tribe may wish to consider at a later date.

S 2-48. A provides for assessment and collection of sums in addition to fines to be paid into a Victim's Compensation Fund where defendants are convicted or plead guilty to crimes. 9 2-48.B directs that cash bonds add some amount for the fund. We do not understand how this may be done when a defendant who is posting a bond has neither been convicted nor pled guilty at the time he or she posts a cash appearance bond.

There is no code section dealing with crimes against the elective franchise.

21 O.S. Of 273 and 274, which respectively prohibit buying appointments to office and selling appointments to office, are omitted from the proposed code.

S 26.17.B.2 appears to have unintentionally omitted the following language appearing in 21 O.S. S 845 after the word "welfare"... "includes the child's parents, guardian or other person responsible for the child's health or welfare".

In 3 34.3 the terms "marshall" and "district court" should perhaps be changed to "tribal police" and "appropriate court."

S 31-5. Incest. This section does not define the prohibited degrees of consanguinity.

S 35-24. "ma" at the end of the fourth line from the end should be "may". "....district court of the county" should be changed to read "appropriate court".

Various acts of perpetrators which, depending upon intent and severity, etc., could alternatively be classified as felonies or misdemeanors, are simply classified as "crimes" under the proposed code. This serves to provide the Nation with alternative courses of action. For example, First Degree Murder, Second Degree Murder and manslaughter are all listed, but all are simply classified as a crime. Maiming and simple battery, respectively a felony and a misdemeanor, are both simply classified as a crime. To resolve any possible misunderstanding the code's drafter included provisions of S 11-5 which state: "...the provisions of this are not intended to supplant the provisions of the Major Crimes Act, U.S.C. 11 1153, nor shall they be interpreted to divest the United States of any jurisdiction it possesses pursuant to said Act". Should the United States Attorney refuse to prosecute a particular act committed, the Nation would be able to do so under its code, although it would be prosecuted only an a misdemeanor.

The Nation may wish to define "penal institution" in its code.

The Nation may wish to further define "intent" in S 41-4 which speaks to AIDS transmission.

The heading for S 1-4. Objects of Penal should perhaps be changed to read "0bjects of Penal Code".

The language of S 2-8. should perhaps be changed to read: " ...And the party may be indicted and tried in an appropriate court of the Choctaw Nation if such a letter is either mailed or received within the jurisdiction of the Choctaw Nation

We question whether the Choctaw Nation has the authority to suspend the Civil Rights of a prisioner enumerated in s 2-20. We would not recommend disapproval of the entire code because of this inclusion, as it met ultimately stand upon its own when tested, but we would recommend that the Nation be advised of the potential invalidity of some parts of this section.

The phrase "outlawry for treason" should perhaps be ommitted in S 2-18.

In S 2-38. "are" should be substituted for "is".

To be valid laws of the Choctaw Nation SS 40-1. through 40-4.and S4-31, which deal with intoxicating beverages, must comply with the procedures and substantive rules set out in 18 U.S.C. 9 1161 which states:

The provisions of Section 1154, 1156, 3113, 3488, and 3669 of this title, shall not apply within any area that is not Indian Country, nor to any act or transaction within any area of Indian Country provided such act or transaction occurs is in conformity both sith the laws of the State in which such action occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian Country, certified by the Secretary of the Interior, and published in the Federal Register (emphasis added).

The Muskogee Area Office will need to assist the Nation in perfecting the required Federal Register publication.

S 40-4. adequately deals with narcotics and dangerous drugs by making any act committed in the, Choctaw Nation a crime that is prohibited under the 0klahoma Uniform Controlled Dangerous Substances Act, Section 2-101 et. seq., of Title 63 Oklahoma Statutes.

We find no insurmountable problem with the section on Wildlife and Game, although it is probable that there will be future challenge to some provisions. When and if such challenges occur, we would hope to assist the Nation in upholding its right to legislate in this area, as the need arises.

We find no legal reason to disapprove the Choctaw Nation's Criminal Code, although we feel that the tribe should consider the above comments. We are therefore approving the attached Criminal Code. Please provide these comments to the Tribe and notify them of this approval. If you have any questions,, please feel free to contact Ms. Karen Ketcher, Tribal Operations Specialist, at FTS 736-2312.

DENNIS C. SPRINGWATER

KKETCHER:bjb:2/28/92
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