Authority

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.

A.  Authorities, Generally

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.

B. Establishment

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.

C. Sentencing Authority – Diversion, Probation and Parole

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:

  1. 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.
  2. Any person who shall violate his or her probation pledge shall be required to serve the original sentence.

             . . .

  1. 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:

  1. 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.
  2. 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.

F.  Authority Over Persons

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.

G. Traditional Probation Officers

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).

H. Probation Services in Judicial Branch Programs

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).