Submitted by Cherokee Tribal Court
In September 2019, Tribal Council passed Chapter 58 of the Cherokee Code relating to bondsmen, bail bonds, and forfeiture. This was the first codification of laws related to these areas. This new Chapter 58 created the ability for the Clerk of the Cherokee Court to regulate bondsmen and runners through application, license, and discipline through suspension, revocation, or non-renewal of licenses. Additionally, this new chapter granted the Court the ability to enter forfeitures when a defendant released on bond fails to appear before the Court as required.
Bondsman License
Chapter 58 sets out eight criteria that must be met to be a licensed bondsman in the jurisdiction of the EBCI:
- Hold a valid bondsman license from the North Carolina Department of Insurance
- Be a resident of the state of North Carolina for a minimum of 24 months
- Complete a license application on the forms supplied by the Clerk of the Cherokee Court
- Pay the non-refundable license fee of $100.00
- Submit to a North Carolina, federal, and criminal background search
- Provide the entire disciplinary history, with all documentation as applicable, regarding the applicant’s license as a bondsman in North Carolina and any other jurisdiction
- Allow the Clerk continued and complete access to the applicant’s disciplinary history in North Carolina and any other jurisdiction in which the applicant holds a bondsman license, and
- Complete an acknowledgement and release allowing applicants disciplinary history to be shared with the North Carolina Department of Insurance
Licenses issued by the Clerk are effective for two years from the date of issuance. Each licensed bondsman is assigned a unique identifying number and a photo ID that identifies them as bail bondsman licensed by the Tribal Court.
A licensed bondsman may utilize a runner. A runner is a person employed by a bondsman for the purpose of the assisting the bondsman in presenting the defendant to court when required, assisting in the apprehension and surrender of a defendant to the court, keeping the defendant under necessary surveillance, or executing bonds on behalf of the bondsman when the person is listed on the bondsman license. A runner is subject to the same requirements as a bondsman and are required to carry and display their identification issued by the Clerk when acting within the scope of the license.
A licensed bondsman can face discipline for any of the twenty-five reasons set forth in Cherokee Code Section 58-8. This is initiated by the Clerk and requires a hearing before the Court. This can result in the suspension or revocation of a license.
Bond Forfeiture
The Tribal Court has jurisdiction over forfeiture of bail bonds issued in the court. If a defendant who was released upon execution of a bail bond fails on any occasion to appear before the Court as required, the Court shall enter a forfeiture for that bail bond against the defendant and each surety on the bond.
Once the court enters the order for forfeiture it can only be set aside if:
- The defendant is deceased
- The defendant was in the custody of law enforcement or government entity at the time the Court entered an order for the defendant’s arrest
- The order for defendant’s arrest was stricken
- The defendant was arrested pursuant to the Court’s order for arrest
- Each case against the defendant for the bail bond was executed was dismissed, or
- The defendant was surrendered by the surety
If the forfeiture is not set aside and no motions to set aside are pending, the Court will enter a final judgment and the judgment must be paid within 120 days or the bondsman’s license shall be revoked.
Arrest for purpose of surrender
In December 2021, Tribal Council made a change related to arrest for purpose of surrender. An amendment was made to this section that allows for arrest for the purpose of surrender to be made by an officer of the Cherokee Indian Police Department or a licensed and approved bondsman. An arrest for purpose of surrender can occur when the Court enters a forfeiture, or the bail agreement is breached.
A bail agreement can be considered breached if a defendant:
- Fails to pay the premium or make a premium payment
- Changes his or her residence without first notifying the bondsman
- Physically hides from the bondsman
- Leaves Cherokee trust land without the permission of the bondsman
- Violates any order of the Court
- Fails to provide information or provides false information regarding any failure to appear in a court, any previous convictions in the last ten years, or any charges pending in any court; or
- Knowingly provides the bondsman with incorrect personal identification or uses a false name or alias
This means that when a forfeiture is issued or if the defendant breaches the bail agreement, they may be arrested for the purpose of surrender by a bondsman licensed by the Clerk. It is not required that an officer of the Cherokee Indian Police Department escort the bondsman or be present at the time of the arrest.
The Tribal Court has worked in partnership with the Cherokee Indian Police Department, the Attorney General’s Office, and the North Carolina Department of Insurance to monitor the licensed bondsmen, ensure their compliance with the Cherokee Code, and to make amendments to the law that help improve the system. Additionally, since April 1, 2021, the Tribal Court has issued licenses to six bondsmen, conducted one disciplinary hearing, and issued forfeitures on thirty-three bonds for defendants who failed to appear before the court as required.
