By BROOKLYN BROWN
One Feather Reporter
CHEROKEE, N.C.— On Jan. 4, the Eastern Band of Cherokee Indians (EBCI) Tribal Council approved an ordinance submitted by the Cherokee Police Commission on Nov. 27, 2023, amending the Elder and Vulnerable Adult Protection Criminal Code to create a rebuttable presumption that a defendant charged with certain violent criminal offenses will serve 72 hours in detention prior to release conditions.
Christian Siewers, associate counsel in the (EBCI) Office of the Attorney General, drafted the ordinance for the Police Commission. “The Police Commission spotted a problem based on what they heard out in the community. They discussed a change in the law that would provide the Court with the ability to hold people who are charged with abusing elders on the boundary for a sufficient period of time to help the elders out,” Siewers said.
“They discussed how the domestic violence hold worked pretty well and how it has been a successful tool of the Tribal court for a long time and wondered if the same idea could work to help Tribal elders too. The Attorney General’s office prepared the ordinance language to reflect that. Tribal Council agreed with the Police Commission and thought it was a good idea, so they passed it into Tribal law.”
The amended language reads as follows:
“b(1). No person charged with a crime of Abuse of an elder or vulnerable adult shall be released from detention until after the expiration of 72 hours from arrest, notwithstanding the ability to post a cash or surety bond, unless released by a Magistrate or Judge of the Cherokee Court after a formal release hearing, which hearing shall be held immediately upon the defendant’s first appearance before the Magistrate or Judge of the Cherokee Court, unless for good cause shown, the defendant or the Tribe seeks a continuance. During the 72 hours, it shall be a rebuttable presumption that the defendant poses a risk of violence and/or intimidation to the alleged victim and that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of the alleged victim and the community. In no case shall any person arrested for Abuse of an elder or vulnerable adult be released prior to the expiration of 72 hours from arrest unless the Court has made all reasonable efforts to inform the alleged victim that the defendant’s release is imminent and has been given the alleged victim an opportunity to be heard at the formal release hearing. The Magistrate or Judge may hear from the alleged victim via telephone and may consider any written statement submitted by the victim. At the release hearing, the Magistrate or Judge must review the probable cause supporting the charge of Abuse of an elder or vulnerable adult under this section and determine whether:
- The person poses a credible threat of violence, repeated harassment or bodily injury to the alleged victim or to the victim’s family or household,
- Is a threat to public safety: and
- Is reasonably likely to appear in court.
At the hearing, the defendant has the right to be represented by counsel, and, if financially unable to obtain adequate representation, to have counsel appointed. The person shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing, and the Magistrate or Judge may consider any and all evidence available at the time of the hearing. The facts the judicial officer uses to support a finding that no condition or combination of conditions will reasonably assure appearance of the defendant as required and the safety of the alleged victim or the community shall be supported by clear and convincing evidence. If, after the hearing, the Magistrate of Judge finds that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of the alleged victim or the community, the Magistrate or Judge shall order the detention of the defendant for the remainder of the 72 hours from arrest. Upon such finding the Magistrate or Judge may also order the detention of the defendant pending trial or may order the defendant be released, upon the expiration of 72 hours from arrest, on a condition or combination of release conditions. In making the determination regarding detention required by subsection, the court will consider whether the arrested person’s pattern of violent or threating behavior towards a victim or victim’s family or household member is chronic, and whether the seriousness of the behavior has been escalating, indicating a heightening danger of severe or lethal injury to the alleged victim.”
The ordinance will become effective after ratification by Principal Chief Michell Hicks.
