CHAPTER 15 - EXCLUSION ORDINANCE

Transcription

1 Revised Law and Order Code of the Fort McDowell Yavapai Nation, Arizona Adopted by Resolution No. Ft. McD , effective December 21, 2004 and amended by Resolution No. Ft. McD. 2014, effective. CHAPTER 15 - EXCLUSION ORDINANCE [HISTORICAL NOTE: This Chapter adopted by Resolution No , effective August 29, 2000.] By virtue of the authority vested in the Fort McDowell Yavapai Nation ("Nation") Tribal Council ( Tribal Council ) by Article V, Section 13(A)(14) of the Constitution of the Fort McDowell Yavapai Nation ( Nation ), the Tribal Council hereby enacts this Exclusion Oordinance ( Ordinance ) providing for the removal or exclusion of nnon-mmembers from the Nation whose presence may be detrimental to the peace, health, morals or welfare of the National and/or who violate tribal laws or ordinances. Sec PERSONS SUBJECT TO REMOVAL OR EXCLUSION. A. Any person, not an enrolled member of the Fort McDowell Yavapai Nation, may be removed or excluded from the Fort McDowell Indian Reservation unation upon the grounds stated and in the manner provided in this Oordinance with the exceptions contained in Section B. B. The provisions of this Oordinance shall not apply to: 1. Non-mMembers who are currently authorized by federal or tribal law to enter upon lands owned, leased or otherwise controlled by the Fort McDowell Yavapai Nation or individual members thereof. 2. Non-Mmembers who are traveling through the ReservationNation upon federal or state highways within the exterior boundaries of the Fort McDowell Indian ReservationNation. Sec GROUNDS FOR REMOVAL OR EXCLUSION. A. Interference with the administration, operation and processes of the ttribal government or tribal enterprises as authorized by the Constitution of the Fort McDowell Yavapai Nation. B. Commission of criminal offenses classified as a felony in the State of Arizona or a misdemeanor involving injury or damages or threats to persons or property in violation of ffederal, sstate or ttribal law, regardless of whether such offense has been expunged or otherwise forgiven. 1

2 C. Engaging in tortiuous conduct in violation of ffederal, sstate or ttribal law or that tortiuous conduct would be a violation of state law had the conduct occurred off the Nationreservation. D. Engaging in activities causing or resulting in breach of the peace, public unrest or other disruption of the peace, health, morals or welfare of the Nation. E. Engaging in exploratory, investigatory or other analytical activities involving, in any manner, ttribal natural resources without prior permission of the Nation. F. Solicitation for business, religious, or charitable purposes without prior permission of the Nation. G. Interference with tribal ceremonies without consent of the tribal members involved. Under this subsection the meaning of the term "interference" shall include but is not limited to intrusion upon, disruption of, photographing, taping or other duplication of cultural and/or ceremonial activities. H. Establishing or attempting to establish upon any land or entering upon any land, either tribal or individually assigned on the Nation, without first obtaining the consent of the Nation. I. Failure to register as a convicted sex offender with the Fort McDowell Police Department within seventy-two (72) hours of residing within the exterior boundaries of the reservation. For the purpose of this subsection, a person convicted of a sex offense must register with the Fort McDowell Police Department if required to register under A.R.S and 42 U.S.C and shall provide their name, age, current residential address, fingerprints, current photograph, and conviction information. Failure to register shall be punishable under Section 6-20; shall be referred for criminal prosecution under federal and/or state law as appropriate; and Non-Members shall be immediately removed from the exterior boundary of the reservation. If a Non-Member is removed pursuant to this subsection I, the Exclusion Proceeding set for in Section 15-3 shall apply.failure to register as a sex offender with the Nation s Police Department within three (3) days of establishing residency, employment or education within the Nation. Pursuant to the Fort McDowell Sex Offender Registration Code, a person convicted of a sex offense must register with the Nation s Police Department by providing their name, age, current residential address, fingerprints, current photograph, and conviction information. Failure to register as a convicted sex offender is punishable by tribal, federal and state laws. Non-members are subject to immediate removal from within the exterior boundaries of the Nation. If a non-member exclusion occurs pursuant to Subsection I, the exclusion proceedings pursuant to Section 15-3 shall apply. (Sec. 15-2I was added by Res. No , ) Sec EXCLUSION PROCEEDINGS: NOTICE, HEARING, APPEAL, AND ENFORCEMENT A. Notice. An enrolled tribal member, or a tribal agency, or tribal department or tribal enterprise upon the a written request of a Tribal Memberto the Tribal Council may 2

3 initiate an exclusion proceeding. Upon a determination by either the Fort McDowell Yavapai Nation Tribal Council or the Office of General Counsel Tribal Attorney that cause may exist for the exclusion of a nnon-mmember from the ReservationNation, the Tribal Council shall appoint an Administrative Hearing Officer. The Office of General Counsel Tribal Attorney shall cause notice to be served upon such person stating that proceedings have been initiated to exclude him/her he/she from the Fort McDowell Indian ReservationNation. Notice under this subsection shall: 1. Be by personal service or first classcertified mail with returned receipt regular mail to the nnon-mmember's last known address. In the event of the latter, service shall be deemed complete upon the date of the return receipt. Notice shall be served no later than ten (10) days prior to the hearing date. 2. State specifically the date, time and place of the hearing before an Administrative Hearing Officer appointed by the Tribal Council at which exclusion shall be sought. 3. State the grounds and the areas for which exclusion is sought, including a brief summary of the facts which serve as the basis for the proposed exclusion and the name and addresses of witnesses to be called in support of the proposed action. 4. Inform the nnon-mmember of the right to be represented by private counsel, to present evidence and/or witnesses and to cross-examine adverse witnesses. 5. Inform the nnon-mmember of his/her right to seek a continuance of the hearing date upon a showing of good cause. Provided, however, that the decision to grant a continuance shall in all cases be discretionary with the Administrative Hearing Officer. The term "good cause" as used in this subsection includes but is not limited to illness, incarceration, and undue hardship. B. Hearing. After notice has been served as provided in ssubsection A above, the Administrative Hearing Officer shall hold a hearing to make proposed findings of fact and a proposed recommendation to the Tribal Council whether the nnon-mmember should be excluded from the Nationreservation. The Administrative Hearing Officer shall either be a member of a bar association of any sstate or have at least one year experience as a tribal court judge. The hearing procedures are as follows: 1. If the nnon-mmember, after notice, fails to appear, the Administrative Hearing Officer may in his/her discretion recommend that the Tribal Council enter a default order, indicating its decision to exclude such person, giving the areas and the period of time for which such order shall apply. In the event a default order is entered, a certified copy thereof shall be sent by first certified mail with returned receipt class regular mail to the defaulting party at his/her last known address. 2. The hearing shall be recorded. The enrolled tribal member or Office of General Counsel tribal attorney shall establish the basis for the proposed exclusion action by presenting oral and other tangible evidence. (There shall be no formal rules for witness examination or the presentation of evidence in such proceedings). At the conclusion of the testimony of each witness, the nnon- 3

4 mmember, or if represented by private counsel, his/her attorney may question each witness as to any matter within the scope of the statement given and may challenge the validity or accuracy of any evidence presented. Once the Office of General Counsel tribal attorney presents the case for exclusion, the nnon-mmember, or his/her attorney may call witnesses and present evidence of any nature supporting non-exclusion. That person may direct questions to witnesses produced by the nnon-mmember and may challenge the validity or accuracy of the evidence presented by the nnonmmember or his/her attorney. Throughout the hearing, questions may be directed to either side relative to matters presented by the Administrative Hearing Officer. 3. Within seven (7) working business days following the hearing, the Administrative Hearing Officer shall issue a proposed findings of fact, proposed conclusions of law, and a proposed recommended course of action to the Tribal Council. The Administrative Hearing Officer shall also transfer the record of the proceedings before him/her to the Tribal Council. 4. The Tribal Council shall meet in a closed session for deliberation. In such deliberations the following rules shall apply: i. Each decision shall be based only upon the evidence presented at the hearing. ii. iii. In all cases where permanent or indefinite exclusion is sought or where the proposed ground for exclusion is violation of federal, state or tribal criminal laws and the factual basis therefore is disputed by the Nnon-mMember, the Tribal Council shall find, as a condition to exclusion, that the facts supporting same have been established by clear and convincing evidence. In all other cases of exclusion, the facts supporting a decision to exclude shall be found to existit by a preponderance of the evidence. 5. The Tribal Council may: i. Adopt the findings and recommendations of Administrative Hearing Officer, ii. iii. Remand the case to the Administrative Hearing Officer for further testimony/consideration, or If substantial basis exists in the record, refuse to follow the recommendation by the Administrative Hearing Officer and make the order it deems appropriate. 6. The decision of the Tribal Council is final and is not subject to appeal. C. Enforcement. Failure to promptly comply with the terms of the exclusion order shall result in appropriate enforcement action. Where necessary, and at the direction of 4

5 the Tribal Council, the tribal Nation s ppolice Department shall be directed to carry out the order or exclusion, using reasonable force when required under the circumstances. Sec REMOVAL OF NON-MEMBERS WITHOUT A HEARING. A. Conduct. In circumstances where the presence of a nnon-mmember on the Nationreservation presents: (1) a substantial and immediate threat to the safety and welfare of the Nation as a whole, any individual member thereof of any other person within the exterior boundaries of the rnationeservation or (2) whose presence has caused, or threatens to cause, destruction, injury or other impairment to real or personal property, whether held by the Nation or by an individual, the President, or in his/her absence the Vice President, may order the immediate removal of such person from the Nationreservation. In the absence of either the President or Vice President, any two members of the Tribal Council may order removal under this section. B. Person Effecting Removal. Any police officer of the Nation, or other appropriate police entity at the direction of the Tribal Council may secure the removal of the nnon-mmembers under this section. C. Force. Only the amount of force which is reasonably necessary to secure the removal of the nnon-mmember and to eliminate the threat that is posed shall be used. D. Expedited Hearing. At the time of removal under this section, the non-member person who is subject to removal shall be served with a notice of charges and his/her right to request an expedited hearing. The hearing shall be held within seven (7) business days after the Nation receives his/her request for an expedited hearing. Such request shall be conveyed to the officer in charge of securing removal, whose responsibility it shall be, to notify the Tribal Council and the Office of General Counsel Tribal Attorney of the hearing demand. In the event the person requests an expedited hearing, the officer in charge of securing removal shall inform the individual to contact by telephone the Fort McDowellNation s Chief of Police within forty-eight (48) hours to be informed of the time, date and location of the expedited hearing. The Tribal Council shall, within seven (7) business days after receipt of the request for an expedited hearing, either 1) appoint an Administrative Hearing Officer to hold a hearing, or 2) proceed to hold a hearing before the Tribal Council. The Administrative Hearing Officer or the Tribal Council may order a continuance upon good cause by written request of either: the person subject to removal, the Nation, or the Administrative Hearing Officer. In the event that no expedited hearing is requested, the hearing procedures set forth in Section 15-3 shall apply except that the notice served under this section shall be deemed sufficient provided that it contains the information stated in Section 15-3(A)(2)-(4). (Sec. 15-4D. amended by Res. No , ) Sec PERMANENT SET ASIDE OF EXCLUSION ORDER. A. A non-member that person that has been excluded from the Fort McDowell Yavapai Nation may request the Tribal Council to permanently set aside an exclusion order upon the satisfaction of all of the following: 5

6 1. A time period of at least ten (10) years has passed since the nonmember person was excluded from the Nation; and. 2. There are no reports of trespass, or no convictions of trespass, in violation of the eexclusion oordinance, or the Nation s Law and Order Code in the Nation s Fort McDowell Yavapai Nation Tribal Courts at any time during the time period described in SSection 15-5(A)(1). B. The excluded person non-member must submit a written request to permanently set aside the exclusion order to the Tribal Council. The written request is to contain: 1. The circumstances and grounds for the initial exclusion; 2. If known, the ttribal mmember, tribal department, tribal agency or tribal enterprise that requested the exclusion; and 3. Reasons and specific evidence of why the person feels the exclusion order should be set aside. C. The Tribal Council will consult with the ttribal mmember, tribal department, tribal agency or tribal enterprise, if known, that requested the exclusion. If the ttribal mmember is deceased, the Tribal Council will discuss the request with the ttribal mmember s immediate family. D. The Tribal Council may in its sole discretion: 1. Deny the request to set aside the exclusion order. 2. If the Tribal Council wishes determines to obtain additional information and/or provide permit written comments from a forum for the community to provide evidence regarding the excluded personnonmember, it may initiate an exclusion hearing pursuant to Section 15-3 of this Ordinance. Notice of the hearing will be sent to the excluded personnon-member, the ttribal mmember, tribal department, tribal agency, tribal enterprise and the Office of General Counsel and provided to the ccommunity at least ten (10) days prior to the hearing. 3. Grant the request to set aside the exclusion order. E. In the event the Tribal Council permanently sets aside the exclusion order of the non-tribal member, the rescission becomes effective upon the completion of: 1. The non-tribal Member makes a formal apology to the Tribal Member and/or the Community during a regularly scheduled monthly meeting The non-tribal mmember offers a traditional form of restitution determined by the Tribal Council (i.e. ) and/or a written or apology to the ttribal mmember, tribal department, tribal agency, tribal enterprise and/or the ccommunity during a regular Tribal Council ly scheduled monthly meeting. The Tribal Member, or an immediate family member if the Tribal Member is deceased, or the President in the event the Tribal Member requestor has not been identified, 6

7 signifies his/her acceptance of the apology by accepting the offering of restitution Notice of the rescission is provided to the ccommunity. 4. Community during a regularly scheduled monthly meeting. 5. The non-tribal Member offers a traditional form of restitution (i.e. ) or apology to the Tribal Member, and/or the Community during a regularly scheduled monthly meeting. The Tribal Member, or an immediate family member if the Tribal Member is deceased, or the President in the event the Tribal Member requestor has not been identified, signifies his/her acceptance of the apology by accepting the offering of restitution. 6. Notice of the rescission is provided to the Community. Sec TEMPORARY SET ASIDE OF EXCLUSION ORDER. A. The excluded non-member must submit a written request to the Tribal Council to temporarily set aside the exclusion order. The written request is to contain: 1. The circumstances and grounds for the initial exclusion; 2. If known, the tribal member, tribal department, tribal agency or tribal enterprise that requested the exclusion; 3. Reasons and specific evidence of why the exclusion order should be temporarily set aside; and 4. If any, copies of prior written request(s) for temporary or permanent set aside submitted to the Tribal Council. B. A written request may be based on one (1) or more of the following grounds, but not limited to: 1. Family funeral; 2. Tribal ceremony; or 3. Special events. C. The Tribal Council may consult with the tribal member, tribal department, tribal agency or tribal enterprise, if known, that requested the exclusion. If the tribal member is deceased, the Tribal Council may discuss the request with the tribal member s immediate family. D. The Tribal Council may in its sole discretion: 1. Deny the request to set aside the exclusion order. 2. Grant the request to set aside the exclusion order. E. In the event the Tribal Council temporarily sets aside the exclusion order of the non-member, the rescission is limited and only becomes effective for the time period stated in the written notice issued by the Tribal Council including any and all terms and conditions deemed appropriate by the Tribal Council. (Adopted by Amendment of April 4, 2006.) Sec EXCEPTION FOR COURT ORDERED APPEARANCES. 7

8 A. An excluded non-member may be allowed, under the following conditions, and in response to Nation s Tribal Court summons, subpoena or order to make a limited appearance at the Nation s Tribal Courts for the purpose of appearing at a Nation s Tribal Court hearing referred to in the summons, subpoena or order: 1. The excluded non-member shall appear at the Nation s Tribal Courts no earlier than one half (½) hour before the scheduled hearing or time indicated to appear on the summons, subpoena or order; Formatted: Line spacing: single 2. The excluded non-member shall have a written copy of the summons, subpoena or order with him/her when appearing; 3. Prior to appearing at the Nation s Tribal Court hearing, the excluded non-member shall first sign in at the Nation s Police Department and allow the Police Department to verify summons, subpoena or order. Likewise, once his/her appearance at the Court hearing is concluded, the excluded non-member shall sign out at the Nation s Police Department; 4. Other than traveling directly to and from the Nation s Public Safety Building or another location within the Nation as stated in the summons, subpoena or order, the excluded non-member shall not travel anywhere else within the Nation; and 5. The excluded non-member shall only return to the Nation in accordance with subsequent summons, subpoenas or orders or pursuant to other terms of this ordinance. Sec GENERAL POWERS. Nothing contained in this Oordinance shall be construed as abrogating existing law insofar as injurious conduct is concerned. The provisions of the Oordinance, are ancillary to the powers of arrest, detention or incarceration possessed by the Nation. (Formerly, Section Renumbered by an Amendment of April 4, ) Sec SEVERABILITY. If any provision of this Oordinance or the applicability thereof is held invalid, the remainder of this oordinance shall not be affected thereby. (Adopted by Resolution No. Ft. McD , effective August 29, Formerly, Section Renumbered by an Amendment of April 4, 2006.) 8