YUROK TRIBE EXCLUSION ORDINANCE

Transcription

1 Yurok Tribal Code, Public Health and Safety YUROK TRIBE EXCLUSION ORDINANCE Pursuant to its authority under Article IV, Section 5 of the Yurok Constitution, as ratified on November 19, 1993, and the Yurok Tribal Council, as the duly elected and authorized governing body of the Yurok Tribe, hereby enacts the following ordinance to provide for the exclusion of persons and/or entities from Tribal affairs and/or Tribal Territory under appropriate circumstances in order to further the constitutional objectives of providing for the health, education, economy, and social wellbeing of our members and future members and insuring peace, harmony, and protection of individual human rights among our members and among others who may come within the jurisdiction of our tribal government. Pursuant to Article IX of the Yurok Constitution, the Tribe shall not deprive any person within its jurisdiction of the rights reflected in the Indian Civil Rights Act, 25 U.S.C. section 1301 et seq. TABLE OF CONTENTS GENERAL PROVISIONS... 2 SECTION Short Title... 2 SECTION Findings... 2 SECTION Purpose... 3 SECTION Scope... 3 SECTION Sovereign Immunity... 3 SECTION Severability... 3 SECTION Effective Date... 3 SECTION Definitions... 3 CHAPTER 1. GROUNDS FOR EXCLUSION... 4 SECTION Grounds for Exclusion... 4 CHAPTER 2. EXCLUSION PROCEEDINGS... 5 SECTION Request for Exclusion Action... 5 SECTION Council Review of Request... 5 SECTION Notice Requirements... 5 SECTION Exclusions Hearing... 5 SECTION Council Order... 6 Yurok Exclusion Ordinance _v7_Pub Hearing 1

2 SECTION Votes Required for Exclusion... 7 SECTION Exclusion Term... 7 SECTION Exclusion Order... 7 SECTION Emergency Temporary Exclusion... 7 CHAPTER 3. ENFORCEMENT... 8 SECTION Violation of Order... 8 CHAPTER 4. APPEAL PROCEEDINGS AND REMEDIAL ACTIONS... 8 SECTION Council Decision Is Final... 8 SECTION Remedial Actions... 8 SECTION Appeal... 8 GENERAL PROVISIONS SECTION Short Title This ordinance shall be known as the Yurok Tribe Exclusion Ordinance. SECTION Findings Tribal Council finds and declares that: The Yurok Constitution Article IV, Section 5 authorizes the Council to provide for the exclusion of persons and/or entities from Tribal affairs and/or Tribal Territory under appropriate circumstances ; The Yurok Constitution Article IX provides that the Tribe shall not deprive any person within its jurisdiction of the rights reflected in the Indian Civil Rights Act, 25 USC SECTION 1301 et seq. ; The Indian Civil Rights Act provides that [n]o Indian tribe in exercising powers of self-government shall... deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law... [or] pass any bill of attainder ; Exclusion is a traditional Yurok cultural remedy; Exclusion is an extraordinary power of Tribal Council and should only be used to address the most serious behavioral breaches; and Exclusion of an individual shall be used as a last resort, after other means of resolution have been exhausted, or if the person s conduct is an egregious offense to Yurok community standards. Yurok Exclusion Ordinance _v7_Pub Hearing 2

3 SECTION Purpose Council wishes to enact an ordinance governing exclusion of persons, both Indian and non- Indian, from the Yurok Reservation for the purpose of protecting the territory and health and safety of people within the jurisdiction of the Yurok Tribe. Commentary: This ordinance uses the term exclusion to include exclusion of non-indians and non-member Indians and banishment of a Tribal member from the Yurok Reservation. SECTION Scope This ordinance and Council s power to exclude shall apply to all persons on all lands within the Yurok Reservation, except Council shall not exclude anyone from traveling through the Reservation upon U.S. Highway 101 or on California Highway 96. Commentary: This ordinance authorizes Council to assert Tribal jurisdiction to exclude any and all persons, no matter whether that person is a Tribal member, non-member Indian, or non-indian, from the Yurok Reservation to the fullest extent permitted under Tribal and federal law. Recognizing the geographic realities of the Reservation, any person otherwise excluded from the Reservation may travel on U.S. Highway 101 and California Highway 96 for the sole purpose of passing through the Reservation, but that person is not authorized to stop or remain in the Reservation for any reason. SECTION Sovereign Immunity Except to the extent that this ordinance provides for judicial review by the Yurok Tribal Court and in accordance with the Yurok Tribe s Supreme Ordinance, nothing in this ordinance shall be interpreted as a waiver of the Tribe s sovereign immunity from unconsented lawsuit, or as authorization for a claim for monetary damages against the Tribe. SECTION Severability If any provision of this ordinance or its application to any person or circumstance is held invalid, the remainder of this ordinance or its application to other persons or circumstances shall not be affected, and to this end, the provisions of this ordinance are severable. SECTION Effective Date This ordinance shall have immediate effect upon adoption by the Council. SECTION Definitions Council means the Yurok Tribal Council, the governing body of the Tribe pursuant to Article IV, Section 5 of the Yurok Constitution. Court means the Yurok Tribal Court, established under the Yurok Tribe Judicial Branch Ordinance. Department of Public Safety means the Yurok Tribe Department of Public Safety, or any subsequent Tribal department or agency with primary law Yurok Exclusion Ordinance _v7_Pub Hearing 3

4 (g) enforcement responsibilities for the Tribe. Exclusion means prohibiting or conditioning entry of a person on the Yurok Reservation and includes exclusion of a non-indian or non-member as well as banishment of a Tribal member. Reservation means the Yurok Reservation. Serious Felony means any crime listed under California Penal Code Section and , or equivalent crimes under a tribal, state, or federal law. Tribe means the Yurok Tribe, a federally recognized tribe. CHAPTER 1. SECTION GROUNDS FOR EXCLUSION Grounds for Exclusion A person may be excluded from the Reservation and all areas under the jurisdiction of Council for any of the following reasons: (g) (h) (i) Repeated invasion of the privacy of Tribal members or Reservation residents as evidenced by restraining orders against that person by three or more Tribal members, the Tribe, or Reservation residents. Conviction within the previous three-year period of felony domestic violence or multiple domestic violence offenses that involve physical injury or sexual assault. Conviction within the previous seven-year period of a serious felony, including arson, murder, rape, assault with a deadly weapon, or a sexual offense against a minor. Illegal controlled substance production, manufacture, trafficking, distribution or cultivation, including the cultivation of more than 99 marijuana plants within the Reservation. Repeated or especially serious illegal damage to the property or natural resources of the Tribe, including land clearing, timber harvesting, and water quality impacts. Repeated unauthorized entry onto Tribal or individual land, including for such purposes as the production or cultivation of an illegal controlled substance. Conviction of crimes committed on or off reservation related to grave looting. Exclusion from a neighboring reservation for offenses stated herein. Any other misconduct or objectionable condition that threatens the life, health, safety, or property of a Tribal member, a Reservation resident, or the Tribe and is found by the Tribal Court or Council to be sufficient cause for expulsion, so long as the person is first advised of the objection and given Yurok Exclusion Ordinance _v7_Pub Hearing 4

5 notice to desist but nevertheless continues the misconduct or condition. CHAPTER 2. SECTION EXCLUSION PROCEEDINGS Request for Exclusion Action An exclusion action under this ordinance may be sought from the Council by: SECTION Any member of the Council, The Chief Judge of the Tribal Court, The Chief of the Department of Public Safety, or The Office of the Tribal Attorney. Council Review of Request Council shall review any request for exclusion to determine if sufficient cause exists to proceed with exclusion proceedings. Upon a majority vote by a quorum of Council that sufficient cause exists to initiate exclusion proceedings, Council shall direct the Department of Public Safety or the Office of the Tribal Attorney to serve notice upon the person subject to the request for exclusion action. SECTION Notice Requirements Notice shall comply with the following requirements: (g) SECTION Be by personal service, or by first class mail, return receipt requested, to the person s last known address. If notice is by mail, then service shall be deemed complete upon the date of the return receipt. Be served no later than 10 days prior to the hearing date. State the date, time, and location of the hearing before Council at which exclusion shall be sought. State the grounds for an exclusion order, including a brief summary of facts which serve as the basis for the proposed exclusion. State the areas for which exclusion is sought. Name any witnesses to be called in support of the proposed exclusion order. Inform the person of the right to be represented by private counsel, to present evidence and witnesses, and to cross-examine adverse witnesses. Exclusions Hearing After proper notice has been served, the Yurok Tribal Court shall hold a hearing to make a recommendation to the Council whether the person should be excluded from the Reservation. Yurok Exclusion Ordinance _v7_Pub Hearing 5

6 (g) SECTION If the person after notice does not appear at the hearing at the time and place scheduled, the Court may recommend that the Council enter a default order to exclude such person. The hearing shall be recorded, but need not comply with formal rules of evidence. The Office of the Tribal Attorney shall establish the basis for the proposed exclusion action by presenting evidence, including any witness testimony. The person subject to the proposed exclusion or that person s attorney may cross-examine each witness. After the Office of Tribal Attorney presents the case for exclusion, the person subject to the proposed exclusion or that person s attorney may present evidence or call witnesses to oppose the exclusion. The Court maintains discretion to direct questions to either side relative to the proposed exclusion. Within one week of the conclusion of the hearing, the Court shall issue proposed findings of fact, conclusions of law, and recommendation to Council as to whether the person should be excluded. If the Tribal Court recommends exclusion, the Court shall specify the proposed length of time of exclusion, areas of exclusion, and what conditions, if any, should be instituted. If the Tribal Court does not recommend exclusion, the Court shall specify what conditions, if any, should be instituted should the person be permitted to remain on the Reservation. The Court shall transfer its recommendation and the record of the proceedings to the Council. Council Order The Council shall receive and review the Court s recommendation at its next regularly scheduled meeting, or at a special meeting called by Council for such purpose. The Council may issue an order: (1) Adopting the Court s findings and recommendation, (2) Modifying or rejecting the Court s findings and recommendation, (3) Remanding to the Court with instructions for further consideration, or (4) Based on substantial evidence in the record, making its own findings and specifying terms of exclusion or conditions, if any, that shall be instituted to permit the person to remain on the Reservation. Council shall conduct its review of the Court s recommendation in open session, unless the person subject to the proposed exclusion requests the Council conduct the review in closed session. The person subject to the proposed exclusion shall be given the opportunity to testify during Council s review. The person shall be deemed to be authorized to remain on the Reservation Yurok Exclusion Ordinance _v7_Pub Hearing 6

7 SECTION until Council issues an order excluding or conditioning the person s presence within the Reservation. Votes Required for Exclusion An order to exclude any person from the Yurok Reservation shall be considered a major action. In accordance with the Yurok Constitution Article IV, Section 5, a major action requires approval by at least five members of the Yurok Tribal Council, including a vote by the Tribal Chairperson if needed. SECTION Exclusion Term Council maintains discretion to exclude persons from the Yurok Reservation for limited periods of time, indefinite periods of time, or permanently. SECTION Exclusion Order SECTION An exclusion order must state the effective date of the exclusion, the time period of exclusion, and the reason for the exclusion. If Council issues an order to exclude the person, then the Chairperson shall deliver the exclusion order to the Department of Public Safety. If, after the effective date specified in the order, the person does not comply with the order, the Department of Public Safety shall be authorized to remove and exclude such person from the Reservation using only as much force as is reasonable and necessary to effect the removal. If an exclusion order requires the immediate removal of a person from the Reservation, the Chairperson shall direct the Department of Public Safety to remove and exclude such person from the Reservation using only as much force is as reasonable and necessary to effect the removal. Emergency Temporary Exclusion In cases involving immediate danger to the political integrity, the economic security, or the health or welfare of the Tribe, Tribal members, or Reservation residents and where delay may result in irreparable harm, the Chairperson, or the Vice Chairperson if the Chairperson is unavailable, shall review any request for exclusion to determine if sufficient cause exists to proceed with exclusion. If the Chairperson, or the Vice Chairperson if the Chairperson is unavailable, determines that sufficient cause exists to exclude the person due to immediate danger and threat of irreparable damage, the Chairperson shall direct the Department of Public Safety to remove such person from the Reservation using only as much force is as reasonable and necessary to effect the removal. The Department of Public Safety shall serve notice upon the person at the time of, or as soon as is practicable after, the person s removal. Once the person is removed, exclusion proceedings shall be conducted in conformance with the provisions of this chapter. Yurok Exclusion Ordinance _v7_Pub Hearing 7

8 The person shall be permitted to enter the Reservation in the company of a Department of Public Safety officer as necessary to effectively participate in such exclusion proceedings. CHAPTER 3. SECTION ENFORCEMENT Violation of Order Any person who violates an exclusion order, or an order specifying certain conditions permitting the person to remain within the Reservation, may be found guilty of a separate civil offense or have privileges under Tribal law and the Tribal Fishing Rights Ordinance suspended. Each day that a person violates an exclusion order shall constitute a separate offense. The person shall be subject to a fine of not less than $500 and not more than $5,000 upon each violation, with costs, and ordered to comply with the order issued by the Council. CHAPTER 4. SECTION APPEAL PROCEEDINGS AND REMEDIAL ACTIONS Council Decision Is Final Upon proper notice and hearing, all exclusion orders of the Council shall be final and shall not be subject to review or modification, except at the discretion of the Council. SECTION Remedial Actions Council recognizes that a person previously issued an order under this ordinance may subsequently reform his or her behavior sufficient to permit re-integration with the Reservation community. A person appealing an order under this ordinance shall have the burden of demonstrating a real and substantial change in behavior justifying modification or dissolution of an order. SECTION Appeal Any person against whom an order has been issued under this ordinance may appeal the Council order no more than once every six months by petitioning the Council in writing for modification or dissolution of such an order. Council at its discretion may schedule a hearing to review the petition, but any such hearing is not required to conform to the requirements of this ordinance. Council at its discretion and with the approval of at least five members may modify or dissolve an order issued under this ordinance. Yurok Exclusion Ordinance _v7_Pub Hearing 8