Ordinances of the Elk Valley Rancheria, California
Last amended: 2002
ORDINANCE NO. 01-12
AN ORDINANCE OF THE TRIBAL COUNCIL OF THE ELK VALLEY RANCHERIA ADOPTING AND ADDING A NEW CHAPTER 9.52 TO THE ELK VALLEY TRIBAL CODE ENTITLED "EXCLUSION OF PERSONS FROM THE RESERVATION".
The Tribal Council of the Elk Valley Rancheria ("Tribe") of the Elk Valley Rancheria or Indian Reservation ("Reservation") hereby ordains as follows.
Section 1. Findings and Declarations. The Tribal Council for the Tribe finds and declares that:
1. The United States presently does not own any land within or outside of the present boundaries of the Reservation in trust for the Tribe, which comprises approximately 450 acres of land. The majority of lands on the Reservation are unoccupied.
2. The Tribe is in the process of conveying various parcels of land to the United States to be held in trust for the Tribe. Many of these parcels are undeveloped.
3. Far too often non-tribal members will enter these tribal lands without the consent of the Tribe or the United States in direct violation of both state and federal law.
4. Once these lands are taken into trust by the United States, the tribe's use of the federal courts to remove these individuals from these tribal lands will be expensive and take months because the federal courts are not equipped to process trespass and ejectment actions.
5. The Tribal Council finds and declares that these conditions are detrimental to the physical well being of its members, cause damage to real and personal tribal property and will deplete scarce tribal revenues.
6. The Tribal Council finds and declares that these conditions justify extraordinary measures to prevent these trends; ensure that possession of Tribal lands remains with the Tribe and to preserve order, safety, tranquility and stability on all tribal lands now and in the future.
Section 2. Adoption of New Chapter 9.52 to the Elk Valley Tribal Code Entitled: "Exclusion of Persons from Tribal Lands". A new Chapter 9.52 entitled "Exclusion of Persons from Tribal Lands" is hereby added to the Elk Valley Tribal Code and shall provide as follows:
9.52.10 Exclusion of persons from Tribal Lands.
9.52.20 Order of exclusion, grounds.
9.52.30 Order of exclusion, procedure.
9.52.40 Order of exclusion--minors.
9.52.50 Notice of order of exclusion.
9.52.60 Tribal Enforcement officials.
9.52.70 Sovereign immunity.
9.52.10. Exclusion of persons from Tribal lands.
a. It is unlawful and constitutes a violation of this Ordinance for any person to enter or remain upon any portion of any land owned by the Tribe, if they have been excluded from said lands by order of the Tribal Council and they have been personally served with a notice to show cause under Section 9.52.30(a) or 9.52.40 and failed to attend the noticed hearing or, if they attended the hearing, they have been personally served with the order excluding them.
b. It is unlawful and constitutes a violation of this Ordinance for any lessee or assignee of Tribal land or owner or tenant of housing located on any Tribal land to allow a person excluded from Tribal land under this Chapter to enter, occupy or remain upon or within their lease, assignment, home or rental unit, after notice of exclusion has been given as provided in Section 9.52.50.
9.52.20. Order of exclusion, grounds. The Tribal Council shall have the authority to issue an order under this Chapter, excluding a person from any lands owned by the Tribe, regardless of whether the land is owned by the United States of America in trust for the Tribe, for a specified period of time or permanently. It may issue such an order to any person who:
1. Has occupied tribal land without the consent of the United States of America, if the property is owned by the United States in trust for the Tribe or the Tribe.
2. As demonstrated by past conduct, constitutes a threat to the peace and quiet or personal safety of persons who live and work on the Reservation or tribal land or an unreasonable risk of injury or damage to or loss of property located on the Reservation, or tribal land.
3. Has committed any of the following acts on the Reservation or any tribal land:
a. Trespassed on tribal land.
b. Cut down trees.
c. Defaced tribal signs.
d. Dumped or disposed of litter, garbage, rubbish, refuse or solid wastes on tribal land.
e. Remained in possession of tribal land after expiration of a lease or tribal land assignment.
f. Discharged pollutants or toxic waste.
g. Damaged any cultural site.
h. Damaged, disrupted, destroyed any grave site.
i. Pointed a gun, whether loaded or unloaded, at any person in a threatening manner.
j. Willfully damaged any house or mobile home. Threatened, stocked or harassed any tribal officer, agent or employee.
k. Violated any order of exclusion issued under this Chapter.
9.52.30. Order of exclusion, procedure. The Tribal Council shall issue orders under Section 9.52.20 above, using the following procedure:
a. Notice of Violation. Whenever the Tribal Council has reason to believe that a person is subject to an order under Section 9.52.20 above for any of the reasons stated in Section 9.52.20, it shall issue a notice ("Notice to Show Cause") to that person ("the defendant") in the form and containing the information set forth in Form 0.1 attached hereto and incorporated herein.
The Notice to Show Cause shall be personally served. Any person over the age of 18 may serve the notice by handing it to the person ("Defendant") who would be the subject of the order of exclusion. Thereafter, the person serving the notice shall complete a certification of personal service on a form approved by the Tribal Council for that purpose and shall file it with the Secretary of the Tribal Council prior to the hearing.
b. Pre-Exclusion Hearing.
1. The hearing on the Notice to Show Cause shall be conducted at a regular or special meeting of the Tribal Council at which a quorum is present. All action shall be taken based on an affirmative vote of the majority of those Council members present. The Defendant shall have the right to appear and be represented by a person of his or her choice. The hearing shall be conducted informally and in confidence, excluding the general public, except for witnesses called by the Defendant or the Tribal Council and the Defendant's representative, if any. The Defendant must provide the Tribal Council with a mailing address and may present the testimony of witnesses, produce documents and provide any explanation or argument he or she believes is appropriate.
2. After the Defendant has presented his/her case, the Tribal Council may deliberate in closed or executive session. It shall announce its decision with the Defendant present and shall serve him/her with an order in the form and containing the statements set forth in Form 0.2, which is attached hereto and incorporated herein. The Tribal Council may issue the Order contained in Form 0.2, if the Defendant fails to appear at the hearing. In that event, the Tribal Council may mail the Order to the Defendant, if he/she has a mailing address for him or her. If not, the Tribal Council shall be required to give only the notice provided in Section 9.52.50. 3. If the Notice to Show Cause is discharged after hearing, subject to conditions, the order of exclusion shall be automatically reinstated if the Defendant violates any condition. Notice of reinstatement may be given by mail to the address provided by the Defendant. The order of exclusion shall become effective twenty-four (24) hours after it is mailed. Thereafter, the Tribal Council shall give the notice provided in Section 9.52.50 and the Defendant shall be entitled to a hearing as provided in Section 9.52.30(c) below.
c. Post-exclusion hearing.
1. Notice. The notice of the post-exclusion hearing shall contain all of the following.
a. The date, time, and location of the hearing.
b. The ground or grounds upon which the Tribal Council relies in excluding the Defendant from the Reservation, including, as attachments, any documents, records or applicable tribal regulations.
c. A statement that the Defendant has the right to examine any documents, records or regulations related to his or her exclusion from the Reservation or any Tribal land which are not attached to the notice, if he or she identifies the documents and requests to inspect them, at least, 5 days prior to the scheduled hearing time.
d. A statement that the Defendant is entitled to be represented at the hearing by another person of his or her choice, including an attorney at law; provided, however, that the Defendant must bear all the costs of his or her representation.
e. A statement that the Tribal Council must present the evidence, including witnesses and documents, it relied upon in issuing the exclusion order. The Defendant is entitled to ask questions of any witnesses who testify at the hearing and to present evidence and make statements on his or her behalf.
f. The Tribal Council, or a hearing officer appointed by the Tribal Council to conduct the hearing, will issue a written decision which may be adopted, modified or reversed by the Tribal Council. If the Tribal Council modifies or reverses the hearing officer's decision, it may conduct a further hearing or rely on the facts found by the hearing officer. The decision of the Tribal Council shall be final.
2. Hearing. Upon the timely receipt of a hearing request, the Tribal Council shall schedule a hearing before the Tribal Council or an impartial hearing officer appointed by the Tribal Council.
a. If a hearing officer is appointed, he or she should be trained to conduct hearings and prepare written decisions after hearing. The hearing officer must not have had any involvement in the decision to exclude the Defendant from the Reservation or Tribal land. The hearing officer shall issue written recommended decisions which make findings of fact and set forth the legal and factual basis for his or her decision. The hearing officer shall immediately transmit his or her recommended decision to the Tribal Council.
b. If the Tribal Council uses a hearing officer, it shall adopt, modify or reverse the hearing officer's decision within seven (7) days after it receives it. The recommended decision shall be sent to the Defendant as the Tribal Council's final decision, if it adopts the decision as proposed or fails to act within the said seven (7) days. If the Tribal Council determines to modify or reverse the decision, it may adopt the findings of fact proposed by the hearing officer or it may conduct such further hearings in the matter as it deems necessary or appropriate. If it conducts a further hearing, it shall provide the Defendant not less than seven (7) days prior written notice of the date, time and place of the hearing. The Tribal Council shall serve its final written decision on the Defendant by mail.
c. The Tribal Council or hearing officer, if one is appointed, shall conduct the hearing in accordance with the following rules and any additional procedures adopted that are not inconsistent with these rules and promote the fair and efficient resolution of the dispute.
(1) The party requesting the hearing shall have the following rights:
(a) The opportunity prior to the hearing to examine and copy, at his or her expense, any records, documents or regulations that relate to the decision, which he or she identifies with reasonable specificity at least 5 days prior to the hearing.
(b) The right to be represented, at his or her own expense, by a person of his or her choice.
(c) The right to exclude from the hearing any person, other than the hearing officer and his or her assistants, who is not testifying or presenting evidence in support of the decision.
(d) The right to present witnesses or documents and to make arguments in support of his or her position, and to question all witnesses testifying at the hearing.
(2) The hearing shall be conducted informally and the technical rules of evidence shall not apply, but the Tribal Council or hearing officer may exclude evidence that is inherently unreliable, irrelevant or unduly prejudicial. All witnesses shall swear or affirm to tell the truth before testifying.
(3) If the Defendant fails to appear at the hearing, the Tribal Council or hearing officer may continue the hearing for not more than five (5) days or determine that the defendant has waived his or her right to a hearing. The Tribal Council or hearing officer shall provide timely notice of his or her decision to the Defendant.
(4) At the hearing, the Defendant must first make a showing that he or she should not be excluded from Tribal land or the Reservation for the reasons stated in the Notice of Hearing. A representative appointed by the Tribal Council shall present evidence supporting the order of exclusion.
(5) The Tribal Council or hearing officer must base its decision on the evidence presented during the hearing and applicable Tribal law.
9.52.40. Order of Exclusion Minors. In the case of persons under the age of 18, the Tribal Council shall personally serve a Notice to Show Cause in the form and containing the statements set forth on Form 0.3, which is incorporated herein by reference, on both the Defendant and his or her parent, legal guardian or person in apparent charge of the minor (collectively, "parent or parents"). The parent shall have the same rights as the minor to notice and to participate in the pre- or post-exclusion hearing.
Among other issues, at the hearing the Tribal Council will endeavor to determine if a suitable placement for the minor exists off of Tribal land or outside the boundaries of the Reservation. If a suitable placement does not exist, and it determines that the minor should be excluded, it shall exclude both the minor and his or her parent or parents.
After the hearing, the Tribal Council shall issue the order specified in Form 0.4, which is attached hereto and incorporated herein.
9.52.50. Notice of Order of Exclusion.
1. Upon the issuance of an Order After Hearing, as described in Section 9.52.30(b) or 9.52.40, excluding a person from Tribal land or the Reservation, the Tribal Council shall give public notice of the order and any subsequent discharge of the order, by the following means:
a. By posting the notice for a period of five days at the tribal office and any house or structure located on any expired leasehold, assigned or unassigned tribal lands occupied or used by the person to be excluded. The Tribal Council may establish signs at the entrance to the tribal land or Reservation stating: "Entrance Prohibited to Persons Excluded by Order of the Tribal Council. No Trespassing by Such Persons. Prohibited Entry Subject to Criminal Penalties. (Cal. Penal Code §602.)"
b. By mailing notice to the person to be excluded if their mailing address is known.
c. By mailing notice to the Del Norte County Sheriff's Department and the Bureau of Indian Affairs.
2. The notice shall be in the form and contain the statements set forth in Form 0.5, attached hereto and incorporated herein.
3. After the issuance of the notice provided in this Section 9.52.50, the Tribal Council shall not rent any housing under its management and/or lease or assign any tribal land to a person excluded from Tribal land or the Reservation under this Ordinance or to any person who violates Section 9.52.10(b) of this Ordinance, and, in the event the person has a valid lease or assignment, shall terminate the lease and/or assignment with and take all steps legally required to evict or eject any such person.
9.52.60. Tribal Enforcement Officials.
1. The Tribal Council shall appoint such number of tribal enforcement officials as it deems necessary to enforce the provisions of this Ordinance.
2. Such appointed officials shall carry such identification and wear such uniforms as the Tribal Council determines necessary to adequately identify the officials to members of the general public.
3. Such officials shall receive such compensation and training as the Tribal Council determines necessary to enable the officials to carry out the duties assigned to them in a safe, professional and efficient manner.
4. Such officials shall have the following duties and authority:
a. To escort persons subject to exclusion orders to a location off of Tribal land or outside the boundaries of the Reservation, using only as much force as is reasonably necessary for such exclusion.
b. To take custody of the possessions of a person who is subject to an order of exclusion and remove those possessions to a location off of Tribal land or outside the boundaries of the Reservation or to store the possessions at the person's expense. In removing possessions, the official shall exercise ordinary and reasonable care to avoid damage to the possessions, while they are in his or her custody.
c. To restrain a person, exercising such restraint as is reasonable for his or her arrest and detention, pending transfer of the person to the custody of a County Sheriff or other state or federal peace officer.
d. Such officials shall not carry or use fire arms or other weapons unless or until the Tribal Council establishes specific training in their proper use and authorizes their use in a separate tribal ordinance.
5. At the direction of the Tribal Council, the tribal enforcement officials shall enforce tribal exclusion orders by removing the person excluded and their possessions from Tribal land or the Reservation or storing the possessions at the person's expense.
6. If the possessions are stored, the tribal enforcement official shall prepare an inventory of the items and mail a notice to the defendant that he or she may recover possession of the property upon payment of seizure and storage costs. If the defendant fails to retake possession of the items within 15 days of the date notice is mailed, the enforcement officials may sell or otherwise dispose of the property in accordance with the procedures set forth in any abandoned property ordinance adopted by the Tribe or in accordance with applicable law. They shall mail the proceeds from the sale of the property to the Defendant, after first deducting the costs of seizure, storage and sale.
9.52.70. Sovereign Immunity. Nothing in this Ordinance is intended to waive the tribal sovereign immunity enjoyed by the Tribe or its officials acting within the course and scope of their office or as a consent to suit. In carrying out the provisions of this Ordinance, tribal officers and employees are immune from suit.
The foregoing Ordinance was adopted at a regular meeting of the Elk valley Tribal Council held on the 17th day of October, 2001, by the following vote:
Dale A. Miller
Chairman of the Tribal Council
Tribal Council Secretary
November 2, 2001
Ordinances of the Elk Valley Rancheria, California