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Yurok Tribal Ordinances

CULTURAL RESOURCES PROTECTION ORDINANCE

 

Section 1. Authority

(A) This Ordinance is issued by the authority of the Yurok Tribal Council as provided by the

Constitution of the Yurok Tribe.

 

Section 2. Purpose

(A) Whereas the Tribal Council is authorized by Article IV of the Constitution of the Yurok

Tribe "to preserve and promote our culture, language, and religious beliefs and practices,

and pass them on to our children, our grandchildren, and to their children and

grandchildren, on and on, forever;" and

(B) Whereas the Tribal Council wishes to fulfill and balance the preservation, promotion, and

protection of cultural resources without regulating Yurok ceremonies and traditional

practices;

(C) Now, therefore, be it resolved that the following ordinance governing the protection of

cultural resources is hereby enacted and shall be effective upon the date of approval by

the Tribal Council.

 

Section 3: Findings and Declarations

(A) The Tribe finds and declares that it wishes to protect cultural resources and to establish

a systematic process to implement that protection.

(B) The Tribal Council has directed various tribal departments and committees to preserve,

promote, and protect cultural resources. In tum, the cultural resource missions of the

various tribal departments and committees with cultural resource functions is to carry out

the Yurok tribe's commitment to preserve, archive, protect, document, restore, return,

re-inter and promote the culture, heritage, language, and religion of the Yurok people.

(C) Therefore, the Tribal Council adopts this Cultural Resources Protection Ordinance to

protect and promote the political integrity, economic security, health, safety and welfare

of the Tribe, its members, and all persons living on or passing through the Yurok

Reservation; and to protect and preserve the environment, lands, culture and resources of

the Tribe, wherever those resources may exist.

 

Section 4: Definitions

(A) "Advisor to Court" refers to a person the Court may seek to appoint to help the Court

reach a disposition in each case that is consistent with the purposes of this ordinance

and with the Yurok cultural imperatives.

(B) "Ancestral Lands" refers to the indigenous territory of the Yurok Tribe as described in

Article I Section I of the Constitution of the Yurok Tribe.

(C) "Complainant" refers to any individual, including but not necessarily limited to the

Tribe, who submits a claim of violation under this Ordinance pursuant to Section 6, any

rules or regulations promulgated pursuant thereto, or any conditions of an issued

permit, in accordance with the procedures set out in Section 7.

(D) "Cultural Resources" is used herein to include:

(i) Traditional Cultural Properties - defined as a place of importance because of an

association with cultural practices or beliefs rooted in a living community and are

important in maintaining and continuing the cultural identity of the community.

(ii) Districts - defined as a grouping of traditional cultural properties, sites, buildings

structures, or objects that are linked historically, aesthetically, or traditionally by

function, theme, physical development or by plan. The properties within a district are

usually contiguous, but noncontiguous districts are possible.

(iii) Sites - defined as a location of a significant event or of historical or traditional

human occupation or activity, including burials.

(iv) Ceremonial Site - defined as a location where a traditional Yurok ceremony is

conducted, either collectively or individually.

(v) Buildings - defined as a structure constructed principally to shelter any kind of

human activity.

(vi) Structures - defined as a functional construction which does not primarily shelter

human activity.

(vii) Objects - defined as a construction with primarily artistic or functional value,

and can be small and/or simply constructed. While objects can be moveable,

they are primarily associated with a spatial setting or specific function.

(viii) Cultural items - defined as including associated and unassociated

funerary objects and human remains, sacred objects, and objects of cultural patrimony.

(E) "Inadvertent Discovery" refers to the unanticipated encounter or detection of human

remains, funerary objects, sacred objects, or objects of cultural patrimony found under

or on the surface of the ground.

(F) "Person(s)" refers to any Indian or non-Indian individual, corporation, firm,

partnership, joint venture, association, social club, estate, and trust, as well as the

United States, Tribe, State, county, city, district, municipality, other political

subdivision of any state, or any other group or combination acting as a unit, in

addition to associated staff.

(G) "Reservation" refers to all land, minerals, vegetation, air, and water located within the

exterior boundaries of the Yurok Reservation.

(H) "Respondent" refers to any person subject to a claim of violation by a complainant or

found in violation of this Ordinance.

(I) "Tribal Council" refers to the governing body of the Yurok Tribe under the authority of

the Constitution of the Yurok Tribe.

(J) "Tribe" refers to the Yurok Tribe, a federally-recognized sovereign nation, except as

used in subparagraph F.

(K) "Violation" refers to any alleged or detennined infringement of this Ordinance.

(L) "Yurok ceremonial practitioners" refers to any person of Yurok affiliation engaging in

or demonstrating knowledge of traditional Yurok ceremonial practices.

(M) "Yurok cultural practitioners" refers to any person ofYurok affiliation engaging in or

demonstrating knowledge of traditional Yurok cultural practices

(N) "Yurok Tribal Member" or "Tribal Member" refers to any individual identified by the

Yurok Tribe Enrollment Department as being a certified, enrolled member of the

Yurok Tribe according to Article II Section I of the Constitution of the Yurok Tribe.

 

Section 5. Scope and Jurisdiction

(A) Any person(s) who enters onto the Yurok Reservation shall be subject to this

Ordinance and shall be deemed to have consented to the jurisdiction of the Tribe and

to be bound by the lawful ordinances of the Tribe.

(B) The applicability of this Ordinance shall extend to all person(s) who engage in the

activities described in Section 6, or that violate Section 7 or any other

section of this ordinance as applicable, which are governed by this Ordinance.

(C) This Ordinance does not attempt to regulate traditional and/or ceremonial activities,

including:

(i) Conducting ceremonies and the maintenance of access to traditional ceremonial

sites by known Yurok ceremonial practitioners;

(ii) Visitation, internment, brushing, and maintenance of cemeteries by persons

affiliated with a particular cemetery, or their designee(s);

(iii) Restoration, rehabilitation, and construction of traditional buildings by Yurok

cultural practitioners and their designees;

(iv) Reburial or reinterment of cultural resources inadvertently discovered, per

Yurok traditional methods, except when resources are exposed through grounddisturbing

activities; and

(v) Traditional gathering activities by Yurok cultural practitioners.

 

Section 6. Prohibited Activities

(A) No person shall violate any provision of this Ordinance or any rule or regulation

adopted pursuant to this Ordinance. Such violations may include failure to obtain a

permit when required and not complying with Section 9 in the event of an inadvertent

discovery.

(B) No person shall damage, deface, destroy, desecrate, remove, excavate, or otherwise

disturb cultural resources or conduct activities with the potential to damage, deface,

destroy, desecrate, remove, excavate, or otherwise disturb cultural resources without a

valid Cultural Resources Management permit issued by the Yurok Tribal Council.

(C) No person shall violate any condition of a permit, including:

(i) Failing to respond to directives given by enforcement personnel pursuant to this

ordinance.

(ii) Willful exposure, destruction, or removal of any cultural resources within the

Yurok Reservation.

(iii) Knowingly making false statements during, or after, an inquiry by Yurok Tribal

Council and Yurok Tribal Police or aid, abet or conspire with a person to evade the

provisions of this Ordinance.

(iv) Engaging in a regulated activity in a faulty, careless or negligent mauner.

(v) Using fraud or misrepresentation in making an application for, or for renewal of, a

permit.

 

Section 7. Cultural Resource Management Permits

(A) A Cultural Resource Management Permit will be required prior to conducting any

ground-disturbing activities, as well as other activities which have the potential to

damage, deface, destroy, desecrate, remove, excavate, or otherwise disturb cultural

resources within the jurisdiction outlined in Section 5.

(B) Persons who meet the exemptions identified in Section 5(C) are not required to obtain a

permit under this ordinance.

(C) The Yurok Tribal Council has the sole authority to issue Cultural Resource Management

Permits per this Ordinance under the advisement of staff and committee members

outlined in Section 9.

(D) Any permit issued under this Ordinance must conform to the following requirements:

(i) All permit holders must comply with any and all conditions applied to a permit,

this may include that activities can only be conducted while a Tribal cultural monitor

is present and/or following a Tribal cultural resources survey.

(ii) Changes in scope of a project or undertaking will require a reassessment of the

permit and its conditions and may require issuance of a superseding permit.

(iii) Permits shall only be issued to persons 18 years of age or older unless there is

written consent from a parent or guardian.

(iv) The length of applicability for pennits shall be at the discretion of the Yurok Tribal

Council and shall be reasonable based upon the purpose of the permit.

(v) No permit shall be issued to applicants that have been cited for violations of this

Ordinance when it is detemlined by the Tribal Council that such violations indicate the

applicant could pose a threat to the cultural integrity of the Reservation.

 

Section 8. Inadvertent Discovery

(A) Any person who, during the course of any activity, discovers cultural resources including

but not necessarily limited to human remains and funerary objects shall immediately,

follow the Yurok tribe's Inadvertent Discovery Protocol and Procedures.

 

Section 9. Roles and Responsibilities

(A) The Yurok Tribe Cultural Resource Programs work to promote and protect all Yurok

cultural resources throughout Yurok Ancestral Lands. The following describes the

tribe's cultural resource programs and their functions:

(i) The Tribal Archaeologist documents and records site damage, conducts field

surveys, and performs research for compliance studies under the National Historic

Preservation Act.

(ii) The NAGPRA Coordinator is responsible for managing

inadvertent discoveries, intentional excavations, repatriation and disposition

negotiations and transfers of cultural items and all other related functions under the

Native American Graves Protection and Repatriation Act (NAGPRA).

(iii) The Tribal Heritage Preservation Officer is responsible for dealing with cultural

resources, particularly those eligible for or on the National Register of Historic

Places, consultation for cultural resources within Ancestral Lands, concurrence for

projects requiring Section 106 of the National Historic Preservation Act, and

authorizing Tribal cultural monitors, as well as for maintaining a Tribal Register of

Historic Places and managing the Tribal Inventory for the Yurok Reservation.

(B) The Tribal Archaeologist, NAGPRA Coordinator, and the Tribal Heritage

Preservation Officer have a role in ensuring this Ordinance is complied with, as well

as gathering and providing pertinent infonnation to the Tribal Council for permit

issuance and to the Tribal Police and may act as an Advisor to Court as requested.

(C) There are two Committees of knowledgeable elders and community members that

serve as an advisory capacity to staff and the Tribal Council for the purpose of

cultural resources protection.

(i) The Culture Committee serves in two advisory functions. The primary function is

to advise the Tribal Heritage Preservation Officer under Section 106 of the National

Historic Preservation Act per the Memorandum of Understanding between the Yurok

Tribe and the National Park Service. The second function is as an advisory body to

the Yurok Tribal Council, enabled by approved bylaws as adopted by the Tribal

Council.

(ii) The Native American Graves Protection and Repatriation Act

(NAGPRA) Committee serves

as an advisory group to the Yurok Tribal Council. This Committee is enabled by

their approved bylaws as adopted by the Tribal Council to advise the Tribal Council

on all matters involving repatriation, disposition, reburial, excavation, legal and

illegal removal of human remains, funerary objects, and cultural items of the Yurok

Tribe and members, as well as matters involving repatriation from museums or

Federal agencies.

 

Section 10. Mitigation and Abatement

(A) Any person who damages, defaces, destroys, desecrates, removes, excavates, or

otherwise disturbs cultural resources of the Tribe shall be liable for all costs

and actions associated with, or necessary to abate and/or mitigate effects to the cultural

integrity of the Tribe; and restore the property or landscape to the condition as it existed

immediately prior to the damage as determined by the Yurok Tribal Court.

 

Section 11. Enforcement

(A) Claims of violations may be investigated by the Yurok Tribal Police, in collaboration

with the Tribal Archaeologist, NAGPRA Coordinator, and the Tribal

Heritage Preservation Officer.

(B) Yurok Tribal Police Officers may issue citations to any person believed to have

committed a violation of this Ordinance.

(C) Any person who violates this Ordinance may be subject to prosecution before the Yurok

Tribal Court.

 

Section 12. Civil Penalties

(A) Any person violating the terms of this Ordinance within the Yurok Reservation is subject

to a civil fine in an amount not to exceed five thousand dollars ($5,000) for each cultural

resource or for each day in which the violation occurs. Violation of human remains, is a

mandatory minimum fine of five thousand dollars ($5,000).

(B) If a pennit provision is not complied with by the permit holder, in addition to monetary

fines defined in subparagraph A, the civil penalty of suspension, revocation, non-renewal,

or denial of the permit, as well as denial of any and all future permits may be applied.

 

(C) In determining the type and amount of the penalty and/or fine, the Yurok Tribal Court

shall consider the appropriateness of such fine and/or penalty in light of the gravity of the

violation, any effects on cultural resources and the environment resulting from the

violation and the economic conditions of the person charged, with the exception of

human remains, which is a mandatory minimum $5,000 fine. To guide the assessment of

fines, the following matrix of mandatory minimum fines shall be consulted:

 

Violation

Minor impact to a cultural resource, inadvertent

Minor impact to a cultural resource

Moderate impact to a cultural resource, inadvertent

Moderate impact to a cultural resource

Theft and/or removal of a cultural resource, non-human items

Severe impact to a cultural resource, inadvertent

Severe impact to a cultural resource

Violations involving human remains

 

Fine

$100

$200

$300

$500

$1,000

$1,000

$5,000

$5,000

(D) In assessing penalties or fines, the Yurok Tribal Court may assign community service

in addition to or in lieu of fines payment. In no case will the amount of community

service calculated at the Tribal minimum wage be greater than the allowable fines

appropriate to the violation.

(E) Fines and community service described under this Section are wholly separate from

Mitigation and Abatement described in Section 10.

(F) The Court may also impose the sanction of banishment for a Tribal Member for a

period to be determined by the Court or exclusion of a non-Tribal Member for period

to be determined by the Court. Such orders will be consistent with the gravity of the

offense(s).

 

Section 13. Civil Damages and/or Injunctive Actions

(A) In the event that any person, as a result of a violation of this Ordinance, should

proximately cause any physical damage to any other person(s) residing within, or to

any real or personal property situated in, the Yurok Reservation, the Yurok Tribal

Councilor the person(s) adversely affected shall have the right to seek monetary

and/or injunctive relief in the Yurok Tribal Court.

 

Section 14. Cultural Resource Protection Fund

(A) Any fines or administrative fees collected by the Tribe pursuant to this Ordinance

shall be deposited with the Tribe to be credited to the Cultural Resources Protection

Fund.

(B) The Cultural Resources Protection Fund shall be used for expenses related to

protecting cultural resources within Yurok Ancestral Lands, subject to the Yurok

Tribal Council budget review process.

 

Section 15. Confidentiality

(A) The Tribe shall withhold from the public information about the location, character, or

ownership of cultural resources if the Tribe determines that disclosure may cause a

significant invasion of privacy; risk harm to cultural resources; or impede the use of a

traditional or ceremonial site by practitioners.

 

Section 16. Severability

(A) If any provision of this Ordinance, or the application thereof to any person or

circumstance, is held invalid, its invalidity does not affect other provisions or

applications of this Ordinance and to this end the provisions of this Ordinance are

severable.

 

Section 17. Sovereign Immunity

(A) The sovereign immunity of the Tribe is in no manner waived by this Ordinance or by

any action by the Tribal Councilor staff of the Tribe acting pursuant to this

Ordinance.

 

Section 18. Amendments

(A) This Ordinance may be amended at any time by the Tribal Council.

CERTIFICATION

Approved this 9 th Day of September, 2009.

M~i~h"~

Cynthia McKernan

Recording Secretary

Yurok Tribe Cultural Resources Protection Ordinance
Council Approved 9-9-2009

 

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