Oglala Sioux Tribe: Law and Order Code, Ch. 10

Oglala Sioux Tribe: Law and Order Code

Last amended: 1996; New Ordinances Received: 2002.

CHAPTER 10

REMOVAL OF NON-MEMBERS

SECTION 112. REMOVAL OF TRESPASSERS.

All persons hunting, fishing, cutting wood, driving livestock peddling, or doing any commercial business on Trust Indian Allotments without the permission of the owner; or Tribal land on this Reservation without the permission of the Oglala Sioux Tribal Council, may be forcibly ejected from the Pine Ridge Reservation by a police officer, officer of the United States Indian Service, or Tribal police, and may be turned over to the custody of the United States Marshal or Sheriff or other officer of the State of South Dakota or Nebraska, for prosecution under Federal or State law.

Hist: 1937 Code, Ch. 7, Sec. 1; Sec. number changed from Sec. 111 to conform with code numbers.

SECTION 112A REMOVAL OF NON-MEMBERS.

Only the entire Tribal Council, by majority vote, can determine when a state of emergency exists justifying the removal and exclusion of a non-member or person not legally entitled to reside on the Pine Ridge Reservation.

Hist: New Sec. added per Ord. #73-163, dtd. 3/13/73; Rescinded by Res. #77-163 and new words inserted.

ORDINANCE ON TRIBAL REMOVAL AND EXCLUSION OF NONMEMBERS FROM THE PINE RIDGE RESERVATION

(Ord. #73-08, dtd. 11/28/73, and amended by Res. #77-163, dtd. 12/12/77)

SECTION 1. PERSONS SUBJECT TO REMOVAL AND EXCLUSION.

A. Except as otherwise expressly provided in Subsection B of this Section, any non-member of the Oglala Sioux Tribe may be removed and excluded from all or any part of the lands within the exterior boundaries of the Pine Ridge Reservation, for the reasons stated in Section 2, and according to procedures listed in Sections 3 through 7.

B. The provisions of this ordinance may not be invoked to exclude non-members

From lands owned by, or held in trust for, the Oglala Sioux Tribe when such non-members are authorized by Federal treaty, statute or administrative regulations to be present on such Tribal lands; or
From individually owned lands, whether held in trust, restricted or fee patent, when such non-members are present thereon with the consent of the individual owner or owners thereof. Provided, however, that such consent will not bar the exclusion of any non-member from such lands if it is determined, in a proceeding authorized under Section 4, that in addition to violation of one or more of the grounds specified in Section 2, such non-member poses a clear and continuing danger to the health or safety of Tribal members or property which outweighs the particular interest of the non-member in continued presence; or
From access to State highways within the exterior boundaries of the Pine Ridge Reservation, unless it is determined, in a proceeding authorized under Section 4, that in addition to violation of one or more of the grounds specified in Section 2, such non-member poses a clear and continuing danger to the safety of persons or property on such highways which outweighs the particular interest of the non-member using same.

SECTION 2. GROUNDS FOR EXCLUSION.

Non-members of the Oglala Sioux Tribe may be excluded on one or more of the following grounds:

Commission of a crime, as defined by Federal, State, or Tribal law, including violation of State or Tribal traffic regulations.
Unauthorized prospecting.
Unauthorized trading.
Unauthorized mining, timber cutting, or other activity causing physical loss or damage of any nature to property on the Pine Ridge Reservation.
Forcible entry into the home or onto the land of any Tribal member without the consent of the occupant or occupants.
Interference with or photographing of Tribal ceremonies without the permission of the Tribal members involved.
Commission of fraud, confidence games, or usury against Tribal members, or inducing such members into grossly unfavorable contracts of any nature.
Recruiting Tribal members for off-Reservation employment without prior permission of the President of the Tribal Council and the Superintendent.
Defrauding any Tribal member of just compensation for his or her labor or services of any nature done at the request of the non-member.
Breach of the peace or repeated public drunkenness.
Contagious disease.
Entry of an area on the Pine Ridge Reservation in violation of an order of the President of the Tribal Council and the Superintendent, designating such area as closed because of fire hazard or any other reason.
Removal or attempted removal of any Tribal member under the age of eighteen (18) from the Pine Ridge Reservation without prior approval of the Tribal Council, except for the purpose of attending school under a non-sectarian program approved by the Bureau of Indian Affairs. Provided, however, that this ground for exclusion shall not apply in cases where such minor Tribal member is removed from the Pine Ridge Reservation by its adopted parents, or by persons who have received custody of such child pursuant to an order of the Oglala Sioux Tribal Court.
Conducting missionary activities without prior authorization from the Tribal Council.
Hunting, fishing, or trapping without permits required under State and Tribal laws.
Failure or refusal to pay any taxes, costs or other charges justly due the Oglala Sioux Tribe after reasonable notice and opportunity to pay.

SECTION 3. NOTICE OF EXCLUSION HEARING.

(First Alternative: Administrative Hearing)

A. The President or Vice-President of the Tribal Council shall cause notice to be served personally or by registered mail upon any non-member whenever either of such officers has grounds to believe that cause may exist for exclusion of such non-member, or whenever the Executive Committee orders either officers to cause such notice to be served.

B. Such notice shall state the ground or grounds, as listed in Section 2 for the proposed exclusion, a brief summary of the facts relied upon to justify the proposed exclusion, and the names and addresses of witnesses whom the Tribe will produce to support the proposed exclusion. The notice shall also name a time and place where the non-member may appear before the Executive Committee to show cause why he should not be excluded from areas of the Reservation designated in such notice.

C. Except as otherwise provided in Section 6 or 7, the notice required under this Section shall be served at least ten (10) days in advance of the hearing provided in Section 4. Return receipt shall be used in any service by mail and such service will be complete upon the date of the return receipt.

( Second Alternative: Judicial Hearing)

A. Whenever the President or Vice-President believes cause may exist for the exclusion of a non-member from any part of the Reservation, or whenever an individual Tribal member believes cause may exist for exclusion of a non-member from land owned or occupied by such member, he shall make application, orally or in writing, to the Oglala Sioux Tribal Court for a show cause order requiring such non-member to appear at a hearing provided for in Section 4.

B. Such show cause order shall be granted by the Tribal Court upon a finding that reasonable grounds exist to believe the proposed exclusion justified under one or more of the bases specified in Section 2. Such order by way of notice shall state the ground or grounds as listed in Section 2, for the proposed exclusion, a brief summary of facts relied upon to justify the proposed exclusion, and the names and addresses of witnesses whom the Tribe will produce to support the proposed exclusion. The order shall also name a time and place, where the non-member may appear before the Tribal Court to show cause why he should not be excluded from areas of the Reservation designated in such order.

C. The order required under this Section may be served personally or by registered mail, in the discretion of the Court, but in either event it shall be served, except as otherwise provided in Sections 6 or 7, at least ten (10) days in advance of the hearing provided for in Section 4. Return receipt shall be used in any service by mail and such service shall be complete upon the date of the return receipt.

SECTION 4. HEARING PROCEDURE: ORDER OF EXCLUSION.

(First Alternative: Administrative Hearing) Rescinded per Res. #77-163, dtd. 12/12/77, approved 4/4/78, effective 2/17/78.

(Second Alternative: Judicial Hearing)

A. After notice has been served as provided in Section 3, the Tribal Court shall hold a hearing to determine whether or not the non-member shall be excluded from areas of the Pine Ridge Reservation designated in such order. Such non-member shall be given an opportunity at such hearing:

To confront and cross-examine any witness relied upon by the Tribe to justify the proposed exclusions;
To present oral and written evidence in his defense; and
To be represented by counsel of his own choice, including a self-retained professional attorney. The Tribal Court may, it its discretion, grant the request of a non-member for a continuance in the hearing upon a showing of good cause.

B. In all cases where permanent or indefinite exclusion is sought by the Tribe, or where the proposed ground for exclusion is violation of Federal, State, or Tribal criminal laws and the factual basis therefor is disputed by the non-member, the Tribal Court shall find, as a condition to exclusion, that the facts supporting same have been established by clear, unequivocal and convincing evidence. In any other case, the facts supporting exclusion shall be found to exist by a mere preponderance of the evidence. Each decision shall be in writing and shall be based only upon the facts and law presented at the hearing.

C. After the hearing provided for in this Section, or after the time set for such hearing, if after notice, the person proposed for exclusion does not appear, the Tribal Court may order such person excluded from all or any part of the Reservation, or it may permit the person to remain upon the Reservation, or it may permit the person to remain upon the Reservation under such conditions as it sees fit to impose. All orders following an exclusion hearing shall specify the period of time during which exclusion will be effective as well as any conditions imposed upon continued residence; nothing herein, however, shall prevent exclusion for an indefinite period of time if a final order so provides.

SECTION 5. ENFORCEMENT OF EXCLUSION ORDER.

(First Alternative: Tribal Administrative Action) Rescinded per Res. #77-163, dtd. 12/12/77, approved 4/4/78, to be effective 2/17/78.

(Second Alternative: Tribal Judicial Action)

If any person ordered excluded from any part of the Pine Ridge Reservation does not promptly obey the order, the Tribal Court shall direct the Tribal police to use reasonable force in effecting the exclusion order.

SECTION 6. FORCIBLE REMOVAL IN EMERGENCIES PRIOR TO EXCLUSION HEARING.

(First Alternative: Tribal Administrative Action) Rescinded per Res. #77-163, dtd. 12/12/77, approved 4/4/78, effective 2/17/78.

( Second Alternative: Tribal Judicial Action)

A. In cases involving immediate danger to the life, health or property of the Oglala Sioux Tribe or any of its members, and where any delay would result in irreparable damage, the Tribal Court, upon application in writing by the President, Bureau of Indian Affairs, Indian or Tribal policemen, or any Tribal member, may order any such policemen to remove a non-member bodily from all or any part of the Reservation prior to the exclusion hearing provided for in Section 4. The policemen executing such emergency order shall only use as much force as is necessary to effect the removal.

B . The Tribal Court shall direct the policeman serving such notice to serve also the notice of charges and hearing thereon provided for in Section 3, either at the time of removal of the non-member or as soon after removal as possible. Such notice shall state that the non-member may demand, orally or in writing, that the hearing provided for in Section 4 be held within twenty-four (24) hours after he receives such notice or at any longer time up to ten (10) days interval specified in Section 3. Absent such a demand, which may be directed to and shall be acknowledged by the removing police officer, the exclusion hearing may be convened as provided in Section 3.

C. The notice required in emergency cases under this Section shall notify the non-member of a place on the Reservation boundary where he may re-enter in the company of a Bureau of Indian Affairs, Indian or Tribal police officer for the purposes of attending the hearing required under Section 4. The Tribal Court shall order such police officer to accompany such person while he is on the Reservation coming to and leaving the hearing.

SECTION 7. PROCEDURE UPON ARREST FOR VIOLATION OF FEDERAL, STATE OR TRIBAL LAWS, INCLUDING TRAFFIC OFFENSES.

A. Any other Section of this ordinance notwithstanding, duly authorized Bureau of Indian Affairs, Indian and Tribal police shall be privileged, for purposes of this ordinance, to stop and detain without prior legal process from the Tribal Council or Tribal Court, any non-member within the exterior boundaries of the Pine Ridge Reservation when they have reasonable cause to believe that such non-member has committed or is about to commit or is committing any offense specified in Section 2(A) (i.e., any crime as defined by Federal, State or Tribal law, including traffic offenses.).

B. The detention thus privileged shall be effected for the sole purpose of issuing a uniform written citation, approved by the Tribal Council and containing the requirements as to notice of grounds for exclusion and a hearing thereon as specified in Section 3.

C. Nothing in this Section shall be construed to authorize such policeman, for purposes of this ordinance, to effect the removal of such detained non-member from any part of the Reservation without first securing the order required under Section 6. Such policemen may detain a non-member, however, under this Section, for a reasonable period of time in order to seek an emergency removal order under Section 6.

* The Tribal Court shall have the power to determine whether a non-member or person not legally entitled to reside on the Reservation should be removed and excluded pursuant to the hearing procedures laid out in Section 6 (Second Alternative: Tribal Judicial Action), and the provisions of Chapter 7, of the Tribal Code not inconsistent with the preceding resolutions.

Hist: *added per Res. #77-163, dtd. 12/12/78, approved effective 4/4/78. Ord. #73-08, 11/28/73, amended by 77-163.

CHAPTER 10A

OGLALA SIOUX TRIBAL EXTRADITION LAW

SECTION 1.

A request to the Oglala Sioux Tribe for the extradition of a person charged with a crime in another state, reservation or International jurisdiction shall be in writing directed to the President of the Oglala Sioux Tribe alleging that the accused is charged with a crime and was legally present in the requesting jurisdiction at the time of the alleged crime, that at the time he was in or thereafter left the requesting jurisdiction to the Pine Ridge Indian Reservation, and accompanied by a copy of the charging document certified as to its correctness and filing by the appropriate Clerk of Courts. The writing shall be under oath and shall be signed by the Governor of the State, President of the Tribe or lawful delegate of any International jurisdiction.

SECTION 2.

(a) When a written request is made by the Governor of the State of South Dakota or by the Governor of any other State or by the Tribal President of any Indian Reservation or by the lawful delegate of any International jurisdiction, to the Tribal President for the extradition of any person found within the boundaries of the Pine Ridge Indian Reservation, who is charged with an offense which is a felony under the laws of the requesting State or Indian Reservation, or International jurisdiction, the Tribal President shall require the following from the Governor of the requesting State, President of the requesting Tribe or the lawful delegate of the requesting International jurisdiction:

An application or extradition by the appropriate District Attorney or the lawful delegate of the requesting Tribe or the lawful delegate of the International jurisdiction.
An affidavit of complaining witness.
A certified copy of the filed complaint and the issued arrest warrant.

(b) Upon receipt of said written request, the President shall first determine the presence on the Reservation of the requested person and shall call upon the Oglala Sioux Public Safety Department or any other person or body to investigate or assist in investigating the request and to report to him the situation and circumstances of the person so requested and whether he ought to be surrendered.

SECTION 3.

The President of the Oglala Sioux Tribe can, in his discretion, refer the question of whether or not the request for extradition of the accused should be honored to the Oglala Sioux Tribal Council, person, or body shall have the power to set forth in the preceding paragraph. The decision of the Council, person, or body shall be final.

SECTION 4.

If decided by the President of the Oglala Sioux Tribe or his lawful delegate that the request should be complied with, he shall sign a warrant of arrest directed to any peace officer or person having authority to execute arrest warrants. The warrant must recite that the accused is charged with a particular crime in a particular requesting jurisdiction and that his extradition is being sought from the Oglala Sioux Tribe.

SECTION 5.

No person arrested upon the above described extradition warrant shall be delivered over to the requesting jurisdiction unless he shall first be taken forthwith according to Tribal law, before the Oglala Sioux Tribal Court which shall inform him of the request made for his surrender and of the crime for which he is charged, and that he has the right to procure legal counsel at his own expense.

SECTION 6.

The Oglala Sioux Tribal Court may admit to bail the accused requested under such conditions as it deems appropriate.

SECTION 7.

If the accused demands, a hearing shall be held as soon as practicable after his initial appearance before the Oglala Sioux Tribal Court at which time the requesting jurisdiction shall be required to establish probable cause that the accused committed the crime for which his extradition is requested and if it appears that there is no probable cause to believe the person guilty of the crime with which he is charged off the Reservation, or if it appears that the person probably will not receive a fair trial in the court of the requesting jurisdiction, the judge shall order the person released from custody. The accused shall be given the opportunity to raise any legal defense that he might have to the request for extradition.

SECTION 8.

Any person arrested on the Pine Ridge Reservation for having committed a crime in another requesting jurisdiction may waive all extradition proceedings by executing in the presence of a Tribal Judge, a statement that he consents to return to the requesting jurisdiction. Before such a statement is executed, the accused shall be informed of his rights under this Oglala Sioux Tribal Extradition law.

SECTION 9.

Nothing in this Extradition Law shall prevent an accused person from returning voluntarily and without formality to the requesting jurisdiction.

SECTION 10.

If the Oglala Sioux Tribal Court shall order that the accused be returned to the requesting jurisdiction, the accused shall be allowed to appeal that decision under ordinary appellate procedures to the Oglala Sioux Tribal Appellate Court. The accused's return shall be delayed until the appeal has been decided, and he, at the discretion of the court, may be admitted to bail pending the appeal.

SECTION 11.

Whenever the President of the Oglala Sioux Tribe shall request from the State of South Dakota, other States, other Indian Reservations or any International jurisdiction, a person charged with a crime against the Oglala Sioux Tribe, he shall sign a written request for extradition stating that the accused person was legally present on the Pine Ridge Reservation at the time of the alleged crime and that he remains in or thereafter fled to South Dakota, other States, other Indian Reservations, or other International jurisdiction, to avoid prosecution. The request shall be accompanied by a copy of any arrest warrant, by a copy of any judgment of conviction or sentence imposed, if applicable, and by a sworn statement from a reservation judicial officer that the person claimed has escaped or evaded confinement, or violated the terms of his probation, bail, or parole, and the individual has been charged with committing a specific offense under the laws of the Oglala Sioux Tribe.

SECTION 12.

The request for extradition shall be transmitted to the Oglala Sioux Tribal Court, who under signature of a Tribal Court Judge shall file said request with the presiding Judge of the circuit court of South Dakota, other states, other Indian Reservations or International jurisdictions, where the accused is located.

SECTION 13.

Nothing in this Extradition Law shall prevent the Oglala Sioux Tribe from following any other procedure to secure the return of a person from any jurisdiction other than South Dakota, charged with committing a crime against the laws of the Oglala Sioux Tribe.

SECTION 14.

Legal effect: Supersession. This ordinance expressly supersedes and nullifies any and all ordinances pertaining to extradition heretofore enacted or adopted by the Tribal Council.

HISTORY: Ordinance No. 83-21 (November 10, 1983, regular session of the OST Council. 18 for, 0 against and 1 not voting. The Ordinance was introduced by the Law & Order Committee. The Ordinance was drafted by Russell Zephier, Attorney for the OST at the request of the Law & Order Committee.