Law and Order Code of the Fort McDowell Yavapai Community, Arizona
Adopted by Resolution No. 90-30, July 9, 1990 and subsequently amended. [Includes amendments dated 2000.]
By virtue of the authority vested in the Fort McDowell Yavapai Nation ("Nation") Tribal Council by Article V, Section 13(A)(14) of the Constitution, the Tribal Council hereby enacts this ordinance providing for the removal or exclusion of Non-Members 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. 15-1. PERSONS SUBJECT TO REMOVAL OR EXCLUSION.
Any person, not a member of the Fort McDowell Yavapai Nation may be
removed or excluded from the Fort McDowell Indian Reservation upon
the grounds stated and in the manner provided in this ordinance with
the exceptions contained in Section B.
provisions of this ordinance shall not apply to:
Non-Members 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.
Non-Members who are traveling through the Reservation upon federal
or state highways within the exterior boundaries of the Fort McDowell
- Non-Members 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.
Sec. 15-2. GROUNDS FOR REMOVAL OR EXCLUSION.
Interference with the administration, operation and processes of Tribal
government as authorized by the Constitution of the Fort McDowell
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 Federal, State or Tribal law, regardless
of whether such offense has been expunged or otherwise forgiven.
in tortuous conduct in violation of Federal, State or Tribal law or
that tortuous conduct would be a violation of state law had the conduct
occurred off the reservation.
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.
in exploratory, investigatory or other analytical activities involving,
in any manner, Tribal natural resources without prior permission of
for business, religious, or charitable purposes without prior permission
of the Nation.
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.
- Establishing or attempting to establish upon any land or entering upon any land, either tribal or individually assigned, without first obtaining the consent of the Nation.
Sec. 15-3. EXCLUSION PROCEEDINGS: NOTICE, HEARING, APPEAL, ENFORCEMENT
An enrolled tribal member or a tribal agency or department upon the
written request of a Tribal Member may initiate an exclusion proceeding.
Upon a determination by either the Fort McDowell Navapai Nation Tribal
Council or the Tribal Attorney that cause may exist for the exclusion
of a Non-Member from the Reservation, the Tribal Council shall appoint
an Administrative Hearing Officer. The Tribal Attorney shall cause
notice to be served upon such person stating that proceedings have
been initiated to exclude he/she from the Fort McDowell Indian Reservation.
Notice under this subsection shall:
be by personal service or first class regular mail to the Non-Member'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
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.
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.
the Non-Member of the right to be represented by private counsel,
to present evidence and/or witnesses and to cross-examine adverse
the Non-Member of his 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, undue hardship.
- be by personal service or first class regular mail to the Non-Member'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.
After notice has been served as provided in subsection 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 Non-Member should be excluded from the reservation. The
Administrative Hearing Officer shall either be a member of a bar association
of any State or have at least one year experience as a tribal court
judge. The hearing procedures arc as follows:
the Non-Member, 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 class regular
mail to the defaulting party at his last known address.
hearing shall be recorded. The enrolled tribal member or 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 Non-Member, or if represented by private
counsel, his 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 tribal attorney presents the case for exclusion, the Non-Member, 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 Non-Member and may challenge the validity or accuracy of the evidence presented by the Non-Member or his attorney.
Throughout the hearing, questions may be directed to either side relative to matters presented by the Administrative Hearing Officer.
seven (7) working 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.
Tribal Council shall meet in a closed session for deliberation.
In such deliberations the following rules shall apply:
each decision shall be based only upon the evidence presented
at the hearing.
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
therefor is disputed by the Non-Member, the Tribal Council
shall find, as a condition to exclusion, that the facts supporting
same have been established by clear and convincing evidence.
all other cases of exclusion, the facts supporting a decision
to exclude shall be found to exit by a preponderance of the
- each decision shall be based only upon the evidence presented at the hearing.
Tribal Council may:
the findings and recommendations of Administrative Hearing
remand the case to the Administrative Hearing Officer for
substantial basis exists in the record, refuse to follow the
recommendation by the Administrative Hearing Officer and make
the order it deems appropriate.
- adopt the findings and recommendations of Administrative Hearing Officer,
decision of the Tribal Council is final and is not subject to
- If the Non-Member, 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 class regular mail to the defaulting party at his last known address.
Failure to promptly comply with the terms of the exclusion order shall
result in appropriate enforcement action. Where necessary, and at
the direction of the Tribal Council, the tribal police shall be directed
to carry out the order or exclusion, using reasonable force when required
under the circumstances.
Sec. 15-4. REMOVAL OF NON-MEMBERS WITHOUT A HEARING.
In circumstances where the presence of a Non-Member on the reservation
presents: (1) a substantial and immediate threat to the safety and
welfare of the Nation as a whole, any individual member thereof or
any other person within the exterior boundaries of the reservation
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 reservation. In the absence of either the President or Vice
President, any two members of the Tribal Council may order removal
under this section.
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 Non-Members under this section.
Only the amount of force which is reasonably necessary to secure the
removal of the Non-Member and to eliminate the threat that is posed
shall be used.
Hearing. At the time of removal under this section, the Non-Member
shall be served with a notice of charges and the time and place at
which a formal exclusion hearing shall be held. At such time, the
person receiving such notice shall be informed of his/her right to
request a hearing to be held within two (2) business days after receipt
of notice. 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 Tribal Attorney of the hearing demand. The
Tribal Council shall then immediately appoint an Administrative Hearing
Officer to hold a hearing within three (3) business days after service
of the notice. In the event that no immediate hearing is requested,
the hearing procedures set forth in Section 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. 15-5. GENERAL POWERS.
Nothing contained in this ordinance shall be construed as abrogating existing law insofar as injurious conduct is concerned. The provisions of the ordinance, are ancillary to the powers of arrest, detention or incarceration possessed by the Nation.
Sec. 15-6. SEVERABILITY.
If any provision of this ordinance or the applicability thereof is held invalid, the remainder of this ordinance shall not be affected thereby.
McDowell Mohave-Apache Indian Community
P.O. Box 17779 Fountain Hills, Arizona 85269
Phone (602) 837-5121 Fax (602) 837-1630
Dr. Clinton M. Pattea
Vice President Robin Russell
Treasurer Larry Doka
Council Member Gwen Bahe
Council Member Benedict Smith, Sr.
WHEREAS, the Fort McDowell Yavapai Nation's Tribal Council safeguards the Reservation and enrolled tribal members; and
WHEREAS, the Tribal Council has the authority to remove and exclude those nonmembers from the Reservation whose presence may be injurious to the peace, health and welfare of the Tribe; and
WHEREAS, the Tribal Council wishes to revise the tribe's current Exclusion Ordinance.
NOW THEREFORE BE IT RESOLVED, pursuant to Article V, Section 13(A)(14) of the Fort McDowell Yavapai Nation Constitution, the Tribal Council hereby adopts the attached revised Exclusion Ordinance to replace and supersede Ordinance No. 1-77 to the tribe's Law & Order Code.
Pursuant to the authority contained in Article V, Section 13A(1), (2), (3), (5), (14) and B of the Constitution of the Fort McDowell Yavapai Nation ratified by the Tribe on October 19, 1999 and approved by the Secretary of Interior on November 12, 1999, the foregoing Resolution was adopted this 29th, day of August 2000 at a Special Council Meeting held at Fort McDowell at which a quorum of 5 members were present, 0 absent, by a vote of 4 for and 0 opposed and 0 abstained.
Dr. Clinton M. Pattea
President, Tribal Council