Title
15 - Conservation / Trespass Ordinance
Ordinance No: 3-89
Date
Approved: November 16, 1989 as amended November 3, 1999
Subject:
CONSERVATION/ TRESPASS ACT OF THE HOOPA VALLEY TRIBE
WHEREAS:
The Hoopa Valley Tribe did on June 20, 1972, adopt a Constitution
and By-Laws which was approved by the Commissioner of Indian Affairs
on August 18, 1972, and Article IX, Section 1( e) of this Constitution
and Bylaws authorized the Hoopa Valley Tribal Council, "To enforce
the protection of tribal property, wildlife, and natural resources of
the Hoopa Valley Tribe in accordance with a conservation ordinance…",
WHEREAS:
That this Conservation/ Trespass Act is consistent with the objectives
of the Hoopa Valley Tribe and Federal Government to further the goal
of self-determination through the enforcement of tribal laws intended
to strengthen the Tribe's authority over all tribal affairs, and
NOW,
THEREFORE BE IT RESOLVED: That the Hoopa Valley Tribal Council hereby
enacts the Conservation/ Trespass Act of the Hoopa Valley Tribe under
its authority contained in the Constitution as Title 15 of the Law and
Order Code of the Hoopa Valley Tribe, and the Use Permit Ordinance,
No. 1-88 approved February 8, 1988, shall be made part of this Act,
and that this act shall be in full force and effect.
15.0 SHORT TITLE
The short
title for this Act shall be the Conservation/ Trespass Act of the Hoopa
Valley Tribe.
15.1 PURPOSE
The purpose
of this Act is to protect the interest of the members of the Hoopa Valley
Tribe, ensure proper management of Reservation resources, and to prevent
unauthorized exploitation of unallotted tribal natural resources within
the exterior boundaries of the Hoopa Valley Indian Reservation (hereinafter
"Reservation"). This Act further regulates the use of Reservation
resources in order to insure their continual availability to members
of the Hoopa Valley Tribe, and to protect such resources from unauthorized
exploitation or otherwise illegal use.
15.2 PRIOR ORDINANCES AND POLICIES REPEALED
Any prior
ordinances and policies are repealed to the extent that they are inconsistent
with this Act.
15.3 HOOPA VALLEY INDIAN RESERVATION CLOSED
Except
as provided in existing legal rights-of-way and federal laws, all parts,
territories, roads and streams on unallotted land and properties within
the exterior boundaries of the Hoopa Valley Indian Reservation, including,
but not limited to tribal ceremonial and religious grounds, are hereby
closed to use and access by any person who is not a member of the Hoopa
Valley Tribe. A non-member may accompany a tribal member into a closed
area provided, however, that the nonmember has first obtained a permit
as provided under this Act and that the accompanying tribal member(s)
accepts full responsibility for the actions of the nonmember This allowance
is not a recognition or granting of Reservation or tribal rights to
any nonmember and such allowance is intended solely for the convenience
of the tribal member, and this privilege does not exempt the nonmember
from prosecution under appropriate tribal, federal or state law. All
unallotted lands, territories and areas within the exterior boundaries
of the Hoopa Valley Indian Reservation are closed to hunting by any
person who is not a member of the Hoopa Valley Tribe. All tributary
streams to the Trinity river and that portion of Pine Creek within the
exterior boundaries of the Hoopa Valley Indian Reservation are closed
to fishing by any person who is not a member of the Hoopa Valley Tribe.
All unallotted natural resources are reaffirmed to be for the exclusive
benefit of members of the Hoopa Valley Tribe.
15.4 ESTABLISHMENT OF PERMIT SYSTEM
15.4.1
Permit System
It is
hereby authorized that a tribal permit system be established. Such
permits may be issued to members of the Hoopa Valley Tribe and to
non-members of the Hoopa Valley Tribe and may include conditions under
which the permit can be used, and such conditions shall be enforceable
under this Act.
15.4.2
Membership Identification Cards
Except
as otherwise provided in this Act, Hoopa Tribal members holding a
valid identification card issued under the authority of the Hoopa
Valley Tribal Council shall be deemed permitted under this Act. However,
activities authorized by the Membership Identification Card may be
suspended or revoked if used in violation of this Act. For enforcement
purposes, a Membership Identification Card shall be considered a permit
under this act.
15.4.3
Special Wood and Gravel Permits Required
Any person,
including enrolled members, are required to obtain special permits
prior to cutting wood and removing gravel and post and pole material
under this Act. Special permits may include conditions under which
the permit remains valid.
15.4.4
Tribal Employees
Each
employee of the Hoopa Valley Tribe shall be issued an identification
card by the Tribal Personnel Department. Each employee identification
card shall remain the property of the Tribe and shall be relinquished
by the holder upon demand of the Tribal Chairman or his authorized
representative.
15.5
PERMITS REQUIRED
Every person
found to be on allotted lands within the exterior boundaries of the
Hoopa Valley Indian Reservation is required to have in their possession
a valid permit as provided under this Act. Any person not in possession
of an official Tribal permit shall be considered in violation of this
and other applicable Tribal and Federal laws.
15.6 PERSONS NOT KNOWN TO BE HOOPA MEMBERS
Any person
not known by an Officer of the Tribe to be a member of the Hoopa Valley
Tribe, or any person not having in their possession a valid Hoopa membership
card, shall be presumed not to be a member of the Hoopa Valley Tribe.
15.7 TYPES OF PERMITS
15.7.1
Personal Use Permits
Personal
Use Permits may be issued solely to enrolled members and are expressly
limited for the legitimate personal use of resources allowed under
the permit and shall not be used for barter, sale or any other activity
that can be interpreted as to increase the personal commercial gain
to the person to whom a tribal use permit is issued.
15.7.2
Fee Permits
Fee Permits
may be issued to any person and are expressly limited for the legitimate
personal use of resources allowed under the permit and shall not be
used for barter, sale or any other activity that can be interpreted
as to increase the personal commercial gain to the person to whom
a tribal use permit is issued. The cost of Fee Permits shall be established
as provided by a resolution approved by the Tribal Council and the
revenues generated by fee permits shall be used to enforce this Act.
15.8
LIMITATIONS OF AUTHORIZATION
15.8.1
Activities of Tribal Government
Activities
of the Tribal Government or its subordinate entities shall be exempt
from the requirements of this Act and shall be governed pursuant to
management plans and applicable laws regulating such activities. Tribal
employees whose duties require activities involving Tribal resources
are exempt from obtaining a permit under this Act while they are performing
duties in their official capacity.
15.8.2
Permits Not Exemption From Laws
Possession
of a permit issued under this Act does not exempt any person from
any applicable laws or authorize any activity on property other than
unallotted tribal lands or allow access to any resources not authorized
by the permit.
15.8.3
Sensitive Resources
Except
as specifically authorized by the Hoopa Valley Tribal Council, no
permits shall be issued under this Act for resources that have a substantial
cultural and/ or ceremonial value to the Hoopa Valley Tribe or resources
that are considered scarce or fragile in nature.
15.9
APPLICATION PROCESS – ISSUING AGENT – RECORDKEEPING
15.9.1
Issuing Agent
The Issuing
Agent is the person responsible for issuing permits as provided by
this Act and shall be the Chairperson of the Hoopa Valley Tribal Council,
or their authorized representative. Any person requesting a permit
shall apply in person during regular business hours.
15.9.2
Evaluation By Issuing Agent
As soon
as reasonably possible after application for a permit is made, the
Issuing Agent shall evaluate the application in light of the factors
set forth in Section 15.10 below, and approve or deny the application;
except that where the evaluation shows that the resources sought to
used under the permit have substantial cultural and/ or ceremonial
value, or are scarce or fragile, the Issuing Agent shall forward the
application, with a written recommendation for action to the Hoopa
Valley Tribal Council for a decision, pursuant to Section 15.8 above.
15.9.3
Evaluation, Issuance, Denial of Permit
The Issuing
Agent (or Hoopa Valley Tribal Council if the application is evaluated
pursuant to Section 15.8) shall set the terms and conditions of the
Use Permit in writing, including the expiration date, based on consideration
of the factors set forth in Section 15.10 below. Any denial of an
application shall be supported by a brief written statement of reasons
based on the factors in Section 15.10 below. Any denial of a permit
may be appealed pursuant to Section 15.16 below.
15.10 FACTORS FOR ISSUING PERMITS
In determining
whether to issue a permit, and the nature of any terms and conditions
thereof, the Issuing Agent shall consider the following factors:
15.10.1
Whether
a sufficient quantity of the resource in question is available and
accessible on the Reservation.
15.10.2
That
there is neither a conservation nor allocation problem, nor any conflict
between the resource use applied for and traditional, aboriginal family
use areas or traditional cultural and/ or ceremonial uses. If such
concern or conflict is found to exist, the application shall be forwarded
to the Hoopa Valley Tribal Council for decision pursuant to Section
15.8 above.
15.10.3
Whether
the applicant had been in non-compliance with the terms and conditions
of a previous permit or has ever had a permit revoked.
15.10.4
Whether
the resource in question is governed by an approved management plan
that authorizes such activity.
15.10.5
The location
of the applicant's residence and whether the resource in question
may be available and accessible in a larger quantities in other areas.
15.10.6
Whether
the resource allowed under the permit is intended to promote the personal
economic or monetary gain of the applicant.
15.10.7
Whether
the applicant intends to transport the resource in question outside
the exterior boundaries of the Reservation.
15.11 OFF - RESERVATION TRANSPORT
Every person,
including Hoopa Tribal members holding valid identification cards, shall
be required to obtain approval prior to transporting any Reservation
resource beyond the exterior boundaries of the Hoopa Valley Indian Reservation.
Permits issued under this Act may be used as a transportation permit,
provided it contains clear authorizing language and such transport has
been approved by the Issuing Agent.
15.12 INVALIDATION OF PERMIT
Any permit
issued under this Act shall become immediately invalid for reasons including,
but not limited to, the following:
15.12.1
If any
resources utilized under the permit are used for barter or commercial
purposes.
15.12.2
If any
person in their application for a permit gives false information.
15.12.3
If any
changes are made to a permit after it has been issued.
15.12.4
If a
person violates any terms or conditions of a permit.
15.12.5
If the
expiration date on the permit has expired.
15.13
SUSPENSION, REVISIONS AND TERMINATION OF PERMIT
Once a
permit has been issued, it may be suspended, revised or terminated by
the Issuing Agent or by a Tribal Court Judge based upon evidence which
indicates that the continuation of such permit, or a permit in its present
form, has been violated, or is a threat to any person or to the resources
of the Reservation, or has been used in connection with an illegal activity.
Any enforcement officer of the Hoopa Valley Tribe shall have the authority
to temporarily suspend a permit if they find that if allowed to continue,
such activity will threaten the health and safety of any person or the
resources of the Reservation.
15.14 SEIZURE/ CONFISCATION OF PROPERTY
15.14.1
Seizure of Resources
a)
Any natural resources, or products of natural resources that are
in the possession of, or being transported by any person not having
in his/ her possession a permit issued under this Act shall be presumed
to have taken such resources illegally from unallotted tribal lands
or territories of the Reservation and such natural resources are
subject to immediate seizure by an authorized officer of the Tribe.
Persons transporting private property within the exterior boundaries
of the Reservation are responsible for obtaining a permit from the
legal property owner before transporting any natural resources,
or products of natural resources, on any unallotted Reservation
lands or any roadways within the exterior boundaries of the Hoopa
Valley Reservation.
b)
Seizure of natural resources within the exterior boundaries of the
Hoopa Valley Reservation, including Indian forest products, shall
be in accordance with 25 Code of Federal Regulations, Section 163.29(
e).
c)
When there is reason to believe that Indian forest products are
involved in trespass and that such products have been removed to
land not under federal or tribal government supervision, the responsible
Tribal official shall provide notice to the owner of the land or
the party in possession of the trespass products in accordance with
25 Code of Federal Regulations, Section 163.29( f).
15.14.2
Confiscation of Property
In accordance
with 25 Code of Federal Regulations, Section 163.29( e), any authorized
enforcement officer of the Tribe, or the Tribal Court Judge, is authorized
to confiscate any private property used in the commission of a violation
of this Act.
15.15 ENFORCEMENT
15.15.1
Tribal Police/ Court Jurisdiction
Enforcement
of this Act and permits issued under it shall be by the Hoopa Tribal
Police Department or any other officers authorized by the Hoopa Valley
Tribal Council. Violations of this Act shall be subject to the jurisdiction
of the Hoopa Valley Tribal Court and the penalties prescribed herein.
Any Tribal enforcement officer shall have the authority to stop any
person within the exterior boundaries of the Hoopa Valley Reservation
who is suspected to be in violation of this Act, regardless of tribal
membership, property and road ownership status.
15.15.2
Issuance of Citations
Any Tribal
law enforcement officer, or any person officially appointed by the
Hoopa Valley Tribal Council in consultation with the Chief of the
Hoopa Tribal Police Department, may issue a citation for violation
of this Act.
15.15.3
Exclusive Tribal Court Jurisdiction
Adjudication
of violations of this Act shall be exclusively within the jurisdiction
of the Tribal Court.
15.15.4
Penalties/ Disposal of Private Property
a)
Any person who violates this Act shall be fined a civil penalty
not to exceed $1,000, or by imposition of treble damages, without
a requirement of a showing of willfulness or intent, based upon
the highest stumpage value obtainable from the raw materials involved
in the trespass, or by fine and treble damages, and payment of reasonable
costs associated with the enforcement of this Act and any other
amounts authorized pursuant to 25 Code of Federal Regulations, Section
163.29. Any person who violates this Act may also be subject to
exclusion from the Hoopa Valley Reservation in accordance with the
Exclusion Ordinance of the Hoopa Valley Tribe.
b)
All private property seized for violations of this Act may be forfeited
to the Tribe as directed by the Tribal Court Judge. The Tribal Court
shall assume control over all forfeited property and shall dispose
of such property as provided by the applicable rules of the Law
and Order Code or as directed by the Tribal Council through appropriate
resolution. Natural resources seized under this Act may be used
for the benefit of Tribal elders or may be sold and revenues from
such sales shall be used for enforcement of this Act.
c)
Any cash or other proceeds realized from forfeiture of equipment
or other goods or from forest products damaged or taken in the trespass
shall be applied to satisfy civil penalties and other damages identified
in this Act in accordance with 25 Code of Federal Regulations, Section
163.29( b).
15.16 APPEALS OF ADMINISTRATIVE ACTION
The Decision
of the Issuing Agent to issue, deny, revise, suspend or terminate, or
of any enforcement officer to temporarily suspend, a permit issued under
this Act may be appealed by filing a complaint in the Tribal Court within
ten (10) days following such action. For purposes of this Act, "days"
shall mean calendar days.
15.17 SEVERABILITY
If any
part of this Act is held to be invalid the remainder shall remain in
full force and effect to the maximum extent possible.
15.18 WAIVER OF SOVEREIGN IMMUNITY
Nothing
in this Act is intended to, nor should it be construed as, a waiver
of the protections of sovereign immunity, including those of suit in
any court, other than Tribal Court.
Furthermore,
this Act is not intended to, nor shall it be construed as, establishing
or recognizing any rights or interests in any tribal resources, property,
lands, or other tribal holdings, to any person to whom a permit may
be issued, nor shall this Act be construed as recognizing any authority
in any other jurisdiction.
CERTIFICATION
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I,
the undersigned, as Vice-Chairman of the Hoopa Valley Tribal Council,
do hereby certify that the Hoopa Valley Tribal Council is composed
of eight (8) members of which at least five (5) were present,
constituting a quorum at a Special Meeting thereof; duly and specially
called, noticed, convened and held this 3rd day of November, 1999;
and that this Ordinance was duly adopted by a vote of four (4)
in favor, none (0) opposed and none (0) abstaining and that said
Ordinance has not been rescinded, amended or modified in any way.
Dated
this 3rd day of November, 1999.
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______________________________
Joseph LeMieux, Vice-Chairman
Hoopa Valley Tribal Council
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ATTEST:___________________________________
Darcy A. Baldy, Executive Secretary
Hoopa Valley Tribal Council
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