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White Mountain Apache Tribal Code

Received: 2009

Chapter Five - Exclusion and Removal of Non-Members Executive Closure of Reservation

SECTION 5.1 DECLARATION OF PURPOSE

Whereas it is the sacred duty and obligation of the Tribal Council of the White Mountain Apache Tribe to safeguard, protect, manage, administer and develop the natural resources of the ancestral lands of the White Mountain Apache Tribe for the sole economic, cultural, and social benefit of the people of the White Mountain Apache Tribe; and whereas pursuant to the inherent sovereign power and authority reposing in the White Mountain Apache Tribe as reaffirmed by the Indian Reorganization Act of 1934 and the Tribal Constitution enacted pursuant thereto which was duly ratified by the Secretary of the Interior as principal agent for the trustee United States; the Tribal Council possesses the authority and constitutional obligation to initiate proceedings in order to protect its people, their natural resources, land, water rights, fish and wildlife, from any threat or conduct by non-members of the White Mountain Apache Tribe which might diminish, denigrate, damage, injure or threaten those natural resources or the social, cultural and economic well being of the people of the White Mountain Apache Tribe in any manner whatsoever; the Exclusion and Removal and Executive Closure provisions set forth in this Chapter are hereby enacted to carry out and implement this Declaration of Purpose and the Tribal Constitutional obligations of the Tribal Council.

SECTION 5.2 DEFINITIONS

A. TRIBE as used in this Ordinance refers to both the singular and plural and represents each and every enrolled member of the White Mountain Apache Tribe, an unincorporated association organized pursuant to §16 of the Indian Reorganization Act of 1934.

B. PERSON and NON-MEMBER as used in this Ordinance means any individual, corporation, partnership, association, state, or county government and any of their respective agencies who are not enrolled members of the White Mountain Apache Tribe, and denotes both the singular and plural wherever used.

* [this portion of section disapproved by bureau of indian affairs]

C. PERSON and NON-MEMBER as used in this Ordinance also means any Federal employee of the Department of Interior or any of its contractors who are engaged in any activity on the Fort Apache Indian Reservation which is found to be:
        (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
        (2) contrary to constitutional right, power, privilege or immunity;
        (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
        (4) without observance of procedure required by law;
        (5) a direct conflict of interest of the Secretary of the Interior's trustee responsibilities to protect, preserve and utilize the resources of the Fort Apache Indian Reservation for the improvement of the economic well being of the White Mountain Apache Tribe.

SECTION 5.3 EXECUTIVE ORDER CLOSURE OF ALL OR PART OF RESERVATION; FIRE PREVENTION ORDERS

A. The Chairman of the White Mountain Apache Tribal Council, or in his absence the Vice-Chairman of the White Mountain Apache Tribal Council, is empowered to close any or all of the Fort Apache Indian Reservation to non-members whenever the presence of such non-members would constitute a threat or danger to life, property, or the sovereign interest of the White Mountain Apache Tribe. The exclusion order may permit certain named individuals (or classes of individuals) to remain and may provide for a procedure whereby individual or classes of individual may seek entry or reentry to closed areas. No such closure may continue for more than 30 days without concurrence by the White Mountain Apache Tribal Council by Council Resolution.

B. The Chairman of the White Mountain Apache Tribal Council, or in his absence the Vice-Chairman of the White Mountain Apache Tribal Council, is empowered to issue fire prevention orders to respond to actual or potential threats of fire on the Fort Apache Indian Reservation. All orders shall be based upon the most current information available to the Chairman or Vice-Chairman at the time the order is issued, and shall be reasonably tailored to reduce actual or potential threats of fire, including threats to natural resources, wildlife, economic resources, or to Tribal health or welfare. Orders shall state the basis for issuance, and may cover, among other things, the following:
        (1) The closure of any portion of the Fort Apache Indian Reservation to non-members and/or members of the Tribe. Such an order may permit certain individuals or classes of individuals to remain and may provide for a procedure whereby individual or classes of individuals may seek entry to closed areas;
        (2) The restriction or prohibition of open burning, including the burning of garbage or refuse at residences or at garbage disposal areas;
        (3) The restriction or prohibition of activities that pose fire hazards, including, but not limited to, camp fires, barbeques, camp stoves, and smoking.
        (4) The restriction or prohibition of wood cutting otherwise permitted under the Tribe's Natural Resources Code; or
        (5) Any other restrictions or prohibitions consistent with this Paragraph.

No restrictions or prohibitions issued pursuant to this Paragraph may continue for more than 90 days without concurrence by the White Mountain Apache Tribal Council by Council Resolution.

C. In addition to other civil or criminal sanctions set forth in this Chapter, any person, Indian or non-Indian, who is found guilty of any conduct or act prohibited by an order issued pursuant to Section 5.3(B) of this Code, or who intentionally or negligently causes a fire on the Fort Apache Indian Reservation, shall be guilty of an offense and punished as follows:

INDIAN OFFENDERS

(1) If an Indian, imprisonment of up to fifty (50) days and a fine of up to One Thousand Dollars ($1000.00), or both fine and imprisonment.
(2) Alternatively, or in addition to the punishment prescribed in Section 5.3(C)(1), the Court may require any Indian convicted of violating this section to perform not less than twenty-five (25) but not more than two hundred fifty (250) hours of community service for the White Mountain Apache Tribe.
(3) Alternatively, or in addition to the punishment prescribed above, the Court may order an Indian who intentionally or negligently causes a fire on the Fort Apache Indian Reservation to pay restitution to the Tribe for damages caused by such fire, including, but not limited to costs for rehabilitation, reforestation, loss of future revenue, loss of productivity, damage to other forest resources, and all costs expended by the Tribe to respond to the fire.

NON-INDIAN OFFENDERS

(4) Non-Indian violators shall be subject to prosecution pursuant to applicable federal law, and to tribal civil penalties and remedies as follows:
        (a) A civil penalty of not less than Five Hundred ($500.00) Dollars or more than Two Thousand Dollars ($2,000.00).
        (b) In addition to civil penalties, if a fire is negligently or intentionally caused on the Fort Apache Indian Reservation by a non-Indian or if a fire so caused spreads onto the Fort Apache Indian Reservation, the court may order such person to pay restitution to the Tribe for damages caused by such fire, including, but not limited to, rehabilitation, reforestation, loss of future revenue, loss of productivity, damage to other forest resources, and all costs expended by the Tribe through all phases of its response to the fire.
(5) The court may also charge any Indian or non-Indian found guilty or liable to the Tribe under this section with payment of all reasonable costs associated with the enforcement of these regulations, beginning with detection and including all processes through prosecution and collection of the settlement, such as field examination and survey, damage appraisal, investigation assistance and reports, witness expenses, demand letters, court costs, and attorneys' fees.
(6) Payment of civil or criminal penalties or restitution to the Tribe may involve collection of cash, forfeiture of real and personal property, and garnishment. Any cash shall be applied to expenses incurred by tribal enforcement agencies. After disposition of real and personal property to pay court ordered civil liability penalties, restitution, and enforcement costs, any residual or left over funds shall be returned to the trespasser/violator.

D. Tribal Game and Fish officers, Tribal police, and designated and properly trained personnel from Tribal Forestry, the Fire Department, and Bureau of Indian Affairs Forestry and Criminal Investigations, as well as other Federal law enforcement officers, may, upon probable cause that a person has violated this Section, issue citations giving notice to such persons that a violation of this section has occurred. The citation shall provide a basis for the determination that a violation has occurred, as well as notice of the location of the tribal court and a date by which the citation must be answered. Any person issued a citation under this Paragraph shall be required to sign a consent for appearance, and if such person refuses to sign the consent, he or she may be arrested and taken to the Whiteriver jail for booking and arraignment before the Tribal Court. Non-Indians shall be turned over to the custody of Bureau of Indian Affairs law enforcement or Federal Marshall, as appropriate.

E. In addition to the civil penalties and remedies specified herein, violations of this section by a non-Indian or non member of the White Mountain Apache Tribe may result in a petition for his or her exclusion from the reservation or referral to the United States Magistrate, the Bureau of Indian Affairs, or U.S. Attorney for prosecution.

SECTION 5.4 EXCLUSION OR REMOVAL OF NON-MEMBERS AFTER HEARING; INTERIM EXCLUSION OR REMOVAL PENDING HEARING

A. A non-member of the White Mountain Apache Tribe may be excluded or removed from the Fort Apache Indian Reservation after a hearing and the entry of an exclusion or removal order, or in cases involving a threat or danger to the public health, safety, or sovereignty of the White Mountain Apache Tribe or for violating Section 5.6, pending such a hearing, upon order of a Tribal Judge of the White Mountain Apache Tribe.

B. Interim exclusion or removal of a non-member from the Fort Apache Indian Reservation shall only be ordered in cases involving a threat to the public health, or sovereignty of the White Mountain Apache Tribe and for a period no longer than necessary for an exclusion hearing to be held.

SECTION 5.5 GROUNDS FOR EXCLUSION OR REMOVAL OF NON-MEMBERS

An Order of Exclusion or Removal may be entered by the Tribal Court after a hearing, or on an interim basis as provided in Section 5.4, as follows:

A. When the non-member is accused of conduct within the Fort apache Indian Reservation which would be punishable under the laws of the White Mountain Apache Tribe or the United States, if committed by a member of the White Mountain Apache Tribe; and
        (1) Such non-member declines to give written consent to the jurisdiction of the Courts of the White Mountain Apache Tribe over such non-member with respect to such conduct; and
        (2) Such non-member either admits such conduct in the removal or exclusion proceedings, or is found by a preponderance of the evidence in the exclusion or removal proceedings to have committed the act in question; or

B. When the non-member either admits in an exclusion or removal proceeding or is found by a preponderance of the evidence presented in an exclusion or removal proceeding to have engaged in any of the following acts:
        (1) Unauthorized prospecting for petrified wood or artifacts, antiquities, wood collecting, timber cutting, surveying, damaging or using property of the White Mountain Apache Tribe or any resident thereof without permission, disturbing any gravesite, or conducting any scientific study of minerals, water wildlife, vegetation, soil composition, or any sociological, or anthropological studies without prior Tribal Council permission; or
        (2) Entry into any White Mountain Apache home without the consent of the occupants; or if consent is revoked, refusing thereafter to vacate the premises; or
        (3) Interference with or unauthorized photographing of any White Mountain Apache traditional ceremony without permission of the White Mountain Apaches involved; or
        (4) Unauthorized or unlicensed trading or peddling; or
        (5) Unauthorized entering of an area of the Fort Apache Indian Reservation closed to non-members; or
        (6) Removal by a non-member from the Fort Apache Indian Reservation of any member of the White Mountain Apache Tribe under the age of 18, or under guardianship, except by Order of the Courts of the White Mountain Apache Tribe pursuant to and in compliance with White Mountain Apache law or in conjunction with a sectarian program administered by the White Mountain Apache Tribe or the Bureau of Indian Affairs; or
        (7) Violating any Federal or Tribal Game and Fish Regulations applicable within the exterior boundaries of the Fort Apache Indian Reservation; or
        (8) Committing frauds, confidence games, or usury against Apache people, or inducing them to enter into grossly unfavorable contracts of any nature; or
        (9) Defrauding any Apache of just compensation for his labor or service of any nature done at the request of the non-member.

C. Any person not a member of the White Mountain Apache Tribe who commits or is convicted of committing any act on the Fort Apache Indian Reservation which is a crime under State or Federal Law, or which would have constituted a violation of the criminal code of the White Mountain Apache Tribe if it had been committed by a member of the White Mountain Apache Tribe, may be removed and excluded from the Reservation pursuant to the provisions of this Chapter or, prior to conviction, taken into custody by a Tribal Police Officer or Game Ranger for delivery to State or Federal authorities for prosecution.

SECTION 5.6 PROTECTION OF NATURAL RESOURCES

Entering upon the Fort Apache Indian Reservation by any non-member of the White Mountain Apache Tribe for purposes of conducting any study, surveying or mapping of the land, water resources, soil, geology, topography, forest, grazing lands, atmosphere, fish and wildlife, minerals, or White Mountain Apache culture or people for any purposes without the prior consent and approval of the Tribal Council of the White Mountain Apache Tribe shall constitute grounds for the immediate removal and exclusion of said person from the exterior boundaries of the Fort Apache Indian Reservation pending an exclusionary hearing as set forth in this Chapter.

SECTION 5.7 DURATION OF EXCLUSION

An exclusion or removal order entered by a Court of the White Mountain Apache Tribe shall either be for a definite period, or may, under appropriate circumstances, be permanent. A non-member excluded or removed may petition the Court for modification of an exclusion or removal order at any time after the order is entered but may not file a petition to modify more than once every three months.

SECTION 5.8 COURT JURISDICTION

The Courts of the White Mountain Apache Tribe are vested with civil jurisdiction over all non-members with respect to the exclusion or removal of non-members of the White Mountain Apache Tribe from the Fort Apache Indian Reservation.

SECTION 5.9 NOTICE OF EXCLUSION OR REMOVAL

The Chairman or in his absence, the Vice Chairman of the Tribal Council may petition the Tribal Court for a notice of exclusion or removal to be served personally or by registered mail upon any non-member whenever either or such officers believes cause may exist for exclusion or removal of such non-member, or whenever the Tribal Council orders either officer to cause such notice to be served. Such notice shall state the reason for the proposed exclusion or removal and shall 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 the exterior boundaries of the Fort Apache Indian Reservation

SECTION 5.10 HEARING; ORDER OF EXCLUSION

A. After notice to the non-member proposed for exclusion or removal, the Tribal Court shall hold a hearing no later than ten days thereafter to decide whether or not the non-member shall be excluded from the exterior boundaries of the Reservation. Such non-member shall be given an opportunity to present his defense at such hearing and may be represented by counsel.

B. After hearing, or after the time set for such hearing, if after notice the non-member proposed for exclusion or removal does not appear, the Tribal Court may order that such non-member may remain upon the Fort Apache Indian Reservation on such conditions as the Court sees fit to impose; or may order said non-member to leave or be removed from the Fort Apache Indian Reservation. All orders of exclusion or removal shall remain in force until revoked by the Tribal Court, unless the order specifically provides otherwise.

C. The Tribal Attorney or in his absence, the Tribal Prosecutor, shall represent the White Mountain Apache Tribe, the chairman of the Tribal Council or in his absence the Vice Chairman of the Tribal Council in any and all exclusion or removal proceedings initiated in Tribal Court pursuant to this Chapter.

SECTION 5.11 ENFORCEMENT OF EXCLUSION OR REMOVAL ORDER

A. If any non-member ordered removed or excluded from the Fort Apache Indian Reservation by the Tribal Court does not promptly obey the order, the Chairman of the Tribal Council or, in his absence the Vice Chairman of the Tribal Council, may petition the Tribal Court for appropriate enforcement action, or he may refer the matter directly to the United States Attorney; or both.

B. Upon receipt of a Petition for Enforcement of the Tribal Court's previous Removal or Exclusion Order, the Tribal Court shall immediately order the White Mountain Apache Tribal Police or Tribal Game Rangers to bodily remove the non-member and/or to remove the property of such non-member from within the exterior boundaries of the Fort Apache Indian Reservation. the Police Officer or Game Ranger executing such order shall use only so much force as is necessary to effect the removal or exclusion.

SECTION 5.12 FORCIBLE REMOVAL OF PERSONS AND PROPERTY PRIOR TO HEARING

A. In extreme cases involving grave danger to the life, health, morals, or property of the Tribe or any of its members or because of a violation of Section 5.6, the Chairman of the Tribal Council, or in his absence from the Reservation, the Vice Chairman of the Tribal Council may petition the Tribal Court, without notice, for an Order directing any White Mountain Apache Police Officer or Game Ranger to bodily remove a non-member and/or to remove any property of such non-member from Tribal land, before such non-member has been ordered excluded by the Tribal Court as provided in Section 5.10B. The Police Officer or Game Ranger executing such order shall use only so much force as is necessary to effect the removal.

B. If service of the notice provided for in Section 5.9 has not already been made on such non-member, the Court shall cause the police Officer or Game Ranger to serve such notice upon the non-member at the time of removal, or he shall cause the notice to be served as soon after removal as possible.

C. In all cases where the non-member has not already been ordered excluded by the Tribal Court the Court shall notify the non-member of a place on the Reservation Boundary where he may reenter in the company of a White Mountain Apache Police Officer or Game Ranger who is to accompany such non-member while he is on the Reservation travelling to and leaving his hearing.

D. Any non-member ordered by the Tribal Court to leave the Reservation, pursuant to Section 5.4, Section 5.6, Section 5.10B, Section 5.1a, or Section 5.12, may be delivered to the custody of state or federal authorities for prosecution.

SECTION 5.13 SEVERABILITY

If any provision of this Chapter, or the application thereof, is held invalid, the remainder of this Chapter, or other applications of such provisions, shall not be affected

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