[HISTORY: Adopted by the Legislature of the
Menominee Indian Tribe 11-6-1987 by Ord. No. 87-25. Amendments noted where
applicable.]
A.
The Menominee Indian Tribe has a primary interest
in assuring that the administrative procedures carried out by the
Tribe and implemented through its subordinate administrative bodies
pursuant to tribal law are consistent with the basic principles of
common sense, justice and fairness. The Menominee Administrative Procedure
Act[1] is intended to implement the following major principles:
(1)
Except in emergencies, all rule-making, both procedural
and substantive, shall be accompanied by notice to interested persons
and opportunities to submit views or information;
(2)
Proper publicity shall accompany the enactment of
all administrative rules;
(3)
Provision shall be made for advanced determination
of the applicability of the administrative rules to particular cases;
(4)
Administrative adjudicatory hearings shall be fundamentally
fair, particularly in regard to such matters as notice, rules of evidence,
taking of official notice, and preparation of the administrative record;
(5)
Responsible deciding officers in quasi-judicial cases
shall be personally familiar with the evidence presented in that proceeding;
and
(6)
Adequate provision shall be made to provide for judicial
review of administrative errors.
[1]
Editor's Note: "The Menominee Administrative Procedure Act"
is the title of the ordinance codified in this chapter.
B.
The Menominee Indian Tribe has jurisdiction to enforce
the Menominee Administrative Procedure Act and to ensure that all
persons, whether residing upon the Menominee Indian Reservation or
conducting business or other activities within the exterior boundaries
of the Reservation, are provided with due process of law. Tribal jurisdiction
of all such persons and lands is necessary to protect the economy,
health, safety and welfare of the Reservation population.
For the purpose of this chapter, the following
terms shall have the meanings indicated:
The person elected as the presiding officer of the Tribal
Legislature.
Any tribal board, commission, or officer serving a tribal
department and authorized by law to propose rules for adopting by
the Tribal Legislature, except that the term "committee" shall not
include either the Tribal Legislature or any Tribal Court.
A proceeding before the Legislature in which an opportunity
for a hearing before the Legislature is required by law prior or subsequent
to the determination by the Legislature of the legal rights, duties,
or privileges of specific parties. Contested cases shall also include
all cases of licensing where a license is revoked, suspended, or modified
or in which the granting of an application is contested by a person
having standing to contest such matter under the law.
Any tribal office or program authorized to carry out tribal
government functions.
The whole or part of any tribal approval, registration, or
any form of permission required by law to engage in any activity.
The tribal process respecting the grant, denial, renewal,
revocation, suspension, annulment, withdrawal, or modification of
a license or permit.
Any individual; association of individuals; partnership;
private, public, tribal or municipal corporation; tribal enterprise;
company; business enterprise; any county, tribal, federal, state or
local government; or any governmental entity.
The Menominee Indian Reservation established by treaty on
May 12, 1854, and, after termination, reestablished on December 23,
1973, containing 234,000 acres more or less and any lands which may
hereafter be added.
All persons who reside on or otherwise conduct business or
other activities on any lands, whether trust or fee, within the exterior
boundaries of the Menominee Indian Reservation.
Land, air, surface and ground water, fish, biota, plants,
animals, wildlife and capital improvements on the Menominee Indian
Reservation.
Any order, directive or regulation of general
applicability enacted into law by the Tribal Legislature:
The violation of which subjects a person to
a civil fine, civil penalty or other civil administrative sanction.
Which establishes, alters or revokes any procedure,
practice or requirement relating to legislative hearings.
Which establishes, alters or revokes any qualification
or requirement relating to the enjoyment of benefits or privileges
conferred by law.
Which establishes, alters or revokes any qualifications
or standards for the issuance, suspension or revocation of licenses
to pursue any commercial activity.
The term includes the amendment or repeal of
a prior rule but does not include:
The tribal committee which prepares a rule or other matter
under this chapter for action by the Tribal Legislature.
The governing body of the Menominee Indian Tribe.
The Menominee Indian Tribe.
In addition to other rule-making requirements
imposed by law:
A.
The Legislature may adopt informal procedures prescribed
or authorized by this chapter, together with forms and instructions.
B.
To the extent not prohibited by federal law nor prohibited
for reasons of confidentiality by tribal law, the Legislature shall
keep on file for public inspection all final orders, decisions and
opinions in contested cases and any index to those orders, decisions
or opinions prepared by the Legislature for its own use. No legislative
order, decision or opinion is valid or effective against any person,
nor may it be invoked by the Legislature for any purpose, unless,
upon reasonable request therefor, it is available for public inspection.
This provision is not applicable in favor of any person who has actual
or constructive notice knowledge of the legislative order, decision
or opinion in question.
A.
Prior to proposing that the Tribal Legislature adopt,
amend, or repeal any rule, the sponsoring committee proposing that
the Legislature take such action shall:
(1)
Post notice thereof at the Neopit and Keshena post
offices, County Courthouse and Tribal Office Building and mail a copy
of the notice to all persons who have made timely request to the committee
for information regarding the proposed rule-making proceedings. Such
notice shall include:
(2)
Afford all interested persons reasonable opportunity
to submit data, views, or arguments in writing. Opportunity for a
public hearing may be granted if requested in a timely manner and
determined by the Legislature to be in the public interest. It is
the intent of this chapter that reasonable and timely requests for
public hearings be favorably acted upon by the Legislature. Following
the close of the public comment period and prior to making its final
determination, the Legislature shall fully consider all oral comments
and written submissions respecting the proposed action.
B.
No regulatory proceeding shall be held on any final
rule until 20 days have passed from the posting date in which notice
is given of the adoption of said rule by the Tribal Legislature.
C.
No rule hereafter adopted is valid unless adopted in substantial compliance with this section or, if an emergency rule designated as such, adopted in compliance with § 12-5. In any proceeding a rule cannot be contested on the ground of noncompliance with the procedural requirements of this section, as now or hereafter amended, after one year has elapsed from the effective date of the rule.
If a committee recommends and the Tribal Legislature
so finds that immediate adoption or amendment of a rule is necessary
for the preservation of the public health, safety, or general welfare
of the Reservation population and that observance of the requirements
of notice and opportunity to present views on the proposed action
would be contrary to the public interest, the Legislature may dispense
with such requirements and immediately adopt the rule or amendment
as an emergency rule or amendment. The Legislature finding and a brief
statement of the reasons for its finding shall be incorporated in
the emergency rule or amendment. An emergency rule or amendment shall
not remain in effect for longer than 60 days after adoption.
A.
The Legislature shall file with the Chairperson a
true copy of all rules now in effect and being implemented. The Chairperson
shall keep a permanent register of such rules and all rules subsequently
adopted by the Legislature in accordance with this chapter. This permanent
register shall be open to public inspection during normal business
hours.
B.
Emergency rules enacted in accordance with § 12-5 shall become effective upon their adoption by the Legislature. All other rules hereafter adopted pursuant to this chapter shall become effective upon the expiration of 20 days following their publication as provided for in § 12-4, unless a later date is required by applicable law or specified in the rule. After the Legislature adopts an emergency rule pursuant to § 12-5 a copy of such emergency rule shall promptly be filed with the Chairperson.
A.
When a committee proposes that the Tribal Legislature
take action to adopt a rule pursuant to this chapter, the sponsoring
committee shall ensure that the proposed rule is accompanied by a
statement prepared by the sponsoring committee which generally describes
the purpose of the proposed rule and how the rule is to be implemented.
Such statement shall contain, but is not limited to, the following:
(1)
A title, a description of the rule's purpose, the
name of the sponsoring committee, the legal authority for the proposed
rule, and any other information which may be of assistance in identifying
the proposed rule or its purpose.
(2)
A summary of the proposed rule.
(3)
The department personnel who are responsible for drafting
the proposed rule and who will be responsible for implementation and
enforcement of the proposed rule.
B.
Upon filing the proposed rule with the Chairperson,
the sponsoring committee shall have copies of all statements prepared
in accordance with this section on file and available for public inspection.
Any interested person may petition a committee
and request that such committee propose that the Legislature promulgate,
amend, or repeal any rule. Within 60 days after the submission of
such petition, or at the next regular meeting of the committee if
it does not meet within this sixty-day period, the committee shall
formally consider the petition and within 30 days thereafter shall
either deny the petition in writing (stating its reasons for the denial)
or initiate rule-making proceedings in accordance with this chapter.
The validity of any rule may be determined upon
petition for a declaratory judgment thereon addressed to the Menominee
Tribal Court when it appears that the rule, or its threatened application,
interferes with or impairs or immediately threatens to interfere with
or impair the legal rights or privileges of the petitioner. The sponsoring
committee shall be made a party to the proceeding.
A.
In any contested case, the Legislature shall afford
all parties an opportunity for a hearing upon their request. Moreover,
if the Legislature determines that a hearing should be held in furtherance
of the public interest it may provide for a hearing even where one
is not requested by any party. In any event, no such hearing shall
be held upon less than 20 days' advance notice to all parties. The
notice shall include:
B.
Opportunity shall be afforded all parties to respond
and present evidence and argument on all issues involved.
C.
Unless precluded by law, informal disposition may
also be made of any contested case by stipulation, agreed settlement,
consent order, or default.
D.
The record in a contested case shall include:
(1)
All pleadings, motions, and intermediate rulings.
(2)
Evidence received or considered.
(3)
A statement of matters officially noticed.
(4)
Questions and offers of proof, objections, and rulings
thereon.
(5)
Proposed findings and exceptions.
(6)
Any decision, opinion, or report by the officers presiding
at the hearing.
E.
Oral proceedings shall be recorded or transcribed
for the purposes of a legislative decision. A copy of the entire record
or any part thereof shall be furnished to any party upon written request
therefor and payment of the costs thereof.
F.
Findings of fact shall be based exclusively on the
evidence presented and on matters officially noticed.
G.
The Federal Rules of Civil Procedure and Evidence
may, where applicable, be used as general guides for proceedings before
the Legislature, except as to matters covered explicitly by tribal
law. The federal rules shall be interpreted as instructive rather
than controlling in any event.
A.
Every decision and order rendered by the Legislature
in a contested case shall be in writing or stated in the record and
shall be accompanied by findings of fact and conclusions of law. The
findings of fact shall consist of a concise statement of each fact
found upon each contested issue of fact. Parties to the proceeding
shall be notified of the decision and order in person or by mail.
A copy of the decision and order and accompanying findings and conclusions
shall be delivered or mailed to each party or, if a party is represented
by an attorney, to his attorney of record.
B.
Should any party request a rehearing or reconsideration
of the Legislature's order or decision, such request shall be made
within 10 days of such order or decision, and the Legislature shall
take action upon such request within 30 days of receipt thereof. Where
a request for rehearing or reconsideration has been timely made, the
Legislature's order or decision shall not be final for further administrative
review until the Legislature acts upon such request.
A.
When a licensee has made timely and sufficient application
for the renewal of a license or a new license with reference to any
activity of a continuing nature, an existing full, temporary, or provisional
license does not expire until the application has been finally determined
by the Legislature and, in case the application is denied or the terms
of the new license are limited, until the last day for seeking review
of the legislative order.
B.
No revocation, suspension, annulment, modification,
or withdrawal of any license is lawful unless, prior to the institution
of legislative proceedings, the Legislature gave notice by certified
mail, return receipt requested, to the licensee of facts or conduct
which warrants the intended action and the licensee was given reasonable
opportunity to show compliance with all lawful requirements for the
retention of the license.
C.
Where the Legislature finds that protection of public
health, safety, or welfare requires that immediate emergency action
be taken and incorporates a finding to that effect in its order, summary
suspension of a license may be ordered pending proceedings for revocation
or other action. These proceedings shall be instituted within five
working days of such emergency action and shall be promptly determined.
If any part of this chapter shall be found to
be in conflict with federal requirements which are a condition precedent
to the allocation of federal funds to the Menominee Indian Tribe,
such conflicting part of this chapter is hereby declared to be inoperative
solely to the extent of such conflict and with respect to the department
directly affected, and such findings or determination shall not affect
the operation of the remainder of this chapter in its application
to the departments concerned.
Nothing in the Menominee Administrative Procedure
Act shall be held to diminish the constitutional rights of any person
or to limit or repeal additional requirements imposed by or otherwise
recognized by law. Except as otherwise required by law, all requirements
or privileges relating to evidence or procedure shall apply equally
to the Legislature and persons. The Legislature, every committee and
department are granted all authority necessary to comply with the
requirements of the Administrative Procedure Act. No subsequent tribal
laws shall be held to supersede or modify the provisions of the Administrative
Procedure Act or its applicability to any department or committee
except to the extent that such tribal law shall do so expressly.
Unless the Menominee Tribal Legislature shall
act by resolution to make this chapter, the Menominee Administrative
Procedure Act, applicable to other administrative actions taken by
the Tribe, this chapter shall only be applicable to Chapter MTSW Menominee
Tribal Solid Waste Management, Chapter MTHW Menominee Tribal Hazardous
Waste Management, Chapter MTGW Menominee Tribal Groundwater Quality,
and Chapter MTSFW Menominee Tribal Surface Water Quality.[1]
