[Amended 11-19-2020 by Ord. No. 20-35]
A.
Prohibited acts. Except as authorized by this Part 1, it is unlawful for any person to knowingly or intentionally manufacture, traffic, distribute, dispense or deliver, or possess with the intent to manufacture, distribute, dispense, sell, or deliver, a controlled substance or controlled substance analog. Intent under this subsection may be demonstrated by, without limitation because of enumeration, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance or a controlled substance analog prior to and after the alleged violation.
B.
Penalties. Except as otherwise provided in this Part 1, any person who violates Subsection A shall be sentenced as follows:
(1)
Any person who violates this subsection, except as provided for in §§ 306-11, 306-12, 306-13, 306-14, and 306-15, with respect to a controlled substance, or a controlled substance analog, that person shall be subject to a Class A misdemeanor. See § 306-29, Classification of misdemeanors.
(a)
Anyone convicted under this section may be banished from the Reservation as part of sentencing for one year for the first offense.
(b)
Anyone convicted under this section shall be banished as part of sentencing for two years for their second offense.
(c)
Anyone convicted under this section for a third or subsequent conviction shall be referred to the Tribal Legislature for lifetime banishment pursuant to Chapter 80.
(d)
If banishment is ordered, in the event of a death in the immediate family of the convicted/banished person, the Tribal Court, in its discretion, may order permission for such person to return to the Reservation for a period not to exceed four days. The convicted/banished individual must notify the Tribal Police Department of the request and any subsequent Court order.
(e)
The Tribal Court shall require that the defendant complete an AODA assessment from a licensed professional approved by the court and attend and complete any certified alcohol or drug rehabilitation program if required by the assessment.
(2)
Minor enhancer. If a person 18 years of age or over violates § 306-16A by distributing or delivering a controlled substance or a controlled substance analog to a person 17 years of age or under, the maximum term of a Class A misdemeanor shall be imposed. See § 306-29, Classification of misdemeanors.
(3)
Causing death enhancer. If a person violates § 306-16A by distributing, selling, or delivering a controlled substance or a controlled substance analog and such violation results in or causes a part in the overdose death of the receiver of the controlled substance, the maximum term of a Class A misdemeanor shall be imposed and the person shall be referred to the Tribal Legislature for lifetime banishment pursuant to Chapter 80.
(4)
The Court, in assessing the penalties, shall take into consideration the amount of controlled substance possessed, the relative danger of the drug, prior convictions for possession and other factors the Court finds relevant.
C.
This offense may be subject to federal prosecution in addition to Tribal prosecution. If the Tribal prosecution is dismissed due to federal prosecution, the federal conviction(s) may be used by the Tribal Legislature for banishment pursuant to Chapter 80. Nothing in this chapter restricts or limits the ability of the Tribal Legislature to assert their inherent, sovereign right of exclusion or banishment under tribal law.
[Amended 11-19-2020 by Ord. No. 20-35]
A.
Prohibited act. Except as authorized by this Part 1, it is unlawful for any person to create, manufacture, distribute, deliver or possess with intent to distribute or deliver a counterfeit controlled substance.
B.
Penalty. Any person who violates this section with respect to a counterfeit controlled substance shall be subject to a Class C misdemeanor. See § 306-29, Classification of misdemeanors.
C.
D.
This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A.
Prohibited act. No person may possess or attempt to possess a controlled substance or a controlled substance analog on his person, in any type of vehicle under his control, or within any type of dwelling in which he lives, visits, or happens to be found, unless the person obtains the substance or the analog directly from, or pursuant to a valid prescription or order of, a practitioner who is acting in the course of his or her professional practice, or unless the person is otherwise authorized by this Part 1 to possess the substance or the analog.
B.
Penalties.
(1)
Any person who violates this section shall be subject to a Class C misdemeanor. See § 306-29, Classification of misdemeanors.
(2)
If the offense is a second drug offense violation under this code, then the penalty shall increase to a Class B misdemeanor. See § 306-29, Classification of misdemeanors.
(4)
In addition to the above penalties, the Court shall require that the defendant complete an AODA assessment from a licensed professional approved by the court and attend and complete any certified alcohol or drug rehabilitation program if required by the assessment.
C.
This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A.
Prohibited act. No person may knowingly distribute or deliver, attempt to distribute or deliver or cause to be distributed or delivered a noncontrolled substance and expressly or impliedly represent any of the following to the recipient:
(1)
That the substance is a controlled substance.
(2)
That the substance is of a nature, appearance or effect that will allow the recipient to display, sell, distribute, deliver or use the noncontrolled substance as a controlled substance, if the representation is made under circumstances in which the person has reasonable cause to believe that the noncontrolled substance will be used or distributed for use as a controlled substance.
(3)
Proof of any of the following is prima facie evidence of a representation specified in Subsection A(1) or (2).
(a)
The physical appearance of the finished product containing the substance is substantially the same as that of a specific controlled substance.
(b)
The substance is unpackaged or is packaged in a manner normally used for the illegal delivery of a controlled substance.
(c)
The substance is not labeled in accordance with 21 U.S.C. §§ 352 or 353.
(d)
The person distributing or delivering, attempting to distribute or deliver or causing distribution or delivery of the substance to be made states to the recipient that the substance may be resold at a price that substantially exceeds the value of the substance.
B.
Penalty. Any person who violates this subsection is guilty of a Class D misdemeanor. See § 306-29, Classification of misdemeanors.
C.
D.
This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A.
Prohibited act. It is unlawful for any person knowingly to keep or maintain any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft or other structure or place, which is resorted to by persons using controlled substances in violation of this Part 1 for the purpose of using these substances, or which is used for manufacturing, keeping or delivering them in violation of this Part 1.
B.
C.
D.
This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A.
Prohibited act. It is unlawful for any person:
(1)
To acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge;
(2)
Without authorization, to make, distribute or possess any punch, die, plate, stone or other instrument designed to print, imprint or reproduce the trademark, trade name or other identifying mark, imprint or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as:
B.
Penalty. Any person who violates this subsection is guilty of a Class A misdemeanor. See § 306-29, Classification of misdemeanors.
C.
This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A.
Prohibited act. It is unlawful for any person who has attained the age of 17 years to knowingly solicit, hire, direct, employ or use a person who is under the age of 17 years for the purpose of violating § 306-16A.
B.
Penalty. For any person who violates this subsection, the maximum term of a Class A misdemeanor shall be imposed. See § 306-29, Classification of misdemeanors.
C.
D.
The knowledge requirement under Subsection A does not require proof of knowledge of the age of the child. It is not a defense to a prosecution under this section that the actor mistakenly believed that the person solicited, hired, directed, employed or used under § 306-16 had attained the age of 18 years, even if the mistaken belief was reasonable.
F.
This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A.
Prohibited act. No person may use, or possess with the primary intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of this Part 1.
B.
Penalty. Any person who violates this subsection is subject to a Class E misdemeanor. See § 306-29, Classification of misdemeanors.
C.
This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A.
Prohibited act. No person may deliver, possess with intent to deliver, or manufacture with intent to deliver drug paraphernalia, knowing that it will be primarily used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance or controlled substance analog in violation of this Part 1.
B.
C.
This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
A. ABUSE CORROSIVE DISTRIBUTE HAZARDOUS SUBSTANCE HOUSEHOLD PRODUCT
In this section:
To ingest, inhale, or otherwise introduce into the human body a hazardous substance in a manner that does not comply with any cautionary labeling that is required for the hazardous substance under § 100.37, Wis. Stats., under federal law, under tribal law, or in a manner that is not intended by the manufacturer of the hazardous substance, and that is intended to induce intoxication or elation, to stupefy the central nervous system, or to change the human audio, visual, or mental processes.
Any substance which, in contact with living tissue, will cause destruction of tissue by chemical action, but does not refer to action on inanimate surfaces.
To transfer a hazardous substance from one person to another.
Includes any substance or mixture of substances, including a toy or other article intended for use by children, which is toxic, is corrosive, is an irritant, is a strong sensitizer, is flammable or combustible, or generates pressure through decomposition, heat or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children. "Hazardous substance" also includes any substance or mixture of substances that has the capacity to produce personal injury or illness to a person who abuses the substance and includes any household product, or any mixture of household products.
Any food, drug, device or cosmetic or any article, product or commodity of any kind or class which is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which usually is consumed or expended in the course of that consumption or use.
B.
Whoever does any of the following is guilty of a Class B misdemeanor:
(1)
Possesses a hazardous substance with the intent to abuse the hazardous substance.
(2)
Intentionally abuses a hazardous substance.
(3)
Whoever distributes, or possesses with intent to distribute, a hazardous substance, knowing or having reason to know that the hazardous substance will be abused, is guilty of a Class A misdemeanor.
C.
Subsection B(2) does not apply to a person who possesses or uses the hazardous substance if the substance is obtained from, or pursuant to a valid prescription or order of, a practitioner, as defined in § 306-3, while acting in the course of professional practice. See § 306-29, Classification of misdemeanors.
D.
Subsection B(3) does not apply to a person who distributes a hazardous substance in an ordinary course of business.
E.
This offense may be subject to federal prosecution in addition to Tribal prosecution.
[Amended 11-19-2020 by Ord. No. 20-35]
Prohibited act. Any person who attempts or conspires to commit any offense defined in this article shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
[Amended 11-19-2020 by Ord. No. 20-35]
A.
If a person is charged with a third or subsequent offense within the last 10 years under this article or equivalent state or federal law and the person is convicted of that third or subsequent offense, the maximum term of imprisonment for the offense shall be increased one level, not to exceed 12 months in jail and/or a fine of $5,000 unless the offense is charged subject to enhanced sentencing.
B.
Unless specified differently in the specific offense sections, anyone convicted and sentenced pursuant to this section may be banished from the Reservation as part as sentencing up to five years per offense.
C.
The third or subsequent offense shall be calculated within the 10 years by counting the prior offense(s) date(s) from date of conviction or release from incarceration or whichever is less, except that years banished shall not be counted.
[Amended 11-19-2020 by Ord. No. 20-35]
A.
If any person violates any part of this Article III by possessing with intent to deliver or distribute a controlled substance or analog of any of these substances, and the delivery, distribution or possession takes place under any of the following circumstances, the maximum term of incarceration prescribed by law for that crime may be increased by the following, but not to exceed 12 months in jail and/or a fine of $5,000.
B.
While the person is in or on the premises of a public housing project, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
C.
At a tribal or county park, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
D.
At a jail or correctional facility, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
E.
At a public swimming area or pool open to members of the public, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
F.
At a youth center or a community center, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
G.
At any private, tribal or public school premises, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
H.
At any Menominee transportation vehicle or facility, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
I.
While the person is in or on the premises of an approved treatment facility that provides alcohol and other drug abuse treatment, the violator shall be subjected to an additional 30 days of incarceration in the Tribal Jail.
J.
No additional penalty stated above shall make any penalty in subsection exceed 12 months in jail and/or a fine of $5,000 unless it is done pursuant to enhanced sentencing requirements.
K.
Banishment. Anyone convicted under this section, unless subject to greater terms of banishment:
[Amended 11-19-2020 by Ord. No. 20-35]
A.
Misdemeanors in this chapter are criminal acts that are classified as follows:
(1)
Class A misdemeanor. The penalty for a Class A misdemeanor shall be the following:
(a)
A term of probation not to exceed one year;
(b)
A mandatory minimum sentence of 270 days of imprisonment that must be served and of which no portion may be stayed;
(c)
An additional term of imprisonment not to exceed one year, when combined with the mandatory minimum sentence, may be implemented at the Court's discretion (95 days); and/or
(d)
A fine not less than $2,501 and not to exceed $5,000.
(2)
Class B misdemeanor. The penalty for a Class B misdemeanor shall be the following:
(a)
A term of probation not to exceed one year;
(b)
A mandatory minimum sentence of 180 days of imprisonment that must be served and of which no portion may be stayed;
(c)
An additional term of imprisonment not to exceed 270 days, when combined with the mandatory minimum sentence, may be implemented at the Court's discretion (90 days); and/or
(d)
A fine not less than $1,001 and not to exceed $2,500.
(3)
Class C misdemeanor. The penalty for a Class C misdemeanor shall be the following:
(a)
A term of probation not to exceed one year;
(b)
A mandatory minimum sentence of 90 days of imprisonment that must be served and of which no portion may be stayed;
(c)
An additional term of imprisonment not to exceed 180 days, when combined with the mandatory minimum sentence, may be implemented at the Court's discretion (90 days); and/or
(d)
A fine not less than $501 and not to exceed $1,000.
(4)
Class D misdemeanor. The penalty for a Class D misdemeanor shall be the following:
(a)
A term of probation not to exceed one year;
(b)
A mandatory minimum sentence of 30 days of imprisonment that must be served and of which no portion may be stayed;
(c)
An additional term of imprisonment not to exceed 90 days, when combined with the mandatory minimum sentence, may be implemented at the Court's discretion (60 days); and/or
(d)
A fine not less than $251 and not to exceed $500.
B.
The sentencing guidelines in the misdemeanor schedule in this subsection shall apply only to violations in this chapter.
C.
If banishment is ordered:
(1)
The Tribal Court, in its discretion may allow a convicted and banished person to return to the Reservation for medical or behavioral health services at the Menominee Tribal Clinic and the Maehnowesekiyah Wellness Center. The convicted/banished individual must notify Tribal Police of their appointment prior to their scheduled appointment and shall carry proof, such as a letter and/or appointment card signed by an official from the service provider, of their appointment; travel must be directly to the appointment and the individual must immediately leave the reservation following the conclusion of their appointment.
(2)
In the event of a death in the immediate family of the convicted/banished person, the Tribal Court, in its discretion, may order permission for such person to return to the Reservation for a period not to exceed four days. The convicted/banished individual must notify the Tribal Police Department of the request and any subsequent Court order.
D.
Referrals to Drug Treatment and Diversion Court Programs may be made by the Court for cases that qualify under established program guidelines.
E.
Court may require that the defendant complete an AODA assessment from a licensed professional approved by the court and attend and complete any certified alcohol or drug rehabilitation program if required by the assessment.
F.
Court may order restitution.
G.
Offenses in the article may be subject to federal prosecution in addition to Tribal prosecution. If the Tribal prosecution is dismissed due to federal prosecution, the federal conviction(s) may be used by the Tribal Legislature for banishment pursuant to Chapter 80. Nothing in this chapter restricts or limits the ability of the Tribal Legislature to assert their inherent, sovereign right of exclusion or banishment under tribal law.
The Menominee Tribal Legislature authorizes and directs the Menominee tribal law enforcement officers to complete drug identification by use of a standard drug field test kit or use of The Drug Identification Bible and its associated website. A positive reading for any controlled substance shall be taken as prima facie evidence of a controlled substance.
A.
The following are subject to forfeiture:
(1)
All controlled substances, controlled substance analogs which have been manufactured, delivered, distributed, dispensed or acquired in violation of this Part 1.
(2)
All raw materials, products and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, delivering, distributing, importing or exporting any controlled substance or controlled substance analog in violation of this Part 1.
(4)
All vehicles which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in Subsection A(1) and (2) or for the purpose of transporting any property or weapon used or to be used or received in the commission of any violation under this Part 1, but:
(a)
No vehicle used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the vehicle is a consenting party or privy to a violation of this Part 1;
(b)
No vehicle is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent;
(d)
If forfeiture of a vehicle encumbered by a bona fide perfected security interest occurs, the holder of the security interest shall be paid from the proceeds of the forfeiture if the security interest was perfected prior to the date of the commission of the felony which forms the basis for the forfeiture and he or she neither had knowledge of nor consented to the act or omission.
(5)
All books, records and research products and materials, including formulas, microfilm, tapes, video, and data, which are used, or intended for use, in violation of this Part 1.
(6)
All property, real or personal, including money, directly or indirectly derived from or realized through the commission of any crime under this Part 1.
B.
Property subject to forfeiture under this Part 1 may be seized by any officer or employee designated in Chapter 132 or a law enforcement officer upon process issued by any court of record have jurisdiction over the property. Seizure without process may be made if:
(1)
The seizure is incident to arrest or a search under a search warrant or an inspection under an administrative inspection warrant.
(2)
The property subject to seizure has been the subject of a prior judgment in favor of the Tribe in a criminal injunction or forfeiture proceeding based upon this Part 1;
(3)
The officer or employee or law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4)
The officer or employee or law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this Part 1, that the property was derived from or realized through a crime under this Part 1 or that the property is a vehicle which was used as described in Subsection A(4) of this section.
C.
In the event of seizure under Subsection B, proceedings under Subsection D shall be instituted promptly. All dispositions and forfeitures under this section shall be made with due provision for the rights of innocent persons under Subsection A(4)(a), (b) and (d). Any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the Menominee Tribal Court. The Court shall order such notice as it deems adequate to be given the Tribal Prosecutor and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the courts satisfaction, it shall order the property returned if:
D.
Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the Tribal Police subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this Part 1, the person seizing the property may:
E.
When property is forfeited under this Part 1, the agency whose officer or employee seized the property shall do one of the following:
(1)
Retain it for official use by the Tribe.
(2)
Sell that which is not required to be destroyed by law and which is not harmful to the public. The agency may use 50% of the amount received for payment of forfeiture expenses. The remainders of the proceeds are to be deposited in tribal general funds. In this subsection, "forfeiture expenses" include all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs and the costs of investigation and prosecution reasonably incurred.
(3)
Require the Tribal Police Chief, or designated law enforcement officer by the Police Chief, to take custody of the property and remove it to an appropriate location for disposition in accordance with law.
(4)
If the property forfeited is money, retain the sum of all of the following for payment of forfeiture expenses, as defined in Subsection E(2) above, and deposit the remainder in tribal general funds.
(5)
If the amount of money does not exceed $2,000, 70% of that amount. In excess of $2,000, 50% of the amount seized.
F.
Controlled substances included in Schedule I and controlled substance analogs of controlled substances included in Schedule I that are possessed, transferred, sold, offered for sale or attempted to be possessed in violation of this Part 1 are contraband and shall be seized and summarily forfeited to the Tribe. Controlled substances included in Schedule I and controlled substance analogs of controlled substances included in Schedule I that are seized or come into the possession of the Tribe, the owners of which are unknown, are contraband and shall be summarily forfeited to the Tribe.
G.
Flunitrazepam or ketamine that is possessed, transferred, sold, offered for sale or attempted to be possessed in violation of this Part 1 is contraband and shall be seized and summarily forfeited to the Tribe. Flunitrazepam or ketamine that are seized or come into the possession of the Tribe, the owner of which is unknown, is contraband and shall be summarily forfeited to the Tribe.
H.
Species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this Part 1, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the Tribe.
I.
The failure, upon demand by any officer or employee designated in Chapter 132, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate federal registration, or proof that the person is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.
A.
Type of action; where brought. In an action brought to cause the forfeiture of any property seized under § 306-31, the court may render a judgment in rem or against a party personally, or both. The Menominee Tribal Court shall have jurisdiction over any proceedings regarding the property seized with the Menominee Reservation when the action is commenced in Tribal Court. Any property seized may be continued for cause or upon the stipulation of the parties. Any property seized may be the subject of a federal forfeiture action.
B.
Commencement.
(1)
The Tribal Prosecutor of the Menominee Indian Reservation shall commence the forfeiture action within 60 days after the seizure of the property, except that the defendant may request that the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the Menominee Tribal Clerk of Court, provided service of authenticated copies of those papers is made within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.
(2)
Upon service of an answer, the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.
(3)
If no answer is served or no issue of law or fact has been joined and the time for that service or joining issue has expired, or if any defendant fails to appear at trial after answering or joining issue, the court may render a default judgment.
C.
Burden of proof. The Tribe shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of credible evidence that the property is subject to forfeiture under this Part 1.
D.
Action against other property of the person. The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under this Part 1 if the property subject to forfeiture meets any of the following conditions.
(1)
Cannot be located.
(2)
Has been transferred or conveyed to, sold to or deposited with a third party.
(3)
Is beyond the jurisdiction of the court.
(4)
Has been substantially diminished in value while not in the actual physical custody of the law enforcement agency.
(5)
Has been commingled with other property that cannot be divided without difficulty.
