[HISTORY: Adopted by the Tribal Council of the Nottawaseppi Huron Band of the Potawatomi 5-19-2016 by Res. No. 05-19-16-12; amended in its entirety 3-16-2017 by Res. No. 03-16-17-12]
This code shall be known as the "Exclusion Code."
The Tribal Council finds and declares that:
Article VI, Section 1(k) of the Constitution of the Nottawaseppi Huron Band of the Potawatomi grants to the Tribal Council the power to regulate the conduct of all persons (Indian and non-Indian) who enter, reside on, and/or conduct business on the Band's lands and the power to exclude persons not qualified to enter upon or reside within tribal trust lands under statutes promulgated by the Tribal Council;
Article VII, Section 1(a) of the NHBP Constitution provides that the Band, in exercising the powers of self-government, shall not "[d]eny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law";
Exclusion or banishment from the Band's community and/or lands is a traditional Bodewadmi remedy that is typically implemented as a last resort, or used in emergency or other exigent circumstances, in order the protect the health, safety and security of persons residing on tribal lands or property.
The purpose of this code is to implement the authority set forth in Article VI, Section 1(k) of the NHBP Constitution to govern the exclusion of persons, both Indian and non-Indian, from NHBP lands and property for the purpose of protecting the territory and health and safety of persons within the jurisdiction of the Band.
As used in this chapter, the following terms shall have the meanings indicated:
- COUNCIL or TRIBAL COUNCIL
- The Nottawaseppi Huron Band of the Potawatomi Tribal Council, the governing body of the Tribe pursuant to Article IV of the Constitution.
- COURT or TRIBAL COURT
- The Nottawaseppi Huron Band of the Potawatomi Court, as established under Article XI of the Constitution.
- Prohibiting or conditioning entry of a person from all or a portion of the Tribe's lands or properties and includes the exclusion or permanent banishment of NHBP tribal members, non-member Indians and non-Indian persons.
- Any individual, firm, corporation, or public or private entity, including a business entity.
- POLICE DEPARTMENT
- The NHBP Police Department, or any subsequent tribal department or agency with primary law enforcement responsibilities on the Tribe's land or properties.
- PUBLIC RIGHT-OF-WAY
- Any lawful right-of-way, such as a public road, located within the boundaries of tribal lands that is open to public access as a matter of federal law or applicable state law.
- TRIBAL LANDS OR PROPERTY
- Includes all lands defined as "Indian country" by 18 U.S.C. § 1151, the Pine Creek reservation, Firekeepers Casino and Hotel, and any other property owned in fee by NHBP or any of its agencies, subdivisions or instrumentalities, or held in trust for NHBP now and in the future.
- TRIBE OR NHBP
- The Nottawaseppi Huron Band of the Potawatomi, a federally recognized tribe.
A person may be excluded from tribal lands and property for any of the following reasons:
Repeated invasion of the privacy, stalking or harassment of tribal members or Reservation residents as evidenced by restraining orders against that person by tribal members, the Tribe, or Reservation residents.
Conviction of domestic violence or multiple domestic violence offenses occurring on or off tribal lands or properties, which involve physical injury or sexual assault.
Conviction of a serious crime on or off the reservation involving violence against persons or property, including arson, murder, rape, assault with a deadly weapon, or a sexual offense against a minor or a vulnerable adult.
As a condition of bond or release for any person charged with an offense of domestic or family violence, or any other serious offense involving violence or threats of violence against persons or property within tribal lands or property.
Illegal controlled substance production, manufacture, trafficking, distribution or cultivation, including the cultivation of marijuana plants within or on tribal lands and property.
Repeated or serious illegal damage to the property or natural resources of the Tribe, including land clearing, timber harvesting, and water quality impacts.
Repeated unauthorized entry onto tribal lands or property, or premises leased to individuals on tribal lands or property, including residing in tribal rental housing in violation of housing policies and/or any rental agreement.
Conviction of crimes committed on or off reservation related to disturbing or excavating items, sites or locations of religious, historic or scientific purposes, including graves, without authorization of the Tribe or in violation of the laws, customs, or traditions of the Tribe or any state or federal law.
Interference or threats to interfere with the governmental operations or business activities of the Band.
Exclusion from a neighboring reservation for offenses or conduct stated herein.
Any other misconduct or objectionable condition that threatens the life, health, safety, or property of a tribal member, a Reservation resident, or the Tribe and is found by the Tribal Court or Council to be sufficient cause for expulsion, so long as the person is first advised of the objection and given notice to desist but nevertheless continues the misconduct or condition.
This code and the authority to exclude persons not qualified to enter or reside on the NHBP Reservation, set forth in Article VI, Section 1(k) of the NHBP Constitution, shall extend to all persons, including nonmembers, in order to implement the Tribe's authority and responsibility to protect the health and safety of the tribal community and persons within the jurisdiction of the Band.
All requests for exclusion of a person shall be initiated through a written complaint filed with the Tribal Council.
All complaints for exclusion shall contain the name of the person to be excluded, a brief statement of the grounds for exclusion, and shall be signed by the complaining witness.
A complaint for exclusion shall be filed with the Tribal Council Coordinator.
The complaining party shall attend the next regular or special meeting, as scheduled by the Tribal Council, and shall provide any necessary information requested by the Tribal Council.
Upon majority vote of the Tribal Council that sufficient cause exists to initiate exclusion proceedings, it shall initiate exclusion proceedings by resolution authorizing the Tribal Prosecutor or Legal Department, as appropriate, to file a complaint and petition the Tribal Court seeking exclusion of the named person.
Upon receipt of the complaint, petition and resolution authorizing initiation of exclusion proceedings, the Tribal Court shall promptly cause notice to be served, as follows:
By personal service, or by first class mail, return receipt requested, to the last known address of the person named in the complaint for exclusion or, in the case of a nonnatural person, by first class mail, return receipt requested to a designated officer or agent for service. If notice is by mail, service shall be deemed complete upon the date of the return service.
By any means that will provide actual notice to the attorney representing the Tribe in the exclusion hearing.
Be served no later than 10 days prior to the hearing, unless grounds exist for an emergency exclusion.
State the date, time and location of the hearing for consideration of the exclusion request.
A copy of the complaint filed with the Tribal Council stating the grounds for the exclusion order, including a brief summary of facts, which shall serve as the basis for the proposed exclusion order.
Inform the person of his/her right to be represented by private counsel at his/her own expense, to present evidence and witnesses, and to cross-examine adverse witnesses.
If personal service cannot be completed, the Tribal Court may allow for service in any manner authorized under the Tribal Court Rules of Civil Procedure.
After proper notice has been served, the Tribal Court shall hold a hearing to determine whether grounds for removal have been proven by clear and convincing evidence.
After proper notice has been served, if the person does not appear at the hearing at the time and place scheduled, the Tribal Court may enter a default order to exclude such person.
The hearing shall be recorded.
The attorney representing the Tribe in the exclusion hearing shall establish the basis for the proposed exclusion action by presenting evidence, including any witness testimony. The person subject to the proposed exclusion or that person's attorney may cross-examine each witness.
The attorney representing the Tribe may, as appropriate, present the case for exclusion. The person subject to the proposed exclusion or that person's attorney may present evidence or call witnesses to oppose the exclusion.
The Court shall have the discretion to direct questions to either side relative to the proposed exclusion.
Within one week following the conclusion of the hearing, the Tribal Court shall issue a written order containing findings of facts and conclusions of law.
An exclusion ordered under this code may be from all, or any portion, of tribal lands or property.
An exclusion ordered under this code may be for any period of time including an indefinite or intermittent period or a permanent lifetime ban. An exclusion order may also be for all tribal lands and property or only as to a specific location.
Exclusions may be conditional, and could be subject to stipulations that involve restitution to NHBP or to individuals; compliance with restraining orders; or any other condition deemed necessary and appropriate by the Tribal Court.
If the exclusion resolution or order is directed to a person who is eligible to receive health or other services from the NHBP Health and Human Services Department, that person will be permitted to meet with relevant NHBP program staff, provided that:
The exclusion resolution is not for exclusion from the Health Department, any of its offices or in relation to a protective order issued to protect a staff member in the Department from the excluded person;
An appointment with the relevant staff/program is scheduled in advance;
The excluded person/party must receive written documentation from the Tribal Police Department acknowledging confirmation of the excluded person/party's appointment and authorizing the visit to the excluded location; and
The excluded person/party refrains from all unnecessary socializing with other NHBP staff and avoids all discussion with NHBP staff and community members regarding the circumstances of his/her exclusion.
Tribal Council reserves the right to exclude persons from participating in/attending cultural or social events held on any tribal lands or property, including the Tribal Community Center or Pow Wow grounds.
If a complaint for exclusion involves immediate or substantial danger to the political integrity, the economic security, or the health or welfare of the Tribe, any tribal member, or any resident or business invitees of tribal lands or properties and where delay may result in irreparable harm, the Council Chairperson or any two members of the Tribal Council may call an emergency meeting for the purpose of considering the complaint for exclusion.
If the Tribal Council, by majority vote of a quorum, determines that sufficient cause exists to exclude the person due to immediate danger and threat of irreparable damage, the Tribal Council may adopt a resolution authorizing a complaint and petition under § 8.16-8 and directing the Police Department to temporarily exclude and remove such person from tribal lands or properties using only as much force as is reasonable and necessary to effect the removal.
The Police Department shall serve notice upon the person at the time of, or as soon as is practicable after, the person's removal. Once the person is removed, the person will be excluded until the conclusion of exclusion proceedings conducted in conformance with the provisions of § 8.16-7 through 8.16-11 of this code.
The excluded person shall be permitted to enter tribal lands and properties in the company of a Police Department officer as necessary to effectively participate in such exclusion proceedings or attend scheduled medical appointments.
The remedies provided for in this code are in addition to any other available remedies or right authorized representatives of the tribal government operations or tribal business enterprises may have to exclude persons from government offices or business premises under approved policies and procedures, the NHBP Gaming Regulatory Act, or other applicable law.
Any person or party who has been the subject of an exclusion order under this code shall have the right to appeal his/her exclusion in the Nottawaseppi Huron Band of the Potawatomi Tribal Supreme Court. Such appeal must be filed within 30 days from the date the Tribal Court decision was filed.
A copy of the appeal must be served on the Tribe's Legal Department at 1485 Mno-Bmadzewen Way, Fulton, MI 49052, and the Tribal Council shall have the right to file a response to the appeal.
Within three weeks of the date an appeal is filed, the Tribal Supreme Court shall hear the appeal.
The Tribal Supreme Court shall respect the broad discretion, which the NHBP Constitution and this code vests in the Tribal Council with respect to its powers of exclusion.
The decision of the Tribal Supreme Court must be released within five days of the hearing or, if the hearing was continued/adjourned for any purpose, within five days of the last court proceeding on the matter.
The excluded person/party shall be allowed reentry onto Tribal property for the limited time and purpose of attending any hearings or proceedings under this section.
The Tribal Supreme Court is encouraged to recite this statutory authority for reentry on its notices of hearings to the excluded person/party. The Tribal Court shall provide notice to the Tribal Police of the hearing and the excluded person's requirement to be present.
Violation of the terms of an exclusion ordered under this code, by a person subject to the criminal jurisdiction of the Tribe, shall constitute a criminal offense punishable by up to one year of imprisonment and/or a fine of up to $5,000 and the criminal offense of trespass under the NHBP Criminal Code.
Violation of the terms of an exclusion ordered under this code, by a person subject to the civil jurisdiction of the Tribe, shall constitute a civil offense punishable by a fine of up to $5,000 for each incident.
An exclusion order enacted under this code may include a requirement for the person/party excluded to pay initial costs associated with his or her exclusion. Such costs could include, but are not limited to execution of an eviction; any additional law enforcement effort required to ensure an individual complies with an exclusion order; recovery of Tribal property; costs to remove personal property left behind by the excluded individual.
If an assessment has been sent or otherwise provided to a person under this section but payment has not been received by the Nottawaseppi Huron Band of the Potawatomi within 60 days of the date of service (date of mailing if sent via mail), the Tribal Prosecutor may move the Tribal Court to hold a hearing at which the person shall show cause as to why he or she should not be charged with a criminal offense under § 8.16-15 of this Act.
If the person subject to exclusion is an enrolled tribal member, the unpaid assessment amount or monetary penalty assessed under this code shall be deducted from the next regularly scheduled per capita distribution as provided for in the NHBP Garnishment of Per Capita Payments Code.
Editor's Note: See Ch. 8.17, Per Capita Payment Garnishment.
If the exclusion is reversed by the Tribal Court on appeal, no fees will be incurred, and any costs paid shall be reimbursed. If the excluded person/party is an employee, he/she will be able to return to work and be paid for the time lost as a result of the exclusion.
Upon the exclusion of a person/party, a copy of the Tribal Court's order will be sent to Tribal Police. Tribal Police will escort the excluded person/party off and out of the premises they are excluded from.
Tribal Police shall keep and maintain a record of those excluded.
Tribal Police maintains the power to remove a person/party and initiate the process of enforcement of § 8.16-16 of this code.
Except to the extent that this code provides for judicial review by the NHBP Tribal Court, nothing in this chapter shall be interpreted as a waiver of the Tribe's sovereign immunity from unconsented lawsuit, or as authorization for a claim for monetary damages against the Tribe.
Nothing in this code shall be read or interpreted as a limitation of the Tribal Court's inherent authority to exclude persons from tribal lands or property as a condition of bond for any person charged with a criminal offense, as a condition of a personal protection order, or as a condition of any judgment entered upon conviction of a criminal act.
If any provision of this code or its application to any person or circumstance is held invalid, the remainder of this code or its application to other persons or circumstances shall not be affected, and to this end, the provisions of this code are severable.
This code shall have immediate effect upon adoption by the Council.