[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:
A.
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;
B.
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";
C.
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:
The Nottawaseppi Huron Band of the Potawatomi Tribal Council,
the governing body of the Tribe pursuant to Article IV of the Constitution.
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.
The NHBP Police Department, or any subsequent tribal department
or agency with primary law enforcement responsibilities on the Tribe's
land or properties.
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.
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.
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:
A.
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.
B.
Conviction of domestic violence or multiple domestic violence offenses
occurring on or off tribal lands or properties, which involve physical
injury or sexual assault.
C.
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.
D.
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.
E.
Illegal controlled substance production, manufacture, trafficking,
distribution or cultivation, including the cultivation of marijuana
plants within or on tribal lands and property.
F.
Repeated or serious illegal damage to the property or natural resources
of the Tribe, including land clearing, timber harvesting, and water
quality impacts.
G.
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.
H.
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.
I.
Interference or threats to interfere with the governmental operations
or business activities of the Band.
J.
Exclusion from a neighboring reservation for offenses or conduct
stated herein.
K.
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.
A.
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.
C.
A complaint for exclusion shall be filed with the Tribal Council
Coordinator.
D.
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.
A.
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:
(1)
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.
(2)
By any means that will provide actual notice to the attorney representing
the Tribe in the exclusion hearing.
(3)
Be served no later than 10 days prior to the hearing, unless grounds
exist for an emergency exclusion.
(4)
State the date, time and location of the hearing for consideration
of the exclusion request.
(5)
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.
(6)
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.
B.
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.
A.
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.
B.
The hearing shall be recorded.
C.
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.
D.
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.
E.
The Court shall have the discretion to direct questions to either
side relative to the proposed exclusion.
F.
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.
A.
An exclusion ordered under this code may be from all, or any portion,
of tribal lands or property.
B.
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.
C.
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.
D.
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:
(1)
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;
(2)
An appointment with the relevant staff/program is scheduled
in advance;
(4)
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
(5)
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.
(6)
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.
A.
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.
B.
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.
C.
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.
D.
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.
A.
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.
B.
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.
C.
Within three weeks of the date an appeal is filed, the Tribal Supreme
Court shall hear the appeal.
D.
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.
E.
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.
F.
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.
G.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.[1]
D.
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.
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.
