HISTORY: Adopted in its entirety by the Legislature of the Menominee
Indian Tribe December 1, 2016, by Ord. No. 16-27; adopted and amended
in its entirety by Ord. No. 18-38; approved by the Secretary of the
Interior on 7-25-2019, published approval in Federal Register Vol.
84, No. 201, October 17, 2019.
[1]
Editor's Note: Adopted in its entirety by the Legislature
of the Menominee Indian Tribe December 1, 2016, by Ord. No. 16-27;
adopted and amended in its entirety by Ord. No. 18-38; approved by
the Secretary of the Interior on 7-25-2019; published approval in
Federal Register Vol. 84, No. 201, October 17, 2019.
A.
The Menominee Indian Tribe historically inhabited more than 12 million
acres of land in what became the State of Wisconsin. Land cessions
by treaties reduced Menominee Land to about 235,000 acres by 1856.
Tribal lands were further reduced by the disastrous policy of Termination.
Today, almost 90% of tribal land is held in sustained yield leaving
only 10% for other uses.
B.
The purpose of this article is to:
(1)
Recognize the authority of the Menominee Indian Tribe of Wisconsin
to enter into, and issue, residential, agricultural, and commercial
leases and to establish procedures for environmental review, approval,
management, and enforcement of those leases.
(2)
This article shall govern and control the leasing of all Tribal lands
on the Menominee Indian Reservation.
(3)
This article shall be liberally interpreted and construed to implement
the Helping Expedite and Advance Responsible Tribal Home Ownership
Act of 2012 ("HEARTH Act"), which amended 25 U.S.C. 415, by establishing
a process under which leases will not require approval of the Secretary
of the Interior if the lease is executed under Menominee Tribal HEARTH
Act Leasing Ordinance approved by the Secretary of the Interior.
(4)
Nothing in this article is intended to expand the authority or responsibility
of the Secretary of the Interior beyond that provided under applicable
federal statutes or regulations.
(5)
This article shall serve to promote self-determination, encourage
economic self-sufficiency, facilitate economic development, and further
promote investment in the tribal community while maintaining the critical
role and responsibility of protecting Tribal Land and resources.
This article may be amended through the ordinance process by
majority vote of the Menominee Tribal Legislature, provided that no
major substantive amendment hereto shall be effective unless approved
by the Secretary of the Interior in accordance with applicable federal
laws and regulations. Minor technical amendments shall be effective
without approval by the Secretary of the Interior.
For the purpose of this article, the following terms shall have
the meaning indicated:
A lease of Menominee agricultural land for agricultural use,
farming, and/or grazing purposes.
Agricultural, horticultural, viticulture, and dairy products,
livestock and products thereof, the products of poultry and bee raising,
the edible products of forestry, and any and all products raised or
produced on farms and processed or manufactured products thereof,
transported or intended to be transported in interstate and/or foreign
commerce.
The production of food, feed, and fiber commodities, livestock
and poultry, bees, fruits and vegetables, and sod, ornamental, nursery,
and horticultural crops that are raised, grown, or produced for commercial
purposes as well as the raising of domestic animals and wildlife in
domestication or a captive environment.
The American Indian Agricultural Resources Management Act
of December 3, 1993 (107 Stat. 2011, 25 U.S.C. § 3701 et
seq.) as amended on November 2, 1994 (108 Stat. 4572).
See "developed lots."
An agreement between a lessee and an assignee, whereby the
assignee acquires all or some of the lessee's rights, and assumes
all or some of the lessee's obligations under a lease.
The Bureau of Indian Affairs.
Security for the performance of certain lease obligations,
as furnished by the tenant or lessee, or a guaranty of such performance
as furnished by a third-party surety.
See "commercial lease."
Any lease or other agreement for use of tribal land between
the Tribe, as lessor, and a member of the Tribe or other qualified
individual, as for commercial, business, and for a specified duration.
For the purposes of this article, industrial leases shall be treated
as commercial leases with the difference only in the types of designated
uses under Tribal law.
Notice:
The Land Management Department; or any future reorganized
and named Tribal department that has taken on the duties involving
leasing of tribal lands and real estate services.
[Amended 11-19-2020 by Ord. No. 20-37]
Developed lots are lots recorded by the Land Management Department in a list of available lots. Generally, although not exclusively, these lots have a certified survey, completed archaeological review, completed environment reviews, and are already approved and zoned for specific uses. Lots not on the Department's list may be placed on the list through the procedures listed in Chapter 340, Forest Management and Development; Chapter 600, Land Use and Natural Resource Plan; Chapter 625, Zoning; Community Development Committee Policies and Procedure, and Land Management Department's Policies and Procedure.
[Amended 11-19-2020 by Ord. No. 20-37]
The Chairperson of the Menominee Indian Tribe of Wisconsin
or his/her designee, if properly designated, who shall have the authority
to execute residential, agricultural, commercial site leases on tribal
lands controlled by the Menominee Indian Tribe of Wisconsin, and take
all necessary and proper action on leases, including amendments, modifications,
assignments, and cancellations of leases.
The amount of rental income that a leased tract of tribal
land would most probably command in an open market or competitive
market, or as determined by competitive bidding.
The amount of rental income that a leased tract of the Tribe's
land would most probably command in an open and competitive market,
or as determined by competitive bidding.
Two people legally married and recognized by tribal law,
two individuals living together (meaning cohabitation as evidenced
by a sworn statement on the application form), or a single adult person
residing in the same household as the above, or with any biological
children or legally adopted children, including tribal customary adoption,
under the age of 18 years old.
Any of the following that pose a threat to public health,
safety or property rights:
Scrap metal, glass, paper products, metal alloy, wood, perishables,
debris, refuse, remnants, garbage, aluminum, steel, tires, concrete
or synthetic material, including, but not limited to, tanks, barrels,
cages, pallets, wire/cable, furniture, culverts, bricks, appliances,
waste or bottles.
Any junked, ruined, dismantled, wrecked, unlicensed, unregistered
or inoperative motor vehicles, including, but not limited to, buses,
vans, trucks, cars and recreation vehicles.
Any junked, ruined, dismantled or wrecked machinery, including,
but not limited to, farm equipment, construction equipment, campers,
snowmobiles, boats and parts thereof.
All parts of dismantled buildings or structures, including,
but not limited to, abandoned mobile homes, manufactured homes, or
other abandoned homes or structures.
Any home that is:
Uninhabitable or unkempt for a period of more than 180 consecutive
days;
Not hooked up to a legal and functioning sewage system for more than 14 days unless used as an accessory structure in accordance with Chapter 625, Zoning;
Burned out or otherwise an eyesore and a burden on surrounding
property; or
Not in conformance with Chapter 625, Zoning, for more than 14 consecutive days.
The lease or other written agreement for use of tribal land
between the Tribe, as lessor and lessee for a specified purpose and
duration. Lease agreements may relate to land or land and buildings.
The lessee's right to possess will limit the Tribe's right
to possess the leased premises only to the extent provided in the
lease.
The property and improvements subject to a lease.
The possessory interest in the Tribe's land established
pursuant to a lease between a lessor and a lessee.
The interest of a lessee in the lease.
A mortgage, deed of trust, or other instrument that pledges
a lessee's leasehold interest as security for a debt or other
obligation owed by the lessee to a lender or other mortgagee.
The lessee or a person to whom property is leased under a
lease; one who has the right to use or occupy a property under a lease
agreement.
A person or entity to whom property (Menominee Tribal Trust
Land) is leased under a lease. One who has the right to use or occupy
a property under a lease agreement, e.g., the leaseholder.
The Menominee Indian Tribe of Wisconsin.
The Land Titles and Records Office is the office responsible
for maintaining the Indian Land Record of Title and for examining
and determining the completeness and accuracy of the records, certifying
the findings of examination and reporting the status of title to Indian
trust and restricted lands.
One or more enrolled members of the Menominee Indian Tribe
of Wisconsin.
A mortgage, deed of trust, security deed, or other instrument
that pledges a tenant's leasehold interest as security for a
debt or other obligation owed by the tenant to a lender or other mortgagee.
Any lender approved by the Tribe to make and hold a mortgage
and its successors and assigns, or any heir successor, executor, administrator,
or assign therefor, under a leasehold mortgage.
The Tribe or any person or entity who has executed a leasehold
mortgage, including any heir(s), successor(s), executor(s), administrator(s)
or assign(s) thereof.
The National Environmental Policy Act of 1969, 42 U.S.C.
§ 4321 et seq.
Buildings, other structures, and associated infrastructure
attached to the Tribe's land.
Records of activities taken pursuant to this article are
property of the Menominee Tribe and are not public documents except
for the documents required to be publicly posted in compliance with
the environmental review process in this article.
A thing, act, occupation, condition, or use of a property
which continues for such length of time as to substantially annoy,
injure, or endanger the comfort, health, repose, or safety of the
public, or in any way render the public insecure in life or in the
use of property or greatly offend the public morals or decency or
unlawfully and substantially interfere with, obstruct, or tend to
obstruct or render dangerous for passage any street, alley, highway,
navigable waters or other public way, or the use of public property.
The following is a non-exclusive list of actions that may constitute
a public nuisance or, when a threat is posed to public health, safety
or property rights:
[Amended 11-19-2020 by Ord. No. 20-37]
Failure to keep waste, refuse or garbage in an enclosed building
or properly contained in a closed container designed for such purposes;
Failure to maintain a structure in a safe and sanitary condition;
Allowing discharge into the environment of toxic or noxious
materials;
Maintaining an excessive number of animals on premises (too
many animals for the space, food or circumstances as determined by
Land Management Department);
Allowing the accumulation of junk;
Allowing holes or excavations or other physical hazards;
Allowing unused wells not properly sealed;
Allowing liquid, solid wastes or other adverse influences that
will in any way have an objectionable effect upon adjacent or nearby
property;
Allowing exterior storage of scrap lumber, junk, trash, or other
debris, including, but not limited to, discarded objects or equipment
such as vehicles, furniture, appliances, litter, farm, manufacturing
equipment or building materials.
Per Article XI, Section 2(b) of the Constitution and Bylaws
of the Menominee Indian Tribe of Wisconsin, a nonmember who is an
heir or descendant of a member of the Menominee Indian Tribe who,
for purposes of determining inheritance of any land use assignment,
have the same status as heir or descendants who are members of the
Tribe. Provided that, where a nonmember inherits the land use assignment,
and notwithstanding any provision to the contrary in the land use
assignment issued to the deceased member, the term of such use assignment
shall be deemed to be for 25 years. The Tribal Legislature may renew
such assignment for subsequent terms, each not to exceed 25 years.
The land and waters within the exterior boundaries of the
Menominee Indian Reservation, as determined by the Treaties of 1854
and 1856.
The Secretary of the Interior or his or her delegate.
A substantial, or potentially substantial, adverse change
in the environment, including land, air, water, minerals, flora, fauna,
ambient noise, cultural areas and objects of historic, cultural, or
aesthetic significance.
A written agreement by which the lessee grants to an individual
or entity a right to possession no greater than held by the lessee
under the lease and approved by the Menominee Indian Tribe of Wisconsin.
One who guarantees the performance of another.
Any unauthorized occupancy, use of, or action on the Tribe's
land.
The Menominee Tribal Court as established by Article V of
the Constitution and Bylaws of the Menominee Indian Tribe of Wisconsin
or such body as may now or hereafter be authorized by the laws of
the Tribe to exercise the powers and functions of a court of law.
Any tract in which the surface estate is owned by the Tribe
in trust or restricted status, and includes such lands reserved for
BIA administrative purposes. The term also includes the surface estate
of lands held by the United States in trust for an Indian corporation
chartered to the Tribe under Section 17 of the Act of June 18, 1934
(48 Stat. 988; 25 U.S.C. § 477[1]).
The person designated by the Tribe to perform the recording
functions required by this article or any deputy or designee of such
person.
The Menominee Indian Tribe of Wisconsin, a federally recognized
Indian Tribe as provided by the Menominee Restoration Act, December
22, 1973, P.L. 93-197, 87 Stat. 770, which appears generally as 25
U.S.C. § 903 et seq.[2]
Land within the jurisdiction of the Tribe:
That the United States holds title to the tract or interest
in trust for the benefit of the Tribe; or
That the Tribe holds title to the tract, but can alienate or
encumber it only with the approval of the United States because of
limitations in the conveyance instruments under federal law or limitations
in federal law.
Any action which is in violation of Tribal laws, ordinances,
regulations, and Constitution, and any applicable federal laws.
A suit brought before the Tribal Court to terminate a tenant's
interest in real property and/or to evict any person from occupancy
of real property.
A failure to take an action, including payment of compensation,
when required by the lease, or otherwise not comply with a term of
the lease. This definition applies for purpose of enforcement of a
lease under this article no matter how "violation" or "default" is
defined in the lease.
Spoilage, damage or destruction of land, buildings, gardens,
trees or other improvements beyond normal wear and tear on the mortgaged
property which results in substantial injury to such property.
The Wisconsin Housing and Economic Development Authority,
an approved lender and mortgagee under this article.
An order of the Tribal Court:
[1]
Editor's Note: 25 U.S.C. § 477 was transferred to
25 U.S.C. § 5124 by P.L. 101–301, May 24, 1990, 104
Stat. 206.
[2]
Editor's Note: P.L. 93-197, § 2, Dec. 22, 1973, 87 Stat.
770, providing definitions, was omitted pursuant to editorial reclassification
of provisions of Title 25, Chapters 14 and 19, United States Code.
A.
Article III, Section 1, Powers of Tribal Legislature; Article IV, The Tribal Legislature; and Bylaws II-Procedure of the Tribal Legislature of the Constitution and Bylaws of the Menominee Indian Tribe of Wisconsin grant the Tribal Legislature the power to make and enforce laws, included codes, ordinances, resolutions, motions, regulations, and statutes.
B.
Article X. Limited Power of Tribal Legislature to Transfer Ownership
of, or to Encumber, Tribal Land or Interest Therein, Section 1(b)
of the Constitution and Bylaws of the Menominee Indian Tribe of Wisconsin
grants the Tribal Legislature the power to authorize leases to tribal
members of the Tribe for specified portions of tribal land for residential,
agricultural, or commercial purposes and grants of permission to tribal
members and qualified nonmembers to use specified portions of tribal
land for residential, agricultural, or commercial purposes.
C.
Article XI, Use of Tribal Land By Tribal Members and Qualified Non-Tribal
Members, Section 2(b) authorizes an heir or descendant exception to
the prohibition of use of tribal lands by nonmembers and granting
the Tribal Legislature the authority to renew assignments.
A.
All leases will be subject to the approval of the Menominee Tribal
Legislature in accordance with this article.
B.
Leases submitted for approval shall have attached all documents required
to be submitted with the lease application under this article, i.e.,
financial statements, environmental review, site survey and legal
descriptions.
C.
All leases shall be signed by the executing official of the Tribe.
D.
After the Secretary of Interior approves these regulations, all leases
which are approved and executed under this article, shall be effective
without Department of Interior approval.
E.
Any lease, which is approved and executed under this article, shall
refer to this article as authority for its execution on behalf of
the Tribe.
The following requirements of this section pertain to every
request for a residential, agricultural and/or commercial leases:
A.
The applicant must be an enrolled member of the Tribe, except:
(1)
Tribal businesses and special purpose legal entities eligible pursuant to Chapter 18, Businesses, Tribal departments and Tribal programs shall be deemed members of the Menominee Indian Tribe for the purpose of leasing tribal lands pursuant to this article.
(2)
A nonmember who is an heir or descendant of a member of the Menominee
Indian Tribe who inherits a leasehold interest shall, for the purposes
of determining inheritance of the lease, have the same status as heirs
or descendants who are members of the Tribe.
B.
Before a lessee can reapply or be approved for any future lease,
he/she must pay back any lease fees that are owed to the Menominee
Indian Tribe of Wisconsin.
C.
An applicant is eligible for only one waterfront property lot per
family unit.
D.
If a person is applying for a different residential lot, he/she must
relinquish any interest he/she has in his/her present residential
lot.
E.
An individual is not eligible for waterfront property if they already
own or lease waterfront property on the reservation.
F.
An applicant is not eligible for a residential property if they already
lease from the Tribe a residential property. Applicants are only eligible
for one residential lot per family unit.
G.
Only lots that are developed and not in sustained yield areas will
be considered for a lease application.
A.
These terms shall apply to the following leases:
(1)
Residential lease term shall be for 25 years. The lease may renew
for two subsequent 25-year terms. The total term shall not exceed
75 years.
(2)
Agricultural leases shall not exceed 10 years unless a substantial
investment in the improvement of the land is required. If a substantial
improvement is required, the maximum term may be up to 25 years. The
lease may renew up to one additional term, which may not exceed 25
years.
(3)
Commercial lease initial terms shall not exceed 25 years except that
any such lease may include option(s) to renew. Such renewals shall
not exceed 25 years per term and the total maximum lease term shall
not exceed 75 years.
All leases shall be in writing and, at a minimum, shall contain
provisions addressing and/or identifying the following:
A.
Parties to the lease;
B.
A description of the land being leased; a certified survey map and
a legal lot description sufficient to meet the BIA Land Title and
Records Office requirements;
C.
The term of the lease and the effective date of the lease and lease
documents;
D.
A description of the purpose of the lease and what uses of the leased
premises are authorized;
E.
The amount of rent and/or compensation that is due, when it is due,
who receives it, what form of payment is acceptable, and whether any
late charges or special fees apply;
F.
What performance bond and/or insurance requirements apply, if any;
G.
If a lease authorizes or requires the lessee to make permanent improvements
during the term of the lease, identify the general type and location
of each improvement, ownership of improvement, the responsibility
for constructing, operating, maintaining, and managing any removal
of permanent improvements during the lease term; require reasonable
notice to the lessor of the construction of any permanent improvement
not described in the lease and address the ownership and disposition
of each improvement at the expiration of the lease; and specify consequences
to the lease or lessee for delinquency of or failure to adhere to
these improvement requirements;
H.
Specified necessary improvements, if any are required, must be recorded
in the lease. The lease shall describe all completion guidelines,
schedule(s) and deadlines. Failure to comply with all improvement
requirements and deadlines will be deemed a violation of the lease
and shall result in the cancellation of the lease unless stated otherwise
in the lease;
I.
Provide that the lessee must comply with all applicable laws, rules,
regulations and policies;
J.
State express prohibitions for unlawful conduct, creation of nuisance,
illegal activity, or negligent use or waste of leased premises or
any other prohibited actions under this article;
K.
State an express indemnification of the Tribe and the United States;
L.
State the governing law, which includes Menominee Law and applicable
federal statutes and regulations;
M.
Include or attach all other provisions required under any applicable
federal statutes;
N.
State, if any, due diligence requirements that apply;
O.
State, if any, performance bond and insurance requirements that apply;
P.
Describe the state of utilities and road access and include or attach any written provisions required in § 138-15;
Q.
A provision stating that nothing contained in this lease shall operate
to delay or prevent a termination of federal trust responsibilities
with respect to the land by the issuance of a fee patent or otherwise
during the term of the lease; however, such termination shall not
serve to abrogate the lease. The owners of the land and the lessee
and his surety or sureties shall be notified of any such change in
the status of the land;
R.
State the process for lease amendment(s), which shall only be in
writing signed by both parties and any other applicable amendment
requirements outlined in this article. State that any amendments or
changes made to any lease document need to be approved by the Menominee
Tribal Legislature and signed by the executing official. The lease
must expressly state the requirements for amending the lease.
S.
Requirement that the lessee, when appropriate, must provide environmental
and archaeological reports, surveys, and site assessments, as needed,
to document compliance with the Tribe's archaeological and environmental
review process and other application tribal and federal land use requirements;
T.
The following terms must be included:
(1)
Hazardous materials. The lessee indemnifies the lessor and the United
States against all liabilities or costs in relation to the use, handling,
treatment, removal, storage, transportation, or disposal of hazardous
materials, or release or discharge or any hazardous materials from
the leased premises that occurs during the lease term, regardless
of fault, with the exception that the lessee is not required to indemnify
the lessor for liability or cost arising from the lessor's negligence
or willful misconduct;
(2)
Hold harmless. The lessee holds the lessor and the United States
harmless from any loss, liability, or damages resulting from the lessee's
use or occupation of lease premises;
(3)
Historic preservation. If historic properties, archaeological resources,
human remains, or other cultural items not previously reported are
encountered during the course of any activated associated with this
lease, all activity in the immediate vicinity of the properties, resources,
remains, or items will cease and the lessee will contact Tribe and
BIA to determine how to proceed and appropriate disposition;
(4)
Improvements. All permanent improvements and responsibility for constructing,
operating, maintaining, and managing permanent improvements are of
the lessee during the term of this lease.
(5)
Inspection of premises. The lessor and their authorized representative
shall have the right, at any reasonable time during the term of this
lease, and with reasonable notice, to enter upon the leased premises,
or any part thereof, to inspect the same and all buildings and other
improvements erected and placed thereon; and
(6)
Inspection of records. The lessor and the appropriate agencies may
treat any failure by the lessee to cooperate with a request to make
appropriate records, reports, or information available for inspection
and duplication as lease violations.
U.
Expressly prohibit lessees from expanding the lot, constructive possession,
and the construction of any improvements, permanent or temporary beyond
the described and recorded lease description;
V.
State whether there will be rental reviews or adjustments, how and
when they will be done, when any adjustment will be effective, and
how disputes regarding adjustments will be resolved;
W.
State the terms of holdover and trespass; and
X.
Any other terms or provisions the Tribe deems necessary.
Below are additional, lease-type specific requirements for agricultural,
residential and commercial leases.
A.
Agricultural leases.
(1)
Lease requirements.
(a)
Include stipulations to follow the Tribe's general conservation
plan or the specifically negotiated conservation plans and/or agricultural
management site plan as described in the lease;
(b)
Objectives of the agricultural resource management plan and/or
land use, and conservation plans developed by the tribe, if any, or
by the BIA in close consultation with the Tribe, under AIARMA;
(c)
Include or attach all other provisions required under any applicable
federal statutes or regulations.
(2)
Lease amounts. Agricultural lease amounts may be:
(a)
A fixed amount per acre;
(b)
A fixed amount per term to be set in the lease; or
(c)
Based on a share of the agricultural products generated by the
lease, or a percentage of the income to be derived from the sale of
such agricultural products.
(d)
Leases may be amended to allow for lease rate adjustments.
(3)
Agricultural management. All agricultural leases shall require the
lessee to manage the land in accordance with the management principles
established by the Tribe.
(4)
Types of agricultural leases permitted shall be the same as the principal
uses permitted in the A-1 District under agriculture, including animal
boarding (kennel), commercial beekeeping, dairying, floriculture,
forestry, general farming, grazing, horticulture, nurseries, orchards,
paddocks, pasturage, stabling, and viticulture or any conditional
uses approved by the legislature.
B.
Residential leases.
(1)
A one-acre limit will be set for residential leases. However, the
Land Management Department shall require lots to be surveyed at the
applicant's expense for lots that are not already surveyed, platted,
and recorded by the Department;
[Amended 11-19-2020 by Ord. No. 20-37]
(2)
The lessee must have and provide to the Land Management Department
proof of ownership of permanent or any physical improvements on the
land;
[Amended 11-19-2020 by Ord. No. 20-37]
(3)
If no physical improvements exist, lessee shall have 12 months to construct or acquire. If construction is not completed the lessee may be given a twelve-month extension, approved by legislative motion, if construction has commenced but has been delayed for good cause as defined by the lease. Failure of the lessee to comply with these requirements will be deemed a violation of the lease and may lead to the cancellation of the lease under this Article I;
(4)
Lease amount may be a fixed amount per term to be set in the lease;
current economic conditions may be used to determine the lease amount;
(5)
Lease may be amended to allow for lease rate adjustment.
C.
Commercial leases. Commercial leases shall mean the commercial and
industrial uses and leases authorized in Article X, Limited Power
of Tribal Legislature to Transfer Ownership of, or to Encumber Tribal
Land or Interests Therein; and Article XI, Use of Tribal Land by Tribal
Members and Qualified Non-Tribal Members of the Constitution and By-laws
of the Menominee Indian Tribe of Wisconsin.
(1)
Terms and conditions. The commercial lease shall be governed by the
terms and conditions set forth in the commercial lease agreement.
The standard terms and conditions may be modified only with approval
by motion of the Tribal Legislature if authorized by this article.
The lessee is responsible for understanding these terms and conditions.
(2)
Lease amount.
(a)
No lease shall be approved for less than the fair annual lease
value, except as follows:
[1]
The lease is in the development period;
[2]
The Legislature is providing an incentive for a business to
locate on the Nation's land and must provide lease concessions,
lease improvement credits, or lease abatements to attract such business;
or
[3]
The Legislature determines such action is in the best interest
of the Tribe.
(b)
A lease may be structured at a flat lease rate;
(c)
A lease may be structured as a flat lease rate plus a percentage
of gross receipts if the lessee is a business located in a shopping
center or mall or the lessee generates over $1,000,000 annually in
gross receipts;
(d)
A lease may be structured based on a percentage of gross receipts
or based on a market indicator;
(e)
The lease may provide for periodic review and such review may
give consideration to the economic conditions, exclusive of improvement
or development required by the contract or the contribution value
of such improvements;
(f)
Leases may be amended to allow for lease rate adjustments;
(g)
The Land Management Department shall keep written records of
the basis used in determining the fair annual lease value as well
as the basis for adjustments. These records shall be presented to
the lessee for its review and acceptance or non-acceptance and included
in the lease file.
[Amended 11-19-2020 by Ord. No. 20-37]
(3)
Improvements. The lease shall require the lessee, at the lessee's
expense or as otherwise provided in the lease, to exercise due diligence
and best efforts to complete construction of any improvements within
the schedule specified in the lease.
(a)
If any improvements are to be constructed, the commercial lease
must include:
[1]
A plan describing the type and location of any improvements
to be built by the lessee;
[2]
A general schedule for construction of the improvements; and
[3]
A requirement that the lessee provide the Department notice
of any delay, explanation of good cause as to the nature of the delay,
the anticipated new date of construction of the improvements, and
evidence of progress toward commencement of construction.
(b)
When requested by the Tribe or otherwise required by the commercial
lease, lessee shall further provide the Department, in writing, an
updated schedule for construction.
(c)
Commercial lease shall contain a process for changing the construction
schedule by mutual consent of the parties.
(d)
Failure of the lessee to comply with these requirements will be deemed a violation of the commercial lease and may lead to cancellation of the lease pursuant to this Article I.
(e)
Improvements to the premises shall become the property of the
Tribe unless otherwise provided for in the commercial lease.
(f)
If lessee is authorized to develop equitable value in improvements,
the lease must describe how equity will be given and/or divided. The
lessee may sell its interest in the commercial lease on the equity
value, but the Tribe has the right of first refusal to purchase the
interest.
(g)
The commercial lease may provide that at expiration, cancellation
or termination of the commercial lease, the lessor shall purchase
improvements to the premises at fair market value.
(h)
The commercial lease shall provide that mitigation and reclamation
of any adverse impacts to trust resources shall be made to reasonable
satisfaction of the lessor and the Secretary.
(i)
In the event that any archaeological, historic, or cultural
heritage resources are uncovered during any of the lessee's operation
on the commercial lease premises, the lessor has the right to determine
the appropriate disposition for such resources and shall act as reasonably
practical so as not to unduly delay the lessee's activities but
still provide protection to the uncovered resources. Unless otherwise
negotiated and authorized by written consent from the Menominee Tribal
Legislature, the cost of monitoring, evaluation or mitigation arising
under this subsection shall be borne by the lessee.
(j)
Improvements may be subject to taxation by the Tribe.
(4)
Development costs. All costs and expenses of the planning, construction,
operation, and maintenance of the commercial lease premises, as well
as any site reclamation, shall be the responsibility of and paid by
the lessee, unless otherwise negotiated and authorized by written
consent of the Menominee Tribal Legislature, and recorded in the lease.
These costs and expenses shall include, but not be limited to, any
and all costs associated with any necessary permitting, environmental
studies, appraisal and survey of work, labor, equipment and materials,
structures, utilities, off-site improvements, insurance and surety
bonds. The lessee shall be responsible for conducting its own marketing
program and providing for the day-to-day operation and maintenance
of the commercial lease premises.
(5)
Insurance provisions. The lessee shall provide insurance necessary
to protect the interests of the Tribe and in amounts sufficient to
protect all insurable improvements on the premises:
(a)
The insurance may include, but is not limited to, property,
liability or casualty insurance, or other insurance specified in the
commercial lease.
(b)
The Tribe and the United States must be identified as additional
insured parties.
(c)
The Tribe may waive this requirement if the waiver is in the
best interest of the Tribe. The waiver may be revoked at any time
if the waiver ceases to be in the Tribe's best interest.
(6)
Bonding provisions.
(a)
Unless waived in writing by the Tribe in accordance with this
subsection, the lessee shall obtain a satisfactory performance bond
in an amount sufficient to secure the contractual obligations of the
lease. Such bond shall be for the purpose of securing the lessee's
contractual obligations under the commercial lease and shall guarantee:
(b)
The Tribe may waive the bond requirement, or reduce the amount,
if doing so is in the best interest of the Tribe. The Tribe shall
maintain written records of waivers and reductions.
(c)
The performance bond may be in one of the following forms:
[1]
Certificate of deposit issued by a federally insured financial
institution authorized to do business in the United States;
[2]
Irrevocable letters of credit issued by a federally insured
financial institution authorized to do business in the United States;
[3]
Negotiable Treasury securities; or
[4]
Surety bond issued by a company approved by the U.S. Department
of the Treasury.
(7)
Representation of lessee. If a representative executes a lease on
behalf of a qualified lessee, the lease must identify the landowner
or lessee being represented and the legal authority of the representative.
(8)
Unless the lessee would be prohibited by law from doing so, the lease
must also contain the following provisions:
(a)
The lessee holds the United States and the Indian landowners
harmless from any loss, liability, or damages resulting from the lessee's
use or occupation of the leased premises; and
(b)
The lessee indemnifies the United States and the Indian landowners
against all liabilities or costs relating to the use, handling, treatment,
removal, storage, transportation, or disposal of hazardous materials,
or the release or discharge of any hazardous material from the leased
premises that occurs during the lease term, regardless of fault, with
the exception that the lessee is not required to indemnify the Indian
landowners for liability or cost arising from the Indian landowners'
negligence or willful misconduct.
A.
Sub-leasing is not allowed without the written consent of the Menominee
Tribal Legislature. If approved, the lease shall contain language
that defines and describes the sub-leasing process, restrictions on
sub-lessees, sub-lessee rights and guidelines.
B.
No sublease shall relieve the lessee or sub-lessee of any liability
under the lease.
C.
All sub-leases and amendments thereto shall be recorded with the
Department with copies provided to the LTRO with jurisdiction over
the tribal land.
D.
All sub-leases and assignments shall require the prior approval of
any mortgagee or surety, if required by the mortgagee or surety agreement.
All assignments, other than to a mortgagee, do not require tribal
action but must comply with eligibility requirements in this article.
A.
In any assignment, other than to a mortgagee of the leasehold estate,
the assignee must agree in writing to assume all of the obligations
and conditions of the lease and that the lease is subject to all applicable
laws.
B.
All assignments and amendments thereto shall be recorded with the
Department with copies provided to the LTRO with jurisdiction over
the tribal land. Unless otherwise designated in this article or the
lease, the lessee shall annually verify or update assignments and/or
heir(s).
C.
Neither lessee nor lessor shall, unless otherwise expressly authorized
in this article, sell, transfer, or assign a lease or any interest
without the written consent of the other party.
D.
No assignment or transfer shall be approved unless the assignee or
transferee is eligible to receive a lease of land from the Menominee
Indian Tribe of Wisconsin pursuant to Article X, Limited Power of
Tribal Legislature to Transfer Ownership of, or to Encumber Land Interest
Therein; and XI, Use of Tribal Land by Tribal Members and Qualified
Non-Members of the Constitution and Bylaws of the Menominee Indian
Tribe.
E.
Death of lessee/transfer on death. In the event a lessee dies during
the term of their lease, all leases shall expire 365 days after the
date of lessee's death unless the lessee's interest in the
lease is:
(1)
Assigned or transferred by the lessee according to the lease's
beneficiary documents; or
(2)
Assigned or transferred by the lessee's personal representative
in accordance with Tribal law; or
(3)
Transferred pursuant to valid probate order to a person eligible to receive a lease of land as described above in Subsection C and the person agrees, in writing, to be bound by each and all of the terms and conditions of the lease and tribal and federal laws and regulations; or
(4)
Transferred pursuant to a lawful affidavit of transfer and the person
agrees, in writing, to be bound by each and all of the terms and conditions
of the lease and tribal and federal laws and regulations; or
(5)
Cancelled by the Tribal Legislature pursuant to an ordinance.
A.
All leasehold mortgages under a lease must be separately authorized
by the Tribal Legislature, unless the lease authorizes a leasehold
mortgage and states the law governing foreclosure.
B.
After the Secretary approves these regulations, all leasehold mortgages
which are authorized and executed under this article shall be effective
without federal approval unless the Secretary rescinds approval of
this article and reassumes responsibility for such approval.
C.
All leasehold mortgages, assignments, amendments, and sales relating
thereto shall be recorded with the Department with copies provided
to the LTRO with jurisdiction over the tribal lands to the extent
required by a mortgagee. A leasehold mortgage shall also be recorded
in the appropriate county register of deeds.
A.
If utilities are not available, the applicant must agree, in writing,
that utilities will not be provided by the Tribe. It shall be the
responsibility of the applicant to obtain any necessary approvals/easements
to acquire utilities.
B.
If no road service/access is available, the applicant must agree,
in writing, that no road service/access will be provided by the Tribe.
It shall be the responsibility of the applicant to obtain any necessary
approvals/easements to acquire road service/access.
A.
If permanent improvements are authorized or required under this article,
or as otherwise authorized by written consent of the MTL, the lease
shall, at a minimum, require the lease to address ownership requirements
of improvements, responsibility for constructing, operating, and maintaining,
and managing improvements, and removal of improvements, if applicable.
B.
If permanent improvements are made to the property, the leaseholder
shall provide the Department evidence of ownership of said improvements,
or any changes in ownership of said improvements.
A.
A deposit will be required from those individuals who are placing
mobile homes on sites, or who are purchasing an existing mobile home,
as outlined in the fee schedule set by legislative motion.
B.
Single-family mobile homes are not allowed in the Legend Lake area.
C.
All leases in which mobile homes are being placed shall contain language
describing the lessee's responsibility for removal of and/or
reclamation of the land.
D.
The lessee shall be responsible for all removal and/or reclamation
costs and fees should the lease be cancelled, terminated, or abandoned.
Negotiated remedies may apply in addition to, or instead of,
a cancellation remedy for lease violations but only if approved by
the Menominee Tribal Legislature and recorded in the lease. If approved,
the lease shall fully define and describe the violations and the applicable
negotiated remedies.
All application and lease fees are nonrefundable.
A.
Lessees shall pay annual administrative and lease fees according
to the fee schedule unless negotiated and approved by the Menominee
Tribal Legislature. The fee schedule shall be produced by the Department
and approved by motion of the Tribal Legislature. Changes made to
the fee schedule shall be posted for five business days after legislative
approval before they shall become effective.
The fees in this section may be increased or decreased, in such
amounts as are deemed appropriate, from time to time upon motion of
the Menominee Tribal Legislature.
B.
General and Department fees shall be assessed on lands leased with
the Menominee Indian Tribe of Wisconsin and actions connected to the
administration of tribal leases:
(1)
Fees shall be established by the Department and approved by motion
of the Tribal Legislature. Changes to fees shall be posted for five
business days before they shall become effective.
(2)
Copies of maps are available upon request. The fee for copies of
maps shall be determined based on the type of request.
(3)
If the Menominee Indian Tribe of Wisconsin does not have a certified
surveyor on staff, surveying needs will be a contracted service. The
applicant shall pay the Tribe in advance for all costs associated
with this service.
(4)
If a title abstract/commitment is required, the applicant shall pay
the Tribe in advance for all costs associated with obtaining a title
abstract/commitment.
(5)
If an archaeological review is required, the applicant shall pay
the Tribe in advance for all costs associated with obtaining an archaeological
review.
(6)
If an environmental review is required, the applicant shall pay the
Tribe in advance for all costs associated with obtaining an environmental
review.
(7)
If an appraisal is required, the applicant shall pay the Tribe in
advance for all costs associated with obtaining an appraisal.
(8)
The foregoing fees may be increased or decreased, from time to time
upon motion of the Menominee Tribal Legislature, in amounts deemed
appropriate to defray costs of administration of leases.
C.
For leases held by Departments, Land Management shall create a policy
between the leaseholder department, Finance and itself to allow for
internal billing.
[Amended 11-19-2020 by Ord. No. 20-37]
A.
All lease payments will become due and payable each year or designated
term in accordance with the lease provisions and this article.
(1)
If no payment is received by the date specified in the lease, the
lease shall be cancelled pursuant to this article and the land will
be reopened to other interested tribal members or qualified individuals.
(2)
Lessees with unpaid lease fees are ineligible to receive any other
type of land assignment, including, but not limited to, land lease,
ninety-nine-year permit, seasonal permit, or any other land use assignment.
B.
For any lease requiring payments be made to Tribe, the Tribe shall
provide the Secretary with such documentation of the lease payments
that are sufficient to enable the Secretary to discharge the trust
responsibility of the United States such that:
(1)
The United States shall not be liable for losses sustained by any
party to a lease executed; or
(2)
Pursuant to the authority of the Secretary to fulfill the trust obligation
of the United States to the Tribe under federal law (including regulations),
the Secretary may, upon reasonable notice from the Tribe and at the
discretion of the Secretary, enforce the provisions of, or cancel,
any lease executed by the Tribe.
C.
For leases held by Departments, Land Management shall create a policy
between the leaseholder department, Finance and itself to allow for
internal billing.
[Amended 11-19-2020 by Ord. No. 20-37]
A.
Land use and site planning. Leases are only issued for developed lots and properties identified appropriate for the specified development within the Tribe's Land Use Plan and consistent with the Official Zoning Map per Menominee Tribal Code Chapter 600, Land Use and Natural Resource Plan, and Chapter 625, Zoning.
B.
Site availability. The Land Management Department shall maintain
a list of property that has been approved for development.
[Amended 11-19-2020 by Ord. No. 20-37]
C.
Requirements. The Land Management Department shall obtain the following
information on the lease application:
[Amended 11-19-2020 by Ord. No. 20-37]
(1)
Any other name(s) used by the applicant;
(2)
The exact location of the request;
(3)
Any previous requests made by the applicant;
(4)
Applicant's enrollment number;
(5)
Legal description, if any, and/or certified survey;
(6)
Determine if land is within forestry sustained yield; and
(7)
Obtain soil tests if not available.
D.
Priority. Residential lease requests shall take priority over recreational,
agricultural and/or commercial lease requests.
E.
Application time line.
(1)
A first come, first serve policy will be honored on all applications.
(2)
Upon payment of the application fee, the application will be processed
by the Land Management Department and appropriate committee, and sent
to the Tribal Legislature for approval through the legislative ordinance
process.
[Amended 11-19-2020 by Ord. No. 20-37]
F.
Pre-application. Applicant requests assistance in acquiring a lease
from the Department. After the applicant identifies the type of lease
and a potential site, the Department confirms that the parcel is available
for lease and is appropriately zoned. If there is no specific potential
site, applicant can review the list maintained by the department of
approved lots.
G.
Application submittal. Applicant submits a completed application
to the Department. The Department retains the original application.
H.
Application review. The Department staff will review the application
for completeness. Incomplete applications will be returned to the
applicant with a letter outlining information necessary to move the
application forward. Completed applications are filed with the Department.
I.
Lease approval. Once the lease application is complete, the Department
staff will draft a standard lease per the requirements in this article.
The Department staff will send the proposed lease to the Community
Development Committee for review. The Committee will approve or deny
the lease per their bylaws. Committee-approved leases will be prepared
by the Department and sent to the Legislature for final approval through
the ordinance process.
Leaseholders are responsible for knowing the requirements of
this article. Any failure to strictly observe the requirements of
this article and the terms of the lease shall result in cancellation
of the lease.
The following are prohibited acts of leaseholders:
A.
Public nuisance and unfit dwellings. No leaseholder shall erect,
construct, cause, continue, maintain or permit any public nuisance
or unfit dwelling within the jurisdiction of the Tribe. Any person
who shall cause, create or maintain a public nuisance or unfit dwelling,
or in any way aid or contribute to the causing, creating or maintenance
thereof, shall be guilty of a lease violation and shall be liable
for all costs and expenses attendant upon the removal and correction
of such a public nuisance or unfit dwelling.
B.
Junk. No leaseholder shall store any junk outside a building, and
within public view, for a period of any part of five or more days
during a thirty-day period.
C.
Other public nuisance. No leaseholder shall maintain or carry on
activities that are defined as a public nuisance.
D.
Other violations. No leaseholder shall violate any of the lease terms
and provisions, or any other laws, policies, rules or regulations
of the Tribe.
A.
This is not intended to regulate or place limitations on any properly
zoned and licensed junkyard, salvage dealer or other junk, waste disposal
or storage activity for which a valid license is required and proper
permits have been issued, and where all such licenses and permits
are in full force and effect.
B.
This does not prohibit the reasonable and orderly storage of idle,
but operable, farm, business, snow-removal vehicles or equipment,
or lawn-mowing equipment.
C.
Other exceptions may be made on a case-by-case basis with the discretion
of the Land Management Department.
[Amended 11-19-2020 by Ord. No. 20-37]
If the leased premises are within an Indian irrigation project
or drainage district, except as provided by 25 CFR Part 171, the lessee
must pay all operation and maintenance charges that accrue during
the lease term. The lessee must pay these amounts to the appropriate
office in charge of the irrigation project or drainage district.
If an individual or entity takes possession of or uses the Tribe's
land without a lease and a lease is required, the Tribe may treat
the unauthorized possession or use as a trespass. The Tribe may take
action to recover possession and pursue any additional remedies available
under applicable law.
All cancellation of leases shall be done by ordinance and will be subject to the approval of the Menominee Tribal Legislature in accordance with the Menominee Indian Tribe of Wisconsin Constitution and Bylaws. Upon approval of the lease cancellation from the Tribal Legislature, the procedure set out in §§ 138-32 and 138-33 shall be followed.
A.
The lease may naturally terminate when the purpose or term of the
lease is completed or as mutually agreed upon by both parties.
B.
Leases may be cancelled by ordinance for failure to sign the lease,
failure to pay the lease fee, voluntary relinquishment of the lease,
or noncompliance with the lease terms and provisions.
C.
The lease shall contain language that defines and describes events
and actions that may or shall result in the cancellation of the lease.
Grounds for cancellation of lease include, but are not limited to:
D.
Forfeiture. A lessee may forfeit their lease by obtaining a Lease
Cancellation Form from the Department. The lessee must submit a signed,
notarized original to the Department. The Department will forward
the lease cancellation through the legislative ordinance process.
E.
Upon expiration, cancellation, or termination of the lease, the lessee
shall, upon demand, surrender to the lessor complete and peaceable
possession of the property and all improvements thereon shall become
the property of the lessor, unless specifically negotiated with the
Tribe and recorded in the lease.
The Tribe shall have all powers necessary and proper to enforce
lease terms, laws, ordinances, regulations, rules, policies, and covenants.
A.
Determination of violation and notification. If the Land Management
Department determines, either through routine inspection or upon submittal
of a written complaint to the department, that the leaseholder is
in violation of the lease, the Land Management Department shall notify
the leaseholder of said violation within a reasonable time.
[Amended 11-19-2020 by Ord. No. 20-37]
B.
Notice shall be mailed to the leaseholder's last known address.
Within 30 days of notification of the violation, the lessee
shall:
A.
Cure the violation, and notify the Land Management Department, in
writing, that the violation has been cured;
[Amended 11-19-2020 by Ord. No. 20-37]
B.
Dispute, in writing, the Land Management Department's determination
that the lease has not been violated, and explain why the lease should
not be cancelled; or
[Amended 11-19-2020 by Ord. No. 20-37]
C.
Request additional time to cure the lease violation.
[Amended 11-19-2020 by Ord. No. 20-37]
If the leaseholder fails to cure the lease violation within
the specified period, the Land Management Department shall either:
A.
Appeals of cancellations.
(1)
If the Committee approves the cancellation and sends for legislative
approval, the Department shall provide to the lessee the time and
place for the first consideration of the ordinance cancelling the
lease.
(2)
The lessee shall have an opportunity to appeal the ordinance cancelling
the lease before the Tribal legislature during the public hearing
scheduled after first consideration of the ordinance. The appeal must
relate to alleged noncompliance with this article. These arguments
shall be considered before final approval of the ordinance cancelling
the lease.
(3)
Final approval of the ordinance cancelling the lease shall constitute
a final decision.
B.
Complaints.
(1)
An interested party who has reasonable grounds to believe that the
Tribe has failed to comply with this Code has the right to file a
complaint under the Department's complaint policy.
(2)
Form. The complaint shall be in writing, signed by the interested
party with a description of the alleged noncompliance with this article
which is the subject of the complaint, state all relief requested
and submitted according to the policy.
(3)
Informal resolution. All reasonable efforts to resolve the complaint
informally, including, but not limited to, scheduling a meeting with
the interested party for such purpose. All complaints which are resolved
through such informal resolution shall be reduced to writing and signed
by the interested party and the final decision maker according to
the policy.
(4)
If the complaint is not resolved informally, the final decision shall
be in writing and shall be delivered to the interested party no later
than 20 business days after receipt of complaint. The written decision
shall constitute a final decision.
(5)
Appeal. In accordance with 25 U.S.C. § 415(h)(8)(A) an
interested party who has exhausted the Tribe's remedies set forth
in this section may submit a petition to the Secretary, at such time
and in such form as the Secretary deems appropriate, to review the
Tribe's compliance with this article.
[Amended 11-19-2020 by Ord. No. 20-37]
When the Legislature grants a cancellation of a lease through
final approval of the ordinance cancelling the lease, the Land Management
Department shall notify the leaseholder of the cancellation. The notification
shall be sent, in writing, to the leaseholder's last known address.
The letter shall contain the following:
A.
Explain the grounds for cancellation of the lease;
B.
Notify the leaseholder of unpaid amounts, interest charges or late
payment penalties that are due under the lease;
C.
Order the leaseholder to vacate the premises within 10 days; and
D.
Notify the leaseholder that all property of the leaseholder must
be removed (including mobile and manufactured homes, junk, waste,
garbage or refuse), and that the property must be left in good condition
free of junk and public nuisances, or the leaseholder will be charged
for cleanup and disposal of any property, junk or public nuisances
left behind.
A.
Any property, junk or public nuisance left behind by the leaseholder,
that is removed from the property by the Tribe may be sold by the
Tribe with any funds received therefrom being used to pay or reimburse
the Tribe for cleaning up the property.
B.
If there are any fees outstanding that are owed to the Tribe for
cleanup, unpaid lease amounts, interest charges or late payment penalties
due under the lease, the person shall be placed on the Tribe's
debtors' list.
C.
Before a person can re-apply or be approved for any future lease
with the Tribe, any all fees owed must be paid before any action can
be taken on any future request.
D.
BIA may, upon reasonable notice from the Tribe, and at BIA's
discretion, enforce the provisions of or cancel a lease document.
[Amended 11-19-2020 by Ord. No. 20-37]
After a lease receives final approval from the Menominee Tribal
Legislature, the leaseholder will be mailed a notification letter,
to his/her last known address, of approval of lease and will have
30 calendar days to sign the lease and beneficiary documents and pay
any necessary fees. When the lease is signed, an Accounts Receivable
Customer Setup Form will need to be completed by Land Management Staff.
If the individual makes no contact, the lease will automatically be
presented for cancellation.
A.
On an annual basis, the yearly or term lease fee charges will be
entered by Finance and provided to Land Management Department with
the statement/invoice.
[Amended 11-19-2020 by Ord. No. 20-37]
B.
Fees are due and payable on or before the date designated in the
lease. Lots assigned throughout the year may be prorated; however,
no prorated fee shall be less than $25. If a leaseholder does not
pay the annual fee on time, the fee shall double. The fees and penalty
shall then be due within 30 days except for in the event a leaseholder
is subject to a catastrophic event of a house fire, death or incapacitating
medical problems in his/her immediate family. The leaseholder shall
have an additional 30 days in which to pay his/her lease fee and will
be responsible for paying any late payment penalties.
C.
In the event a check for a lease fee payment is returned for insufficient
funds or closed accounts, a service fee will be charged. If the leaseholder
then fails to pay the appropriate lease fee, penalty fees and service
fees, in accordance with the Menominee Indian Tribe of Wisconsin Accounting
Procedures, the lease will be cancelled.
A.
The Land Management Department will mail the annual or term lease
fee notice to each individual leaseholder at the last known address
on file. A reminder is attached to each statement/invoice regarding
the penalty if the lease fee is not paid on time. A copy of the statement/invoice
is kept on file in the Department.
[Amended 11-19-2020 by Ord. No 20-37]
B.
Land Management shall notify leaseholders by U.S. mail of fee payments
due as follows:
[Amended 11-19-2020 by Ord. No 20-37]
(1)
The first notice shall be mailed to leaseholder's last known
address 60 days prior to the lease fees being due.
C.
The second notice shall be mailed to the leaseholder's last
known address 30 days prior to the lease fees being due.
D.
The final notice shall be mailed to the leaseholder's last known
address 15 days after the due date specified in the lease. In addition,
Land Management shall place an ad in the Menominee Nation News as
a reminder that lease fees are due.
[Amended 11-19-2020 by Ord. No 20-37]
A.
Payments must be postmarked by the last day of the month due regardless
of when check is dated.
B.
Lease payments, except by leaseholders eligible for extensions due
to a catastrophic event, not received in the Land Management Department
by 4:00 p.m. on the last working day of the month the fees are due,
shall result in cancellation of the lease.
[Amended 11-19-2020 by Ord. No. 20-37]
C.
Failure by the leaseholder to pay the assessed fees shall result
in cancellation of the lease as provided for herein unless the leaseholder
qualifies for special consideration due to a catastrophic event of
a house fire, death or incapacitating medical problems in his/her
immediate family.
D.
The Land Management Department shall prepare a list of delinquent
leaseholders and submit such list for ordinance cancellation by the
Menominee Tribal Legislature.
[Amended 11-19-2020 by Ord. No. 20-37]
E.
In the event a leaseholder is subject to a catastrophic event of
a house fire, death or incapacitating medical problems in his/her
immediate family, the leaseholder shall have an additional 30 days
in which to pay his/her lease fee and will be responsible for paying
any late payment penalties.
F.
In the event of the death of the leaseholder, the Department shall
allow for a sixty-day extension of lease payment to the estate administrator,
personal representative, or any person lawfully designated or court
ordered to represent the estate.
G.
If a lease is cancelled for nonpayment of a lease fee, the leaseholder
will be placed on the Menominee Indian Tribe of Wisconsin debtor's
list for the amount of unpaid fees and the matter may be turned over
to the Menominee Tribal Court for collection.
H.
Before a leaseholder can reapply or be approved for any future lease,
the individual must pay any back lease fees and penalties owed to
the Menominee Indian Tribe of Wisconsin.
A lease document file shall be kept on file with the Department.
Each lease file shall contain the following:
A.
Application, required application documents, and receipt of application
fees (if applicable).
B.
A copy of the committee approval and ordinance approval.
C.
An original lease document containing the lease notification letter,
the original signed notarized lease and accompanying beneficiary.
D.
A copy of certified survey maps, archaeological clearance, and environmental
review documents.
E.
A copy of mortgage documents and uncertified/certified title status
reports.
F.
A copy of any correspondence and miscellaneous documents regarding
land lease or mortgage documents.
G.
Records of activities taken pursuant to this article are property
of the Tribe.
The recording of documents for leases executed pursuant to this
article shall be done as follows:
A.
The Department will record and provide a certified copy to lessee.
Recording of real estate transactions shall take place at the appropriate
register of deeds and with the Bureau of Indian Affairs Land Titles
and Records Office (LTRO).
B.
After recording at the appropriate register of deeds, the original
document will be kept on file in the Land Management Department.
[Amended 11-19-2020 by Ord. No. 20-37]
C.
All land into trust documents, Tribal lease documents or leasehold
mortgage.
.
D.
The original documents and request to record at LTRO will be mailed
by certified mail. The original recorded document shall be kept on
file in the Land Management Department.
[Amended 11-19-2020 by Ord. No. 20-37]
E.
Records of activities taken pursuant to this article are the property
of the Tribe.
The recording of documents for leasehold mortgages shall be
done as follows:
A.
The Land Management Department shall maintain a system for the recording
of leasehold mortgages and such other documents as the Tribe may designate
by law or resolution.
[Amended 11-19-2020 by Ord. No. 20-37]
B.
The Land Management Department shall endorse, upon any leasehold
mortgage or other document received for recording, the date and time
of receipt of the leasehold mortgage or other document, the filing
number, to be assigned by the Land Management Department, which shall
be a unique number for each leasehold mortgage or other document received,
and the name of the staff member receiving the leasehold mortgage
or document.
[Amended 11-19-2020 by Ord. No. 20-37]
C.
Upon completion of the above endorsements, the Tribal Recording Clerk
shall make a true and correct copy of the leasehold mortgage or other
document and shall certify the copy.
D.
The Land Management Department shall maintain the copy in the records
of the recording system and shall return the original of the leasehold
mortgage or other document to the person or entity that presented
the same for recording.
[Amended 11-19-2020 by Ord. No. 20-37]
E.
The Tribal Recording Clerk shall also maintain a log of each leasehold
mortgage or other document recorded in which there shall be entered:
(1)
The name(s) of the mortgagor(s) of each leasehold mortgage, identified
as such;
(2)
The name(s) of the mortgagee(s) of each leasehold mortgage, identified
as such;
(3)
The name(s) of the lessor(s), lessee(s), or other designation of
each party named in any other documents;
(4)
The date and time of receipt;
(5)
The filing number assigned by the Tribal Recording Clerk; and
(6)
The name of the Tribal Recording Clerk receiving the leasehold mortgage
or document.
F.
The certified copies of the leasehold mortgages and other documents
and the log maintained by the Land Management Department shall be
made available for public inspection and copying, upon receiving notice
of approval of appropriate tribal records release request.
[Amended 11-19-2020 by Ord. No. 20-37]
G.
All documents recorded under this section shall also be recorded
with the Bureau of Indian Affairs in accordance with its recording
procedures and with the Register of Deeds of the county where located.
[Amended 11-19-2020 by Ord. No. 20-37]
The Land Management Department shall maintain a filing system
and map, which provides for a chronological history of leased tribal
land within the boundaries of the Menominee Indian Reservation. Pertinent
leases, cancellations, and other necessary documents shall be placed
into this filing system.
A.
The purpose of the environmental process is to determine if an Environmental
Review is necessary. If the MITW-Environmental Services Department
(ESD) determines the leasing activity would not affect the natural
and/or cultural resources of the Tribe, the leasing activity is exempted
from additional requirements of the Environmental Review.
B.
If the ESD determines the leasing activity might impact, alter or
cause physical disturbance to the natural resources of the Tribe,
the lessee must fulfill the requirements of the Environmental Review
Process.
The scope of the work will be conducted by the ESD and be based
on existing environmental review processes. These processes must determine
if a leasing activity impacts, alters or causes physical disturbances
to the environment.
For any leasing activity, a request will be directed to ESD
for consultation on an Environmental Review for the specific land
to be leased. ESD will review the notice of request to determine specific
information for any relevant documentation to be included as part
of a review.
A.
A Categorical Exclusion Exception Review (CEER) Checklist will be
used to determine if the leasing activity would impact, alter or cause
physical disturbance to the natural resources of the Tribe and if
so, an environmental assessment will need to be completed. If no for
all checklist points, the CEER checklist along with attached documentation
will complete the environmental process. Please note, various agencies
may request additional reporting/Environmental Reviews.
B.
The following actions do not individually or cumulatively have a significant effect on the environment and, therefore, except as otherwise provided in this article are categorically excluded from the procedures set forth in § 138-46.
(1)
Approval of the lease for residential use of an existing housing
unit, including any associated improvements, access roads, and utilities;
(2)
Approval of a lease for five acres or less of contiguous land for
construction and residential use of a single structure of one to four
dwelling units and any associated improvements, access roads, and
utilities.
C.
Notwithstanding Subsection B, ESD shall follow the procedures set forth above if it determines that extraordinary circumstances exist under which the residential use of the premises may, individually or collectively, have a significant effect on the environment, including, without limitation, as set forth below:
A.
If it is determined an Environmental Review is required, ESD will
conduct the Environmental Review by existing practices for assessing
environmental impacts. The list of impacts includes, but is not limited
to, threatened and endangered species, wetlands, scenic rivers, refuges,
floodplains, rivers placed on nationwide river inventory or prime
or unique farmlands. Further assessments include, but are not limited
to, site visits and examinations, public comment periods, consultations
with Tribal Historic Preservation Officer to ensure NHPA and Tribal
Cultural Resource laws have been addressed; threatened and endangered
species examination to determine if any impacts to federally or tribally
listed species; review of applicable laws, federal and tribal, to
include hazardous materials, zoning, invasive species and surface
water regulations.
B.
Public comments will be taken through direct contact at public hearings,
if determined necessary by ESD, through postings in the Tribal newspaper
or website. In addition, electronic or written comments can be directed
to the department for consideration. Comments received will be considered
by the ESD before the close of the environmental assessment and posted
as part of the Environmental Review process.
C.
Upon completion, an Environmental Assessment Report will be drafted
summarizing the checklist items, determinations, recommendations and
included consultation correspondence. This review will be the basis
for any approvals or denials of leasing activities, with regards to
the environmental process.
D.
Unless a categorical exclusion applies, the ESD shall cause the effects
on the environment of the intended uses as authorized by the proposed
lease to be identified and evaluated as follows:
(1)
If the ESD determines that the uses authorized by the proposed lease
will not have a significant effect on the environment, then it shall
cause the following to occur in the order set forth below:
(b)
If there is a substantial interest in holding a public meeting
it shall be held to provide an opportunity for Tribal members to comment,
both written and verbal, on the finding of no significant impact.
(c)
Comments shall be reviewed and analyzed and a report shall be issued by the ESD responding to relevant and substantive comments, if any, regarding the finding of no significant impact. The report shall be posted for a minimum of 15 calendar days in a prominent, noticeable place in the locations listed in Chapter 177, Posting Procedures, § 177-3A(1) through (7).
(d)
A final decision on confirming that the uses authorized by the proposed lease are expected to have no significant effect on the environment shall be issued, sent to the Legislature for approval by motion, and posted for 15 calendar days in a prominent, noticeable place in the locations listed in Chapter 177, Posting Procedures, § 177-3A(1) through (7).
(2)
If the ESD determines that the proposed lease will have a significant
effect on the environment, then it shall cause the following to occur
in the order set forth below:
(b)
A meeting shall be held on the draft environmental review to
provide an opportunity for Tribal members and residents on the Tribe's
land to comment, both written and verbal, on any significant effect
on the environment of the uses authorized by the proposed lease;
(c)
Comments shall be reviewed and analyzed and a report by the ESD shall be issued responding to relevant and substantive comments, if any, on any significant effect on the environment of the uses authorized by the proposed lease. The report shall be posted for a minimum of 30 days in the locations listed in Chapter 177, Posting Procedures, § 177-3A(1) through (7).
To protect and preserve historical properties, archaeological
resources, human remains, or other cultural items on the Menominee
Indian Reservation.
The lessee, federal agency, or the Tribal Department, or their
applicant or authorized consultant, must make a reasonable or good-faith
effort to identify any significant historic or cultural resources
within the leased area. Prior to any leasing of tribal land, an applicant
must submit the project plans for an archaeological review to the
Tribal Historic Preservation Officer if no archaeological survey or
assessment has been completed.
The following procedure will flow through the THPO, who will
coordinate with an archaeologist who will conduct the survey and/or
assessment for the activity:
A.
A written request will be made identifying the project, land description
and scope of work to determine if there will be any disturbance or
ground disturbing activity to the land or any culturally significant
areas.
B.
The archaeologist will gather any existing data and conduct a survey
of the submitted land description.
C.
The archaeologist will submit a report along with any recommendations
to the THPO based on the survey and any historical data for the land.
D.
THPO will review submitted archaeology report and identify any needs
for buffer zones and any monitoring which may need to take place as
part of the land-disturbing activity.
E.
THPO writes a clearance or denial letter and forwards to Environmental
Services Department and to the archaeologist.
If historic properties, archaeological resources, human remains,
or other cultural items not previously reported are encountered during
the course of any activity associated with leases of tribal land,
all activity in the immediate vicinity of the properties, resource,
remains, or items will cease and the lessee will contact the Tribe
to determine how to proceed with appropriate disposition. The lessees
shall not disclose newly discovered archaeological resources outside
of the Department or THPO.
A.
In the event that any section, or provision, of this article is held
invalid, it is the intent of the Tribal Legislature that the remaining
sections or provisions of this article shall remain in full force
and effect. Any portion of this article found to be inconsistent with
the Constitution and Bylaws of the Menominee Indian Tribe of Wisconsin
shall be held invalid.
B.
To the extent that this article's language differs from the
Land Use Plan, this article shall supersede. In the event of a conflict
between provisions of this article and any other chapter or ordinance
of the Tribe, the provisions of this article shall control.
The regulations in this article shall become effective upon
final approval by the Menominee Tribal Legislature and upon approval
thereof by the Secretary of the Interior or his duly authorized representative
or designee.
Nothing in these regulations shall be deemed to waive the sovereign
immunity of the Menominee Indian Tribe of Wisconsin or any of its
officials, employees or representatives.
