SKOKOMISH
TRIBAL CIVIL TRESPASS ORDINANCE
Adopted by
Resolution No. 04-106 (September 1, 2004)
AUTHORITY AND
PURPOSE
3.07.001 Constitution of the Skokomish Indian
Tribe
3.07.02
Purpose
GENERAL
PROVISIONS
3.07.010 Definitions
3.07.011 Duties and Authority of Officers;
Warrants Not Required
OFFENSES
3.07.020 Trespass
3.07.021 Vandalism
3.07.022 Use or Possession of Alcohol at
Public Facilities and Public Events
3.07.023 Harassment
3.08.024 False Reporting
ENFORCEMENT
3.07.030 Liquidated Damages
3.07.031 Liquidated Damages Presumption
3.07.032 Default Judgment
3.07.033 Burden of Proof—Preponderance of the
Evidence
3.07.034 Expulsion
3.07.035 Federal Prosecution
3.07.040 Severability
3.07.001 Constitution of the Skokomish Indian
Tribe
The Constitution of the Skokomish Indian Tribe
provides that the Skokomish Tribal Council is the governing body of the
Skokomish Indian Tribe with the authority to enact laws and ordinances
governing the conduct of individuals and defining offenses against the tribe;
to maintain order and to protect the safety and welfare of all
persons within the Skokomish Tribe’s jurisdiction; to provide for the
enforcement of laws and ordinances of the Skokomish Tribe; and to provide for
the jurisdiction and procedures of the Skokomish Tribal Court.
3.07.002 Purpose
It is the duty and obligation of the Skokomish
Tribal Council to safeguard, protect, manage, administer and develop the
natural resources of Tribal lands for the sole economic, cultural, and social
benefit of the members of the Tribal Community. The peace, property, and public safety of all persons, both
Indian and non-Indian, may be threatened by disruptive, destructive, negligent,
or malicious acts. The Tribal Council
possesses the inherent and constitutional authority and obligation, subject to
the limitations of applicable Federal law, to protect the people; property;
natural, historic and archeological resources; culture; land; water; riparian
rights; livestock; and wildlife from any threat or conduct by any person which
might diminish, degrade, damage, injure, destroy or threaten Tribal Community
members, their natural resources, or the social, cultural, religious, political
or economic well-being of the Tribal Community in any manner. It is the purpose of this ordinance to
regulate such threats or conduct, and to provide relief to the Tribal Community
and its individual members for damages which result therefrom, and to provide
for remedies in the nature of civil sanctions.
3.07.010 Definitions
As
used in this Ordinance:
(a) "Defendant" means the person against whom an
action is file under this ordinance.
(b) "Infraction" means a civil offense against the
Skokomish Tribe for which the remedy involved is monetary damages. An infraction is not a crime and the
punishment shall not affect or impair the rights or credibility of any person
convicted thereof.
(c) "Public place" means a location, exclusive of a
private residence, to which the members of the tribal community have general
access or a location in which three or more members of the tribal community
have gathered. Public places include,
but are not limited to, tribal buildings; parks; highways and roads; beaches,
shorelines, river banks and waterways; transport facilities; schools; jails and
prisons; the common areas of apartment buildings; places of business or
amusement; and the common areas of any neighborhood.
3.07.011 Duties and Authority of Officers;
Warrants Not Required
(a) It shall be the duty of tribal law enforcement officers
to enforce the provisions of this Ordinance without the necessity of procuring
a warrant.
(b) A tribal law enforcement officer is authorized to arrest
any person who resists, delays, prevents or obstructs any such officer, in the
discharge, or attempt to discharge, of any duty under this Ordinance or gives a
false report to any peace officer. Any
person who is subject to the criminal laws of the tribe and who is arrested
under this section shall be guilty of a Class C offense and may be prosecuted
pursuant to the criminal provisions of the Skokomish Tribal Code. To the extent authorized by law, any person
who is not subject to the criminal laws of the Tribe and who is detained under
this section may be held for a reasonable time until a State or Federal law
enforcement officer takes the defendant into custody or transported without
unnecessary delay to the nearest authority for the state of Washington or the
United States.
3.07.020 Trespass
A person commits the infraction of trespass if he:
(a) Enters upon the real property of the Skokomish Tribe or
members of the Skokomish Tribe that is
posted to prohibit trespassing, is fenced, or contains obvious outward signs of
habitability without permission of the owner or the owner’s agent;
(b) Enters tribal lands that are not specifically posted as
open to the public;
(c) Is a non-tribal member and enters or remains on lands of
the Skokomish Tribe and its members that lie within the boundaries of the
Skokomish Reservation the banks of such portion of the Skokomish River and any
of its tributaries or any fish bearing stream that lie within the boundaries of
the Skokomish Indian Reservation unless s/he has the authority of the Skokomish
Tribal Council or s/he is the spouse or minor child of a tribal member;
(d) Refuses to depart from or reenters the Skokomish
Reservation in violation of an order of exclusion issued by the Tribal Court as
provided by the Skokomish Tribal Code.
3.07.021 Vandalism
A
person commits the infraction of vandalism if he:
(a) Injures, defaces, damages or destroys:
(1) Private property in which any other person has an
interest without the consent of such other person;
(2) Tribal or other public property without the lawful
consent of the appropriate governing body; or
(3) An obvious place of burial or established archaeological
site.
(b) Deposits, throws, or propels any garbage or waste
material, including but not limited to disposable packaging or containers, upon
any highway, roadway, runway, waterway or railroad track, or from any boat or
vehicle while such boat or vehicle is either in motion or stationary, or upon
any public or private property, UNLESS such garbage or waste material is
deposited for purposes of storage, disposal or collection in accordance with
any valid and lawful contract for the storage, disposal, or collection of
garbage, recyclables, or other waste material.
3.07.022 Use or Possession of Alcohol at a
Public Facility or Public Event
A person commits the infraction of use or possession
of alcohol at a public facility or a public event if s/he consumes any kind of
alcohol beverage or has any kind of alcoholic beverage in his or her possession
or under his or her control at a public place as defined in section 3.07.010(d)
above, except that the transport of alcoholic beverages in closed containers in
a vehicle on the public highways by a person over twenty-one (21) years of age
is not a violation of this section.
3.07.023 Harassment
A person commits the infraction of harassment if:
(a) Without lawful authority, s/he, by words or conduct
directed at another within the Skokomish Indian Reservation, threatens to:
(1) Cause bodily injury in the future to any person;
(2) Cause physical damage to the property of a person other than the
actor;
(3) Subject any person to physical confinement or restraint
(4) Do any other act which is intended to substantially harm any person
with respect to his or her physical or mental health or safety;
(5)The person by words or
conduct places the person threatened in reasonable fear that the treat will be
carried out; and
(6)
Prevents
or substantially interferes with members of the Skokomish Tribe lawfully
engaged in hunting, fishing or trapping activities, including but not limited
to possession of legally taken fish and wildlife.
3.07.025 False Reporting
A person commits the infraction of false reporting
if s/he initiates a false alarm or report which is transmitted to a fire
department, law enforcement agency or other organization that responds to
emergencies involving danger to life or property.
3.07.030 Liquidated Damages
(a) As directed by the Tribal Council, the directors of the appropriate tribal department(s) shall prepare for the approval of the council, and from time to time shall review and, as necessary, propose revisions to a schedule of Liquidated Damages consisting of a dollar determination or dollar determinations calculated to closely approximate the cost of providing equitable restitution to the Tribe for the damage or loss which would be caused by any infraction(s) of this ordinance or regulation adopted thereunder. In calculating Liquidated Damages, the Tribal Council may consider, in addition to any other factors they reasonably deem relevant:
(1) The cost to the Tribe of producing and/or protecting the tribal property or interest affected;
(2) The cost of replacing or restoring the tribal property or interest
affected;
(3) The costs of enforcement including the general overall costs and
costs particularized to individual infractions where appropriate;
(4) The loss to the Tribe of any revenue affected by the infraction;
(5) Damages for trespass;
(6) The costs incurred in representing the Tribe in an action under this
subchapter.
(b) The director of the tribal department preparing or updating the Liquidated Damages schedule shall post notice of the adoption of the schedule at all public buildings on the Skokomish Reservation. Such notice shall provide that schedules will be available at the Skokomish Tribal Department of Public Safety and the Skokomish Fisheries Department.
(c) The following Interim Liquidated
Damages schedule shall apply to infractions set forth in the Civil Trespass
Ordinance 3.07.001 et. seq. of the Skokomish Tribal Code. Copies of the Liquidated Damages schedule
are available at the Skokomish Department of Public Safety an the Skokomish
Fisheries Department in accordance with 3.07.030(b).
3.07.020 Trespass $500.00
3.07.021 Vandalism $500.00
3.07.022 Use of Possession of Alcohol $200.00
3.07.023 Harassment $1,000.00
3.07.024 False Reporting $250.00
3.07.031 Liquidated Damages Presumption
(a) Since in most instances the exact amount of damages caused to the Tribe by a particular infraction of this ordinance or regulation adopted hereunder will be difficult or impossible to determine, it shall be presumed by the court adjudicating an infraction of this ordinance that the amount fixed by the schedule of Liquidated Damage Amount represents the damages owed to the Tribe as restitution if the defendant is found to be liable. This presumption may be rebutted by evidence which shows that the amount indicated by the schedule of Liquidated Damages is inadequate or excessive, or special circumstances warrant a reduction of the Liquidated Damage amount in a particular case. In any case in which the presumption is successfully rebutted, the parties may introduce evidence to prove the actual damages as in any other civil case.
(b) All persons shall be deemed to have consented to the
Liquidated Damages provision of this ordinance by their entry onto the
Reservation, and where applicable, by their signature on a tribal permit or
permits.
3.07.032 Default Judgment
(a) Unless otherwise provided by this part, the Tribal Court shall enter a default judgment against any defendant who is cited for an infraction of any provision of this ordinance or regulations promulgated under this ordinance and does not appear at the hearing or otherwise respond to the notice of infraction as provided in this subchapter. If a default judgment is entered, the court clerk shall, if feasible, issue notice of judgment to the defendant advising him that he must pay the judgment by a date certain which shall not be less than fifteen (15) days after the date of the notice. The notice shall state that failure to pay the judgment may result in forfeiture of a bond held pursuant to this ordinance, if any, and/or a civil proceeding in Tribal Court to collect the Liquidated Damage amount, and an additional fee of one hundred and fifty dollars ($150.00). Before ordering collection of the Liquidated Damage amount and additional civil penalty, the Tribal Court shall find:
(1) The notice of infraction was issued;
(2) The defendant was informed of
his duty to either pay the Liquidated Damage amount or enter an appearance; and
(3) The defendant did not appear at the hearing or otherwise respond to
the notice of infraction as provided by this subchapter.
(b) Any defendant shall be deemed to have conceded to the
correctness of the determination of the infraction and the Liquidated Damage
amount imposed on the notice if s/he has:
(1) Requested a hearing to contest the determination that an infraction
was committed or requested a hearing to explain mitigating circumstances, and
without good cause fails to appear at the hearing scheduled; or
(2) Fails to respond to the notice.
3.07.033 Burden of Proof—Preponderance of the
Evidence
(a) The burden of proving that an infraction under this ordinance has been committed shall be on the TRIBE.
(b) The TRIBE shall be considered to have met the burden of
proof if the TRIBE’s evidence shows it is more likely than not the infraction
was committed.
3.07.034 Expulsion
Nothing in this ordinance shall be deemed to
preclude the use of the remedy of expulsion of nonmembers for violation of this
ordinance and any enforcement officer or other appropriate official may follow
the procedure provided by tribal law to initiate an action for expulsion in
addition to or in lieu of any other enforcement procedure provided for by this
Chapter.
3.07.035 Federal Prosecution
(a) Nothing in this Chapter shall be deemed to preclude the federal prosecution under 18 U.S.C. 1165 of nonmembers who trespass on the Reservation. Any enforcement officer or attorney representing the Tribe may initiate federal prosecution in addition to or in lieu of any other enforcement procedure provided for by this ordinance.
(b) This ordinance has been enacted to protect the resources
of the Skokomish Tribe, and the taking or using of tribal property or services
contrary to the terms of this ordinance constitutes theft of tribal
assets. Nothing in this ordinance shall
be deemed to preclude federal prosecution of violators under 18 U.S.C. 1163 for
theft of tribal assets or any other federal law designed to protect tribal
wildlife or other natural resources. Any conservation officer may initiate
federal prosecution in addition to or in lieu of any other enforcement
procedure provided for by this Chapter.
3.07.040 Severability
Should a court of competent jurisdiction declare any
provision of this ordinance invalid, such decision shall not affect the
validity of any other part of the ordinance which can be given effect without
the invalid part.