Embed Size (px)
Citation preview
No. 19-131
In the
Supreme Court of the United States__________________
DUANNA KNIGHTON,Petitioner,
v.
CEDARVILLE RANCHERIA OF
NORTHERN PAIUTE INDIANS, ET AL.,Respondents.
__________________
On Petition for Writ of Certiorari to theUnited States Court of Appeals
for the Ninth Circuit__________________
BRIEF IN OPPOSITION__________________
Jack Duran, Jr.Counsel for Record
4010 Foothills Blvd.S-103, #98Roseville, CA 95747(916) [email protected]
Counsel for Respondents
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
QUESTION PRESENTED
Petitioner, Duanna Knighton’s Petition for Writ ofCertiorari takes issue with over one hundred years ofIndian tribal Supreme Court precedent and requeststhe Court turn a blind eye on legal principals that havebeen relied on by United States Courts for generations.Petitioner begins with a striking proposal, that “TribalCourts at no time have jurisdiction over non-members.” Further yet, that Indian tribal sovereignty, and theprincipals upon which these Court precedents haverelied and which the Court has supported for decades,are merely illusory. This is not the law.
This Court’s decision in Montana v. United States,450 U.S. 544 (1981), has been settled law for nearly 40years. Montana allows tribal-court civil jurisdictionover nonmembers in two circumstances: (1) where thenonmember entered a consensual relationship with thetribe through commercial dealings or otherarrangements, or (2) where the nonmember’s conducthas some direct effect on the political integrity,economic security, or welfare of the tribe. Montana isfully applicable to Petitioner Knighton as she was anemployee of the tribe for 17 years, and held the positionof Tribal Administrator—the top nonmemberposition—for more than 10 years, overseeing dailyoperations and finances. It was discovered that shemisappropriated tribal funds, acted with financialconflicts, and negligently invested more than $3 millionin tribal funds, $1.2 million of which were lost. Thequestion presented is whether tribal jurisdiction existswhen she had this consensual relationship and her
ii
misconduct put the economic security and welfare ofthe tribe at risk.
The Court should deny Certiorari, because theprincipals on which this case was decided comportswith Supreme Court precedent and there exists nocircuit court split implicating Montana v. UnitedStates, 450 U.S. 544 (1981); Water Wheel CampRecreational Area, Inc. v. LaRance, 642 F.3d 802, 814(9th Cir. 2011), Plains Commerce Bank v., 554 U.S. 316(2008) or for that matter Dollar General v. MississippiBand of Choctaw Indians, 579 U.S. ___ (2016). Thequestion of “Whether Indian Tribal Courts havejurisdiction over non-members” and “What due processrights are required” are well settled Supreme Courtprecedent under the facts and law applied warranttribal court jurisdiction. Appellant’s petition should bedenied and the lower court’s decision AFFIRMED.
iii
TABLE OF CONTENTS
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2
I. Factual Background . . . . . . . . . . . . . . . . . . . . 2
II. Procedural History . . . . . . . . . . . . . . . . . . . . . 4
REASONS FOR DENYING THE WRIT . . . . . . . . . . 5
I. Tribal court jurisdiction over nonmembers iswell-settled law and all courts have held orassumed that jurisdiction exists forqualifying tort claims . . . . . . . . . . . . . . . . . . . 5
A. Legal Precedent . . . . . . . . . . . . . . . . . . . . . 6
B. Petitioners’ Arguments . . . . . . . . . . . . . . . 8
i. Petitioner’s On-ReservationConduct . . . . . . . . . . . . . . . . . . . . . . 8
ii. Petitioner’s Off-ReservationConduct . . . . . . . . . . . . . . . . . . . . . . 9
iii. Petitioner’s Due Process Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
iv. Dollar General is factuallydistinguishable from this case. . . . 12
II. The circuit split on which petitioner relies isillusory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
iv
i. Montana as Applied in the Tenthand Eight Circuits . . . . . . . . . . . . . 17
III. The Ninth Circuit faithfully applied basicprinciples of federal Indian precedent fromwhich petitioner now seeks to depart. . . . . . 20
i. First Montana Exception . . . . . . . 22
ii. Second Montana Exception. . . . . . 23
iii. Tribal Adjudicative Authority . . . 26
iv. Use of a Tribal Court Created AfterPetitioner Knighton’s departurefrom tribal employment does notUndermine Due Process . . . . . . . . 26
IV. This case is a bad vehicle for resolvingPetitioner’s Claimed Circuit Split andRevisiting Dollar General . . . . . . . . . . . . . . . 28
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
APPENDIX
Appendix 1 Cedarville Rancheria Judicial Code . . . . . . . . . . . . . . . . App. 1
Appendix 2 Cedarville Rancheria Personnel Policies and ProceduresManual . . . . . . . . . . . . . . . . . . . . App. 31
Appendix 3 Constitution and Bylaws of theCedarville Rancheria . . . . . . . . . App. 84
v
TABLE OF AUTHORITIES
CASES
Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001). . . . . . . . . . . . . . . . . . . . . . . 22
Attorney’s Process & Investigative Services, Inc., v.Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927 (8th Cir. 2010). . . . . . . . . . . . passim
Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2011). . . . . . . . . . . . . . 15
DolgenCorp. v. Mississippi Band of ChoctawIndians, 846 F. Supp. 2d 646 (2011) . . . . . . . . . . . . . . 13, 14
Dollar General v. Mississippi Band of ChoctawIndians, 579 U.S. ___ (2016) . . . . . . . . . . . . . . . . . . . passim
El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999). . . . . . . . . . . . . . . . . . . . . . . 28
Evans v. Shoshone-Bannock Land Use PolicyCommission, 736 F.3d 1298 (9th Cir. 2013). . . . . . . . . . . . . . . 15
Fisher v. District Court, 424 U.S. 382 (1976). . . . . . . . . . . . . . . . . . . . . . . 20
Grand Canyon Skywalk Development, LLC v.’SA’NYU WA Incorporated, 715 F.3d 1196 (9th Cir. 2013). . . . . . . . . . . . . . . 15
Iowa Mutual Insurance, Company v. LaPlante, 480 U.S. 9 (1987). . . . . . . . . . . . . . . . . . . . . . . . . 19
vi
MacArthur v. San Juan Cty., 497 F.3d 1057 (2007) . . . . . . . . . . . . . . . . . . 16, 17
McCray v. New York, 461 U.S. 961 (1983). . . . . . . . . . . . . . . . . . . . . . . 28
McDonald v. Means, 309 F.3d 530 (9th Cir. 2002). . . . . . . . . . . . . . . . . 8
Merrion v. Jacarilla Apache Tribe, 455 U.S. 130 (1992). . . . . . . . . . . . . . . . . . . . . . . 11
Montana v. United States, 450 U.S. 544 (1981). . . . . . . . . . . . . . . . . . . passim
Myers v. Richland County, 429 F.3d 740 (8th Cir. 2005). . . . . . . . . . . . . . . . 24
Nat’l Farmers Union Inc. Cos. v. Crow Tribe, 471 U.S. 845 (1985). . . . . . . . . . . . . . . . . 20, 25, 26
Nevada v. Hicks, 533 U.S. 353 (2001). . . . . . . . . . . 16, 18, 19, 24, 28
Nord v. Kelly, 474 F. Supp. 2d 1088 (2008) . . . . . . . . . . . . . 16, 17
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). . . . . . . . . . . . . . . . . . . . . . . . 6
Osborn v. United States, 918 F.2d 724 (8th Cir. 1990). . . . . . . . . . . . . . . . 24
Phillip Morris USA, Inc. v. King Mountain Tobacco,509 F.3d 932 (9th Cir. 2009). . . . . . . . . . . . . . . . 16
Plains Commerce Bank v. Long Family Cattle Co., 554 U.S. 316 (2008). . . . . . . . . . . . . . . . . . . passim
vii
Smith v. Salish Kootenai College, 434 F.3d 1127 (9th Cir. 2006). . . . . . . . . . . 8, 9, 10
Strate v. A-1 Contractors, 520 U.S. 438 (1997). . . . . . . . . . . . . . . . . . 7, 17, 18
United States v. Hicks, 533 U.S. 353 (2001). . . . . . . . . . . . . . . . . . . . . . 7, 8
Washington v. Confederated Tribes of ColvilleIndian Reservation, 447 U.S. 134 . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20
Water Wheel Camp Recreational Area, Inc. v.LaRance, 642 F.3d 802 (9th Cir. 2011). . . . . . . . . . . . passim
Window Rock Unified School District v. Reeves, 861 F.3d 894 (9th Cir. 2017). . . . . . . . . . . . 8, 9, 18
STATUTES
Indian Civil Rights Act, 25 U.S.C. §1302 . . . . . . . . 19
1
INTRODUCTION
Petitioner, Duanna Knighton, seeks review of aquestion that is well settled law. It asks the Court tore-decide the depth and breadth of Tribal CourtJurisdiction over a non-member in a fact pattern thatis not unique and of which no due process issue arisesunder the application of well- established Indian lawprincipals. The Ninth Circuit Court of Appeals foundthat the Respondents, Cedarville Rancheria ofNorthern Paiute Indians and Cedarville Tribal Court,retained jurisdiction over Petitioner under twoseparate well-reasoned Indian law precedents:(1) Montana v. United States, 450 U.S. 544 (1981) two-prong analysis and (2) Water Wheel Camp RecreationalArea, Inc. v. LaRance, 642 F.3d 802, 814 (9th Cir.2011), land based inherent sovereignty principals. Theapplication of both precedents has been utilizedthroughout the nations District and Appellate Courtsfor decades. The Court also found that the Tribe’sregulatory authority did not exceed its adjudicativeauthority under the facts of the case.
In granting Petitioner’s writ, the Court mustreverse not just one case, but multiple cases and ignorethe most important and well-reasoned Indian law casesthe Court has previously decided. These cases, asapplied by the Appellate Court to reach its reasoneddecision, do not result in the slightest due process issueor a conflict within the Circuit courts. Certiorarishould be denied.
2
STATEMENT OF THE CASE
I. Factual Background
The Cedarville Rancheria is a federally recognizedIndian Tribe. The Tribe’s Rancheria, seventeen acres offederal trust lands, are located in Cedarville, ModocCounty, California. The Tribe’s Administrative Officesare located in Alturas, California, approximatelytwenty-three (23) miles from its land base and held infee simple. The Tribe operates pursuant to aConstitution, duly authorized by the Secretary of theInterior and receives federal funds pursuant to itsgovernment to government relationship with theUnited States. The Tribe is governed by itsCommunity Council, all eligible voting tribal memberseighteen years or over and in good standing with theTribe. The Tribe’s day to day operations are performedby an Executive Committee, which consists of a three(3) member council, Chairperson, Vice Chair andSecretary. (Pet App. 35a)
Petitioner, Duanna Knighton, a non-member,served the Tribe as an employee for 17 years. Petitioner started her tenue with the Tribe in 1994 asoffice help and worked her way up to the position ofTribal Administrator, the Tribe’s top non-member post,for over ten years. As Tribal Administrator, Petitioneroversaw the daily operations of the Tribe, wasresponsible for the Tribe’s finances, federal grants(HUD housing, EPA, Department of Energy, Water),oversaw member benefits, housing and investments. Petitioner’s involvement with the Tribe over the courseof her tribal employment touched literally every facetof the Tribe, its members and its federal lands.
3
Petitioner’s employment responsibilities with the Tribeoccurred within the Tribe’s federal trust lands inCedarville, California and on lands held in fee by theTribe, its Administrative Headquarters, currently inthe process of being placed in trust with the UnitedStates, located in Alturas, Modoc County, California,twenty-three miles from the Rancheria. (Pet App.6-7a)
In March of 2013, Petitioner abruptly resigned asTribal Administrator. Subsequent to her resignationthe Tribe authorized a forensic audit of the Tribe’sbooks and records. What the audit uncovered wasshocking, it showed that Petitioner had inflated hersalary by siphoning federal grant money from tribalprograms, had lost $1.2 million dollars of the Tribe’sinvestment funds, including funds for the Tribe’schildren, had encouraged the Tribe to purchase anAdministration office, without an appraisal, andwithout disclosing she was an officer of the propertysellers corporation. Petitioner created a tribally fundedretirement account for herself, the account balanceinflated by overpayments by the Tribe, failed todisclose to the Tribe several years of financial auditsthat recommended stronger fiscal policies and internalcontrols and upon resigning cashed out $29,000 in sickleave and overtime pay against Tribal policy. (PetApp. 10-11a)
During the period in which Petitioner defrauded thetribe, her employment was subject to the Tribe’sPersonnel Policies and Procedures Handbook. (Br. inOpp. App.31) Petitioner herself authored the Handbookfor the Tribe’s adoption as updated in 2011. TheHandbook placed Petitioner squarely under the
4
supervision and jurisdiction of the Tribe fordisciplinary purposes. (Pet App. 6-7a)
In September 2014, the Tribe filed suit againstPetitioner in its newly operating Tribal Court. TheTribal Court’s formation had been in process shortlyafter Petitioner’s resignation and was in full operationwithin nine (9) months after Petitioner’s resignation. The Tribal Court operates pursuant to tribal law andhas adopted the Federal Rules of Civil Procedure. TheTribe has an Appellate Court comprised of three (3)appellate judges for those cases requiring appellatereview. The Court is funded by U.S. Department ofJustice, BIA and Tribal funds. (Pet. App. 9-10a)
II. Procedural History
As a threshold matter, all courts, tribal, tribalappellate, federal district Eastern District of Californiaand the Ninth Circuit, applying both Montana andWaterwheel have upheld tribal court jurisdictionagainst Petitioner.
Upon receipt of the Tribe’s summons and complaint,Petitioner filed a Motion to Dismiss, which was denied,the trial court having found jurisdiction under bothprongs of Montana v. U.S., 450 U.S. 544 (1981)(consensual contact and special effects). Petitionerthen appealed to the Tribal Appellate Court, whichaffirmed the Tribal Court’s decision on jurisdiction. Petitioner then appealed the issue of co-DefendantR.I.S.E. Inc’s dismissal from the original lawsuit forlack of jurisdiction, which was remanded to the TrialCourt for decision. The trial court found R.I.S.E. wasnot a necessary or indispensable party. Thereafter,
5
Petitioner entered a stipulation with the Tribe topursue jurisdictional review via the Eastern District ofCalifornia Federal District Court. The Eastern Districtdismissed her complaint finding jurisdiction underWaterwheel v. LaRance, 642 F.3d 802, 814 (9th Cir.2011). Petitioner appealed to the Ninth Circuit Courtof Appeals, which denied her appeal findingjurisdiction could be found under either Montana orWaterwheel. Petitioner’s Writ of Certiorari followed. (Pet App. 11-13a).
REASONS FOR DENYING THE WRIT
There are four (4) independently sufficient reasonsfor denying Petitioners Writ. First, Petitioner’sQuestion concerning “Whether Tribal Courts haveJurisdiction over Non-Tribal Members” has beenanswered in the affirmative, with limitations, onnumerous occasions by the Court. Additionally, “WhatDue Process is required” has also been previouslydecided. Second, the Circuit split on which Petitionerrelies is illusory. Third, the Court of Appeals faithfullyapplied basic principles of federal Indian precedentfrom which Petitioner now seeks to depart and finally,Fourth, this case is a bad vehicle for resolvingPetitioner’s claimed circuit split and revisiting DollarGeneral.
I. Tribal court jurisdiction over nonmembersis well-settled law and all courts have heldor assumed that jurisdiction exists forqualifying tort claims
Petitioner asks this court to again decide whetherIndian Tribal Court’s have jurisdiction over non-tribal
6
members. The Court has answered this question in theaffirmative on numerous previous occasions.
The Ninth Circuit Appellate panel held that theTribe retained jurisdiction under its right to excludenonmembers from tribal land and from the tribe’sinherent sovereign power to protect self-governmentand control internal relations. Waterwheel, 642 F.3d802, 814 (9th Cir. 2011) The panel held that the Tribehad the authority to regulate the non-member conductthrough its exclusionary power.
The panel also found jurisdiction was applicable andthe tribe had regulatory authority over Petitionerunder both Montana exceptions, which allow a tribe:(1) to regulate the activities of nonmembers who enterconsensual relationships with the tribe or its membersand (2) to exercise civil authority over the conduct ofnonmembers on fee lands within its reservation whenthat conduct threatens or directly affects the politicalintegrity, the economic security, or the health orwelfare of the tribe. Given the existence of regulatoryauthority, the sovereign interests at stake, and thecongressional interest in promoting self-government,the tribal court has jurisdiction over the tribe’s tortclaims. So as to not denigrate an already well reasoneddecision the Panel stated as follows as to the law of thecase:
A. Legal Precedent
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191(1978), the Supreme Court holds that Indian Tribes donot have criminal jurisdiction over non-members.
7
Montana v. United States, 450 U.S. 544 (1981), theSupreme Court holds that tribal civil jurisdiction existsover non-members under two conditions: (1) wherethere exists consensual relations between the Tribe andnon-member; and (2) when the non-member conductcreates a Special Effect in that it threatens the politicalintegrity and financial security of the Tribe.
Strate v. A-1 Contractors, 520 U.S. 438 (1997) TheSupreme Court holds that Where Tribe’s haveauthority over non-members civil jurisdictionpresumably lies with the Tribal Courts.
United States v. Hicks, 533 U.S. 353 (2001), theSupreme Court clarifies Montana and holds that thefirst Montana exception “consensual relations”, is aboutprivate relationships, as in Petitioner’s case, and doesnot apply when an overriding state interest exists.
Water Wheel v. LaRance, 642 F.3d 802, 814 (9th Cir.2011). The Ninth Circuit holds that tribal regulatoryauthority over non-members exists under a tribe’sexclusionary powers.
Plains Commerce Bank v. Long Family Cattle Co.,554 U.S. 316 (2008). The Supreme Court holds that thesale of former trust land is not non-member conductthat can be regulated. Here, Petitioner’s conduct wason the Tribe’s reservation and she was a 17-year, highlevel, tribal employee.
Attorney’s Process & Investigative Services, Inc., v.Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d927 (8th Cir. 2010), Eighth Circuit applying Montanafinds jurisdiction over non-member defendants underthe Second Montana exception and finds use of tribal
8
court set up after facts giving rise to tribal tort claimsarose does not implicate due process concerns.
Dollar General v. Mississippi Band of ChoctawIndians, 579 U.S. ___ (2016). The Supreme Court on a4-4 vote, upholds the 5th Circuit’s finding that civiltribal court jurisdiction exists over a non-membercompany tortfeasor employee. Footnote 3 of the 5thCircuit’s Dollar General opinion, explains that allcircuits have held or assumed that there can be tribaljurisdiction for tort claims under Montana exceptions.
B. Petitioners’ Arguments
i. Petitioner’s On-ReservationConduct
Petitioner argues that treating land ownership as adispositive factor in upholding a tribe’s power toregulate nonmember conduct on tribal land (unless, asin Hicks, there are significant state interests present)is contrary to prior court rulings in McDonald v.Means, 309 F.3d 530 (9th Cir. 2002), and Smith v.Salish Kootenai College, 434 F.3d 1127 (9th Cir. 2006). Petitioner is incorrect. In McDonald, the Courtrecognized that a tribe’s jurisdiction over civil claimsagainst nonmembers arising on tribal land is limitedunder Hicks only in cases where significant stateinterests are present. See 309 F.3d at 540. And inWindow Rock Unified School District v. Reeves, 861F.3d 894, 902 n.9 (9th Cir. 2017), the Court held thatSmith did not limit a tribe’s jurisdiction over civilclaims against nonmembers bearing a direct connectionto tribal land. The Court concluded that Smith wasdistinguishable because it involved a nonmember
9
plaintiff, as opposed to a nonmember defendant, whohad entered into a consensual relationship with thetribe by filing his action in tribal court. Id.
Petitioner’s argument that a tribe’s regulatorypower over nonmember conduct on tribal land islimited to conduct that directly interferes with a tribe’sinherent powers to exclude and manage its own landsis also unavailing. In Window Rock, the Ninth Circuitconcluded that the tribal court’s jurisdiction overemployment-related claims that did not involve accessto tribal land was plausible; accordingly, it held thatthe nonmember defendants were required to exhausttheir tribal court remedies before proceeding in federalcourt. Id. at 896, 906. Moreover, limiting a tribe’sregulatory power over nonmember conduct to thatwhich directly interferes with a tribe’s inherent powersto exclude and manage its own lands, as Petitionersuggests, would restrict tribal sovereignty absentexplicit authorization from Congress—an approach wespecifically rejected in Water Wheel. See 642 F.3d at812 (stating that the tribe’s right to excludenonmembers from tribal land includes the power toregulate them “unless Congress has said otherwise, orunless the Supreme Court has recognized that suchpower conflicts with federal interests promoting tribalself-government”). (Pet App. 19-20a)
ii. Petitioner’s Off-ReservationConduct
Petitioner also argues that Water Wheel’s right-to-exclude framework is inapplicable here because someof her alleged misconduct occurred off tribal land, afterthe tribal administrative offices were relocated to fee
10
land owned by the Tribe. Although the Tribe’scomplaint does not allege precisely where the conductat issue occurred, most of the claims alleged againstPetitioner involve conduct that took place on triballand, before the Tribe’s administrative offices weremoved in mid-2009 to the RISE building in Alturas,California. Moreover, the facts of this case are uniquein that any claims that may have arisen outside triballand are based on alleged misconduct andmisrepresentations made by Petitioner on tribal land.See Smith, 434 F.3d at 1135 (stating that jurisdictionalinquiry is not limited to deciding precisely when andwhere the claim arose, but whether it bears some directconnection to tribal lands). For example, the $29,925overpayment for unused vacation and sick leave thatthe Tribe seeks to recover stems frommisrepresentations that Petitioner allegedly madethroughout the course of her employment, before theTribe’s administrative offices relocated. In addition,the relocation of the Tribe’s administrative offices fromtribal land to the RISE building on tribal fee land wasallegedly due to misrepresentations by Petitioner.
iii. Petitioner’s Due ProcessArgument
Petitioner further argues that even if the Tribe hadthe power to regulate her conduct on tribal land duringthe course of her employment under Water Wheel’sright-to-exclude framework, the Tribe’s authority islimited to the regulations that were in place during heremployment—which is to say, those provided for in thePersonnel Manual. Petitioner contends that the Tribeis attempting to impose new regulations on her through
11
tort law after she left her employment with the Tribe.This is not the case.
A tribe’s power to exclude nonmembers from triballands permits a tribe to condition a nonmember’s entryor continued presence on tribal land, see Merrion v.Jacarilla Apache Tribe, 455 U.S. 130, 144–45 (1992),but this inherent power does not permit the Tribe toimpose new regulations upon Petitioner’s conductretroactively when she is no longer present on triballand. Both the District and Appellate Court held thatPetitioner’s alleged conduct violated the Tribe’sregulations that were in place at the time of heremployment. The Personnel Manual regulatedemployee conduct including, but not limited to,Misfeasance or malfeasance in the performance of duty,incompetency in the performance of job duties, theft,carelessness or negligence with the monies or propertyof the Rancheria, inducement of an employee to act inviolation of Rancheria regulations, and violation ofpersonnel rules—all conduct that forms the basis of theTribe’s claims against Petitioner. Further, Petitionerhad notice of these regulations because she, herself,was responsible for drafting the Personnel PolicyHandbook adopted by the Tribe.
Petitioner’s due process argument fails because thelaw and potential damages applied to her was the lawin effect at the time of her employment. The onlychange is the forum, from the Tribe’s CommunityCouncil to an independent third-party judge, haschanged. Ironically, by the Tribe changing itsadjudicative forum from tribal member adjudicated to
12
a professional tribal court, Petitioner does not have toface, and be judged, by the members she defrauded.
iv. Dollar General is factuallydistinguishable from this case.
Petitioner, for the first time in five (5) years oflitigation now makes the claim that the Court shouldGrant the petition because of the Court’s 4-4 split inDollar General v. Mississippi Band of Choctaw Indians,579 U.S. ___ (2016). Dollar General is neither factuallysimilar nor relevant to Petitioners’ QuestionsPresented. Although both involve tort claims, theirsimilarity dramatically diverges from there. DollarGeneral concerned a tribal lessee’s employee who washaled into tribal court by the Tribe for alleged tortsagainst a tribal member minor intern. Dollar Generalalleges there was no lease agreement between DollarGeneral and the Tribe conferring court jurisdiction andthat the Dollar General manager accused of the assaultlacked authority to bind Dollar General to the Tribe’sjurisdiction.
By contrast, Petitioner Knighton was a tribalemployee for seventeen (17) years, employed by theTribe as its Tribal Administrator, the highest-level non-member position within the Tribe. Petitioner oversawthe Tribe’s finances, business and land base. Petitioner, herself, wrote the Personnel Policies andProcedures that the District Court, as affirmed by theNinth Circuit, found applicable to her. The proceduresalso provided Petitioner the appropriate notice of theTribe’s power that could be used against her for claimsof malfeasance of duty. Petitioner was also aware of theTribe’s power and herself utilized it first-hand, having
13
disciplined and terminated tribal employees andvendors, some tribal members, on behalf of the Tribe.Any inference by Petitioner that she was oblivious tothe Tribe’s power to exclude is disingenuous.
In the tribal and federal district and appellatecourts Dollar General argued that under PlainsCommerce Bank, jurisdiction was lacking because thetort claims did not implicate tribal governance orinternal relations. DolgenCorp. v. Mississippi Band ofChoctaw Indians, 846 F. Supp. 2d 646, 650–51 (2011).The district court explained:
“The parties disagree as to the meaning and importof Plains Commerce Bank with respect to the firstMontana exception. Plaintiffs submit that under theCourt's interpretation of the exception in PlainsCommerce Bank, no longer will every consensualrelationship between a nonmember and a tribalmember occurring on the reservation be sufficient toestablish tribal jurisdiction over claims with a nexus tothat relationship; rather, only those consensualrelationships that are evaluated and determined tohave an impact on tribal self-governance or internalrelations will trigger tribal jurisdiction. Plaintiffscontend that since the consensual relationship hereinvolved does not implicate tribal self-governance orinternal relations, then the exception does not applyand there can be no basis for tribal jurisdiction.Defendants, on the other hand, maintain that nothingin Plains Commerce Bank altered the basic Montanaframework and that to establish applicability of theconsensual relationship exception, no showing isrequired to be made beyond the existence of the
14
consensual relationship which supports a finding ofconsent to tribal jurisdiction, and the nexus betweenthe consensual relationship and exertion of tribalauthority. According to defendants, it is implicit inMontana and its progeny that the right of Indian tribesto self-governance includes the right to adjudicate civildisputes arising from voluntary consensualrelationships between tribes and their members andnonmembers. That is, disputes arising from member-nonmember or tribe-nonmember consensualrelationships are deemed as a matter of law to impacttribal rights of self-government sufficient to permit theexercise of tribal court jurisdiction to adjudicate suchdisputes. Id. at 652-53 (footnote omitted). The districtcourt agreed with the tribal defendants’ position,stating that “although a number of post-PlainsCommerce Bank cases have considered the consensualrelationship exception, none has identified theadditional showing advocated by plaintiffs as aprerequisite to its application.” Id. at 653-54 & n. 3.”Accordingly, the district court concluded that tribalcourt jurisdiction was permitted under thefirst Montana exception. Id. at 654.
Here, in contrast to the facts in Dollar General,Petitioner was the highest-level non-member employeeof the Tribe and as Tribal Administrator Petitioneroversaw every aspect of tribal life. Even if PlainsCommerce Bank altered Montana to requires conductimplicating tribal governance and internal relations toestablish jurisdiction, such conduct could easily befound. Petitioner’s malfeasance touched every aspectof the tribe, from its government, its federal funding,members, housing and tribal lands. (See Cedarville
15
Rancheria Personnel Polices and Procedures, Sec.1Positions Tribal Administrator –“Tribal Administratoris responsible for overall supervision and managementof the Cedarville Rancheria. . .”(Br. in Opp. App.31)). Petitioner as a tribal insider had the opportunity tomanipulate the Tribe and its policies and procedures toher benefit, unlike the employment of a tribalcustodian who lacks high level insider influence. Because the facts of the instant case are easilydistinguishable from Dollar General, and the Tribewould meet any tribal governance and internalrelations nexus if in fact such a requirement exists, thePetition should be denied.
Finally, there is unanimity among the Circuitswhich have addressed the issue that this Court’s rulingin Plains Commerce did not change anything about theconsensual relationship exception or the nexus test.Pet.App., pp.15-18; Evans v. Shoshone-Bannock LandUse Policy Commission, 736 F.3d 1298, 1303 (9th Cir.2013) (citing Plains Commerce and applying Montana’sconsensual relationship exception without change);accord, Grand Canyon Skywalk Development, LLC v.’SA’NYU WA Incorporated, 715 F.3d 1196, 1205-1206(9th Cir. 2013); Water Wheel, supra at 810-820 and n.6(affirming tribal court jurisdiction over contract andtort claims under Montana exceptions as regards on-reservation lease and post-lease disputes between tribeand non-Indian parties, rejecting arguments thatPlains Commerce changed the rules regarding theconsensual relationship exception); Crowe & Dunlevy,P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2011)(affirming district court’s application of the consensualrelationship test after Plains Commerce; affirming that
16
the Montana test is satisfied by proof of a consensualrelationship and “a sufficient ’nexus’ between thatrelationship” and the subject tribal court claim, withoutany suggestion that any separate proof of special harmto the tribe’s right of self-governance or internal affairswas required); Attorney’s Process, supra at 936, 937-946(8th Cir. 2010) (recognizing that Plains Commerce leftintact the basic Montana framework and its twoexceptions); Phillip Morris USA, Inc. v. King MountainTobacco, 509 F.3d 932, 937, 940-942 (9th Cir. 2009)(“Montana, Strate, and Hicks. . .are affirmed inimportant respects by the Court’s most recent tribaljurisdiction decision in Plains Commerce;” expresslyrejecting the argument that a special showing ofsignificant harm to the tribe’s political existence orinternal relations is required to invoke the consensualrelationship exception). In sum, Plains Commerce didnot alter the Court’s Montana analysis and the Petitionshould be denied.
II. The circuit split on which petitioner reliesis illusory.
Petitioner encourages the Court to review what sheperceives is a jurisdictional split over the Ninth Circuit’sdecision in Nevada v. Hicks, 533 U.S. 353 (2001)contrasted with those of the Tenth Circuit in MacArthurv. San Juan Cty., 497 F.3d 1057 (2007), Eighth circuit(Nord v. Kelly, 474 F. Supp. 2d 1088 (2008).). Moreover,Petitioner conflates the Montana test and the land-based analysis of Water Wheel v. LaRance, to arrive ather conclusion. The split is pure fantasy.
17
i. Montana as Applied in the Tenthand Eight Circuits
The MacArthur Court applied Montana’s two-prongapproach to find jurisdiction over a County run medicalfacility, located on tribal land. The court held thatbecause the clinic was located on tribal land and acontract existed for medical services between the Tribeand County, a “consensual relationship” existedsatisfying Montana’s first prong. This case isanalogues to the facts in the instant case. Petitionerperformed acts within the Tribe’s jurisdiction and theAppellate Court found that the consensual relationshipbetween the Tribe and Petitioner satisfied Montana’sfirst prong. The Court then looked at Petitionersposition within the Tribe, Tribal Administrator, herresponsibilities, and the alleged tortious acts toconclude Montana’s second prong, “special effects” hadalso been met. Hence, McArthur (Eighth Circuit) andMontana (Ninth Circuit) are not adverse, they are inperfect harmony.
By contrast, the Eighth Circuit decision in Nord v.Kelly did not even apply Montana, the case was decidedusing Strate v. A-1 Contractors, 520 U.S. 438 (1997)because the auto accident giving rise to the claimsoccurred on a highway running through a reservationand there existed no treaty between the State andTribe to permit tribal court jurisdiction. See Nord,supra, at 1093 citing Strate v. A-1 contractors “Thiscase is controlled by the Supreme Court's decision inStrate, holding that “tribal courts may not entertainclaims against nonmembers arising out of accidents onstate highways, absent a statute or treaty authorizing
18
the tribe to govern the conduct of nonmembers on thehighway in question.” 520 U.S. at 442, 117 S. Ct.1404.).
Respondent Tribe’s lands on which Petitioner’s actsoccurred are not the “no mans” land of a state highwayas found in Strate. They are federal trust lands, ofwhich Petitioner concedes she visited numerous timesover the course of her 17-year employment with theTribe and fee lands containing the Tribe’sAdministrative Office, lands preparing to be placed infederal trust. The Tribe’s Constitution, passed whilePetitioner was in the Tribe’s employ, enumerates bothtrust lands and lands in fee are subject to the Tribe’sregulatory jurisdiction. APPX 3, App. 87, “Territory”.
Petitioner’s purported “split” is based on a singlestatement referenced in the dissent in Window RockUnified School District v. Reeves, 871 F.3d 894 (9th Cir.2017), citing another case Nevada v. Hicks. Petitionerssplit is the belief that the Appellate Court did not applyMontana’s two -prong approach in finding Tribal Courtjurisdiction was appropriate as against Petitioner,because no competing state interest existed - this didnot happen. A review of the appellate opiniondemonstrates the Appellate Court went to greatlengths in its jurisdictional analysis in applying bothprongs of Montana to find jurisdiction over Petitionerunder Montana. The Court then analyzed the caseunder the Water Wheel analysis and found thatjurisdiction could be found there as well. Thus, theNinth Circuit held jurisdiction proper under eitherMontana, as held by the Tribal Courts or Water wheel,as held by the Eastern District of California.
19
Petitioner’s invocation of Hicks, is completelybaseless and inapplicable to this case. Although Hick’sis important to the overall Montana analysis when acourt is faced with competing government interests, itis inapplicable here because the facts do not involveState officers enforcing state criminal laws upon areservation to create such a conflict. This case is a civilmatter between an Indian tribe and its 17-yearemployee who committed malfeasance whileperforming her employment duties on the Tribe’sReservation and fee lands. The State does not have ascintilla of an interest, compelling or otherwise, in theTribe’s claims against Petitioner or the outcome. Further, any due process concerns with Tribal Courtssuch as perceived bias and incompetence, etc., werepreviously decided as frivolous in Iowa MutualInsurance, Company v. LaPlante, 480 U.S. 9, 18 (1987)(See “(d) Petitioner's contention that local bias andincompetence on the part of tribal courts justify theexercise of federal jurisdiction is without merit, sinceincompetence is not among National Farmers Union’sexceptions to the exhaustion requirement, and wouldbe contrary to the congressional policy promoting tribalcourts’ development, and since the Indian Civil RightsAct, 25 U.S.C. §1302, protects non-Indians againstunfair treatment in tribal courts. Pp. 480 U.S. 18-19.”
It is clear that in the absence of a competing stateinterest tribal court jurisdiction is proper as againstPetitioner. “Tribal authority over the activities of non-Indians on reservation lands is an important part oftribal sovereignty. See Montana v. United States, 450U.S. 544, 450 U.S. 565-566 (1981); Washington v.Confederated Tribes of Colville Indian Reservation, 447
20
U.S. 134, 152-153 (1980); Fisher v. District Court, 424U.S. 382, 387-389 (1976). Civil jurisdiction over suchactivities presumptively lies in the tribal courts, unlessaffirmatively limited by a specific treaty provision orfederal statute. Id. at Pp. 480 U.S. 18-19.
III. The Ninth Circuit faithfully applied basicprinciples of federal Indian precedent fromwhich petitioner now seeks to depart.
The Ninth Circuit applied the principals of federalIndian law correctly to the facts presented in this case.Petitioner’s arguments are contrary to established law. Petitioner repeatedly states throughout the Petitionthat “Tribal Courts do not have jurisdiction toadjudicate non-member private tort claims” - this is notthe law. While Tribal Court jurisdiction is not to bepresumed, under the Montana two prong approach andWaterwheel’s land - based formula, these tests set forththe analysis utilized to determine when Courtjurisdiction is proper.
Montana’s first prong, “consensual relations” seeksto analyze whether relations between the Tribe andnon-member are such that jurisdiction would not resultin a violation of “fair play and substantial justice”. Hence, under the first prong, contractual basedrelations are usually sufficient to hale the non-memberinto the tribes’ forum. The second prong of theMontana analysis “special effects”, requires that the act“imperil the Tribe and have some effect on the Tribe’spolitical and economic security or the health andwelfare of the Tribe.” Plains Commerce Bank citingMontana. The acts Petitioner is accused of easily meetthese requirements.
21
The Ninth Circuit held that Petitioners tortious actswere such that they satisfied both prongs of theMontana test. The Court applied the first prong andheld that Petitioner’s 17-year employment with theTribe, performed both on and off the reservation,provided the requisite “contacts” with the Tribe suchthat fair play and substantial justice would not beoffended. Petitioner having drafted the Tribe’s policiesherself, which placed jurisdiction and discipline oftribal employees, including herself, under the purviewof the Tribe, Petitioner had the requisite notice tosupport due process. Attorney’s Process, 609 F.3d 927(8th Cir. 2010) cited by Petitioner does not supportPetitioners cause. In fact, the precedent supportsRespondent’s opposition and the case facts are eerilysimilar to the facts of the instant case.
In Attorney’s Process a rival tribal faction attemptedto take over the Sac & Fox tribes tribal casino. Thefaction, employed non-members to storm the Casino. Although the attempted take-over failed the aftermathresulted in a lawsuit before the Tribal court in whichthe non-members were subject to tribal penalties. TheTribe’s Tribal Court, as in the instant case, was not inoperation at the time of the take-over attempt. Appellant’s made the same due process argumentsPetitioner makes here as to the tribes’ assertion ofjurisdiction. In upholding the Tribal Court’s finding ofjurisdiction the Eighth Circuit stated as follows:
“Although the issue in the Montana case was abouttribal regulatory authority over nonmember fee landwithin the reservation, Montana, 450 U.S. at 547,Montana’s analytic framework now sets the outer
22
limits of tribal civil jurisdiction-both regulatory andadjudicatory-over nonmember activities on tribal andnonmember land. . . . . Because “efforts by a tribe toregulate nonmembers are presumptively invalid,” theTribe bears the burden of showing that its assertion ofjurisdiction falls within one of the Montana exceptions.Plains Commerce Bank, 128 S. Ct. at 2720 (quotationmarks omitted). Those exceptions are narrow ones and“cannot be construed in a manner that would ‘swallowthe rule.’ ” Id. (quoting Atkinson Trading Co., 532 U.S.at 655). The Ninth Circuit court determined that thetribal courts could exercise jurisdiction over the Tribe’sclaims under both Montana exceptions.
i. First Montana Exception
The Ninth Circuit held that Montana’s “consensualrelationship exception recognizes that tribes havejurisdiction to regulate consensual relations “throughtaxation, licensing, or other means.” 450 U.S. at 565.Courts have recognized that tort law, under which theTribe’s claims against Knighton arise, constitutes aform of regulation. See Attorney’s Process, 609 F.3d at938 (stating that if a tribe retains the power underMontana to regulate nonmember conduct, it does notmake any difference whether it does so throughprecisely tailored regulations or through tort claims). However, Montana’s consensual relationship exceptionrequires that “the regulation imposed by the Indiantribe have a nexus to the consensual relationshipitself.” Atkinson Trading Co. v. Shirley, 532 U.S. 645,656 (2001). “A nonmember’s consensual relationship inone area thus does not trigger tribal civil authority inanother.” Id.
23
In examining the facts of the case, the Courtconcluded that the Tribe had regulatory authority overKnighton’s conduct. The conduct that the Tribe soughtto regulate through tort law arose directly out of theconsensual employment relationship between the Tribeand Knighton. Moreover, given the circumstances,Knighton should have reasonably anticipated that herconduct might “trigger” tribal authority. Water Wheel,642 F.3d at 818 (quoting Plains Commerce Bank, 554U.S. at 338). Knighton was no stranger to the Tribe’sgovernance and laws. She had been an employee of theTribe for approximately sixteen years and, as TribalAdministrator, was responsible for the overallsupervision and management of tribal operations andcarrying out tribal projects consistent with the TribalConstitution. The Tribal Constitution, a subsequentrevision adopted approximately two years beforeKnighton resigned as Tribal Administrator, specificallyprovided that the “jurisdiction of [the Tribe] shallextend to land now within the confines of the[Rancheria] and to such other lands as may thereafterbe added thereto.” (Br. in Opp. App.87) The NinthCircuit concluded that given the circumstances,Knighton should reasonably have anticipated that herconduct on tribal land would fall within the Tribe’sregulatory jurisdiction.
ii. Second Montana Exception
Montana’s Second exception provides that tribalcourts have authority over nonmember conduct which“threatens or has some direct effect on the politicalintegrity, the economic security, or the health or welfareof the tribe.” Montana, 450 U.S. at 566. In Attorney’s
24
Process the district court concluded that by attemptingto seize control of the casino and government officesduring an intratribal governance dispute, defendantAPI directly affected both the political integrity and theeconomic security of the Tribe.
The Court in API stated that “the starting point forthe jurisdictional analysis is to examine the specificconduct the Tribe's legal claims would seek to regulate.The Montana exceptions focus on “ ‘the activities ofnonmembers’ or ‘the conduct of non-Indians.’ ”PlainsCommerce Bank, 128 S. Ct. at 2720 (quoting Montana,450 U.S. at 565-66) (emphasis in original). Each claimmust be analyzed individually in terms of the Montanaprinciples to determine whether the tribal court hassubject matter jurisdiction over it. See Hicks, 533 U.S.at 367 n. 8 (limitations on tribal jurisdiction “pertain[ ]to subject-matter, rather than merely personal,jurisdiction”); Plains Commerce Bank, 128 S. Ct. at2724-25 & n. 2; cf. Myers v. Richland County, 429 F.3d740, 747-48 (8th Cir. 2005) (examining federal courtsubject matter jurisdiction claim by claim).
In analyzing the jurisdictional issue we rely on therecord developed in the tribal courts and theallegations in the Tribe’s complaint. Questions ofsubject matter jurisdiction often require resolution offactual issues before the court may proceed, see, e.g.,Osborn v. United States, 918 F.2d 724, 728-30 (8th Cir.1990), and that is particularly true of inquiries intotribal jurisdiction. It is therefore both necessary andappropriate for the parties and the tribal court toensure that “a full record [is] developed in the Tribal
25
Court.” Nat’l Farmers Union Inc. Cos. v. Crow Tribe,471 U.S. 845, 856 (1985)
Here, neither Petitioner Knighton or the Triberequested discovery in the tribal or district courtforums. Petitioner Knighton has also not contested anyof the material allegations made by the Tribe againsther in its complaint. Thus, all courts took the facts inthe complaint, as true, for determining tribal courtjurisdiction.
The Ninth Circuit found that Petitioner’s conduct inmismanaging $3 million in tribal funds, manipulatingher pay and retirement, failing to inform the tribe ofaudit reports recommending stronger fiscal polices andrecommending the purchase of an Administration officein which she had a conflict, all supported jurisdictionunder the Second Montana exception.
The Montana exceptions recognize that the Indiantribes “retain inherent sovereign power,” Montana, 450U.S. at 565, and our task in applying the exceptions isto outline the boundaries of that retained power. Thoseboundaries are established by federal law, a source oflaw external to the tribes. See, e.g., Nat’l FarmersUnion, 471 U.S. at 852. Positive tribal law, in contrast,is internal to the tribes. It is a manifestation of tribalpower, and as such it does not contribute to theexternal limitations which concern us here. Once it isdetermined that certain conduct is within the scope ofa tribe’s power as a matter of federal law, our inquiryis at an end.”
26
iii. Tribal Adjudicative Authority
Concerning the Court’s Adjudicative authority theNinth Circuit Court held that the Tribe’s adjudicativeauthority did not exceed its regulatory authority. TheTribe’s Personnel Manual regulated the conduct thatformed the basis of the Tribe’s claims againstKnighton, and permitted her to be regulated as TribalAdministrator by the Tribe’s Community Council. Moreover, the Ninth held that the fact the Tribe nowsought to adjudicate the claims in tribal court did notundermine its jurisdiction over the claims.
iv. Use of a Tribal Court CreatedAfter Petitioner Knighton’sdeparture from tribal employmentdoes not Undermine Due Process
The Ninth Circuit also held that due process wasnot undermined by the jurisdiction being found overPetitioner after leaving tribal employment. The Ninthagain looked upon the Eighth Circuit’s Attorney’sProcess case which has facts analogues to this case. InAttorney’s Process, the tribal court system wasestablished after the tort claims against API arose. 609F.3d at 933. API argued that the tribe lackedjurisdiction over its claims because there were nowritten regulations in place at the time whichprohibited the tortious conduct that API was alleged tohave committed. Id. at 938. The court stated that “[i]fthe Tribe retains the power under Montana to regulatesuch conduct, we fail to see how it makes any differencewhether it does so through precisely tailoredregulations or through tort claims such as those atissue [in the case].” Id. The court concluded that
27
because API’s intervention onto tribal land threatenedthe “‘political integrity, the economic security, [and] thehealth [and] welfare’ of the Tribe,” the tribe had theauthority to regulate and adjudicate such conductunder Montana, as well as incident to its sovereignright to exclude nonmembers from tribal land. Id. at940 (alterations in original) (quoting Montana, 450U.S. at 566).
The Ninth Circuit held that “the Tribe’s authority toregulate Petitioner’s conduct derived not only from itssovereign power to exclude nonmembers from triballands, but also from its inherent sovereign power toregulate consensual relations with nonmembers“through taxation, licensing, or other means,” and toprotect the “political integrity, the economic security,[and] the health [and] welfare” of the Tribe. Montana,450 U.S. at 565–66.”
As held by the Ninth Circuit, the Court applied anidentical analysis as the Eighth Circuit did inAttorney’s Process to determine that in findingjurisdiction the Tribe’s regulatory authority did notexceed its adjudicative authority. The only distinctionwas that the Eight Circuit did not also apply WaterWheel in its analysis. And it need not do so because thelower Court in Attorney’s Process did not apply WaterWheel, as the Eastern District Court did in upholdingthe Tribe’s finding of jurisdiction over Petitioner. Ingranting Petitioners Writ the Court would need tooverturn the Eighth and Ninth Circuit’s harmoniousapplication of Montana and unnecessarily uprootdecades of rationally applied federal Indian lawprecedent.
28
Finally, all the federal circuits which haveaddressed on reservation employment relationshipshave held they are the kind of consensual relationshipswhich can satisfy Montana’s first exception and triggertribal regulatory and adjudicatory jurisdiction--whenthe nexus test is also satisfied. See, pp.8-9, supra.Given the absence of a split in the Circuits this case isnot a proper vehicle for addressing the questionpresented. McCray v. New York, 461 U.S. 961, 963(1983) (Stevens, J.). These cases are directly in linewith this Court’s recognition in El Paso Natural GasCo. v. Neztsosie, 526 U.S. 473, 482 (1999) that unlessCongressional intent clearly intends to convert statelaw claims to federal claims for purposes of federalcourt jurisdiction (even for tort claims arising on-reservation) “there was little doubt that the tribal courthad jurisdiction over such tort claims.” This point wasreiterated in Hicks, supra at 369.
IV. This case is a bad vehicle for resolvingPetitioner’s Claimed Circuit Split andRevisiting Dollar General
This case is a bad vehicle to address the Petition’sclaimed circuit split because, as noted above, there isno such split. The Petition paints the Ninth Circuit asrejecting Montana in many situations, but the decisionbelow made explicitly clear that the Montanaexceptions apply. Therefore, even if the Court held thatthe sovereign exclusion source is somehow problematic,it would not affect the outcome.
Second, this case is a bad vehicle to revisit thequestion posed in Dollar General. As noted, the DollarGeneral petition contended that the first Montana
29
exception should not be used to justify tribaljurisdiction for tort claims because it opens thefloodgates to sue any entity that has done businesswith the tribe. But even the Dollar General petitionconcedes that the second Montana exception providesa more limited and legitimate basis to justify tortjurisdiction—i.e., where the conduct is so extreme thatit affects the integrity and economic stability of thetribe itself. This is that extreme case—it’s hard toimagine a nonmember more enmeshed in tribaldecisions and finances than Petitioner, RespondentTribe’s former Tribal Administrator. Petitioner putover $3 million of tribal funds at risk, stole from thetribe, and entered various financial arrangements witha conflict. Thus, even if the Court took on the questionpresented in Dollar General and limited theapplicability of the first Montana exception, it wouldsimilarly not affect the outcome in this case.Accordingly, this case is a bad vehicle for addressingPetitioner’s questions.
30
CONCLUSION
For the forgoing reasons Petitioners Writ should bedenied.
Respectfully Submitted,
Jack Duran, Jr. Counsel for Record4010 Foothills Blvd.S-103, #98Roseville, CA 95747(916) [email protected]
Counsel for Respondents
APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix 1 Cedarville Rancheria Judicial Code . . . . . . . . . . . . . . . . App. 1
Appendix 2 Cedarville Rancheria Personnel Policies and ProceduresManual . . . . . . . . . . . . . . . . . . . . App. 31
Appendix 3 Constitution and Bylaws of theCedarville Rancheria . . . . . . . . . App. 84
App. 1
APPENDIX 1
EXHIBIT “1”
[Filed October 10, 2016]
CEDARVILLE RANCHERIA JUDICIAL CODE
PREAMBLE
This Code of the Cedarville Rancheria is enacted forthe purpose of protecting and promoting tribalsovereignty, strengthening tribal self-government,providing for the judicial needs of the CedarvilleRancheria, and thereby assuring the protection oftribal resources and the rights of the members of theCedarville Rancheria and all others within itsjurisdiction.
TITLE I: COURTS
PART I: ESTABLISHMENT AND OPERATIONOF THE CEDARVILLE RANCHERIA
TRIBAL COURT
Section 101. Establishment of Tribal Court.
There is hereby established a tribal court of generaljurisdiction as a Court of record. The CedarvilleRancheria Tribal Court “Tribal Court” or “Court” shallconsist of a Trial Division and an Appellate Division.
App. 2
Section 102. Tribal Designation.
Wherever the formal designation “Tribe,” “Tribal” or“Rancheria” appears in this Code, such designationshall refer to the Cedarville Rancheria unlessspecifically designated otherwise.
Section 103. Appropriations and Funding.
A. The Community Council of the Rancheria shallappropriate and authorize the expenditure oftribal funds for the operation of the TribalCourt. The amounts to be appropriated shall beconsistent with the needs of the Tribal Court forproper administration of justice within theReservation and for the Rancheria asdetermined by the Community Council.
B. To assist the Community Council in makingappropriations for operation of the Court, theTribal Administrator, in consultation with theChief Judge shall submit proposed budgets andreports of expenses and expenditures at suchintervals and in such form as may be prescribedby the Community Council.
C. The Community Council may prescribe a systemof accounting for funds received from any sourceby the court and the Tribal Administrator.
Section 104. Conflict with Other Laws.
A. Tribal Laws.
To the extent that this Code may conflict withtribal laws or ordinances which have beenenacted to comply with statutes or regulations of
App. 3
any agency of the United States, such tribal lawsor ordinances shall govern over the provisions ofthis Code if they have specific applicability andare clearly in conflict with the provisions of thisCode.
B. Federal Laws.
Where a conflict may appear between this Codeand any statute, regulation or agreement of theUnited States, the federal law shall govern if ithas specific applicability and if it clearly is inconflict with the provisions of this Code.
C. State Laws.
To the extent that the laws of any state may beapplicable to the subject matter of this Code,such laws shall be read to be advisory and notdirectly binding and shall not govern therelations of the parties.
PART II: JURISDICTION
Section 201. Cedarville Rancheria Tribal CourtJurisdiction
A. Territory.
The jurisdiction of the Tribal Court and theeffective area of this Code shall extend todisputes arising within or concerning allterritory within the Cedarville Rancheriaboundaries, including, but not limited to, trustlands, fee patent lands, allotments, assignments,roads, waters, bridges and existing and futurelands outside the boundaries owned or controlled
App. 4
by the Rancheria for its benefit, the benefit of itsmembers and the benefit of other Indianpersons.
B. Subject Matter.
The jurisdiction of the Tribal Court shall extendto:
1. All persons who reside or are found withinthe territorial jurisdiction of the Rancheriaand are: Tribal members or eligible formembership in the Rancheria; members ofother federally recognized Indian tribes; orIndians who are recognized as such by anIndian community or by the federalgovernment for any purpose.
2. All persons described in Subdivision B.1.,wherever located, while exercising tribalrights pursuant to federal, state or tribal law.
3. All persons outside the exterior boundaries ofthe Cedarville Rancheria Reservation, asdefined herein, within the jurisdiction of theRancheria pursuant to federal or tribal law,including all persons whose activity on or offreservation threatens the Rancheria,government or its membership.
4. All other persons whose actions involve oraffect the Rancheria, or its members, throughcommercial dealings, contracts, leases orother arrangements. For purposes of thisCode, person shall mean all natural persons,corporations, joint ventures, partnerships,
App. 5
trust, trust funds, public or privateorganizations or any business entity ofwhatever kind.
C. Actions.
The judicial power of the Tribal Court shallextend to:
1. All matters and actions within the power andauthority of the Cedarville Rancheriaincluding controversies arising out of theConstitution and By-Laws of the CedarvilleRancheria, statutes, ordinances, resolutionsand codes enacted by the CedarvilleRancheria; and such other matters arisingunder enactments of the CedarvilleRancheria or the customs and traditions ofthe Cedarville Rancheria.
2. All civil causes of action arising at commonlaw including, without limitation, all contractclaims (whether the contract at issue iswritten or oral or existing at law), all tortclaims (regardless of the nature), all propertyclaims (regardless of the nature), allinsurance claims, and all claims based oncommercial dealing with the Band, itsagencies, sub-entities, and corporationschartered pursuant to its laws, and allnuisance claims. The court shall haveoriginal jurisdiction whether the common lawcause of action is one which has been definedas Band common law, or is one which existsat common law in another jurisdiction and
App. 6
which is brought before the Tribal Courtbased upon reference to the law of that otherjurisdiction. For the purposes of this Code,“common law” shall mean the body of thoseprinciples and rules of action, relating to thegovernment and security of persons andproperty, which derive their authority solelyfrom the usages and customs, or from thejudgments and decrees of courts recognizingand affirming such usages and customs, andas is generally distinguished from statutorylaw.
3. Other actions arising under the laws of theRancheria as provided in those laws.
4. Limitation of Actions.
No complaint shall be filed in a civil actionunless the events shall have occurred withina six (6) year period prior to the date of filingthe complaint; provided, that this generalstatute of limitations shall not apply to suitsfiled to recover public money or publicproperty intentionally or erroneouslymisspent, misappropriated or misused in anyway; and further provided that this generalstatute of limitations shall not apply to anydebt owed the Rancheria or any of itsagencies, arms or instrumentalities, whetherorganized or not under tribal law.
D. Concurrent Jurisdiction.
The jurisdiction invoked by this Code over anyperson, cause of action or subject shall be
App. 7
concurrent with any valid jurisdiction over the sameof the courts of the United States, any state, or anypolitical subdivision thereof; provided, however, thiscode does not recognize, grant, or cede jurisdictionto any state or other political or governmentalentity which jurisdiction does not otherwise exist inlaw.
Inclusion of language, definitions, procedure orother statutory or administrative provisions ofthe state of California or other state or federalentities in this Code shall not be deemed anadoption of that law by the Cedarville Rancheriaand shall not be deemed an action deferring tostate or federal jurisdiction within theCedarville Rancheria where such state or federaljurisdiction may be concurrent or does nototherwise exist.
Section 202. Suits Against the Band.
A. Sovereign Immunity of Band.
The sovereign immunity from suit of the Band andevery elected Executive Council member or tribalofficial with respect to any action taken in anofficial capacity or in the exercise of the officialpowers of any such office, in any court, federal,state or tribal is hereby affirmed; nothing in thisCode shall constitute a waiver of the Rancheria’ssovereign immunity. The Tribal Court shall have nojurisdiction over any suit brought against theRancheria in the absence of unequivocallyexpressed waiver of that immunity of theCommunity Council.
App. 8
B. Tribal Action Not a Waiver of SovereignImmunity.
No enforcement action taken pursuant to this Code,including the filing of an action by the Rancheria orany agency of the Rancheria in the Tribal Court,shall constitute a waiver of sovereign immunityfrom suit of the Rancheria, or any elected ExecutiveCouncil member or tribal official with respect to anyaction taken in an official capacity, or in theexercise of the official powers of any such office,either as to any counterclaim, regardless of whetherthe counterclaim arises out of the same transactionor occurrence, or in any other respect.
C. Resolution Required for Waiver of SovereignImmunity.
The sovereign immunity of the Rancheria and anyelected Executive Council member or tribal officialwith respect to any action taken in an officialcapacity, or in the exercise of the official powers ofany such office, in any action filed in the TribalCourt with respect thereto, may only be waived bya formal resolution of the Community Council of theCedarville Rancheria. All waivers shall beunequivocally expressed in such resolution. Nowaiver of the Rancheria’s sovereign immunity fromsuit may be implied from any action or document.Waivers of sovereign immunity shall not be general,but shall be specific and limited as to thejurisdiction or forum within which an action may beheard, duration, grantee, action and property orfunds, if any of the Rancheria or any agency,subdivision or governmental or commercial entity of
App. 9
the Rancheria subject thereto. No express waiver ofsovereign immunity by resolution of the CommunityCouncil of the Cedarville Rancheria shall be deemedconsent to the levy of any judgment, lien orattachment upon property of the Rancheria or anyagency, subdivision or governmental or commercialentity of the Rancheria other than propertyspecifically pledged or assigned therein.
Section 203. Amendments and Revisions.
This Code may be amended by action of the ExecutiveCommittee or Community Council of the CedarvilleRancheria. Amendments, additions and deletions tothis Code shall become a part hereof for all purposesand shall be codified and incorporated herein in amanner consistent with its numbering andorganization. Other than actions regarding proceduralissues, no enactment, ordinance, resolution, orotherwise, shall apply to any pending cases before theTribal Court at the time action is taken by theCommunity Council of the Cedarville Rancheria.
Section 204. Code Revisor.
A. Appointment.
The Tribal Administrator is hereby appointed CodeReviser for the Cedarville Rancheria. TheCommunity Council, Executive Committee, tribalofficials or the Chief Judge may submit for reviewand approval all codes, ordinances and statutorylaw contemplated for application and use by theCourt. The Community Council shall review andvote on the Ordinance. The Ordinance shall beeffective upon an affirmative vote of the Community
App. 10
Council. All Court Ordinances are subject toperiodic revision and amendment with the consentof the Executive Committee or Community Council.Court operation policies and procedures are notsubject to Community Council review and approval.However, any policies and procedures shall beprovided to the Executive Committee for review andcomment. Court policies and procedures shall alsobe made available upon request.
B. Duties of Reviser.
The Reviser shall carry out all duties assignedunder this Section, including, but not limited to:
1. Certify, by signature and date, any and allamendments, corrections, revisions, updates,and expansions to this Code, and other Codes,ordinances and statutory laws enacted by theCommunity Council of the Cedarville Rancheria.Provided however, the Reviser’s actions shall beministerial in nature and the Reviser shall notbe empowered to determine whether an action isnecessary or sufficient for the lawful enactmentinto law of any amendment, correction, revision,update or expansion of this Code or other triballaws.
2. Keep an official indexed and written record,which shall be public, of all Certifications madeby the Reviser under this section.
3. Provide copies of all certified revisions of theCode to any person or agency requesting suchcopies. The Reviser may establish a reasonablecost for such copies.
App. 11
C. Certification to Code Reviser.
Upon adoption of any and all amendments,corrections, revisions, updates or expansions of theCode by the Executive Committee or theCommunity Council of the Cedarville Rancheria,the Secretary of the Executive Committee shallconvey a copy of the amendment, correction,revision, update or expansion of the Code, togetherwith a copy of the resolution adopting it, to theReviser.
D. Effective Date of Revisions.
Upon receipt of all the necessary documents fromthe Secretary of the Executive Committee, theReviser shall make a written and datedCertification of Amendment, which shall bepermanently attached to the said documents andkept in the permanent files of the Reviser. Allrevisions of the Code shall be effective on the dateof the written certification required by this Section,and not before.
E. Distribution.
Distribution of the new Code provisions shall be atthe discretion of the Reviser and may be at a costestablished by him/her.
PART III: JUDGES
Section 301. Trial Division.
The judiciary of the Tribal Court, Trial Division, shallconsist of a Chief Judge and may also include one ormore Associate Judges.
App. 12
The Executive Committee of the Cedarville Rancheria,or the Chief Judge by order, may appoint additionalpersons to serve as deputy/special judges or justices.Each such appointment of a deputy/special judge orjustice shall be personal and shall not create an officewhich survives the death, resignation or removal or theappointee. The appointment of a deputy/special judgeor justice may be for the performance of such specificduties or cases as may be assigned him/her by theChief Judge or by the Executive Committee of theCedarville Rancheria, and she/he shall serve until thecases or duties specifically assigned have beencompleted, or pursuant to the terms of any contract.
A deputy judge shall perform the duties and functionsof a judge of the Tribal Court as may be designated byhis/her appointment or contract subject to anyrestrictions or limitations imposed by law, byresolution of the Community Council of the CedarvilleRancheria, or the Chief Judge, as the case may be. Thefindings, rulings, opinions and orders of a deputy judgeor justice shall be signed “Judge” or “Justice,” asappropriate to the case and shall have the same forceand effect as if made by a regular judge or justice of thecourt.
Section 302. Appellate Division.
In any appeal from a final decision of a trial judge,whether Chief, Associate, or Deputy/Special, anappeals tribunal of three justices shall be appointed bythe Community Council of the Cedarville Rancheria.Such justices of an appeal tribunal shall serve untilcases specially assigned them have been completed. Ajustice of an appeals tribunal may only be removed
App. 13
prior to completion of assigned matters by theCommunity Council of the Cedarville Rancheriapursuant to the provisions of this Code for the removalof a judge of the Tribal Court.
Section 303. Qualifications.
A. Any person Twenty-Five (25) years or older shallbe eligible to serve as a Judge or Justice of theTribal Court, except the following:
1. The Tribal Administrator, Assistant Clerksand members of the Executive Council.
2. Those who have been convicted by a court ofthe United States or of any state of theUnited States for a felony, as a felony isdefined by the laws of that jurisdiction or agross misdemeanor within one yearimmediately preceding the proposedappointment as judge or justice.
B. All judges or justices of the Tribal Court,whether Chief, Associate or Deputy/Special,shall be lawyers experienced in the practice oftribal and federal Indian law and licensed topractice in the highest court of any state.
Section 304. Evaluation and Selection.
Candidates for the positions of the Chief Judge andJustices shall be screened by the Executive Committeeand the Tribal Administrator. The ScreeningCommittee shall submit its recommendations forappointments to the Community Council of theCedarville Rancheria who shall make a final decision.
App. 14
Associate Judges shall be selected in the same mannerexcept that the Chief Judge shall participate on thescreening committee.
Section 305. Appointment, Terms, Compensation.
The Chief Judge, Associate Judges and Justices shallbe appointed by the Community Council of theCedarville Rancheria to two (2) year terms underwritten contracts specifying the compensation andother terms and conditions of the employment of thejudge. Ninety (90) days prior to the expiration of theterm of office of each Judge or Justice, the CommunityCouncil of the Cedarville Rancheria shall considerwhether to renew the contract of employment of eachJudge/Justice for an additional term. If the CommunityCouncil of the Cedarville Rancheria determines to notrenew the contract, it shall so notify the Judge/Justice,in writing, at least thirty (30) days prior to theexpiration of the Judge/Justice’s current term. Failureof the Community Council to take affirmative action tonon-renew the Judge/Justice’s contract as providedherein shall result in an automatic appointment for anadditional three (3) year term and renewal of theexisting contract of employment. The compensation ofany Judge/Justice shall not be reduced during his/herterm of office.
Section 306. Removal of Judges/Justice.
The Community Council of the Cedarville Rancheriamay remove any Judge or Justice of the Tribal Courtduring the term of his/her office only for cause basedupon any of the following grounds:
App. 15
1. Serious misconduct or incompetence in theperformance of her/his duties asJudge/Justice.
2. Personal conduct involving moral turpitude,whether or not related to judicial duties, orconduct which brings the prestige of her/hisoffice or that of the Tribe into publicdisrepute.
3. Habitual neglect of her/his duties as Judge orJustice.
4. Persistent illness or other disability whichrenders her/him incapable or otherwiseunable to regularly perform her/his duties asJudge or Justice.
Such removal shall be by an affirmative vote of two-thirds of the Community Council of the CedarvilleRancheria at a valid meeting called for the purpose ofconsidering such removal, provided that the subjectJudge or Justice shall be given a full hearing and fairopportunity to present testimony and evidence inher/his behalf, and to cross-examine and rebut allwitness and evidence considered by the CommunityCouncil in support of removal. The subject Judge orjustice shall be given not less than twenty (20) dayswritten notice in advance of the hearing, which noticeshall include an itemization of the charges or groundsfor removal which are to be considered. Such noticeshall be served by registered or certified mail, ordelivered personally to her/him by a party dulyauthorized by the Community Council of the CedarvilleRancheria.
App. 16
Section 307. Conflicts of Interest.
No Judge or Appellate Justice shall officiate in anyproceedings in which her/his impartiality mightreasonably be questioned, in which she/he has anypersonal bias or prejudice concerning any party, she/hehas any personal knowledge of any disputedevidentiary facts, she/he has any personal interest, orin which any party, witness or counsel is related toher/him by blood, adoption or marriage, within thethird degree, or in which any party, witness or counselstands in relationship to the Judge or Appellate Justiceas a current ward, attorney, client, employer, employee,landlord, tenant, business associate, creditor or debtor.
Prior relationship of the sort listed above mayconstitute a conflict of interest, and parties may raisethe issue. The Judge or Appellate Justice may or maynot grant the motion for a conflict for priorrelationships. For this purpose; however, the service ofJudge or Appellate Justice for the Rancheria shall notdisqualify the Judge or Appellate Justice by virtue ofsaid employment by the Rancheria.
Any party may bring a motion for disqualification of ajudge or appellate justice on the grounds set forthherein or on the grounds of personal bias or prejudicetowards any party to the proceeding. A motion fordisqualification shall be supported by an affidavit ofthe party bringing the motion setting forth the groundstherefore. If the judge grants the motion she/he shallappoint another judge to preside over the case. If thejudge denies the motion, she/he shall do so by writtenorder setting forth the reasons for denial.
App. 17
A conflict of interest may be waived if all parties haveentered a waiver, in writing, to the conflict of interest,and agreed to proceed before the Judge or AppellateJustice, irrespective of the conflict of interest.
Section 308. Oath of Office.
Prior to assuming any judicial office of the TribalCourt, the appointee shall take the following oath:
I swear (or affirm” that I will support and defendthe Constitution and By-Laws of the CedarvilleRancheria, and the laws of the CedarvilleRancheria, that I will faithfully and diligentlyperform the duties of (Chief Judge, AssociateJudge, Deputy Judge, Appellate Judge, asapplicable) of the Tribal Court, to the utmost ofmy ability, with impartiality and withoutimproper favor, to the end that justice may befully served.
The Chief Judge and Associate Judge shall take theprescribed oath before the Chairperson of theCedarville Rancheria. Deputy Judges and Justices maytake the prescribed oath by affidavit, before the ChiefJudge, or before any member of the ExecutiveCommittee of the Cedarville Rancheria.
PART IV: COURT ADMINISTRATOR
Section 401. Appointment.
The Court Administrator shall be CedarvilleRancheria’s Tribal Administrator. The CourtAdministrator may appoint such clerks and assistantsthat may be needed for operation of the court. Any
App. 18
person serving as the clerk or as an assistant may bedischarged from that position.
Wherever the formal designation “Clerk” or “Clerk ofCourt” appears in this Code, such designation shallalso refer to the Court Administrator. The terms Clerkof Court and Court Administrator shall beinterchangeable.
Section 402. Duties.
The Court Administrator shall be responsible for theadministration of the Tribal Court, and for such otheradministrative and ministerial duties as may beprescribed by this Code or assigned to her/him by theCommunity Council of the Cedarville Rancheria or theChief Judge. The duties of the Court Administratorshall include but shall not be limited to the following:
1. Maintaining records of all court proceedingsto include identification of the title andnature of all cases; the name of the judge; thenames and addresses of the parties,attorneys, lay advocates and witnesses; thesubstance of the complaints; the dates ofhearings and trials; all hearings and trials;all court rulings and decisions, findings,orders and judgments; the preservation oftestimony for perpetual memory by electronicrecording, or otherwise; and any other factsor circumstances decided by the judges ordeemed of importance by the CourtAdministrator. Unless specifically exceptedby this Code, the records of the Court shallbe sealed.
App. 19
2. Maintaining all pleadings, documents andother materials filed with the Court.
3. Maintaining all evidentiary materials,transcripts and records of testimony filedwith the court.
4. Collecting and accounting for fines, fees andother monies and properties taken intocustody by the Tribal Court, andtransmitting them to the accountingdepartment by the Tribe. Funds receivedfrom the office of the Court Administrator bythe accounting department shall bedesignated as Tribal Court funds and shallbe used only for expenses incurred by theTribal Court, or for training of CedarvilleRancheria police officers, at the discretion ofthe Court Administrator with the approval ofthe Chief Judge.
5. Preparation of and service of notices,summons, subpoenas, warrants, rulings,findings, opinions and orders as prescribedby this Code and as may be designated by theJudges of the Court.
6. Assisting persons in the drafting andexecution of complaints, petitions, answers,motions and other pleadings and documentsfor Tribal Court proceedings; provided,however, the Clerk and her/his assistantsshall not give advice on questions of law, norshall they appear or act on behalf of anyperson in any Tribal Court proceedings.
App. 20
7. Administering oaths and witnessingexecution of documents.
8. Maintaining a supply of blank forms to theprescribed by the Tribal Court for use by allpersons having business before the TribalCourt.
9. Other duties necessary to ensure theeffective operations of the Tribal Court.
PART V: COUNSEL
Section 501. Legal Representation.
Any person who is a party in any trial or otherproceedings before the court may represent himself orherself, or be represented by lay counsel, or aprofessional attorney, who is licensed to practice lawbefore the Tribal Court.
Section 502. Licensing of Professional Attorneys.
Professional attorneys may appear on behalf of anyparty in any proceedings before the Tribal Court,provided they are licensed to practice. A license topractice may be issued by the Tribal court uponcompliance with the following:
1. Filing with the Court Administrator anaffidavit attesting that the applicant islicensed to practice law before the highestcourt of any state. A photocopy of said licenseshall be submitted with the affidavit.
2. Filing an affidavit that the applicant hasstudied and is familiar with the Constitution
App. 21
and By-Laws of the Cedarville Rancheria, theCedarville Rancheria, this Code, all otherordinances or codes of the Tribe, Title 25 ofthe United States Code and Title 25 of theCode of Federal Regulations.
3. Paying an annual license fee of one hundreddollars ($100). The annual license fee may bereduced to twenty-five dollars ($25) in thediscretion of the Chief Judge for any attorneywho is employed by a not-for-profit legalservices program or otherwise seeks torepresent clients on a pro-bono or reduced feebasis. The annual license fee shall be waivedfor any attorney employed by the CedarvilleRancheria.
4. Taking the following oath before the CourtAdministrator or the Chief Judge, byaffidavit or in person:
“I do solemnly swear (or affirm) that I willsupport the Constitution and By-Laws of theCedarville Rancheria;
I will maintain the respect due to the TribalCourt and its judicial officers;
I will not counsel or maintain any suit orproceeding which shall appear to me to beunjust, nor any defense except such as Ibelieve to be honestly valid or debatableunder the law; I will employ for the purposeof maintaining the causes confided to mesuch means only as are consistent with truthand honor, and I will never seek to mislead
App. 22
any judge or jury by any artifice, or by falsestatement or misrepresentation of fact orlaw;
I will employ in the conduct of my duties thehighest degree of ethics and moral standardswith which my profession is charged, and Iwill be guided at all times by the quest fortruth in justice;
In the conduct of my duties as an attorney, Iwill not impugn the morals, character,honesty, good faith, or competence of anyperson, nor advance any fact prejudicial tothe honor or reputation of any person, unlessrequired by the justice of the cause withwhich I am charged.”
Section 503. Licensing of Advocates.
A member of the Tribe or a member of another IndianTribe may be licensed to practice in the Tribal Court.To qualify for licensure as an advocate, the applicantmust be at least twenty-one (21) years old; of goodmoral character; have never been convicted of a felonyand not had her/his civil rights restored; have neverbeen convicted of a crime against the Tribe or any otherIndian tribe; and must be familiar with theConstitution and By-Laws of the Cedarville Rancheria;and the codes, statutes, ordinances of the CedarvilleRancheria.
No fee shall be assessed for licensing as an advocate.
An applicant seeking licensure as an advocate shallsubscribe to the oath set forth in Section 2 for
App. 23
professional attorneys, substituting the term“advocate” for “attorney” therein.
Section 504. Revocation or Suspension of License.
A license issued pursuant to this Part V may berevoked or suspended by the Tribal Court. Such actionmay be taken on its own motion or upon sworncomplaint by any member of the Cedarville Rancheriaor on motion of the Court. Revocation or suspensionshall be ordered only after written notice to the licenseeof the motion or complaint and after a hearing beforeall judges of the Court unless a conflict of interestprohibits such participation. Following a hearing, thecourt may revoke or suspend the license upon a findingthat the licensee has been disbarred or suspended fromthe practice of law by any court of the United States,any state, or a tribal court or has filed a false affidavitto obtain her/his license, or has violated her/his oath, orhas engaged in misconduct or unethical behavior in theperformance of her/his duties as an attorney or layadvocate or has been found in contempt of court by theTribal Court.
Section 505. Implied Consent to Jurisdiction of theCourt.
Any person who submits an application for licensure asa professional attorney under this Code gives impliedconsent to the assertion of jurisdiction of the Court overher/him for all purposes relating to her/his practice oflaw before the Court, whether or not, the Court wouldotherwise have such jurisdiction.
App. 24
PART VI: CONTEMPT OF COURT
Section 601. Definition.
Willful behavior by any person which disrupts,obstructs, or otherwise interferes with the conduct ofany proceeding by the Court, which obstructs orinterferes with the administration of justice, or whichconstitutes disobedience or resistance to or interferencewith any lawful summons, subpoena, process, order,rule, decree or command of the Tribal Court shallconstitute contempt. The willful failure of a party tocomply with the terms of a judgment directed againsther/him, with which she/he is able to comply, shall becontempt of court which shall be punished in themanner prescribed by this Code.
Section 602. Contempt in Presence of Court.
When contempt of court is committed in the presenceof a Tribal Judge, it may be punished summarily bythat judge. In such case, an order shall then be madereciting the facts constituting the contempt, adjudgingthe person guilty of contempt, and prescribing thepunishment therefore in accordance with Section 604of this Part. Failure to appear in response to anycitation of an enforcement officer of the Tribe on anymatter, or to a subpoena, summons, order or othernotice, duly issued by the Court, shall constitutecontempt in the presence of the court and may besummarily punished by the court without furthernotice.
App. 25
Section 603. Contempt Outside Presence of Court.
When it appears to the Court that a contempt mayhave been committed out of the presence of the Court,it may issue a summons to the person so chargeddirecting her/him to appear at a time and placedesignated for a hearing and show cause why she/heshould not be held in contempt. If such person servedwith the summons fails to appear at the time and placeso designated, the Tribal Court shall conduct a hearing,and if it finds her/him guilty of contempt, an ordershall then be made reciting the facts constituting thecontempt, adjudging the person guilty of contempt, andprescribing the punishment therefore in accord withSection 604 of this Part VI.
Section 604. Punishment for Contempt.
Any person found in contempt of court shall be subjectto a fine not to exceed five hundred dollars ($500)and/or imprisonment not to exceed ninety (90) days, asmay be determined by a judge of the court. The personcharged or found in contempt shall be notified of thefinding of the Court and the prescribed punishment byany means permitted in this Code for service of processand the penalty may be enforced by the meansprovided in this section or for the execution andenforcement of judgments as provided in Title 2 of thisCode.
If the Court determines to impose a penalty ofimprisonment, it is authorized to issue a warrantcommanding a law enforcement officer of the CedarvilleRancheria to arrest the person and detain her/himpending a hearing before the Tribal Court. The warrant
App. 26
issued shall provide for release on case bail in anamount set by the Court not to exceed the amount offines or restitution for any underlying offense(s)together with the contempt penalty which has been orcould be imposed.
PART VII: GENERAL COURT PROCEDURES
Section 701. Assignment of Cases.
The Chief Judge shall be responsible for assignment ofcases and other matters for determination ordisposition to the respective judges or justices of theCourt.
Section 702. Court Rules and Procedures.
The Chief Judge of the Court may promulgate rules ofprocedures for the conduct of its proceedings which arenot inconsistent with this Code or other governing andapplicable law. Tribal Court proceedings shall beconducted in accordance with the Federal Rules of CivilProcedure and Rules of Evidence.
The Chief Judge shall rule on all matters of law andmotion, discovery, and issue minute orders and allother Court documents, unless delegated to a SpecialJudge or Special Master.
Section 703. Sessions of Court.
The Tribal court may hold such sessions of court asdeemed necessary, commencing at such time asdesignated by the Court Administrator in consultationwith presiding judges for a particular case. Specialsessions of the Tribal Court may be called by the ChiefJudge at any time, or, in her/his presence by an
App. 27
Associate/Special Judge. Judges may conduct trials orother proceedings for individual cases assigned to themat such times as they may designate, and such trials orproceedings may be recessed and reconvened from timeto time until they are completed.
Section 704. Filing Timelines.
All personal injury or property damage cases shall befiled within one-hundred and eighty (180) days of thealleged injury, occurrence, action or nonfeasance,unless the cause of action is subject to an alternatetimeline enumerated in a document executed by theTribe’s Community Council or its authorizedrepresentative. Contract cases shall be filed accordingto appropriate tribal, federal or state timelines. TheCourt may extend a timeline in the interest of justice.
Section 705. Time for Hearing.
All cases shall be heard within one-hundred and eighty(180) days of the filing date, unless the Court finds,after proper inquiry, and presentation of evidence,justice demands a reasonable extension of time.
Section 706. Jury Trials.
All cases before the Tribal Court shall be tried to ajudge sitting without a jury, unless a jury trial isotherwise required by applicable law.
Section 707. Awards.
At the conclusion of hearing, the Court shall issue awritten opinion within ninety (90) days.
App. 28
If an award is favorable to the Claimant against theRancheria against the Rancheria, the Rancheria’sinsurer shall pay the award, if applicable, withinninety (90) days of the publication of the Court’sopinion.
Section 708. Limitation on Awards.
A. All awards are limited to the Rancheria or tribalentities policy limits under their policy ofinsurance.
B. Tribal funds or property shall not be subject toany award, encumbrance or liquidation.
C. The Court shall not issue an award for attorneysor expert witness fees or exemplary or punitivedamages.
D. The Court shall not issue an award based on anytheory of strict products liability or strictliability.
E. The Court shall not issue an award as againstthe Rancheria or a tribal defendant caused bythe negligence of a non-tribal third party.
F. The Court shall not issue an award based onalleged conduct outside the scope of officialconduct, illegal conduct or conduct criminal innature.
G. No award shall include damages which are theresult of the acts or inactions of a non-tribalthird party.
App. 29
Section 709. Confidentiality.
All Tribal Court matters shall remain confidential. Allpleadings, documents, depositions, etc., shall remainconfidential and shall not be used outside thejurisdiction of the Rancheria unless a request for arelease of said court documents is presented by amajority of the Rancheria’s Community Council. Uponpresentation of a request for release, any release shallbe made by Court order and subject to any limitationsdeemed necessary by the Court.
Prior to the release of Court awarded funds, the Courtshall approve a “release” executed by the prevailingparty, restating the requirement of confidentiality,unless the Court has previously authorized the releaseof the opinion, award, etc.
Section 710. Court Immunity from Suit.
This Court shall be immune from suit, unless theRancheria’s sovereign immunity is clearly, expresslyand properly waived by the Community Council.Nothing in the Code shall be construed as consent ofthe Court to be sued or authorizes the Court to waivethe Rancheria’s immunity.
Section 711. Means to Carry Jurisdiction Into Effect.
Where jurisdiction over any matter is vested in theTribal court, all the means necessary to carry suchjurisdiction into effect are also included; and in theexercise of its jurisdiction, if the means are notspecified in this Code or the rules promulgated by theCourt, the Court may adopt any suitable process ormode of processing which appears to the Court to be
App. 30
fair and just and most consistent with the spirit oftribal law.
Section 712. Law Applicable in Civil Actions.
A. In all civil actions, the Court shall first applysuch written laws of the Rancheria which havebeen enacted by the Cedarville RancheriaCommunity Council.
B. Where there are no superseding written laws theCourt shall apply tribal customary andtraditional law if such exists. Tribal customaryor traditional law shall mean those traditionalvalues and practices of the Cedarville Rancheriahanded down, through the generations, eitherorally or through writing. In the event, anydoubt arises as to the customs and usages of theTribe, the Court may request the advice andassistance of elders who are knowledgeableabout such matters.
C. Where an issue arises in an action which is notaddressed by written laws or custom andtraditional law, the court may apply the laws ofany tribe, the federal government, or any state.Application of such law shall not be deemed anadoption of such law or deference to thejurisdiction from which that law originates.
Section 713. Bureau of Indian Affairs Relations.
No employee of the Bureau of Indian Affairs, or theDepartment of Interior shall obstruct, interfere with, orcontrol the function of the court, nor shall she/he seekto influence such functions in any manner.
App. 31
APPENDIX 2
EXHIBIT “2”
[Filed October 12, 2016]
ARTICLE XIII
PERSONNEL POLICIES AND PROCEDURESMANUAL
Section 1 GUIDING PRINCIPLES
The purpose of this manual is to establish a system ofpersonnel administration that meets the social,economic, and program needs of the Rancheria Thissystem provides means to recruit, select, develop, andmaintain an effective and responsible work force, andincludes policies and procedures for employee hiringand advancement, position classification, salaryadministration, fringe benefits, discharge, resolution ofgrievances and other related activities. Allappointments and promotions under the provisions ofthis manual shall be based on merit and fitness. TheTribal Council of the Cedarville Rancheria (CR) shallhave the authority to establish Personnel Policies. Allreferences to the Council made herein, means the CRCommunity Council. The guiding principles for thetribal personnel system shall be:
a. Recruiting, selecting and advancing employees onthe basis of their relative abilities, knowledge, andskills, including open consideration of qualified Indianapplicants for initial appointments;
App. 32
b. To facilitate employment of disadvantaged persons,competition for “aide” or similar classes may be limitedto such individuals;
c. To provide equitable and adequate compensation;
d. To train employees within budgetary limitations, asneeded, to assure high-quality performance;
e. To retain employees on the basis of the adequacy oftheir performance, correcting inadequate performanceand separating employees whose inadequateperformance cannot be corrected;
f. The assurance of fair treatment of applicants andemployees in all aspects of personnel administrationwithout regard to political affiliation, family ties, age,race, color, national origin, sex, marital status,religious creed, or other non-merit considerations andwith proper regard for their privacy and otherconstitutional rights as citizens, except that Indianpreference, Tribal members first if qualified, shall beprovided.
g. To assure that employees are protected againstcoercion for partisan political purposes and to prohibittheir use of official authority for the purpose ofinterfering with or affecting the result of an election ornomination for office;
h. To assure that employees of the Rancheria, whetherin regular Tribal employment, programs funded byspecial grants or other outside funding, be subject tothese policies;
App. 33
i. To require all program directors and officials withthe Rancheria service to follow these policies andprocedures in all matters pertaining to personnelmanagement and administration, including selection,promotion, separation, disciplinary action, and all othermatters covered by these policies. All questionsregarding correct procedures to be followed, requestsfor eligible lists, and other assistance as needed will bereferred to the personnel officer or other responsibleTribal officials.
Section 2 CONDITIONS GOVERNINGEMPLOYMENT
A. DISCRIMINATION
The CR (1) will not discriminate because of political orreligious opinions or affiliations, or because of race,national origin or other non-merit factors. except forIndian preference requirements, Tribal members firstif qualified, or as required by specific programguidelines. Discrimination on the basis of age, sex, orphysical disability will be prohibited except wherespecific age, sex, or physical requirements constitute abona fide occupational qualification necessary forproper and efficient administration; (2) will takeaffirmative action to ensure that these provisions arecarried out.
These requirements shall apply, but not be limited, tothe following: recruitment, examination, appointment,promotion, retention, demotion, forms of compensationand selection for training, including apprenticeship, orany other aspects of personnel administration.*Preferential treatment in employment practice may be
App. 34
·given to Indians as provided for in the Indian Self-Determination and Education Assistance Act, P.L. 93-638, January 4, 1975, Section 7; the Civil Rights Act.amended by P.L. 92-261; Section 703 and othersections.
B. POLITICAL ACTIVITY REGARDING ELECTIONS
Employees shall not:
1) Use their official authority or influence for thepurpose of interfering with an election or a nomination,or affecting the result thereof.
2) Directly or indirectly coerce, command, or adviseone another to pay, lend, or contribute salary,compensation, or “anything else of value” for politicalpurposes.
3) Engage in any political activity during thescheduled working hours.
4) Neglect their assigned duties or responsibilities forpolitical activity.
5) Discriminate in favor of or against, a Tribal officer,employee, or applicant because of political affiliation.
6) Engage in any permitted political activity directedat other tribal employees while they are on duty.
7) Promise or use influence to secure tribalemployment or other benefits and/or services as aregard for political activity.
App. 35
C. GIFT AND GRATUITIES
No employee of the CR may accept consideration(s)from persons receiving benefits from the CR.
D. REQUIREMENTS OF EMPLOYEES
A supervisor or other office employee is responsible formuch of the daily work of the Tribal Office and isexpected to carry his/her duties with a minimumamount of supervision and direction. The employeeoften represents the Tribe and the Tribal Office andshould, therefore, display good manners with others,accuracy, reliability, efficiency, and the ability to dothings independently. Here is a list of some of the moreimportant things that employees will do:
1. Employees will know all of their responsibilities andthose of their immediate supervisor.
2. Employees will competently & confidentially carryout Tribal business and necessary office work in theabsence of a supervisor. Employees will begin, handle,and follow through on projects, without having to bereminded. For example, a good employee will not haveto be reminded to keep the filing system organized andup to date.
3. Employees will help their supervisor organizehis/her time, coordinate his/her appointments andschedules, and relay messages promptly and correctly.
4. Employees of the Tribal Office will be courteous andhelpful to visitors, government agencies, and businessassociates.
App. 36
5. Employees will try to complete their routine andassigned tasks within a regular working day. Or in thecase of part-time employees, in an expeditious manner.
6. Employees will be able to handle routine mattersand projects on a day-to-day basis without constantsupervision.
E. CONFLICT OF INTEREST ANDNEPOTISM
1. No member of the Rancheria shall participate invoting on an applicant who is a member of theirimmediate family. For the purpose of this Manual, amember of the immediate family shall be limited to thefollowing: Husband, Wife, Son, Daughter, Father,Mother, Brother, Sister.
2. No employee may be assigned to a unit supervisedby a member of their immediate family. Discretionaryexceptions may be permitted upon approval of theCouncil when other qualified applicants are notavailable.
3. Members of the Council or Community Committeesshall abstain from personnel actions regardingmembers of their immediate families.
F. PUBLIC STATEMENTS
1. No employee of the Rancheria may presumeto speak for, or on behalf of, the CR without theexpressed prior approval of the CR CommunityCouncil.
2. Program staff members who make publicfactual presentations about their program to
App. 37
others not entitled to know the information, willbe subject to disciplinary action.
G. DRESS STANDARDS
Employees are expected to dress in a mannercommensurate with their positions and inrespect to specific occasions determined by theAdministrator.
H. SECONDARY EMPLOYMENT
1. Outside employment may be accepted by aRancheria employee, provided it does notinterfere with on-the-job performance ornecessary attendance at any job-related meetingafter standard working hours.
2. Notification of outside employment must beprovided in writing to the immediate supervisor.
3. Accepting wages or salary while onRancheria work time is reason for disciplinaryaction.
ARTICLE XIVADMINISTRATION OF THE PERSONNEL
SYSTEM
Section 1 TRIBAL ADMINISTRATION
The council shall be responsible for the implementationand overall administration of CR programs.
Section 2 TRIBAL ADMINISTRATOR
The council shall select a Tribal Administrator toadminister the personnel system. The Tribal
App. 38
Administrator shall be responsible for theimplementation and overall administration of thepersonnel system approved by the Council.
The Tribal Administrator will perform the followingassigned functions:
a. Screen all applications for positions with theCR.
b. Screen all applicants for an interview by theCommunity Council.
c. In cases of three or less applicants for aposition, all applicants shall be presented to theCouncil, provided the Tribal Administratordetermines that the minimum qualifications aremet.
Section 3 REVISIONS AND/OR AMENDMENTSTO THE PERSONNEL POLICIES
Any person affiliated with the CR may makerecommendations for revisions and changes to thePersonnel Policies.
Suggested revisions will be channeled as below:
a. Submitted in writing to the TribalAdministrator for review.
b. The Tribal administrator will present anyrecommendations for final approval by majorityvote of the Council at any regularly calledmeeting, provided written notice of amendmentis furnished to Council Members at least fifteen
App. 39
(15) days before the date of the meeting at whichthe amendment is to be considered.
Section 4 RANCHERIA COUNCIL ASAPPOINTING AUTHORITY
The Council shall make appointments for all Tribalpositions.
Section 5 AFFIRMATIVE ACTION PLAN
The Tribal Administrator shall maintain an affirmativeaction plan, which insures equal opportunity inrecruitment and selection, job structure, promotionpolicies, training, upward mobility, layoff, disciplinaryaction, and all other related personnel procedures andpractices; in accordance with the Indian SelfDetermination and Education Assistance Act, P.L. 93-638, January 4, 1975, Section 7, and the Civil RightsAct; amended by P.L.-92-261, Section 703.
Section 6 APPOINTMENT AND PROMOTION
A. GENERAL PROVISIONS
1. Before any persons convicted of a felony or grossmisdemeanor, the record of which has not been sealed,can be considered for employment, the TribalAdministrator shall conduct an investigation includingreviewing the applicants explanation, and reviewinglaw enforcement and court records. The TribalAdministrator shall report to the persons making thehiring decisions, who may then decide whether theconviction disqualifies the individual from employment.
2. The Tribal Administrator may remove an employeeor deny consideration of an applicant, if it is found that
App. 40
the person misrepresented himself deliberately in theselection process, lied about significant information,used political or other pressures.
3. All vacant positions will be advertised to the generalpublic. Consideration shall be given to enrolled Tribalmembers who meet all qualifications for the particularvacancy. Selection will be in accordance with theIndian Preference regulations, Tribal Members first ifqualified.
B. MINIMUM QUALIFICATIONS
The qualifications for positions should be approved bythe Council and be a part of the job description for eachposition.
Reasonable consideration shall be given to providingemployment opportunities to persons who are willingto learn on the job. An appropriate education may benecessary in certain professional positions, ie; teacher,attorneys.
No minimum educational requirements will beprescribed without provisions for substitution ofequivalent training and/or experience, except when theduties of a scientific, technical, or professional positioncannot be performed by a person who does not have aprescribed minimum education. If the education orexperience for a position is not required by law, or isnot included as a requirement in a program fundinggrant, such qualifications will be waived with theapproval of the Council. Such waiver shall be made inwriting and a copy kept in the employee’s personnelfile.
App. 41
Minimum qualification requirements will beknowledge, abilities, licenses, and skills required topreform the job.
C. APPLICATION AND EVALUATIONS
All vacancy announcements shall be posted for ten (10)working days. After ten (10) working days, if there areno qualified applicants, the announcement shall beextended an additional five (5) days, or open untilfilled, at the request of the Tribal Administrator.
The announcement will describe the job, list thenecessary qualifications, education, experience, andwill specify when, where, and how to apply. Applicantsfor employment with the CR will be submitted on astandard form provided by the CR and will be acceptedat the location described on the announcement.Applications will be accepted if postmarked on theclosing date and mailed before midnight.Announcements shall be posted on the bulletin boardsof the CR. Other sources may be used, such as localnewspapers, trade publications, and agencies asneeded.
The Tribal Administrator will screen all applicants todetermine if they meet the minimum requirements asspecified in the vacancy.
In consultation with the Council, the TribalAdministrator will determine the type of evaluation touse in evaluating the qualifications of applicants.Evaluations may be interviews, evaluation of trainingand experience, written tests, background or referencechecks, or any combination of these or any otherselection devices which validly evaluates the
App. 42
applicant’s on-the-job related factors in their properimportance to the job.
Evaluations for appointments and promotions shall notinclude any inquiry into religious or political beliefs.Inquiries may be made into the Tribal origin of anyapplicants to validate that they are an enrolledmember or Native American.
Insofar as it is practical and necessary, the applicant’swork history, education, and other information on thejob application shall be checked. Letters of personalreference will also be provided by the applicant.
Qualified candidates shall be placed on a certificationlist for the job vacancy. Applicants will be listedalphabetically and the CR may select any candidatelisted, as long as Indian Preference is not violated.
D. TYPES OF APPOINTMENT
Temporary appointments up to three (3) may be madeby the CR without full competitive recruitment andevaluation procedures for positions that are seasonal ortemporary in nature. Applicants for such positionsmust meet the minimum qualifications for thatposition.
Temporary appointments may be made up to four (4)months by the CR when a permanent employee isabsent temporarily but has a right to return to service,or if a vacancy exists in a critical position.
Section 7. COMPENSATIONS
a. Pay period shall be the 15th and 31st or the lastworking day of the month. The employee shall be paid
App. 43
at an hourly rate for each hour that he/she works,except salaried employees.
b. Employees will not be required to work more than8 (eight) hours per day. No overtime is allowed;weekend hours shall have prior approval from theTribal Administrator/Chairperson.
c. Business hours shall be 8:30 a.m. to 5:00 p.m.,Monday through Thursday. Youth Group and tutoringhours shall be determined, or as required to meetstudent’s needs through prior arrangement. Employeehours may be adjusted to meet the needs of the Tribe.
d. Full time employees receive an unpaid half hourlunch and two fifteen minute, alternate breaks.Variations from the normal work week shall bescheduled in advance and approved by the employee’simmediate supervisor and Tribal Administrator. Anyabsence forms must be submitted to the TribalAdministrator
e. Vacation and sick leave provisions shall be availableon a prorated basis. The immediate supervisor shall benotified as early as possible when an employee isabsent due to illness.
f. If an employee is late:
1) Every effort must be made to phone asupervisor within the first hour of a regularwork day.
2) Any employee who does not phone and doesnot show up for work without prior
App. 44
arrangements, are subject to termination aftera 3rd offense with no rights of appeal.
A. COST-OF-LIVING SALARY INCREASES
If applicable, wage step increases will be after January1st if the employee has worked at least 6 months,depending on the funding sources and Chairperson andTribal Administrators approval. Cost of living increasesas warranted and periodic raises in accordance withthe prevailing practice in similar governing agencies.Salary increase shall be approval by the TribalAdministrator and/or Chairperson/Council. The Councilmay give cost-of-living salary increases as warrantedby increased cost-of-living. Such increases will dependon the availability of funds.
B. SALARY ADVANCES
There shall not be any emergency salary advancesauthorized unless prior approval is given by theAdministrator and approved by the CR check signers.
C. BENEFITS
State compensation insurance, social security,medicare, health insurance, unemployment insuranceand SIRA shall be the only benefits provided for allemployees through Tribal funding. Overtime will not bepaid for inservice, workshops, or any meetings relatedto work.
App. 45
ARTICLE XVPERSONNEL POLICY
Confidentiality is vital in all staff positions.Anyone that breaches confidentiality will beterminated immediately.
Section 1 POSITIONS
All paid, employee positions shall require a negativeTB test on file, fingerprinting, a drug test, and proof ofa CA Driver’s License that is current, and once a year,proof of sufficient CA automobile insurance andliability.
a. Tribal Administrator: The TribalAdministrator shall be responsible for over-all supervision and management of theCedarville Rancheria, including contractnegotiations, wages, and compliance; andsupervision of employees according to thesalaried job description. Other dutiesincluded, but are not limited to:
1) Planning, development, management, andsupervision of all projects contracted by CedarvilleRancheria including calendar accountability in order tocarry out projects objectives consistent with the TribalConstitution and Annual Funding Agreement.
2) Reporting to the Tribal Council (Board) and allfunding agencies on a timely and regular basis, and toestablish appropriate management systems andprocedures for smooth operations of the CedarvilleRancheria.
App. 46
3) To meet with, and positively represent CedarvilleRancheria to the larger community, including othertribal offices, organizations, projects, institutions,governmental agencies, and programs.
4) To maintain, manage, and supervise all operationsrelated to Cedarville Rancheria and developappropriate training and staff development asrequested from time to time by the Board and Bureauof Indian Affairs BIA).
5) To perform other duties as assigned by the Board tobenefit the Tribe, and the BIA to benefit the Tribalprograms.
6) If qualified and salaried, the Tribal Administratoris responsible for payroll, taxes, and expenses, financialstatements/reports for audit, expenditures, and ledgersunder direct supervision of the Chairperson.
7) Preparing Community Development Block Grant,Library Grants, Indian Housing Program/HousingUrban Development grants, EPA, CSBD, FS, LIHEAP,all BIA related grants/agreements, reportingrequirements and policies.
8) Other duties included under the Chairperson’ssupervision.
b. Administrative Secretary: TheAdministrative Secretary assists the TribalAdministrator in planning and implementingactivities to meet those cultural andgoals/objectives of the Annual FundingAgreement between Cedarville Rancheria,BIA, HUD, Library Grant, CDBG and other
App. 47
grant opportunities. Must be knowledgeableof office procedures, filing systems andoperation of basic office equipment. Otherresponsibilities are not limited to but include:
1) Establish and maintain accurate records for ATTG,ICWA, FIRE, HIP, and General Assistance annualreports, Board actions, appropriate correspondence;and to prepare agendas, reports, minutes, and updateVice Chairperson for Board reports.
2) Must be able to type 40WPM, communicate with theservice population and maintain confidentiality. Abilityto interact in a pleasant manner with the generalpublic.
3) Maintain personal log of time and tasks, phone logs,calendar of events, meetings, etc. for staff and businesscommunication.
4) Responsible for student educational supportthrough tutoring, coordination of supplies to maintainpositive office management.
5) Maintenance of confidential records of the TribalMembers and it’s employees including contracts, timesheets, vacation and sick leave, and documents, as wellas social service and general assistance documentaionfor eligibility and assistance, in the principle office ofthe Rancheria.
6) Responsible for keeping informed of Tribalactivities, schedule meetings, notify the members asappropriate, correspond with the Board, Committees,and other groups regarding such meetings.
App. 48
7) Knowledge of housing policies and procedures,insurance and maintenance payments.
8) Other duties as assigned by the TribalAdministrator/Chairperson.
c. Youth Leader/Case Worker: The YouthLeader is under the supervision and direction of theTribal Administrator and Chairperson to plan andimplement activities to directly meet educational andcultural needs of Indian students, and assist ininstructional intervention. Other responsibilities aswaged in the job description are not limited to butinclude:
1) Working with individual/small groups of Indianstudents, using methods and materials approved by theTribal Administrator/Chairperson for educational andcultural programs and providing tutoring services withinput from classroom teacher.
2) Keep accurate records of the Indian studentsserved, including personal data of achievement, health,and assessment scores by regular school contacts to beincluded in annual reports.
3) Maintain positive relationships and communicationwith students, parents, members, collaboratingagencies, school personnel, Board and Tribal staff.
4) Assist in preparation of, and application for, schoolfinancial aid, scholarships, oversee youth activitiesincluding, but not limited to, tutoring, cultural/community activities, and education trips.
App. 49
5) Maintain complete personal log of time and tasksfor quarterly reports, and update the Tribal album withmembers events.
6) Maintain students progress, travel, and provideaccurate student evaluations from school grade andattendance files.
7) Home visits as needed for member assistance withchildren/parent needs. Information to provide servicesand responsibilities.
8) Other duties as assigned by the TribalAdministrator/Chairpersons.
Employees working outside the Tribal Office shall besure that the office knows their whereabouts and canreach them if necessary. Employees shall complete atime card for all hours during the work month, unlesson salary. All employees are expected to work accordingto contract, observe these policies and procedures of theCedarville Rancheria
d. EPA Coordinator: The EPA Coordinator is underthe supervision of the Tribal Administrator &Chairperson to assist in planning and implementingactivities to meet unique environmental educationalneeds of the Indian community. Oversees theenvironmental program on the CedarvilleRancheria. Informs the Rancheria of MNFS, BLMand other agencies regarding environment concernsor requests. Monthly newsletter to the CR, attendsmeetings as required. Attention to detail and beflexible and willing to take direction. Ability to workunder pressure. Other responsibilities are notlimited to but include:
App. 50
1) Oversee activities that include, but are not limitedto, cultural celebrations, and community activities, Maintain positive relationships and communicationwith Indian community, national, state and localCollaborating agencies and Rancheria staff/members,
2) Establish and maintain accurate records for Boardactions, appropriate correspondence and personal log oftime and tasks for quarterly reports and wage timecards provided timely to the Tribal Administrator,
3) Responsible for filing, typing, and any othercorrespondence necessary for completion to the EPAprogram,
4) Responsible for the coordination of supplies andregular upkeep of program materials to maintainpositive environmental safe community and office,
5) Schedules meetings, notifies public as appropriate,corresponds with Board, committee, and other groupsregarding such meetings.
6) Develop an Environmental Plan (TEP)Obtain Regional 9 Environmental Planning Guidancedocuments Meet with community council to develop priorities forenvironmental program Research feasible solutions to environmental concernsEstimate resource needs Submit draft plan to EPA and community council forcomment Finalize, Tribal Environmental Plan (One-timeRequirement) 7) Integrated Solid Waste Management Plan (ISWAP)Obtain ISWAP template from EPA, Characterize solid
App. 51
waste generated on the Rancheria Assess the current disposal methods, Determine ifrecycling program is feasible Present draft ISWMP to community council forcomment, Finalize ISWMP
8) Illegal Dumping Ordinance Obtain sample ordinances from EPA and other tribes.Develop draft ordinance ie; no barrel burning orbackyard burning; recycling; plastic/glass/paper/cans.Work with tribal attorney and community council tofinalize ordinance
9) Education Program Develop an education program for the community,focusing on solid and hazardous waste: Recycling brochure/Household hazardous wastebrochure, Monthly calendar including hazardous wastedrop-off days, Monthly newsletter, Organize clean-upday
10) Other duties as assigned by the TribalAdministrator/Chairperson.
Employees working outside the Tribal Office shall besure that the office knows their whereabouts and canreach them if necessary. Employees shall complete atime card for all hours during the work month, unlesson salary. All employees are expected to work accordingto contract, observe these policies and procedures of theCedarville Rancheria.
e. Economic Development Coordinator: The EDCoordinator is under the supervision of theChairperson/Tribal Administrator to research EDoptions and follow-through with projects.
App. 52
1) Program development and implementation,Ability to meet with the public in a polite &businesslike manner; ability to establish & maintaineffective working relationship with other employees &the public.
2) Prepares periodic program reports to fundingagencies and Tribal Council. Formulates, prepares, andpresents to the Tribal Council for approval allnecessary resolutions, policies, manuals, ordinances,etc.
3) Consistently analyzes time frames, methods, andprocedures for completing program goals andobjectives.
4) Provides programmatic information to the TribalCouncil.
5) Develops tribal service programs according toneed.
6) Grant Writing.
7) Attend staff meetings & conferences as scheduleallows.
8) Schedules meetings, notifies public asappropriate, corresponds with Community Council,Economic Development Committee, and other groupsregarding such meetings.
9) Other duties as assigned by the TribalAdministrator and/or Direct Supervisor
App. 53
10) Knowledge of office practices, economics, andbusiness administration, Indian programs & ability tocommunicate effectively with federal & Tribal officials,
11) Knowledge of principles & procedures ofresearch, appraisal of facts, report preparation &ability to make presentations,
12) Knowledge of federal/state processes in relationto program grants contracts,
13) Must have ability to travel as necessary.
e. Maintenance/Custodian: The Maintenance/Custodian is under the supervision of the EPACoordinator and the Tribal Administrator to assist inplanning and implementing activities to meet uniquepreservation and sanitation needs of the CedarvilleRancheria.
1) Supervise Hazardous Fuels/Wildland UrbanInterface Crew on schedules determined by need andpaperwork, removal of sagebrush, rocks, metal, otherdebris as necessary; rototilling, planting grass, plants,weeding; trimming trees, bushes; mowing, weed eating,weeding around playground, weeding and wateringaround the Tribal Community Center & Tribal Garage,overall maintaining grounds/houses. Otherresponsibilities are not limited to but include:
• Notify tribal office & Housing Chair of members inviolation of unnecessary debree around their house. • Remove hazardous fuels and noxious weeds onRancheria lands • Develop or maintain a fire line around the rancheria• Remove sage brush and dry fuel materials
App. 54
• Use biomass from trees, grasses and bushes forlandscaping improvement • Respond to road concerns on the CedarvilleRancheria by contacting the Tribal Administrator, EPACoordinator and/or Chairperson. • Maintenance of Cedarville Rancheria Roads bymowing or weed eating, removing debree, overallupkeep 6 feet on each side of Rancheria Way Road, twonew roads and both sides of Patterson Road from thesouth rancheria boundary, in front of the rancheria,from rental to rental house by Rancheria Way, andRancheria side only from Rancheria Way to northRancheria boundary by 2nd rental house.
Outdoors • Composting: Household composting, lawn/gardencomposting, turning compost pile and compostcontainer, and storing • Red Worms Area: Possibly garden area withcompost pile and secured area for redworms • Recycling Bins: Maintain and take recyclingproducts to recycling center, maintain 2 bins foraluminum and plastic at Scales and Tribal Office insecured area, and at SFHC • Maintenance Grounds: Mowing/Weeding allFlowerbeds/Weed eating, Watering; grass, trees,flowers, bushes, trimming: trees/bushes, clean up trashand debree on CR, Fire line around 17 acres of CRoriginal area, Fuel line around each residences’property (Dev Fire Prev Prog for CR), Mow/Weedeathillside and CR lots • Maintenance Buildings/Rentals: Roofs, painting,clean chimney’s oiling/maintenance Fences, windows,smoke detectors, clean furnaces/filter, hot water
App. 55
heaters/drain, attic insulation/crawl spaces,weatherization houses/buildings • Roads: Cracks, debris, sweeping sidewalks/roads,plowing roads, shoveling sidewalks, parking lots,elder’s driveways and residences • Scales: Water facet, preparation for grass/flowerbeds, rock border for plants• Vehicles: Change Oil, recycle oil, wash, wax(April/May and October/November), detail inside ofvehicle/equipment, maintenance
Indoors • Inventory-December: Tools, equipment, supplies,tell Office what supplies are needed for next summer • Maintenance Buildings/Rentals • Deep Cleaning at the Scales, Community Centerand Tribal Office: Windows, screens, painting, ifneeded, shampooing, repairs. • Weekly cleaning Tribal Office and CommunityCenter: Window sills shelves, dust pictures, desks, filecabinets, tables. Mop bathroom floor, clean anddisinfect toilets and sink. Vacuum, sweep, mop,hallways/doorways.
Section 2 QUALIFICATIONS
a. American Indian preference will be observed underPL25-638.
b. Minimum qualification requirements will beknowledge, abilities, licenses and skills required toperform the job. Reasonable consideration shall begiven to providing employment opportunities topersons who are willing to learn on the job. An
App. 56
appropriate education may be necessary in certainprofessional descriptions.
c. Must be knowledgeable of, and relate positively to,the unique characteristics of the Indian community asapproved by the Tribal Administrator and Chairperson.
d. Must be willing to follow directions and functionwithin policies and procedures. Employees shall betrained as needed to assure high-quality performanceon the basis of adequacy of their performance.
Section 3 PROBATION
Newly appointed employees shall be subject to a periodof probation for six months. Upon successful completionof a probationary period, an employee shall be grantedpermanent status in the classification in which theprobationary period is served according to jobdescription limits.
a. lf at any time during the probationary period theTribal Administrator or immediate supervisordetermines that the services of the employee have beenunsatisfactory, the employee may be terminated withno rights of appeal. Employee terminated duringprobationary period will not be eligible for any annualleave accrued.
b. Employment for all positions and job descriptionsare subject to Federal funding and approval of theExecutive Committee and Tribal Administrator.
App. 57
Section 4 Employee Rights
a. New employees shall receive an orientation on jobrequirements and policies by the immediate supervisorfor the position according to the job description.
b. Employees shall be fully informed of theperformance requirements expected of positions theyfill and shall receive a current copy of their jobdescriptions.
c. Employees shall be informed of location andaccessibility of policies and receive clarification on allpersonnel matters affecting them, such as worker’scompensation, fringe benefits, Indian preference, etc.by the Tribal Administrator.
d. Employees shall be informed of any inadequacies injob performance and shall have the opportunity toimprove performance through counseling or coachingfrom their immediate supervisor, up to three incidentsof record prior to termination.
e. Personnel folders and information shall be availableonly to the employee and officially authorizedpersonnel or Chairperson. In accordance with federalregulations, personnel records of employees are notpublic information.
f. Child labor laws, naturalization and immigrationlaws, equal rights and all fair employment laws shallbe strictly observed.
g. No employee shall be required to lend money to anymember, participant, or other employee of the Tribe,and in fact, such a practice is discouraged.
App. 58
ARTICLE XVI PERFORMANCE STANDARDS AND APPRAISAL
Section 1 BASIC POLICY
It shall be the responsibility of the TribalAdministrator to provide performance standards and toevaluate employee performance on an on going basis,and to keep the employee advised as to the adequacy ofperformance.
A. GOALS OF THE PERFORMANCESTANDARD AND APPRAISAL PROGRAM
The goals of the performance Standard and AppraisalProgram are:
1. To ensure that each employee has specificknowledge of the job responsibilities of his unit,of his particular position within the unit, and ofhis performance in relation to establishedstandards.
2. To promote employee capacity for better jobperformance and for advancement to moreresponsible positions.
3. To provide the basis for recommendations fortenure and salary and to identify training needsof individual employees.
B. PROCEDURES
1. FREQUENCY: All employees newlyappointed to any position are to be providedimmediately with written performancestandards and have a formal performance
App. 59
appraisal completed not later than three(3) months after appointment. A subsequentformal performance appraisal, base onperformance standards, shall be completed atleast ten days before the end of the first sixmonth period.
2. This performance appraisal shall be the basisfor recommending performance status foremployees who are required to serve only a sixmonth probation period. At least ten days beforethe end of the first year in a position, anotherperformance appraisal based on performancestandards shall be completed. Subsequentperformance appraisals shall be done annually.
3. A formal performance appraisal may becompleted at any time for a permanent employeewhose performance is considered to have fallenbelow standard. Such performance appraisalsshall be the basis for remedial action, or todocument and justify disciplinary action.
The completion of a formal performanceappraisal shall require a face-to- face evaluationconference between the supervisor andemployee, except when an employee hasterminated and is not available for theevaluation conference.
4. The Tribal Administrator shall maintain alist of the due dates for evaluation of allemployees. All evaluations to be done by theTribal Administrator shall be scheduled forreview with the Chairperson.
App. 60
5. The original of the performance standard andappraisal form shall be filed in the employee’spersonnel file, a copy shall go to the immediatesupervisor, and a copy to the employee.
C. CAUSES FOR DISCIPLINARY ACTION
1. It is the responsibility of all employees to observethe regulations necessary for the proper operation ofthe Rancheria. Administrative procedures have beenestablished for the handling of disciplinary measuressuch as reprimand, suspension, demotion, anddismissal. 2. If an employee receives two (2) written reprimand
notices for offenses such as the following (for thesame or different offenses) within a period of twelve(12) consecutive months, the employee shall, alongwith the second such notice, receive disciplinaryaction commensurate with the severity of theaccumulated offense.
3. Upon receipt of the third written reprimand notice(for the same or different offenses) within the sameconsecutive twelve (12) month period, The employeemay be dismissed. If a decision is made to dismiss anemployee, the employee will be informed in writing ofthe reasons for their dismissal and of the right andmethod of appeal. They will be given a minimum of twoweeks notice.
4. A copy of each written reprimand will be placed inthe employee’s personnel folder and given to theemployee. Written reprimands will be purged from anemployee’s file at the end of twelve (12) months fromthe date of issuance.
App. 61
5. The immediate supervisor will sign the first tworeprimands. The third reprimand shall also require thesignature of the Tribal Administrator.
6. Causes for disciplinary action shall include, but arenot limited to:
a. Excessive absenteeism and/or tardiness, abuseof sick leave, insubordination constituting a breachof discipline, which remains uncorrected afterwarning or is particularly serious in any oneinstance.
b. Rough or boisterous play or pranks on the jobwhich disrupt work or are minor safety hazards.
c. Violating a safety rule or safety practice.
d. Failure to report to work without notification tothe immediate supervisor, unless it is later shownthat such notice was impossible to give.
e. Gross neglect of duty or refusal to comply with alawful instruction, unless such instruction isinjurious to the employee’s general health or safety.
f. Indulging in offensive language towards otherswhile on the job.
g. Being under the influence of intoxicants or drugswhile on duty.
h. Sleeping on duty.
i. Inattentiveness to work, failing to start work atthe designated time, quitting work before thedesignated time, or leaving the work area during
App. 62
working hours without authorization from thesupervisor.
j. Vending, soliciting, or collecting contributions onCR time or premises without proper authorization;gambling.
k. Misfeasance or malfeasance in the performanceof duty.
l. Use of CR personnel, property or other resources(including the employee’s own work time) forpersonal reasons, purposes, or gain without thesupervisor’s prior approval.
D. CAUSES FOR IMMEDIATE DISCIPLINARYACTION OR DISMISSAL
1. Immediate disciplinary action may be taken, or theemployee may be dismissed immediately only forserious causes such as the following. Supervisorsshould make every attempt to be fair and match thedisciplinary action with the severity of the offense:
a. Using, attempting to use, personal orpolitical influence in an effort to secure specialconsideration as a Rancheria employee orapplicant for employment.
b. Incompetency and/or inefficiency in theperformance of job duties which result in notmaintaining a satisfactory performance rating,provided that the employee has been counseledand notified in writing that job performance hasbeen satisfactory.
App. 63
c. Absence from work for two consecutive workdays without authorization.
d. Major theft or intentional destruction of CRproperty.
e. Intentional falsification of personnel records,time reports, or other Rancheria records.
f. Being under the influence of intoxicants ordrugs while on duty.
g. Fighting on the job, except in self-defense.
h. Carelessness or negligence with the moniesor property of the Rancheria
i. Discrimination as defined in the Manual (seeSection 2-A).
j. Inducing or attempting to induce anyemployee in the service of the CR to commit anunlawful act, or to act in violation of CRregulations, official policy, or departmentalorders.
k. Violation of personnel rules, official policies,or departmental orders.
l. Major misfeasance or malfeasance in theperformance of duty.
m. Any deliberate action which endangers thehealth or safety of the employee or others.
n. Insubordination, constituting a breach of discipline,which remains uncorrected after warning or isparticularly serious in any one instance.
App. 64
o. Use of Rancheria personnel, property or otherresources (including the employee’s own work time) forpersonal reasons, purposes or gain without thesupervisor’s prior approval.
p. Indecent conduct or notoriety that seriouslyjeopardizes the effectiveness of Tribal programs.
TYPES OF DISCIPLINARY ACTION THATWILL BE UTILIZED
The following types of disciplinary action will beutilized as necessary in enforcing CR work rules andstandards of conduct. The specific type and degree ofdisciplinary action will be determined by the nature ofthe offense.
Before disciplinary actions are taken because ofunsatisfactory work performance, counseling training,discussion of work standards voluntary reassignmentof duties and other positive action should beconsidered.
A supervisor may initiate the following disciplinaryactions in the order below, however, they may be usedselectively as appropriate. The disciplinary actions maybe stopped at any step when the work behavior of theemployee improves.
a. VERBAL WARNING - When an employee’sperformance falls below standard or any employee’sconduct becomes improper, his supervisor shall informthe employee promptly and specifically of such a lapse.If appropriate, a reasonable period for improvement orcorrection may be allowed before initiating furtheraction.
App. 65
b. WRITTEN REPRIMAND (Corrective Interview) -An employee should be informed in advance that ascheduled interview is for corrective purposes and thesubject matter, so that the employee may prepare.Prior notice of purpose and subject matter is notrequired where employee dishonesty is involved.
In this interview the employee’s supervisor shalldiscuss clearly and frankly with the employee thereason(s) necessitating the interview. The supervisor,as part of this interview, should offer to the employeespecific suggestions for corrective action to be taken bythe employee and written standards for expectedperformance. The reason for this interview and theaction recommended should be recorded by thesupervisor.
The employee and supervisor should sign the record toacknowledge that the interview occurred. A copy of therecord will be retained by the supervisor, a copy givento the employee, and a copy placed in the personnelfolder.
c. SUSPENDED WITHOUT PAY - The TribalAdministrator or the immediate supervisor maysuspend any employee without pay.
d. DEMOTION (Involuntary) - The TribalAdministrator or the immediate supervisor maydemote an employee who is not satisfactorilyperforming the duties of that position. The employeemust meet the minimum qualifications for the newposition.
e. INVOLUNTARY TERMINATION (Dismissal) - Anyemployee may be dismissed by the Tribal
App. 66
Administrator for cause in accordance with theprovisions of the manual. Causes for dismissal include:
1) Incompetence and/or inefficiency in performanceof the job duties providing the employee has beencounseled and notified in writing 30 days beforedismissal of job performance being unsatisfactory;
2) Absence from work as stated in Article XV, D;
3) Theft or intentional destruction of property;intentional falsification of records, indecent conductor notoriety that seriously jeopardizes effectivenessof the program;
4) Under the influence/possession of anysubstances while on duty;
5) Fighting on the job except in self-defense, orendangering the health or safety of self or others;
6) Carelessness/negligence with monies orproperty, insubordination, use of personnel propertyor other resources for personal reasons, purposes, orgain without the Tribal Administrators priorapproval;
7) Violation of personnel rules, office policies,departmental orders, or procedures.
Section 2 TERMINATION OF EMPLOYMENT
A. VOLUNTARY TERMINATION: Any employeedesiring to resign shall notify the immediate supervisorin writing by two weeks notice, specifying the effectivedate. Failure to give at least 2 weeks notice may causedenial of future reinstatement. A resignation may not
App. 67
be withdrawn after position has been advertised.Waiver of required notice may be granted by theChairperson and Tribal Administrator.
An employee that submits a resignation will berequired to perform duties until the resignationbecomes effective. The Tribal Administrator mayterminate an employee prior to the resignation date ifthe employee is not performing duties as assigned.
B. LAYOFFS: A layoff shall be considered as removalfrom a position because of the abolition of the position,due to lack of work or funds, reorganization, programreduction, or other administrative readjustment.
1) When more then one employee is involved, theimmediate supervisor shall establish a list showingthe order in which employees are to be laid off onthe basis of performance and seniority.
C. DISABILITY: An employee may be separated fordisability when unable to perform the required dutiesbecause of physical or mental impairment. Eachemployee shall be responsible for those items assignedfor his/her use in performing prescribed duties.
1) Upon termination of employment, the employeeshall account for all such assigned items. In the eventany such items are missing or not accounted for, theemployee’s final paycheck may be withheld until suchtime said items have been returned or accounted for.
Death
l. Separation shall be effective as of the date ofdeath.
App. 68
2. All compensation and accrued vacation shall bepaid to the estate or beneficiary of the employee,except for such sums which by law must be paiddirectly to the surviving spouse.
ARTICLE XVIIHOLIDAYS
The Tribal Office employees will be given time off withpay for the designated holidays:
NEW YEARS EVE NEW YEARS DAY MARTIN LUTHER KING DAY LINCOLN’S BIRTHDAY WASHINGTON’S BIRTHDAY MEMORIAL DAY AMERICAN INDIAN DAY(2nd Fri. in MayINDEPENDENCE DAY LABOR DAY CALIF. AMERICAN INDIAN(4th Fri. in Sept.)VETERAN’S DAY THANKSGIVING DAY/NA HERITAGE DAY CHRISTMAS EVE CHRISTMAS DAY
a. If any holidays fall on Sunday, it will be observed onthe Monday immediately following. If any holiday fallson a Saturday, it will be observed on the Fridayimmediately preceding. If any holiday falls on anemployees days off, it will be observed preceding orfollowing the scheduled day off.
b. Employees working full days schedules, will receivefull-time compensation. Part-time employee will be
App. 69
compensated in proportion to the number of hours theyare normally scheduled to work.
c. An employee will not be charged for approvedannual or sick leave days which occur on holidays.
d. In order to be eligible for holiday pay, an employeemust have been in paid status the working day prior toor following the recognized holiday. If employee isAWOL for any number of hours on these days he/shewill not receive holiday pay.
ARTICLE XVIII ATTENDANCE AND LEAVE POLICY
Section 1 ATTENDANCE
a. Each employee shall fill out and sign biweeklyreports showing all hours worked and leave of absence,as appropriate. The time report shall be submitted onthe 15th & 31st.
b. All time reports must be signed by the TribalAdministrator before action can be taken to process asalary payment.
c. If any employee is paid for time not worked, suchoverpayment will be deducted from their checks for thefollowing pay period.
d. Written permission will be required for anyonepicking up an employee’s check.
e. No checks will be released without the approval ofthe Tribal Administrator.
App. 70
1. GENERAL PROVISIONS FOR LEAVE
Eligibility: For the purpose of determiningeligibility for leave allowance, the term“continuous service” shall be that servicecommencing with initial appointment andcontinuing until resignation or discharge.
Section 2 GENERAL LEAVE POLICY
As a benefit to its employees and to its own operationaleffectiveness, the Cedarville Rancheria recognizes andgrants various kinds of leave in paid and/or unpaidstatus. All leave must be authorized. Leave which isnot authorized will be cause for disciplinary action.Leave records must be maintained in each employee’spersonal file. Annual leave is to be used by employeesto assure they are receiving adequate rest andrelaxation. Sick leave is to be used to ASSURE THEGOOD HEALTH OF EMPLOYEES.
Section 3 FLEXTIME
As a benefit to employees and for improvedorganizational effectiveness, the Cedarville Rancheriawill adopt flextime in program areas where it isdeemed beneficial. Flextime is a system of flexibleworking hours that allows employees to tailor theirworkday or workweek to workload patterns and topersonal needs.
Section 4 ANNUAL LEAVE
Annual Leave is an employee fringe benefit. Anemployee is required to make advanced arrangementsfor annual leave with the Tribal Administrator.
App. 71
a. Employees may not carry over annualleave into next calendar year.
b. No annual leave benefits will be earnedduring any period when an employee isAWOL or on leave without pay.
c. No annual leave can be used within thesame pay period it is earned.
d. Eligible employees shall be paid for theirunused annual leave days at their final rateof pay regardless of their reason fortermination.
Section 5 ANNUAL LEAVE ACCRUED
Employees will accrue annual leave benefits basedupon the number of years of service with the CedarvilleRancheria.
a. Full-time employees with three years orless creditable service will accrue eight hoursof annual leave a month.
b. Full-time employees with three to twelveyears creditable service will accrue sixteenhours of annual leave per month.
c. Full-time employees with thirteen yearsand over of creditable service will accruetwenty-four hours of annual leave per month.
d. Part-time temporary employees who areemployed longer than 30 days will accrueannual leave, as stated above but on a pro-
App. 72
rated basis to the number of hours workedeach month.
e. An employee may not carry any hoursinto the next calendar year, unless priorapproval by the Tribal Administrator/Chairperson is made.
Section 6 ANNUAL LEAVE COMPENSATION
Employees who have accrued an excess of annual leavemay request cash payoff in lieu of taking time off fromwork.
a. Employees payoff will be made only inincrements of 40 hours.
b. Employees are encouraged to use at least80 hours of annual leave per year to insurethat they are receiving proper rest andrelaxation away from the workingenvironment.
c. Employees must request cash payoff inwriting. All requests will be approved by theTribal Administrator in consultation with theChairperson.
Section 7 ADVANCED ANNUAL LEAVE
As an employee benefit, advanced annual leave may begranted when justified. Such requests will be subject toTribal Administrator/Chairperson approval. Noemployee may have a negative balance.
App. 73
Section 8 SICK LEAVE
Sick leave is an employee fringe benefit. For medicaltreatment purposes employees are requested to makeadvance arrangements for sick leave. Depending on thecircumstances, sick leave authorization and use issubject to supervisory approval.
Section 9 HEALTH PRACTICES
Employees are expected to observe health practicesthat contribute to their work performance and serviceeffectiveness.
a. Employees who take sick leave are expected to seektreatment and to take care of themselves during thatleave. Employees are not to report to work if they areill. A sick worker performs poorly, prolongs his/herrecovery, and endangers the health of others.
b. Employees who use sick leave in excess of threedays may be required to submit medical certification ofdiagnosis and/or treatment if the supervisor feels therehas been abuse of sick leave.
c. Subject to supervisory approval, sick leave benefitsmay be used by the employees to care for sick familymembers.
d. All employees accrue eight hours of sick leave everymonth. Part-time will accrue sick leave on a proratedbasis to the number of hours worked each month.There is no limit on accumulation of sick leave.Absolutely no payments for accrued sick leave will bemade upon separation under any circumstances.
App. 74
Section 10 MATERNITY LEAVE
The following guidelines will govern maternity leave.
a. At her request, a woman may take up to 90 days ofmaternity leave, job compensation and fringe benefitsheld as is, until her return to duty. The Council isunder no obligation to hold a position open during amaternity leave that exceeds 90 days. However, theymay elect to do so. In such case, the Council’scommitment of the employee must be stated in writing.
b. During maternity leave, a woman may elect toapply leave credits she has accrued. When such leavebenefits are used, the remainder of the maternity leavewill be without pay.
c. Paternal leave will be granted to employees wishingto utilize annual leave or leave without pay.
Section 11 MILITARY LEAVE
In order to help accommodate U.S. national defenseneeds and to help employees meet their militaryobligations the Cedarville Rancheria will adhere to thefollowing guidelines on military leave.
a. A full-time employee who is a member of a reservecomponent of the U.S. Armed Forces will be allowedleave for required annual military training or duty fora period not to exceed 15 working days a year.
b. An employee may elect to use annual leave andkeep his military compensation, or he may surrenderhis military pay to Cedarville Rancheria and begranted leave of absence with pay.
App. 75
Section 12 JURY OR WITNESS DUTY
Upon receipt of a summons to jury duty or testimony inlegal or official proceedings, an employee will begranted leave of absence with pay. Officialcompensation to an employee for such appearance willbe surrendered to the Cedarville Rancheria in cash (ifpaid to the employee in cash) or in the form of a checkendorsed payable to the Cedarville Rancheria (if paidto the employee by check).
Section 13 A D M I N I S T R A T I O N L E A V E(EMERGENCY)
Employee will be granted leave of absence for death inthe immediate family, and spouse’s immediate family,attendance at funeral of immediate family, andinability to travel to work safely because of 3 unusuallysevere weather or natural disaster. Absence of morethat three days for this purpose will require theemployee to request annual leave or LWOP.
a. It is each employee’s responsibility to reportemergency leave circumstances to his/hersupervisor as soon as he/she becomes aware ofsuch circumstances, with final approval by theTribal Administrator/ Chairperson.
Section 14 LEAVE OF ABSENSE
The Chairperson may grant an employee leave withoutpay for a period not to exceed 90 days. Under specialcircumstances the Tribal Administrator may grant anemployee leave without pay for a maximum of 30 days.Any request in excess of 90 days must be presented tothe Executive Committee. However, Cedarville
App. 76
Rancheria is under no obligation to hold an employee’sposition or compensation level if the period of leaveexceeds the specified number of days granted.
Section 15 RELIGIOUS/ TRADITIONAL LEAVE
To support Indian employees wishing to practice Indiantraditions and Indian religion, Religious/Traditionalleave is available. Leave must be requested in writingand approved prior to such events. Leave to beapproved by the Tribal Administrator in consultationwith the Chairperson.
Section 16 EDUCATIONAL LEAVE
Educational Leave is available to Tribal employees asleave without pay not to exceed eight hours per week.Educational leave may be granted, if attendance at anaccredited educational institute will benefit the Tribalservice, aid the employee’s career development, and notjeopardize the quality of service provided by theprogram. The Tribal Administrator/Chairperson mustapprove all such leave prior to attendance by theemployee.
a. The Tribal program is under no obligation topay expenses of employees enrolled in suchtraining,
b. Educational Leave without pay may begranted up to one year if it will benefit the Tribe.Special approval must be requested by theTribal Administrator and granted by theChairperson.
App. 77
ARTICLE XX GRIEVANCES, APPEALS AND DISCIPLINE
Section 1
A. GRIEVANCES
A grievance is defined as a circumstance thought to beunjust or injurious and grounds for complaint.
All employees subjected to disciplinary action may filea grievance. Grievances shall be filed and processed inthe following manner and within the time-framespecified, unless time limits are waived by writtenmutual consent of both parties concerned or by theTribal Administrator.
B. GRIEVANCE STEPS
a. When a complaint cannot be resolved at the level atwhich the disagreement or dissatisfaction occurred, awritten complaint shall be prepared by the aggrievedemployee. The written statement will give specificdetails of the complaint and the action or redressdesired by the aggrieved employee. This complaint is tobe submitted to the supervisor or administrative staffperson at the level at which the cause of the grievanceoccurred. Written decision shall be given to theaggrieved employee within five (5) working days of thefiling of the complaint. If the grievance remainsunresolved, the employee may proceed to Step b.
b. Within five (5) working days of the date the writtendecision in Step a., is received or is due, the aggrievedemployee may present the written complaint to theTribal Administrator, if the cause of grievance occurred
App. 78
at or above the level of the Manager, the employee is tosubmit the written complaint to the next level ofsupervision or administration above the level ofoccurrence. The Tribal Administrator or otherappropriate level of administration will render awritten decision within five (5) working days from thedate the complaint was referred to that level. If thegrievance remains unresolved, proceed to Step c.
c. Within five (5) working days of the date the decisionin Step b., is received or due, the aggrieved employeemay present a written request to the TribalAdministrator for review by the Council. Copies of allrelevant materials and decisions rendered underprevious steps of the grievance process shall besubmitted to the Tribal Administrator. The Councilshall review all pertinent facts and issue a writtendecision within ten (10) working days. The review bythe Council may include personal interviews with theaggrieved employee and supervisor or administrativestaff involved, but such personal interviews are notfinal, except as otherwise provided for under Appeals.
d. In the case of the Tribal Administrator, theforegoing procedures will be directed to the TribalCouncil.
C. APPEALS
a. An appeal is defined as a request from an employeefor the Council to review any administrative action ordecision which is alleged to violate certain rights of theemployee either under applicable law, or the officialPersonnel Policies of the Rancheria.
App. 79
b. The alleged violation of the following rights shall beappealable to the Council, after all otheradministrative remedies have been exhausted.
1) The right not to be discriminated against inany aspect of employment because of sex, race,national origin, age, political or religiousaffiliation.
2) The right to due process in the application ofpersonnel policies related to disciplinary action.
c. Due process in the application of personnel policiesand generally throughout the operation of theRancheria, shall mean only the rudiments of dueprocess. That is, notice of the charge or complaint orproposed action and an opportunity to be heard on thatsubject, not a right of confrontation or crossexamination.
d. The following disciplinary action provided forth inCR Personnel Policies shall be appealable to theCouncil, after all other administrative remedies havebeen exhausted.
1) Suspension without pay for more thantwo(2) days.2) Involuntary demotion3) Involuntary termination.
D. APPEAL PROCEDURES
a. The employee wishing to appeal shall send awritten statement of facts and a request for a hearingto the Tribal Administrator. The written statementsmust specify the action or decision being appealed and
App. 80
the right under law, or the policies, allegedly violated.The Tribal Administrator makes the followingdeterminations:
1) Is the matter appealable under CR policy? 2) Have all administrative remedies beenexhausted?
If the answer to either question is no, refer the matterback to the originator with a written statement as tothe grounds upon which it was determined that anappeal was out of order at that point in time. A writtendecision shall be sent by the Tribal Administratorwithin five (5) working days after receipt of the writtenrequest for a hearing. If the answer to both questionslisted above is yes, proceed to Step b.
b. The Tribal Administrator shall refer the request fora hearing to the Council with a written statement thatit is an appealable issue under Personnel Policies. Thestatement shall not express any opinion on the meritsof the appeal. The Tribal Administrator will schedulethe hearing before the Council at the next meeting. Theemployee shall be sent a written notice of the date,time, and place of the Council meeting.
c. The Tribal Administrator has the option ofreviewing the situation at the point the request forhearing is referred to him, including seeking theopinion of legal counsel, and may resolve the issue tothe satisfaction of the appellant employee withoutproceeding to the hearing before the Council. Suchreview may not be used to delay a hearing before theCouncil from one meeting to another. The hearing shall
App. 81
be scheduled as provided above. If the matter isresolved, the hearing will be canceled.
E. APPEAL HEARINGS
a. The appeal hearing is subject to the control of theCouncil. The hearing shall be presided over as othercouncil meetings and the general format will befollowed unless the Council decides o vary theprocedure.
b. No hearing shall be defective merely because theappealing employee was not present for whateverreason, nor because the person involved in the actscomplained about was not present for whatever reason,so long as the Council feels it has been fully informedand has discussed the matter.
c. An employee’s appeal shall be heard by the Councilin closed session, usually at the end of other business,unless the Council chooses, or the employee has beeninformed of, another time.
d. The appealing employee has the right torepresentation by, or assistance from, counsel or anyother representative at the employee’s expense. Therepresentative may be present during the hearing atany time the employee is present, or would be allowedto be present, and at any other time allowed by theCouncil.
The employee shall have no right to have the hearingcontinued, rescheduled, or relocated for the employee’srepresentative’s convenience or benefit, although theCouncil may do so at its discretion,
App. 82
e. The hearing will be called to order and theprocedures to be followed will be explained to theCouncil members, the appealing employee, and allpersonnel involved in, or responsible for, the actscomplained of in the appeal.
f. The appealing employee and other staff involved inthe matter, shall leave the hearing. The Council shallhear a synopsis and introduction of the matter from theTribal Administrator, Council member, or otherappropriate person,.the Council shall then hear therespective sides of the matter.
g. Personnel involved in the matter on appeal, orsomeone on their behalf, shall present all of the factsand issues surrounding the disciplinary action oralleged violation. Personnel shall then leave thehearing.
h. The appealing employee, either in person or throughrepresentatives, shall next present the employee’s sideof the matter. The Council may hear witnesses orpresentations in the order above or any other order. Allwitnesses may be called more than once by the Councilto answer further questions. Aside from the right topresent the employees version of the matter to theCouncil, the appealing employee has no right toconfront other witnesses, either for or against theemployee, except at the discretion of the Council. Anemployee will normally be allowed to be present duringthe presentation by any witness the employee hascalled on in the employee’s favor.
i. During the hearing, any Council member may askany appropriate questions, present further information,
App. 83
or comment. After the Council has heard all of theevidence that persons involved wish to present, andpursued all further questions of its own that themembers desire, the Council shall fully deliberate thematter.
j. After full deliberation, a motion may be made toeither uphold or overturn the actions complained of, orto provide other or no relief to the appealing employee.If any motion fails, further motions may be made. If nomotion is made and seconded, the presiding officershall make a motion, requiring no second, that theaction complained of shall be upheld and no further orother relief be granted to the appealing employee.
h. After the final votes on the motions, all personsinvolved should be invited back to the hearing to hearan oral announcement of the decision. In any event, theTribal Administrator shall inform the appealingemployee in writing of the Council’s decision withinfive (5) days.
l. The decision of the Council shall be final, and amatter once heard and decided shall not bereconsidered except upon a majority vote of the Councilafter a written application for reconsideration from theemployee to the Tribal Administrator. A motion forreconsideration may be made at any time, but thesooner the better. State matters cannot be pursuedunless new evidence or issues have arisen.
App. 84
APPENDIX 3
Exhibit “3”
[Dated March 18, 2011]_________________________
United States Department of the Interior
BUREAU OF INDIAN AFFAIRSPacific Regional Office
2800 Cottage Way Sacramento, California 95825
CONSTITUTION AND BYLAWS OF THE
CEDARVILLE RANCHERIA
MODOC COUNTY CEDARVILLE, CALIFORNIA
CERTIFICATE OF RESULTS OF ELECTION
Pursuant to an election authorized by the RegionalDirector, Pacific Region, Bureau of Indian Affairs, asdelegated to the Regional Directors by Memorandumdated October 11, 2006, on _FEB 24, 2011_, theattached proposed CONSTITUTION AND BYLAWSOF THE CEDARVILLE RANCHERIA, was submittedto the qualified voters of the Tribe and was on_FEB 24, 2011_, duly adopted/rejected by a vote of_5_ for and _0_ against, and _0_ cast ballots found to bespoiled or mutilated, in an election in which at leastthirty percent (30%) of the _8_ entitled to vote casttheir votes in accordance with Section 16 of the Indian
App. 85
Reorganization Act of June 18, 1934 (48 Stat. 984), asamended.
__________/s/__________Chairperson, Election Board
__________/s/__________Election Board Member
__________/s/__________Election Board Member
__________/s/__________Election Board Member
Date: _MARCH 4, 2011_ __________/s/__________Election Board Member
App. 86
United States Department of the Interior
BUREAU OF INDIAN AFFAIRSPacific Regional Office
2800 Cottage Way Sacramento, California 95825
CERTIFICATE OF APPROVAL
The Constitution and Bylaws of the CedarvilleRancheria, Modoc County, Cedarville, California whichwas adopted by the qualified voters of the Tribe onFebruary 24, 2011, is hereby approved pursuant to theauthority delegated to the Secretary of the Interior bythe Act of June 18, 1934 (48 Stat 984), as amended anddelegated to me by the Director, Bureau of IndianAffairs. This approval is effective as of this date;provided that nothing in this approval shall beconstrued as authorizing any action under thisdocument that would be contrary to Federal Law.
__________/s/__________Regional Director
_______3/18/11_______Date
App. 87
CONSTITUTION AND BYLAWS OF THE
CEDARVILLE RANCHERIA MODOC COUNTY
CEDARVILLE, CALIFORNIA
The CONSTITUTION OF THE CEDARVILLERANCHERIA MODOC COUNTY CEDARVILLE,CALIFORNIA, shall be amended in its entirety to readas follows:
PREAMBLE
We, the adult members of the Cedarville Rancheria, inModoc County, California, in order to establish aformal organization and to secure the privileges andpowers provided for by the Indian Reorganization Actof June 18, 1934 (48 Stat .984), do hereby ordain andestablish this Constitution and Bylaws.
ARTICLE I – NAME
The name of this Organization shall be the CedarvilleRancheria hereafter referred to as the Rancheria.
ARTICLE II – TERRITORY
The jurisdiction of this Organization shall extend to theland now within the confines of the CedarvilleRancheria and to such other lands as may hereafter beadded thereto.
ARTICLE Ill – MEMBERSHIP
Section 1. The membership of the Rancheria shallconsist of:
App. 88
(a) All persons of the Rancheria whose namesappear on or are entitled to appear on theOfficial Census Roll, dated July 18, 1954;
(b) All persons of California Indian descentwho reside on the Cedarville Rancheria,California, and have resided therecontinuously for a period of at least two(2) years, at the time of adoption of thisConstitution, provided they makeapplication for enrollment and providedfurther they receive a majority vote of theCommunity Council;
(c) All lineal descendants of enrolledmembers.
Section 2. No persons shall be a member of theRancheria if he:
(a) Was a member of any tribe or band ofIndians when its trust relationship withthe Federal Government was terminatedexcept those persons listed as dependentmembers on final rolls of CaliforniaRancheria or whose tribal status has beenreinstated by the courts;
(b) Has been allotted on another reservationor on the public domain;
(c) Is officially enrolled with or is recognizedas a member of another tribe or band. A“recognized” member of another tribe orband of Indians is a person who hasreceived a land-use assignment or
App. 89
payments by reason of membership inanother tribe or Rancheria, exceptthrough inheritance;or
(d) Has relinquished, in writing, hismembership in the Rancheria.
Section 3. The governing body shall adopt anenrollment ordinance, subject to theapproval of the Secretary of the Interior,governing future membership, loss ofmembership, and the adoption of new members, and prescribe rules andprocedures by which the membership rollshall be prepared and thereafter keptcurrent; provided, that the ExecutiveCommittee reserves the right toperiodically close the rolls from time totime upon a majority vote of theExecutive Committee.
ARTICLE IV – GOVERNING BODY
Section 1. The governing body of the Rancheria shallbe the Community Council composed ofall qualified voters of the Rancheria whoare eighteen (18) years of age or older.
Section 2. The Community Council shall elect fromits members, who are active qualifiedvoters, by secret ballot, an ExecutiveCommittee of a Chairperson, a Secretary,and a Vice Chairperson, who shall holdoffice for three years or until theirsuccessors are duly elected and installed.
App. 90
Such other committees may be appointedor elected as from time to time may bedeemed necessary.
ARTICLE V – MEETINGS
Section 1. Regular meetings of the CommunityCouncil shall be held on the first (1st)Saturday in Jan April of each year at2:00pm 1:00 p.m., at a place designatedby the Executive Committee. Specialmeetings may be called at any time by theChairperson and shall be called promptlyupon receipt of petitions signed by amajority of the active qualified votersrequesting such meetings.
Section 2. A majority of the active qualified votersshall constitute a quorum at all meetingsof the Community Council. Notices of allCommunity Council meetings shall begiven in writing at least two (2) weeks inadvance of the meetings to all qualifiedvoters.
Section 3. The term “qualified voter” refers to anymember of the Rancheria who will be atleast eighteen (18) years of age on the dayof any regular or special meeting.
Section 4. The term “active qualified voter” refers tothose qualified voters that have beenactive in at least eighty (80) percent of alltribal events in the six (6) monthspreceding an election or CommunityCouncil meeting. Tribal events shall
App. 91
include but are not limited to: holidays,ceremonies, tribal meetings, conferences,and community functions. The absence ofa member may be excused due to medicalor unforeseen circumstances upon writtenrequest to the Secretary of the ExecutiveCommittee within ten (10) days of thetribal event and subject to the approval ofa majority of the Executive Committee.
Section 5. Meetings of the Executive Committeemay be called by the Chairperson, or inhis absence, by the Secretary or ViceChairperson when deemed necessary.Two (2) members of the ExecutiveCommittee shall constitute a quorum forthe conduct of its business.
ARTICLE VI – ELECTIONS
Section 1. The Executive Committee in existence onthe effective date of this Constitution andBylaws shall continue to function untilthose officials elected at the nextscheduled election, pursuant to thisConstitution, are duly installed in office.
Section 2. All elections officers shall be by secretballot. Regular elections of officers shallbe conducted at the January meetings ofthe Community Council each third (3)year in accordance with an electionordinance adopted by the ExecutiveCommittee.
App. 92
Section 3. To serve as an officer, a person must bean active qualified voter.
Section 4. Any enrolled member of the Rancheriawho is eighteen (18) years of age or oldershall be entitled to vote in tribal elections.
ARTICLE VII – VACANCIES AND REMOVAL
Section 1. If an officer shall die, resign, be recalledfrom his office, relinquish tribalmembership in writing or shall be foundguilty in any Tribal, State or FederalCourt of a felony while in office, theCommunity Council shall declare theposition vacant and shall proceed tonominate candidates and elect areplacement officer who shall serve theunexpired term of office.
Section 2. Upon receipt of a petition signed by thirty(30) percent of the active qualified votersrequesting the recall of an officer, theExecutive Committee shall call a specialCommunity Council meeting to hear thecharges against the officer. Before anyvote for recall is taken such officer shallbe given a written statement of thecharges against him at east one (1) weekbefore the meeting of the CommunityCouncil at which the matter of recall is tobe decided and of the date, hour and placeof the Community Council meetings atwhich time he may appear and answerany and all charges. Such Community
App. 93
Council meeting shall be held within two(2) weeks of the date that a valid petitionfor removal action is filed with theExecutive Committee. After the accusedhas had an opportunity to be heard by theCommunity Council, a secret ballot votefor or against recall will be conducted.The decision of a majority of those presentand voting shall govern, provided that amajority of the active qualified votersshall vote. If the majority vote is for recallof the accused officer, his office shallautomatically be vacated and theCommunity Council shall proceed tonominate candidates and elect areplacement officer who shall serve theunexpired term of office.
Section 3. In the event that a recall vote isunsuccessful, the subject of theunsuccessful recall election shall not besubject to another recall election which isbased upon the same or similar groundsfor at least one year from the date of therecall election.
ARTICLE VIII – POWERS OF THEGOVERNING BODY
Section 1. The Community Council of the Rancheriashall exercise the following powerssubject to any limitations imposed by theConstitution, Federal Law and theConstitution of the United States;
App. 94
(a) To negotiate with Tribal, Federal, Stateand local governments;
(b) To retain legal counsel;
(c) To veto any proposed sale, disposition,lease or encumbrance of tribal lands,interest in lands or other tribal assets ofthe Rancheria;
(d) To establish such housing and otherauthorities as are necessary to promotethe welfare of the Rancheria;
(e) To control future membership, loss ofmembership and the adoption ofmembers; and
(f) To waive the sovereign immunity of theTribe.
Section 2. The Executive Committee shall have thefollowing powers, but shall not committhe Rancheria to any contract, lease orother transaction unless it is authorizedin advance by duly enacted ordinance orresolution of the Community Council:
(a) Carry out all ordinances, resolutions orother enactments of the CommunityCouncil; and
(b) Represent the Cedarville CommunityCouncil in all negotiations with Tribal,Federal, State, and local governments andadvise the Community Council of theresults of all such negotiations.
App. 95
Section 3. Any rights or powers heretofore vested inthe Rancheria, but not expressly referredto in this Constitution, shall not be lost bytheir omission but may be exercised bythe adoption of appropriate amendmentsto this Constitution.
ARTICLE IX – BILL OF RIGHTS
Section 1. Subject to the limitations imposed by thisConstitution, all members of theRancheria shall enjoy equal politicalrights and opportunities to participate inthe Community Council; Rancheriaeconomic resources, Rancheria assets,and all the rights that are conferred upona member of the Rancheria.
Section 2. The Rancheria in exercising its powers ofself-government, in accordance withTitle II of the Indian Civil Rights Act of1968 (82 Stat. 77), shall not:
(a) Make or enforce any law prohibiting thefull exercise of religion, or abridging thefreedom of speech, or of the press, or theright of the people peaceably to assembleand to petition for a redress of grievances;
(b) Violate the right of the people to be securein their persons, houses, papers andeffects against unreasonable search andseizure, nor issue warrants, but uponprobable cause, supported by oath oraffirmation, and particularly describing
App. 96
the place to be searched and the person orthing to be seized;
(c) Subject any person for the same offense tobe twice put in jeopardy;
(d) Compel any person in any criminal caseto be a witness against himself;
(e) Take any private property for a public usewithout just compensation;
(f) Deny to any person in a criminalproceeding the right to a speedy trial, tobe informed of the nature and cause of theaccusation, to be confronted with thewitnesses against him, to havecompulsory process for obtainingwitnesses in his favor, and, at his ownexpense, to have the assistance of counselfor his defense;
(g) Require excessive bail, impose excessivefines, inflict cruel and unusualpunishments, and in no event impose forconviction of any one offense any penaltyo r punishm ent g re a t e r t ha nimprisonment for a term of one (1) year ora fine of $5000 or both;
(h) Deny to any person within its jurisdictionthe equal protection of its laws or depriveany person of liberty or property withoutdue process of laws;
App. 97
(i) Pass any bill of attainder or ex post factolaw; or
(j) Deny to any person accused of an offensepunishable by imprisonment the right,upon request, to a trial by jury of not lessthan six (6) persons.
ARTICLE X – SOVEREIGN IMMUNITY
Section 1. The sovereign immunity of the Rancheriaor any of its programs or businessventures is hereby preserved.
Section 2. The Community Council may provide anexplicit written waiver of tribal sovereignimmunity upon the approval of a majorityvote of voters voting at a meeting of theCommunity Council duly called andconducted in accordance with Article V ofthis Constitution. The waiver must statethe extent and purposes for which thewaiver is granted.
ARTICLE XI – AMENDMENT
Section 1. This Constitution and Bylaws may beamended by a majority vote of thequalified voters of the CommunityCouncil at an election authorized for thatpurpose by the Secretary of the Interior,provided that at least thirty (30) percentof those entitled to vote shall vote in suchelection.
App. 98
Section 2. Amendments, in writing, may beproposed by any two (2) members of theCommunity Council. The proposal shallbe referred to a committee appointed bythe Chairperson. The committee shallreport upon the proposal at the nextmeeting of the Community Council atwhich time a vote shall be taken as to itssubmission to the Secretary of theInterior. It shall be the duty of theSecretary of the Interior to call anelection on any proposed amendmentupon receipt of a petition by one third(1/3) of the qualified voters of thecommunity, or upon the submission of aresolution duly adopted by a majority ofthe Community Council. No amendmentshall become effective until it has beenadopted in an election called by theSecretary of the Interior and approved byhim.
BY-LAWS OF THE CEDARVILLE RANCHERIAMODOC COUNTY, CALIFORNIA
ARTICLE I – DUTIES OF OFFICERS
Section 1. Tribal Chairperson• The Chairperson shall preside at allmeetings of the Community Council and ofthe Executive Committee. He/She mayappoint another member of the ExecutiveCommittee to preside temporarily when it isnecessary for him/her to be absent from ameeting.
App. 99
• The Chairperson shall be the chiefexecutive officer of the community andexercise any authority delegated to him bythe Community Council. • The Chairperson shall attend meetings,including, but not limited to, meetings withFederal and State departments and contacts,meetings regarding Economic Developmentventures, Tribal Leadership conferences, andany other events that are determined to bepertinent to the Tribe’s self-government. • The Chairperson shall oversee allCedarville Rancheria matters, includingconcerns, conflicts and any other issues, aswell as signing checks on behalf of theCedarville Rancheria for various Tribal expenses.• The Chairperson shall be the authorizedpoint-of-contact, along with the TribalSecretary or Tribal Administrator, to signTribal documentation, including grantapplications, MOUs, supply orders, triprequests, etc.• The Chairperson shall be knowledgeablein the Constitution, By-laws, policies andrules of the Tribe, including overall rules andany rules pertaining to specific committees. • The Chairperson shall be in constantcommunication with Tribal members. • The Chairperson shall show impartialitywith all Tribal members. • The Chairperson shall demonstratebusiness professionalism. • The Chairperson shall promote theparticipation of all Tribal members.
App. 100
• Any member interested in the position ofChairperson shall attend trainings deemedappropriate to the position.
Section 2. Vice Chairperson• The Vice Chairperson shall assist theTribal Chairperson in meetings and dailybusiness and shall preside over meetings ofthe Community Council and ExecutiveCommittee in the absence of theChairperson, and when so presiding shallhave the privileges, duties, andresponsibilities of the Chair. • The Vice Chairperson shall attendmeetings and conferences on theChairperson’s behalf when the Chairpersonis unavailable to attend. • The Vice Chairperson shall assist asnecessary in overseeing the financial issuesof the Cedarville Rancheria, includingconfirmation that the Financial Report isdone accurately and in a timely manner. • The Vice Chairperson shall beresponsible, along with the TribalChairperson, for signing checks on behalf ofthe Cedarville Rancheria for various Tribalexpenses. • The Vice Chairperson shall beknowledgeable in the Constitution, By-laws,policies and rules of the Tribe, includingoverall rules and any rules pertaining tospecific committees. • The Vice Chairperson shall activelycommunicate with the Chairperson and
App. 101
Tribal members regarding task updates. • The Vice Chairperson shall showimpartiality to all Tribal members. • The Vice Chairperson shall review themonthly newsletter.
Section 3. Tribal Secretary • The Secretary shall be sure allcorrespondence affecting the Rancheria isproperly distributed and handled by theStaff. • The Secretary shall confirm accuracy inCommunity Council and ExecutiveCommittee meeting minutes, as well asensure they are completed in a timely manner.• The Secretary shall work closely with theChairperson to ensure meeting minutes andcorrespondence accuracy. • The Secretary shall oversee meetingpreparation, including creating of the agendaand additional attachments. • The Secretary shall be the authorizedpoint-of-contact, along with the TribalChairperson, to sign Tribal documentation,including grant applications, MOUs, meetingminutes, etc. • The Secretary shall be knowledgeable inthe Constitution, By-laws, policies and rulesof the Tribe, including overall rules and anyrules pertaining to specific committees.
App. 102
ARTICLE II – OATH OF OFFICE
Section 1. Each officer, elected or appointedhereunder, shall take an oath of officeprior to assuming the duties thereof, bywhich oath he shall pledge himself tosupport and defend the Constitution ofthe United States and this Constitutionand Bylaws. Oath: I, _______________ , dosolemnly swear that I will support anddefend the Constitution of the UnitedStates against all enemies; that I willcarry out, faithfully and impartially, theduties of my office to the best of myability; that I will promote and protectthe best interest of my Rancheria inaccordance with the Constitution andBylaws of the Cedarville Rancheria.
ARTICLE III – ORDER OF BUSINESS
Section 1. The following order of business is herebyestablished for all meetings:
1. Call to order by the Chairperson. 2. Roll call. 3. Ascertainment of a quorum. 4. Reading of the minutes of the last
meeting. 5. Adoption of the minutes by voice vote. 6. Budget report. 7. Unfinished business. 8. Reports. 9. New Business. 10. Adjournment.
App. 103
ARTICLE III – ADOPTION
This Constitution and Bylaws, when adopted by amajority of vote of the qualified voters, voting at anelection authorized for that purpose by Secretary of theInterior, provided that at least thirty (30) percent ofthose entitled to vote in such election, shall besubmitted to the Secretary of the Interior for approval,and if approved, shall be effective from the date of suchapproval.
