Chapter 2.40
EXCLUSION
Sections:
2.40.010 Findings and purpose.
2.40.030 Right to close area/landowner’s right to control entry preserved.
2.40.040 Persons subject to exclusion.
2.40.050 Petition for exclusion – Grounds.
2.40.060 Contents of petition.
2.40.070 Notice, petition, answer, and Court determination of exclusion.
2.40.100 Remedies not exclusive.
2.40.120 Nullification of exclusion order.
2.40.130 Funerals and Court appearances.
2.40.140 Business on the Reservation.
2.40.150 Seizures related to the crime of trespass and/or violation of an exclusion order.
2.40.170 Motion to defer exclusion order.
2.40.180 Nonwaiver of sovereign immunity.
2.40.190 Severability and construction.
2.40.200 Creation of exclusion registry and dissemination of an exclusion list.
Prior legislation: Resos. 2007-350 and 2009-23.
2.40.010 Findings and purpose.
(1) The power to exclude is a firmly established power of Tribal government, and necessary to protect the political integrity, economic security, and/or the health or welfare of the Tribes.
(2) The Board of Directors is committed to providing a safe and healthy environment for Tribal members, community residents and visitors to the Reservation.
(3) As population increases on and in the vicinity of the Tulalip Indian Reservation, the Tribes can expect a greater number of instances in which it may be necessary to exercise its exclusion power.
(4) It is in the best interest of the Tribe that individuals excluded from the reservation shall be included on an exclusion registry and/or included on a list that is made available to Tulalip Tribal departments and entities.
(5) To provide orderly and fair procedures for the exercise of the Tribes’ exclusion power, consistent with the Indian Civil Rights Act of 1968, 25 U.S.C. 1301 et seq., this chapter is enacted. [Res. 2023-255; Res. 2013-109; Ord. 71 § 71.1.0, 5-1-2009 (Res. 2009-155); Ord. 71 § 1.0, 1-5-2007 (Res. 2007-1); Ord. 71 § 1.0, 7-8-2004 (Res. 2004-198); Ord. 71 § 1.0, 3-4-1989].
2.40.020 Definitions.
(1) “Board” or “Board of Directors” shall mean the Board of Directors of the Tulalip Tribes.
(2) “Child” as used herein means any person under the age of 18.
(3) “Lawful resident” is synonymous with the phrase “legally entitled to reside,” as used in Article VI, Section 1(I) of the Tribes’ Constitution. That phrase, and the term “lawful resident” as used in this chapter, means the legal owner, lessee or assignee of restricted land or interests in restricted land, holding a Federally valid right to occupancy therein, provided the lease, assignment or other instrument creating the occupancy right is not specifically subject to the Tribes’ exclusion authority.
(4) The phrase “natural resources” as used herein includes but is not limited to fish, wildlife, shellfish, timber, water and minerals.
(5) As used herein, “person” includes individuals, organizations and other entities, including business entities.
(6) The phrase “restricted land,” as used in this chapter and in Article VI, Section 1(I) of the Tribes’ Constitution, shall be construed to include any and all lands within the Tulalip Indian Reservation subject to a restriction against alienation, including but not limited to lands held in trust for an individual or the Tribes.
(7) “Tribes” as used herein means the Tulalip Tribes.
(8) Tulalip Tribal Member Spouse. As defined under Chapter 4.20 TTC. For purposes of this code, a spouse does not include a person who is living separate and apart from his or her spouse, or who has filed, in an appropriate court, a petition for legal separation or dissolution of marriage. [Res. 2013-109; Ord. 71 § 71.2.0, 5-1-2009 (Res. 2009-155); Ord. 71 § 2.0, 1-5-2007 (Res. 2007-1); Ord. 71 § 2.0, 7-8-2004 (Res. 2004-198); Ord. 71 § 2.0, 3-4-1989].
2.40.030 Right to close area/landowner’s right to control entry preserved.
(1) Closure of Restricted Land. In the interest of health, safety or protection of property, the Tribes’ Chairperson, Vice-Chairperson, or General Manager(s) may close any area of restricted land to entry by other than the lawful residents and Tribally or Federally authorized persons. Such closure must be in writing and shall not continue for more than 60 days without approval of the Tulalip Board of Directors. A closure under this section shall not be directed at any particular person or persons but may be limited to a designated group, such as children or nonmembers.
(2) Removal from Closed Area. Any unauthorized person failing to comply with a request to leave an area closed pursuant to this subsection shall be subject to removal by a Tribal Police Officer or other person so empowered by the Board or General Manager. Any person so removed shall be notified of the opportunity to request a hearing in accordance with TTC 2.40.080(3).
(3) Landowner’s Right to Control Entry. Nothing in this chapter shall preclude the exercise of the right of any landowner or bona fide lessee to control entry to lands owned by or leased by the owner or lessee. [Res. 2013-109; Ord. 71 § 71.3.0, 5-1-2009 (Res. 2009-155); Ord. 71 § 3.0, 1-5-2007 (Res. 2007-1); Ord. 71 § 3.0, 7-8-2004 (Res. 2004-198); Ord. 71 § 3.0, 3-4-1989].
2.40.040 Persons subject to exclusion.
Any person or child, whether or not a member of the Tribes, is subject to exclusion pursuant to this chapter from any restricted land, or portion thereof, on which the person is not a lawful resident. [Res. 2013-109; Ord. 71 § 71.4.0, 5-1-2009 (Res. 2009-155); Ord. 71 § 4.0, 1-5-2007 (Res. 2007-1); Ord. 71 § 4.0, 7-8-2004 (Res. 2004-198); Ord. 71 § 4.0, 3-4-1989].
2.40.050 Petition for exclusion – Grounds.
The Tulalip Tribes by and through its Board of Directors may petition the Tulalip Tribal Court for an order excluding, on a temporary or permanent basis, a person from restricted land or any portion thereof, unless a lawful resident of such property, for one or more of the following unlawful acts under this section:
(1) Causing disturbances of celebrations or ceremonies within the Reservation;
(2) Photographing or tape recording any ceremony without permission of the participants, or otherwise violating restrictions on the observation of or participation in a ceremony;
(3) Committing an act which violates the criminal or civil laws of the Tulalip Tribes, whether or not the Tribes has jurisdiction to prosecute the person for the act, including traffic violations which are classified as a criminal offense under Chapter 3.60 TTC;
(4) Committing an act which violates the criminal laws of the State of Washington or of the United States of America, whether or not the person may be prosecuted by the states or United States;
(5) Failing to comply with State or Federal civil laws applicable within the Reservation;
(6) Evading arrest or prosecution for an offense committed in another jurisdiction;
(7) Failing to comply with any legal process, notice, subpoena, order or other decree issued pursuant to authority of the Tulalip Tribes, including but not limited to a closure of an area as provided in TTC 2.40.030;
(8) Removing or attempting to remove any child without proper authority;
(9) Threatening or causing harm to persons or property on the Reservation;
(10) Disturbing or destroying gravesites, artifacts or other sites and objects of historical or anthropological value without authorization from the Tulalip Board of Directors or its designee;
(11) Possession of, taking or injury to natural resources within the Reservation without legally required authorization;
(12) Hunting, fishing, trapping, timber (including Christmas tree) cutting within the Reservation without legally required authorization;
(13) Registered sex offenders or persons required to register as a sex offender under the jurisdiction of the Tulalip Tribes;
(14) Interference or threats to interfere with the governmental operations or business activities of the Tulalip Tribes;
(15) Failing to obtain a required Tribal license or permit;
(16) Failing to pay Tribal taxes, assessments or user fees;
(17) Inducing any member of the Tulalip Tribes to enter into an unlawful or grossly unreasonable contact of any nature;
(18) Defrauding any member of the Tulalip Tribes for just compensation for labor or service done at the request of a nonmember;
(19) Repeated harassment of members of the Tulalip Tribes, Tribal officials or Tribal employees;
(20) Failing to comply with any Tribal law, policy or contractual obligation regarding employment practices;
(21) Unauthorized removal or attempt to remove Tribal property or property of members;
(22) Public drunkenness or drug abuse, or other breaches of the peace;
(23) Any other objectionable behavior or condition found by the Tribal Court to be sufficient cause of expulsion; provided, that the person has been first advised of the objection and nevertheless continues the misconduct or condition;
(24) Exclusion for holding for sale, possession with intent to manufacture, cultivate or deliver, unlawful delivery, selling or manufacturing of controlled substances;
(25) Threatening, causing harm, exploiting or otherwise taking advantage of an elder or elder’s property as determined by the Board of Directors. [Res. 2018-296; Res. 2013-109; Res. 2010-180; Ord. 71 § 71.5.0, 5-1-2009 (Res. 2009-155); Ord. 71 § 5.0, 1-5-2007 (Res. 2007-1); Ord. 71 § 5.0, 7-8-2004 (Res. 2004-198); Res. 2001-254; Ord. 71 § 5.0, 3-4-1989].
2.40.060 Contents of petition.
(1) The petition shall be in writing and include:
(a) The name of the person to be removed or excluded;
(b) The specific grounds for removal or exclusion;
(c) The factual basis for the petition;
(d) The land from which exclusion or removal is sought;
(e) The signature of the petitioner.
(2) So long as these elements are included, a petition for exclusion may be incorporated into a Tribal Court complaint seeking other relief. [Res. 2013-109; Ord. 71 § 71.6.0, 5-1-2009 (Res. 2009-155); Ord. 71 § 6.0, 1-5-2007 (Res. 2007-1); Ord. 71 § 6.0, 7-8-2004 (Res. 2004-198); Ord. 71 § 6.0, 3-4-1989].
2.40.070 Notice, petition, answer, and Court determination of exclusion.
(1) Notice of Opportunity to Request Hearing. The notice shall be served with a copy of the petition for exclusion and include the following provisions:
(a) A statement that the respondent may answer the allegations contained in the petition for exclusion and request a hearing by filing such an answer and request with the Court within 30 days of service of the petition;
(b) A statement that if the respondent fails to file an answer within 30 days of service of the petition or fails to appear at the time set for hearing, the Court shall enter an order of exclusion;
(c) A statement that the respondent may be represented by counsel at his/her own expense;
(d) A statement that the respondent may present testimony of witnesses and other evidence on his/her behalf; and
(e) A statement that witness lists shall be filed no later than five judicial days before the hearing.
(3) Service of Notice of Opportunity to Request Hearing. Service of the notice shall be by personal service, by any person authorized therein to make such service who is not a party to the case. The process server or other authorized person shall return a declaration of service to the Court. Supplemental pleadings and discovery may be served via U.S. Postal Service. If the respondent cannot be served by personal service, the Court may grant a continuance and permission to serve by publication upon ex parte motion of the Tribes.
(4) Defective Petition. If the Court finds that the petition does not meet the requirements of TTC 2.40.060, it shall dismiss the petition without prejudice and shall cause notice to be served on the petitioner stating the manner in which the petition was defective.
(5) Answer. Within 30 days of the service of the petition, the respondent shall file, with the Tulalip Tribal Court, a written answer to the allegations described in the petition to institute exclusion proceedings. No extension of this time may be granted, unless extraordinary circumstances exist. The respondent shall serve the answer on the Office of the Reservation Attorney no more than five calendar days after filing with the Court. If an answer is filed within 30 days, the exclusion proceeding shall be set for a hearing without a jury no later than 60 days after the answer is filed.
(6) Failure to Answer or Appear. If the respondent fails to answer the petition within 30 days of the service of the petition or fails to appear to defend at the time set for a hearing, the Court shall enter an order of exclusion. The Tribes may present such an order ex parte.
(7) Conduct of Hearing. The petitioner and respondent shall have an opportunity to present witnesses and other evidence. All evidence which is necessary and relevant to decide the case is admissible. Witnesses may be subpoenaed for either party upon request. Failure of the Court’s subpoena power to obtain a witness’s presence shall not be cause to dismiss the petition. The parties may be represented by counsel, at their own expense. All other civil procedures specified in Chapter 2.10 TTC shall apply where not clearly inconsistent with this chapter.
(8) Standard for Decision. The Tribal Court shall enter an order for removal or exclusion if, based on the evidence presented, the Court determines the person is subject to exclusion, and that the person or entity committed an act or omission which falls within one or more exclusion grounds. The burden of proof is a preponderance of the evidence.
(9) Order of Exclusion. The Court may orally advise the parties of its decision at the hearing or may issue an opinion no later than five judicial days from the date of the hearing. In either case, the Court shall prepare a written order and cause it to be served on both parties.
(a) Written orders for exclusion shall include:
(i) The grounds for the decision;
(ii) The date and time the person or entity must remove him/herself;
(iii) The duration the order is to be in effect;
(iv) Any circumstances under which the person or entity may be permitted to return to pick up belongings with supervision of law enforcement, file a motion for deferral under this chapter, an appeal, or attend a Tribal Court hearing but only if the person is a party to the proceedings or subpoenaed by the Court;
(v) A date by which the Tribal Court will review the order and circumstances or conditions attached, if the person or entity requests a review.
(10) Order of Exclusion – Service. No service is required on a party who is in default for failing to answer or failing to appear.
(11) Continuance. The Court may, in its discretion, grant a continuance of the hearing upon either party’s request.
(12) Order of Exclusion – Enforcement. The Court may request Tribal law enforcement or other Tribally authorized officers to supervise the removal of the respondent. The officers, in their discretion and under their supervision, may allow the person to gather any necessary belongings from the jurisdiction of the Tulalip Tribes, prior to removal. If the respondent fails to voluntarily remove himself within the time limit stated in the order, the officers may physically remove him. The enforcement officers shall use only so much force as is reasonable to accomplish the removal. [Res. 2023-254; Res. 2020-438; Res. 2016-409; Res. 2013-109; Ord. 71 § 71.7.0, 5-1-2009 (Res. 2009-155); Ord. 71 § 7.0, 1-5-2007 (Res. 2007-1); Ord. 71 § 7.0, 7-8-2004 (Res. 2004-198); Ord. 71 § 7.0, 3-4-1989].
2.40.080 Emergency exclusion.
(1) Emergency Exclusions – Grounds. Tribal law enforcement or other Tribally authorized officers may remove from the jurisdiction of the Tulalip Tribes any person subject to removal under this chapter if the officer observes that an immediate danger to health, safety or property exists and delay would result in irreparable harm.
(2) Emergency Exclusion with Ex Parte Order. The Chief of Police for the Tulalip Police Department may (but is not required to) request that the Office of Reservation Attorney file a petition for an ex parte temporary order of exclusion from the Court. This petition must be accompanied by a statement from the Chief of Police or designee, stating the grounds for the request for an emergency exclusion. The petition may also include any other documentary information, declarations or relevant evidence for the Court to consider. The Court must find probable cause that the person is an immediate danger to the health, safety, or property of a person or the community. The temporary order of exclusion shall expire three weeks after issuance unless the Court finds good cause to extend the expiration date, modify the order in any respect or to make it permanent. The Tulalip Tribes shall cause the ex parte temporary order of exclusion, the petition and the notice of the opportunity to request a hearing to be served on the respondent under the procedures outlined under TTC 2.10.030. An officer with the Tulalip Police Department, in his/her discretion and under his/her supervision, may allow the person to gather any necessary belongings from the jurisdiction of the Tribes, prior to removal.
(3) Notice of Opportunity to Request Hearing. The notice shall include the following provisions:
(a) A statement that the respondent may answer the allegations contained in the petition for emergency exclusion and request a hearing by filing such an answer and request with the Court within seven days of service of the petition. The hearing shall be scheduled no later than 14 working days from the date the answer and request for hearing is filed with the Court;
(b) A statement that if the respondent fails to file an answer within seven days of service of the petition or fails to appear at the time set for hearing, the Court shall terminate the temporary order and enter a permanent order of exclusion. The Tulalip Tribes may present a draft permanent order of exclusion ex parte;
(c) A statement that the respondent may be represented by counsel at his/her own expense; and
(d) A statement that the person may present testimony of witnesses and other evidence on his/her behalf.
(4) Hearings on Emergency Exclusions. Hearings following an emergency exclusion shall be conducted consistent with TTC 2.40.070(7), Conduct of Hearing; TTC 2.40.070(8), Standard for Decision; TTC 2.40.070(9), Order of Exclusion; TTC 2.40.070(10), Order of Exclusion – Service; TTC 2.40.070(11), Continuance; and TTC 2.40.070(12), Order of Exclusion – Enforcement. [Res. 2017-257; Res. 2013-109; Ord. 71 § 71.8.0, 5-1-2009 (Res. 2009-155); Ord. 71 § 8.0, 1-5-2007 (Res. 2007-1); Ord. 71 § 8.0, 7-8-2004 (Res. 2004-198); Ord. 71 § 8.0, 3-4-1989].
2.40.090 Appeal.
(1) Who May Appeal. Persons subject to an exclusion may appeal the final order of the Tribal Court. Persons appealing a final order may come onto the Reservation for purposes of the appeal so long as Tulalip law enforcement is notified prior.
(2) Rules of Appeal. All appeals under this chapter shall be governed by the appellate procedure in Chapter 2.20 TTC. [Res. 2013-109; Ord. 71 § 71.9.0, 5-1-2009 (Res. 2009-155); Ord. 71 § 9.0, 1-5-2007 (Res. 2007-1); Ord. 71 § 9.0, 7-8-2004 (Res. 2004-198); Ord. 71 § 9.0, 3-4-1989].
2.40.100 Remedies not exclusive.
The remedies provided for herein are in addition to any other available remedies and, unless expressly provided by applicable law, resort to one remedy shall not preclude resort to another. Where a person is subject to a Tribal law, the Tribal Court is hereby expressly authorized to impose exclusion in addition to or in the alternative to any other Tribal fine or penalty provided for violation of such law. [Res. 2013-109; Ord. 71 § 71.10.0, 5-1-2009 (Res. 2009-155); Ord. 71 § 10.0, 1-5-2007 (Res. 2007-1); Ord. 71 § 10.0, 7-8-2004 (Res. 2004-198); Ord. 71 § 10.0, 3-4-1989].
2.40.110 Tribal benefits.
Excluded persons shall not receive cash assistance payments from Tulalip health and human service programs, including but not limited to disability assistance, special needs assistance, elder payments, veteran payments, needs-based payments, major medical assistance, TANF, median income assistance, higher education assistance, or any other cash assistance payments available to persons in the Tulalip community. This section does not apply to persons who are in compliance with a deferral program under this chapter. [Res. 2013-109; Ord. 71 § 71.11.0, 5-1-2009 (Res. 2009-155)].
2.40.120 Nullification of exclusion order.
(1) Not sooner than one year after any exclusion order issued under this chapter, any excluded person who is otherwise ineligible for the deferral program of this chapter may petition the Board of Directors for nullification. The Board may nullify the exclusion order on terms and conditions that the Board, in its sole discretion, considers just and equitable, and the Board’s decision shall be final and nonreviewable. The Tribal Court shall modify or vacate any exclusion order upon terms and conditions approved by resolution of the Board. The Board will review a petition for nullification no more than once every three years.
(2) An exclusion order issued by the Tulalip Tribal Court excluding a Tribal member who is now deceased shall be automatically null and void upon death of the Tribal member. [Res. 2020-357; Res. 2013-109].
2.40.130 Funerals and Court appearances.
(1) Funerals. Excluded persons may come onto the Tulalip Indian Reservation to attend a funeral of an immediate family member on the day of the funeral and during funeral hours. (See the Tulalip Tribal Government Employee Handbook for the definition of an immediate family member.) Prior to coming onto the Reservation, the person must notify the Chief of Police. If the Chief of Police is unable to verify that the excluded person is an immediate family member of the deceased person the person shall not be allowed onto the Reservation. The Chief of Police will use his/her discretion as to whether or not police supervision is necessary to ensure safety of the community or other persons. A person may be denied the right to attend a funeral if there is a substantial threat of harm or injury to the community or a person.
(2) Court Appearances. A person excluded from the Tulalip Indian Reservation who is required to appear at the Tulalip Tribal Court for a mandatory civil or criminal proceeding may come onto the Tulalip Indian Reservation for the limited purpose of appearing for such a proceeding. Prior to coming onto the Reservation, if the excluded person is not in custody, the excluded person must notify Tulalip Tribes Police Dispatch to provide the date and time of the Court proceeding. The excluded person must use the most direct available route to and from the Court and must leave the Tulalip Indian Reservation as soon as their presence at the Court proceeding is no longer required.
(3) Temporary and Limited Entry onto Reservation. Persons who are excluded under this title shall not be allowed to come onto the Tulalip Reservation except for as provided for under this section for mandatory Court appearances and funerals. This section does not alter or affect the provisions under TTC 2.40.120 or 2.40.170. [Res. 2021-468; Res. 2017-257; Res. 2013-109].
2.40.140 Business on the Reservation.
Persons who are excluded under this title shall not be allowed to conduct business with the Tribes or any tribal entity, or operate or conduct any other business or business activities within the exterior boundaries of the Reservation. Business activity (or business activities) is defined as having ownership or financial interest in the goods and services being provided and as defined by TERO. Persons on the deferral program are not excluded and are not subject to this restriction. [Res. 2013-109].
2.40.150 Seizures related to the crime of trespass and/or violation of an exclusion order.
The following shall be subject to forfeiture to the Tulalip Tribes and no property right shall exist in them:
(1) All conveyances, vessels of which legal title is held by the excluded person, which are used, or are intended for use, for transportation of a person excluded under this chapter on restricted land. [Res. 2013-109].
2.40.160 Seizures procedures.
Procedure for forfeitures under this chapter shall be in accordance with TTC 2.15.010, and initiated by the Tulalip Tribes Prosecutor. [Res. 2013-109].
2.40.170 Motion to defer exclusion order.
(1) Eligibility. The following persons may apply for a deferral of their exclusion order.
(a) A Tulalip Tribal member; or
(b) The spouse of a Tulalip Tribal member so long as their spouse (the Tulalip Tribal member) lives on the Tulalip Indian Reservation; or
(c) The parents or adult son or daughter of a Tulalip Tribal member.
(2) Persons Not Eligible. Persons excluded for the following crimes are not eligible for the deferral program under any circumstance:
(a) Persons excluded for a Class E or F sex crime, as defined under the Tulalip Tribal Code, or an equivalent offense in any jurisdiction.
(b) Persons excluded for murder, attempted murder or manslaughter.
(c) Persons excluded for a violent crime which results in the serious bodily injury or death of a Tulalip tribal member.
(3) Persons Excluded for Crimes Involving Domestic Violence. Persons excluded for a crime involving domestic violence may be eligible for the deferral program if they meet the following conditions:
(a) First Time Offender. Persons excluded for a crime involving domestic violence, who do not have two or more convictions for crimes involving domestic violence, may be eligible for the deferral program if they provide proof of:
(i) Successful completion of a certified domestic violence treatment program; or
(ii) Active engagement and compliance with a certified domestic violence treatment program.
(b) Habitual Offender. Persons excluded for a crime involving domestic violence, who have two or more convictions for crimes involving domestic violence or otherwise meet the requirements to be deemed a habitual offender as that term is used under 18 U.S.C. 117 or TTC 4.25.420, may be eligible for the deferral program if they provide proof of:
(i) Successful completion of a certified domestic violence treatment program; or
(ii) Successful completion of at least 12 consecutive months of a domestic violence treatment program as well as continued active engagement and compliance with that program’s requirements.
(c) Judicial Discretion. In addition to the conditions set forth in subsections (3)(a) and (b) of this section, the Court has discretion to order any other treatment assessments/services as it deems necessary for the protection of any claimed or potential victim of domestic violence and/or the Tulalip community. The Court may review the person’s criminal history, historical data and the facts of giving rise to the exclusion to require engagement in these additional assessments/services either prior to the Court setting a deferral hearing or may make them a requirement of the person’s deferral program.
(4) Repealed by Res. 2017-257.
(5) In the order granting deferral, and as a condition thereof, the Court shall require the respondent to make such monetary payments, on such terms as it deems appropriate under the circumstances and throughout the deferral program, as are necessary: (a) to pay for urinary analysis (UA) tests or other drug and alcohol testing costs associated with the program; and (b) to pay for other administrative costs associated with the deferral program.
The Court shall determine where payment is to be made, and when payments shall be made. The Tribe, through its Reservation Attorney, shall provide recommendations. The Court may reduce or waive payment if they determine a substantial hardship that will affect the health and welfare of the respondent and his family or his dependents. Payments required under this section will be retroactive to persons currently in the deferral program and required under court order at subsequent review hearings.
(6) Motion for Deferral. Excluded persons who meet the eligibility requirements as stated above may file a motion with the Tulalip Tribal Court to request a deferral of an exclusion order issued under this section. The Tribal Court shall defer such exclusion upon clear proof by the excluded person that he/she has entered into, is actively continuing participation in, and is compliant with all requirements of the deferral program outlined in this section. If the person is not yet actively involved in the requirements as outlined below, the person shall submit an affidavit stating they intend to begin participation upon being granted a deferral under this section.
(a) Deferral Program. For purposes of this subsection, a “deferral program” shall be a mandatory three-year counseling and treatment program, agreed to by the Tulalip Tribes and the excluded member. If the person has not been excluded for a crime involving illegal or banned substances or there is no proof that chemical dependency treatment is necessary the Tribes and the Court shall tailor a program that addresses the reason for exclusion. Requirements shall minimally include:
(i) Completion of at least 15 annual random urinalysis (UA) tests. The deferral order shall include specific guidelines for the UA, and UA results must not show use of a prohibited substance. The Court may also order other forms of drug and alcohol testing;
(ii) Completion of a chemical dependency and/or mental health evaluation and follow-up with all recommendations;
(iii) Completion of all substance abuse counseling, or other counseling, and treatment options considered necessary by counselors or the Tribal Court;
(iv) Execution of all appropriate releases for monitoring of compliance with the terms and conditions of any deferral program;
(v) Compliance with all Tribal and State law or Federal law.
(A) If a person is charged with a crime by any charging jurisdiction, the deferral shall be revoked and the exclusion reinstated pending criminal trial.
(B) If a person is charged with a crime by any charging jurisdiction and agrees to a stipulated order of continuance or deferred prosecution in any jurisdiction, the deferral shall be revoked.
(C) If criminal charges are subsequently dropped or the charge does not lead to a conviction (with the exception of subsection (6)(a)(v)(B) of this section), the deferral shall be reinstated upon motion and previous deferral time shall be credited;
(vi) Participation in Tribal job training and Tribal youth anti-drug education programs considered necessary by Tribal substance abuse counselors or other Tribal youth education programs as determined by the Tribes and the Court;
(vii) Proof of payment for deferral costs as required under the original deferral order or subsequent order on review; and
(viii) Any other requirements, including non-substance-abuse related requirements, deemed necessary by the Tribal Court.
(b) Compliance Review by the Tribal Court. Every six months, or sooner upon petition of any aggrieved person or the Court, the Tribal Court shall review the status of compliance with a deferral program.
(i) Upon proof that the person has failed to comply with any of the terms and conditions of the deferral program, the Tribal Court shall vacate the order of deferral and reinstate the exclusion order. The person on deferral has the burden to prove compliance with this program.
(A) A person whose exclusion order has been reinstated for failure to comply with the terms and conditions of the deferral program shall not be permitted to file a motion for deferral for 12 months from date the exclusion order was reinstated.
(B) A person whose exclusion order has been reinstated a second time for failure to comply with the terms and conditions of the deferral program shall not be permitted to file a motion for deferral for 24 months from the date the exclusion order was last reinstated.
(C) A person whose exclusion order has been reinstated a third time for failure to comply with the terms and conditions of the deferral program shall not be permitted to file a motion for deferral for 36 months from the date the exclusion order was last reinstated.
(D) A person whose exclusion order has been reinstated a fourth time for failure to comply with the terms and conditions of the deferral program shall not be permitted to file a motion for deferral with the Tribal Court, unless the Board of Directors issues a resolution permitting the person to file the motion for deferral. Upon submission of the motion for deferral with the Board of Directors resolution authorizing the filing of the motion, the Tribal Court shall enter an order deferring the exclusion order, subject to the requirements of this section.
(ii) Upon clear proof by the person that he/she has successfully completed the deferral program, the petition for exclusion shall be dismissed with prejudice. [Res. 2024-424; Res. 2017-257; Res. 2013-109].
2.40.180 Nonwaiver of sovereign immunity.
Nothing in this chapter shall be deemed to constitute a waiver by the Tulalip Tribes of its sovereign immunity for any reason whatsoever. [Res. 2013-109].
2.40.190 Severability and construction.
(a) All factors incident to the activities authorized in this chapter shall be closely controlled by the Tribes and the provisions of this chapter shall be liberally construed to achieve such end.
(b) If any clause, part or section of this chapter be adjudged invalid, such judgment shall not affect or invalidate the remainder of this chapter, but shall be confined in its operation to the clause, part or section directly involved in the controversy in which such judgment is rendered. If the operation of any clause, part or section of this chapter shall be held to be unconstitutional or otherwise invalid, it is hereby declared that, had the invalidity of such clause, part or section been considered at the time of the enactment of this chapter, the remainder of this chapter would nevertheless have been adopted without such invalid clauses, parts or sections. [Res. 2013-109].
2.40.200 Creation of exclusion registry and dissemination of an exclusion list.
(1) An exclusion registry is hereby created to make publicly available a list of all individuals who have been excluded from the Tulalip Reservation by Tribal Court order.
(2) A list of all individuals who have been excluded from the Tulalip Reservation by Tribal Court order may, upon request, be provided to the departments of the Tribe or other Tulalip entities. [Res. 2023-255].