Oneida Business Committee (2019)

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

000000

PO Box 365 • Oneida, WI 54155‐0365

ONEIDA

Oneida‐nsn.gov

LEGISLATIVE OPERATING COMMITTEE MEETING AGENDA

Business Committee Conference Room-2nd Floor Norbert Hill Center

October 2, 2019

9:00 a.m.

Call to Order and Approval of the Agenda

II.

Minutes to be Approved

September 18, 2019 LOC Meeting Minutes (pg. 2)

III.

Current Business

1. Citations Law (pg. 4)

2. Curfew Law (pg. 26)

3. Pardon and Forgiveness Screening Committee Bylaws Amendments (pg. 64)

4. Oneida Gaming Commission Bylaws Amendments (pg. 96)

5. Southeastern Oneida Tribal Services (SEOTS) Advisory Board Bylaws Amendments

(pg. 125)

6. Oneida Nation Arts Board Bylaws Amendments (pg. 162)

7. Oneida Nation School Board Bylaws Amendments (pg. 202)

8. Oneida Nation Commission on Aging (ONCOA) Bylaws Amendments (pg. 229)

9. Oneida Land Commission Bylaws Amendments (pg. 266)

IV.

New Submissions

1. Oneida Nation Arts Program – Dollars for Arts Project Policies Amendments (pg.

312)

Additions

VI.

Administrative Updates

VII.

Executive Session

VIII. Recess/Adjourn

A good mind. A good heart. A strong fire.

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

OODDDD=

PO Box 365 • Oneida, WI 54155‐0365

ONEIDA

Oneida‐nsn.gov

LEGISLATIVE OPERATING COMMITTEE MEETING MINUTES

Oneida Business Committee Conference Room-2nd Floor Norbert Hill Center

September 18, 2019

9:00 a.m.

Present: David P. Jordan, Ernest Stevens III, Jennifer Webster, Daniel Guzman King

Excused: Kirby Metoxen

Others Present: Brandon Wisneski, Clorissa Santiago, Jennifer Falck, Kristen Hooker, Lisa

Liggins, Hon. Layatalati Hill, Hon. Denise Beans, JoAnne House, Ralinda Ninham-Lamberies,

Jameson Wilson.

Call to Order and Approval of the Agenda

David P. Jordan called the September 18, 2019, Legislative Operating Committee meeting

to order at 9:03 a.m.

Motion by Daniel Guzman King to adopt the agenda; seconded by Jennifer Webster.

Motion carried unanimously.

II.

Minutes to be Approved

Motion by Jennifer Webster to approve the September 04, 2019, Legislative Operating

Committee meeting minutes and forward to the Business Committee for consideration;

seconded by Ernest Stevens III. Motion carried unanimously.

III.

Current Business

1. Child Support Amendments (1:53-5:31)

Motion by Jennifer Webster to approve the updated draft and legislative analysis;

seconded by Ernest Stevens III. Motion carried unanimously.

Motion by Ernest Stevens III to approve public meeting and forward to the Child

Support law to a public meeting to be held on October 17, 2019; seconded by Jennifer

Webster. Motion carried unanimously.

2. Oneida Police Commission Bylaws Amendments (5:33-13:56)

Motion by Jennifer Webster to accept the Police Commission Bylaws Amendments

and forward to the Oneida Business Committee for consideration; seconded by Daniel

Guzman King. Motion carried unanimously.

3. Anna John Resident Centered Care Community Board Bylaws Amendments

(13:58-18:45)

Motion by Ernest Stevens III to accept the Anna John Resident Centered Care

Community Board Bylaws Amendments and forward to the Oneida Business

A good mind. A good heart. A strong fire.

Legislative Operating Committee Meeting Minutes of September 18, 2019

Page 1 of 2

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Committee for consideration; seconded by Jennifer Webster. Motion carried

unanimously.

4. Oneida Election Board Bylaws Amendments (18:47-20:12 )

Motion by Jennifer Webster to accept the Oneida Election Board Bylaws Amendments

and forward to the Oneida Business Committee for consideration; seconded by Daniel

Guzman King. Motion carried unanimously.

5. Oneida Community Library Boards Bylaws Amendments (20:15-23:05)

Motion by Jennifer Webster to accept the Library Board Bylaws Amendments and

forward to the Oneida Business Committee for consideration; seconded by Ernest

Stevens III. Motion carried unanimously.

6. Oneida Nation Veteran Affairs Committee (23:06-24:54)

Motion by Ernest Stevens III to accept the Oneida Nation Veteran Affairs Committee

Bylaws Amendments and forward to the Oneida Business Committee for

consideration; seconded by Daniel Guzman King. Motion carried unanimously.

7. Oneida Powwow Committee Bylaws Amendments (24:55-28:11)

Motion by Ernest Stevens III to accept the Powwow Committee Bylaws Amendments

and forward to the Oneida Business Committee for consideration; seconded by Daniel

Guzman King. Motion carried unanimously.

IV.

New Submissions

Additions

VI.

Administrative Items

1. Judiciary Law Rule No. 1 – Oneida Trial Court Rules (28:12-30:30)

Motion by Jennifer Webster to certify the Judiciary Law Rule No. 1 – Oneida Trial

Court Rules and forward to the Oneida Business Committee for consideration;

seconded by Daniel Guzman King. Motion carried unanimously.

VII.

Executive Session

VIII. Adjourn

Motion by Ernest Stevens III to adjourn the September 18, 2019, Legislative Operating

Committee meeting at 9:34 a.m.; seconded by Daniel Guzman King. Motion carried

unanimously.

Legislative Operating Committee Meeting Minutes of September 18, 2019

Page 2 of 2

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155‐0365

Oneida‐nsn.gov

Legislative Operating Committee

October 2, 2019

Citations Law

Submission Date: 5/15/19

LOC Sponsor: Jennifer Webster

Public Meeting: n/a

Emergency Enacted: n/a

Summary:

This item came to the LOC as a result of the development of the amendments to the

Domestic Animals law. The development of a Citations law will ensure that the Nation provides a

consistent process for handling citations of the Nation in order to ensure equal and fair treatment to all

persons who come before the Judiciary to have their citations resolved.

5/15/19 LOC: Motion by Jennifer Webster to add the Citations Law to the active files list with Jennifer

Webster as the sponsor; seconded by Kirby Metoxen. Abstained by Ernest Stevens III and

Daniel Guzman King. Motion carried.

5/21/19:

Work Meeting. Present: Clorissa N. Santiago, Brandon Wisneski, Jennifer Falck, Eric

Boulanger, Chad Wilson, Kelly McAndrews, Wes Martin, Tsyoslake House. The purpose of

this work meeting was to review and discuss the initial draft of the Citations law with the

departments and entities that are currently involved in the handling of citations. The Oneida

Law Office, Legal Resource Center, and Oneida Police Department provided suggestions and

recommendations to the LRO staff. LRO will update the draft.

5/23/19:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Ernest Stevens III, Jennifer Falck,

Clorissa N. Santiago, Brandon Wisneski, Kristen Hooker. The purpose of this work meeting

was to discuss and plan for how the LOC will collaborate with the Judiciary on the development

of this Law.

6/13/19:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Daniel Guzman

King, Ernest Stevens III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Destiny

Prendiville, Laura Laitinen-Warren. The purpose of this work meeting was to review the draft

of the Law, and for the LOC to provide input. The LOC provided the LRO with revisions to be

made to the law, and areas that should be researched. LOC also determined that the law should

not move forward until the Judiciary has been consulted.

8/6/19:

Work Meeting. Present: Clorissa N. Santiago, Brandon Wisneski, Eric Boulanger, Lisa

Skenandore, Patricia Degrand, Kristina Denny, Kelly McAndrews. The purpose of this work

meeting was to review the proposed draft of the Law to ensure that the processes and timelines

included are realistic and can be implemented successfully.

8/29/19:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Ernest Stevens III,

Daniel Guzman King, Clorissa N. Santiago, Brandon Wisneski. The purpose of this work

meeting was to review and discuss the proposed revisions to the draft of the Citations law based

on the comments collected from the Oneida Police Department, Oneida Law Office, and

Judiciary.

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Next Steps:

 Accept the draft of the Citations law and legislative analysis and defer to a work meeting for further

consideration.

,CJOOOOO

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Title 8. Judiciary - Chapter 807

Kayanl^sla Ol$=wa>

Laws of issues/matters

CITATIONS

807.1. Purpose and Policy

807.2. Adoption, Amendment, Repeal

807.3. Definitions

807.4. Commencement of a Citation Action

807.5. Stipulations

807.6. Hearing Procedure

807.1. Purpose and Policy

807.1-1. Purpose. The purpose of this law is to provide a process that governs all citations that fall

under the jurisdiction of the Oneida Nation.

807.1-2. Policy. It is the policy of the Nation to provide a consistent process for handling citations

of the Nation in order to ensure equal and fair treatment to all persons who come before the

Judiciary to have their citations resolved.

807.2. Adoption, Amendment, Repeal

807.2-1. This law was adopted by the Oneida Business Committee by resolution BC-__-__-__-__.

807.2-2. This law may be amended or repealed by the Oneida Business Committee and/or General

Tribal Council pursuant to the procedures set out in the Legislative Procedures Act.

807.2-3. Should a provision of this law or the application thereof to any person or circumstances

be held as invalid, such invalidity shall not affect other provisions of this law which are considered

to have legal force without the invalid portions.

807.2-4. In the event of a conflict between a provision of this law and a provision of another law,

the provisions of this law shall control.

807.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

807.3. Definitions

807.3-1. This section shall govern the definitions of words and phrases used within this law. All

words not defined herein shall be used in their ordinary and everyday sense.

(a) “Authorized attorney” means an attorney of the Nation who represents the department

or entity of the officer who issued the citation.

(b) “Citation” means a legal document that serves as a notice or summons to appear in a

court of the Nation in response to a charge against an individual of a violation of law.

divisions of the Nation’s Judiciary created by a law of the Nation which have been granted

jurisdiction to hear matters of citations.

(d) “Court of Appeals” means the branch of the Nation’s Judiciary delegated the authority

of final appeals within the Nation’s Judiciary, as authorized by Oneida General Tribal

Council resolution GTC-03-19-17-A.

(e) “Judiciary” means the Oneida Nation Judiciary, which is the judicial system that was

established by Oneida General Tribal Council resolution GTC-01-07-13-B, and then later

authorized to administer the judicial authorities and responsibilities of the Nation by

Oneida General Tribal Council resolution GTC-03-19-17-A.

(f) “Nation” means the Oneida Nation.

8. O.C. 807 – Page 1

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(g) “Officer” means an individual authorized by a law of the Nation to issue a citation for

a violation of said law.

807.4. Commencement of a Citation Action

807.4-1. Action. The issuance of a citation shall commence a civil action in the Judiciary for a

violation of a law of the Nation for the purpose of collecting a fine or penalty imposed by the law

in the name of the Nation.

807.4-2. Authority to Issue. An officer may issue a citation to any person he or she has reasonable

grounds to believe has committed a violation of a law of the Nation that expressly permits the

issuance of a citation.

807.4-3. Form of Citation. A citation shall contain the following information:

(a) The name of the officer who issued the citation.

(b) The name, address, and date of birth of the defendant.

(d) Information about the alleged violation including:

(1) the violation alleged;

(2) the law violated;

(3) the time and place of the occurrence of the violation; and

(4) a description of the violation.

(e) A notice to appear at a date, time and place for the citation pre-hearing, and a statement

as to whether the appearance at the pre-hearing is mandatory.

(f) Provisions for payment of citation and stipulation in lieu of an appearance in Court, if

applicable.

(g) Notice that if the defendant does not pay the citation or stipulate to an agreement prior

to the pre-hearing and fails to appear in Court at the time fixed in the citation or provide

written notice to the Court that he or she is contesting the citation, the Court may issue a

default judgment which may include any fine amount due, restitution and/or suspension of

any rights, privileges, or licensures, or any other penalty authorized by law.

(h) Notice that failure to satisfy a fine, restitution, or any other part of the judgment, may

result in per capita attachment, wage garnishment, revocation, suspension of any rights,

privileges, licensures, and/or any other action authorized by law and/or other collection

processes available to the Court.

(i) Any other relevant information.

807.4-4. Service of a Citation. The defendant is served with a citation when one of the following

occurs:

(a) Personal Service. The citation is provided to the defendant directly by the officer, or

a copy of the citation is left at the defendant’s home or usual place of abode by the officer:

(a) in the presence of a competent family member at least fourteen (14) years of

age who shall be informed of the contents of the citation; or

(b) in the presence of a competent adult who resides in the home or usual place of

abode of the defendant, who shall be informed of the contents of the citation.

(b) Mail Service. If personal service is not possible, and the defendant's address is known

or with reasonable diligence can be ascertained, then mail service may be used. For service

by mail, a copy of the citation may be delivered to the defendant’s last known address by

certified mail with return receipt. The certified mail return receipt shall be signed by the

defendant or a competent family member at least fourteen (14) years of age or an adult who

resides in the home of the defendant.

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(1) The certified mail return receipt shall be filed with the Court as proof of service.

service were not possible, then service may be completed by publication as a last resort.

The publication shall be in the Nation’s newspaper and shall be designated as “Legal

Notice.” The department of the officer and/or authorized attorney shall publish this notice

at least two (2) times within a thirty (30) day period. The two (2) notices shall be published

a minimum of ten (10) days before the citation pre-hearing.

(1) Copies of the two (2) published notices and written report stating the facts

surrounding the failure of personal and mail service shall be filed with the Court as

proof of service.

(2) If service by publication is required and there is insufficient time for proper

service before the pre-hearing, the Court may, on its own, order different time limits

for service by publication and/or re-schedule the pre-hearing appropriately in order

to provide for fair notice and opportunity for the defendant to respond.

(3) The Court may order the defendant to reimburse the department of the officer

and/or the authorized attorney for any costs incurred from service by publication.

807.4-5. Filing of a Citation. Absent exigent circumstances, the department of the officer who

issued the citation shall file the citation with the Court along with any applicable proof of service

at least thirty (30) days prior to the date of the pre-hearing.

(a) Citations may be filed in person or electronically transmitted to the Court. Citations

that are electronically transmitted to the Court are deemed filed upon confirmation of

receipt by the Clerk of Court assigned to the branch of the Judiciary that will hear the

citation.

(b) After filing the citation with the Court, the department of the officer who issued the

citation shall forward the citation and all relevant accompanying information to the

authorized attorney. Relevant information to accompany the citation may include, but is

not limited to, a narrative by the officer and/or history of violations by the defendant.

304.4-6. Amendments to the Citation. A citation may be amended by an officer or the authorized

attorney prior to the citation pre-hearing. A copy of the amended citation shall be provided to the

defendant in accordance with section 807.4-4, and filed with the Court, at least five (5) days before

the citation pre-hearing. After the hearing, the citation may only be amended at the discretion of

the Court, upon notice to the parties and an opportunity to be heard.

807.5. Stipulations

807.5-1. Authority for Stipulations and Case Settlement. An authorized attorney of the Nation is

granted the discretion to seek the settlement of a citation.

(a) When seeking to enter into a stipulation the authorized attorney shall explain to the

defendant all provisions included in the stipulation as required by section 807.5-2(a)-(d).

807.5-2. Form of Stipulation. Any stipulation between an authorized attorney and the defendant

shall be in writing and signed. The stipulation shall include the following:

(a) A summary of the citation violation information included on the citation;

(b) The details of the stipulation including any fine, penalty, condition, or payment plan

the defendant shall comply with;

she committed the act for which the citation was issued or is entering a plea of no contest

and thereby waives his or her right to contest the citation with the Court; and

(d) A statement that all parties signed the agreement free of duress and coercion.

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807.5-3. Submission of the Stipulation to the Court. If the authorized attorney and defendant reach

an agreement through the stipulation, the stipulation shall be submitted to the Court for the Court’s

approval.

(a) If the Court enters an order approving the stipulation as written, a copy of the order

shall be provided to the authorized attorney and defendant.

(b) If the Court does not enter an order approving the stipulation as written or requests

clarification, the Court shall schedule the matter for a hearing. The Court shall provide the

authorized attorney and defendant notice of the hearing date and written explanation as to

why the Court did not approve the stipulation of the parties.

807.5-4. If the authorized attorney and defendant do not reach an agreement as to a stipulation,

then the parties shall proceed with the citation hearing process.

807.5-5. Compliance with a stipulation shall be monitored by the authorized attorney. The

authorized attorney may file a motion with the Court to enforce the terms of a stipulation or file a

motion for contempt if the defendant is non-compliant with the terms of the stipulation.

807.6. Hearing Procedure

807.6-1. Citation Pre-Hearing. All citations shall include a pre-hearing date with the Court which

shall be set at least thirty (30) days after the citation was issued, unless stated otherwise by a law

of the Nation.

(a) Appearance at the pre-hearing shall be mandatory only when a law, policy, rule, or

resolution of the Nation requires a mandatory appearance for that specific violation of law.

(b) If an appearance is not mandatory, and a person does not wish to contest the citation,

a person may pay the fine and/or penalty as listed on the citation prior to the pre-hearing

date.

(1) If the person pays the fine and/or penalty as listed on the citation prior to the

pre-hearing date the citation shall be considered satisfied.

in one (1) of the following manners:

(1) appear at the pre-hearing to contest the citation; or

(2) if an appearance is not mandatory, send written notice to the Court, with a copy

to the Oneida Law Office, prior to the pre-hearing notifying the Court that the

defendant wishes to contest the citation.

(d) At the pre-hearing the Court shall accept pleas which either contest or admit committing

the act for which the citation was issued, or a plea of no contest.

(1) If the defendant admits committing the act for which the citation was issued

the Court shall provide a statement that by admitting that he or she committed the

act for which the citation was issued the defendant thereby waives his or her right

to contest the citation with the Court. The Court shall obtain an affirmative

acknowledgment from the defendant of that waiver of rights.

(e) In addition to scheduling requested hearings, the Court may also make conditional

orders at the pre-hearing which are effective until the matter is resolved.

(f) If a defendant does not appear at the pre-hearing or submit written notice that he or she

is contesting the citation when there is a non-mandatory appearance, and the defendant has

not entered into a stipulation or paid the fine and/or penalty as listed on the citation, the

Court may proceed to enter a default judgment.

(1) A default judgment may include any fine amount due, restitution, suspension

of any rights, privileges, or licensures, and/or any other penalty authorized by law.

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(2) Unless otherwise noted by the Court, a defendant shall have ninety (90) days

to satisfy a default judgment by paying any fine and/or complying with any

condition or penalty ordered.

807.6-2. Citation Hearing. For all persons entering a plea contesting the fact that he or she

committed the act for which a citation was issued, the Court shall schedule a hearing as

expeditiously as possible, provided that it shall be scheduled within ninety (90) days of the date of

the pre-hearing when possible.

(a) The burden of proof at the citation hearing shall be by clear and convincing evidence.

(b) As a result of the citation hearing the Court may issue an order which includes a

determination as to the underlying violation of law as well as any fine amount, restitution,

suspension of any rights, privileges, or licensures, and/or any other penalty as authorized

by law.

punishment for contempt of court which may include fines, revocation and/or suspension

of any rights, privileges, licensures, or any other action authorized by law.

(d) The defendant’s failure to satisfy a fine and/or restitution may result in per capita

attachment, wage garnishment and/or other collection processes available to the Court.

807.6-3. Appeals of the Court’s Determinations. Any person wishing to contest the determination

of the Court may appeal to the Nation’s Court of Appeals in accordance with the Rules of Appellate

Procedure.

End.

Adopted – BC-__-__-__-__

8. O.C. 807 – Page 5

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Kayanl^sla Ol$=wa>

CITATIONS LAW

LEGISLATIVE ANALYSIS

SECTION 1. EXECUTIVE SUMMARY

REQUESTER:

LOC

Intent of the

Proposed Law

Purpose

Affected Entities

Related Legislation

Public Meeting

Fiscal Impact

SPONSOR:

DRAFTER:

ANALYST:

Jennifer Webster

Clorissa N. Santiago

Brandon Wisneski

To establish a consistent process for citations issued for violations of laws of the

Nation, including:

- What must appear on a citation form;

- How a citation must be served;

- A process for entering into stipulation agreements to settle citations;

- A process for how individuals can contest their citations in court; and

- Timelines and procedures for citation hearings.

To provide a process that governs all citations that fall under the jurisdiction of the

Oneida Nation [8 O.C. 807.1-1].

Any person issued a citation under the laws of the Nation; Agencies responsible for

enforcement and issuing citations under the laws of the Nation (Oneida Police

Department, Conservation Wardens, Oneida Environmental Health Safety and

Land Division, Licensing Department), the Nation’s Judiciary, Oneida Law Office,

Oneida Utilities Department, and Oneida Land Commission.

Domestic Animals law; Hunting, Fishing and Trapping law; All-Terrain Vehicle

law; Public Use of Tribal Land law; Recycling and Solid Waste Disposal law;

Tribal Environmental Response law; Well Abandonment law; Onsite Waste

Disposal Ordinance; Water Resources law; Emergency Management and

Homeland Security law; Tobacco law; Oneida Food Service Code; Tattoo and Body

Piercing law; Notary Act; Non Metallic Mine Reclamation law; Zoning and

Shoreland Protection law; Marriage law, Sanitation Ordinance, Rules of Civil

Procedure; Rules of Appellate Procedure, Judiciary Law Rule No. 1 – Oneida Trial

Court Rules.

A public meeting has not yet been held.

A fiscal impact statement has not yet been requested.

SECTION 2. LEGISLATIVE DEVELOPMENT

A. The Oneida Nation exercises its sovereignty through the enactment and enforcement of its own laws.

These laws cover a variety of topics, including health and public safety, environmental and natural

resources, property and land, and many others. When a person violates a law of the Nation, many laws

authorize the Nation to enforce that law through the issuance of citations, fines and penalties. However,

many of the Nation’s laws do not include a uniform process for what happens after a citation is issued.

This has led to implementation issues for departments involved in the citation process.

B. During development of the Domestic Animals law amendments, the LOC worked collaboratively with

several of the Nation’s departments. During this process, the need to develop a more detailed process

for the issuance and processing of citations was discussed. Rather than add a detailed process only to

the Domestic Animals law, the LOC decided to begin drafting a new Citations law that can apply to

violations of all laws of the Nation that allow for citations.

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C. The LOC added the proposed Citations law to the Active Files List on May 15, 2019. Since that time,

a work group of representatives from Oneida Police Department, Environmental Resource Board,

Oneida Law Office and Oneida Legal Resource Center met to work on the proposed law.

D. This proposed law applies only to citations issued by the Nation for violations of the Nation’s laws.

Officers of the Oneida Police Department are cross-deputized by the Brown County Sheriff’s

Department and also have the authority to issue citations for violation of state laws that may be heard

in Wisconsin Circuit Courts (for example, violations for operating while intoxicated).

SECTION 3. CONSULTATION AND OUTREACH

A. Representatives from the following departments or entities participated in the development of this law

and legislative analysis: Oneida Police Department, Oneida Law Office, Oneida Judiciary, Oneida

Legal Resource Center, and Oneida Environmental Resource Board.

B. The following laws were reviewed in the drafting of this analysis: Domestic Animals law; Hunting,

Fishing and Trapping law; All-Terrain Vehicle law; Public Use of Tribal Land law; Recycling and

Solid Waste Disposal law; Tribal Environmental Response law; Well Abandonment law; Onsite Waste

Disposal Ordinance; Water Resources law; Emergency Management and Homeland Security law;

Tobacco law; Oneida Food Service Code; Tattoo and Body Piercing law; Notary Act; Non Metallic

Mine Reclamation law; Zoning and Shoreland Protection law; Motor Vehicle Registration law;

Marriage law; Sanitation Ordinance; Clean Air Policy; Alcohol Beverage Licensing law; Oneida

Woodcutting Ordinance; Building Code law; Rules of Civil Procedure; Rules of Appellate Procedure,

and Judiciary Law Rule No 1 – Oneida Trial Court Rules.

SECTION 4. PROCESS

A. Thus far, amendments to this law have followed the process set forth in the Legislative Procedures Act

(LPA).

B. The law was added to the Active Files List on May 15, 2019.

C. The following work meetings were held regarding the development of this law and legislative analysis:

 May 21, 2019: Work meeting with Oneida Police Department, Oneida Law Office, Environmental

Resource Board and Legal Resource Center.

 May 23, 2019: Work meeting with LOC.

 June 13, 2019: Work meeting with LOC.

 August 6, 2019: Work meeting with Oneida Police Department, Oneida Law Office and Oneida

Judiciary clerks.

 August 29, 2019: Work meeting with LOC.

SECTION 5. CONTENTS OF THE LEGISLATION

A. Commencement of a Citation Action.

 What is a Citation? A citation is a “legal document that services as a notice or summons to appear

in a court of the Nation in response to a charge against an individual of a violation of law” [8 O.C.

807.3-1(b)]. The issuance of a citation begins a civil action in the Judiciary for violating a law of

the Nation for the purpose of collecting a fine or penalty imposed by the law [8 O.C. 807.4-1].

 Authority to Issue. An officer may issue a citation to any person he or she has reasonable grounds

to believe has committed a violation of a law of the Nation. For the purposes of this law, an “officer”

is defined as “any individual authorized by a law of the Nation to issue a citation for a violation of

said law” [8 O.C. 807.3-1(g)].

o For most laws of the Nation, the individual authorized to issue a citation is an officer of the

Oneida Police Department or a Conservation Warden.

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B. Form of Citation. This law creates a standard list of information that must be included on a citation

form when it is issued. These requirements match the information included on the current citation form

used by the Nation [8 O.C. 807.4-3].

 Identifying Information:

o Name of the officer who issued citation;

o Name, address, and date of birth of the defendant. Enrollment number and/or license

number of the defendant, if applicable.

 Information About the Alleged Violation:

o The violation alleged, the law violated, the time and place of the violation, and a description

of the violation.

 Court Hearing & Fine Information:

o A notice of when and where to appear at a citation pre-hearing and whether the pre-hearing

is mandatory;

o Provisions for payment of citation and stipulation in lieu of an appearance in Court, if

applicable. In other words, the option for individuals to pay their fine without having to

make a court appearance;

o Notice that if the defendant does not pay the citation or stipulate an agreement prior to the

pre-hearing and fails to appear in Court at the time listed on the citation, the Court may

issue a default judgment which may include any fine amount due, restitution and/or

suspension of any rights, privileges, or licensures, or any other penalty authorized by law;

o Notice that failure to satisfy a fine, restitution, or any other party of the judgment may

result in per capita attachment, wage garnishment, revocation, suspension of any rights,

privileges, licensures, and/or any other action authorized by law and/or other collection

processes available to the court.

Current Oneida Nation Citation Form – Front

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Current Oneida Nation Citation Form – Back

C. Service of a Citation. When an officer issues a citation, the citation must be “served” on the individual

alleged to have violated the law [8 O.C. 807.4-4].

 Personal Service. An officer must first attempt to personally serve the citation on the defendant

(i.e. hand the citation to the defendant) or leave a copy of the citation at the defendant’s home in

the presence of a competent family member at least fourteen (14) years of age or an adult who

resides in the home of the defendant.

o Why age 14? In the state of Wisconsin, a service of summons may be left in the presence

of a competent family member at least fourteen (14) years of age if, with reasonable due

diligence, the defendant cannot be personally served [Wis. Stats 801.11]. This provision is

modeled after WI statutes.

 Mail Service. If personal service is not possible and the defendant’s address can be determined,

then mail service may be used. For service by mail, a copy of the citation may be delivered to the

defendant’s last known address by certified mail with return receipt. The certified mail return

receipt will be signed by the defendant or competent family member at least fourteen (14) years of

age or an adult who resides in the home of the defendant. The certified mail return receipt will be

filed with the Court as proof of service.

 Service by Publication. As a last resort, after a showing of due diligence that personal and mail

service are not possible, then service may be completed by publication in the Nation’s newspaper

(the Kalihwisaks). The notice must be published at least two (2) times within a 30-day period. The

notices must be published at least ten (10) days before the citation pre-hearing.

 Filing a Citation. The department of the officer who issued the citation must file the citation with

the Court along with proof of service, if applicable, at least thirty (30) days prior to the date of the

pre-hearing. Citations may be filed in person or electronically transmitted [8 O.C. 807.4-5].

o Amendments to Citations. A citation may be amended by an officer or the authorized

attorney prior to the citation pre-hearing. A copy of the amended citation must be provided

to the defendant at least five (5) days prior to the citation pre-hearing.

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Chart 1. Service of a Citation.

An individual

violates a law of the

Nation

PERSONAL

SERVICE

Personal Service not

possible or

defendant’s address

cannot be

determined

Officer authorized

by law to issue a

citation for the

violation

Citation personally served on

defendant or left at the

defendant’s home in presence of

competent family member

MAIL SERVICE

Mail service not

possible

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Officer writes the

citation

Copy of citation delivered

to defendant’s last known

address by certified mail

with return receipt

SERVICE BY

PUBLICATION

Return receipt filed

with court as proof

of service

May only be

used as last

resort

Notice published in Nation’s

newspaper (at least twice within

a 30‐day period and at least 10

days before the pre‐hearing

date)

D. Stipulations. An authorized attorney of the Nation is granted the discretion to seek the settlement of

the citation. This means that the Nation and the defendant can agree to a lower fine amount or other

condition to settle the case [8 O.C. 807.5].

 Who is an Authorized Attorney of the Nation? An attorney of the Nation who represents the

department or entity of the officer who issued the citation, such as the attorney for the Oneida Police

Department [8 O.C. 807.3-1]. Attorneys of the Nation work in the Oneida Law Office.

 Form of Stipulation. The stipulation, or agreement, between the Nation’s attorney and defendant

must be in writing, signed by both parties, and include the following information:

o A summary of the violation that resulted in the citation,

o The details of the stipulation including any fine, penalty, condition or payment plan the

defendant must comply with,

o A statement that the defendant admits that he or she committed the act or is entering a plea

of no contest and waives his or her right to contest the citation in Court; and

o A statement that all parties signed the agreement free of duress and coercion.

 Current Practice. It is the Nation’s current practice to offer stipulations to defendants for violations

of the Nation’s Domestic Animals law. Stipulations typically involve the Nation lowering a fine

amount. Currently, this practice is not outlined in detail in any law of the Nation.

o Comparison to State of WI. For cases in Wisconsin circuit court, stipulations are typically

handled by the prosecutor’s office. Oneida Nation does not have a prosecutor or exercise

criminal jurisdiction, so in this instance, the Nation is represented by an attorney of the

Law office who assumes these responsibilities for violations the Nation’s civil laws.

 Effect. Although offering stipulations is the current practice of the Nation, placing the process in

the law will formally establish this authority for the authorized attorneys of the Nation.

E. Citation Pre-Hearing. All citations will include a pre-hearing date with the Court which will be set at

least thirty (30) days after the citation was issued, unless stated otherwise by a law of the Nation [8

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O.C. 807.6-1]. The Judiciary’s current practice is to hold citation pre-hearings on the third Thursday of

each month.

 Mandatory Appearance. Appearance at a pre-hearing is only mandatory when a law, policy, rule

or resolution of a Nation requires a mandatory appearance for that specific violation of the law.

Most violations of the Nation’s laws do not require a mandatory appearance.

o Example: The Domestic Animals law fine, penalty and licensing fee schedule requires a

mandatory court appearance for mistreatment of animals [BC Resolution 05-08-19-D].

 Paying Fine or Penalty. If an appearance is not mandatory and the individual does not want to

contest (or challenge) the citation, the individual may pay the fine or penalty listed on the citation

before the pre-hearing date and the citation will be considered satisfied.

 Contesting a Citation. If an individual wants to contest their citation, that person can appear at the

pre-hearing to contest the citation. If an appearance at the pre-hearing isn’t mandatory, that

individual can also send a written notice to the Court with a copy to the Law Office notifying the

court that they wish to contest the citation.

 Default Judgment. If the defendant does not pay their fine or enter into a stipulation before their

pre-hearing date and fails to appear at their pre-hearing or provide notice to the court, then the court

may enter a default judgment against the defendant. In other words, if a defendant “ignores” their

citation, the court can automatically find them guilty of the violation.

o Consequences. A default judgment can include the fine amount due, restitution, suspension

of rights, privileges and licenses, or any other penalty authorized by laws of the Nation.

F. Citation Hearing. If a defendant contests that they committed the violation that resulted in the citation,

then the Court will schedule a hearing within ninety (90) days of the pre-hearing date. In other words,

if the defendant argues that they did not commit the violation or that the citation was issued

inappropriately, the defendant has an opportunity to challenge their citation at a court hearing [8 O.C.

807.6-2].

 Burden of Proof. The burden of proof at a citation hearing is “clear and convincing evidence.” This

means that the Nation must provide evidence “indicating that the [allegation] to be proved is highly

probably or reasonably certain” [see Black’s Law Dictionary].

o Current Standard of Proof. The Nation’s Rules of Civil Procedure state that the standard

of proof for all matters to be decided by the Court shall be proven by a “preponderance of

the evidence” standard, unless specified otherwise [8 O.C. 803.4-8]. “Preponderance of

the evidence” is the burden of proof in most civil trials and means that there is sufficient

evidence that there is a greater than 50% chance that the claim is true [see Black’s Law

Dictionary].

o Effect. This law sets a higher burden of proof than the Judiciary is currently using for

citation hearings under the laws of the Nation. This means that the Nation and its agencies

(represented by its authorized attorney) will have to meet this higher burden of proof when

a citation is challenged by a defendant. This will only apply to citation hearings. All other

hearings of the court will utilize the “clear and convincing evidence” standard unless

otherwise noted in another law of the Nation.

 Appeals. Anyone who wishes to appeal a judgment of the court may appeal to the Nation’s Court

of Appeals in accordance with the Rules of Appellate Procedure.

o The Rules of Appellate Procedure state that a notice of appeal must be filed within thirty

(30) days after the Trial Court’s order is rendered [8 O.C. 805.5].

SECTION 6. EXISTING LEGISLATION

A. Which Laws of the Nation will this New Citations Process Apply to? Many laws of the Nation authorize

citations, fines or forfeitures for violations. The intent of the proposed Citations law is to establish a uniform

process that can apply to all of these laws without conflict. Some of these laws were updated after the

creation of the Nation’s Judiciary and conform cleanly with the process in this proposed Citations Law.

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However, other laws are decades-old and conform less clearly due to changes in drafting style and the

Nation’s organizational structure over the years. The following charts provide a summary of all of the

Nation’s laws that authorize citations, fines, forfeitures or penalties and whether the proposed Citations law

will apply.

 Laws that Authorize Citations & Include Judiciary Appeals Process with Timelines. The

following laws of the Nation specifically authorize the issuance of citations and included a process

for contesting citations in the Judiciary Trial Court with required timelines for citations hearings.

The proposed Citations law conforms with these timeframes and adds additional process and

requirements.

o Conclusion: The proposed Citations will apply to any citations issued under the following

laws of the Nation:

Chart 2. Oneida Laws that Authorize Citations & Include Judiciary Appeals Process.

Chapter

Law

Authority to Enforce

Example Violation

304

Domestic Animals

Oneida Police

Dangerous

Animal,

Department and Oneida

prohibited animal, animal

Conservation

running at large.

406

Hunting,

Fishing Oneida Police

Failure possess license;

and Trapping

Department and Oneida

Failure to tag, Unlawfully

Conservation

hunting/shooting from a

vehicle.

Operating

all-terrain

410

All Terrain Vehicle Oneida Police

vehicle in a careless

Department and Oneida

manner,

private

Conservation

property without consent,

on tribal lands without

consent

609

Public Use of

Oneida Police

Trespassing.

Tribal Land

Department and Oneida

Conservation

308

Curfew (proposed)

Oneida Police

Minor violating curfew

(proposed)

Department (proposed)



Laws that Authorize “Fines, Penalties and Forfeitures” and Include Judiciary Appeals Process

with Timelines. The following laws of the Nation authorize “fines, penalties or forfeitures” and

include a process for contesting citations in the Judiciary Trial Court with required timelines for

citation hearings. The proposed Citations law conforms with these timeframes and adds additional

process and requirements.

o Conclusion: The proposed Citations appears to apply to any citations issued under the

following laws of the Nation.

Chart 3. Laws that Authorize Fines and Include Judiciary Appeals Process w/Timelines.

Chapter Law

Authority to Enforce

Example Violation

401

Tribal

Environmental Health,

Violating a compliance

Environmental

Safety and Land Division order issued by Division

Response Law

for discharging hazardous

substance.

Failure to comply within

404

Well Abandonment

Environmental Health,

Law

Safety and Land Division ten (10) days of written

notice of violation.

(inferred)

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

407

Onsite Waste

Disposal Ordinance

409

Water Resources

Environmental Health,

Safety and Land Division

(“Environmental

Specialist”)

Oneida Conservation

Failure to correct on-site

waste disposal system,

constituting threat to

public health.

Failure to report

discharging substance to

waters of reservation.

Laws that Authorize Citations and Do Not Include Judiciary Appeals Process. The following

laws of the Nation specifically authorize citations but do not specify a process or timeframe for

how citations may be contested in the Judiciary. The process and timeframes included in the

Citations law will now apply to any citations issued under these laws.

o Conclusion: The proposed Citations law will apply to any citations issued under the

following law of the Nation:

Chart 4. Oneida Laws that Authorize Citations and Do Not Include Judiciary Appeals Process.

Chapter

Law

Authority to Enforce

Example Violation

Improperly dumping solid

405

Recycling and Solid Oneida Police

waste within reservation

Waste Disposal*

Department and Oneida

Conservation

boundaries

*The Recycling and Solid Waste Disposal Law is currently on the LOC’s Active Files List

for amendments.



Laws that Authorize “Fines, Penalties and Forfeitures” and Include Judiciary Appeals Process

without Timelines. The following laws of the Nation authorize “fines, penalties or forfeitures” and

state that appeals may be filed with the Judiciary, but do not specify a process or timeframe for

how those appeals will be handled. It appears that the process and timeframes included in the

Citations law will likely apply to any citations issued under these laws.

o Conclusion: The proposed Citations appears to apply to any citations issued under the

following laws of the Nation:

Chart 5. Oneida Laws that Authorize Fines and Include Judiciary Appeals Process w/o Timelines

Chapter Law

Authority to Enforce

Example Violation

Oneida Police

Willfully obstruct, hinder

302

Emergency

Department

or delay the

Management and

implementation of

Homeland Security

emergency response.

115

Tobacco

Oneida Police

Selling tobacco products

Department

in violation of the law.

305

Oneida Food

Environmental Health,

Selling food or food

Service Code*

Safety and Land Division products on tribal

and Licensing.

property without a

license.

306

Tattoo and Body

Environmental Health,

Performing tattooing or

Piercing

Safety and Land Division body piercing without a

and Licensing.

license.

701

Marriage

Licensing Department

False statement to obtain

a marriage license.

*The Oneida Food Service Code is currently on the LOC’s Active Files List for amendments.

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

Laws that Authorize “Fines, Penalties and Forfeitures” and Do Not Include Judiciary Appeals

Process. The following laws of the Nation authorize “fines, penalties and forfeitures” but do not

specify a process or timeframe for how citations may be contested in the Judiciary. It appears that

the process and timeframes included in the Citations law will likely apply to any citations issued

under these laws.

o Conclusion: The proposed Citations law appears to apply to any citations issued under the

following laws of the Nation:

Chart 6. Oneida Laws that Authorize Fines and Do Not Include Judiciary Appeals Process.

Chapter

Law

Authority to Enforce

Example Violation

114

Notary Act

Official designated by

Impersonating a notary

Oneida Business

public.

Committee

408

Sanitation

Utilities Department

Continuing Violations

Ordinance



Laws that Authorize Citations but include Land Commission Appeals Process. The following

laws of the Nation authorize citations, but direct that any appeals be filed with the Land

Commission rather than the Nation’s Judiciary.

o Conclusion: The proposed Citations law conflicts with the following laws. The identified

conflicts must be resolved before it can be determined whether the Citations law will apply

to citations issued under the following laws of the Nation:

Chart 7. Oneida Laws that Authorize Citations and Conflict with Proposed Citations Law

Chapter Law

Authority to Enforce

Example Violation

402

Non Metallic Mine

Environmental

Health, Violating an order

Reclamation

Safety and Land Division requiring an operator to

comply with the law.

or designee

605

Zoning and

Zoning Administrator.

Public Nuisance. Failure

Shoreland

to obtain land use permit

Protection

or conditional use permit.



Laws that include Penalties but Do Not Fall Under Proposed Citations law. The following laws

of the Nation authorize various alternative penalties for violations of the law, but do not include a

citation process or Judiciary appeals process. It can be reasonably concluded that the following

laws would not fall under the jurisdiction of the proposed Citations law as currently drafted.

o Conclusion: The proposed Citations law does not appear to apply to penalties issued under

the following laws.

Chart 8. Oneida Nation Laws with Other Penalties Where Citations Law Does Not Apply.

Chapter Law

505

Motor Vehicle Registration

411

Clean Air Policy

507

Alcohol Beverage Licensing Law

403

Oneida Woodcutting Ordinance

602

Leasing Law

603

Building Code

265

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B. Laws of the Nation that Conflict with the Proposed Citations Law. The following laws of the Nation

authorize citations but conflict with the proposed Citations law.

 Zoning and Shoreland Protection law [6 O.C. 605]

o Purpose. The purpose of the Zoning and Shoreland Protection law includes establish a

zoning plan for tribal lands, regulate the use of lands and buildings and provide for the

administration and enforcement of this law, among other purposes [3 O.C. 304.1-1].

o Enforcement. Any person who violates any provision of this law, or who shall take any

action on or with respect to any land or structure which is not in compliance with this law,

shall be guilty of a civil infraction and shall be issued a fine in accordance with the schedule

adopted by the Oneida Business Committee upon recommendation of the Land

Commission.

o Appeals. Any person issued a fine under this law may contest the fine by attending a

hearing before the Land Commission. The fine shall specify the date, time and place of the

hearing. The hearing shall take place at least five (5) days after the fine is issued. After the

hearing, the Land Commission shall determine whether the person is responsible for the

fine, as was issued by the Zoning Administrator and may set a new date for when the fine

shall be paid.

o Conclusion. The proposed Citations law conflicts with the enforcement provisions in the

Zoning and Shoreland Protection law. The proposed Citations law states that citation

hearings shall be heard in the Oneida Judiciary, while the Zoning and Shoreland Protection

law states that fines issued under that law must be contested at a hearing of the Oneida

Land Commission.

 Non Metallic Mine Reclamation law [4 O.C. 406]

o Purpose. The purpose of the Non-Metallic Mine Reclamation law is to ensure the effective

reclamation of nonmetallic mining sites on which nonmetallic mining takes place within

the boundaries o the reservation [4 O.C. 402.1-1].

o Enforcement. The Oneida Zoning Department or designee may issue a citation to collect

fines to enforce this law, a permit issued pursuant to this law or a reclamation plan approved

under this law.

o Appeals. A person who is subject to a citation issued pursuant to this section shall have

sixty (60) days to either appeal the citation to the Land Commission or review or pay the

fine.

o Conclusion. The proposed Citations law conflicts with the enforcement provisions in the

Non Metallic Mine Reclamation law. The proposed Citations law states that citations

hearings shall be heard in the Oneida Judiciary, while the Non Metallic Mine Reclamation

Law states that appeals shall be heard by the Land Commission.

C. Laws of the Nation that Authorize Citations. The following laws of the Nation authorize citations, fines

or forfeitures and do not conflict with the proposed Citations law. The provisions of the proposed

Citations law will likely apply to citations issued under any of the following laws:

 Domestic Animals law [3 O.C. 304]

o Purpose. The purpose of the Domestic Animals law is to protect the health, safety, and

welfare of the community set minimum standards for treatment of animals; prohibit certain

species of animals from being brought on the reservation; regulate the keeping of livestock

on lots zoned residential, and establish consequences for damages caused by domestic

animals [3 O.C. 304.1-1].

o Enforcement. The Oneida Police Department and Oneida Conservation Wardens have the

authority to issue citations according to the fine and penalty scheduled developed in

accordance with the Domestic Animals law.

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Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Domestic Animals law. The new requirements of the proposed Citations law will

now apply to any citations issued under the Domestic Animals law.

Hunting, Fishing and Trapping law [4 O.C. 406]

o Purpose. The purpose of the Hunting, Fishing and Trapping law is to protect and conserve

wildlife on the reservation and to promote respect among sportsmen and the environment

[4 O.C. 406.1-1].

o Enforcement. The Oneida Police Department and Oneida Conservation Wardens may issue

citations to any person found in violation of the law or corresponding rules. [4 O.C. 406.54 and 406.10].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Hunting, Fishing and Trapping law. The new requirements of the proposed Citations

law will now apply to any citations issued under the Hunting, Fishing and Trapping law.

All-Terrain Vehicle law [4 O.C. 410]

o Purpose. The purpose of the All-Terrain Vehicle law is to govern the safe use of all-terrain

vehicles within the jurisdiction of the Oneida Reservation to allow enforcement for

protection of the community members and environment [4 O.C. 410.1-1].

o Enforcement. The Oneida Police Department and Oneida Conservation Wardens are

authorized to enforce and take any appropriate action to prevent or remove a violation of

this law. Citations for violations of this law and/or orders issued pursuant to this law

include sanctions, fines and penalties in accordance with the fine schedule developed in

accordance with the law [4 O.C. 410.6 and 410.7].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the All-Terrain Vehicle law. The new requirements of the proposed Citations law will

now apply to any citations issued under the All-Terrain Vehicle law.

Public Use of Tribal Land law [6 O.C. 609]

o Purpose. The purpose of the Public Use of Tribal Land law is to prevent improper access,

use and trespass to tribal lands [6 O.C. 609.1-1].

o Enforcement. The Oneida Police Department and Oneida Conservation Wardens are

authorized to take any appropriate action to prevent or remove a violation of this law.

Citations for violation of this law may include fines, penalties and other orders in

accordance with the citation schedule applicable to this law [6 O.C. 609.7].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Public Use of Tribal Land law. The new requirements of the proposed Citations law

will now apply to any citations issued under the Public Use of Tribal Land law.

Recycling and Solid Waste Disposal law [4 O.C. 405]

o Purpose. The purpose of the Recycling and Solid Waste Disposal law is to promote the

health, safety and welfare of residents and members of the Oneida Nation through the

establishment of standards necessary to the sanitary and environmentally sound disposal

of recyclable materials [4 O.C. 405.1-1].

o Enforcement. All Oneida Reservation Conservation Enforcement Officers and Police

Officers shall be empowered to enforce the provisions of this law. Any person who violates

a provision of this “ordinance” may be issued a citation by the Oneida Conservation

Warden(s) [4 O.C. 405.12].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Recycling and Solid Waste Disposal law. The new requirements of the proposed

Citations law will now apply to any citations issued under the Recycling and Solid Waste

Disposal law.



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

Tribal Environmental Response law [4 O.C. 401]

o Purpose. The purpose of the Tribal Environmental Response law is to regulate the

identification, investigation and remediation of discharges of hazardous substances to the

environment, identify sites where discharge has occurred, and eliminate contamination

from and control the threat of discharge of hazardous substances [4 O.C. 401.1-1].

o Enforcement. Any person who does not comply with a compliance order issued by the

Environmental Health, Safety and Land Division may receive a penalty in accordance with

the fine schedule. Any order issued pursuant to this law that is not complied with may be

physically enforced by the Division [4 O.C. 401.10].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Tribal Environmental Response law. The new requirements of the proposed Citations

law will now apply to citations issued under the Tribal Environmental Response law.

Onsite Waste Disposal [4 O.C. 407]

o Purpose. The purpose of the Onsite Waste Disposal law is to establish regulations to ensure

that private onsite sewage treatment systems will fulfill Oneida Tribal goals for improving

environmental health and safety [4 O.C. 407.1-2].

o Enforcement. The Environmental Specialist may issue an Administrative Enforcement

Order when a violation of any provision of this law occurs… the Order shall be given to

the party responsible for the violation and shall state the nature of the violation, possible

penalties for failure to correct, and shall state the right to contested the matter with the

Oneida Judiciary [4 O.C. 407.7-1].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Onsite Waste Disposal law. The new requirements of the proposed Citations law will

now apply to any citations issued under the Onsite Waste Disposal law.

Water Resources [4 O.C. 409]

o Purpose. The purpose of the Water Resources law is to grant necessary powers and to

organize a comprehensive program under a single tribal department for the enhancement

of the quality management and protection of all waters of the Reservation, ground and

surface, public and private [4 O.C. 409.1-2].

o Enforcement. The Oneida Conservation Department shall enforce this law, and all rules

and orders issued by the Department [4 O.C. 409.6-3].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Water Resources law. The new requirements of the proposed Citations law will now

apply to any citations issued under the Water Resources law.

Emergency Management and Homeland Security law [3 O.C. 302]

o Purpose. The purpose of the Emergency Management and Homeland Security law is to

provide for the development and execution of plans for the protection of residents, property

and the environment in an emergency or disaster [3 O.C. 302.1-1].

o Enforcement. Violators of this law may be subject to a fine of not more than two hundred

dollars ($200) per violation to be issued by the Oneida Police Department [3 O.C. 302.9].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Emergency Management and Homeland Security law. The new requirements of the

proposed Citations law will now apply to any citations issued under the Emergency

Management and Homeland Security law.

Oneida Food Service Code [3 O.C. 305]

o Purpose. The purpose of the Oneida Food Service Code is to protect and preserve the safety

of Oneida Nation citizens and others within its jurisdiction in conjunction with the most

current United States Public Health Service Food Code [3 O.C. 305.1-1].

o Enforcement. In addition to the suspension or closing down of a business that violates the

law, a food service vendor who violates any provision of the code shall forfeit not less than

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five dollars ($5) nor more than five hundred dollars ($500) upon conviction. Environmental

Health, Safety and Land Division, Licensing Department and Oneida Police Department

have authority to enforce various provisions of this law.

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the current Oneida Food Service Code. The new requirements of the proposed Citations

law will appear to apply to any citations issued under the Oneida Food Service Code.

Tattoo and Body Piercing [3 O.C. 306]

o Purpose. The purpose of the Tattoo and Body Piercing law is to regulate tattooists, tattoo

establishments, body piercers and body piercing establishments under the jurisdiction of

the Tribe in order to protect public health and safety [3 O.C. 306.1-1].

o Enforcement. Environmental Health and Safety Division and Licensing Department [3

O.C. 306.13].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Tattoo and Body Piercing law. The new requirements of the proposed Citations law

appear to apply to any citations issued under the Tattoo and Body Piercing law.

Tobacco law [1 O.C. 115]

o Purpose. The purpose of the Tobacco law is to regulate the sale, possession and distribution

of cigarettes within the Reservation [1 O.C. 115].

o Enforcement. Violators subject to the jurisdiction of the Nation shall be subject to a fine of

not more than ten dollars ($10) per pack of un-stamped cigarettes to be issued by the Oneida

Police Department and paid to the Nation [1 O.C. 115.8-1].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Tobacco law. The new requirements of the proposed Citations law will now apply

to any citations issued under the Tobacco law.

Marriage law [7 O.C. 701]

o Purpose. The purpose of the Marriage law is to exercise the sovereign right of the Oneida

Nation to regulate the rights and responsibilities relating to marriages [7 O.C. 701.1-1].

o Enforcement. The Department shall promulgate rules that establish a fine schedule for

persons who violate this law [7 O.C. 701.7-1].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Marriage law. The new requirements of the proposed Citations law appear to apply

to any citations issued under the Marriage law.

Notary Act [1 O.C. 114]

o Purpose. The purpose of the Notary Act is to promote, serve and protect the public interest

and to simplify, clarify and modernize the law governing notaries [1 O.C. 114.1-2].

o Enforcement. A notary who knowingly and repeatedly performs or fails to perform

any act prohibited or mandated, respectively, by this Act shall forfeit not less than $50.00

nor more than $500.00… Any and all of the sections of this Act may be enforced by an

official designated by the Oneida Business Committee for separate issues, or for all issues

[1 O.C. 114.6-4 – 114.6-9].

o Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in the Notary Act law. The new requirements of the proposed Citations law appear to apply

to any citations issued under the Notary Act.

Sanitation Ordinance [3 O.C. 306]

o Purpose. The purpose of the Sanitation Ordinance is to assure that any water and sanitary

utilities that are developed within the jurisdiction of the Oneida Tribe shall be operated and

maintained in a manner that is fiscally responsible, responsive to customer needs,

environmentally safe and governmentally functional [4 O.C. 408].

o Enforcement. Any person who shall continue any violation beyond the time limit provided

for in sec. (b) may be assessed a fine of not more than $250.00 [4 O.C. 408.11].

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Analysis to Draft 1

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Conclusion. The proposed Citations law does not conflict with the enforcement provisions

in Sanitations Ordinance. The new requirements of the proposed Citations law appear to

apply to any citations issued under the Sanitation Ordinance law.

D. References to Other Laws. The following laws of the Nation are referenced in the Citations law. The

proposed Citations law does not conflict with any of the referenced laws.

 Garnishment law. The defendant’s failure to satisfy a fine and/or restitution may result in per

capita attachment, wage garnishment and/or other collection processes available to the Court [8

O.C. 807.6-2(d)].

 Per Capita law. The defendant’s failure to satisfy a fine and/or restitution may result in per capita

attachment, wage garnishment and/or other collection processes available to the Court [8 O.C.

807.6-2(d)].

 Rules of Appellate Procedure. Any person wishing to contest the determination of the Court may

appeal to the Nation’s Court of Appeals in accordance with the Rules of Appellate Procedure [8

O.C. 807.6-3].

E. Existing Judiciary Rules. The Oneida Business Committee recently adopted Judiciary law Rule #1 –

Oneida Trial Court Rules. This new rule, developed by the Judiciary and adopted by the Oneida

Business Committee on September 25, 2019, includes procedures for how citation hearings are held at

the Judiciary [8 O.C. 801 Judiciary law Rule #1 – 1.17 Citation Hearings].

 Conclusion. The proposed Citations law does not conflict with the citation hearing procedures in

Judiciary Law Rule No. 1 – Oneida Trial Court Rules.

SECTION 7. EFFECTS ON EXISTING RIGHTS, PRIVILEGES, OR OBLIGATIONS

A. Effect on Existing Rights. The proposed Citations law protects due process rights by:

 Requiring that all citations be properly noticed, including a notice of the defendant’s rights and

privileges, hearing dates and information;

 Ensuring that defendants have the right to contest their citations in the Nation’s Judiciary;

 Establish a formal process for stipulations that require defendants to acknowledge that they are

waiving their rights to contest the citation in court and sign a statement that they enter into the

agreement free of duress and coercion.

SECTION 8. ENFORCEMENT AND ACCOUNTABILITY

Enforcement. Each law of the Nation typically includes an “enforcement” section which gives

authority to a specific agency or department to enforce the law. Most laws of the Nation are enforced

by the Oneida Police Department or Conservation Wardens. For more information, see “Section 6:

Existing Legislation.”

SECTION 9. OTHER CONSIDERATIONS

A. Current Citation Data. The following data is provided for information:

 Oneida Police Department (September 2018 – August 2019)

o Nineteen (19) Domestic Animals citations issued in the past year. The most common

citations were “mistreatment of animals” and “animal running at large.”

o The department did not report issuing citations under any other laws of the Nation.

o Source: Email communication with OPD (9/9/19).

 Oneida Conservation Wardens

o Oneida Police Department reported that Conservation has no citations issued over the past

year.

o Source: Email communication with OPD (9/11/19).

B. Resolving Conflicts with Other Laws of the Nation. As explained in “Section 6: Effect on Existing

Legislation,” the proposed Citations law conflicts with two laws of the Nation that retain the Land

Commission’s hearing authority over citations issued under those laws. The LOC should determine

Page 14 of 15

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Analysis to Draft 1

2019 10 02

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how to resolve this conflict before proceeding with the Citations law:

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 Option 1: Amend the Zoning and Shoreland Protection law and Non-Metallic Mining Reclamation

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law.

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o Amendments could remove hearing authority from the Land Commission for these two

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laws and transfer hearing authority to the Judiciary.

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 Option 2: Update the draft of the Citations law to state that all authorized hearing bodies of the

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Nation, including both the Judiciary and Land Commission, must follow the provisions of this law

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in regard to citation hearings.

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o Drafting these changes will require consultation with the Land Commission, as the hearing

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process in this draft was written for the Judiciary.

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 Option 3: Exclude Zoning and Shoreland Protection law and Non Metallic Mining Reclamation

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law from the proposed Citations law.

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o Add a provision to the law or adopting resolution excluding the Zoning and Shoreland

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Protection law and Non-Metallic Mining Reclamation law from the proposed Citations

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law. Such an exclusion could be specific or worded generally to refer to entities outside of

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the Judiciary that retain hearing authority under the laws of the Nation.

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C. Laws in Progress that Include Citations. At the time this analysis was drafted, the LOC is actively

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working on drafting or amending the following laws which include citations:

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 The Oneida Food Service Code and Recycling and Solid Waste Disposal law are both on the LOC’s

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Active Files List for amendments.

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 The proposed Curfew Law is on the LOC’s Active Files List and is expected to be forwarded to the

Oneida Business Committee for adoption in the near future.

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D. Fiscal Impact. A fiscal impact statement has not yet been requested.

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 Under the Legislative Procedures Act, a fiscal impact statement is required for all legislation except

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emergency legislation [Legislative Procedures Act 1 O.C. 109.6-1].

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 A fiscal impact statement shall be submitted by agencies as directed by the Legislative Operating

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Committee and may be prepared by any agency who may receive funding if the legislation is

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enacted; who may administer a program if the legislation is enacted; who may have financial

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information concerning the subject matter of the legislation; or by the Finance Office, upon request

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of the Legislative Operating Committee [Legislative Procedures Act 1 O.C. 109.6-1(a) and (b)].

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

Legislative Operating Committee

October 2, 2019

Curfew Law

Submission Date: 12/19/18

LOC Sponsor: Ernest Stevens III

Public Meeting: 7/18/19

Emergency Enacted: n/a

Summary: This was a recommendation from the TAP Law and Policy Subcommittee, to develop a

curfew law for the Oneida Nation.

12/19/18 LOC: Motion by Jennifer Webster add the Curfew Law to the active files list and assign Ernest

Stevens III as the sponsor; seconded Ernest Stevens III. Motion carried unanimously.

2/13/19:

Work Meeting. Present: Clorissa N. Santiago, Eric Boulanger, Joel Maxam, Maureen Perkins.

The purpose of this work meeting was to obtain information from the Oneida Police

Department regarding any issues that may currently be occurring on the Reservation related to

a lack of curfew, as well as discuss OPD’s role in potentially enforcing a Curfew law.

2/14/19:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Jennifer Falck, Clorissa N.

Santiago, Brandon Wisneski. The purpose of this work meeting was to provide the LOC an

update on communications with the Oneida High School’s Clan Council, and recent work

meeting with OPD. The LOC also discussed potential dates for holding a community meeting

potluck on the curfew law.

2/20/19 LOC: Motion by Daniel Guzman King to approve the community meeting notice and direct that a

community meeting for the proposed Curfew Law be held on Thursday, March 21, 2019;

seconded by Ernest Stevens III. Motion carried unanimously.

3/13/19:

Work Meeting. Present: Clorissa N. Santiago, Maureen Perkins, student representatives from

the Oneida Nation Clan Council. The purpose of this work meeting was to obtain information

from the Oneida High School Clan Council regarding their thoughts and opinions on a

potential curfew law.

3/21/19:

Work Meeting. Present: David P. Jordan, Ernest Stevens III, Daniel Guzman King, Jennifer

Falck, Clorissa N. Santiago, Maureen Perkins. The purpose of this work meeting was to

prepare for tonight’s community meeting on the curfew law. The LOC discussed the format

for the community meeting, potential discussion points, and questions the LOC members

currently have themselves regarding this topic.

3/21/19:

Community Meeting. Present: David P. Jordan, Lisa Summers, Ernest Stevens III, Daniel

Guzman King, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Maureen Perkins. No

community members attended the community meeting.

5/1/19:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Ernest Stevens

III, Jennifer Falck, Clorissa N. Santiago, Maureen Perkins. The purpose of this work meeting

was for the LOC to review the draft of the Curfew law. The LOC made policy decisions for

curfew, and directed minor changes be made to the draft. The LRO will update the draft and

complete a legislative analysis to be brought back in the near future.

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5/15/19:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Daniel Guzman

King, Jennifer Falck, Clorissa N. Santiago, Maureen Perkins. The purpose of this work

meeting was to review and discuss a couple remaining questions that need to be determined

before a draft is finalized. LOC provided direction, and a draft will be finalized and moved

forward. On track to bring draft and analysis to June 5, 2019 LOC meeting.

6/5/19 LOC:

Motion by Jennifer Webster to accept the draft and legislative analysis of the Curfew law and

defer these items to a work meeting for further consideration, replacing page four (4) of the

packet with the handout; seconded by Ernie Stevens III. Motion carried unanimously.

6/5/19:

Work Meeting. Present: David P. Jordan, Kirby Metoxen, Jennifer Webster, Daniel Guzman

King, Ernest Stevens III, Jennifer Falck, Clorissa N. Santiago, Brandon Wisneski, Maureen

Perkins. The purpose of this work meeting was for the LOC to review the two (2) policy

considerations contained in the legislative analysis. LOC discussed other potential

amendments and directed that minor revisions be made to the law. Additionally, LOC made a

decision as to who will be directed to complete the financial analysis – the Finance

Department. A memo regarding the fiscal impact statement to Finance and the public meeting

packet will be prepared for the next LOC meeting.

6/13/19:

E-Poll Conducted. E-Poll was titled “Approval of the Curfew Law Fiscal Impact Statement

Request Memorandum to the Finance Department. The requested action of this e-poll was to

approve the Curfew law fiscal impact statement request memorandum, with accompanying

updated draft and legislative analysis, and forward to the Finance Department directing that a

fiscal impact statement of the proposed Curfew law be prepared and submitted to the LOC by

July 18, 2019. The e-poll was approved by David P. Jordan, Kirby Metoxen, Jennifer Webster,

and Ernest Stevens III. Daniel Guzman King did not provide a response to the e-poll.

6/19/19 LOC: Motion by Jennifer Webster to approve the public meeting packet and forward the Curfew

law to a public meeting to be held on July 18, 2019; seconded by Ernest Stevens III. Motion

carried unanimously.

Motion by Jennifer Webster to enter the June 13, 2019 LOC E-poll titled “Approval of the

Curfew Law Fiscal Impact Statement Request Memorandum” results into the record;

seconded by Ernest Stevens III. Motion carried unanimously.

6/19/19:

Work Meeting. Present: David P. Jordan, Jennifer Webster, Ernest Stevens III, Jennifer Falck,

Clorissa N. Santiago, Brandon Wisneski, Destiny Prendiville. The discussion during this work

meeting centered around the LOC’s recent request for a fiscal impact statement to be

completed by July 18, 2019 and a strategy for moving forward.

6/27/19:

Work Meeting. Present: Jennifer Webster, Daniel Guzman King, Jennifer Falck, Clorissa N.

Santiago, Brandon Wisneski, Destiny Prendiville, Kristen Hooker, Maureen Perkins. The

discussion during this work meeting centered around the update on the LOC’s communication

with the Finance Department.

7/17/19 LOC: Motion by Kirby Metoxen to approve the memorandum regarding the Curfew Law financial

impact statement dated July 17, 2019; seconded by Daniel Guzman King. Motion carried

unanimously.

Motion by Kirby Metoxen to amend the June 13, 2019, directive to the Finance Department

to direct the Finance Department to complete a fiscal impact statement within ten (10) business

days after the LOC approves a final proposed draft of the Curfew law; seconded by Daniel

Guzman King. Motion carried unanimously.

7/18/19:

Public Meeting Held. Present: Ernest Stevens III, Brooke Doxtator, Jennifer Falck, Clorissa

N. Santiago, Rae Skenandore, Carol Silva, Amy Williams, Bella Mae Williams, Maureen

Perkins. One (1) person gave public comment during this public meeting.

7/25/19:

Public Comment Period Closed.

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8/7/19 LOC:

Motion by Ernest Stevens III to accept the public comments and public comments review

memorandum and defer this item to a work meeting for further consideration; seconded by

Kirby Metoxen. Motion carried unanimously.

8/15/19:

Work Meeting. Present: David P. Jordan, Daniel Guzman King, Ernest Stevens III, Jennifer

Webster, Brandon Stevens, Jennifer Falck, Clorissa N. Santiago, Maureen Perkins, Jameson

Wilson. The purpose of this work meeting was to review and consider the public comments

that were received.

9/4/19 LOC:

Motion by Jennifer Webster to accept the updated public comment review memorandum,

draft, and legislative analysis; seconded by Daniel Guzman King. Motion carried

unanimously.

Motion by Jennifer Webster to approve the Curfew Law fiscal impact statement request

memorandum and forward to the Finance Committee requesting that a fiscal impact statement

be prepared and submitted to the Legislative Operating Committee by September 18, 2019,

seconded by Ernest Stevens III. Motion carried unanimously.

9/13/19:

Work Meeting. Present: David P. Jordan, Daniel Guzman King, Kirby Metoxen, Jennifer

Falck, Clorissa N. Santiago, Brandon Wisneski, Maureen Perkins, Jameson Wilson. The

purpose of this work meeting was to review and discuss the Curfew Law resolution and

Curfew Fine Schedule resolution. The LRO will update the resolutions based on the LOC’s

discussion.

9/18/19:

Work Meeting. Present: David P. Jordan, Daniel Guzman King, Ernest Stevens III, Jennifer

Falck, Clorissa N. Santiago, Brandon Wisneski, Kristen Hooker, Jameson Wilson. The

purpose of this work meeting was to review the updates to the Curfew Law Penalty and Fine

Schedule resolution. The LRO will update the resolutions based on the LOC’s discussion.

Next Steps:

 Approve the adoption packet for the Curfew law and forward to the Oneida Business Committee for

consideration.

 Approve the resolution titled, “Curfew Law Penalty and Fine Schedule” and forward to the Oneida

Business Committee for consideration.

Page 3 of 3

29 of 318

Oneida Nation

r"\

Oneida Business Committee

Legislative Operating Committee

000000

PO Box 365 • Oneida, WI 54155-0365

ONEIDA

Oneida .nsn .gov

TO:

FROM:

DATE:

RE:

Please find the following attached backup documentation for your consideration of the proposed

Curfew law:

Resolution: Curfew Law

Statement of Effect: Curfew Law

Curfew Law Legislative Analysis

Curfew Law

Curfew Law Fiscal Impact Statement

Overview

On December 19, 2018, the Legislative Operating Committee decided to pursue the development

of a Curfew law. The recommendation for the development of a Curfew law was brought to the

Legislative Operating Committee by the Nation' s Tribal Action Plan - Laws and Policy

Subcommittee. The Legislative Operating Committee also received input requesting the

development of a Curfew law during the November 2018 Community Budget Session.

The purpose of the proposed Curfew law is to protect the health, safety, and welfare of persons

and property within the Reservation by regulating the activities of minors on the Reservation

during ce1iain hours, while imposing ce1iain obligations and responsibilities upon the parents,

guardians, and/or legal custodians of a minor for the control and supervision of that minor. [3 0. C.

308.1-1].

This resolution adopts the proposed Curfew law which will:

• Prohibit any minor from being on any public space either on foot or in any vehicle driven

or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the boundaries of the

Reservation, unless the minor is accompanied by a parent, guardian, or legal custodian [3

o.c. 308.5-1];

• Prohibit any parent, guardian, or legal custodian from knowingly permitting or failing to

take action to prevent a minor from being on any public space either on foot or in any

vehicle driven or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the

boundaries of the Reservation [3 0. C. 308.5-2];

• Provide various exemptions to the curfew, where a minor will not be considered to be

violating the curfew if at the time of the alleged violation the minor was engaged in specific

activities [3 O.C. 308.5-3];

Page 1 of 2

A good mind. A good heart. A strong fire.

30 of 318

•

Provide the enforcement procedure to be used by the Oneida Police Department when

enforcing a suspected curfew violation [3 0. C. 308. 6}; and

Provide the various penalties that can be imposed by the Family Court against the minor

and/or the minor's parent, guardian, or legal custodian upon a finding by Family Court that

a violation of this Law has occmTed [3 O.C. 308. 7-1}.

The Legislative Operating Committee developed the proposed Curfew law through collaboration

with representatives from the Oneida Police Department and Oneida Nation High School Clan

Council. The Legislative Operating Committee also reviewed various laws of the Nation, as well

as twelve (12) curfew laws from other local municipalities and tribes. Additionally, the Legislative

Operating Committee held a community meeting on March 21, 2019, to gather input, ideas, and

concerns from members of the community regarding the proposed Curfew law. Unfortunately, no

one attended this community meeting to paiiicipate in the development of this law.

In accordance with the Legislative Procedures Act, a public meeting on the Curfew law was held

on July 18, 2019. One (1) person provided oral comments during the public meeting. The public

comment period was then held open until July 25, 2019. The Legislative Operating Committee

received one (1) submission of written comments during the public comment period. All public

comments received were accepted, reviewed, and considered by the Legislative Operating

Committee on August 15, 2019. Any changes made based on those comments have been

incorporated into this draft.

Requested Action

Approve the Resolution: Curfew Law.

Page 2 of 2

;ODODCXJ;

A good mind. A good heart. A strong fire.

ONEIDA

31 of 318

Oneida Nation

Post Office Box 365

Phone: (920)869-2214

Oneida, WI 54155

BC Resolution # _____________

Curfew Law

WHEREAS,

the Oneida Nation is a federally recognized Indian government and a treaty tribe

recognized by the laws of the United States of America; and

WHEREAS,

the Oneida General Tribal Council is the governing body of the Oneida Nation; and

WHEREAS,

the Oneida Business Committee has been delegated the authority of Article IV, Section 1,

of the Oneida Tribal Constitution by the Oneida General Tribal Council; and

WHEREAS,

the purpose of the Curfew law (“the Law”) is to protect the health, safety, and welfare of

persons and property within the Reservation by regulating the activities of minors on the

Reservation during certain hours, while imposing certain obligations and responsibilities on

the parents, guardians, and/or legal custodians of a minor for the control and supervision

of that minor; and

WHEREAS,

the Law prohibits any minor from being on any public space either on foot or in any vehicle

driven or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the boundaries of

the Reservation, unless the minor is accompanied by a parent, guardian, or legal

custodian; and

WHEREAS,

the Law prohibits any parent, guardian, or legal custodian from knowingly permitting or

failing to take action to prevent a minor from being on any public space either on foot or in

any vehicle driven or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the

boundaries of the Reservation; and

WHEREAS,

the Law provides various exemptions to the curfew, where a minor will not be considered

to be violating the curfew if at the time of the alleged violation the minor was engaged in

specific activities; and

WHEREAS,

the Law provides the enforcement procedure to be used by the Oneida Police Department

when enforcing a suspected curfew violation; and

WHEREAS,

the Law provides various penalties that can be imposed by the Family Court against the

minor and/or the minor’s parent, guardian, and/or legal custodian upon a finding by the

Family Court that a violation of this Law has occurred; and

WHEREAS,

in accordance with the Legislative Procedures Act a legislative analysis and fiscal impact

statement were developed for this Law; and

WHEREAS,

a public meeting on the Law was held on July 18, 2019, in accordance with the Legislative

Procedures Act, and the public comment period was held open until July 25, 2019; and

32 of 318

BC Resolution # _______

Curfew Law

Page 2 of 2

WHEREAS,

the Legislative Operating Committee accepted, reviewed, and considered the public

comments received on August 15, 2019; and

NOW THEREFORE BE IT RESOLVED, that the Curfew law is hereby adopted and shall be effective on

October 23, 2019.

BE IT FINALLY RESOLVED, the Legislative Reference Office shall conduct a one (1) year review of the

Curfew law and provide the Oneida Business Committee a report which details the number of citations

issued by the Oneida Police Department, frequency and types of penalties issued by the Oneida Family

Court, and any other relevant information.

33 of 318

Oneida Nation

Oneida Business Committee

Legislative Operating Committee

PO Box 365 • Oneida, WI 54155-0365

Oneida-nsn.gov

ONEIDA

Statement of Effect

Curfew Law

Summary

This resolution adopts the Curfew law which will protect the health, safety, and welfare of persons

and property within the Reservation by regulating the activities of minors on the Reservation

during certain hours, while imposing certain obligations and responsibilities upon the parents,

guardians, and/or legal custodians of a minor for the control and supervision of that minor.

Submitted by: Clorissa N. Santiago, Staff Attorney, Legislative Reference Office

Date: September 23, 2019

Analysis by the Legislative Reference Office

This resolution adopts the proposed Curfew law. The proposed Curfew law will protect the health,

safety, and welfare of persons and property within the Reservation by regulating the activities of

minors on the Reservation during certain hours, while imposing certain obligations and

responsibilities upon the parents, guardians, and/or legal custodians of a minor for the control and

supervision of that minor. [3 O.C. 308.1-1]. It is the policy of the Nation to support all drug use

prevention initiatives of the Nation by protecting the health, safety, and welfare of persons through

the establishment of a curfew for minors in public spaces within the Reservation during certain

hours in an effort to minimize the opportunity for harm to come to minors during those hours. [3

O.C. 308.1-2].

Adoption of any legislation is required to comply with the Legislative Procedures Act (“the LPA”),

which was adopted by the General Tribal Council through resolution GTC-01-07-13-A for the

purpose of providing a standardized process for the adoption of laws of the Nation. [1 O.C. 109.11]. The Curfew law complied with all processes and procedures required by the LPA, including

the development of a legislative analysis, a fiscal analysis, and the opportunity for public review

during a public meeting and public comment period. [1 O.C. 109.6, 109.7, 109.8].

A public meeting on the proposed Curfew law was held on July 18, 2019. One (1) person provided

oral comments during the public meeting. The public comment period was then held open until

July 25, 2019. The Legislative Operating Committee received one (1) submission of written

comments during the public comment period. All public comments received were accepted,

reviewed, and considered by the Legislative Operating Committee on August 15, 2019. Any

changes made based on those comments have been incorporated into this draft.

The Curfew law will become effective ten (10) business days after the adoption of this resolution

in accordance with the LPA. [1 O.C. 109.9-3].

Conclusion

Adoption of this resolution would not conflict with any of the Nation’s laws.

Page 1 of 1

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34 of 318

Analysis to Draft 3 for OBC Consideration

2019 10 09

t<yethin<tshaw^=late> kayanl^sla>

(duh ye teen uh zah wah lahday

guyan luh sla)

we’ll put our arms across to stop them

CURFEW LAW LEGISLATIVE ANALYSIS

SECTION 1. EXECUTIVE SUMMARY

REQUESTER:

Tribal Action Plan

Laws and Policy

Subcommittee

Intent of the

Legislation

Purpose

Affected Entities

Related Legislation

Enforcement

Due Process

Public Meeting

Fiscal Impact

SPONSOR:

Ernest Stevens III

DRAFTER:

Clorissa N. Santiago

ANALYST:

Maureen Perkins

The Tribal Action Plan (TAP) Laws and Policy Subcommittee recommended the

Legislative Operating Committee (LOC) draft a curfew law to protect the safety of

youth in the community, as well as provide accountability to both youth and parents

through consequences that reflect the circumstances and needs of the community.

The Curfew law (“Law”) will protect the health, safety and welfare of persons and

property on the Reservation by restricting access to public spaces by minors during

certain night time and early morning hours.

To protect the health, safety, and welfare of persons and property within the

Reservation by regulating the activities of minors on the Reservation during certain

hours, while imposing certain obligations and responsibilities upon the parents,

guardians, and/or legal custodians of minors for the control and supervision of

minors [3 O.C. 308.1-1].

Oneida Police Department (OPD) and Oneida Judiciary

Family Court law, Per Capita law, Garnishment law, Rules of Appellate Procedure,

Family Court Rules, Oneida Judiciary Rules of Evidence, Oneida Judiciary Rules

of Civil Procedure, Landlord-Tenant law

The OPD will enforce suspected violations of this Law by issuing warnings and

citations [3 O.C. 308.6].

Citations issued result in a mandatory appearance at a citation pre-hearing for both

the minor and his or her parent, guardian, or legal custodian.

• The Family Court may issue conditional orders as well as penalties that

include fines, community service, mandatory participation in family

counseling or parenting programs, and any other penalty the Family Court

deems appropriate [3 O.C. 308.6-3(a) and (c)]. The Family Court may stay

a penalty at its discretion [3. O.C. 308.7-2].

• All fines will be paid to the Judiciary within ninety (90) days after the order

is issued or upheld on final appeal, whichever is later. This deadline may

be extended at the discretion of the Family Court. If a fine is not paid the

Family Court may seek to collect the money owed through the Nation’s

garnishment and/or per capita attachment process or any other collection

process available to the Family Court [3 O.C. 308.7-1(a)(3)].

A citation for a violation of this Law shall be processed in accordance with the

procedure contained in the Nation’s laws and policies governing citations [3 O.C.

308.6-3(b)].

A public meeting was held on July 18, 2019. Comments were considered by the

LOC and changes were directed to the law on August 15, 2019.

The LOC has directed the Finance Department to provide the LOC with a fiscal

impact statement of the proposed Curfew law by September 18, 2019; in accordance

with the Legislative Procedures Act.

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SECTION 2. LEGISLATIVE DEVELOPMENT

A. Background. The Nation does not currently have a law establishing a curfew governing minors in

public spaces during certain night time and early morning hours. This Curfew law was requested by

the Tribal Action Plan (TAP) Laws and Policy Subcommittee which included input from a cross

functional core team that included representatives from the Oneida Business Committee (OBC), Oneida

Police Department, Governmental Services Division, Oneida Gaming Commission, Oneida Family

Support Services, Legislative Operating Committee, Legislative Reference Office (LRO), Oneida

Human Resources Department and Retail Division. This team concluded that a curfew law would help

curtail opportunities for minors to be influenced by drugs by limiting their presence in public spaces

within the community during certain hours, including night time and early morning, without the

presence of a parent, guardian, or legal custodian.

Outreach Efforts

Outreach with the community was held during the Community Budget Session on November 30,

2018 where the LOC had an opportunity to collect input from participants by asking them to share their

ideas about new laws, amendments to existing laws or anything else they wanted to share. Participants

indicated the need for a curfew law for the Reservation [LOC FY19 First Quarter Report].

Additionally; a community outreach event was held on March 21, 2019 at the Norbert Hill Center

cafeteria from 5:00 p.m. to 7:30 p.m. to collect input from the community. No members of the

community participated in this event.

Related Research

Research conducted regarding curfew laws revealed that the most common goals of a curfew law

are to 1) protect children from becoming victims or perpetrators of crimes, 2) assist parents in exercising

their responsibility over minors, and 3) prevent all persons from the dangers posed by unsupervised

minors who are out late at night and in the early morning hours. Research indicates that curfew laws

may protect youth from victimization and prevent juvenile crimes and delinquency by reducing or

preventing exposure of youth to negative situations by restricting their access to public spaces at night

and early morning hours [Grossman & Martin, 2015]. Although some research has indicated that most

crimes involving minors take place during after school hours rather than late at night or early morning

hours [Meyers, 2016]; the goal of this legislation within the Oneida Reservation is to keep minors safe

and accounted for during curfew hours.

According to the Office of Juvenile and Delinquency Prevention; the following contribute to the

successful implementation of curfew policies:

o Community involvement;

o Creating specific procedures for repeat offenders such as recreational, educational, and job

opportunities as well as antidrug and antigang programs;

o Providing a hotline for community questions or problems related to curfews or juvenile

delinquency in general; and

o Providing intervention services for juveniles and their families.

B. Previous Attempts to Implement a Curfew. The LOC has considered a law that included a curfew in

the past. A curfew provision was considered in a Public Nuisances law drafted by the LOC in 2010;

however, this law was not completed or adopted.

• Previous attempts at regulating minors through a curfew that were not legislative include a curfew

requirement of 10:00 p.m. to 6:00 a.m. that was included in previous Oneida Housing Authority

tenant leases. This provision is not in current leases [Email Communication 05/03/2019, Scott

Denny, Residential Rentals & Outreach Area Manager, Oneida Comprehensive Housing

Division].

C. Expected Benefits. The purpose of this legislation is to provide a clear timeframe that minors must be

out of public spaces and accounted for by their parents, guardians or legal custodians. Members of the

Oneida Nation High School Clan Council indicated that a curfew law may help to prevent teens from

partying, staying out late and engaging in other bad behaviors; as well as helping with responsibility,

encouraging youth to stay out of trouble and encouraging safety and school attendance. A curfew law

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provides a means for parents to enforce a curfew with their children to provide an additional measure

of safety, accountability, obligation and responsibility to both the Nation’s minors and adults

[McDowall, Loftin & Wiersema, 2009]. A curfew law provides OPD with a means to engage with

suspected minors during curfew hours to tell them to go home and to encourage adult supervision of

minors during curfew hours. OPD has expressed that the goal is to keep minors safe and to prevent

vandalized property, arson, graffiti, petty theft and drug issues.

SECTION 3. CONSULTATION AND OUTREACH

A. Departments and Groups. The following departments and groups participated in the development of

this Law:

1. Oneida Police Department; and

2. Members of the Oneida Nation High School Clan Council.

B. Laws of the Nation. The drafting of this legislative analysis included a review of the following laws of

the Nation: Family Court law, Family Court Rules, Rules of Appellate Procedure, Oneida Judiciary

Rules of Evidence, Oneida Judiciary Rules of Civil Procedure, Per Capita law, Garnishment law, Public

Use of Tribal Lands law, and Landlord-Tenant law.

C. Area and Tribal Laws. The following curfew laws from surrounding municipalities and other tribal

communities were reviewed. The chart provides a breakdown of the ages and curfew time frames the

laws apply to.

*The State of Wisconsin, Outagamie County and Town of Oneida do not have curfew laws in place.

D. Data. A memorandum from the TAP Laws and Policy Subcommittee suggested that data related to

police interactions with youth ages seventeen (17) years and younger be requested from the Oneida

Police Department and other neighboring jurisdictions to provide a background for juvenile activity in

the area.

1. The Oneida Police Department does not currently enforce any curfew laws. The following is

a breakdown of juvenile related calls received by the Oneida Police Department in 2018 [Email

communication 05/06/2019, Eric Boulanger, Chief of Police, Oneida Police Department].

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There were a total of eighty-eight (88) juvenile

related calls in 2018 received by the Oneida

Police Department. Sixteen (16) of those calls

occurred between the hours of the proposed

curfew timeframe of 10 p.m. and 6 a.m.

2. The City of Green Bay has issued the following citations related to curfew violations from

2010 to 2018 [Email communication 05/03/2019, Michelle Belongie, Crime Analyst, Green

Bay Police Department].

Curfew violations range from ninety-five (95)

to three hundred twenty-one (321) per year.

• Curfew applies to minors under seventeen

(17) years of age.

• The curfew does not apply to seventeen (17)

year old minors because under Wisconsin’s

juvenile justice code, seventeen (17) year olds

are tried as adults for all crimes [Walsh, T.J.,

Wisconsin Lawyer]. Seventeen (17) year old

minors are considered to be contributing to

curfew violations of minors under seventeen

(17).

SECTION 4. PROCESS

A. Below is a diagram of the legislative process contained in the Legislative Procedures Act [1 O.C. 109]

with some additional useful information. A public meeting has been held and the LOC has considered

each comment collected and made changes to the draft law based on public comment. The LOC is

currently at the stage of reviewing the final law for consideration of adoption by the OBC.

Diagram 1. Curfew Law Drafting Process Contained in the Legislative Procedures Act [1 O.C. 109].

C. The following meetings, work meetings, and outreach events took place at the time of the

development of this legislative analysis:

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December 19, 2018: A request for a Curfew law was received from the TAP Laws and Policy

Subcommittee, considered by the LOC and the Curfew law was added to the active files list.

February 13, 2019: A work meeting was held with the LRO staff and the OPD.

February14, 2019: A work meeting was held with the LOC and the LRO staff.

March 13, 2019: A work meeting was held with the LRO staff and the Oneida Nation High School

Clan Council.

March 21, 2019: A Community Outreach Meeting was held. Although no one attended this

meeting; the opportunity was presented to the community to gather input on the development of

the Law.

May 1, 2019: A work meeting was held with the LOC and the LRO.

May 15, 2019: A work meeting was held with the LOC and the LRO.

June 5, 2019: The draft and legislative analysis presented to the LOC for further consideration.

June 19, 2019: LOC approved the Public Meeting Packet and forwarded the Curfew law to a public

meeting to be held on July 18, 2019.

July 18, 2019: Public meeting held.

August 18, 2019: A work meeting was held with the LOC and the LRO to consider each comment

made and direct changes to the draft law.

September 4, 2019: The LOC accepted the public comment review memorandum, draft and

legislative analysis. LOC requested a fiscal impact statement from the Finance Committee.

September 13 and 18, 2019: The LOC held a work meetings to discuss the Curfew Law resolution

and Curfew Law Penalty and Fine Schedule resolution.

Community Outreach Event March 21, 2019

March 21, 2019

The LOC hosted a community pot luck to discuss a Curfew

Law. While the community expressed interest in the event,

no one attended the meeting. This highlights how

collecting public comment is difficult.

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SECTION 5. CONTENTS OF THE LEGISLATION

A. Purpose and Policy [3 O.C. 308.1]

• The purpose of the Law is to restrict access to public spaces by minors not accompanied by

certain adults during established night and early morning hours, while imposing obligations and

responsibilities upon adults to protect the health, safety and welfare of youth, adults and public

property of the Nation. It is the policy of the Nation to support substance abuse prevention

initiatives to minimize the opportunities of for minors to encounter harmful situations.

B. Jurisdiction [3 O.C. 308.4]

• Jurisdiction of the Court. The Oneida Family Court has jurisdiction over any action brought

under this law [3 O.C. 308.4-1].

• Personal Jurisdiction. This Law applies to: 1) all members of the Nation and those eligible for

enrollment with the Nation, as well as members of other federally recognized tribes, 2)

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individuals and their households who lease, occupy or otherwise use fee land or trust land owned

by the Nation or by individual members of the Nation; through consensual contract or other

agreement, 3) individuals who have consented to the jurisdiction of the Nation through other

consensual relationships with the Nation or Nation’s entities, corporations or members of the

Nation through contracts or agreements; and 4) any other facts that manifest consent to

jurisdiction consistent with federal law and policy including failure to object to the exercise of

personal jurisdiction in a timely manner.

i. In accordance with section 308.4-1(b), the Law applies to individuals and their

households who lease, rent, or occupy any home involved in a housing program

with the Nation’s Comprehensive Housing Division, including children who are

not enrolled or eligible for enrollment with the Nation or any other federally

recognized tribe. The Landlord-Tenant law requires all tenants of the Nation’s

housing programs to abide by the Nation’s laws [6 O.C. 611.6-3(b)(3)].

• Territorial Jurisdiction. This Law applies to the Reservation to all land owned by the Nation

and individual trust and/or fee land of a member of the Nation.

C. Curfew [3 O.C. 308.5]

• The curfew is established from 10:00 p.m. to 6:00 a.m. for ages sixteen (16) years old or younger

in any public space either on foot or in a vehicle driven or parked within the boundaries of the

Reservation. No adult shall knowingly permit or fail to take action to prevent a minor to be in

a public space after curfew unless an exemption is met [3 O.C. 308.5-3].

i. Exemptions include common reasons minors would be out at night without the

presence of their parent, guardian, or legal custodian such as traveling home from

work, participating in cultural and sports activities chaperoned by an adult, and

traveling home from the movies; as well as a discretionary measure for OPD to

determine if the law has been violated or not.

• The map below demonstrates the curfew in the proposed Law is consistent with the curfew

established by municipalities surrounding the Reservation. Members of the Oneida Nation High

School Clan Council indicated during a work meeting that Oneida’s curfew should be similar to

area curfew laws for consistency purposes.

This is a map of the Reservation and

surrounding jurisdictions with any curfew

currently in place. The curfew timeframe of 10

p.m. to 6 a.m. in the proposed law is consistent

with most jurisdictions near the Reservation.

• The State of Wisconsin, Outagamie County,

and the Town of Oneida all lack curfew laws.

This means nearly half the Reservation does

not currently have any curfew law in place.

• OPD does not currently enforce any curfew

laws of area jurisdictions [Verbal

Communication, February 13, 2019].

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D. Enforcement of Curfew Violations [3 O.C. 308.6]

• Oneida Police Department (OPD) officers may stop any minor suspected of violating this law.

OPD must ask, and the minor must provide, their name, age and reason for violating curfew. If

an OPD officer believes the Curfew law has been violated; the officer may take the minor into

custody and contact their parents, guardian or legal custodian to return the minor to their care

and custody. If the OPD officer cannot locate a parent, guardian or legal custodian, they may

find and release the child to an adult relative or other responsible adult willing and able to accept

the care and custody of the minor.

i. The first time a minor is taken into custody results in a warning by OPD to both

the minor and the minor’s parent, guardian or legal custodian advising them of the

law and informing them that any additional violations of the curfew law may result

in a fine, community service, mandatory parenting program, mandatory family

counseling, or other penalties at the discretion of the Family Court [3 O.C. 308.62].

ii. Subsequent curfew violations that result in a minor being taken into custody by

OPD may result in the issuance of a citation which will require the attendance of

the minor and their parent, guardian, or legal custodian at a mandatory pre-hearing

with the Family Court. Additionally; subsequent violations of the Curfew law may

include a fine, mandatory or voluntary community service, mandatory parenting

program, mandatory family counseling, or any other penalty at the discretion of

the Family Court, as well as any conditional orders made by the Family Court [3

O.C. 308.6-3].

iii. The Family Court may issue conditional orders at the mandatory pre-hearing until

the matter is resolved [3 O.C. 308.6-3(a)].

iv. The Family Court may stay the enforcement any penalty issued as a result of a

curfew violation at its discretion [3 O.C. 308.7-2].

E. Penalties of Curfew Violations [3.O.C. 308.7]

• The following penalties may be issued to those that violate the law; focusing on specific

programs that aim to improve family dynamics and parenting; at the discretion of Family Court:

i. Fines (community service may be a substitute for all or part of fines at the

discretion of the Family Court);

1. The Law contains detailed procedures related to fines issued under this

Law [3 O.C. 308.7-1(a)]. More detail is provided in Section 7 of this

analysis.

ii. Community service;

1. The Law contains detailed procedures related to community service

requirements [3 O.C. 308.7-1(b)]. More detail is provided in Section 7

of this analysis.

iii. Family counseling;

iv. Parenting programs; and/or

v. Any other penalty deemed appropriate by the Family Court.

• The Family Court may seek to collect unpaid fines through the Nation’s garnishment and/or

per capita attachment process or any other collection process available to the Family Court [3

O.C. 308.7-1(a)(3)].

SECTION 6. EFFECT ON EXISTING LEGISLATION

A. References to Other Laws. The following laws of the Nation are referenced in this law and are required

to be followed:

• Family Court [8 O.C. 806]. The Family Court law delegates authority to the Family Court

over all matters pertaining to the family, children and elders, except for probate matters [8 O.C.

806.4-1]. The Family Court has been delegated authority to make all orders and judgments as

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•

may be necessary to carry into effect the powers and jurisdiction of the Court [8 O.C. 806.81(c)]. The Family Court law governs the administration of law, justice, judicial procedures

and practices by the Oneida Family Court as it pertains to Oneida families and/or children to

create a knowledgeable, fair, and impartial forum for resolution of all family law matters that

come before it. The Family Court is delegated authority under this law to hear contested

citations, make conditional orders at the pre-hearing and issue penalties [3 O.C. 308.6-4(b) and

308.7-1]. All orders of the Family Court are appealable to the Court of Appeals [8 O.C. 806.6].

Per Capita [1 O.C. 123]. The Family Court is considered an Oneida entity [1 O.C. 123.31(n)] under the Per Capita law and has the authority to pursue attachments of any money owed

and any nonpayment of any citations issued to parents, guardians or legal custodians under this

law [3 O.C. 308.7-1(a)(3)]. An attachment means the citation is paid for from the debtors per

capita payment using the process contained in the Per Capita law [1 O.C. 123.4-9(a)(2)].

Garnishment [2 O.C. 204]. The Family Court is considered an Oneida entity [2 O.C. 204.31(p)] under the Garnishment law as a branch of the Judiciary and has the authority to initiate a

garnishment of employee wages to pursue payment from parents, guardians or legal custodians

who have failed to make the required payments for citations issued to them in accordance with

this law [3 O.C. 308.7-1(a)(3)]. Garnishment means the legal process in which the earnings of

the debtor are required to be withheld by the Nation for a payment of a debt [2 O.C. 204.3-1(j)]

using the process outlined in the Garnishment law.

B. Other Laws of the Nation that Interact with this Legislation. The following laws of the Nation

interact with this law and are required to be followed:

• Family Court Rules [8 O.C. 807]. The Family Court Rules supplement the Oneida Judiciary

Rules of Civil Procedure and govern appearances in Court, provides rules of decorum while

in Court, governs default judgments, as well as other aspects of the Family Court proceedings.

The Family Court Rules will govern behavior during curfew citation hearings.

• Oneida Judiciary Rules of Civil Procedure [8 O.C. 803]. The Oneida Judiciary Rules of

Civil Procedure create a consistent set of rules that govern the process of civil actions of the

Family Court and the Judiciary. The Oneida Judiciary Rules of Civil Procedures will govern

hearings for all curfew citation hearings.

• Oneida Judiciary Rules of Evidence [8 O.C. 804]. The Oneida Judiciary Rules of Evidence

apply to proceedings held in the Family Court, including curfew citation proceedings, and

govern the rules related to evidence presented to the Court.

• Rules of Appellate Procedure [8 O.C. 805]. The Rules of Appellate Procedure govern the

process for anyone who wishes to contest the determination of a lower Court’s decision to

the Nation’s Court of Appeals and will govern appeals the Family Court’s decisions. All

orders of the Family Court are appealable to the Court of Appeals [8 O.C. 806.6].

• Landlord-Tenant [6 O.C. 611]. This law applies to all individuals (tenants) granted the

right to use or occupy a premises pursuant to a rental agreement with the Oneida Nation. All

tenants are required to follow all laws of the Nation [6 O.C. 611.6-3(b)(3)], including the

Curfew law; even if the tenant is not enrolled or eligible for enrollment with the Oneida

Nation or is not enrolled with another federally recognized tribe [3 O.C. 308.4-1].

SECTION 7. ENFORCEMENT AND ACCOUNTABILITY

A. The Law will be enforced by OPD utilizing existing resources.

B. Minors and parents, guardians and/or legal custodians who are issued citations under this law may

contest the citation at the mandatory citation pre-hearing at the Family Court [3 O.C. 308.6-3(c)].

C. Implementation of this Law is as follows:

• OPD is responsible for implementing and enforcing this law and issuing citations which may

include fines and other penalties to both the minor and/or their parents, guardians or legal

custodians [3 O.C. 308.6-3].

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•

The Family Court may, at its discretion, order penalties under this law to both minors and

adults [3 O.C. 308.7]. Penalties include fines, community service, parenting programs, family

counseling and any other penalties deemed appropriate by the Family Court. The Family

Court may stay the enforcement of a penalty at its discretion [3 O.C. 308.7-2].

i. The Family Court may allow community service to be substituted for fines [3

O.C. 308.7-1(a)(5)].

ii. Community service may be ordered by the Court in lieu or in addition to a fine

[3 O.C. 308.7-1(b)]. The individual will be responsible for finding his or her

community service and getting approval from the Court [3 O.C. 308.71(b)(1)]. The Family Court will provide a written statement of the

requirements of the community service assignment including the number of

hours, the timeframe for completion, how hours will be reported and any other

relevant information and the requirement that community service is monitored

[3 O.C. 308.7-1(b)(2) and (3)].

iii. Family counseling or parenting programs may be required by the Family Court

[3 O.C. 308.7-1(c)].

1. Oneida Family Support Services Department offers family

counseling, parenting classes and other programs. These programs

may be an option for violators of this Law to fulfill the penalties issued

by the Family Court.

a. Clientele of services offered by this Department are typically

determined by enrollment or eligibility for enrollment with

the Nation. Consideration is given to significant others or

family members who are not eligible for enrollment

[https://oneida-nsn.gov/resources/child-family-services/].

2. Those who violate the Law may seek other services offered outside of

the Oneida community to fulfill the penalties issued by the Family

Court.

The OBC is responsible for adopting a fine schedule by resolution that determines specific

fine amounts for violations of this law [3 O.C. 308.7-1(a)].

SECTION 8. OTHER CONSIDERATIONS

A. Citations law. A citation for a violation of this law will be processed in accordance with the procedure

contained in the Nation’s laws and policies governing citations [3 O.C. 308.6-3(b)].

• There are currently no laws of the Nation governing citations. There is a Citations law on the

LOC’s active files list that is currently being developed at the same time as this Curfew law.

B. Fiscal Impact. Please refer to the fiscal impact statement for any fiscal impacts.

• Under the Legislative Procedures Act, a fiscal impact statement is required for all legislation

except emergency legislation [1 O.C. 109.6-1].

• A fiscal impact statement shall be submitted by any agencies as directed by the Legislative

Operating Committee and may be prepared by any agency who may receive funding if the

legislation is enacted, any agency who may administer a program if the legislation is enacted,

any agency who may have financial information concerning the subject matter of the

legislation, or by the Finance Office, upon request of the Legislative Operating Committee [1

O.C. 109.6-1(a) and (b)].

Research Citations

Grossman, E.R. and Miller, N.A. (2015). A Systematic Review of the Impact of Juvenile Curfew Laws

on Public Health and Justice Outcomes. Am J Prev Med. 49(6): 945-951.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4656116/

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McDowell, D. Loftin C. and Wiersema, B. (2009). The Impact of Youth Curfew Laws on Juvenile Crime

Rates.

https://www.researchgate.net/publication/249718752_The_Impact_of_Youth_Curfew_Laws_on_Juvenile

_Crime_Rates

Myers, D.L. (2016). Juvenile curfew laws: A consideration of something that “doesn’t work”.

EBPSOCIETY: Evidence Based Society.

https://www.ebpsociety.org/blog/education/206-juvenile-curfew-laws

Office of Juvenile Justice and Delinquency Prevention. Juvenile Justice Reform Initiatives in the States

1994-1996.

https://www.ojjdp.gov/pubs/reform/ch2_c.html

Walsh, T.J. (2019). Adults Only: Returning 17 Year Olds to Juvenile Court. Wisconsin Lawyer.

https://www.wisbar.org/NewsPublications/WisconsinLawyer/Pages/Article.aspx?ArticleID=23659

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Title 3. Health and Public Safety - Chapter 308

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CURFEW

308.1. Purpose and Policy

308.2. Adoption, Amendment, Repeal

308.3. Definitions

308.4. Jurisdiction

308.5. Curfew

308.6. Enforcement of Curfew Violations

308.7. Penalties of Curfew Violations

308.1. Purpose and Policy

308.1-1. Purpose. The purpose of this law is to protect the health, safety, and welfare of persons

and property within the Reservation by regulating the activities of minors on the Reservation

during certain hours, while imposing certain obligations and responsibilities upon the parents,

guardians, and/or legal custodians of a minor for the control and supervision of that minor.

308.1-2. Policy. It is the policy of the Nation to support all drug use prevention initiatives of the

Nation by protecting the health, safety, and welfare of persons through the establishment of a

curfew for minors in public spaces within the Reservation during certain hours in an effort to

minimize the opportunity for harm to come to minors during those hours.

308.2. Adoption, Amendment, Repeal

308.2-1. This law was adopted by the Oneida Business Committee by resolution BC-__-__-__-__.

308.2-2. This law may be amended or repealed by the Oneida Business Committee and/or General

Tribal Council pursuant to the procedures set out in the Legislative Procedures Act.

308.2-3. Should a provision of this law or the application thereof to any person or circumstances

be held as invalid, such invalidity shall not affect other provisions of this law which are considered

to have legal force without the invalid portions.

308.2-4. In the event of a conflict between a provision of this law and a provision of another law,

the provisions of this law shall control.

308.2-5. This law is adopted under authority of the Constitution of the Oneida Nation.

308.3. Definitions

308.3-1. This section shall govern the definitions of words and phrases used within this law. All

words not defined herein shall be used in their ordinary and everyday sense.

(a) “Court of Appeals” means the branch of the Nation's Judiciary delegated the authority

of final appeal within the Nation’s Judiciary, as authorized by Oneida General Tribal

Council resolution GTC-03-19-17-A .

(b) “Family Court” means the branch of the Nation’s Judiciary delegated the authority to

administer the judicial authorities and responsibilities of the Nation related to the family

and/or children, as authorized by Oneida General Tribal Council resolution GTC-03-1917-A.

authority of guardianship of a child by a Court for the purpose of managing and caring for

the child. A guardian has the right to make major decisions affecting a child including

education, religious and cultural upbringing, the right to consent to marriage, to enlistment

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in the armed forces, to major surgery and medical treatment and to adoption, or make

recommendations as to adoption.

(d) “Legal custodian” means any person, department, and/or agency, other than a parent

or guardian, to whom legal custody of a child has been granted by Court order and has the

rights and responsibilities for the following:

(1) To have physical custody of the child as determined by the Court, if physical

custody is not with the person having legal custody;

(2) To protect, educate and discipline the child so long as it is in the child’s best

interest; and

(3) To provide the child with adequate food, shelter, education, ordinary medical

care and other basic needs, according to court order. In an emergency situation, a

custodian shall have the authority to consent to surgery as well as any other

emergency medical care needs.

(e) “Member of the Nation” means an individual enrolled in the Oneida Nation.

(f) “Minor” means a person age sixteen (16) years old or younger.

(g) “Nation” means the Oneida Nation.

(h) “Parent” means the biological or adoptive parent of a child.

(j) “Public space” means any public streets, highways, roads, alleys, parks, vacant lots, or

any public lands.

(j) “Relative” means any person connected with a child by blood, marriage or adoption.

(k) “Reservation” means all the property within the exterior boundaries of the Reservation

of the Oneida Nation, as created pursuant to the 1838 Treaty with the Oneida 7 Stat. 566,

and any lands added thereto pursuant to federal law.

308.4. Jurisdiction

304.4-1. Jurisdiction of the Court. The Family Court has jurisdiction over any action brought

under this law.

308.4-2. Personal Jurisdiction. This law applies to:

(a) All members of the Nation, individuals eligible for enrollment in the Nation, and

members of other federally-recognized tribes.

(b) Individuals leasing, occupying or otherwise using fee land owned by the Nation or by

individual members of the Nation; and/or lands held in trust on behalf of the Nation or

individual members of the Nation.

consistent with federal law. An individual shall be considered to have consented to the

jurisdiction of the Nation:

(1) By entering into a consensual relationship with the Nation, or with the Nation’s

entities, corporations, or members of the Nation, including but not limited to

contracts or other agreements; or

(2) By other facts which manifest an intent to consent to the authority of the Nation,

including failure to raise an objection to the exercise of personal jurisdiction in a

timely manner.

308.4-3. Territorial Jurisdiction. This law extends within the Reservation to all land owned by

the Nation and individual trust and/or fee land of a member of the Nation.

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308.5. Curfew

308.5-1. Curfew Established. No minor shall be on any public space either on foot or in any

vehicle driven or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the boundaries of

the Reservation, unless the minor is accompanied by a parent, guardian, or legal custodian.

308.5-2. Parental Responsibility. No parent, guardian, or legal custodian shall knowingly permit

or fail to take action to prevent the minor from being on any public space either on foot or in any

vehicle driven or parked, between the hours of 10:00 p.m. and 6:00 a.m. within the boundaries of

the Reservation.

308.5-3. Exemptions to Curfew. A minor shall not be in violation of the curfew, if at the time of

the alleged violation the minor was:

(a) in the performance of a duty directed by such parent, guardian, or legal custodian;

(b) engaged in employment or an employment related activity, or traveling to or returning

home from employment;

(d) attending an educational, cultural, religious, or recreational activity that was supervised

by adults, or traveling to or returning home from such activity;

(e) on the sidewalk in front of his or her home or an adjacent home;

(f) going to, attending, or returning home from a movie theatre;

(g) engaged in hunting, fishing, or trapping in accordance with the laws, policies, and rules

of the Nation;

(h) exercising rights protected by the Nation’s Constitution and the United States

Constitution, such as free exercise of religion, freedom of speech, and the right of

assembly;

(i) involved in an emergency situation; and/or

(j) engaged in any other activity as deemed appropriate by the Oneida Police Department

officer.

308.6. Enforcement of Curfew Violations

308.6-1. Enforcement Procedure. A suspected violation of curfew shall be enforced by the Oneida

Police Department in the following ways:

(a) A minor who is suspected of violating curfew may be stopped by an Oneida Police

Department officer. No person shall assault, obstruct or flee from any Oneida Police

Department officer enforcing or attempting to enforce the provisions of this law.

(b) The Oneida Police Department officer shall ask the minor’s name, age, and reason for

violating curfew. The minor shall provide the Oneida Police Department officer

identification if available. No person shall falsely represent his or her name or age to an

Oneida Police Department officer.

circumstances that a violation of curfew has occurred and not one of the exemptions in

section 308.5-3 apply, the Oneida Police Department officer may take custody of the minor

for the purpose of returning such minor to the care and custody of a parent, guardian, or

legal custodian.

(d) Once the Oneida Police Department officer has taken the minor into his or her custody,

the minor shall provide the Oneida Police Department officer with contact information for

his or her parent, guardian, or legal custodian. The Oneida Police Department officer shall

contact the minor’s parent, guardian, or legal custodian to come and pick up the minor and

take the minor into his or her care and custody. If the minor’s parent, guardian, or legal

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custodian is unable to pick the minor up, then the Oneida Police Department officer may

bring the minor home to release the minor to the custody and care of the minor’s parent,

guardian, or legal custodian.

(e) If the Oneida Police Department officer is unable to contact the minor’s parent,

guardian, or legal custodian after reasonable efforts are made, the Oneida Police

Department officer shall attempt to locate an adult relative or other responsible adult

willing and able to accept the care and custody of the minor, and may release the minor

into the care and custody of such person.

308.6-2. Warning. The first time a minor is held in custody by an Oneida Police Department

officer for a curfew violation the Oneida Police Department officer shall provide the minor and

the minor’s parent, guardian, or legal custodian a warning and advise the minor and parent,

guardian, or legal custodian of the provisions of this law and that any subsequent curfew violations

may result in the issuance of a citation and the imposition of a penalty.

308.6-3. Issuance of a Citation. Any subsequent time a minor is held in custody by an Oneida

Police Department officer for a curfew violation the Oneida Police Department officer may issue

a citation to the minor and the minor’s parent, guardian, or legal custodian.

(a) A citation for a violation of this law and/or any orders issued pursuant to this law may

include fines and other penalties, as well as conditional orders made by the Family Court.

(b) A citation for a violation of this law shall be processed in accordance with the

procedure contained in the Nation’s laws and policies governing citations.

pre-hearing by the minor and his or her parent, guardian, or legal custodian.

308.7. Penalties of Curfew Violations

308.7-1. Upon a finding by the Family Court that a violation of this law has occurred, the minor

and/or the minor’s parent, guardian, or legal custodian may be subject to the following penalties:

(a) Fines. An individual may be ordered to pay a fine as a result of a violation of this law.

The Oneida Business Committee shall hereby be delegated the authority to adopt through

resolution a fine schedule which sets forth specific fine amounts for violations of this law.

(1) All fines shall be paid to the Judiciary.

(2) Fines shall be paid within ninety (90) days after the order is issued or upheld

on final appeal, whichever is later.

(A) The ninety (90) day deadline for payment of fines may be extended if

an alternative payment plan is approved by the Family Court.

(3) If an individual does not pay his or her fine the Family Court may seek to collect

the money owed through the Nation’s garnishment and/or per capita attachment

process or any other collection process available to the Family Court.

(4) Community service may be substituted for part or all of any fine at the minimum

wage rate of the Nation for each hour of community service.

(b) Community service. An individual may be ordered to perform community service.

Community service can be used in lieu of, or in addition to, a fine.

(1) All community service assignments shall be approved by the Family Court.

The Family Court shall give preference to culturally relevant community service

assignments and/or community service assignments that focus on the betterment of

the individual’s community.

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(2) The Family Court shall provide the individual a written statement of the terms

of the community service order, and a statement that the community service order

is monitored.

(3) The Family Court’s community service order shall specify:

(A) how many hours of community service the individual is required to

complete;

(B) the time frame in which the hours shall be completed;

service assignment;

(D) how the individual shall report his or her hours; and

(E) any other information the Family Court determines is relevant.

participate in a family counseling and/or a parenting program.

(d) Any other penalty as deemed appropriate by the Family Court.

308.7-2. Staying a Curfew Penalty. The Family Court may stay the enforcement of a penalty

issued as a result of a curfew violation for a period of time to be determined by the Family Court.

If the individual maintains compliance with the law during the time period in which the penalty is

stayed, then the Family Court may dismiss the citation. If the individual commits another violation

of the law during the time period in which the penalty is stayed, then the penalty shall go into

effect.

End.

Adopted – BC-__-__-__-__

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FINANCE ADMINISTRATION

Fiscal Impact Statement

MEMORANDUM

TO:

Larry Barton, Chief Financial Officer

RaLinda Ninham-Lamberies, Assistant Chief Financial Officer

FROM:

Rae Skenandore, Financial Management Analyst

DATE:

September 17, 2019

RE:

Fiscal Impact of the Curfew Law

Estimated Fiscal Impact Summary

Law: Curfew Law

Draft 3

Oneida Police Department

Implementing Agency

Oneida Judiciary

Social Services

Estimated time to comply

10 days, in compliance with the Legislative Procedures Act

Estimated Impact

Current Fiscal Year

10 Year Estimate

Indeterminate

Total Estimated Fiscal Impact

II.

Background

This is a new Law that the Tribal Action Plan (TAP) subcommittee recommended. The

Law and the Legislative Reference Office describe the legislation as the following:

The purpose is to regulate the activities of minors on the Reservation during

certain hours.

The Law applies to Oneida Tribal Members, members of other federally

recognized Tribes, on Fee or Trust Lands owned by the Nation and to any other

individuals consenting to the jurisdiction of the Nation.

It is prohibited for minors (Individuals 16 and under) to be on any public space

between 10:00 p.m. and 6:00 a.m. unless the following condition apply and the minor

was:

In the performance of a duty directed by such parent, guardian, or legal

custodian;

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Engaged in employment or an employment related activity, or traveling to

or returning home from employment;

Engaged in interstate travel;

Attending an educational, cultural, religious, or recreational activity that

was supervised by adults, or traveling to or returning home from such activity;

On the sidewalk in front of his or her home or an adjacent home;

Going to, attending, or returning home from a movie theatre;

Engaged in hunting, fishing, or trapping in accordance with the Laws,

policies, and rules of the Nation;

Exercising rights protected by the Nation’s Constitution and the United

States Constitution, such as free exercise of religion, freedom of speech, and the

right of assembly;

Involved in an emergency situation; and/or

10.

Engaged in any other activity as deemed appropriate by the Oneida Police

Department officer.

The Oneida Police Department (OPD) is responsible for enforcing the Law and

may take the minor into custody to release them to a legally responsible adult.

The first offense will result in a warning.

Subsequent violations may result in the issuance of a citation.

Citations may include fines or penalties or other conditional orders

of the Family Court.

(1)

The Law states that citations shall be processed in

accordance with Laws or policies governing citations.

Citations require a mandatory per hearing.

The Family Court may:

Impose a fine to be paid in 90 days to the Judiciary.

Unpaid fines may result in garnishment and/or attachment of per

capita or be subject to any other collection process available to the Family

Court.

Order Community Service monitored by the Family Court.

Order Family counseling and/or parenting programs.

Order any other penalty deemed appropriate by the Family Court.

Stay a penalty.

III.

Methodology and Assumptions

A “Fiscal Impact Statement” means an estimate of the total identifiable fiscal year

financial effects associated with legislation and includes startup costs, personnel, office,

documentation costs, as well as an estimate of the amount of time necessary for an

agency to comply with the Law after implementation.

,CJOOOOO

A good mind. A good heart . A strong fire.

ONEIDA

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Finance does NOT identify the source of funding for the estimated cost or allocate any

funds to the legislation.

The analysis was completed based on the information provided as of the date of this

memo.

III.

Executive Summary of Findings



No fine/fee schedule was provided to include in the analysis.



It is unclear what fines are to be used for.



The Law states that citations shall be processed in accordance with Laws or policies

governing citations, however, there are no Laws or policies currently in place governing

citations.



There is a 90-day timeline listed for the payment of fines, however, there is no timeline

listed for a pre-hearing or hearing date.



It appears that both OPD (citations) and the court can issue fines, but it is unclear what

the parameters are for those fines. According to the Law, the court can waive fines. It is

unclear if they can waive both the citation fine and any court imposed fine. There is also

the potential that a fine paid from a citation would need to be reimbursed by the time of a

hearing or pre-hearing based on these awkward timelines or lack thereof.



According to the Law, “the Oneida Police Department officer may issue a citation to the

minor and the minor’s parent, guardian, or legal custodian”. Also, according to the Law,

“Upon a finding by the Family Court that a violation of this Law has occurred, the minor

and/or the minor’s parent, guardian, or legal custodian may be subject to the following

penalties: (a) Fines”. The Law goes on to state that “If an individual does not pay his or

her fine the Family Court may seek to collect the money owed through the Nation’s

garnishment and/or per capita attachment. However, according to the Trust Enrollment

Director, Minor’s Trust assets cannot be attached for any reason. The Per Capita Law

123.4-9 Attachments. “All per capita payments, except distributions to or from a trust

account for a beneficiary, may be subject to attachment prior to distribution in accordance

with this section.” The Minor’s Trust is an example of a trust account that doesn’t allow

attachments on payments into or distributions out of the account. The analysis

specifically states that parents, guardians or legal custodians can be garnished or their Per

Capita attached. The Law is not as clear on this point that it does not apply to any fines

of the minor.



The Family Court has the ability to order Community Service, however there are no

programs in place within the Nation that provide and/or monitor community service.

,CJOOOOO

A good mind. A good heart . A strong fire.

ONEIDA

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Therefore, this is an additional burden on the Court. Also, in the absence of any specific

program for community service, what is acceptable for this order is ambiguous.



It is unclear how the costs of ordered counseling or other parental programs will be

accounted for. It is unclear if this is going to be an additional cost to the parents or if the

Judiciary will be charged by Social Services.



According to the analysis, OPD received a total of eighty-eight (88) juvenile related calls

in 2018. Of that, only sixteen (16) of those calls occurred between the hours of 10 p.m.

and 6 a.m. Given this, it is still not possible to calculate the potential volume of the

impact of implementing this Law on the demands of the Family Court docket or the other

Social Service programs.



According to the Governmental Services Division (GSD), Parenting may be able to handle the

referrals from the Family Court, but it really depends on the volume. Their priority for Parenting

at this time is for families who are involved with Child Welfare. They are also concerned with

the curriculum of their parenting programs and meeting the requirements of a court order. This

fact alone would require GSD to meet with the Judiciary to determine their requirements. GSD,

or more specifically Family Services, was not familiar with impacts to their area and believes that

is a topic that still needs to be explored.



According to the Oneida Police Department and the Oneida Judiciary the Law can be

implemented within the 10-day time frame and any associated costs will be born within

their existing budgets. However, given the other unknown variables, the Fiscal Impact is

indeterminate.

III.

Financial Impact

Indeterminate.

IV.

Recommendation

Finance Department does not make a recommendation in regard to course of action in

this matter. Rather, it is the purpose of this report to disclose potential financial impact of

this legislation, so that the Oneida Business Committee and General Tribal Council has

the information with which to render a decision.

,CJOOOOO

A good mind. A good heart . A strong fire.

ONEIDA

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Oneida Nation

Oneida Business Committee

Legislative Operating Committee

HANDOUT

TO:

FROM:

DATE:

RE:

PO Box 365 • Oneida, WI 54155‐0365

Oneida‐nsn.gov

Lawrence E. Barton, Chief Financial Officer

Ralinda R. Ninham-Lamberies, Assistant Chief Financial Officer

Rae M. Skenandore, Financial Management Analyst

Legislative Operating Committee

October 2, 2019

Response to the Curfew Law Fiscal Impact Statement

On September 18, 2019, the Legislative Operating Committee received the fiscal impact statement

for the proposed Curfew law developed by the Finance Department. The Legislative Operating

Committee is providing this memorandum to express dissatisfaction with the Curfew law fiscal

impact statement.

The Legislative Procedures Act requires that a fiscal impact statement be provided for all proposed

legislation of the Nation. [1 O.C. 109.6-1]. The fiscal impact statement is an estimate of the total

fiscal year financial effects associated with the proposed legislation, and can include:

 startup costs;

 personnel;

 office costs;

 documentation costs; and

 an estimate of the amount of time necessary for an individual or agency to comply with the

law after implementation. [1 O.C. 109.3-1(c)].

The fiscal impact statement identifies that the Oneida Police Department and the Oneida Judiciary

provided that the Law can be implemented within the ten (10) day time frame, and that any

associated costs will be born within their existing budgets. Although this information appears to

answer what is required of a fiscal impact statement, the Finance Department came to an

indeterminate conclusion for the total estimated fiscal impact. The fiscal impact provides that the

indeterminate conclusion is based on “the other unknown variables.” Although the fiscal impact

statement states other variables prevent the Finance Department from coming to a determination,

the fiscal impact statement lacks any discussion or explanation as to what variables prevent the

fiscal determination.

Instead, the fiscal impact statement provides an “Executive Summary of Findings.” The Executive

Summary of Findings is composed of various comments and questions, most of which are outside

the scope of what a fiscal impact statement should address. The comments and questions provided

in the Executive Summary are inappropriate for inclusion in a fiscal impact statement and would

be more appropriately submitted during the public comment period for proposed legislation where

members of the community are encouraged to share personal opinions and questions on proposed

legislation.

The Legislative Operating Committee is responding to the Executive Summary of Findings in the

fiscal impact statement in an effort to ensure that there is no confusion or misleading information

Page 1 of 7

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left unaddressed before the proposed law moves forward to the Oneida Business Committee for

adoption.

1. No fine/fee schedule was provided to include in the analysis.

This comment expresses that no fine or fee schedule was provided to the Finance Department for

inclusion in the fiscal impact statement. The Curfew law clearly provides that the Oneida Business

Committee shall be delegated the authority to adopt through resolution a fine schedule which sets

forth specific fine amounts for a violation of this law. [3 O.C. 308.7-1(a)].

Although the Legislative Procedures Act requires that a fiscal impact statement be provided for all

proposed legislation of the Nation, a fiscal impact statement is not required for resolutions.

Therefore, it was not required to provide the Finance Department a copy of the penalty and fine

schedule as the fiscal impact statement should be focused on the fiscal impact of the provisions

included in the proposed law itself, and not any accompanying resolutions.

2. It is unclear what fines are to be used for.

This comment expresses concern that the Law is unclear as to what the curfew fines are to be used

for. The only thing unclear about this statement is how the specific use of fines collected for

violations of a law is relevant to a fiscal impact statement.

Typically, fines collected as a result of a citation or fine are contributed back to the Nation’s

General Fund.

In accordance with section 308.7-1(a) the Oneida Business Committee will be asked to consider

the adoption of a resolution which contains a fine schedule for curfew violations. The resolution

that the Legislative Operating Committee is proposing to the Oneida Business Committee titled,

“Curfew Law Penalty and Fine Schedule” contains a provision which states that any money

received from fines collected for violations of the Curfew law shall be contributed to drug use

prevention initiatives such as the Tribal Action Plan. Adoption of the fine schedule resolution and

its contents is at the discretion of the Oneida Business Committee.

3. The Law states that citations shall be processed in accordance with Laws or policies

governing citations, however, there are no Laws or policies currently in place

governing citations.

It is unclear how this comment regarding current laws and policies of the Nation related to

governing citations relates to the development and determinations of a fiscal impact statement.

This statement that “A citation for a violation of this law shall be processed in accordance with the

procedure contained in the Nation’s laws and policies governing citations” is a general statement

providing that any and all current or future laws of the Nation that provide procedures relating to

citations will be followed. [3 O.C. 308.6-3(b)]. This statement informs the reader that the Curfew

law will not provide the citations process, and instead this information will be provided elsewhere.

,CJOOOOO

A good mind. A good heart . A strong fire.

Page 2 of 7

ONEIDA

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The Legislative Operating Committee is currently developing a Citations law which will provide

a consistent process for handling citations of the Nation in order to ensure equal and fair treatment

to all persons who come before the Judiciary to have their citations resolved. In the absence of a

Citations law, the Oneida Judiciary and the Oneida Police Department will use existing laws,

policies, and procedures such as the Oneida Judiciary Rules of Civil Procedure.

4. There is a 90-day timeline listed for the payment of fines, however, there is no timeline

listed for a pre-hearing or hearing date.

A timeline for a pre-hearing or hearing date is irrelevant to the fiscal impact statement. Without

any legislative requirements for the scheduling of pre-hearings or hearings, the scheduling of these

citation hearings will be at the discretion of the Oneida Judiciary.

Additionally, the Legislative Operating Committee is currently developing a Citations law which

will set forth the process, procedures, and timelines that will be used for handling the Nation’s

citations.

5. It appears that both OPD (citations) and the court can issue fines, but it is unclear

what the parameters are for those fines. According to the Law, the court can waive

fines. It is unclear if they can waive both the citation fine and any court imposed fine.

There is also the potential that a fine paid from a citation would need to be reimbursed

by the time of a hearing or pre-hearing based on these awkward timelines or lack

thereof.

Not only is the relevancy of this comment to the scope of the fiscal impact statement unclear, but

the comment demonstrates a general lack of understanding of how citations work. The Law

delegates authority to the Oneida Police Department to issue citations to a minor who violates the

curfew and the minor’s parent, guardian, or legal custodian. [3 O.C. 308.6-3]. A citation is a legal

document that serves as a notice or summons to appear in a court in response to a charge against

an individual of a violation of law. Although the citation may contain information such as the fine

or penalty that may be imposed against the defendant for a violation of a law, it is not the Oneida

Police Department that is imposing a penalty against an individual. [3 O.C. 308.6-3(a)]. The Law

clearly states that it is the Oneida Family Court that may impose a penalty against the minor and/or

the minor’s parent, guardian, or legal custodian upon a finding that a violation of this Law has

occurred. [3 O.C. 308.7-1]. The Family Court is then delegated the authority to stay the

enforcement of a penalty issued as a result of a curfew violation for a period of time to be

determined by the Family Court. [3 O.C. 308.7-2]. This means that if the individual maintains

compliance with the law during the time period in which the penalty is stayed, the Family Court

may dismiss the citation. [3 O.C. 308.7-2].

The additional questions in this comment regarding what fines the Oneida Family Court may

waive, or the reimbursement of fines based on “these awkward timelines or lack thereof” are

irrelevant as they are misguided and unrelated to how the Family Court will handle citations.

,CJOOOOO

A good mind. A good heart . A strong fire.

Page 3 of 7

ONEIDA

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6. According to the Law, “the Oneida Police Department officer may issue a citation to

the minor and the minor’s parent, guardian, or legal custodian”. Also, according to

the Law, “Upon a finding by the Family Court that a violation of this Law has

occurred, the minor and/or the minor’s parent, guardian, or legal custodian may be

subject to the following penalties: (a) Fines”. The Law goes on to state that “If an

individual does not pay his or her fine the Family Court may seek to collect the money

owed through the Nation’s garnishment and/or per capita attachment. However,

according to the Trust Enrollment Director, Minor’s Trust assets cannot be attached

for any reason. The Per Capita Law 123.4-9 Attachments. “All per capita payments,

except distributions to or from a trust account for a beneficiary, may be subject to

attachment prior to distribution in accordance with this section.” The Minor’s Trust

is an example of a trust account that doesn’t allow attachments on payments into or

distributions out of the account. The analysis specifically states that parents,

guardians or legal custodians can be garnished or their Per Capita attached. The Law

is not as clear on this point that it does not apply to any fines of the minor.

This comment implies that the Curfew law is not clear as to its application to the Per Capita law.

However, it is only the relevancy of this comment to the scope of the fiscal impact statement that

is unclear.

The Curfew law simply provides that if an individual does not pay his or her fine the Family Court

may seek to collect the money owed through the Nation’s garnishment and/or per capita

attachment process or any other collection process available to the Family Court. [3 O.C. 308.71(a)(3)]. Many laws of the Nation contain a provision specifically delegating authority to a

department of the Nation to use the attachment process contained in the Per Capita law to pursue

uncollected fines.

The purpose of this provision is to allow the Family Court the option to pursue per capita

attachment for unpaid fines when appropriate. Any attempt by the Family Court to attach the per

capita of an individual must comply with the provisions found in the Nation’s Per Capita law. [1

O.C. 123.4-9(d)]. Therefore, it is the Per Capita law, and not this Curfew law, that would provide

the detail as to when the Family Court may attach the per capita of an individual.

Per capita attachment may not be appropriate as a means to address fines owed by a minor child,

but it may be an appropriate measure to seek unpaid fines from a minor’s parent, guardian, or legal

custodian. The Family Court is not required to use the Nation’s per capita attachment process, just

as the Family Court is not required to impose fines as a penalty for curfew violations. The

discretion lies with the Family Court.

7. The Family Court has the ability to order Community Service, however there are no

programs in place within the Nation that provide and/or monitor community service.

Therefore, this is an additional burden on the Court. Also, in the absence of any

specific program for community service, what is acceptable for this order is

ambiguous.

,CJOOOOO

A good mind. A good heart . A strong fire.

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The comment that the use of community service as a penalty for curfew violations is a burden for

the Family Court is irrelevant to the determination of this fiscal impact. The Family Court has

already provided that the Judiciary can implement the Law within ten (10) business days with any

costs being born within its existing budget.

Other laws of the Nation, such as the Domestic Animals law [3 O.C. 304.13-5(b)] and the Child

Support law Rule No. 2 Enforcement Tools [Rule No.2 - 2.8-2(c)] also delegate authority to the

Judiciary to utilize community service.

Additionally, the comment that in the absence of any specific program for community service,

what is acceptable for this order is ambiguous is also mistaken. The Family Court is provided the

discretion to order community service as a penalty for violations of the Curfew law. [3 O.C. 308.71(b)]. The Law does not require the Family Court to find potential community service assignments

for individuals. Ultimately, it is up to the individual to secure a community service assignment –

whether that community service assignment is within a department of the Nation or held outside

of the Nation. The Family Court is required to approve community service assignments, and the

Law is clear that the Family Court is directed to give preference to those community service

assignments that are culturally relevant or focus on the betterment of the individual’s community.

[3 O.C. 308.7-1(b)(1)].

The Law also requires that the Family Court’s order for community service include the following

specific information:

 Statement that the community service order is monitored;

 How many hours of community service the individual is required to complete;

 The time frame in which the hours shall be completed;

 How the individual shall obtain approval for his or her community service assignment;

 How the individual shall report his or her hours; and

 Any other information the Family Court determines is relevant.

[3 O.C. 308.7-1(b)(1)-(3)].

It is unclear what the Finance Department has determined is ambiguous about the requirements of

the Family Court’s potential orders for community service.

8. It is unclear how the costs of ordered counseling or other parental programs will be

accounted for. It is unclear if this is going to be an additional cost to the parents or if

the Judiciary will be charged by Social Services.

Although this comment questions whether the cost of participation in a parenting program

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.