Land Assignment Act
ORDINANCE NO. 91 3
ADOPTED 5-30-91, RESOLUTION NO. 91-05-17
TABLE OF CONTENTS
Statement of Source of Authority
Statement of Purpose
Article I - Definitions of Terms
Article II - General Assignment Policy
Article III - Eligibility for Assignments
Article IV - Establishment of Organizational Responsibility and Authority
Article V - Application for Assignment
Article VI - Preferences
Article VII - Transfer of Assignments
Article VIII - Special XL Ranch and Rancheria Provisions
Article IX - Improvements on Assignments
Article X - Relinquishment and Cancellation
Article XI - Enforcement
Article XII - Miscellaneous
This ordinance is promulgated pursuant to authority contained in the Constitution of the Pit River Tribe adopted August 15, 1987, and approved by the Assistant Secretary of the Interior for Indian Affairs on December 10, 1987.
This ordinance is intended to establish policy and procedures governing tribal land assignment and occupancy privileges of individual tribal members so as to conserve, protect, and develop tribal lands and resources in such a way as to promote and otherwise safeguard the interest of the Tribe.
This ordinance may be cited as the "Pit River Land Assignment Act."
Section 1.01. In construing the provisions of this Ordinance, the following words or phases shall have the meaning designated unless a different meaning is expressly provided, or the context clearly indicated otherwise:
(a) Age of Majority shall mean eighteen (18) years of age.
(b) Assignee shall mean one to whom an assignment of tribal land is made in accordance with the provisions of this Ordinance.
(c) Assignment shall mean a formal right to use tribal land subject to provisions of this Ordinance as now set forth or as it may be amended from time to time.
(d) Beneficial Use shall mean the right to use and enjoy an assigned parcel of land. As used this Ordinance, any beneficial use is subject to both federal and tribal laws governing the use of tribal lands.
(e) Commercial Use shall mean any activity entered into or carried out for the purpose of earning a monetary profit other than activities that are incidental to the primary residential or other similar personal use (e.g., home crafts or door to door type sales such as Avon, Amway, etc.), where said use does not involve regular onsite retail sales and is incidental to the use of the site for residential purposes.
(f) Dependent shall mean one's spouse, minor children, or a person who received major support from and who has resided with the applicant for a period of at least one year immediately preceding the time period under consideration.
(g) Enrolled Member means a person who meets the membership criteria of Article III, Section 1 or 2, of the Constitution of the Pit River Tribe, and who has satisfied the procedural requirements for enrollment contained in the Enrollment Ordinance of the Pit River Tribe, Ordinance No. 88-1.
(h) Guardian of the Tribal Estate shall mean an adult person vested by tribal law and Council action with authority to manage the legal affairs of a minor child relative to tribal assets and in accordance with any limitations set forth by the Council in an appointing Order of the Council designating a guardian.
(i) Improvement shall mean a valuable improvement or addition made to an assignment or amelioration in its condition amounting to more than mere repairs or replacement or waste intended to enhance its beauty, value, or utility, or to adapt it for new or further purposes. Notwithstanding any other provisions of this Ordinance, the term improvement" shall include any and all house, garages, barns, and sheds.
(j) Public Nuisance shall mean anything which is injurious to health, or is indecent or offensive to senses, or an obstruction to the free use of property, so as to interface with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any public park, street or highway.
(k) Spouse shall mean husband or wife, within a marriage established under state law or tribal law.
(l) Tribe shall mean the enrolled members of the Pit River Tribe, organized under the Constitution of the Pit River Tribe adopted August 15, 1987 and approved by the Assistant Secretary of the Interior on December 10, 1987.
Section 2.01 An assignment does not vest title to the assigned land in the assignee, but is an exclusive use right only, which right cannot be sold or inherited and which terminates upon cancellation, relinquishment of the assignment, or upon the death of assignee.
Section 2.02 Assignments which are granted pursuant to this Ordinance are granted for the specific purpose of providing a homesite and for other similar uses. Assignments shall be of a size to accommodate the objective of the assignment; provided that, the established policy for residential assignments shall be that, absent good cause, such assignments shall not exceed a maximum size of one acre. Assignments may not be put to commercial use without express prior written consent of the Tribal Council.
Section 2.03 All timber and minerals, including sand, gravel, oil, and gas, are reserved to the Pit River Tribe, with the right to explore, lease, or dispose of same in accordance with the Constitution of the Pit River Tribe, regulations prescribed by the Secretary of the Interior and other applicable law.
Section 2.04 The right to grant easements and right-of-way over an assignment for public purposes is reserved to the Pit River Tribe. Also reserved to the Tribe and its members is the right to reasonable ingress and aggress over any assignment to other tribal lands. The right to grant right-of-way and right of ingress and egress over an assignment is subject to payment to the assignee for any damage to the assignee's improvements or crops, compensation to be determined by the Tribal Council.
Section 2.05 An assignment and the use thereof is subject to all applicable laws and ordinances, including, but not limited to, tribal land use ordinances and health and safety ordinances.
Section 3.01. Eligibility Criteria. Except as otherwise set forth in this Ordinance, to be eligible for an assignment, an applicant must meet all of the following requirements at the time of application:
(1) Must be an enrolled member of the Pit River Tribe.
(2) Must be at least eighteen (18) years of age as of the date of application for assignment.
(3) Must be without an assignment of tribal land.
(4) Must not have had a previous assignment canceled for cause within five years prior to the date of application.
Section 4.01 . Tribal Lands Office. There is hereby established the Pit River "Tribal Lands Office", which shall be headed by the lands officer who shall be the Secretary of the Pit River Tribe or such other person as may be appointed by the Tribal Council. The lands officer may be assisted by such staff members as the Tribal Council may authorize. The lands officer and staff member shall be subject to the policies and procedures of the Pit River Tribe and shall be paid such salaries, if any, as the Tribal Council shall in its budget provide.
Section 4.02. Land Committee. The Land Committee shall consist of a total of seven tribal members, who shall constitute one representative from the following Rancheria and Tribal Trust areas: Roaring Creek Rancheria, Montgomery Creek Rancheria, Big Bend Rancheria, Lookout Rancheria, Likely Rancheria, XL Rancheria, and the 79 acres in Burney. Members shall be selected by the residents of each Rancheria or Tribal Trust Area represented and the names forwarded to the Tribal Council for confirmation. Representatives for areas with no residents shall be appointed by the Council. The first members of the committee will be appointed within thirty days of adoption of this ordinance. Thereafter, members of the committee shall be appointed in the month following the annual general meeting. Three of the committee members first appointed after adoption of this ordinance shall serve one year terms. Other and subsequent appointments shall be for two year staggered terms. The Land Committee shall assist the Tribal Council on Pit River Tribal Land matters. The Land Committee shall be subject to such Policies and Procedures of the Pit River Tribe as may be applicable to committee members and shall be compensated only as and if provided for by the Tribal Council in its budget.
Section 5.01. All applicants must make application to the Tribal Council for an assignment of tribal land. Applications for assignments shall be filed with the Tribal Lands Officer and shall be in writing, setting forth the name of the person applying for land, sufficient information to show that the applicant meets all of the requirements set forth in Article III, and as accurate a description of the land desired as circumstances will permit.
Section 5.02. The Tribal Lands Officer, in conjunction with the Land Committee shall review all applications in the order in which they are received to determine whether they are properly prepared and to check whether applicants meet all eligibility requirements of this Assignment Ordinance. Incomplete applications shall be returned to the applicant with instructions for properly completing an application.
Section 5.03. Within 60 days of receipt of an application, properly prepared, the Tribal Lands Officer shall place the application request on the Tribal Council Agenda. At least 10 days before the agenda date, notice of the agenda date, including identification of the applicant, designation of land applied for and the recommendation of the Tribal Land Committee to either grant or deny the application, shall be posted at the tribal office and in a conspicuous location within the Rancheria or other tribal trust land area within which the land applied for is located. The Tribal Council shall consider the application, the recommendation of the land committee and such additional information as may be presented by the applicant, and shall thereafter, by formal resolution, either approve or disapprove the application. The decision of the Tribal Council is final. Within 15 days after rendering such decision, the Council shall proceed as follows:
(a) When an application is approved by the Tribal Council, the Council shall cause to be issued an assignment instrument to the assignee.
(b) When application is disapproved by the Tribal Council, the Council shall cause the applicant to be so advised, in writing, with the reason or reasons for such rejection set forth.
Section 5.04 The Tribal Council shall maintain a permanent record on each individual assignment, including action regarding disposition of applications thereof.
Section 5.05. Except as otherwise set forth herein, no assignment shall be made of parcels considered to be more valuable to the Tribe as a tribal holding for conservation or commercial purposes.
Section 6.01. Except as set forth in Article VI below, preference in the granting of assignments shall be given to otherwise eligible applicants in the order of preference a follows:
(1) Heads of families with dependent children
(2) Elderly applicants, 55 years or older
(3) Handicapped applicants
Section 7.01. An assignment may be exchanged for another assignment of equal or greater value with the approval of the Tribal Council. An assignment may not be leased or rented except in connection with an absence from the Reservation directly connected to attendance at an educational institution off of the reservation, military service , incarceration, or temporary employment not exceeding 24 months, or, with the express written approval of the Tribal Council; provided that, no such lease or rental may exceed a term of five years.
Section 7.02. Successor Assignees.
(a) An assignment is no subject to inheritance. However, an assignee may designate a beneficiary to receive his or her assignment in the event of his or her death. The premises shall thereafter and upon the death of the assignee be assigned to the named beneficiary, provided he or she is eligible to hold an assignment and makes application for the premises.
(b) If a beneficiary designated by an assignee to receive his or her assignment upon the assignee's death is not eligible for an assignment pursuant to Article III above, said beneficiary shall be entitled to elect as follows:
(i) Within 120 days of the death of the assignee, choose another eligible person to receive the reassignment under this section or,
(ii) If the beneficiary designated by the assignee is the spouse or minor child of the assignee, the beneficiary may:
(A) In the case of a spouse, elect to continue in occupancy for life of the said spouse, assuming for that period all rights and responsibilities of the deceased assignee.
(B) In the case of a minor child of the assignee, the child shall be entitled to continue occupancy, under the care of a suitable Guardian of the Tribal Estate, until said child reached the age of majority.
(c) In the event of the death of an assignee who has not designated a beneficiary, preference in reassignment of the premises shall be given to the surviving spouse or children of the assignee, providing they are otherwise eligible to hold an assignment under the requirements set forth in Article III, above. If the spouse or a minor child of the assignee is not eligible to hold an assignment, said spouse or minor child may petition the Tribal Council to request they be granted the option set forth in section above.
Section 7.03. When a minor is entitled to receive an assignment under the limited circumstance set forth above, the Tribal Council shall appoint a "Guardian of the Tribal Estate" (hereinafter "guardian") to hold the assignment until the beneficiary reached the age of majority. The guardian shall utilize the assignment in a manner which is in the best interest of the beneficiary. Any minor over the age of twelve years who is the subject of such a guardianship and any adult member shall have the right to petition the Council to have the guardian removed. The Tribal Council shall remove the guardian and appoint a new guardian for the beneficiary if the Council, after giving noticed to the guardian and after a hearing, determines that the guardian has not utilized the assignment to the best interest of the beneficiary. The person appointed guardian by the Council shall be responsible for maintaining the assignment and otherwise complying with the provisions of this Ordinance.
Section 7.04. Any provision in this ordinance authorizing occupancy of an assignment by a non-tribal shall only be applicable in the event of death of the assignee and under limited circumstances set forth in this ordinance. In the event of domestic separation or dissolution of marriage, the non assignee spouse and/or minor child of an assignee shall not be granted any right to temporary occupancy under this ordinance.
Section 7.05 Upon becoming eligible for an assignment pursuant to this Article, the eligible beneficiary shall within thirty (30) days of receipt from the Tribe of written notice of eligibility, or 180 days from the date said beneficiary first becomes eligible, whichever is soonest, make application for said assignment in accordance with the regular procedure set forth in Article V.
Section 801. Rancherias
(a) This section shall apply to the unallotted Pit River trust lands known as Big Bend, Montgomery Creek, Roaring Creek, Likely, Lookout, and the forty (40) acres acquired adjacent to Montgomery Creek in 1984, and the 79 acres in Burney held in trust for the Pit River Tribe (hereinafter referred to collectively as "Rancheria Land".
(b) Absent good cause to the contrary, any person who meets all of the following criteria shall be guaranteed continued use and occupancy of Rancheria land via an assignment of said land:
(i) Pit River Indian
(ii) Head of household
(iii) Actual residential occupant on Rancheria land on August 15, 1987 and has resided on said land for at least three (3) years prior to August 15, 1987; or, who previously resided on Rancheria land, but has since moved off for socioeconomic reasons with to reestablish residency.
(c) Notwithstanding any provisions in the Ordinance to the contrary, any person residing on Rancheria lands on August 15, 1989, is eligible to apply for a home site assignment of the land he/she resided upon, which application may be granted in accordance with and subject to this Ordinance.
(d) Persons eligible for assignment under this section shall, within 90 days of receipt from the Tribe of written notice of eligibility, or 180 days of the effective date of this Ordinance, whichever is soonest, make application for said assignment in accordance with the regular procedure set forth in Article V of this Ordinance. Failure to make timely application is sufficient cause to deny an application made under this section.
Section 8.02 XL Ranch. There are on the XL Ranch certain lands and structures which have been assigned to specific persons under revocable permits issued by the Bureau of Indian Affairs and/or the Pit River Home and Agricultural Cooperative Association. Said revocable permits did not create or confer upon any individual any vested rights to XL Ranch lands or improvements, and the Tribe does not recognize the existence of any such rights. However, in order to avoid the imposition of undue hardship upon tribal members who in good faith have lived on the XL Ranch pursuant to an in compliance with such revocable permits, and notwithstanding any provisions in this Ordinance to the contrary, the Tribe hereby establishes the following procedure to ensure that said members receive preference in the assignment of such tribal lands as they heretofore have used and occupied under and in compliance with revocable permits.
(a) Any tribal member who, on February 3, 1975, held revocable home site and farm/pasture field permits shall be entitled to apply for a lifetime, noninheritable assignment of the same home site and farm/pasture field, subject to the same terms and conditions as his/her revocable permit in effect on February 3, 1975, and such application shall be granted in accordance with the regular procedure established in this Ordinance.
(b) If the permit holder as of February 3, 1975, is deceased, his/her resident spouse or an adult Indian member of the deceased permittee's immediate family who was an actual and permanent resident of the deceased permittee's household on the XL Ranch on February 3, 1 975, shall be entitled to apply for the no inheritable lifetime assignment for which the deceased permittee would have been eligible if living. No further or other preferences in the assignment of tribal lands of the XL Ranch shall be given to such assignee.
(c) No permittee as of February 3, 1975, shall be entitled to the preferential assignment of more than one home site and/or farm/pasture field; no permittee or successor of a deceased permittee shall be entitled to the preferential assignment of any land not actually permitted to him/her or his/her predecessor on February 3, 1975.
(d) Each permittee to whom a lifetime assignment is made and who actually was engaged in raising cattle on the XL Ranch on February 3, 1975, shall be entitled during the duration of his/her assignment to continue to use the XL Ranch grazing lands to raise his/her own cattle, provided that the Tribal Council shall have full authority to assign all grazing lands and to determine the number of cattle which may be pastured on each grazing unit.
(e) Persons eligible for assignment under this section shall, within 90 days of receipt from the Tribe of written notice of eligibility, or 180 days of the effective date of this Ordinance, which ever is earlier, make application for said Article W of this Ordinance. Failure to make timely application is sufficient cause to deny an application made under this section. An applicant under this section bears the burden of providing that he/she is eligible for an assignment under this section.
Section 9.01 Improvements affixed or annexed to the realty shall be considered part of the real property belonging with the land and shall remain on the assignment unless their removal is authorized by the Tribal Council. A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, or shrubs; embedded in it, as in the case of pipelines, walls or fences; permanently resting upon it, as in the case of houses or other buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, and screws. The right of the assignee to the used of such fixtures, whether or not placed on the assigned land by the assignee, shall be conterminous with the duration of the assignment.
Section 9.02 If an assignment is relinquished or canceled, or if the assignee is deceased and without qualified heirs, any personal property of the assignee must be removed or otherwise disposed of within 180 days after formal written notice by the Tribal Council; otherwise, said personal property escheats to the Tribe. The Tribal Council shall have the authority, upon a showing of good cause, to extend the removal time beyond 180 days for a reasonable period in order to prevent undue hardship; and may, at its option, pay to the owner the value of said personal property as determined by the Council.
Section 10.01 Any assignee may relinquish his assignment at any time by giving written notice to the Tribal Council. Upon relinquishment, the premised may be assigned to any eligible assignment applicant.
Section 10.02 Assignments which are granted pursuant to this ordinance are granted for the specific purpose of providing a home site for the assignee and for purposed of being put to other similar personal beneficial uses. Assignments so granted are subject to cancellation for violation of any of the following provisions.
(1) The Assignee shall comply with all terms of this ordinance was well as with the terms of any agreements entered into respecting said assignment, including but not limited to, agreements respecting housing on said assignment.
(2) The assignment and improvements thereon shall be maintained in a neat manner and subject to any sanitation regulations existing at the time of the assignment is made and to any sanitation regulations which may be enacted subsequently by the Council.
(3) Assignments shall not be used for unlawful purposes.
(4) Assignments shall not be transferred, assigned or exchanged without the approval of the Tribal Council and may not be rented or leased, except as set forth in section 6.01, above.
(5) Improvements which are part of the real property shall not be removed without authority from the Tribal Council.
(6) An assignment shall not be used in such a manner as to create a public nuisance, or allow conditions to exist which would endanger life or the property of any assignee.
(7) Absent prior written consent of the Tribal Council for good cause shown, failure of the assignee to use the assignment for a period of twelve (12) consecutive months shall be sufficient cause for cancellation.
Section 11.1 In accordance with the procedure set forth in section *** 11.3, below, the Tribal Council shall make a determination as to whether or not there has been a violation of this Ordinance. Upon a finding that an individual has intentionally violated a provision of this Ordinance, including failure to rectify a determined violation within a reasonable time period or as more particularly prescribed by the Council, the Tribal Council shall, at this option, proceed as follows:
(a) Initiate proceedings in any forum of competent jurisdiction, at law or in equity against any person or persons violating or attempting to violate this ordinance. The remedy sought may be to restrain violation or to recover damages or both, including legal cost incurred.
(b) Initiate direct enforcement action by the Tribal Council as follows:
(1) Cancel the assignee's assignment; or
(2) Impose a monetary fine not to exceed $1,000, or impose other punitive actions such as withdrawal of eligibility to participate in tribal programs and/or suspension of tribal privileges, such as elimination of a violator's right to designate an heir under paragraph 7.02 (a) of this ordinance
Section 11.2 In any enforcement action before the Tribal Council, the maximum penalty for violation of any provisions of this Ordinance shall be cancellation of the assignment, ejectment of an assignee form the assignment, a fine of not more than $1,000, and assessment for damages caused by any such violation(s). A violation of any regulation promulgated under this Ordinance shall be a violation of this Ordinance.
Section 11.3 Any person who shall violate a provision of this Ordinance shall be served fifteen (15) days written notice to appear before the Tribal Council. Each person appearing before the Tribal Council shall be given an opportunity to be heard including the right to be represented by counsel and the right to present witnesses on his/her behalf.
Section 11.4 Cancellation of the assignment shall be mandatory for more than three violations of this Ordinance within a period of one year.
Section 12.1 Savings Clause. If any provision of this Ordinance is found to be contrary to any tribal or federal law by a court of competent jurisdiction, only that provision shall be stricken and all other provisions of this Ordinance shall remain if effect.
Section 12.2 Severability. If any provision of this Ordinance shall, in the future, be declared invalid by a court of competent jurisdiction, the invalid provisions shall be severed and the remaining provisions shall continue in full force and effect.