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About Spilyay tymoo. (Warm Springs, Or.) 1976-current | View Entire Issue (May 7, 2009)
Spilyay Tym oo, Wgrro Springs, Oregon Page 9 M ay 7, 2 0 0 9 Proposed Amendments to the Warm Springs Tribal Code The Justice Team has presented the following proposed amendments to the Warm Springs Tribal Council for con sideration. The Tribal Council and the Justice Team now seek input from the commu nity on these proposals. The purpose of these amendments is to apply the Tribal Council’s directives against trafficking, manufacturing, and use of illegal drugs, as well as for ensur ing that Warm Springs is a safe place to live and raise a family. Comments can be made in writing. Please send written comments to Warm Springs Justice Team, PO Box 850, Warm Springs, OR 97761 orbring them to the Warm Springs Tribal Court. Written comments will be accepted through May 29, 2009. A l l comments will be reviewed and suggested changes to the proposed amend ments will be presented to- the Tribal Council in June 2009.. These proposed amendments affect Chapter 305 — Crimes and Chapter 307 Liquor Violations of the Warm Springs Tribal Code. The Rules of Court will also be amended to provide enhanced penalties for serious crimes. The following are the proposed amendments: A. Chapter 305 Section. IV — Sex Crimes 305.35 Transmission of Sexu ally Transmitted Disease Any person who recklessly, know ingly, or intentionally infects another person with a sexually transmitted disease shall be deemed guilty o f an offense. In addition to any sentence imposed by the Tribal C ourt for a violation o f this provision, a person so convicted shall be ordered and compelled to receive treatment for such disease. B. C h ap ter 305 S ection V Crimes Against Public Peace and O rder 305.421 Animal Fighting. Any person commits the crime o f animal fighting if he: (1) Owns, trains, or orders the training o f an animal with the inten tion that the animal engage in an ex hibition o f fighting; or (2) Promotes, conducts, partici pates in or is present as a spectator at an exhibition o f fighting or prepa rations thereto; or (3) Keeps or uses, or in any, way is connected with or interested in the management of, or receives money for the admission o f any person to any place kept or used for the pur pose o f an exhibition o f fighting; or (4) Knowingly suffers or permits any place over which the person has possession or control to be occu pied, kept or used for the purpose o f an exhibition o f fighting. or conspires with another person to vio late p arag rap h (1) o f th is sectio n 305.453; shall be deem ed guilty o f cheating. D. Chapter 305 Section V ^C rim es Against Public Peace and O rder Delete 305.466 Narcotics, Danger ous D ru g s, H a llu c in o g e n s an d Deliriants Delete 305.467 D rug Paraphernalia E. Chapter 305 Section V —Grimes Against Public Peace and O rder (1) 305.483 Assaulting a Law En forcement or Service Animal. Any person who knowingly causes physical injury to or the death o f a law enforce m ent or service animal, knowing that the animal is a law enforcement or ser vice animal, and the injury or death oc curs while the law enforcement or ser vice animal is being used in the lawful discharge o f its duties, shall be deemed guilty o f assaulting a law enforcement or service animal. (2) A s used in WSTC 305.483: (a) “ Law e n fo rc e m e n t an im al” means an animal used in law enforce m ent work under the control o f a po lice officer, corrections officer, or pro bation officer. (b) “Service animal” means a search and rescue animal, guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. F. Chapter 305 Section VI — D rug Related Crimes 305.501 D efinitions for WSTC 305.501 to WSTC 305.575. (1) “Administer” means the direct application o f a controlled substance, whether by injection, direct inhalation, ingestion or any other means, to the body o f a patient by a practitioner or authorized agent thereof. (2) “Controlled substance” or “drug” means any substance or its immediate precursor classified in Schedules I through V under the Federal Con trolled Substances Act, 21 U.S.C. § 812, including future amendments o f that statute as may be enacted by Congress. (3) “Dispense” means to deliver a controlled substance to a person who lawfully possesses a controlled sub stance by or pursuant to the lawful or der o f a practitioner. (4) “Practitioner” means a physician, dentist, veterinarian, certified nurse practitioner, physician assistant or other person licensed, registered or otherwise perm itted by law to dispense or admin ister a con tro lled substance in the course o f professional practice but does n ot include a pharmacist. (5) “Prescription” means a written, otal, or electronically transmitted direc tion, given by a practitioner for the preparation and use o f a drug. Regis tration cards issued pursuant to the O r C. C h a p te r 305 S ectio n V — egon Medical Marijuana A ct are n o t Crimes Against Public Peace and considered prescriptions for the pur poses o f this Section. O rder 305.451 Unlawful Gambling. Any person who shall participate in any gambling activity n ot autho rized by WSTC C hapter 260, for m oney o r o th e r value, shall be deemed guilty o f unlawful gambling. Class I gambling as defined by the Indian Gaming Regulatory Act, P. L. 100-447,25 U.S.C. § 2703, is not pro hibited by this section. 305.452 Promotion o f Unlaw- - ful Gambling. Any person who knowingly en tices or induces another to go to any places where a gambling activity is being conducted or operated in vio lation ©f WSTC 305.451, with the intent that the other person play or participate in the gambling activity, shall be deemed guilty o f an offense. 305.453 Cheating. Any person, while in the course o f participating or attempting to par ticipate in any gam bling activity, who: (1) Employs or attempts to em ploy any device, scheme or strategy to defraud any other participant or the Tribe or engages in any other act, practice, or Course o f operation that operates or would operate as a fraud or deceit upon any other participant or the Tribe; or (2) Causes, aids, abets, colludes 305.505 Unlawful Manufacture of a Controlled Substance. Any person w ho unlawfully culti vates or manufactures a controlled sub stance shall be deemed guilty o f an of fense. Cultivating m arijuana on the Warm Springs Reservation pursuant to a registration card issued under the Oregon Medical Marijuana Act shall be considered unlawful for the purposes o f this provision. 305.510 Unlawful Use or Possession o f a Controlled Substance. Any person, w ho knowingly uses, consumes, possesses, or causes another person to possess a controlled sub stance w ithout a valid prescription is sued by a practitioner shall be deemed guilty o f an offense. This provision excludes pharmacists, practitioners, law enforcement officials, and any autho rized agents thereof acting in the course o f his o r her professional duties. 305.515 Unlawful Delivery o f a Con trolled Substance. Any person w ho delivers, transfers, distributes o r sells a controlled sub stan ce to a n o th e r p e rso n shall be deemed guilty o f an offense. This p ro vision excludes the delivery o f a con trolled substance by a pharmacist, prac titio n e r, o r any a u th o rized agents thereof pursuant to a valid prescription issued by a practitioner. 305.520 Sale o f Drug Parapherna lia. Any person w ho sells, transfers, or offers to sell or transfer any drug para phernalia including marijuana and hash pipes, bongs, roach holders and any other containers and devices commonly used in connection with the consum p tion or processing o f any controlled substance on the Warm Springs Reser vation shall be deemed guilty o f an of fense. Any such drug paraphernalia found on the Reservation shall be im mediately seized by tribal law enforce m ent authorities w ithout compensation to its owner and shall be held by the tribal police departm ent until it is no longer needed as evidence or other law ful purposes, at which time it shall be destroyed or otherwise disposed o f as ordered by the Tribal C ourt in accor dance with WSTC 200.750. 305.525 Possession of Drug Para phernalia. Any person w ho possesses any drug paraphernalia including marijuana and hash pipes, bongs, roach holders and any other containers and devices com monly used in connection with the con sum ption or processing o f any con trolled substance on the Warm Springs Reservation shall be deemed guilty o f an offense. Any such drug parapher nalia found on the Reservation shall be immediately seized by tribal law en forcement authorities without compen sation to its owner and shall be held by the tribal police departm ent until it is no longer needed as evidence or other lawful purposes, at which time it shall be destroyed or otherwise disposed o f as ordered by the Tribal C ourt in ac cordance with WSTC 200.750. 305.530 Causing Another Person to Ingest a Controlled Substance. Any person who knowingly or in tentionally causes another person to in gest, other than by administering or dis pensing, a controlled substance without the co n sen t o f the perso n shall be deemed guilty o f an offense. For the purposes o f this provision, a person “causes another person to ingest” a con trolled substance if he either causes the person to orally consume the controlled substance, or if he otherwise delivers the controlled substance into the body o f the other person. 305.535 Delivery of a .Counterfeit Controlled Substance. Any person who knowingly delivers a substance that is n ot a controlled sub stance upon the express or implied rep resentation that the substance is a con trolled substance, or delivers a substance that is n o t a controlled substance upon the express or implied representation that the substance is o f such nature or appearance that the recipient o f the de livery will be able to distribute the sub stance as a controlled substance, shall be deemed guilty o f an offense. 305.540 F req u en tin g a P lace Where Controlled Substances are Present. (1) Any person, who keeps, main tains, frequents, or remains at a place, while knowingly permitting persons to unlawfully use controlled substances in such place or to keep, sell, manufacture, cultivate, or deliver them in violation o f WSTC 305.505 to WSTC 305.515, shall be deemed guilty o f an offense. (2) As used in WSTC 305.540: (a) “Frequents” means repeatedly or habitually visits, goes to or resorts to. (b) “Permitting” means that a per son m ust have authority to forbid the unlawful drug activity involved. For the purposes o f this provision, tenants o f Tribal Housing, as that term is defined in WSTC Chapter 400, are deemed to have the authority to forbid unlawful drug activity. 305.545 Intoxication by Inhala tion. Any person w ho intentionally in hales, for the purpose o f becoming in toxicated, any gasoline, lighter fluid, glue, cement, spray paint, paint thinner, or any similar product shall be deemed guilty o f an offense. 305.550 Tam pering w ith D rug Records. Any person who alters, defaces, or removes a controlled substance label af fixed by a manufacturer or pharmacist; affixes a false or forged label to a pack age containing controlled substances; or makes or uses a false or forged prescrip tion for a controlled substance shall be deemed guilty o f an offense. 305.555 Falsifying Drug Test Re sults. Any person commits the crime o f falsifying drug test results if he: (1) Uses, or possesses with the in tent to use, any substance or device de signed to falsify the results o f á law fully administered test designed to de tect the presence o f a controlled sub stance; or (2) Induces another person to sub mit to a lawfully administered test de signed to detect the presence o f a con trolled substance on his behalf. 305.560 Providing Drug Test Fal sification Equipment. Any person, who intentionally deliv ers, possesses with the intent to deliver, or manufactures with the intent to de liver a substance or device designed to enable a person to falsify the results of a drug test shall be deemed guilty o f an offense. 305.565 Furnishing a Controlled Substance to a Minor. Any adult, parent or guardian who either aids, causes or permits a minor child to obtain, possess or use any con trolled substance not specifically pre scribed for said m inor child by a practi tioner shall be deemed guilty o f Con tributing to the Delinquency o f a Mi nor in accordance with WSTC 305.145. 305.570 Penalties for Drug Re lated Offenses. The Tribal C ourt shall adhere to the drug offense guidelines set forth in the Rules o f C ourt when making sentenc ing determinations pursuant to WSTC 305.715 for the drug related offenses enumerated in this Section VI. 305.575 C erem o n ial Use o f Peyote. I t is an affirm ative defense to a charge o f violating WSTC 305.510 or WSTC 305.515 for the possession, use, or delivery o f peyote that the peyote is being used or is intended for use by an Indian in connection with bona fide re ligious practices, sacraments or services in a manner that is not dangerous to public health or safety. G. Chapter 305 Section V II — Gang Enforcem ent 305.601 D efinitions for WSTC 305.601 to WSTC 305.615. (1) “Criminal street gang” means a formal or informal ongoing organi zation, association, or group that has as one o f its primary activities the com mission o f criminal or delinquent acts, and that consists o f three or more per sons w ho have a com m on nam e or com m on identifying signs, colors, or symbols and have two or m ore mem bers who, individually or collectively, engage in or have engaged in a pattern o f criminal street gang activity. (2) “P attern o f criminal street gang activity” means the commission or attempted commission of, or solici tation or conspiracy to com m it any combination o f the following, on sepa rate occasions within a three-ytar pe riod: (a) Two or more felonies defined under the laws o f the tribe or state in which they occur or offenses defined under the Major Crimes Act, 18 U.S.C. § 1153; or (b) Three or more misdemeanors defined under the laws o f the tribe or state in which they occur or offenses defined in the W arm Springs Tribal Code; or (c) A combination o f one felony or Major Crimes Act offense and two misdemeanor or Warm Springs Tribal Code offenses; or (d) T he com parable num ber o f delinquent acts or violations o f law committed by a juvenile which would be classified as above if committed by an adult. 305.605 Criminal Street Gang Ac tivity; Enhancement of Penalties. U pon a finding in the Warm Springs Tribal C ourt at sentencing that the de fendant committed an offense in viola tion o f the Warm Springs Tribal Code, or any delinquent act or violation o f law which would be a violation o f the Warm Spring's Tribal Code if committed by an adult, for the benefit of, at the direc tion of, or in association with any crimi nal street gang, the penalty for the of fense, delinquent act, or violation may be enhanced. The burden o f p ro o f re quired for such findings allowing sen tence enhancement shall be a “pre ponderance o f the evidence,” how ever, the burden o f p ro o f for a conviction o f the underlying crimi nal offense remains “beyond a rea sonable doubt.” The enhancement will be sentencing at the maximum punishm ent for adults as set forth in WSTC 305.715. Any fine im posed under WSTC 305.715 or WSTC 305.720 shall be used by the Tribe to fund gang prevention or enforcement programs. In the case o f juvenile offenders the disposi tion may include, b ut is not limited to: (3) Probation for a period o f six m onths to one year; (4) Performance o f community service hours; (5) Restitution to victim s/com munity members; (6) Placement in behavior m an agement facilities until completion/ graduation from school or a court ordered program; (7) Counseling; and, (8) Placement in detention fa cilities for a period o f time to be determined by the presiding judge. 305.610 Soliciting, or Recruit ing Criminal Street Gang Mem bership. Any person w ho intentionally causes, encourages, solicits, or re cruits an o th er p erson to join a criminal street gang that requires as a condition o f membership or con tinued m em bership the comm is sion o f any crime shall be deemed guilty o f an offense. Any fine im posed un d er W STC 305.715 or WSTC 305.720 shall be used by the Tribe to fund gang prevention or enforcement programs. In the case o f juvenile offenders the disposi tion may include, but is n o t limited to: (9) Probation for a period o f six m onths to one year; (10) Performance o f community service hours; (H) Restitution to victim s/com munity members; (12) Placement in behavior man agement facilities until com pletion/ graduation from school or a court ordered program; (13) Counseling; and, (14) Placement in detention fa cilities for a period o f time to be determined by the presiding judge. 305.615 Seizure o f P rofits, Proceeds, and Instrumentalities o f Criminal Street Gang Activi ties or Recruitment; Forfeiture. All profits, proceeds, and in strumentalities o f criminal street gang activity or recruitment and all property used or intended or at tem pted to be used to facilitate the criminal activity or recruitment ac tivities o f any criminal street gang are subject to seizure and forfeiture, with proceeds o f said forfeiture to be used by the Tribe to fund gang prevention or enforcem ent. p ro grams. H . Chapter 307 — Liquor Vio lations 307.020 (7) It shall be unlawful for any person to sell or furnish al coholic liquor to any other person under the age o f 21 years. 307.030 Penalties Any person w ho violates the provisions o f this Chapter, except for WSTC 307.020(7), may be sub ject to a civil penalty in Tribal Court for a civil infraction. Such civil pen alty shall n o t exceed the sum o f $500 for each such infraction. The Tribal Council hereby specifically finds that such civil penalties are reasonably necessary and are related to the expense o f governmental ad ministration necessary in maintain ing law and order and public safety on the Reservation and in manag ing, protecting and developing the natural resources on the Reserva tion. It is the legislative intent o f the Tribal Council that all violations of this Ghapter, with the exception o f WSTC 307.020(7), be considered civil in nature rather than criminal. Any person who violates WSTC 307.020 (7) shall be subject to criminal penal ties pursuant to WSTC 305.715.
