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.