Title PRP — Property

Chapter PRP.01 — Land Ordinance

Legislative History

1. Ordinance No. 11-A Lands, as adopted by the Stockbridge-Munsee Tribal Council November 21, 1939 and returned by BIA for lack of signature space. (October, 15, 1940 BIA Letter to Chairman).

2. Ordinance No. 1 Lands as adopted by the Stockbridge Munsee Tribal Council on September 27, 1940 and approved by the Department of the Interior, June 30, 1941.

3. Resolution No. 0663, adopted June 15, 1979.

4. Resolution No. 0988, adopted March 3, 1987.

5. Resolution No. 1037, adopted June 12, 1987.

6. Resolution No. 1552-95, adopted November 7, 1995.

7. Resolution No. 045-02, adopted August 20, 2002, approved by BIA September 18, 2002.

8. Resolution No. 028-05, adopted May 3, 2005, approved by BIA February 24, 2006.

9. Resolution No. 07-06, adopted November 22, 2005, approved by BIA April 10, 2006.

10. Resolution No. 036-14, adopted July 15, 2014, approved by BIA July 28, 2014.

Section PRP.01.01 — Authority

(a) The Stockbridge-Munsee Community has jurisdiction and authority over tribal lands as established under Article II of its Constitution as well as its inherent authority as a tribal government and under federal law.

(b) The Stockbridge-Munsee Tribal Council has authority to establish ordinances regulating tribal lands, including the making, holding and revoking of tribal land assignments, under Article VII (f) of its Constitution.

Section PRP.01.02 — Statement Of Purpose

(a) While the Stockbridge-Munsee Community holds tribal land for the common benefit of the members of the Stockbridge-Munsee Community, it recognizes the benefits of allowing individual tribal members to have certain rights of use and control in relation to specific parcels such as the site of their home.

(b) This ordinance establishes a system for the Stockbridge-Munsee Community to assign the use of specific parcels of tribal land to individual Tribal members.

Section PRP.01.03 — Interpretation

This ordinance shall be deemed a reasonable and proper exercise of the sovereign power of the Stockbridge-Munsee Community for the protection of the Tribe's land, welfare, health, peace and culture. All provisions of this ordinance shall be liberally construed for the accomplishment of these purposes.

Section PRP.01.04 — Definitions

In this ordinance, unless the context otherwise requires:

(a) "Dwelling" means a habitable structure which is designed for residential purposes.

(b) "Grant" means Grant of Standard Assignment or other similar document wherein the Tribal Council grants use rights for a land assignment to an individual tribal member. A grant does not vest title or other compensable interest in the land to a grantee.

(d) "Land Assignment" refers to a specific parcel(s) of tribal land that the Tribal Council, through a grant, has designated for the use by an individual enrolled member of the Stockbridge-Munsee Community for non-commercial/business purposes.

(1) "Residential Land Assignment" means a land assignment granted for occupancy by the grantee as his or her place of residence.

(2) "Recreational Land Assignment" means a land assignment granted for recreational uses that include, but are not limited to, camping and picnicking. Such recreational land assignments cannot be developed and/or used as a residence for the grantee.

(e) "Land Committee" means members of the Stockbridge-Munsee Community serving as an investigatory and advisory body to the Stockbridge-Munsee Tribal Council in reviewing land assignment applications and other issues related to the use of tribal land.

(f) "Married" means legally married persons, but does not mean common law marriage or other informal living arrangements.

(g) "Subdivision" means areas and/or neighborhoods that the Tribe has identified as being the sites for concentrated residential developments where the Tribe has subdividing lots/assignments and installing infrastructure such as roads, sewer, water, gas, electricity or other similar infrastructure. The following are tribal subdivisions:

(1) Ah Toh Wuk in the NW ¼ of Section 35, Bartelme;

(2) Koo Yi Kun in the NE ¼ of Section 32, Bartelme;

(3) Koan Tuk in the NE ¼ of Section 34, Bartelme;

(4) Taconic in the SE ¼ of Section 27, Bartelme;

(5) the Tribal Housing residential area, which includes the area along Camp 14 Road from Moh He Con Nuck Road to Murphy's Road and the roadways and area generally in between like Birch, Oak, Maplewood, Cherry, Poplar and Elm Streets in Sections 15 and 16, Bartelme; and

(6) similar areas identified as subdivisions in the future.

(h) "Tribal Council" means the authorized, governing body of the Tribe.

(i) "Tribal Land" means any land where the title is held in trust for the benefit of the Stockbridge-Munsee Tribe and any land owned by the Tribe.

(j) "Tribe" means the Stockbridge-Munsee Community.

Section PRP.01.05 — Land Committee

(a) Committee.

(1) As authorized under Article IV, Section 3 of the Stockbridge-Munsee Constitution, the Tribal Council establishes a five member Land Committee from among the enrolled members.

(2) In no event shall a member of the Land Committee serve as a member of the Tribal Council during the term of his/her appointment as a Land Committee member.

(3) Appointments to the Land Committee shall be for a two year term. In odd-numbered years three appointments will be made to the Land Committee and in even-numbered years, two appointments will be made to the Land Committee.

(4) The Tribal Council retains the authority to remove any appointed committee member at will for just cause and to appoint another Tribal member to fill the vacant seat.

(b) Powers and Responsibilities of the Committee. Subject to the general responsibilities of all Stockbridge-Munsee Tribal Committees as defined by the policy enacted September 6, 2005, as amended, and any properly adopted Land Committee By-laws, the Land Committee shall exercise the following powers and responsibilities:

(1) Accept land applications, voluntary relinquishments, and requests for permits of temporary use. Investigate and review all applicable resources and information to determine the suitability of the request.

(2) Present data, along with the Committee's recommendation to the Tribal Council on grant or denial of applications.

(3) Present Committee's recommendations to Tribal Council regarding voluntary relinquishments, grantee requests to allow another individual to occupy their land assignment, and for revocations of a land assignment.

(4) Advise the Tribal Council in matters relating to Tribal land use.

(5) Submit recommendations and reports to Tribal Council on land-related issues.

(A) Recommendations and reports shall be in writing, typically in the form of meeting minutes.

(B) The recommendation to grant or deny a land assignment on the application shall bear the signatures of at least three Land Committee members.

(6) Perform any other land-related duties or functions prescribed by the Tribal Council.

Section PRP.01.06 — Grants Of Land Assignments

(a) The Tribe issues a Grant to assign rights of use in a specific land assignment to a grantee.

(1) A Grant does not assign a right of exclusive use to a land assignment; however, grantees do have a zone of privacy in the area around the buildings on their land assignments. The zone of privacy encompasses the area around the buildings on a land assignment, but shall not exceed the 300-foot setback for development established under Chapter PRP.02.

(2) A grantee's use rights do not supersede the Tribe's right to manage the land and its resources.

(b) Grants are hereby acknowledged to be a valid contract between the Tribe and the Grantee.

(c) Land assignments granted prior to the effective date of this ordinance are hereby reaffirmed and re-acknowledged as valid contracts between the Tribe and Grantee.

(d) Land assignments granted between July 2, 2002 and July 15, 2014 shall be identified as either residential or recreational assignments. Residential land assignments shall only be issued for areas where development is permitted in conformance with Chapter PRP.02, the Land Use Code.

(e) As of July 15, 2014, the Tribe shall no longer issues grants for recreational land assignments. Grantees who hold recreational land assignments may continue to hold those assignments; however, such assignments will not be reassigned if relinquished, revoked or upon the death of the grantee.

(f) As of July 15, 2014, grants shall only be issued in areas where development is permitted in conformance with Chapter PRP.02, the Land Use Code.

(g) Recreational assignments are not authorized to be places of residence for the grantee and no grantee may construct or maintain a dwelling on a recreational assignment. Examples of authorized recreational uses include camping and picnicking.

(1) Recreational assignments are only available in areas with commercial forest or multi-purpose designations as defined in Chapter PRP.02, the Land Use Code. The Tribe shall not grant a recreational assignment in areas that are identified for residential development.

(2) Recreational assignments shall not be used to circumvent other provisions of Tribal law.

(3) Grantees shall not build permanent structures on recreational assignments.

(4) Recreational assignments shall not have electricity unless electricity can be obtained from an existing electric line within 50 feet or less.

(5) New wells and new septic are not permitted on recreational assignments.

(h) Business/commercial uses of land are covered by individual leases and/or other applicable contracts with Tribal Council. The Tribe does not authorize the use of tribal land for a business/commercial use through a grant, except that home businesses are allowed in accordance with Chapter PRP.02.

(i) The Tribal Council reserves the right to revoke all or a portion of a grant or to authorize easements or rights-of-way across a land assignment, if such actions are necessary for public purposes.

Section PRP.01.07 — Eligibility For A Grant To Hold A Land Assignment

(a) Only enrolled members of the Tribe who are eighteen years of age or older are eligible to hold a grant for a land assignment.

(b) An enrolled member of the Tribe may only hold one (1) land assignment, which can be for either residential or recreational purposes, at any given time.

(c) If a tribal member has had a land assignment that reverted back to the Tribe, then that tribal member must wait at least one (1) year from the date of the revision before he or she is eligible to apply for another land assignment.

(d) If a tribal member's grant for a land assignment is revoked by the Tribal Council for a noncompliance with the terms of the grant or applicable law, then that tribal member is not eligible to apply for another land assignment until the latter of:

(1) two (2) years from the date of the revocation, or

(2) the tribal member has paid all damages due and owing to the Tribe in relation to the non-compliance(s) that caused the grant to be revoked.

Section PRP.01.08 — Grounds For Tribal Council To Issue A Grant

(a) When a land assignment becomes available for assignment or re-assignment, the Land Committee will review the file and any applications and make a recommendation to the Tribal Council on who should receive a grant for the land assignment. The Tribal Council makes the final decision on who receives the grant.

(b) When a grantee executes paperwork to relinquish their land assignment to an eligible tribal member and that tribal member applies for the land assignment, the Land Committee and Tribal Council will give great weight to the tribal members' wishes in making their decision.

(c) When a grantee dies and has identified an eligible beneficiary for his/her land assignment, particularly for residential land assignments that contain improvements, the Land Committee and Tribal Council will give great weight to the tribal member's wishes in relation to the named beneficiary in making their decision to reassign the land assignment.

(d) New land assignments or assignments that have reverted back to the Tribe for reassignment shall be granted on the basis of need.

(1) The following factors are considered when assessing an individual's need:

(A) whether the tribal member owns or has an accepted offer to purchase an existing house on the land assignment;

(B) whether the applicant intends to use the land assignment as his/her primary residence within the next two (2) years;

(D) whether the applicant had a previous land assignment revoked by the Tribe;

(E) the timing of when the tribal member submitted their application in relation to other applicants; and

(F) other similar factors.

(2) When a land assignment becomes available for assignment and the Land Committee has authorized that it be posted as being available, Land and Enrollment Department staff will advertise the availability of the land assignment for at least 30 days in the tribal newspaper, tribal posting places and on the tribal website, and accept applications for the land assignment.

(3) The Land Committee shall assess the applications on the basis of need and provide the Tribal Council with a recommendation on the granting of the land assignment.

Section PRP.01.09 — General Standards Applicable To Land Assignments

(a) Grantees are responsible for maintaining their land assignments and improvements on the land assignment in good condition in accordance with all applicable laws, including Chapter PRP.02 and Chapter SAF.02.

(b) When a grantee applies for and is granted a land assignment, the land assignment is granted in "as is" condition. The grantee is responsible to perform any maintenance or remediation required so that the land assignment and improvements are in good condition within a reasonable timeframe.

(c) A land assignment shall be one contiguous parcel of land. This requirement shall not affect any previously granted non-contiguous parcels.

(d) A land assignment shall not exceed five (5) acres, if the application for the land assignment is dated after June 15, 1979.

(e) Grants for land assignments approved and issued prior to June 15, 1979 are hereby declared valid notwithstanding the five acre limit herein.

(f) Public roads and rivers, excluding logging roads, shall serve as natural boundaries for all land assignments.

(g) Roads and Right-of-Ways, as defined in Chapter PRP.02, the Stockbridge-Munsee Land Use Code, which run through a land assignment, shall not be blocked and shall be open for public access.

(h) In addition to the terms and conditions imposed by the grant and this ordinance, all assignments shall be subject to all terms and conditions contained in Chapter PRP.02, the Land Use Code and other applicable laws.

(i) All grantees shall be required, upon the written request of the Tribal Council, to comply with any soil, water, or timber conservation program that may be initiated by the Tribal Council.

(j) Structures shall be built in accordance with Chapter PRP.02, the Land Use Code and other applicable laws.

(k) Improvements.

(1) Buildings and other improvements placed upon land assignment by a grantee are recognized as the personal property of that grantee.

(2) The Tribe does not permit the purchase and ownership of improvements on a land assignment by individuals other than the grantee and/or the grantee's spouse without the consent of the Tribal Council to such purchase and ownership.

(3) A house may not be removed from a land assignment without the consent of the Tribal Council, except that a mobile home may be removed for replacement or if it is uninhabitable.

(4) Improvements such as driveways, fences, shrubs, utility lines, wells, septic systems and other items of a similar nature, even if placed on the property by the grantee, are considered to be attached to the land and become part of the land assignment.

(l) Abandonment. The Tribe may have a land assignment that contains a dwelling declared abandoned through the Tribal Court.

(1) Grounds for an action to declare a land assignment to be abandoned are:

(A) when the land assignment is secured, but unoccupied and not maintained by either the grantee or an authorized individual for a period of eighteen (18) consecutive months;

(B) when a grantee has provided a written statement that he or she is abandoning the property; or

(C) where there is other significant evidence abandonment with no intent to return such as the property not being secured or being open to the elements.

(2) The grantee has the burden to show by preponderance of the evidence that he/she or another authorized person has not abandoned the property in order to prevent the Tribal Court from declaring the land assignment as being abandoned.

(3) If the Tribal Court declares that a land assignment has been abandoned, then that assignment shall revert to the Tribe.

(A) The former grantee shall have no rights to dispose of improvements such as the house after a declaration of abandonment.

(B) The former grantee shall have a reasonable period of time from the date of the declaration, not to exceed 60 days, to remove all personal belongings from the land assignment.

(C) The Tribe shall post notice that the property has been declared abandoned by the Tribal Court on the door of any house located on the land assignment and provide unauthorized tenants with an opportunity, not to exceed 30 days, to remove personal belongings from the land assignment.

Section PRP.01.10 — Development Requirement For Land Assignments

(a) If a land assignment is for land located in a subdivision or land that it newly opened for assignment, then the land assignment will revert back to the Tribe unless the grantee has substantially completed a dwelling on the land assignment within two (2) years after the Grant is executed unless the grantee has received an extension as provided for in Section PRP.01.10(b)(3)(A).

(b) Failure to Substantially Complete Dwelling.

(1) The Land and Enrollment Department shall track when assignments are granted for new residential development.

(2) The Land and Enrollment Department shall work with the Land Management Department to verify whether a grantee has complied with the requirement for a substantially completed dwelling on an annual basis.

(3) In the event that a grantee does not substantially complete the required dwelling within 2 years, then one of the following will occur.

(A) Request for Extension. The grantee may petition the Land Committee and Tribal Council to request a one-time, two-year extension. The grantee must show good cause for the extension. If the extension is granted by Tribal Council, the grantee must have substantially completed a dwelling on the land assignment within two (2) years after the Tribal Council action, or the land assignment will revert back to the Tribe.

(B) Relinquishment of Land Assignment. A grantee may relinquish the land assignment to another eligible tribal member. However, if a grantee relinquishes his/her land assignment to another Tribal Member, then the new grantee must have a substantially completed dwelling on the land assignment within the relinquisher's original timeline(s), except in extenuating circumstances if approved by Tribal Council.

(i) When a dwelling is not substantially completed within the required time frame, then the land assignment shall automatically revert back to the Tribe.

(ii) The Land and Enrollment Department will send a letter to the grantee documenting the automatic reversion of the land assignment due to non-compliance with this requirement.

(iii) The individual must remove all personal belongings from the land assignment within thirty (30) days of the date of the letter documenting the automatic reversion.

Section PRP.01.11 — Use Of Land Assignment By Other Individuals

(a) Grants authorize the occupancy and use of the land assignment by the grantee and his/her immediate family.

(b) Grantees may have visitors who are not tribal members and not members of the grantee's family in the part of the land assignment that are in the development zone established under Chapter PRP.02. However, such visitors are not authorized at a recreational land assignment unless there is public road (not including tribal logging roads) providing direct access to such recreational land assignment.

(c) Except for valid grants, no person shall have the right to occupy or use Tribal land or Tribal resources thereon without the approval of the Tribal Council or other permitted uses from Chapter PRP.02 and other tribal laws.

(d) Approval Process for Other Tribal Members and/or First-Line or Second-Line Descendants to Occupy Land Assignment.

(1) The Tribe recognizes that there may be times when a grantee or his/her immediate family cannot occupy a land assignment. During such times, the following individuals may be authorized to occupy the land assignment by the Tribal Council: other tribal members, 1^st-line descendants, 2^nd-line descendants, or such other persons as the Tribal Council may accept on a case-by-case basis for extenuating circumstances.

(2) If the grantee wishes to allow another individual to occupy his/her land assignment while grantee is not occupying it, then the grantee must submit this request to the Land and Enrollment Department in writing. The grantee must identify who the person(s) occupying the land assignment will be.

(3) The Land and Enrollment Department forward a copy of the request to the Land Committee to make a recommendation for the Tribal Council.

(4) The Tribal Council will make the final decision on whether to authorize the occupancy by the other individuals.

(5) After the Tribal Council makes their decision about the grantee's request during a Tribal Council meeting, the Land and Enrollment Department will send a letter documenting the Council's decision to the grantee.

(6) A new request for approval of other occupancy needs to be submitted to the Tribal Council when the grantee's tenant changes.

Section PRP.01.12 — Transfer Of Land Assignment Following Death Of Grantee

(a) Land assignments are normally re-assigned to another tribal member following the death of a grantee unless the grantee has a surviving spouse who wishes to continue to reside on the land assignment or unless the grantee's beneficiary is a minor child. As long as one of these exceptions is applicable, the land assignment will continue to be held in the name of the deceased grantee and other individuals will have the rights and obligations provided for under this ordinance.

(b) Upon the death of the grantee, the grantee's surviving spouse shall have a right to continue to reside on the land assignment in accordance with Section PRP.01.13. The surviving spouse shall be responsible to use and maintain the land assignment in accordance with tribal law for as long as the spouse holds it as his/her residence.

(c) In the event that there is no surviving spouse or the surviving spouse does not wish to reside on the land assignment, then the land assignment may be transferred to the grantee's beneficiary.

(1) The grantee may designate in writing his/her named beneficiaries to such land assignment. Such beneficiaries must be tribal members.

(2) Within 30 days of the death of a grantee, the Land and Enrollment Department will send notice to the identified beneficiary that informs the beneficiary of his/her beneficiary status and provides an opportunity to apply for the land assignment.

(3) If the beneficiary is eligible for and interested in obtaining the land assignment, the beneficiary must submit an application for the assignment within 90 days of the date that the beneficiary is notified that he/she is the identified beneficiary. This application will be processed in accordance with this ordinance.

(4) Beneficiary is Minor Child. If the identified beneficiary is a tribal member who is a minor child, then the following process shall apply:

(A) Notice shall be sent to the parent(s)/guardian(s) for the minor child by the Land and Enrollment Department to notify them that the child is a named beneficiary.

(B) If the parent(s)/guardians(s) wish to assume responsibility for the land assignment on behalf of the child until the child becomes an adult, then the parent(s)/guardians(s) shall submit a notarized, written statement to the Land and Enrollment Department confirming that the parent(s)/guardians(s) accept responsibility for the land assignment until the minor child turns 18-years of age.

(i) The Land and Enrollment Department shall forward this response to the Land Committee, who shall make a recommendation to the Tribal Council.

(ii) The Tribal Council shall accept or reject the proposal by the parent(s)/guardian(s).

(iii) In the event that the proposal is accepted, the parent(s)/guardian(s) shall be responsible to ensure that any use of the land assignment is in accordance with applicable law during the time it is under their control.

(iv) If the parent(s)/guardian(s) use of the land assignment does not comply with applicable laws, then the parent(s)/guardians shall forfeit all use rights in the land assignment and the minor child shall forfeit all beneficiary rights in the land assignment. The land assignment shall revert to the Tribe and parties shall be required to vacate the property consistent with Section PRP.01.12(d).

(C) Once the child turns 18-years old, the Land and Enrollment Department shall send notice to the beneficiary that informs the beneficiary of his/her beneficiary status and provide an opportunity to apply for the land assignment.

(D) If the beneficiary is interested in obtaining the land assignment, the beneficiary must submit an application for the assignment within 60 days of the date that the beneficiary is notified that he/she is the identified beneficiary. This application will be processed in accordance with this ordinance.

(E) The land assignment shall remain in the deceased grantee's name until the minor beneficiary has reached 18-years of age and had an opportunity to apply for the land assignment.

(d) In the event there is no surviving spouse who wishes to reside on the land, there is no named beneficiary or the beneficiary does not obtain the land assignment, then the land assignment will automatically revert to the Tribe.

(1) The grantee's heir(s) will have a reasonable period of time, not to exceed six (6) months, to vacate the land assignment from the later of the date of death or, if applicable, when probate closes. Heir(s) may be required to provide evidence that they have a legal right to dispose of personal property.

(2) If grantee's heir(s) were living on the land assignment at the time of the grantee's death, then the heir(s) may continue to live there while preparing to vacate the land assignment so long as there is Tribal Council approval. However, the heir(s) are not authorized to move onto the property after the grantee's death.

(3) The grantee's heir(s) may apply to the Tribal Council for a one-time extension of this deadline for up to an additional six (6) months.

(4) Personal property that has not been removed from the land assignment by the grantee's heir(s) within the six (6) month time frame will be deemed abandoned and disposed of by the Tribe.

Section PRP.01.13 — Rights Of Surviving Spouse In Land Assignment

(a) Non-Member Spouse. Notwithstanding any other agreement, if a grantee is married to a non-member of the Tribe and dies, the surviving non-member spouse shall be entitled to reside on the land assignment, not to exceed five acres, for his/her lifetime or until marriage to a non-member of the Tribe, whichever occurs first.

(1) If the surviving non-member spouse does not wish to reside on the land assignment, said spouse shall be entitled to receive compensation from the new grantee or beneficiary for the reasonable fair market value of all improvements placed by the deceased grantee and not otherwise disposed.

(2) If a beneficiary is not willing to pay a reasonable fair market value for the improvements placed by the land assignment, then the surviving spouse may attempt to sell the improvements to another eligible tribal member. The beneficiary shall have a right of first refusal to match the price of any legitimate offer from another tribal member.

(3) If the improvements are sold to another tribal member, then that tribal member would need to submit an application to be granted the land assignment.

(4) If the surviving non-tribal spouse has not resided on the land assignment for a period of at least twelve (12) consecutive months, the Tribe can seek to have the Tribal Court declare that the spouse has abandoned his/her rights under this section.

(5) Upon termination of the surviving non-member spouse's right to reside on said assignment, such surviving non-member spouse or the spouse's heirs shall have a reasonable period of time, not to exceed six (6) months to vacate said assignment. Personal property that has not been removed from the land assignment within this time will be deemed abandoned and disposed of by the Tribe.

(b) Tribal Member Spouse. Notwithstanding any other agreement, if a grantee is married to a member of the Tribe and the grantee dies, the land assignment, not to exceed five acres, shall revert to the surviving tribal member spouse.

(1) If the surviving tribal member spouse has an existing valid residential land assignment, the surviving tribal member spouse must relinquish one land assignment. The failure to act in 90 days will result in referral to the Land Committee, so that a recommendation can be made to the Tribal Council for action.

(2) If the surviving member spouse does not wish to occupy the assignment, said spouse shall be entitled to receive compensation from the new grantee or beneficiary for the reasonable fair market value of all improvements placed by the deceased grantee and not otherwise disposed.

(3) If a beneficiary is not willing to pay a reasonable fair market value for the improvements placed by the land assignment, then the surviving spouse may attempt to sell the improvements to another eligible tribal member. The beneficiary shall have a right of first refusal to match the price of any legitimate offer from another tribal member.

(4) If the improvements are sold to another tribal member, then that tribal member would need to submit an application to be granted the land assignment.

(5) Upon termination of the surviving member spouse's right to use and occupy said assignment, such surviving member spouse shall have a reasonable period of time, not to exceed six (6) months to vacate said assignment. Personal property that has not been removed from the land assignment within this time will be deemed abandoned and disposed of by the Tribe.

Section PRP.01.14 — Relinquishment Of Land Assignments

(a) A grantee may relinquish his or her land assignment in writing to another eligible tribal member or to the Tribe. Such relinquishment shall not be effective until accepted by the Tribal Council. The former grantee shall vacate the premises within sixty (60) days of when the relinquishment is accepted, unless the Tribal Council has granted use rights to the individual in another form, such as a lease.

(b) If a grantee relinquishes or otherwise loses his/her membership in the Tribe, then any land assignment that individual may have held automatically reverts back to the Tribe. The individual will have sixty (60) days to remove their personal belongings from the land assignment. Personal belongings that have not been removed within this time frame will be deemed abandoned and will be disposed of by the Tribe.

Section PRP.01.15 — Revocation, Modification Or Cancellation Of Land Assignment

(a) Revocation. In the event a grantee fails to comply with the terms of the Grant and applicable laws in relation to the land assignment, it shall be deemed a noncompliance. The grantee shall be considered to be in breach of the grant and it may be subject to revocation consistent with the following process.

(1) Initiation of Revocation Process. A grantee will typically have an opportunity to cure a breach, but this step may be skipped in the event of an egregious noncompliance.

(A) When the Tribe becomes aware of a noncompliance by a grantee, tribal staff shall send a letter to the grantee notifying him/her of the noncompliance and providing an opportunity to cure the noncompliance.

(B) In the event the noncompliance is believed to rise to the level of being an egregious noncompliance, then the matter shall be referred to the Land and Enrollment Department to have the grantee's file forwarded to the Land Committee for consideration of revocation.

(2) Land Committee.

(A) The Land Committee shall review the matter and make a recommendation on whether the Tribal Council should revoke the land assignment or take some other action, if appropriate.

(B) The Land and Enrollment Department shall prepare a letter, for signature by a member of the Land Committee, documenting the Land Committee's recommendation on the issue.

(C) The signed letter with the Land Committee's recommendation shall be served on the grantee with a copy also sent to the Tribal Council Secretary. The letter shall contain the following information:

(i) The letter shall identify the noncompliance.

(ii) The letter shall identify the Land Committee's recommendation.

(iii) The letter shall notify the grantee that he/she has thirty (30) days to file a request with the Tribal Council Secretary for an opportunity to appear before the Tribal Council and present evidence why the land assignment should not be revoked.

(3) Tribal Council.

(A) After thirty (30) days, the Tribal Council Secretary shall place the Land Committee's recommendation on open agenda for a Tribal Council meeting.

(i) If the grantee has made a timely request to appear before the Tribal Council, the Secretary shall work with the grantee on scheduling when the recommendation will be put on the agenda of a Council meeting so that the grantee has an opportunity to be heard.

(ii) If the grantee has not submitted a request to appear, then the recommendation will be put on the next regularly scheduled Council meeting.

(iii) The Secretary shall notify the Land and Enrollment Department when the issue will be on the agenda so that the Land Committee and/or tribal staff can be present.

(B) The Tribal Council will consider the Land Committee's recommendation including any supporting materials from tribal staff or interested parties, and any evidence from the grantee on why the land assignment should not be revoked.

(4) Tribal Secretary. The Tribal Secretary will send a letter documenting the Tribal Council's decision to the grantee, with a copy provided to the Land and Enrollment Department.

(5) Effect of Revocation. If the Tribal Council revokes the land assignment, the revocation shall be effective upon the date of the Tribal Council's motion.

(A) The former grantee shall have up to thirty (30) days to vacate and remove their personal property from the land assignment.

(B) Personal property that has not been removed from the land assignment within this time will be deemed abandoned and disposed of by the Tribe.

(C) If the land assignment contains a house, then the Tribe shall act as receiver and hold the house until it is sold or disposed of consistent with the following requirements.

(i) The Tribe shall attempt to sell the property by public sale for a bona fide cash offer to be paid within forty-five (45) days of the public sale.

(ii) If no offer is accepted at the public sale, then the Tribe may sell the house by private sale.

(iii) The proceeds from any such public or private sale shall be first used to satisfy any secured loan owed on the house, then any indebtedness owed to the Tribe based on land assignment noncompliance(s) and any remainder shall be paid to the former grantee.

(iv) In the event that there is no public or private sale, then the property maybe disposed of by the Tribe and the former grantee shall have no interest in the proceeds.

(b) Modification.

(1) The Tribal Council may modify the size of a land assignment, but the size shall not exceed 5 acres, with the consent of the grantee.

(2) The Tribal Council may modify a land assignment without the consent of the grantee when necessary for public purposes or in order to resolve disputes between grantees.

(c) Cancellation. In the event that the Tribal Council determines that a land assignment was granted in error, it may be cancelled by action of the Tribal Council. The tribal member shall have up to 60 days to vacate the land assignment from the date of the cancellation.

Section PRP.01.16 — Temporary Permits

(a) Permits for temporary use and occupancy of Tribal lands may be granted by motion of the Tribal Council, at its discretion.

(b) Said temporary permits shall be subject to any terms, conditions, and qualifications designated under this ordinance, Chapter PRP.02 the Land Use Code and any other applicable Tribal ordinance, rule, regulation, or policy.

Section PRP.01.17 — Violation: Jurisdiction

(a) Except for duties and responsibilities of the Land Committee and Tribal Council, the Land and Enrollment Department and the Land Management Department have day to day responsibilities associated with land assignments.

(b) Any person who violates any provision of this ordinance or any rule or regulation authorized thereunder, shall be guilty of a Tribal Civil offense punishable by a fine of not more than five hundred dollars ($500.00).

(c) The Stockbridge-Munsee Tribal Court shall have jurisdiction over all violations of this ordinance and over all persons who are authorized occupants or recipients of a temporary permit issued pursuant thereto, and may, in addition to the penalty described herein, grant such other relief as is necessary and proper for the enforcement of this ordinance.

Chapter PRP.02 — Mohican Land Use Code

Legislative History

1. Public Hearing on proposed ordinance held April 29, 2002.

2. Resolution No. 024-02, adopted May 23, 2002, approved by BIA June 7, 2002.

3. Resolution No. 023-04, adopted May 19, 2004.

4. Resolution No. 019-05, adopted April 5, 2005.

5. Resolution No. 033-07, adopted June 5, 2007.

Section PRP.02.01 — Title

This law shall be known as the Mohican Land Use Code.

Section PRP.02.02 — Authority

The Mohican Land Use Code is enacted by the Stockbridge-Munsee Band of Mohicans Tribal Council pursuant to its general duty and authority under Article VII of the Constitution, as an exercise of its governmental powers to govern the use, management and administration of lands on the Stockbridge-Munsee Indian Reservation.

Section PRP.02.03 — Purpose And Legislative Intent

(a) The purpose of this code is to protect the health, safety, and welfare of the members of the Tribe and to protect and preserve the environment and all natural resources including land, forests, wildlife, air and waters, through appropriate uses of Mother Earth.

(b) This Code incorporates and implements the 1999 Land Use Plan, the 1999 Land Use Impact Review, and the 1996 Forestry Management Plan.

(c) The Tribal Council's intent in adopting this Chapter is to preserve and protect the political integrity and the economic survival of the people of the Stockbridge-Munsee Community by exercising the Tribe's inherent powers of self-government, and as a means of regulating and directing the overall impact of reservation land development.

Section PRP.02.04 — Jurisdiction

The Mohican Land Use Code shall apply to all lands within the exterior boundary of the Treaty with the Stockbridge and Munsee of 1856, that are owned in fee by the Tribe, held in trust for the Stockbridge-Munsee Community, proclaimed lands, or lands held in trust by individual members of an Indian Tribe. However, Tribally owned fee lands may be subject to state and/or local zoning laws or may be subject to terms of an agreement between the Tribe and local units of government. This Code shall apply to all persons and activities within the jurisdiction, to the extent such Code is not inconsistent with applicable federal law, or Tribal law.

Section PRP.02.05 — Definitions

Access Road: A means of vehicular approach, entry to, or exit from property.

Accessory Use: A building or infrastructure use which is subordinate to and serves a permitted use and is located on the same land as the permitted use without Land Use Review Board Approval.

Assignment: An area of tribal land set aside for a tribal members use and occupancy as established by the Tribal Land Ordinance.

Building: Any structure built for the supporting or sheltering of any use or occupancy.

Building Plan Review Permit: A permit that allows construction to commence as approved by Land Management. The "Building Plan Review Permit" requires a plan to be submitted to Land Management for review for any new building, which includes home construction, modular home, mobile home (new/used), any structure that is built as a four seasons room, or any type of building used as a business.

Camping: Temporary occupancy of any site utilizing tents, camper trailers or other vehicle designed for recreational purposes. Temporary under this definition means 30 days with right to apply for 3 subsequent 30-day renewals.

Commercial Farming: Activities related to the growing and harvesting of food, feed, other crops, animals, and animal products which are sold or traded, and which utilizes more than five acres of land.

Conditional Use Permit: A permit that authorizes the recipient to make use of property in accordance with the requirements of this Code as well as any additional requirements imposed. Only conditional uses identified in the Code shall be permitted.

Days: Except were specifically designated, days means calendar days.

Designation: The term used to describe that certain lands be used for certain defined purposes.

Dwelling: Any building or portion thereof which is designed, designated or used for residential purposes.

Forestry Permits: Permits issued by the Forestry Department that authorize the recipient to gather and use forest products in accordance with the requirements of the Tribal Forest Resources Ordinance.

Four Seasons Addition or Structure: Any structure that can be utilized as part of a dwelling but excludes garages, barns, sheds, pole buildings, porches, decks, or other similar structures.

General Land Use Permits: Permits issued by the Land Management Department or the Forestry Department that authorize the recipients to make use of property in accordance with the requirements of the Land Use Code or other Tribal laws. The following types of permits are included under this definition: Building Plan Review Permit, to include New Construction, Installation of a Modular Home, Installation of a New or Used Mobile Home, Construction of a Four Seasons Addition, Sanitation, Free-Use, Agricultural, Camping, and Tree Removal.

Heavy Manufacturing: Industrial operation where more than one building is involved, where a great deal of activity and storage occurs outside of buildings, and whose effects (such as smoke, noise, light, heat, and odors) can be detected beyond property lines.

Home Business Use : Any use of a private home dwelling as a business venture which is clearly secondary to the main use of the home as a dwelling place, does not change the character thereof, has only limited exterior evidence of such secondary use, and is conducted only by family members residing in the home. This would include businesses operated on one's home land assignement, but not using the home.

Junkyard/Recycling Center: a collection or storage of any unsightly material or objects that is considered foreign to the natural landscape of the area, such as, but not limited to: unlicensed and inoperable vehicles, scrap materials, or any other collection of objects or materials.

Kennel: a place where four or more dogs over the age of 3 months are boarded, bred, or offered for sale.

Land Management Specialist: a person in the Tribal Land Management Department who administers the programs of the Department.

Land Management Technician: a person in the Tribal Land Management Department who maintains the technical aspects of the Department such as GIS, GPS, and surveying of land.

Land Use Review Board: the group of persons appointed under this Code to make recommendations and/or decisions regarding land use. The Land Committee functions as the Land Use Review Board.

Light Manufacturing: Industrial operation where all or nearly all activity is contained within a single building, does not require extensive loading and unloading facilities or outside storage, whose effects (such as smoke, noise, light, heat, and odors) cannot be detected beyond the boundaries of the property.

Low Density: a minimal or low per capita ratio of dwellings per fixed measure of land area.

Manufactured home: a factory built structure that is manufactured or constructed under the authority of the National Manufactured Home Construction and Safety Standards Act to be used for human habitation. A manufactured home is not a mobile home.

Medium Density: Contains a low per capita ratio of dwellings per fixed measure of land (0.8 to 2.49 acre lots) and its function is to better accommodate community sewer and water.

Mobile home: a transportable single-family dwelling intended for permanent occupancy that by original design is capable of being moved on public streets and highways.

Modular Home: a manufactured or factory built home that conforms to standard building codes and is not equipped with any wheels or axles allowing it to be moved, other than for purposes of moving to a permanent site.

New Construction: the erection of a new structure or other permanent fixture on unused land.

Permitted Use: A use of land that is allowed within a designation.

Person: Individuals, tribal government, firms, organizations, corporations, associations and any other similar entity.

Reservation and/or Tribally Regulated Lands: Means the lands identified in Section PRP.02.04 in this ordinance.

Structure: anything constructed or erected that requires location on the ground or attached to a location on the ground, but not including fences.

Tribal Council: the governing body of the Stockbridge-Munsee Community, Band of Mohican Indians.

Travel Trailer: a structure built on a chassis with or without a complete kitchen or toilet, and designed to be used for temporary habitation for travel or recreation.

Uniform Dwelling Code: Notwithstanding any other law, Uniform Dwelling Code means Wisconsin Comm Chapters 16, 20, 21, 22, 23, 24, 27, 82, 83, 84, 85, and 86 (electrical, plumbing, manufactured homes, septic, and building codes) including future amendments to the Wisconsin Administrative Code Commerce Chapters, except the Stockbridge-Munsee Community retains exclusive jurisdiction regarding all permits, inspection and other enforcement.

Unnecessary hardship: any circumstances which were not self-created and which affect a particular land assignment or lot, making strict adherence to the requirements of this code as to area, density setbacks, or frontage burdensome or unreasonable.

Variance: An exception or waiving of the provisions of this Code for standards for yard setbacks, minimum lot requirements, or density requirements where it would cause unnecessary hardship to adhere to the Code.

Yard: an open space on the same lot with a building and unoccupied by structures.

Front yard: a yard extending the full width of the lot or assignment and that is between a building and the road-right-of-way.

Rear yard: a yard extending the full width of the lot or assignment and that is between a building and the rear lot property line or assignment line.

Side yard: a yard on each side of a building extending from the building side wall to the side lot property line or assignment line.

Section PRP.02.06 — Establishment Of Land Use Designations

(a) The Stockbridge-Munsee Tribal Council, by adoption of the Preliminary Mohican Land Use Plan in October 1999, approved designating areas of tribal land to be used for certain purposes. That plan, as revised, and future amendments are incorporated by reference. The Stockbridge-Munsee Forestry Management Plan as approved in 1996 and any future amendments are also incorporated by reference.

(b) Newly Acquired Lands

(1) After seeking input from the Core Planning Committee, the Land Management Department will make a recommendation to the Land Use Review Board regarding designations of newly acquired lands. The Land Use Review Board, following a 30-day posting and public hearing, will make a recommendation to the Tribal Council, for approval.

(2) All reservation lands are divided into designated areas as follows:

Designation	Abbreviation
Section PRP.02.07(a) Housing/Residential	H/R
Section PRP.02.07(b) Commercial/Enterprise	C/E
Section PRP.02.07(c) Industrial/Manufacturing	I/M
Section PRP.02.07(d) Government Facilities/Public Use	G/P
Section PRP.02.07(e) Commercial Forest	CF
Section PRP.02.07(f) Reserve	R
Section PRP.02.07(g) Parks and Recreation	PR
Section PRP.02.07(h) Utilities/Infrastructure/Transportation	U/T
Section PRP.02.07(i) Historic/Cultural	H/C
Section PRP.02.07(j) Agricultural	A
Section PRP.02.07(k) Multi-purpose/Mixed Use	M/M

(3) The requirements set for each designation shall be minimum requirements and shall apply uniformly to each except as provided by the procedures set forth in this chapter.

(4) A map of land use designations on tribal lands and entitled "Mohican Land Designation Map" is incorporated as a part of this Code and is adopted by reference and declared to be a part of this Code. No changes of any nature shall be made to the Map, Land Use Plan, or Forest Management Plan except by Tribal Council Resolution. The most recent map shall be identified by the signature of the Tribal President together with the date of adoption of said map.

Section PRP.02.07 — Statement Of Purpose And Permitted Uses

The following sections specify the purpose, intent, and permitted uses for each class of land use designation identified under Section PRP.02.06 of this Code.

(a) HOUSING/RESIDENTIAL. This designation is intended to provide lands for low to medium single-family dwellings for human habitation, and for certain private and public facilities or services that are compatible with neighborhood surroundings.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary land use permit:

(A) Single-family dwellings.

(B) Duplex (2-family, 3-family, 4 family) dwellings.

(D) Manufactured, modular, mobile homes to be used as dwellings.

(E) Parks and playgrounds and related structures.

(2) Permitted Accessory Uses.

(A) Private garages/private storage of motor vehicles.

(B) Accessory uses customarily incidental to the permitted uses.

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a conditional use permit:

(A) Governmental facilities uses.

(B) Churches and religious sites.

(D) Home Business use. (Home business use may differ if the home is in a subdivision where homes are in closer proximity, depending on what type of business involved.)

(E) Public and private schools.

(F) Farming, orchards, nurseries for private use.

(G) Travel trailers used as dwellings and not in a permitted mobile home park or trailer court.

(H) Mobile home parks/trailer courts.

(I) Rental of land and/or home on tribal land. This excludes fee land owned by individual tribal members. The Tribal Council reserves the right to tax or require paid lease for non-enrolled persons living in rented homes on tribal land to compensate for snow removal, garbage pickup, and other services provided.

(4) Prohibited Uses. All other uses are prohibited.

(5) Cluster Development. The following provisions apply to areas that are developed as planned communities for housing:

(A) A development plan shall be drafted and approved by the Tribal Council for number of sites and size of sites.

(B) A "footprint" of where each dwelling will go shall be pre-determined in the development plan, utilizing above density requirements to the extent practical.

(D) The plan shall include road patterns and standards for their development.

(E) The plan shall include other infrastructure such as wastewater treatment, water accessibility, electricity, and telephone.

(F) Individual lots cannot be further subdivided or made smaller for additional home lots located in subdivisions except as provided for in Section PRP.02.08(a)(6).

(6) Additional Requirements. The following provisions apply for mobile homes within the Housing/Residential Designation:

(A) It is strongly recommended that a mobile home be placed on a cement pad to provide for adequate drainage and support against settling and frost heave in order to provide for longevity of the mobile home.

(B) A mobile home shall be in intact condition with a good exterior appearance. There shall be no minimum age requirement.

(D) It is strongly recommended that all mobile homes shall be secured by the use of the appropriate tie-down mechanism.

(E) Mobile homes must pass inspection before permits are granted or the trailer allowed to be moved onto the assignment. Placement of a mobile home on a land assignment prior to obtaining the required inspection and permits may lead to enforcement actions against the assignment holder.

(7) The minimum lot requirement for a mobile home shall be one (1) acre.

(b) COMMERCIAL/ENTERPRISE. This designation is intended to provide lands for the location of businesses with good access to major roadways.

(1) Permitted Principal Uses: The following principal uses are permitted under this designation upon issuance of any necessary land use permit:

(A) Retail and wholesale sales: grocery, hardware, general merchandise, handicraft, other sales to consumers.

(B) Professional and semi-professional offices such as doctor, dentist, attorney, real estate.

(D) Personal services such as barber shops, hair stylists, etc.

(E) Theaters.

(F) Business services including any warehousing and storage services.

(G) Automobile gas stations and parking.

(H) Churches.

(I) Motels and hotels.

(J) Indoor and outdoor recreational uses.

(K) Laundromats.

(L) Automobile Sales

(2) Permitted Accessory Uses.

(A) Parking of trucks and delivery vehicles.

(B) Activities and uses which are customarily associated with the principal uses.

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a conditional use permit:

(A) Hospitals, nursing homes, community-based residential facilities.

(B) Light manufacturing clearly incidental to a retail business lawfully conducted on the premises.

(D) Automotive sales and repair service.

(E) Adult Day Care.

(F) Youth Day Care.

(G) Automobile dismantling, wrecking, or junkyards, provided it is fully screened or fenced so that the storage and operation is not visible from any public roadway or other property. If fence barrier is not provided within 45 days, Tribe may provide at owner's expense.

(H) Burial Grounds, Cemeteries, Individual Burials, except in any lowlands.

(I) Drive-in theaters, race tracks, or other outdoor commercial amusements of a permanent nature involving a large assembly of people.

(J) Mining, including quarrying, mineral extraction, explorations, and conversion facilities.

(K) Sanitary landfill.

(4) Prohibited Uses. All other uses are prohibited.

(c) INDUSTRIAL/MANUFACTURING. This area is intended to provide for light manufacturing where all or nearly all activity is contained within a single building, does not require extensive loading and unloading facilities or outside storage, and whose effects such as smoke, noise, light, heat, and odors cannot be detected outside property boundaries; and heavy manufacturing where more than one building is involved, where there is a great deal of activity with storage outside of buildings, and effects such as noise, smoke, dust, heat, light, and odors can be detected beyond property lines. These areas shall be located on roads suitable for industrial traffic and compatible with nearby land uses.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary land use permit.

(A) Agricultural supplies, machinery and equipment sales.

(B) Building contractor, equipment and material storage.

(D) Electric light and power company yards.

(E) Express mail and packages warehousing.

(F) Fish or meat wholesale, storage, curing.

(G) Commercial Kennels.

(H) Manufacturing, processing, packaging or treatment of such products such as drugs, bakery good, food, candy, beverages, dairy products, cosmetics and toiletries.

(I) Manufacturing, assembling, or treatment of articles or merchandise from bone, cellophane, canvas, cloth, cork, feathers, felt, fiber, fur, glass, hair, horn, leather, metal, paper, plastics, precious and semi-precious minerals, shells, textiles, tobacco, wood, yarns, and paints.

(J) Radio, television, and communications transmitting station and tower.

(K) Sawmill and lumber yard.

(L) Storage warehouses.

(2) Permitted Accessory Uses. Uses customarily incidental to any of the above listed.

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a Conditional Use Permit, because of the consideration of odor, dust, smoke, noise, fumes, or hazard. All environmental codes shall be met.

(A) Acid manufacturer.

(B) Asphalt manufacture, mixing, refining.

(D) Cement, lime, gypsum, or plaster of paris manufacture.

(E) Explosives, storage or manufacture.

(F) Reduction of disposal of garbage or similar refuse.

(G) Rock crushers.

(H) Rubber reclaiming.

(I) Tanneries.

(J) Wineries.

(K) Manufacturing of industrial or household adhesives, glues, or cements or component parts thereof.

(L) Automobiles, mobile homes, motorized vehicles sales and services.

(M) Bus line depot, garage and repair.

(N) Fuel distributors.

(O) Mining, including quarrying, mineral extraction, explorations, and conversion facilities.

(P) Slaughter houses.

(Q) Solid waste transfer station.

(R) Large-scale laundries.

(S) Automobile dismantling, wrecking, or junkyards, provided it is fully screened or fenced so that the storage and operation is not visible from any public roadway or other property. If fence barrier is not provided within 45 days, Tribe may provide at owner's expense.

(T) Burial Grounds, Cemeteries, Individual Burials, except that burial grounds, cemeteries, and individual burials are not permitted in any lowlands.

(U) Drive-in theaters, race tracks, or other outdoor commercial amusements of a permanent nature involving a large assembly of people.

(V) Sanitary landfill.

(4) Prohibited Uses. All other uses are prohibited.

(d) GOVERNMENT FACILITIES/PUBLIC USE. This designation is intended to provide land for Tribal governmental services.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary Land Use Permit:

(A) Governmental services office.

(B) Fire, police, and ambulance services.

(D) Educational facilities such as schools, colleges, libraries.

(E) Health care facilities.

(F) Churches.

(G) Burial grounds, Cemeteries, Individual Burials, except that burial grounds, cemeteries, and individual burials are not permitted in any lowlands.

(H) Elderly care and activities.

(I) Recreational activities, both indoor and outdoor.

(J) Child care facilities.

(K) Homeless shelters.

(L) Emergency shelters.

(2) Permitted Accessory Uses.

(A) Garages.

(B) Storage buildings.

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a Conditional Use Permit:

(A) Housing/residential.

(4) Prohibited Uses. All other uses are prohibited.

(e) COMMERCIAL FOREST. This designation is intended to identify that portion of the forests which shall be managed by the Tribe pursuant to Chapter ENV.02, to produce quality saw timber and pulpwood for sale.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary Land Use Permit:

(A) Growing and harvesting of forest products and all operations associated with such uses; timber production.

(B) Fish and game management.

(D) Camping

(2) Permitted Accessory Uses.

(A) Hunting, fishing, and trapping

(B) Gathering of firewood

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a Conditional Use Permit:

(A) Lumber milling utilizing portable mills.

(B) Gravel, clay, fill extraction, and explorations.

(4) Prohibited Uses. All other uses are prohibited.

(f) RESERVE. This designation prohibits any development but is to remain open for low impact recreation and for hunting subject to the permitted uses below and applicable ordinances, including Chapter ENV.01 and Chapter ENV.02.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary Land Use Permit:

(A) Fish and wildlife management.

(B) Harvesting of wild crops, personal use only.

(D) Nature trails.

(E) Camping

(2) Permitted Accessory Uses

(A) Hunting, fishing, trapping.

(B) Swimming.

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a Conditional Use Permit:

(A) Educational field trips.

(B) Scientific research.

(D) Burial Grounds, Cemeteries, Individual Burials, except that burial grounds, cemeteries, and individual burials are not permitted in any lowlands.

(4) Prohibited Uses. All other uses are prohibited.

(g) PARKS/RECREATION. This designation is intended to provide lands for outdoor enjoyment of the environment.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation.

(A) Outdoor recreational activities such as baseball, softball, football, basketball, soccer, volleyball.

(B) Picnicking.

(D) Nature trails.

(E) Campgrounds.

(F) Swimming.

(G) Boating/Canoeing.

(H) Camping.

(2) Permitted Accessory Uses

(A) Picnic tables, grills.

(B) Structures, such as picnic shelters and public restroom facilities.

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a conditional use permit:

(A) Housing/Residential.

(4) Prohibited Uses. All other uses are prohibited.

(h) UTILITIES/INFRASTRUCTURE/TRANSPORTATION. This designation is intended to set aside the necessary lands that provide services to the community such as water and sanitation systems, and to specify which lands are suitable for transportation links.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary land use permit:

(A) Water tower.

(B) Public sewage treatment facilities.

(D) Telecommunications (towers, boxes).

(E) Roads.

(F) Airstrips.

(2) Permitted Accessory Uses. Uses customarily associated with principal uses.

(3) Prohibited Uses. All other uses are prohibited.

(i) HISTORIC/CULTURAL. This designation is intended to set aside lands that shall enable historic and cultural traditions to be practiced.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary land use permit:

(A) Pow-wow grounds.

(B) Maple sugaring.

(D) Conduct of religious or cultural activities.

(E) Cultural and ceremonial activities.

(F) Education and recreation related to tribal cultural activities.

(G) Camping

(2) Permitted Accessory Uses.

(A) Parking areas.

(B) Hunting, fishing, trapping.

(D) Other uses customarily associated with principal uses.

(3) Prohibited Uses. All other uses are prohibited.

(j) AGRICULTURAL. This designation is intended to set-aside lands that are suited for purposes of farming, animal range, orchards, gardens and related activities.

(1) Permitted Principal Uses. The following principal uses are permitted under this designation upon issuance of any necessary land use permit:

(A) Farming, including the use of land and buildings for the purpose of obtaining a profit or subsistence by raising, harvesting, and selling crops, or by the breeding, feeding, management and sale of livestock, poultry or honeybees, or for dairy products or any other agricultural or horticultural use or animal husbandry and any combination thereof. Farming includes the preparation, processing, and storage of the products raised on such land for human or animal use and the disposal by marketing or otherwise, and buildings to conduct such activities.

(B) Tree farms.

(D) Pasture and grazing.

(E) Private and commercial kennels.

(F) Temporary seasonal roadside stands to sell agricultural products.

(2) Permitted Accessory Uses: Uses customarily associated with principal uses.

(3) Conditional Uses. The following uses are allowed in accordance with requirements for and upon the issuance of a conditional use permit:

(A) Rental for agricultural uses.

(B) Recreational facilities.

(D) Public parks and playgrounds.

(E) Concentrated Animal Feeding Operations.

(F) Burial Grounds, cemeteries, individual Burials, except that burial grounds, cemeteries, and individual burials are not permitted in any lowlands.

(G) Mining, including quarrying, mineral extraction, explorations, and conversion facilities.

(H) Sanitary landfill.

(4) Prohibited Uses. All other uses are prohibited.

(k) MULTI-PURPOSE/MIXED USE. This designation is set aside for more than one purpose or to be used in the future for one of several purposes. In order to regulate the effects of differing land uses and assure compatibility, any use desired in this designation shall be allowed only under a Conditional Use Permit.

Any of the uses listed in this Code under the following designations is allowed in accordance with requirements for and upon the issuance of a conditional use permit:

(1) Housing/Residential

(2) Commercial/Enterprise

(3) Industrial/Manufacturing

(4) Government Facilities/Public Use

(5) Commercial Forest

(6) Wilderness

(7) Parks and Recreation

(8) Utilities/Infrastructure/Transportation

(9) Historic/Cultural

(10) Agricultural

Section PRP.02.08 — Density Provisions

(a) These provisions apply to any dwelling for human habitation and to any other type of structure.

(1) Minimum Set-back Requirements:

(A) Front: The minimum setback from the centerline of the Tribal or Town Roads shall be 63 feet, and 75 feet from the centerline of County Roads.

(B) Side: The minimum side-yard setback shall be 25 feet.

(2) Maximum Set-back Requirements:

(A) Front: The maximum setback from the centerline of the roadway shall be 300 feet. The structure must be within the 300 feet setback.

(3) Minimum Lot Size: The minimum lot size shall be one (1) acre for any dwelling, except for any mobile home approved under Section PRP.02.08(a)(6).

(4) Waterway setback: Exterior boundary of 100-year floodplain or minimum of 300 feet to nearest navigable waterbody, whichever is greater.

(5) Maximum of one dwelling per land assignment unless approved under (6).

(6) Assisted Family Member Clause:

(A) A mobile home may be used as a second residence to be temporarily placed on a lot and used as a dwelling for a family member of a person who has a land assignment. The needy family member must be an enrolled member or a parent of an enrolled member who is currently residing on the land assignment. The tribal member, or parent of an enrolled member who is in need of care will be defined as one who is mentally or physically disabled, an elder, who is in need of verifiable care. Each allowance will be made on a case by case basis with the Land Use Review Board making a recommendation to Tribal Council for a final decision.

(B) The mobile home to be added to the site must first meet proper inspection before placed onto land assignment, and sewer and septic must be inspected to be sure the sewer and septic can handle an additional home site. The mobile home may be connected to the existing water and sewer sanitation systems but then must be properly disconnected when no longer needed and the mobile home then must be moved off the site. All costs involving installation and connection will be paid by the holder of the land assignment. When care is no longer needed the connection must be removed within six (6) months.

Section PRP.02.09 — Conformance With Code

No land shall hereafter be used or occupied, and no structure shall hereafter be erected, converted, constructed or structurally altered unless in conformity with all the regulations specified in this Code, including the Uniform Dwelling Code.

Section PRP.02.10 — Conformance With Other Laws

Uses of land under this ordinance shall comply with all applicable Tribal laws and policies, including but not limited to, Chapter SAF.02, Chapter ENV.01, Chapter ENV.02, Chapter ENV.03, Chapter ENV.04, Chapter ENV.05, Chapter ENV.06, Chapter PRP.01.

Section PRP.02.11 — Nonconforming Uses Of Structure And Land

Use of lands, waters, or buildings which lawfully existed at the effective date of this Code but which do not comply with the regulations of this Code may be continued but their designated use of the land may not be changed except to a permitted use or to a conditional use if approved by the Land Use Review Board as identified in Section PRP.02.14 and Section PRP.02.16. For purposes of this section, "use" means occupied and/or maintained for a certain purpose, and does not apply to land that is vacant and is not being used.

Section PRP.02.12 — Determination Of Uses Not Listed

In any designation, whenever a use is neither specifically permitted nor denied, the use shall be considered to be prohibited. In such a case a recommendation may be made by the Land Management Department to the Land Use Review Board for approval of other appropriate land for such use. The Tribal Council shall have final approval of such recommendation. If the use is approved, the applicant shall be granted a Conditional Use Permit.

Section PRP.02.13 — General Land Use Permits

(a) Activities Not Requiring Permits. With the exception of Section PRP.02.13(b) any land use permitted outright in any designation, may be conducted without permit provided it is conducted in accordance with this Code and other tribal laws.

(b) Activities Requiring Permits. Any person shall apply for and receive the appropriate Land Use Permit before starting any new construction, before bringing in any type of manufactured or mobile home, before installation of any well and septic system, before harvesting of certain forest products, before using any agricultural lands, before camping, and before any tree removal. The following types of permits are available: Building Plan Review Permit, Driveway/Culvert Permit, Sanitation Permit, Forestry Products Permit, Agricultural Permit, Camping Permit, and Tree Removal Permit.

(c) Processing of Permits. Permits shall be processed in accordance with Section PRP.02.16, Permit Process, of this Code, except camping permits, forestry products permits and tree removal permits.

(d) Camping Permits. Camping permits shall be issued by the Assets Department under a policy approved by the Tribal Council. The Casino will issue permits for camping at the Casino RV Park.

(e) Forestry Products Permits and Tree Removal Permits. Forestry products permits and tree removal permits shall be issued by the Forestry Department.

Section PRP.02.14 — Conditional Use Permits

(a) Purpose. While certain compatible uses are permitted outright within a designated area, certain other uses may be acceptable but may need their impact carefully evaluated before their use is allowed. Such uses are classified as conditional uses. The Land Use Review Board shall approve Conditional Use Permits.

(b) General Provisions. A conditional use permit may be issued only for conditional uses listed in this Code under each specific land use designation, or a use not listed but approved under Section PRP.02.12.

(c) Applying for a Conditional Use Permit. Application forms for a conditional use permit shall be available at the Land Management Department. The applicant shall complete the form and return it to the Land Management Department who shall review it for completeness.

(d) Processing of Permit. The permit shall be processed in accordance with Section PRP.02.16, Permit Process, of this Code.

(e) Expiration. A Conditional Use Permit shall expire if the use is discontinued for a period of twelve (12) months.

Section PRP.02.15 — Stand-Alone Accessory Uses

(a) No accessory uses shall be permitted on a lot or land assignment except in conjunction with an accompanying principal use, without the Land Use Review Board's approval.

Section PRP.02.16 — Permit Processes

(a) The permitting process is used to inform public decision makers and persons of the environmental and economic effects of actions that have been proposed, and initiate exchange of information among interested parties. The following requirements shall be followed for General Land Use Permits and Conditional Use Permits. These requirements do not apply to permits issued by the Forestry Department under the Forest Products Resources Ordinance.

(1) Receipt of applications. All applications for permits shall be received by the Land Management Department. The Department shall be responsible to develop application forms and assure that all the necessary information for each type of permit can be found on the form.

(2) Who May Submit Applications. Applications for permits shall be accepted only from persons who are tribal members and/or who are owners or assignees or beneficiaries of property, or their agents, or who represent a division or subdivision of the Tribe or a Tribal organization.

(3) Land Use Impact Review.

(A) Before a permit is issued for any purpose except camping, forestry products permits, or tree removal, or before any variance is approved, the request for permit or variance shall go through the Land Use Impact Review.

(B) The Land Use Impact Review requires that all departments and committees or boards with land-use related responsibilities review any proposed action to utilize or disturb tribal land in any way. This is to assure that all interested entities are aware of all proposed uses of tribal lands so that planning is integrated, and conflicts are avoided. These departments are: Environment, Enterprises, Assets, Land/Enrollment, Land Management, Roads, Forestry, Land Committee, Housing/Utilities, Repatriation, and Legal/Tribal Council.

(C) The Land Use Impact Review is processed through the Land Management Department, which shall require that requests for review by departments are completed and returned within 35 days. A reasonable extension may be granted at the request of any participant. If impact reviews are not returned within 35 days it is assumed that the department has approved the use.

(D) At the request of any Department participating in the Land Use Impact Review, results of the Land Use Impact Review shall be forwarded to the Core Planning Group, a representative entity of the departments as listed in (b) of this subsection, for recommendation for approval or denial of general land use permits identified in Section PRP.02.13 of this Code.

(E) The results of the Land Use Impact Review shall be forwarded to the Land Use Review Board for their use in determination to grant or deny a Conditional Use Permit as identified in Section PRP.02.14.

(b) Land Use Review Board Action.

(1) Conditional Use Permits. The Land Use Review Board shall determine whether the application complies with applicable requirements of this Code, and whether the use shall significantly adversely affect the environment, cultural resources, or endanger public health or safety.

(2) The Land Use Review Board may attach additional requirements to the issuance of a Conditional Use Permit to assure harmony with existing or reasonable expected future development of the proposed area.

(3) The Land Use Review Board shall comply with Section PRP.02.19, Hearing Procedures, of this Code when making a determination to approve or deny a Conditional Use Permit.

(1) If no departments object to issuance of a General Land Use Permit through the Land Use Impact Review Process, the Land Management Department shall issue such permit or notify the applicant of denial of the application. If the Impact Review has been sent to the Core Planning Group, upon their recommendation to approve or deny a General Land Use Permit, the Land Management Department shall issue such permit or notify the applicant of denial of the application.

(2) Upon recommendation by the Land Use Review Board to approve or deny a Conditional Use Permit, the Land Management Department shall issue such permit or notify the applicant of denial of the application.

(d) Expiration of Permits. A permit shall expire automatically if, within one year after its issuance, the use authorized by the permit has not commenced, unless the permittee can provide evidence of any action pending which will result in the authorized use.

Section PRP.02.17 — Variances

(a) A variance involves an exception to the Code requirements for certain standards for yard setbacks, minimum lot requirements, density requirements, and other dimensional standards. It is not used for construction or installation of a nonconforming structure within a land designation, nor can it be used to allow uses not expressly listed as permitted or conditional uses within a designation.

(b) An applicant for a variance shall show that the following conditions exist:

(1) The property cannot be put to a use listed because of limitations in the dimensions of the land or building.

(2) The applicant has unique exceptional circumstances related to the land in question which are not of his own making, and which would cause practical difficulties or unnecessary hardships if the code was applied.

(3) The requested change shall not alter the environment or character of the land or surrounding neighborhood.

(4) The requested change shall not be materially detrimental to the public welfare or be injurious to property or improvements in the neighborhood.

(c) All applications for a variance shall be received by the Land Management Department. The Department shall be responsible to develop an application form and assure that all the necessary information for a variance request can be found on the form.

(d) Applications for a variance shall be accepted only from persons who are owners or assignees of property, or their agents, or who represent a division or subdivision of the Tribe or Tribal organization.

(e) The Land Use Review Board shall hold a public hearing within 30 days of the application for the variance, at which persons may present their views orally or in writing.

(f) A variance may be issued for an indefinite period or for a specified period only, as determined by the Land Use Review Board.

(g) The Land Use Review Board shall recommend approval of all variances, with final approval by the Tribal Council.

(h) The Board or the Tribal Council may attach conditions necessary to protect the best interests of the surrounding property and the Tribe as a whole.

(i) The Land Management Department shall issue the variance upon receipt of a directive from the Tribal Council.

Section PRP.02.18 — Administration Of This Code

(a) Tribal Staff Responsibilities, Land Management Department:

(1) The Land Management Specialist shall be responsible for the following duties in the administration and enforcement of this Code:

(A) Receive and review all applications for permits and variances required under this Chapter, except those permits issued by the Forestry Department, including providing assistance to all persons in preparation of their applications.

(B) Forestry-related permits shall be issued by the Tribal Forestry Department.

(D) Record all applications with accompanying documents.

(E) Submit all applications for Land Use Impact Review.

(F) Approve permits as authorized in this Code.

(G) Forward all applications that require Board action to the Land Use Review Board.

(2) The Land Management Technician shall be responsible for the following duties in the administration and enforcement of this code:

(A) Maintain records pertinent to this code including maps, surveys, permits issued, land status, structures, field notes, and photographs.

(B) Receive complaints, inspect, investigate, and prepare violation reports. The violation report should be sent to the person who has committed the violation, with a notice to correct the action within a time certain or be subject to penalties and enforcement action. Copies of violation reports along with any recommendation for sanction shall be forwarded to the Tribal Prosecutor's office and any other appropriate departments or agencies.

(C) Issue citations for violations of this Code when individuals fail to correct their violations after receiving the notice of violation report.

(3) Both the Land Management Specialist and the Land Management Technician are authorized by this Code to issue citations to individuals for failure to abide by the terms of this Code. Fines for violations of this Code may be up to $100.00 per day.

(b) Land Use Review Board. The Tribe hereby creates and establishes the Land Use Review Board as a governmental arm of the Tribal Council. The currently established Land Committee shall function as the Land Use Review Board.

(1) Hear appeals from denials of any permits issued by the Land Management staff, under this Code.

(2) Consider applications for Conditional Use Permits and Variances, and take appropriate actions.

(3) Recommend approval of Conditional Use Permits and Variances to the Tribal Council when appropriate.

(4) Hold regular meetings.

(5) Hold public hearings to determine approval or denial of applications for permits and variances, and to hear appeals and Code amendment proposals.

(6) Administer oaths for taking sworn testimony.

(7) Classify undesignated lands for Tribal Council approval.

Section PRP.02.19 — Hearing Procedures

(a) Before making a decision on an application for a Variance, Conditional Use Permit, any appeal, or any amendments to this Code, the Land Use Review Board shall hold a hearing on the application, appeal, or amendment. At least one member of the Board shall preside over the hearing, except that the Review Board may designate a hearing officer to conduct the hearing in lieu of a Board member.

(b) Any hearing mandated under this Code shall be held within 60 days of receipt of application for variance, permit, or amendments to Code.

(d) At least 48 hours notice shall be given of the hearing(s).

(e) The Board may place reasonable and equitable limitations on the presentation of evidence and arguments so that the matter at issue may be heard and decided without undue delays.

(f) The Board may continue the hearing until a subsequent meeting and may keep the hearing open to take additional information until the final decision is made.

(g) It shall be the responsibility of the Board to assure that a taped recording shall be made of all hearings and that such recording shall be kept for at least two years. A permanent written record shall also be made of the hearings and the records shall be stored in the Land Management Office.

(h) Whenever practicable, all documentary evidence presented at a hearing as well as all other types of evidence shall be made a part of the record of the proceedings and shall be kept by the Tribe for at least two years. The evidence shall be kept by the Land Management Office.

Section PRP.02.20 — Enforcement And Penalties

(a) Investigation of Compliance, Reporting Violations.

(1) The Land Management Department is responsible for the necessary inspection and investigation to assure compliance with this Code and is responsible for documenting the presence of violations and issuing citations for these violations.

(2) Any person may file a complaint with the Land Management Department concerning a potential violation of this Code. Upon receiving a complaint, Land Management Department personnel, with the assistance of a law enforcement officer if deemed necessary, shall investigate and gather facts about the complaint.

(3) If good cause is found, then the Department has authority to issue a notice of violation to the individual, informing the individual of the penalties and giving them a time-frame for correcting the violation. If the individual fails to correct the violation in the time-frame provided in the notice, then the Department has authority to issue a citation to the individual. The citation must be submitted to the Tribal Court within three business days of service of the citation upon the individual. A copy of the citation shall be delivered to the Tribal Prosecutor at the same time.

(4) The Department may turn this case over to the Tribal Prosecutor for action. Upon determination by the Tribal Prosecutor of probable cause that a violation of this Code exists, the Tribal Prosecutor may:

(A) Communicate informally with the alleged violators to remedy the violation;

(B) Take court action as permitted under this Code;

(D) Bring a forfeiture action against the alleged violator;

(E) Take any other action consistent with the purpose of this Code that common sense and good judgment would allow.

(5) If a violation is believed to be causing harm to the Community or jeopardizing health and safety of any person or the Community, the Tribe may expend its own funds to remedy such violation. If the Tribe expends its own funds to remedy a violation, the person responsible for the violation must reimburse the Tribe for the expenditure. The Prosecutor has the authority to bring an action in order to recover tribal funds expended to remedy the violation.

(b) Prosecution, Injunctions, and Penalties.

(1) It shall be the duty of the Department and/or the Tribal Prosecutor to expeditiously pursue all violations of this Code.

(2) Persons convicted of violations to this Code shall be subject to the penalties herein described.

(3) In addition to forfeiture actions the Tribal Prosecutor may seek enforcement of any and all parts of this Code by court actions seeking injunctions or restraining orders. The Tribal Prosecutor may seek an emergency order from the Court to restrain or enjoin any violation that is jeopardizing the health or safety of any person or is causing environmental damage. Such an order may be sought and issued ex parte if the Tribe shows a good faith effort to serve notice on the necessary parties.

(1) Any act constituting a violation of the provisions of this Code or a failure to comply with any of its requirements, including commencing actions for which permits are required without first having obtained a permit, and including violations of any conditions and safeguards established in connection with the grants of variances, Conditional or Special Use Permits, shall subject the offender to a civil penalty of up to $100.00 per day.

(2) In lieu of or in addition to monetary civil penalty, any person found guilty of violating this Code may be required by the Court to provide community service assisting in activities useful to the protection of or enhancement of Tribal Lands and related uses.

(3) The Tribal Council has the power to cancel any person's land assignment or spousal life estate or other interest in tribal land upon a finding of substantial and continuing violations of this Code. Before such an action may be taken, the person with the interest must be given adequate notice and an opportunity to be heard by not less than a quorum of the Tribal Council. The Council may designate procedures for such hearings.

Section PRP.02.21 — Appeals

(a) An applicant may appeal a denial of a permit by the Land Management Department to the Land Use Review Board. An appeal is initiated by filing with the Land Management Department and the Review Board a written Notice of Appeal specifying the grounds of the appeal. A Notice of Appeal shall be considered filed when delivered to the Land Management Department, and the date and time of filing shall be entered on the Notice by the staff.

(b) An appeal shall be filed within 30 days after the date of the decision.

(c) The Land Management Specialist or designee shall without delay submit to the Land Use Review Board all records on file that are relating to the appeal filed.

(d) The Land Use Review Board may reverse or affirm the denial of any permit provided for under this code.

(e) Appeals from any Tribal Court order shall be made consistent with the provisions of the Stockbridge-Munsee Tribal Court Rules of Procedure.

Section PRP.02.22 — Judicial Review

(a) Any party to a proceeding before the Land Use Review Board or the Tribal Council who is aggrieved by the decision or final order of the Board or Council is entitled to limited judicial review thereof in the Stockbridge-Munsee Community Tribal Court. All other remedies shall first be exhausted. Preliminary or procedural actions of the Board or Council are not subject to such review.

(b) An aggrieved party may appeal a final decision or order within 20 days of it becoming final. Upon the filing of an appeal, the final order or decision is automatically stayed during the appeal.

(c) The Tribal Court may not review the matter as an original action, nor may it hear new evidence. The Tribal Court shall give due deference to the Land Use Review Board and Tribal Council.

(d) The Court may only disturb a final order or decision if it is found to be arbitrary and capricious. Arbitrary and capricious means unreasonable and without regard for facts and law.

(e) Upon a finding that a final order or decision is arbitrary and capricious, the Court may only:

(1) Return the decision to the Land Use Review Board or Tribal Council for further proceedings;

(2) vacate the order or decision;

(3) issue an injunction to maintain the status quo during further proceedings.

Section PRP.02.23 — Amendments To Code

(a) Authority. The law imposed and the land use designations created under this Code may be amended from time to time whenever the public necessity and convenience and the Tribal general welfare requires. Such a change shall be proposed by the Land Management Department, the Land Use Review Board, the Tribal Council, or any tribal member.

(b) Initiation of Amendment. The proposed change may be initiated by petition to the Land Management Department with the following information:

(1) Description of property affected.

(2) Existing land designation

(3) Proposed land designation.

(4) Any change proposed to text of this Code.

(5) Petitioner's name, address, and phone number.

(c) Petition. The petition shall be forwarded to the Land Use Review Board who shall, within 30 days of receipt of the petition, schedule a public hearing on the proposed amendment.

(d) Standards for Land Designation Change. The burden of proof shall be with the petitioner to establish:

(1) Conformance with all applicable Codes.

(2) Public need for the change.

(3) That there is no other available property that could better serve the need.

(4) Proof of change of circumstance or mistake in original land designation.

(5) Any other legitimate concern.

(e) Enactment. The Stockbridge-Munsee Tribal Council may, after the public hearing is held, enact a resolution amending this Code or by motion deny the proposed amendment. Such amendments are not subject to the approval of the Secretary of the Interior.

Section PRP.02.24 — Severability

If a court of competent jurisdiction finds any portion of this Code illegal, the remaining portions of this Code shall remain unaffected and remain in force.

Section PRP.02.25 — No Waiver Of Sovereign Immunity

Nothing in this Code shall provide or be interpreted to provide a waiver of the Stockbridge-Munsee Community or any of its governmental officers' and/or agents sovereign immunity from suit.

Section PRP.02.26 — Effective Date

This Code shall take effect upon notice of its approval by the Secretary of the Interior.

Chapter PRP.03 — [Recodified]

Recodified as ADM.03.

Chapter PRP.04 — Probate Code

Legislative History

1. Resolution No. 039-96, adopted July 23, 1996.

2. Resolution No. 120-97, adopted April 15, 1997.

Commentary

PART 1. GENERAL PROBATE PROVISIONS

This Part begins by setting out the purpose and philosophy of this Probate Code.

Section 6.1.1 provides that the code should be liberally interpreted to meet the following objections:

(A) To ensure that the property of decedents passes to the rightful heirs or beneficiaries.

(B) To comply with the decedent's wishes as much as possible.

(D) To provide a simple, efficient and inexpensive method for probate decedent's property.

(E) To prevent the transfer of land our of tribal ownership and control.

(F) To ensure that the rights of creditors of decedents are protected to the extent possible and fair.

(G) To promote and further the Tribe's inherent right to self-governance.

It is very useful to begin a probate code by getting forth the purpose and philosophy to guide the court in interpreting and applying the code. The Tribal Council should carefully review these objectives to determine whether these objectives are appropriate and consistent with the needs of the community.

Section 6.1.2 sets forth a long series of specific definitions due to the fact that probate law in general and Indian probate law specifically has a unique language which often needs explanation.

Section 6.1.3 provides for a broad statement of jurisdiction. It provides for the exercise of the greatest possible tribal jurisdiction over the probate of the estate of decedents who were domiciled or owned real or personal property on the Indian Reservation. Jurisdiction is not limited to Indian decedents or to tribal members. Instead, it allows the court to assert probate jurisdiction over anyone who was domiciled or owned real or personal property on the reservation. It does not mean that the court must assert jurisdiction in all of the potential cases - but it does give the court flexibility to assert jurisdiction when it is appropriate.

Sections 6.1.4 and 6.1.5 allow for the use of tribal custom and tradition. Section 6.1.4 is important because it allows anyone to renounce any property or interest and sets forth the procedure for renunciation of succession.

The remaining sections are standard general probate provisions as follows:

Section 6.1.6 - Allows relief when fraud is involved

Section 6.1.7 - Provides procedure for determining evidence of death

Section 6.1.8 - Allows for use of civil procedure and appellate review when appropriate

Section 6.1.9 - Sets forth judicial powers and duties

Section 6.1.10 - Sets out rules for records and copies

Section 6.1.11 - Allows for trials to the court

Part I — General Probate Provisions

Section PRP.04.01 — Purpose

(a) The following title shall hereinafter be referred to as the Probate Code. The objective of the Probate Code is to provide for the exercise of the greatest possible tribal jurisdiction over the probate of the estate of decedents who were domiciled or owned real or personal property on the Stockbridge-Munsee Community Indian Reservation. The Stockbridge-Munsee Tribal Council finds that probate procedure in the Stockbridge-Munsee Tribal Court is in the best interest of tribal members in that probate may be concluded more economically and more expeditiously than by other jurisdictions. Furthermore, the determination of how property is disposed upon a person's death is an exercise of self-governance crucial to tribal sovereignty.

(b) This code shall be liberally construed and applied to meet the following objectives:

(1) To ensure that the property of decedents passes to the rightful heirs or beneficiaries.

(2) To comply with the decedent's wishes as much as possible.

(3) To comply with tribal custom and tradition.

(4) To provide a simple, efficient and inexpensive method for probating decedent's property.

(5) To prevent the transfer of land out of tribal ownership and control.

(6) To ensure that the rights of creditors of decedents are protected to the extent possible and fair.

(7) To promote and further the tribe's inherent right to self-governance.

Section PRP.04.02 — Definitions

As used in Chapter PRP.04, unless the context otherwise requires:

(a) "Abatement" means a reduction or decrease.

(b) "Administrator" means the person appointed by the Tribal Court to administer the estate of a decedent according to this Probate Code and may include an Administrator nominated by the decedent's will, appointed at the request of an interested party, appointed by the Court, or the public Administrator.

(c) "Beneficiary" means any person nominated in a will to receive an interest in property other than in a fiduciary capacity.

(d) "Class Gift" means a devise or gift to a body of people, uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal, or other definite proportions, the share of each being dependent for its amount upon the ultimate number of people in the class. Example: "I leave $10,000 to my grandchildren." In the example, the decedent's grandchildren constitute a class of people which may grow over time, but will be a certain number upon the death of the decedent.

(e) "Codicil" means a supplement or an addition to a will; it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in an existing will. A codicil does not purport to dispose of the entire estate or to contain the entire will of the testator, nor does it ordinarily expressly or by implication revoke an entire prior will.

(f) "Decedent" means a person who has died leaving property that is subject to administration.

(g) "Devisee" means any person to whom lands or other real property are given by will.

(h) "Devolution" means the passage or transfer from one person to another; the falling on or accrual to one person as the successor of another.

(i) "Distributee" means any person to whom property of a decedent is distributed other than in payment of a claim, or who is entitled to property of a decedent under their will or the laws governing intestate succession.

(j) "Domicile" means the place where a person has his or her true, fixed and permanent home and principal establishment, and to which whenever s/he is absent s/he has the intention of returning.

(k) "Donee" means the recipient of a gift or conveyance. In contrast to the giver or donor.

(l) "Escheat" means reversion of property to the Tribe because no valid heir or person to inherit exists.

(m) "Fiduciary" as a noun means that person or institution who manages money or property for another and who must exercise the highest standard of care in such management activity; as an adjective, it describes the nature of a trust, which is the highest and most scrupulous duty owed to another.

(n) "Half-blood" means the degree of relationship which exists between those who have the same father or the same mother, but not both parents in common.

(o) "Heir" means any person, including the surviving spouse, who is entitled under the law governing intestate succession to an interest in the property of a decedent.

(p) "Incompetent" means a person who is substantially incapable of managing his or her property or caring for himself or herself by reason of infirmities of aging, developmental disabilities, or other like incapacities. Physical disability without mental incapacity is not sufficient to establish incompetence.

(q) "Indian" means a member of the Stockbridge-Munsee Tribe, or any other person of Indian blood who is a member of a federally recognized Indian tribe or any other person on the Reservation who is recognized by the community as an Indian, including a Canadian Indian, Latin American Indian, Alaska Native, and/or Hawaiian Native.

(r) "Interested Witness" means any of the following:

(1) An heir of the decedent.

(2) A beneficiary named in any document offered for probate as the will of the decedent.

(3) A beneficiary of a trust created under any document offered for probate as the will of the decedent.

(4) A person named as Administrator or personal representative in any document offered for probate as the will of the decedent.

(5) Additional persons as the Tribal Court may include.

(s) "Intestate" means one who dies without leaving a valid will, or the circumstance of dying without leaving a valid will effectively disposing of all of the estate.

(t) "Intestate succession" means succession to property of a decedent who dies without a will or with a will that has certain provisions which are not valid.

(u) "Issue" when used to refer to persons who take by intestate succession, means children, grandchildren, lineal descendants of more remote degree, except those who are the lineal descendants of living descendants. The term includes adopted children and non-marital children and their issue.

(v) "Letters testamentary" means the formal document of authority and appointment given to an executor or administrator by the Court, empowering him or her to fulfill his or her duties as required by his position as executor or administrator.

(w) "Member" means an enrolled member of the Stockbridge-Munsee Tribe.

(x) "Personal Property" means all property other than real property.

(y) "Pretermitted" means a child or other descendant omitted from the will of a testator.

(z) "Property" means any interest, legal or equitable in real or personal property, without distinction as to kind, except trust property.

(aa) "Real property" means all interest in land or in buildings or improvement permanently attached to land.

(bb) "Renounce" means to make an affirmative declaration of abandonment. A waiver of rights.

(cc) "Reservation" means the Stockbridge-Munsee Reservation in Wisconsin.

(dd) "Residue" means the surplus or left over part of a testator's estate remaining after all the debts and distributions have been completed.

(ee) "Take by Representation" means the principle upon which the issue of a decedent take or inherit the share of an estate which their immediate ancestor would have taken or inherited, if living.

(ff) "Testator" means a decedent who dies leaving a valid will.

(gg) "Tribal Court" means the Tribal Court of the Stockbridge-Munsee Community Band of Mohican Indians.

(hh) "Tribe" means the Stockbridge-Munsee Community Band of Mohicans.

(ii) "Trust Property" means real or personal property title to which is in the United States for the benefit of an Indian or Indian Tribe.

Section PRP.04.03 — Jurisdiction

The Tribal Court shall have jurisdiction to administer in probate the estate of a decedent who, at the time of their death, was domiciled or owned real or personal property situated within the Stockbridge-Munsee Community Indian Reservation to the extent that such estate consists of property which does not come within the exclusive jurisdiction of the Secretary of the Interior of the United States.

Section PRP.04.04 — Control Of Funeral Arrangements

(a) Control of funeral arrangements and disposition of the remains of the decedent shall be based upon any wishes, instructions or directions of the decedent as expressed in the decedent's will.

(b) If the decedent dies intestate or the decedent's will is silent on the issue of funeral arrangements, the control of funeral arrangements and disposition of the remains of the decedent shall be based upon a decision of the decedent's family.

(c) If the decedent dies intestate and the decedent's will is silent on the issue of funeral arrangements and the decedent has no family available to make a decision, control of the decedent's funeral arrangements and disposition of the remains shall be based on the customs of the Tribe.

Section PRP.04.05 — Indian Custom And Tradition Distribution Of Indian Finery And Artifacts

Notwithstanding the provisions of this Probate Code relating to descent and distribution, the surviving spouse or other surviving next of kin may distribute any Indian artifacts and finery belonging to the decedent in accordance with the customs and traditions of the Tribe prior to the initiation of the administrative of the estate. Such distribution shall be in accordance with directions left by the decedent, if any.

Section PRP.04.06 — Effect Of Fraud And Evasion

(a) Whenever fraud has been perpetuated in connection with any proceeding or in any statement filed under this Probate Code or if fraud is used to avoid or circumvent the provisions or purposes of this Probate Code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud including restitution from any person (other than a bona fide purchaser) benefitting from the fraud, whether innocent or not.

(b) Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than five years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during their lifetime which affect the succession of the estate.

Section PRP.04.07 — Evidence As To Death Or Status

(a) In proceedings under this Probate Code, the following rules relating to determination of death and status are applicable:

(1) A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death and the identity of the decedent;

(2) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive, is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report;

(3) A person who is absent for a continuous period of five years, during which they have not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry is presumed to be dead. Their death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.

Section PRP.04.08 — Practice In Court

Unless specifically provided to the contrary in this Probate Code or unless inconsistent with its provisions, the Stockbridge-Munsee Tribal Court Code and Rules of Procedure, including the rules concerning vacation of orders, govern formal proceedings under this Probate Code. Appeals shall be taken in accordance with the Tribal Court rules on appeals.

Section PRP.04.09 — Judicial Powers And Duties

(a) The judge of the Court may make orders for the sale of personal property at public or private sale for the compounding of debts, for the settlement of an estate as insolvent, for the approval of bonds and all other orders of an ex parte nature as may facilitate the settlement of estates. The orders shall be in writing, signed by the judge issuing the same, and shall be filed and recorded as an entry in the proper record.

(b) The judge shall examine the bonds filed by the personal representations, with a view to ascertaining their sufficiency and may approve the same. The judge may examine any inventory, sale, bill, account current, final account and vouchers filed therewith, or examine into the condition of an estate generally. Bond may be waived for good cause shown.

(c) The Court shall have the authority to draft orders requesting property of funds outside the exterior boundaries of the Reservation to be delivered to the Court for probate in the Tribal Court.

Section PRP.04.10 — Records And Certified Copies

The clerk shall keep a file for each decedent of all documents filed with the Court under this Probate Code and shall keep a numerical index of all such estates to facilitate access to such records. Upon payment of a fee, the Clerk shall issue certified copies of any document or paper so filed.

Section PRP.04.11 — Trial

All trials under this Probate Code shall be to the Court.

Section PRP.04.12 — Oath Or Affirmation On Filed Documents

Except as specifically provided in this Probate Code, every document filed with the Court under this Probate Code shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and the penalties for perjury shall follow deliberate falsification therein.

Section PRP.04.13 — Notice

(a) If notice of a hearing on any petition or other matter is required and except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or their advocate if they have appeared by advocate or requested that notice be sent to their advocate. Notice shall be given:

(1) By mailing a copy thereof at least 14 days before the time set for the hearing by certified, registered or ordinary first class mail addressed to the person being notified at the post office address given in their demand for notice, if any, or at their office or place of residence, if known;

(2) By delivering a copy thereof to the person being notified personally at least 14 days before the time set for the hearing; or

(3) If the address, or identity of any person is not known and cannot be ascertained by reasonable diligence, by posting a copy of the notice in at least three conspicuous public places on the reservation at least 14 days before the time set for the hearing.

(b) The Court for good cause shown may provide for a different method or time of serving notice for any hearing.

(d) A person, including a guardian ad litem, or other fiduciary, may waive notice by a writing signed by the person or their attorney and filed in the proceeding.

Section PRP.04.14 — Renunciation Of Succession (Choosing Not To Inherit)

(a) A person (or their personal representative) who is an heir, devisee, person succeeding to a renounced interest, beneficiary under a testamentary instrument or person designated to take pursuant to a power of appointment exercised by a testamentary instrument, may renounce in whole or in part the succession to any property or interest therein by filing a written instrument with the Court not later than six months after the decedent's death or the time at which it is determined that the person is entitled to take property if such is not known at the time of death.

(b) The instrument shall: (1) describe the property or part thereof or interest therein renounced, (2) be signed by the person renouncing and (3) declare the renunciation and the extent thereof. Upon proper renouncement, the interest renounced passes as if the renouncing person had predeceased the decedent or donee.

Section PRP.04.15 — Effect Of Divorce, Annulment, And Decree Of Separation

A person who is divorced from a decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he or she is married to the decedent at the time of death. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this Probate Code.

Section PRP.04.16 — Effect Of Homicide On Intestate Succession, Wills, Joint Assets Life Insurance And Beneficiary Designation

(a) A surviving spouse, heir or devisee who criminally and intentionally kills the decedent is not entitled to any benefits passing under this Probate Code and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent.

(b) Any joint tenant who criminally and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as their property and the killer has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint accounts in banks, savings and loan associations, credit unions and other institutions, and any other form of co-ownership with survivorship incidents.

(c) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who criminally and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.

(d) Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this section.

(e) A final judgment of conviction of an offense containing the elements of criminal and intentional killing is conclusive for purposes of this section. In the absence of a conviction of criminal and intentional killing, the Court may determine by a preponderance of evidence whether the killing was criminal and intentional for purposes of this section.

Section PRP.04.17 — Simultaneous Death Provisions

(a) Where the title to property covered under this Probate Code or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if they had survived except where provided otherwise in this Probate Code.

(b) Where two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is no sufficient evidence that these beneficiaries have died otherwise than simultaneously the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed in the proportion that the beneficiary bears to the decedent or decedents.

(c) Where there is not sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died, the property thus shall be distributed in the proportion that one bears to the whole number of joint tenants.

(d) Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.

(e) These provisions on simultaneous death shall not apply in cases where the decedent has made provision for a different distribution in a will, trust, deed, contract or insurance.

Part II — Wills

Section PRP.04.18 — Who May Make A Will

Any person 18 or more years of age and who is of sound mind may make a will.

Section PRP.04.19 — Execution

Except as otherwise provided for oral wills (Section PRP.04.21) or holographic wills (Section PRP.04.20), every will shall be put in writing and signed by the testator, or in the testator's presence and at the testator's direction signed by another person, and shall be signed by at least two persons each of whom either witnessed the signing by the testator of the will or the testator's acknowledgment of the signature and direction to do so.

Section PRP.04.20 — Holographic Will

A will which does not comply with Section PRP.04.19 of this Probate Code is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

Section PRP.04.21 — Oral Will

(a) A will which does not comply with Section PRP.04.19 of this Probate code is valid as an oral will under custom if all children, whether residing in testator's home or not, and testator's spouse, if alive, are present at the announcement of the oral will and agree that the testator orally made known the testator's last will before them.

(b) An oral will is also valid under custom if made in the presence of a competent disinterested adult person by a testator who declares at the time that it is his or her wish that their property descend in a specific manner upon the event of the testator's death. "Disinterested" means that the person hearing the oral declaration of testator's intent will not benefit in any way directly or indirectly nor will a spouse or any relative of said disinterested person benefit in any way directly or indirectly.

(c) The Court shall hear testimony from the disinterested person who heard such declaration and the Court shall decide the following: (1) whether such testimony is credible; and (2) whether the manner of disposition of testators property is reasonable and customary. If the Court finds that both of the foregoing conditions prevail, the testator's expressed intent shall be carried out as a valid will.

Section PRP.04.22 — Self-Proved Will-Form

An attested will may, at the time of its existence or at any subsequent date, be made self- proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before a notary public or a judge, under official seal, attached or annexed to the will in form and content and substantially as follows:

State of _______________

County of _____________

We, ____, ____, and ____, the testator and the witnesses, respectively, whose names are signed to the attached and foregoing instrument, being first duly sworn, do hereby declare to the foregoing authority that the testator signed and executed the instrument as the testator's last will and that the testator signed willingly or directed another to sign for the testator, and that the testator executed the instrument as their free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of their knowledge the testator was at the time 18 years or more of age, of sound mind and under no constraint or undue influence.

___________________________

TESTATOR

______________________________

____________________________

WITNESS

Address

Date:

______________________________

____________________________

WITNESS

Address

Date:

Subscribed, sworn to and acknowledged before me by _____________ the testator, and subscribed and sworn to before me by ____________________ and __________________ witnesses, this ____ day of_______________, ______.

SIGNED BY JUDGE OR NOTARY

Section PRP.04.23 — Who May Witness

(a) Any person who, at the time of execution of the will, would be competent to testify as a witness in Court to the facts relating to execution may act as a witness to the will. Subsequent incompetency of a witness is not a ground for denial of probate if the execution of the will is otherwise satisfactorily proved.

(b) A will is not invalidated because signed by an interested witness; but, unless the will is also signed by 2 disinterested witnesses, any beneficial provisions of the will for a witness or the witness' spouse are invalid to the extent that such provisions in the aggregate exceed in value what the witness or spouse would have received had the testator died intestate. Valuation is to be made as of testator's death.

Section PRP.04.24 — Choice Of Law As To Execution

A written will is valid if executed in compliance with this Probate Code or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death of the testator is domiciled, has a place of abode or was a national.

Section PRP.04.25 — Revocation By Writing Or By Act

(a) A will or any part thereof is revoked:

(1) By a subsequent valid will, codicil, or other instrument which revokes the prior will in whole or in part expressly or by inconsistency; or

(2) By being burned, torn, canceled, obliterated, or destroyed with the intent and for the purpose of revoking it by the testator or by another person in the testator's presence and at the testator's direction.

Section PRP.04.26 — Revocation By Divorce; No Revocation By Other Changes Of Circumstances

(a) If, after executing a will, the testator is divorced or the testator's marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as Executor, trustee, conservator, or guardian, unless the will expressly provides otherwise.

(b) Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.

Section PRP.04.27 — Revival Of Revoked Will

If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part unless it is evident from the circumstances and the terms of the revocation of the second will or from the testator's contemporary or subsequent declarations that the testator intended the first will to take effect as executed.

Section PRP.04.28 — Incorporation By Reference

Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Section PRP.04.29 — Events Of Independent Significance

A will may dispose of property by reference to acts and events which have significance apart from their effect upon the disposition made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of a will of another person is such an event.

Section PRP.04.30 — Rules Of Construction And Intention

(a) The intention of a testator as expressed in the testator's will controls the legal effect of the testator's dispositions;

(b) The following rules of construction apply unless a contrary intent is clear in the will:

(1) All property; after-acquired property. A will is construed to pass all property which the testator owns at their death including property acquired after the execution of their will;

(2) Devisee must survive testator by 120 hours. A devisee who does not survive the testator by 120 hours is treated as if they predeceased the testator, unless the will of the decedent contains such language dealing explicitly with simultaneous deaths, including common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will;

(3) Failure of testamentary provision. If a devise other than a residuary devise fails for any reason, it becomes part of the residual estate. If the residual estate is devised to two or more persons and the share of one of the residuary devisees fails for any reason, their share passes to the other residuary devisees, or to other residuary devisees in proportion to their interests in the residue.

(4) Class Gifts. One who would have been a devisee under a class gift if they had survived the testator is treated as a devisee for purposes of this section whether their death occurred before of after the execution of the will;

(5) Exercise of power of appointment. A general residuary clause in a will, or a will making general disposition of all the testator's property, does not exercise a power of appointment unless specific reference is made to that power;

(6) Generic Terms. Half-bloods, adopted persons and persons born out of wedlock are included in class gifts terminology and terms of relationships in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father or unless paternity has been judicially determined during the life of the father or in some other manner which satisfies the court by clear and convincing evidence that paternity has been conclusively established.

(7) Ademption by satisfaction. Property which a testator gave in their lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if the will provides for deduction of the lifetime gift, or the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction. For the purpose of partial satisfaction, property given during the lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first.

Part III — Intestate Succession

Section PRP.04.31 — Intestate Succession

Any part of the estate of a decedent not effectively disposed of by the decedent's will passes to the decedent's heirs as prescribed in the following sections of this Probate Code.

Section PRP.04.32 — Share Of The Spouse

(a) The intestate share of the surviving spouse is:

(1) if there is no surviving issue or parent of the decedent, the entire intestate estate;

(2) if there is no surviving issue but the decedent is survived by a parent or parents, the first $20,000, plus one-half of the balance of the intestate estate;

(3) if there are surviving issue all of whom are issue of the survived spouse also, the first $20,000, plus one-half of the balance of the intestate estate;

(4) if there are surviving issue one or more of whom are not issue of the surviving spouse, one-half of the intestate estate.

Section PRP.04.33 — Share Of Heirs Other Than Surviving Spouse

The part of the intestate estate not passing to the surviving spouse under Section PRP.04.32 of this Probate Code, or the entire intestate estate if there is no surviving spouse, passes as follows:

(a) to the issue of the decedent; if they are all of the same degree of kinship to the decedent they take equally, but if of unequal degree, then those of more remote degree take by representation;

(b) if there is no surviving issue, to the decedent's parent or parents equally;

(d) if there is no surviving issue, parent or issue of a parent, and the decedent is survived by one or more grandparents or issue of grandparents, half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation; and the other half passes to the maternal relatives in the same manner; but if there be no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the entire estate passes to the relatives on the other side in the same manner as the half.

Section PRP.04.34 — No Taker

If there is no taker under the provisions of this chapter, the intestate estate passes to the Tribe.

Section PRP.04.35 — Representation

If representation is called for by this Probate Code, the estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent. Each surviving heir in the nearest degree receives one share and the share of each deceased person in the same degree is divided among their issue in the same manner.

Section PRP.04.36 — Posthumous Persons

Person conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent.

Section PRP.04.37 — Kindred Of Half Blood; Stepchildren; Foster Children

Persons of the half blood inherit the same share they would inherit if they were of the whole blood, but stepchildren and foster children and their descendants do not inherit, unless adopted.

Section PRP.04.38 — Divorce

Divorces of husband and wife do not affect the right of children to inherit their property.

Section PRP.04.39 — Determination Of Relationship Of Parent And Child

If for purpose of intestate succession a relationship of parent and child shall be established to determine succession by, through or from a person:

(a) An adopted person is the child of an adopting parent and of the natural parents for inheritance purposes only. The adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent;

(b) An adopted person shall inherit from all other relatives of an adoptive parent as though the adopted person was the natural child of the adoptive parent and the relatives shall inherit from the adoptive parent's estate as if they were the adoptive parent's relatives;

(c) In cases not covered by subsection (a), a person born out of wedlock is a child of the mother and is a child of the father, if the relationship of parent and child has been established in accordance with the Stockbridge-Munsee Youth Code.

Part IV — Family Rights\Protection

Section PRP.04.40 — Spouse's Right To Elective Share

If a married person domiciled on the reservation dies, the surviving spouse has a right to elect to take an elective share of one-third of the estate of the decedent, less funeral and administration expenses, family allowance and enforceable claims against the estate, plus the value of all property in excess of $1,000 transferred by the decedent to any person other than the surviving spouse in the three years preceding the decedent's death to which the surviving spouse has not joined by written consent.

Section PRP.04.41 — Right Of Election Personal To Surviving Spouse

The right of election of the surviving spouse may be exercised only during the surviving spouse's lifetime and only by the surviving spouse. In the case of an incompetent person, the right of election may be exercised only by order of the Court in which protective proceedings as to the surviving spouse's property are pending, after finding that exercise is necessary to provide adequate support for the protected person during their probable life expectancy.

Section PRP.04.42 — Waiver Of Right To Elect And Of Other Rights

The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of "all rights" (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property and family allowance by each spouse in the property of the other and a renunciation of each of all benefits which would otherwise pass to them from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.

Section PRP.04.43 — Duty Of Court To Advise

(a) If a surviving spouse has a right to election under Section PRP.04.40 of this Probate Code, then at any time after the filing of an inventory and not more than three months after admission to probate, the Court shall advise the surviving spouse of his/her right to election and shall explain fully the right and that in the event of the failure to exercise the right of election the will shall govern and control the distribution of the estate.

(b) If the surviving spouse dies or becomes incompetent before being advised of the right of election under Section PRP.04.40 of this Probate Code and has not filed a waiver or renunciation of the right of election, the Court shall advise the personal representative or guardian of the estate of the deceased or incompetent surviving spouse of the right of election as provided in Section PRP.04.43(a).

Section PRP.04.44 — Proceeding For Elective Share; Time Limit

(a) The surviving spouse may elect to take their elective share in the estate by filing in the Court and mailing or delivering to the personal representative a petition for the elective share within three months after the publication of notice to creditors for filing claims which arose before the death of the decedent. The Court may extend the time for election as it sees fit for cause shown by the surviving spouse before the time for election has expired.

(b) The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the estate whose interests will be adversely affected by the taking of the elective share.

(c) The surviving spouse may withdraw their demand for an elective share at any time before entry of a final determination by the Court.

(d) After notice and hearing, the Court shall determine the amount of the elective share and shall order its payment from the assets of the estate or by contribution as appears appropriate under the following section.

(e) If it appears that a fund or property included in the estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the Court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than there would have been if relief had been secured against all persons subject to contribution.

(f) The order or judgment of the Court may be enforced as necessary in a suit for contribution or payment.

Section PRP.04.45 — Effect Of Election On Benefits By Will

(a) An election by a surviving spouse does not affect the right of such spouse to participate in a family allowance but the value of any part of the estate passing to the surviving spouse by testate or intestate succession shall, unless renounced by the spouse in their petition, be counted against their elective share.

(b) When an election to take an elective share has been made and there is insufficient property in the estate which is not specifically disposed of to pay the elective share, liability for payment of the elective share shall be equitably apportioned among the other recipients of the estate in proportion to the value of their interests therein.

(c) Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse. A person liable to contribution may choose to give up the property transferred to them or to pay its value as of the time transferred.

Section PRP.04.46 — Omitted Spouse

(a) Notwithstanding the provisions of Section PRP.04.40 of this Probate Code, if a testator fails to provide by will for their surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate they would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.

(b) In satisfying a share provided in this section, the devises made by the will abate as provided in Section PRP.04.76 of this Probate Code, which concerns "abatement".

Section PRP.04.47 — Pretermitted Children

(a) If a testator fails to provide in his or her will for any of their children living or born or adopted after the execution of the will, the omitted child receives a share in the estate equal in value to that which they would have received if the testator had died intestate unless:

(1) It appears from the will that the omission was intentional; or

(2) When the will was executed the testator had one or more children and devised substantially all their estate to the other parent of the omitted child; or

(3) The testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.

(b) If at the time of execution of the will, the testator fails to provide in their will for a living child solely because they believe the child to be dead, the child receives a share in the estate equal in value to that which they would have received if the testator had died intestate.

(c) In satisfying a share provided by this section, the devises made by the will abate as provided in Section PRP.04.76 of this Probate Code, which concerns "abatement".

Section PRP.04.48 — Homestead Allowance

A surviving spouse of a decedent who was domiciled on the reservation is entitled to a homestead allowance of $5,000. If there is no surviving spouse, each minor child and each dependent child of the decedent is entitled to a homestead allowance amounting to $5,000 divided by the number of minor and dependent children of the decedent. The homestead allowance is exempt from and has priority over all claims against the estate. Homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent unless otherwise provided by intestate succession or by way of elective share.

Section PRP.04.49 — Exempt Property

(a) In addition to the homestead allowance, the surviving spouse of a decedent who was domiciled on the reservation is entitled from the estate to value not exceeding $3,500 therein in household furniture, automobiles, furnishings, appliances and personal effects. The $3,500 in value of the aforementioned items shall be over and above any security interest in said items. If there is no surviving spouse, children of the decedent are entitled jointly to the same value. If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than $3,500, or if there is not $3,500 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $3,500 value.

(b) Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, except that the right to any assets to make up a deficiency of exempt property shall abate as necessary to permit prior payment of homestead allowance and family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by way of elective share.

Section PRP.04.50 — Family Allowance

(a) In addition to the right to homestead allowance and exempt property, if the decedent was domiciled on the reservation, the surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by the decedent are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments.

(b) It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having their care and custody; but in case of any minor child or dependent child that is not living with the surviving spouse, the allowance may be made partially to the child or their guardian or other person having their care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims but not over the homestead allowance.

(c) The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by way of elective share. The death of any person entitled to family allowance terminates their right to allowances not yet paid.

Section PRP.04.51 — Source, Determination, And Documentation

(a) If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to homestead and exempt property. Subject to this restriction, the surviving spouse, the guardians of the minor children, or children who are adults may select property of the estate as homestead allowance and exempt property. The personal representative may make these selections if the surviving spouse, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or if there are no guardians of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as homestead allowance or exempt property.

(b) The personal representative may determine the family allowance in a lump sum not exceeding $6,000 or periodic installments not exceeding $500 per month for one year, and may disburse funds of the estate in payment of the family allowance and any part of the homestead allowance payable in cash. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the Court for appropriate relief, which relief may provide a family allowance larger or smaller than that which the personal representative determined or could have determined.

Section PRP.04.52 — Dwelling Exemption

Upon the appraisal of an estate and it appearing that a dwelling is personal property in which other heirs and/or creditors have an interest, and the dwelling is occupied by the surviving spouse and/or the dwelling is necessary for the welfare and protection of such surviving spouse and/or children, the Court may, by order, set aside such dwelling for the benefit of said surviving spouse and/or children as a homestead for a period not to exceed ten years, provided that in case of special hardship or emergency, the Court may extend such term from year to year thereafter, provided that any heir or heirs or creditors of the deceased shall have the opportunity to appear before the Court and protest the extension of the original terms setting aside said homestead. The Court may also set aside such sums from the estate as the Court may deem necessary for maintenance and upkeep of the home. The Court shall hear evidence on any contest before making any order of extension.

Section PRP.04.53 — Summary Probate Of Exempt Estates.

(a) Exempt Estates. An estate having an appraised value which does not exceed $5,000 and which is to be inherited by a surviving spouse and/or minor children of the deceased shall be exempt from the claims of all general creditors and the probate thereof may be summarily concluded as provided in this section.

(b) Notice of Hearing to Determine Whether the Estate is an Exempt Estate. Upon petition of the Administrator, the Court shall enter an order stating that it appears, from the appraised value that the whole estate does not exceed $5,000 and that such estate is to be inherited by the surviving spouse and/or minor children of the decedent and shall set a date and hour for hearing objections of any interested persons, if any there be, why the whole estate should not be declared to be exempt from the claims of all general creditors and distributed to the surviving spouse and/or minor children of the decedent. Notice of such hearing shall be given by posting a true copy of such order in three public places within the Stockbridge-Munsee Indian Reservation and by sending a true copy of such order by certified mail to all persons known to the Administrator to be an heir, devisee or legatee of the decedent. Such notice shall be posted or mailed not less than ten days before the time set for such hearing. On or before the time set for such hearing, the Administrator shall file his affidavit with the Court indicating compliance with this requirement of giving notice.

(c) Hearing to Determine Whether the Estate is an Exempt Estate. If, upon such hearing, the Court finds that such estate is an exempt estate, the Court shall enter an order directing the Administrator to distribute such estate to the surviving spouse and/or the minor children of the deceased as set forth in the order and provide that no further proceedings are necessary and that, upon distributing the distributive share or shares of such estate to those entitled thereto and filing receipts therefor, the estate shall be closed.

Part V — Inheritance By Non-Indians/Fractionated Heirship

Section PRP.04.54 — Restrictions On Inheritance Of Individual Trust/Restriction Lands By Non-Indians

(a) Non-Indians shall not be entitled to receive by devise or descent any interest in individual trust or restricted lands within the Stockbridge-Munsee Reservation or otherwise subject to the jurisdiction of the Tribe provided that:

(1) if an Indian dies intestate, the surviving non-Indian spouse and/or children may elect to receive a life estate in as much of the trust or restricted lands as such person or persons would have been entitled to take in the absence of such restriction on eligibility for inheritance and the remainder shall vest in the Indians who would have been heirs in the absence of a qualified person taking a life estate;

(2) if an intestate Indian decedent has no heir to whom interests in trust or restricted lands may pass, such interests shall escheat to the Tribe, subject to any non-Indian spouse and/or children's rights as described in paragraph (1) of this section;

(3) if an Indian decedent has devised interests in trust or restricted lands to persons who are ineligible for such an inheritance by reason of a tribal ordinance enacted pursuant to this section, the devise shall be voided only if, while the estate is pending before the Secretary for probate, the Tribe acquires such interests by paying to the Secretary, on behalf of the devisees, the fair market value of such interests as determined by the Secretary as of the date of the decedent's death: Provided, That any non-Indian and/or children of such decedent who have been devised such interests may retain, at their option, a life estate in such interests.

(b) Any ineligible devisee shall also have the right to renounce their devise in favor of a person or persons who are eligible to inherit in accordance with Section PRP.04.14 (Renunciation of Succession) of this Probate Code.

(1) a spouse and/or children who, if they had been eligible, would have inherited an ownership interest of 10 per cent or more in the tract of land; or

(2) a spouse and/or children who occupied the tract as a home at the time of the decedent's death.

Section PRP.04.55 — Escheat Of Certain Fractionated Interests

The following section is enacted under Section 2206 (c) of Title 25 of the United States Code - The Indian Land Consolidation Act - to take precedence over the escheat provisions of Section 2206 of Title 25 of the United States Code.

(a) No undivided interest in any tract of trust or restricted land within the Stockbridge-Munsee Indian Reservation or otherwise subject to the Tribe's jurisdiction shall descend by intestacy or devise but shall escheat to the Tribe if such interests represents 2 per cent or less of the total acreage in such tract and is incapable of earning to the respective heirs $100 in any one of the five years from the date of decedent's death, and is otherwise without significantly greater future potential value, Provided, that:

(b) in determining the future earning capacity of such interest the hearing examiner shall consider the presence of known or probable minerals and timber;

(1) in determining whether such interest is otherwise without significantly greater future potential value the hearing examiner shall consider, among other things, the geographic location of such property and its potential for commercial or other exploitation;

(2) where the fractional interest has earned to its owner less than $100 in any one of the five years before it is due to escheat, in absence of previously unexploited known or probable mineral reserves or standing timber, there shall be a rebuttable presumption that such interest is incapable of earning to the respective heirs $100 in any one of the five years from the date of decedent's death, and that the property is otherwise without significantly greater future potential value.

(c) Nothing in this section shall prohibit the devise of such a fractional interest to any other owner of an undivided fractional interest in such parcel or tract of trust or restricted land.

(d) Any beneficiary who, but for the provisions of this section, would have inherited such fractional interest, may assign such interest to any other owner of an undivided fractional interest in such trust or restricted land, such assignment to be made and filed with the hearing examiner within 60 days of the issuance of notice of intent to escheat the interest to the Tribe. The hearing examiner shall formally notify the beneficiary of their rights under this subsection at the time of the notice of intent to escheat and shall assist with the assignment process as needed.

(e) The Tribal Court Judge and the Federal Administrative Law Judge shall have the discretion to order any appropriate distribution of the decedent's estate as needed to reduce further fractionation so long as the distribution is fair and equitable.

Part VI — Administration Of Intestate Estates

Section PRP.04.56 — Petition

(a) When any person dies leaving an intestate estate subject to the jurisdiction of the Stockbridge-Munsee Tribal Court under this Probate Code, any person claiming to be an heir of the decedent, or the Tribe, may petition the Court for a determination of the heirs of the decedent and for the distribution of such property. The petition shall contain the names and addresses of all persons known to the petitioners who may be entitled to share in the distribution of the estate.

(b) Whenever there is a valid will probated by the Court which does not dispose of all the decedent's property, a determination of the heirs entitled to such property and its distribution shall be made by the Court at or before the time the remainder of the estate is distributed without the necessity of a separate petition and proceeding.

(c) The following persons, if legally competent, shall be afforded the priority in order of their listing for appointment as Administrator: the surviving spouse, any child over 18 years of age, other blood relatives, any adult tribal member, any adult person.

(d) To take constructive or physical possession of all property of the decedent subject to this Probate Code as the Court shall order, taking into consideration the interests of the person who may have occupied the homestead of the decedent at the time of his or her death.

Section PRP.04.57 — Administration Of Intestate Estate

(a) If an Executor is appointed over a decedent's property which is disposed of by a valid will, such person shall likewise assume authority over the decedent's intestate estate and administer it with the rest of the decedent's estate.

(b) Whenever it reasonably appears that such is necessary to the preservation, administration and/or distribution of a decedent's intestate estate, the Court shall appoint an Administrator over the estate. It shall not be necessary to appoint an Administrator if the value of the decedent's property appears to be less than $5,000 in value, no problems in administering the estate are foreseen, and no one requests that one be appointed.

(c) The following persons, if legally competent, shall be afforded priority in order of their listing for appointment as Administrator: the surviving spouse, children over 18 years of age in descending order of age, other blood relatives in order of their closeness of relationship, any adult tribal member, any adult person.

(d) The duties of the Administrator shall be:

(1) To take constructive or physical possession of all property of the decedent subject to this Probate Code as the Court shall order, taking into consideration the interests of the person or persons who may have occupied the homestead of the decedent at the time of his or her death.

(2) Within one month of appointment make an inventory and appraisement of such property and file it with the Court;

(3) Within one month of appointment, determine and file with the Court a list of all known relatives of the decedent, their ages, their relationship to the decedent, and their whereabouts if known;

(4) Subject to the approval of the Court, ascertain and pay all of the debts and legal obligations of the decedent;

(5) Prosecute and defend actions for or against the estate;

(6) Distribute the estate in accordance with the order of the Court and file receipts with the Court showing distribution of the estate.

(e) The Administrator shall file a bond in an amount to be set by the Court to insure their faithful, honest performance of their duties as Administrator. Unless otherwise made to appear necessary or desirable, no bond shall be required of an Administrator who is the spouse or child of a decedent.

Section PRP.04.58 — Appointment Of Administrator

(a) Upon receipt of a petition to administer an intestate estate, the clerk shall schedule a hearing at which an Administrator will be appointed. Said hearing shall be scheduled far enough in advance to allow the required notice to be made.

(b) Notice of the hearing shall be made by the petitioning party or by the clerk if the Tribe is the petitioning party and shall also be posted in a conspicuous place in the Court building.

(c) The Court shall determine who is the proper person to appoint as Administrator, and if such person manifests their willingness to serve, order their appointment as Administrator.

Section PRP.04.59 — Oath Of Administrator; Letters Of Administration

(a) Upon their appointment as Administrator, the person appointed shall take an oath to be prescribed by the Court to the effect that they will faithfully and honestly administer the estate.

(b) Upon taking the oath and filing the bond, if any is required, the Administrator shall be granted letters of administration as proof of their appointment.

Section PRP.04.60 — Notice To Creditors

The Administrator of the estate or the clerk if no Administrator is appointed shall cause notice to creditors to be posted in at least three conspicuous places on the Reservation and published for three consecutive issues in a publication of general distribution on the Reservation. Said notice shall state that creditors have 90 days from the date of the first publication of the noticed to present their claims to the Administrator or clerk and that only those claims so presented may be paid to the estate.

Section PRP.04.61 — Payment Of Creditors

(a) Payment to creditors of the decedent shall be made by the Administrator or by the clerk if no Administrator is appointed only upon the order of the Court after determining the validity of the claims by affidavit or personal testimony of the claimant.

(b) All just claims of creditors allowed by the Court shall be paid before distribution of the estate but shall be paid only after payment of the family allowance and homestead allowances as provided herein.

Section PRP.04.62 — Accounting

Prior to the distribution of every estate for which an Administrator has been appointed, such Administrator shall render an accounting to the Court, for its approval, of all receipts and disbursements from the estate, showing the present status of the estate and that it is ready for distribution, and also showing the computation of any attorney's and/or Administrator's fees involved for which approval for payment is sought. In estates in which no Administrator is appointed, the clerk shall account to the Court for all transactions relating to the estate.

Section PRP.04.63 — No Taker/Escheat To Tribe

If there is no taker of the intestate estate, the intestate estate passes or escheats to the Tribe.

Section PRP.04.64 — Advancements

If a person dies intestate, property which they gave in their lifetime to an heir is treated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the intestate share to be received by the recipient's issue, unless the declaration or acknowledgment provides otherwise.

Section PRP.04.65 — Debts To Decedent

A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate or other share of the debtor's issue.

Section PRP.04.66 — Distribution: Closing Estate

(a) When it is made to appear to the Court that an estate is ready to be distributed, the Court shall order such according to the rules of intestate succession and this Probate Code.

(b) The estate shall be closed and the Administrator dismissed and their bond released upon the filing of receipts and an affidavit showing the estate is fully distributed, and after being fully administered, is now ready to be closed.

Part VII — Probate Of Wills

Section PRP.04.67 — Duty To Present Will For Probate

Every custodian of a will shall deliver the will to the Tribal Court within 30 days after receipt of information that the testator is deceased. Any will custodian who fails or neglects to do so shall be liable for damages sustained by any person injured thereby.

Section PRP.04.68 — Proving, Contesting And Admitting Will

(a) Proof of Will

(1) Upon initiating the probate of an estate, the will of the decedent shall be filed with the Court. The will may be proven and admitted to probate by filing the affidavit of an attesting witness which identifies such will as being the will which the decedent executed and declared to be their last will.

(2) If the evidence of none of the attesting witnesses is available, the Court may allow proof of the will by testimony or other evidence that the signature of the testator or at least one of the witnesses is genuine.

(b) Contest of Will

(1) At any time within 90 days after a will has been admitted to probate, or within such time as the Court shall establish in the case of an exempt estate, any person having an interest in the decedent's estate may contest the validity of the will. In the event of a will contest, the Court shall take no further action with respect to the probate of the estate, but shall set a day and hour for hearing on the will contest.

(2) Relevant evidence shall be presented at the will hearing concerning the decedent's capacity to execute a valid will and the circumstances surrounding its execution. Every reasonable effort shall be made to procure the testimony of the attesting witnesses to the will, or if their testimony is not reasonably available, an effort shall be made to identify signatures to the will through other evidence.

(1) Upon considering all relevant evidence concerning the will, the Tribal Court shall enter an order affirming the admission of the will to probate or rejecting such will and ordering that the probate of the decedent's estate proceed as if the decedent had died without executing the will.

Section PRP.04.69 — Petition For Letters Testamentary

A petition for letters testamentary may be made by any person having possession of a decedent's will. The petition must be in writing, signed by the petitioner, and shall state the basis for the Court's jurisdiction, the names of the heirs of the decedent, if known, and the name or names of any person specified in the will as Executor and the address of such person if known. The original copy of the will shall be submitted to the Court with the petition.

Section PRP.04.70 — Qualification Of Executor

The Court shall appoint an Executor to administer the estate. The Executor shall be a competent adult and preference shall be given, if such persons are otherwise qualified, to the person named in the will as such, followed by the surviving spouse, child of the decedent over 18 years of age with preference given in descending order of age, other blood relatives in order of their closeness of relationship, any adult tribal member, any adult person.

Section PRP.04.71 — Appointment Of Executor

(a) Upon receipt of a petition for letters testamentary, the clerk shall schedule a hearing at which an Executor will be appointed and letters testamentary authorized. The hearing shall be scheduled so that adequate notice to interested parties can be made.

(b) Notice of hearing shall be made by the petitioning party to all persons named as takers under the will, and to all known heirs of the decedent if different from the named takers, and also posted in a conspicuous place in the Court building.

(c) At the hearing, the Court shall first determine the validity of the decedent's will and then appoint an Executor to administer the estate according to the terms of this Probate Code and the decedent's will.

(d) Letters testamentary shall be granted to the person appointed as Executor upon their taking an oath, to be prescribed by the Court, to the effect that the Executor will faithfully and honestly administer the estate, and upon the Executor's filing of bond, if required.

Section PRP.04.72 — Duties Of Executor; Bond

The duties of the Executor shall be the same as those prescribed in this Probate Code for the Administrator of an intestate estate, and the Executor shall file a bond in a like manner and subject to the same exceptions.

Section PRP.04.73 — Creditors

Notice to creditors, determination of the validity of claims, and payment of claims shall be handled as prescribed for intestate estates.

Section PRP.04.74 — Accounting

Prior to the distribution of the estate remaining after payment of all just claims and priority payments, the Executor shall submit to the Court for approval an accounting of all receipts and disbursements from the estate, showing the present status of the estate and that it is ready for distribution, and also showing the computation of any attorney's and/or Executor's fees involved for which approval for payment is sought.

Section PRP.04.75 — Distribution; Closing Estate

(a) When it is made to appear to the Court that an estate is ready to be distributed, the Court shall order such distribution according to the provisions of the decedent's will or the rules of intestate succession, whichever is applicable, and according to the rules set forth in this Probate Code.

(b) The estate shall be closed and the personal representative of the estate dismissed and their bond, if any, released upon filing with the Court receipts showing that the estate is fully distributed, and also upon filing the personal representative's affidavit that the estate is fully administered and ready to be closed. "Personal representative" as used herein includes both Administrators and Executors.

Section PRP.04.76 — Distribution: Order In Which Assets Appropriated; Abatement

(a) Except as provided in section PRP.04.76(b), and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order:

(1) Property not disposed of by the will;

(2) Residuary devises;

(3) General devises;

(4) Specific devises.

For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

(b) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in section PRP.04.76(a), the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.

(c) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

Section PRP.04.77 — Property Discovered After Estate Closed

An estate may be reopened whenever necessary to dispose of a decedent's property discovered after their estate has been closed. The Court shall order distribution of the property to the person or persons entitled thereto after making whatever orders appear necessary to assure a just participation of the after discovered property in the expenses of the estate.

Part VIII — Guardianship

Section PRP.04.78 — Definition Of Guardian

(a) A guardian is an adult appointed to take care of the person or property of another. The guardian must exercise the highest standard of care for the ward, and is subject to regulation by the Tribal Court.

(b) The Court, when it appears necessary or convenient, may appoint guardians for the persons and/or property of either children under the Court's jurisdiction or incompetents who have no guardian legally appointed by will or deed. Such appointment may be made on the petition of a relative or other person on behalf of the child or incompetent, or a petition of the child if at least fourteen (14) years of age. Before making such appointment, the Court must cause such notice as the Court deems reasonable to be given to any person having the care of a child, and to such other relatives of a child residing on the reservation as the Court may deem proper, and in cases of adult incompetents, the Court may cause notice to be given to the incompetent at least five (5) days before hearing the petition.

(c) If a child is under the age of fourteen (14) years, the Court may nominate or appoint their guardian. If the child is fourteen (14) years of age or older, the child may nominate their own guardian who, if approved by the Court, must be appointed accordingly. If the guardian nominated by the child is not approved by the Court, or if the child resides outside of the reservation, or if, after being duly cited by the Court, the child neglects for ten (10) days to nominate a suitable person, the Court may nominate and appoint the guardian in the same manner as if the child were under the age of fourteen (14) years.

(d) When a guardian has been appointed by the Court for a child under the age of fourteen (14) years, the child, at any time after the child attains that age, may nominate their own guardian, subject to the approval of the Court. A guardian appointed may as specified by the Court have the custody and care of the education of the child and the care and management of their property until such child arrives at the age of eighteen (18), marries, is emancipated by the Court, or until the guardian is legally discharged, provided, however, that said guardian shall not have the authority, without express written consent of the Court, to dispose of any real or personal property of the child in any manner, including, but not limited to, the child's Individual Indian Money Account and any trust fund account. With respect to a child's trust fund account, the guardian shall be bound by this code and any requirements and provisions of the Tribe's Revenue Allocation Plan. Said guardian shall also have the authority to consent to the medical care and treatment of the child.

(e) The Court may order that the Court disburse monthly reimbursement payments to the person or agency to whom custody is granted under this code, provided sufficient funds have been appropriated by the Tribal council. Said disbursements must be used by the person or agency with custody of the child for the sole purpose of covering expenses incurred in the care and custody of said child and shall not be used for any other purpose. The use of said funds for any purpose other than that described in this section shall subject said person or agency to contempt of Court and to any criminal and civil penalties or remedies provided by the Tribal code.

Section PRP.04.79 — How Guardians Are Appointed

(a) By will. The last surviving parent or spouse of a minor or mental incompetent may designate in a will the guardian for the minor or mental incompetent. Upon determination by the Court that the will is valid, and that the person designated is willing to accept the responsibilities of guardianship, the Court shall appoint the person designated; provided that for good cause shown, the Court may decline to appoint the person designated.

(b) By Court appointment. Where a minor or mental incompetent is in need of a guardian, and no guardian is appointed pursuant to a valid will, the Court may appoint a guardian, to promote the best interests of the minor or mental incompetent.

(c) Hearing. In each case where a guardian is to be appointed, either by will, or by Court appointment, a hearing shall be held following notice to all interested parties.

Section PRP.04.80 — Types Of Guardianship

The types of guardianship shall include guardianship of property and/or guardianship of the person. Guardianship of the person shall include both temporary guardianship and permanent guardianship.

Section PRP.04.81 — Guardianship Of Property

The Court may appoint a guardian of the property of a child or incompetent person under such terms and conditions as the Court sets forth in the written order. The guardianship may cover all property until the child reaches eighteen (18) years of age or until the incompetent person becomes competent or it may be limited to only specific property or a specific legal action as set forth in the written order. A temporary or permanent guardianship of the person may also include guardianship of the child's property if set forth in the written order.

Section PRP.04.82 — Permanent Guardianship

The Court may appoint a permanent guardian for the child under such terms and conditions as the Court sets forth in the written order. Permanent guardianship provides for permanent custody of a child to someone other than the parent(s), although there is no termination of the parental rights of the parents. There shall be a presumption of continued permanent guardianship in order to provide stability for the child. Permanent guardianship shall only be terminated based upon the unsuitability of the permanent guardian(s) rather than the competency or suitability of the parent(s). The parent(s') and the child's extended family shall be granted liberal visitation rights unless deemed inappropriate by the Court.

Section PRP.04.83 — Temporary Guardianship

The Court may appoint a temporary guardian under such terms and conditions as the Court sets forth in the written order. A temporary guardianship may be terminated if the Court determines that it is in the best interests of the child to change custody from the temporary guardian to a new guardian or to return the child to the parent, guardian or custodian. The parent(s') and the child's extended family shall be granted liberal visitation rights unless deemed inappropriate by the Court.

Section PRP.04.84 — Who May File Guardianship Petition

Any person may file a petition for guardianship. The petition shall be initiated either by the proposed guardian or by the child if at least fourteen (14) years of age.

Section PRP.04.85 — Contents Of Guardianship Petition

(a) The petition for guardianship shall include the following, to the best information and belief of the petitioner.

(1) The full name, address and tribal affiliation of the petitioner;

(2) The full name, sex, date and place of birth, residence and tribal affiliation of the proposed ward;

(3) The basis for the Court's jurisdiction;

(4) The relationship of the proposed guardian to the proposed ward;

(5) The name and address of the person or agency having legal or temporary custody of the proposed ward;

(6) The type of guardianship requested;

(7) In the case of alleged incompetent persons, the grounds for incompetency under Section PRP.04.88; and

(8) A full description and statement of value of all property owned, possessed, or in which the proposed ward has an interest (if guardianship of property is requested).

(b) All petitions must be signed and dated by the petitioners, and must be notarized.

Section PRP.04.86 — Guardianship Report

(a) Upon the filing of a guardianship petition, the Court shall immediately request that the social services department or other qualified agency conduct a guardianship report on the proposed guardian and report on the proposed ward. The guardianship report shall contain all pertinent information necessary to assist the Court in determining the best interests of the proposed ward.

(b) No determination can be made on a petition for guardianship until the report has been completed and submitted to and considered by the Court. The guardianship report shall be submitted to the Court no later than ten (10) days before the hearing. The Court may order additional reports as it deems necessary.

Section PRP.04.87 — Management Of Property

(a) In the event that any guardian shall receive any money or funds of any child or incompetent person during their term of office as guardian, before taking and receiving into custody such money or funds, the Court must require of such person a bond with sufficient surety to be approved by the Court and in such sum as the Court shall order, conditioned that the guardian will faithfully execute the duties of their trust, and the following conditions shall form the part of such bond without being expressed therein:

(1) To make an inventory of all the estate of the ward that comes into their possession or knowledge and to return the same within such time as the Court may order, and;

(2) To dispose of and manage the estate according to law and for the best interests of the ward, and faithfully to discharge their trust in relation thereto, and also in relation to the care, custody and education of the ward, and;

(3) To render an account on oath of the property, estate and money of the ward in their hand and all the proceeds or interests derived therefore, and of the management and disposition of the same, within three (3) months after their appointment, and at such other times as the Court directs, and at the expiration of their trust, to settle their accounts with the Court or judge or with the ward if the ward is of full age, or their legal representative, and to pay over and deliver all the estate, monies and effects remaining in their hands, or due from them on such settlement to the person who is legally entitled thereto.

(4) The funds of any child or incompetent must be used by their guardian solely for the support and education of such child and for the support of such incompetent, and shall be expended by the guardian in a reasonable manner according to the circumstances and station in life of such ward, and in such manner as can reasonably be afforded according to the income and estate of said ward.

(5) If determined to be appropriate by the Court, the written order may set forth that the child's property may not be used for the child's care, but rather to be managed for the child until the child reaches the age of eighteen (18) or is emancipated by the Court.

Section PRP.04.88 — Incompetent Persons

(a) In case of incompetent persons, if after a full hearing and examination upon such petition, and upon further proof by the certificates of at least two qualified physicians showing that any person is incompetent as defined in this Code, it appears to the Court that the person in question is not capable of taking care of himself or herself and of managing their property, such Court must appoint a guardian of the person and estate within the powers and duties specified in this Part.

(b) Every guardian of an incompetent person appointed as provided herein has the care and custody of the person of their ward and the management of their estate until such guardian is legally discharged; the guardian must give bond to such ward in like manner and with like conditions as before specified with respect to the guardianship of a child.

(c) A person who has been declared insane or incompetent or the guardian, or any relative of such person within the third degree or any friend, may apply by petition to the Court in which they were declared insane, to have the fact of their restoration to capacity judicially determined. The petition shall be verified and shall state that such person is then sane or competent. The Court shall require notice to be given of a hearing upon said petition at some date after said petition has been filed; and at the hearing upon said petition, witnesses shall be examined and a determination made by the Court as to whether the petition should be granted and the insane or incompetent person be declared of sound mind and capable of taking care of himself or herself and his or her property, their restoration to capacity shall be adjudged and the guardianship of such person, if such person shall not be a child, shall cease.

Section PRP.04.89 — Termination Of Guardianship

(a) Upon motion of any person, or the Tribe, the Court may provide notice and a hearing on whether to terminate a guardianship. Grounds for termination shall include, but not be limited to, personal use by the guardian of the assets of the ward, failure to provide a reasonable level of care for the ward, or the marriage of a minor ward.

(b) Guardianship, including guardians of the property of the ward, shall terminate automatically upon a minor reaching age 18, or upon a mental incompetent being adjudged by the Court to have regained legal capacity.

Chapter PRP.05 — Housing

Legislative History

1. Resolution No. 054-96, adopted August 20, 1996.

2. Resolution No. 05-99, adopted January 19, 1999.

3. Resolution No. 19-99, adopted April 8, 1999, approved by BIA May 11, 1999.

4. Resolution No. 022-06, adopted February 7, 2006, approved by BIA April 7, 2006.

5. Resolution No. 002-06, adopted October 11, 2006, approved by BIA April 9, 2007.

Part I — General Provisions

Section PRP.05.01 — Applicability

(a) The following Ordinance shall hereinafter be referred to as the "Tribal Housing Ordinance." It shall apply to any and all arrangements, formal or informal, written or agreed to orally or by the practice of the parties, in selling, buying, renting, leasing, occupying, or using any and all housing dwellings, or accommodations for human occupation and residence.

(b) The following arrangements are not governed by this Ordinance:

(1) Residence at an institution, public or private, if incidental to detention or the provision of medical, geriatric, educational, counseling, religious, or similar service; or

(2) Transient occupancy in a hotel, motel, or other commercial lodging.

Section PRP.05.02 — Jurisdiction

(a) The jurisdiction of the Tribal Court of the Stockbridge-Munsee Community is extended over:

(1) All buildings which may lie upon lands owned by, held in trust for, leased or used by the Tribe, its Division of Community Housing, or any other entity of the Tribe.

(2) All persons or entities within the jurisdiction of the Tribe who lease, mortgage, or otherwise secure an interest in a building.

(b) The Stockbridge-Munsee Community Tribal Court shall have jurisdiction to hear claims brought under this Ordinance.

Section PRP.05.03 — Purposes And Interpretation

This Ordinance shall be liberally interpreted and construed to fulfill the following purposes:

(a) To simplify, clarify, modernize, and revise the law governing the occupation of dwelling units and accommodations, as well as the rights, obligations, and remedies of the owners, sellers, lessors, landlords, lessees, tenants, and occupiers of such structures;

(b) To preserve the peace, harmony, safety, health and general welfare of the people of the Tribe and those permitted to enter or reside on the Reservation.

(c) To protect tribal housing by providing eviction procedures under this Ordinance and providing for evictions when necessary.

(d) To encourage landlords and tenants to maintain and improve dwellings on the Reservation in order to improve the quality of housing as a tribal resource.

(e) To encourage landlords and tenants to use the procedures established under this Ordinance to provide a mechanism and a forum to resolve housing disputes.

(f) To avail the Tribe, tribal entities, and tribal members of financing for the construction and/or purchase of family residences on trust land within the jurisdiction of the Tribe by prescribing procedures for the recording, priority and foreclosure of leasehold mortgages given to secure loans made by any federal agency or private lender.

(g) To strictly apply specific provisions of this Ordinance as necessary in order to obtain federal, state, tribal or private funding for tribal housing programs.

Section PRP.05.04 — Relation To Other Laws

(a) Applicable Law: Unless affected or displaced by this Ordinance, principles of law and equity in the common law of the Tribe and tribal customs and traditions are applicable, and the general principles of law of any other Tribe or any other state may be used a guide to supplement and interpret this Ordinance.

(b) Conflicts With Other Laws

(1) Tribal Laws: To the extent that this Ordinance may conflict with Stockbridge-Munsee tribal laws or ordinances which have been enacted to comply with statutes or regulations of any agency of the United States, such tribal laws or ordinances may govern over the provisions of this Ordinance if it has specific applicability and it is clearly in conflict with the provisions of this Ordinance.

(2) Federal Laws: Where a conflict may appear between this Ordinance and any statute, regulation, or agreement of the United States, the federal law may govern if it has specific application and if it is clearly in conflict with the provisions of this Ordinance.

(3) State Laws: To the extent that the laws of any state may be applicable to the subject matter of this Ordinance, such laws shall be read to be advisory and not directly binding and shall not govern the relations of the parties.

Section PRP.05.05 — Definitions

As used in this Ordinance, the following words will have the meanings given them in this section unless the context otherwise clearly requires:

(a) Action, suit or lawsuit, claim, complaint or defense shall include any dispute between persons or entities which relates to the sale, rental, lease, use or occupancy of any housing, dwelling, or accommodation for human occupancy, including claims for the payment of monies for such housing, dwellings or accommodations, damages to such units, including the right to occupy them.

(b) BIA means the bureau of Indian Affairs.

(c) Borrower/Mortgagor is the Tribe, any authorized agent of the Tribe, or any individual Indian(s) or any heir(s), successor(s), executor(s), administrator(s), or assign(s) of the Tribe or such Indian(s) who has executed a mortgage as defined in this Ordinance or a Leasehold Mortgage as defined in this Ordinance. Borrower/Mortgager also includes a Lessee who has executed a Mortgage on his or her Leasehold Interest and its successors and assignees.

(d) Building or housing Ordinances are any law, ordinance, or governmental regulation of the Tribe or an agency of the United States which deals with fitness for habitation, health conditions, or the safety, construction, maintenance, operation, occupancy, use, or appearance of any dwelling unit. Where appropriate to the situation, standard or recognized building standards or Ordinances may be applied as building or housing Ordinances.

(e) Drug-related criminal activity means the illegal manufacture, sale distribution, use or possession with intent to manufacture, sell, distribute, or use, of a controlled substance as defined in section 102 of the Controlled Substance Act (2 U.S.C. § 802).

(f) Dwelling or dwelling unit is a structure or part of a structure that is used as a home, residence, or sleeping place by any person who maintains a household and is not for purposes of this Ordinance any public transient accommodation, such as a hotel room.

(g) He/His: the use of he/his means he or she, his or her, and the singular includes the plural.

(h) Indian is any person recognized as being an Indian or Alaska Native by any Tribe, or by the government of the United States.

(i) Indian Country, the territorial jurisdiction, or the jurisdiction of the Tribe shall include all lands owned by, held in trust for, leased, occupied, or otherwise controlled by the Tribe, as well as any such ownership or use by an entity of the Tribe; and those terms shall include any and all areas which may constitute the Indian Country of the Tribe under applicable provisions of its laws or the laws of the United States.

(j) Landlord is any person or entity or any agency of government that is the owner, lessor, or sublessor of a dwelling unit, and it also means a manager of any such dwelling unit, as well as the Division of Community Housing for purposes of low-rent or existing Mutual Help Home Ownership (HMO) programs.

(k) Lease is an agreement between two parties regarding the possession of real or personal property which gives rise to the landlord/tenant relationship or lessor/lessee relationship.

(l) Lease Premises means the property and improvements subject to a Lease.

(m) Leasehold Interest means the interest of a Lessee.

(n) Leasehold Mortgage is the mortgage of leased property given to secure a loan made under the auspices of any federal agency home buyer program or made by a private lender.

(o) Leasehold Mortgage Foreclosure Proceeding is a proceeding in the Tribal Court:

(1) To foreclose the interest of the Borrower(s)/Mortgagor(s), and each person or entity claiming through the Borrower(s)/Mortgagor(s), in a Lease for which a Mortgage has been given under the home purchase program of any federal or tribal agency or private lender; and

(2) To assign such Lease to the applicable federal or tribal agency or the agency's assignee.

(p) Lender Designated Assignee is any Lender as defined in this Ordinance may assign or transfer its interest in a Lease and/or Leasehold Mortgage to a Designated Assignee. Any time prior to such assignment, transfer or assumption the Lender must seek written approval from the Tribe of a proposed Designated Assignee.

(q) Lender/Mortgagee is any private lending institution established to primarily loan funds and not to invest in or purchase properties, the Tribe, or a U.S. government agency which loans money, guarantees or insures loans to a Borrower for construction, acquisition, or rehabilitation of a home. It is also any lender designated assignee(s) or successor(s) of such Lender/Mortgagee as pre-approved or approved by the Tribe.

(r) Lessor is the beneficial or equitable owner of property under a Lease for which a Mortgage, as defined in this Ordinance, has been given, or the heir(s), successor(s), executor(s), administrator(s), or assign(s) of the Tribe or such Indian(s).

(s) Lessee is the home buyer under any federal mortgage program or under the terms of a loan from a private lender or the Tribe (but not the Mutual Help program, under which the home buyer is considered a tenant.) The lessee may, for purposes of federal agency home mortgage programs, be the Tribe.

(t) Mohican Housing Commission (MHC) is an advisory body, created by resolution #249-97 with the primary purpose of advising the Tribal Council on how to plan and implement housing strategy for the Stockbridge-Munsee Tribe. The MHC is governed by By-Laws adopted by Tribal Council Resolution #250-97.

(u) Mohican Housing Commission By-Laws are those By-Laws adopted by Tribal Council Resolution #250-97, such By-Laws to be attached to this Housing Ordinance and incorporated herein.

(v) Mortgage is a first lien as is commonly given to secure advances on, or the unpaid purchase price of, real estate, and may refer both to a security instrument creating a lien, whether called a mortgage, deed of trust, security deed, or other term, as well as the credit instrument, or note, secured thereby. Mortgage also includes a security interest in the Leasehold Interest given to secure a Note.

(w) Mortgagor/Borrower - see Borrower/Mortgagor.

(x) Mortgagee/Lender - see Lender/Mortgagee.

(y) Note means a promissory note executed by a Borrower in favor of a Mortgagee.

(z) Nuisance is the maintenance or allowance on real property of a condition which:

(1) Unreasonably threatens the health or safety of the public or neighboring land users; or

(2) Unreasonably and substantially interferes with the ability of neighboring property users to enjoy the reasonable use and occupancy of their property.

(aa) Owner is any person or entity jointly or individually having legal title to all or part of land or a dwelling, including the legal right to own, manage, use or control a dwelling unit under a mortgage, long-term lease, or any other security arrangement.

(bb) Person includes any individual or organization, and where the meaning of a portion of this Ordinance requires, it means a public agency, corporation, partnership, or any other entity recognized by the Tribe.

(cc) Premises is a dwelling unit and the structure of which it is a part, and all facilities and areas connected with it, including grounds, areas, and facilities intended for the use of tenants or the use of which is either promised or practiced for tenants.

(dd) Rent means all payments to be made to an owner or landlord for the lease, purchase, or occupancy of a dwelling under an express or implied agreement for the purchase or occupancy of it. For the purposes of this Ordinance, the term rent will be used to refer to payments to be made under any agreement for occupation of a dwelling, and includes all lease and occupancy agreements between the Tribe or any property owner or manager and any person. It shall also be deemed to include any payment due and owing for the purposes of any eviction due to a default in any occupancy agreement, purchase agreement, and other agreement for the rental or lease/purchase of housing.

(ee) Rental agreement means any agreement, written, oral, or by practice of the parties, as well as valid rules and regulations regarding the terms and conditions for any use or occupancy of a dwelling or premises. For the purposes of this Ordinance, it shall also include any agreement which governs the use and occupancy of a dwelling under a use and occupancy agreement, or any lease/purchase agreement under which a person has not yet achieved home ownership under that agreement. Rental agreements include all outstanding Mutual Help Home Ownership (MHHO) agreements.

(ff) Reservation is the Stockbridge-Munsee Community Reservation, Shawano County, Wisconsin, described generally as the townships of Bartelme and Red Springs, with the legal description as: T.28N.-R.13E and T.28N.-R.14E.

(gg) Secretary is the Secretary of the Department of the Interior.

(hh) Subordinate Lienholder is the holder of any lien, including a subsequent mortgage or Leasehold Interest, perfected subsequent to the recording of a Leasehold Mortgage under this Ordinance, except the Tribe shall not be considered a subordinate lienholder with respect to any claim regarding a tribal tax on real property.

(ii) Tenant is any person entitled to rent, purchase, or occupy a dwelling under an agreement to rent, occupy, or lease/purchase a dwelling and it includes any person actually occupying a dwelling that he or she does not own. It will also include any person of the same household of a tenant, including guests, actual occupiers, heirs or successors to any interest in a dwelling. Tenants include lessees/purchasers of any existing Mutual Help Home Ownership units.

(jj) Tribal Court is the Court as established by the laws of the Stockbridge-Munsee Community or such body as may now or hereafter be authorized by the laws of the Tribe to exercise the powers and functions of a Court of law.

(kk) Tribal Housing Entity is the Division of Community Housing, a subordinate entity of the Tribal Council, created by Resolution 249-97, for the purpose of constructing and maintaining dwellings for public use for administering block grant funds under NAHASDA and for dealing with all forms of Tribal Housing needs.

(ll) Tribal Recording Clerk is the director of the Tribal Real Estate program or such other person designated by the Tribe to perform the recording functions required by this document or any deputy or designee of such person.

(mm) Tribe is the Stockbridge-Munsee Community.

(nn) Waste is the spoilage, damage or destruction of land, buildings, gardens, trees, or other improvements which result in substantial injury to the lessor's interest in the property.

(oo) Writ of restitution means an order by the court requiring a person, usually the tenant, to return property, real or personal, to its rightful owner.

Part II — Landlord/Tenant Rights, Obligations And Remedies

Section PRP.05.06 — Sources Of Rights, Obligations, And Remedies

The rights, obligations, and remedies of landlords, and tenants, as defined in this Ordinance, are contained in:

(a) The laws of the Tribe;

(b) Applicable statutes, regulations and agreements with agencies of the United States;

(d) Building or housing Ordinances;

(e) Other laws which are made applicable through the provisions of this Ordinance; or

(f) Contracts with private agencies.

Section PRP.05.07 — Effect Of Any Agreement Regarding Dwellings

Unless an agreement or an applicable provision of the agreement is clearly contrary to this Ordinance or the laws identified in Section PRP.05.04 or Section PRP.05.06, the agreement or provision will govern the rights and obligations of any party before the Tribal Court, and the Court must grant the relief provided for in the agreement according to its terms. Where there is no written agreement, the intent of the parties expressed in their oral agreement or relationship will govern, as well as applicable provisions of this Ordinance.

Section PRP.05.08 — Landlord Rights

Each landlord under this Ordinance has the following rights:

(a) To be paid any rent or money due under an agreement within ten (10) calendar days from the agreed date of payment, or within ten (10) calendar days following the first day of the month in a month-to-month agreement for dwelling occupancy. Rent is payable without demand or notice at the time and place agreed upon by the parties. In the absence of a definite term in the agreement, the tenancy is month-to-month, and if not stated in the agreement, the amount of rent shall be the fair rental value of the rental unit, as compared to similar rental units. In the absence of a written agreement, the tenancy shall be month-to-month and the rent, if not otherwise evident from the situation, shall be the fair rental value of the rental unit, as compared to similar rental units.

(b) To adopt reasonable rules and regulations for the use and occupancy of a dwelling which are designed to promote the convenience, safety, or welfare of occupants.

(c) To have access to the dwelling for maintenance, repairs, decorations, alterations, or improvements to inspect the premises, to supply necessary or agreed services, show the dwelling to prospective buyers or tenants, or to otherwise have reasonable access to the premises. Such access must be at reasonable times when the tenant is present, and upon a notice of at least twenty-four (24) hours, except in situations involving an emergency, or where the tenant consents. No tenant who unreasonably denies access to a landlord for these purposes may pursue an action or grievance maintaining that any services or repairs were not provided.

(d) To require that tenant comply with Ordinances or regulations regarding housing, health, safety, or public order, keep the premises reasonably clean and safe, dispose of all ashes, garbage, rubbish, and waste in a clean and safe manner, keep the premises and its parts in good repair, reasonably use all electrical, plumbing, sanitary, heating, ventilating, air-conditioning or other facilities and appliances. Require the tenant to conduct himself and require others on the premises to conduct themselves in a way that will not disturb the peaceful enjoyment of others or abuse property, use all parts of the premises in a way they were intended or designed, and refrain from destroying, defacing, damaging, or removing any part of the premises, or allow any other to do so.

(e) Where a dwelling has been abandoned (the tenant has vacated without notice and does not intend to return which is evidenced by removal of possessions, nonpayment of rent, disconnected utilities, or expressed to the landlord or third party) a landlord, without further notice to the tenant may post a notice on the dwelling stating that the landlord intends to take possession and that the tenant's possessions will be inventoried and removed within ten (10) days from the posting. If the tenant's possessions are not claimed within thirty (30) days from their removal from the abandoned dwelling, the landlord may dispose of the possessions.

(f) To apply to the Tribal Court in any action authorized by this Ordinance or law to enforce rights under this chapter.

Section PRP.05.09 — Landlord Obligations

Every landlord under this Ordinance has the following obligations:

(a) To maintain the dwelling in a decent, safe, and sanitary condition.

(b) To protect the right of quiet enjoyment of the dwelling to the tenant and regulate the conduct of other tenants and those with them does not cause a nuisance, endangerment of public health and safety, breach of peace, or interference with the quiet enjoyment of others.

(d) To make necessary repairs to put the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant.

(e) To keep common areas which are not assigned to a specific tenant in a clean and safe condition.

(f) To expeditiously repair, upon tenant notification, any premises defects hazardous to life, health or safety, the financial responsibility for which will lie with the tenant only if the defects result from damage caused by the tenant, tenant's household, or invitees.

(g) To maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, where such things are not the responsibility of a tenant, except if such things are generated by an installation within the exclusive control of the tenant or supplied by a direct public service utility connection.

(h) To provide and maintain proper and appropriate receptacles and facilities (except for those of the individual tenant) for the proper disposal of ashes, garbage, rubbish, and other waste from the dwelling.

(i) To provide running water, hot water, and heat in accordance with applicable housing and health Ordinances, except to the extent the tenant is required to provide such for himself.

(j) To disclose, in writing, the name, address, and telephone number of any person authorized to manage the dwelling, the owner of the premises or his agent, the person responsible for receiving rent, notices, and demands under the Ordinance, and the person responsible for making repairs, where they are required. If such a disclosure is not made, then any person who receives payments or deals with a tenant as an apparent landlord or manager will be deemed to be the proper landlord for actions under this Ordinance.

(k) To give possession of the premises to the tenant in accordance with the agreement to occupy, and if rules and regulations are issued to communicate those rules and regulations to the tenant.

(l) To respect the rights of tenants as set forth in this Ordinance.

Section PRP.05.10 — Landlord Remedies

Where a tenant has not complied with this Ordinance or the agreement of the parties, the landlord has the right to:

(a) Give reasonable notice to the tenant to comply with his obligations, pay any monies due and owing under the agreement of the parties, or landlord has right to terminate the agreement under which the tenant occupies the premises, and demand that he and those with him leave the premises.

(b) Require repairs or maintenance which are the responsibility of the tenant and compliance with reasonable rules and regulations for occupancy.

(c) Seek a Court order or judgment for the payment of monies or costs, for compliance with the agreements and obligations of tenants, for termination of an agreement, payment of damages, eviction of tenants, or any other relief to which he may be entitled by law or the agreement of the parties.

Section PRP.05.11 — Tenant Rights

Each tenant under this Ordinance shall have the following rights:

(a) To quiet enjoyment of the premises and protection of that right by the landlord against offending persons or things that are under his control.

(b) To a warranty of habitability that the premises are decent, safe, sanitary and suitable for human occupancy.

(c) To receipt of reasonable notice, as provided by this Ordinance, for compliance with the agreement of the tenant, termination of an agreement, or eviction.

(d) To landlord compliance with applicable building or housing Ordinances.

(e) To a reasonable and effective means of dealing with the landlord or his agents, making complaints regarding the premises or agreement, and having them resolved in a reasonable manner, and otherwise having an effective opportunity to be heard and fairly treated.

(f) To adequate and timely maintenance and repair of the premises, facilities, and appliances the maintenance and repair of which are obligations of the landlord.

(g) To apply to the Tribal Court in any action authorized by this Ordinance or law to enforce rights under this chapter.

Section PRP.05.12 — Tenant Obligations

Every tenant under this Ordinance shall have these obligations:

(a) To pay rent, purchase payments, costs, fees, or damages in accordance with the agreement of the parties, this Ordinance, and applicable law.

(b) To immediately notify the landlord of any defects in the premises hazardous to life, health, or safety.

(c) To maintain the premises in a safe and clean manner, and to otherwise maintain the premises as may be required by agreement or this Ordinance, and conduct himself in using the premises and common areas in a way which does not disturb the quiet enjoyment of others or cause a breach of the peace. These obligations include the duty to require that those who occupy or use the premises as guests or by invitation conduct themselves in a similar way.

(d) To not give up the premises to others, assign a lease agreement, sublease, provide accommodations for boarders, lodgers, or others who are not parties to the agreement over the premises without the permission of the landlord.

(e) To use the premises only for a personal and private dwelling as agreed, and not to use or permit its use for any other purpose, including refraining from illegal conduct or any other activity that is contrary to written or traditional law which may harm the physical or social environment of the premises or the area around it.

(f) To abide by necessary and reasonable rules and regulations made by the landlord that have been communicated to the tenant.

(g) To dispose of all ashes, garbage, rubbish and other waste, as well as junk, abandoned vehicles, or other unnecessary items, in a proper, sanitary, and safe manner.

(h) To use all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances that are part of the premises, and the property of the landlord, in a proper, safe, sanitary, and reasonable manner.

(i) To refrain from destroying, defacing, damaging, or removing any part of the premises or common tenant areas, and to require family members and guests to act in like manner.

(j) To pay reasonable charges (other than for wear and tear) for the repair of damages to the premises or common areas caused by the tenant, his household or guests, or to make repairs for such damages where that is the obligation of the tenant, all within 30 calendar days of such damage, except as otherwise agreed upon by the parties.

(k) To conduct himself and cause other persons to conduct themselves in a way that will not disturb or injure neighbors, and in a way that will keep the dwelling and common areas in a decent, safe, and sanitary condition.

(l) To perform seasonal maintenance or other maintenance reasonably required by the agreement of the tenant or the reasonable rules and regulations of the landlord.

Section PRP.05.13 — Tenant Remedies

Where a landlord has not complied with this Ordinance or the agreement of the parties, the tenant has the following rights:

(a) To give reasonable notice to the landlord in writing to comply with his obligations, demand repairs which are the responsibility of the landlord, or terminate the agreement under which the tenant occupies the premises, in accordance with procedures outlined in this Ordinance.

(b) To require repairs or maintenance which are the responsibility of the landlord.

(c) Should landlord fail to make repairs, as duly noticed by tenant, within a reasonable time, tenant may make necessary repairs and deduct reasonable costs from the rent payment.

(d) To seek a Court order or judgment for the payment of monies or costs, compliance with the agreements and obligations of landlords, terminate an agreement, pay damages, or any other relief to which he may be entitled by law or the agreement of the parties.

Part III — Termination Of Rental Agreements/Termination Notice Requirements

Section PRP.05.14 — Termination Procedures

An agreement of the parties for the rental of a premises, and for the lease/purchase of a premises, may be terminated in the following manner, unless otherwise provided in the Rental Agreement:

(a) No less than fourteen (14) calendar days prior to the termination of the rental agreement for any failure to pay rent or other payments required by the agreement.

(b) No less that three (3) calendar days prior to the termination of the rental agreement for nuisance, serious injury to property, or injury to persons. In situations in which there is an emergency, such as a fire or condition making the dwelling unsafe or uninhabitable, or in situations involving an imminent or serious threat to public health or safety, the notice may be made in a period of time which is reasonable, given the situation.

Section PRP.05.15 — Secretarial Approved Leases

Leases, agreements, or otherwise that have previously been approved by the Secretary are subject to the appeal procedures found in 25 C.F.R. Part 2.

Part IV — Eviction Process

Section PRP.05.16 — Grounds For Eviction

After proper notice terminating a tenant's tenancy, as set forth in Section PRP.05.14 of this Ordinance, a tenant may be evicted from any premises, ordered to pay damages and costs, or otherwise be subjected to the order or judgment of the Tribal Court for the breach of any obligation under this Ordinance, any agreement, including an agreement to purchase or rent any dwelling, or for any other obligation provided by law. A tenant may be evicted for:

(a) Nonpayment of rent under an agreement for the lease purchase or occupation of a dwelling when such payments are not made after ten (10) calendar days of the agreement date of payment, or ten calendar days following the first day of the month in a month-to-month tenancy.

(b) Any arrearage in rent, costs, or damages which have been due and owing for thirty (30) calendar days or more. The receipt by a landlord of partial payments under an agreement shall not excuse the payment of any balance due upon demand, unless otherwise agreed to between the parties.

(c) Nuisance, property damage, or destruction, injuries to the property, person, or peace of other tenants, or injuries or damage to common areas and property.

(d) Noncompliance with this Ordinance, building or housing Ordinances.

(e) Occupation of any premises without permission or agreement, following any reasonable demand by a person in authority over the premises to leave.

(f) Failure to comply with any tenant obligation outlined in this Ordinance.

(g) Material breach of the lease or other agreement of the parties, or the reasonable rules and regulations of the landlord.

Section PRP.05.17 — Notice To Quit Requirements

Following a timely notice to terminate or cancel an agreement or a notice to a person who occupies a dwelling without an agreement to leave it, a tenant may be given notice to quit possession of the premises as follows:

(a) The notice must be addressed to the known tenants of the premises, although unknown occupants need not be named, and it shall state the reason(s) for the notice and state a date by which the tenant must leave the premises and surrender it to the landlord.

(b) Any notice which substantially complies with the following form will be sufficient:

To: [Name of Tenant] and occupiers of [address of premises or reasonable description of location]

From: [Name of Landlord]

You are required to quit possession or occupancy of these premises, move out, and return the possession of the premises to the landlord on or before [date] for the following reason(s): [state what they are]

[Name and address of the person giving notice, date, and signature]

(c) The notice must provide not less than eight (8) calendar days following the date of service of the notice to quit but not to exceed 30 days following the date of service of notice to quit, except in cases of emergency or nuisance or injuries as provided in Section PRP.05.16(c).

(d) All tenants shall be given (14) days from the date of service to quit possession of the premises in the case of non payment of rent.

(e) The Tribal Council shall be notified in cases where a Lease/Purchase Agreement or a mortgage is involved.

Section PRP.05.18 — No Self-Help Eviction

Except by mutual consent of the parties, no landlord may compel a tenant to vacate any premises in a forceful fashion or way which causes a breach of the peace without giving a notice to quit, and obtaining a Court order as provided in this Ordinance.

Section PRP.05.19 — Forcible Eviction

(a) Where the Court orders an eviction, and the defendant or any other occupant of the premises refuses to vacate voluntarily by the effective date of that Order, the defendant or other occupants may be forcibly removed from the premises by a tribal law enforcement officer in accordance with the procedure in Section PRP.05.33. At the hearing where eviction is ordered, the Court shall inform the defendant that if he does not vacate the premises voluntarily by the effective date, he and the other occupants will be subject to forcible eviction, and their property will be subject to storage, sale and disposal as set forth in Section PRP.05.20.

Section PRP.05.20 — Storage Of Personal Property Following Forcible Eviction

Following forcible eviction of the defendant and/or other occupants, the former occupants' personal property shall be stored by the owner of the premises for at least thirty (30) days, either on the premises or at another suitable location. In order to reclaim their property, the former occupants must pay the reasonable costs of its removal and storage. If they do not pay such costs within thirty (30) days, the owner is authorized to sell the property in order to recover these costs. Upon request by the former occupants, the landlord must provide them with pertinent information concerning the sale, including the time, date and location. Any proceeds from the sale in excess of the storage and removal costs must be remitted to the former occupants. Nothing in this section shall be construed to prevent the former occupants from reclaiming property remaining after the sale if they can arrange to do so in a manner satisfactory to the owner.

Part V — Notice Procedures

Section PRP.05.21 — Notices Other Than Notices To Cancel Or Terminate An Agreement

Any notice to a landlord or tenant to comply with the agreement of the parties or this Ordinance, other than a notice to cancel or terminate the agreement of the parties, may be given in any reasonable manner, or as provided by the agreement of the parties.

Section PRP.05.22 — Notices To Cancel Or Terminate Agreements And Notices To Leave Premises

Any notice to cancel or terminate an agreement for the lease/purchase, use, or occupancy of a dwelling, or to leave a premises, must be in writing, and must be delivered to the tenant or landlord in the following manner:

(a) Delivery must be made by:

(1) A law enforcement officer of the Tribe or an agency of the United States Government,

(2) Any person authorized by the Tribal Court; or

(3) Any adult person who is not a party to the action.

(b) Delivery will be effective when it is:

(1) Personally delivered to a tenant with a copy delivered by first class mail, or

(2) Personally delivered to an adult living in the premises with a copy delivered by first class mail, or

(3) Personally delivered to an adult agent or employee of the landlord or the tenant with a copy delivered by first class mail.

(c) If the notice cannot be given by means of personal delivery, or the landlord of tenant cannot be found, the notice may be delivered by means of:

(1) Certified mail, return receipt requested, at the last known address of the landlord or tenant, or

(2) Securely taping a copy of the notice to the main entry door of the premises in such a manner that it is not likely to blow away, and by posting a copy of the notice in some public place near the premises, including a tribal office, public store, or other commonly-frequented place and by sending a copy first class mail, postage prepaid, addressed to the tenant at the premises.

(d) Notice must include a statement that the tenant may be represented or accompanied, at his own expense, by a person of his choice, including a representative of the Tribe.

Section PRP.05.23 — Copy Of Notice/Proof Of Service

The person giving notice must keep a copy of the notice and proof of service in accordance with this chapter, and be able to demonstrate service by affidavit or other manner recognized by law.

Part VI — Court Procedures

Section PRP.05.24 — Summons And Complaint

At any time after the expiration of the time set in the notice to quit, if the tenant or occupant of the premises refuses to quit possession or occupancy of the premises, the landlord may file a complaint in the Tribal Court for eviction and other relief. The complaint must state:

(a) The name and known address of the tenants against whom the suit is brought, but it need not state the names of any other occupants, who will be considered to be bound by a Court order;

(b) A description of the agreement of the parties or the terms under which the person being sued occupies the premises;

(c) The address or location of the premises in sufficient terms to allow a law enforcement officer to carry out any order of the Court;

(d) A description of the obligation the tenant has breached or the reason for the action;

(e) A statement showing that any required termination notices and the notice to quit have been served in accordance with the provisions of this Ordinance requiring them; and

(f) The relief demanded, including any claims for damages, fees, costs, or other special relief, which may include, in accordance with Section PRP.05.16, non-payment of rent or other costs between the time of notice and the Execution of Judgment described at Section PRP.05.33.

Section PRP.05.25 — Action Upon Filing Complaint

When a complaint is filed in the Tribal Court, it must be immediately presented to a Tribal Court Judge. This must be on the date of filing, or, if no judge is present, on the first regular Court day after filing or when a judge may first be found. The judge must review the complaint and must, if it appears to be in compliance with Section PRP.05.24, issue an order of the Court requiring the defendant named in the complaint to appear before the Court on a certain date to contest the complaint. The date for appearance of answering the complaint must be no less than three (3) calendar days after the date of the order in matters involving a nuisance or injuries provided in Section PRP.05.16(c) or ten (10) calendar days in all other cases.

Section PRP.05.26 — Commencement Of Proceedings

(a) If the tenant appears before the Court in person or in writing to contest the complaint, the Court must set a hearing date. Any written response must state any defenses or factual disputes and where any defendant appears in person, a written response must be served upon the plaintiff within five (5) calendar days of any hearing, excluding weekends and holidays.

(b) The Court must set a hearing date, no more than fifteen (15) calendar days following the date for appearance. When the hearing date would fall on a weekend or holiday, the date shall be the first regular Court day following that date.

(c) A defendant may, for good cause shown, and upon the payment of a reasonable sum for the fair rental value of the premises between the date on which the complaint was filed and the date of hearing, obtain an extension of time, beyond the 15 day period. The Court may refuse to extend the date of hearing where the complaint is based upon nuisance or injuries provided in Section PRP.05.16(c), and must not extend the date of hearing where the complaint is based upon conduct which is alleged to constitute a serious danger to public health, safety, or peace.

(d) The Court may in its discretion on motion from the landlord order the tenant to pay into the Court rents for the use and occupancy during the pendency of the eviction case.

Section PRP.05.27 — Defenses

(a) Upon an appropriate showing, the Court must grant the remedies allowed in this Ordinance, unless it appears by the evidence that:

(1) The premises are untenable, uninhabitable, or constitute a situation where there is a constructive eviction of the tenant, in that the premises are in such a condition, due to the fault of the landlord, that they constitute a real and serious hazard to human health and safety and not a mere inconvenience.

(2) The landlord has failed or refused to make repairs which are his responsibility after a reasonable demand by a tenant to do so, without good cause, and the repairs are necessary for the reasonable enjoyment of the premises.

(3) There are monies due and owing to the tenant because he has been required to make repairs which are the obligation of the landlord, and the landlord has failed or refused to make them after a reasonable notice. Such sums may be a complete or partial defense to a complaint for eviction, but only to the extent that such sums set off monies owed for occupancy. A tenant may be evicted after such a period if he fails or refuses to pay the reasonable rental value of the premises.

(4) Due to the conduct of the landlord, there is injury to the tenant in such a way that justice requires that relief be modified or denied. This shall include the equitable defenses of estoppel, laches, fraud, misrepresentation, and breaches of serious and material obligations for public health, safety, and peace standards.

(5) There are such serious and material breaches of applicable housing law on the part of the landlord that it would be unjust to grant him a remedy.

(6) The landlord is evicting the tenant because of his/her race, sex, sexual orientation, religion, age, marital status, family status, or because the tenant is disabled.

(7) There are any other material or relevant fact, which the tenant might present, that may explain why his eviction is unjust and unfair.

(b) No defense may be founded upon either of the grounds listed in (a)(1) or (a)(2 unless:

(1) the obligation to maintain or repair is that of the landlord under this Ordinance or the agreement of the parties, and a clear and reasonable demand was made by the tenant to correct such conditions or the landlord knew of them; and

(2) the landlord has had a reasonable opportunity to maintain or make repairs and the tenant has been cooperative in allowing them.

Section PRP.05.28 — Discovery And Pre-Hearing Proceedings

Extensive, prolonged, or time-consuming discovery and prehearing proceedings will not be permitted, except in the interests of justice and for good cause shown by the moving party. Discovery shall be informal, and reasonably provided on demand of a party, and it shall be completed within five (5) calendar days of the date of hearing. Requests for discovery must be made no later than three (3) calendar days following the setting of a hearing date. The Court may enter reasonable orders requiring discovery, altering the time requirements of this paragraph or protecting the rights of the parties upon reasonable notice.

Section PRP.05.29 — Evidence

Evidence in proceedings under this Ordinance shall be according to the following provisions:

(a) All evidence may be admitted which can be shown to the relevant and material to the case.

(b) Fairness will dictate the decision of the judge on challenges to admissibility of evidence.

(c) The Court may avail itself of any recognized and authoritative materials, books or documents as guidance in reaching a decision on the admissibility of evidence.

(d) Evidence of customs and traditions of the Tribes shall be freely admitted.

(e) Hearsay objections will not be permitted to procedurally deny the Court access to reasonably reliable information which would aid in reaching a just decision. Where a hearsay objection is made, the Court will make an independent determination of the competency of the evidence which is sought to be offered. Objections may be overruled where facts indicate that the evidence is relevant and material and reasonably competent under the circumstances. Hearsay evidence may be freely admitted where all parties to the out of Court statement are present before the Court and qualified to testify as to the statement made.

(f) At the discretion of the Judge, evidence may be excluded if its value as proof is outweighed by the risk that its admission will create a substantial risk of undue prejudice, confuse the issues or mislead the jury, or unfairly surprise the opposing party.

(g) Upon request of a party, the Court may take judicial notice of specific facts which are so certain as not to be subject to reasonable dispute.

Section PRP.05.30 — Burden Of Proof

The burden of proof in all proceedings under this Ordinance shall be clear and convincing evidence.

Section PRP.05.31 — Judgment

(a) Within five (5) calendar days of the date of the hearing, the Court must grant and enter judgment and the judgment must grant all relief that the parties are entitled to as of the date of the judgment. The judgment may:

(1) Order the immediate eviction of a tenant and delivery of the premises to the landlord;

(2) Grant actual damages as provided in the agreement of the parties or this Ordinance, including interest;

(3) Order the parties to carry out an obligation required by law;

(4) Establish a payment plan for the tenant;

(5) Order rent payments to paid through garnishment;

(6) Establish a Power of Attorney in another person/agency to fulfill rights or obligations of either landlord or tenant;

(7) Remedy the action - in part or in whole - through appropriate recalculation of rent;

(8) Remedy the action - in part or in whole - through a conversion from a lease/purchase agreement to a rental tenant status;

(9) Order the tenant to perform work for the landlord or Division of Community of Housing to pay off back rent due and/or damages;

(10) Order the payment of attorneys' fees and, where allowed by law or agreement, costs and expenses of litigation; or

(11) Grant any relief provided in this Ordinance or allowed in law or equity.

(b) If a defendant fails to appear in person or in writing on or before the date of appearance, the Court must enter judgment on behalf of the plaintiff following a hearing to determine whether relief should be granted and the kind of relief that should be granted.

Section PRP.05.32 — Form Of Judgment

The judgment shall state the relief granted by the Court to any party, but need not state findings of fact or conclusions of law in support of the judgment. The judgment may state brief reasons for it.

Section PRP.05.33 — Execution Of Judgment

(a)(1) In an action for eviction, if the court finds that the plaintiff is entitled to possession, the order for judgment shall be for the restitution of the premises to the plaintiff and for such other relief that the court orders in accordance with this Ordinance.

(2) At the time of ordering judgment for the restitution of premises, the court shall order that a writ of restitution be issued, and the writ may be delivered to a tribal law enforcement officer for execution in accordance with (b) of this section. No writ shall be executed if received by a tribal law enforcement officer more than 30 days after its issuance.

(3) Upon a judgment in favor of the plaintiff, the plaintiff may request a writ of restitution from the Court. Upon such request, the Court shall provide the defendant with reasonable notice and opportunity to be heard on the matter of the issuance of a writ.

(A) The writ shall be of sufficient specificity to enable a law enforcement officer to execute the writ.

(b) Upon delivery of a writ of restitution to a tribal law enforcement officer, and after the payment of any applicable fees for the officer to execute the writ, the officer shall execute the writ. In executing the writ of restitution a tribal law enforcement officer shall:

(1) Remove from the premises described in the writ the person of the defendant and all other persons found upon the premises claiming under the defendant, using such reasonable force as is necessary.

(2) Remove from the premises described in the writ, using such force as may be necessary, all personal property found therein not the property of the plaintiff.

(3) Exercise ordinary care in the removal of all persons and property from the premises and in the handling and storage of all property removed therefrom.

Section PRP.05.34 — Stay Of Execution

Unless the losing party is a tenant against whom a landlord has filed at least three (3) tenant termination notices according to Section PRP.05.14 of this Ordinance, the losing party may apply for a stay of execution of the judgment or order, if:

(a) Good and reasonable grounds affecting the well-being of the party are stated; or

(b) There would be no substantial prejudice or injury to the prevailing party during the period of the stay; or

(c) A bond is posted or monies are paid, to satisfy the judgment or payment for the reasonable use and occupancy of the premises during the period of appeal or a reasonable period of time following the judgment is deposited with the Court.

Section PRP.05.35 — Appeals

Appeals under this Ordinance shall be handled according to the general tribal appellate provisions, with the exception that the party filing the appeal shall have only five (5) days from the entry of the order of judgment to file a notice of appeal. All orders from the Court will remain in effect during the pendency of an appeal under this Ordinance unless otherwise ordered by the Court. If applicable, a party may utilize the appeal procedures of 25 C.F.R. Part 2.

Section PRP.05.36 — Appeal Bond

Any party seeking an appeal from a judgment under this Ordinance must pay a reasonable bond in an amount to be determined by the Court. An appeal bond may be waived upon a showing by the party seeking appeal that he is indigent and otherwise unable to post such a bond.

Section PRP.05.37 — Miscellaneous Complaints And Claims

Any miscellaneous complaint or claim including a complaint or claim by a tenant which does not fall within the procedures of this Ordinance may be made under the general tribal civil procedure Ordinance and/or tribal small claims procedure Ordinance.

Part VII — Mortgages And Foreclosures

Section PRP.05.38 — Recording Of Mortgages By Recording Clerk

(a) The Recording Clerk shall record each Mortgage or other document in a log, which shall contain, at a minimum, the following information:

(1) The name(s) of the Mortgagor of each Mortgage, identified as such;

(2) The name(s) of the Mortgagee of each Mortgage, identified as such;

(3) The name(s) of the grantor(s), grantee(s) or other designation of each party named in any other documents received for recordation;

(4) The date and time of the receipt;

(5) The filing number to be assigned by the Recording Clerk, which shall be a unique number for each Mortgage or other document received for filing; and

(6) The name of the Recording Clerk or designee receiving the Mortgage or document.

(b) The Recording Clerk shall endorse the following information from the log upon any Mortgage or other document received for recording:

(1) The date and time of receipt of the Mortgage or other document;

(2) The filing number assigned by the Recording Clerk; and

(3) The name of the Recording Clerk or designee receiving the Mortgage or document.

(c) The Recording Clerk shall make a true and correct copy of the endorsed Mortgage or other document and shall certify the copy as follows:

I certify that this is a true and correct copy of a document received for recording this date.

Given under my hand and seal this _______ day of _________________.

_______________________________________

(Signature)

_______________________

(Date)

(d) Post-Recording Procedures.

(1) The Recording Clerk shall maintain a public tract index where copies or images of all certified Mortgages or other documents recorded against a Leased Premise are located and may be retrieved by a search based on the legal description of the Leased Premises.

(2) The Recording Clerk shall send the original Mortgage for filing with the Land Titles and Records Office of the BIA in accordance with 25 C.F.R. Parts 150 and 162 and shall obtain approval of the Secretary of the Mortgage or other document if required by federal law and such approval has not be granted in the Lease or Mortgage.

(3) If, following recording by BIA, the original Mortgage is returned to the Recording Clerk, the Recording Clerk shall retain a copy of the endorsed, BIA-recorded Mortgage or other document and transmit the original to the Mortgagee or person who delivered the document for recording to the Recording Clerk.

(e) Copies of the certified Mortgage and other documents and the log shall be made available for public inspection and copying. The Recording Clerk shall establish rules for copying and may assess reasonable charges therefore.

(f) Upon the Mortgagee's commencement of a foreclosure action or application for the appointment of a receiver in connection with an assignment of a Leasehold Interest in lieu of foreclosure, the Recording Clerk shall not accept any other Mortgage or other document for recording until the Leasehold Interest has been transferred according to the terms of this Ordinance.

Section PRP.05.39 — Priority

(a) The priority of the lien of a Mortgage or other document shall be determined by the date and time it was received by the Recording Clerk for recording (unless the Mortgage or other document expressly states that it is made subordinate to other liens). That priority shall be superior to all Subordinate Liens other than liens for Tribal taxes.

(b) Notwithstanding the date and time endorsed on the Mortgage, the log shall definitively establish the date and time a Mortgage or other document is received for recording.

Section PRP.05.40 — Assignment Of Leasehold Interest In Lieu Of Foreclosure

At any time after a default, the Mortgagor may enter into a written assignment of Leasehold Interest in lieu of foreclosure, subject to the following provisions:

(a) Thirty (30) days shall have expired after the Mortgagee has given the Tribe written notice of the "Lessor's Option" and the Tribe, as Lessor, has not exercised the same.

(b) The assignment shall contain (i) the Mortgagor's warranty that the Mortgagor, in good faith, believes that the value of the Leasehold Interest is equal to or less than the amount currently due, or to become due after a foreclosure, under the Mortgage and (ii) the Mortgagee shall release of the Mortgagor from the obligation to repay the Note;

(c) The Mortgagee shall petition the Tribal Court to appoint a receiver, who shall be the Tribe unless otherwise agreed to by the Mortgagee and the Tribe, to receive title to the Leasehold Interest and to liquidate it in accordance with the provisions of this Ordinance;

(d) Such petition shall include a copy of the assignment and shall be served on the Mortgagor and the Tribe;

(e) The order appointing the receiver shall assign the Leasehold Interest to the receiver, with a right to sell the Leasehold Interest at private sale or rent the Leased Premises subject to the same conditions as provided in this Ordinance for a foreclosure.

Section PRP.05.41 — Satisfaction Of Conditions Prior To Commencing Foreclosure

(a) Mortgagee shall provide all written notices and take such other actions as may be required by the Note and Mortgage prior to commencing foreclosure.

(b) Lessor's Option:

(1) Upon the expiration of any right to cure provided in the Mortgage, Mortgagee shall provide a written notice to the Tribe, as Lessor, that (i) identifies the Lessee, the address of the Leased Premises, the amount due under the Note and Mortgage (including, principal, interest, costs and fees, including reasonable attorney fees), and (ii) offers to assign the Lender's interest in the Note, Mortgage and any other documents, judgments or orders, to the Lessor upon payment in full of the outstanding obligations.

(2) Lender shall not accept any assignment of Leasehold Interest in lieu of foreclosure or commence a foreclosure action until thirty (30) days after the delivery of such notice.

(3) Upon receipt of such notice, the Tribe may, but is under no obligation, pay to the Lender the amounts due under the Note and Mortgage. The Tribe may exercise the Lessor's Option at any time prior to the sale or transfer of the Leasehold Interest to a Member or a Tribal Housing Entity under the Ordinance's foreclosure provisions. Upon payment of such amounts, the Lender shall take all such action, and execute all such documents, as may be necessary to immediately transfer all of its interests to the Lessor. Thereafter, the Tribe shall have the same rights as the Lender hereunder. No merger of title of the Tribe shall occur until the Note is paid in full.

Section PRP.05.42 — Complaint

Upon fulfillment of the conditions to commencing a foreclosure, the Mortgagee may commence a foreclosure action by filing a verified complaint, which shall include:

(a) The name of the Mortgagor and each person or entity claiming an interest in the Leasehold Interest, including each Subordinate Lienholder (except for the Tribe with respect to a claim for a Tribal taxes), as a defendant;

(b) A description of the Leased Premises;

(c) A concise statement of the facts concerning the execution of the Mortgage and the Lease, if applicable; the facts concerning the recording of the Mortgage; the facts concerning the alleged default(s) of the Mortgagor; and such other facts as may be necessary to constitute a cause of action;

(d) True and correct copies of each Note, Mortgage, deed of trust or other recorded real property security instrument, Lease (if applicable) and any assignment of any of these documents; and

(e) Any applicable allegations concerning compliance with any relevant requirements and conditions prescribed in (i) federal statutes and regulations, (ii) Tribal codes, ordinances and regulations, and/or (iii) provisions of the Note, Mortgage and the Lease.

Section PRP.05.43 — Service Of Process.

A copy of the summons and complaint shall be served on the all defendants and the Tribe in accordance with Tribal Law.

Section PRP.05.44 — Receiver: Appointment, Duties And Responsibilities

(a) In addition to appointing a receiver upon petition of the Mortgagee in connection with an assignment of Leasehold Interest in lieu of foreclosure, the Tribal Court shall appoint a receiver upon commencement of a foreclosure action and shall have the authority to prevent waste from occurring on the Lease Premises during the pendency of the proceeding.

(b) Except as otherwise agreed by the Tribe pursuant to a memorandum of understanding or other agreement with a Mortgagee, the receiver shall be the Tribe. The receiver shall have the authority to hire such professionals as directed by the Mortgagee to manage and secure the Leased Premises.

(c) The receiver shall be an officer of the Tribal Court and shall be immune from all liability except that arising from its own negligence or willful acts. All contracts for services entered into by the receiver shall be satisfied solely from the proceeds from the sale or rental of the Leased premises or shall be advanced by the Mortgagee.

(d) The Tribal Court shall discharge the receiver when the Leased Premises are sold and the proceeds are distributed according to this Ordinance.

Section PRP.05.45 — Judgment And Remedy

A foreclosure action shall be heard and decided in a prompt and reasonable time period not to exceed sixty (60) days from the date of service of the complaint on the defendants. If the mortgagor has no defense to the foreclosure and has not reinstated the Mortgage (if such right is allowed under the Mortgage) and the Tribal Court finds for the plaintiff, the Tribal Court shall enter judgment;

(a) Foreclosing the interest of the Mortgagor, other defendants and anyone else acquiring an interest in the Leased Premises after the commencement of the foreclosure action;

(b) Assigning title to the Leasehold Interest to the receiver, with authority to sell the Leasehold Interest or rent the Leased Premises;

(c) Granting a Writ of Restitution to the receiver to immediately remove the defendants and all other occupants and their property from the Leased Premises;

(d) Ordering a public sale and advertising the terms of such sale in a newspaper or other communication distributed by the Tribe to its members (if such exists), posting the notice on the Leased Premises and in the Tribal offices;

(e) Providing for the distribution of any funds in excess of the amounts due to the Mortgagee to the Subordinate Lienholders (if any) in order of lien priority and then to the Mortgagor;

(f) Requiring that all sales of the Leasehold Interest be made only to a Member, the Tribe, or the Tribal Housing Authority;

(g) Providing that the Leased Premises may be rented prior to a sale, with preference being given to financially qualified Members, the Tribe and the Tribal Housing Authority;

(h) Providing that if no financially qualified Members, the Tribe and the Tribal Housing Authority rents the Leased Premises within sixty (60) days of its being offered for rental, then the receiver may rent to a non-Member, for initial and renewal periods not exceeding one (1) year, with preference to re-rent the Leased Premises being granted to financially qualified Members, the Tribe or a Tribal Housing Authority upon the expiration of each renewal period.

(i) Awarding monetary damages to the plaintiff for damages caused to the Leased Premises in excess of ordinary wear and tear.

Section PRP.05.46 — Rights Of The Mortgagee

Subject to this Ordinance and the terms of the Mortgage, a Mortgagee has the following rights in connection with an assignment of Leasehold Interest in lieu of foreclosure or a foreclosure judgment:

(a) The receiver shall follow the directions of the Mortgagee in setting the terms of, and conducting, a public or private sale and the acceptance of any offer to buy the Property, subject to the following:

(1) All assignments shall be in form and substance satisfactory to the Mortgagee.

(2) All assignees shall be bound by the terms of the Lease.

(3) The receiver shall obtain the consent of the Secretary if such consent is required by law and has not been given.

(b) The Mortgagee need not accept any offer at the public sale other than a bona fide cash offer, to be paid within forty-five (45) days of the public sale, in an amount equal to or greater than the amount due on the judgment, plus all accrued interest and expenses to date of sale;

(c) If no offer is accepted at the public sale, the receiver may sell the Leasehold Interest at private sale; the Mortgagor shall have no interest in the proceeds and all proceeds, including any proceeds in excess of the amount due under the judgment, shall be paid to the Mortgagee.

(d) The receiver shall follow the directions of the Mortgagee in renting the Leased Premises, subject to the following:

(1) All rental agreements shall be in a form and substance satisfactory to the Mortgagee.

(2) All renters shall be provided with a copy of the Lease and shall agree in writing to be bound by the terms thereof.

(3) All rental proceeds shall be paid to the Mortgagee and shall be applied to amount outstanding under the Note or judgment.

(4) The receiver shall obtain the consent of the Secretary if such consent is required by law and has not been given.

Section PRP.05.47 — Enforcement Of Writ Of Restitution

Upon issuance of a Writ of Restitution, Tribal law enforcement officers shall enforce it by removing the Mortgagor and any other persons occupying the Leased Premises and their property. The Writ of Restitution shall be enforced no later than forty-five (45) days after a judgment of foreclosure has been entered or order appointing receiver has been entered.

Section PRP.05.48 — No Merger Of Estates

There shall be no merger of estates by reason of the execution of a Lease or a Mortgage or the assignment or assumption of the same, including an assignment adjudged by the Tribal Court, or by operation of law, except as such merger may arise upon satisfaction of the Mortgage.

Section PRP.05.49 — Lessor's Right To Notice And Right To Intervene

(a) In any Mortgage foreclosure proceeding in which the Tribe is not named as a defendant, a copy of the summons and complaint shall be served on the Tribe in accordance with the court rules relating to service of process or, alternatively, by certified mail, return receipt requested, within five (5) days after the issuance of the summons.

(b) The Tribe may petition the Tribal Court to intervene in any foreclosure proceeding under this Ordinance. Neither the filing of a petition for intervention by the Tribe, nor the granting of such petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribe, except as may be expressly authorized by the Tribe.

Section PRP.05.50 — Certified Mailing To Tribe And Lessor

Any foreclosure proceedings on a Lease or Leasehold Mortgage where the Tribe or the Lessor(s) is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribe and to the Lessor(s) by certified mail, return receipt requested, within five (5) days after the issuance of the summons. If the location of the Lessor(s) cannot be ascertained after reasonable inquiry, a copy of the summons and complaint shall be mailed to the Lessor(s) in care of the Superintendent of the Great Lakes Agency of the Bureau of Indian Affairs.

Section PRP.05.51 — Intervention

The Tribe or any Lessor may petition the Tribal Court to intervene in any Lease or Leasehold Mortgage foreclosure proceeding under this Ordinance. Neither the filing of a petition for intervention by the Tribe, nor the granting of such a petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribe, except as may be expressly authorized by the Tribe.

Section PRP.05.52 — Appeals

Appeals under this part shall be handled in accordance with the general tribal appellate provisions, and in accordance of 25 C.F.R. Part 2.

Section PRP.05.53 — Sample Residential Home Buyer Lease

Home ownership leases under the auspices of an applicable federal agency program or made in conjunction with a loan from a private lender shall be made substantially in this form.

LEASE OF LAND

THIS LEASE is entered into this ______ day of ____________________, ______, between the Stockbridge-Munsee Tribe ("Lessor"), with offices at P.O. Box 70, Bowler, WI 54416 and

__________________________________________________, ("Lessee(s)"), of _______________, Wisconsin, whose mailing address upon completion of improvements to be financed with the loan referred to herein will be ____________________________________

__________________________.

1. Description of Property. The Lessor hereby leases to the Lessee the following described property, located in Shawano County, State of Wisconsin:

together with all buildings and improvements thereon not already belonging to Lessee and all rights thereto appertaining.

2. Term of Lease. The term of this Lease shall be __________ years (not to exceed twenty-five years) from the date of the closing of a loan with a federal lending agency or a private lender ("Lender"), provided the date is within one year from the date of Secretarial approval of this Lease. If a loan made or guaranteed by a Lender is outstanding at the expiration of the lease term, then this Lease shall automatically be extended for a period of ___________ years (time sufficient to cover the loan period). If no such loan is outstanding at the expiration of the Lease term, then this Lease may be extended for an additional term of ______________ years, with the mutual consent of the parties. The effective beginning date of this Lease shall be noted in this Lease by attachment of a copy of the promissory note which by reference is made a part hereof. If a loan is not closed within the one year, this Lease will not take effect and will be null and void.

3. Rental Rate. The Lessee will pay annually to the Treasurer of the Stockbridge-Munsee Tribal Council an annual sum for the rent of the leased premises in the amount of $__________, said rent to be paid prior to delivery of this Lease to the said Lessee and on or before each anniversary date thereafter, unless said rent shall exceed $__________ in which case said rent shall be paid in ______ equal installments. The amount of the rent will be reviewed at five (5) year intervals by the Lessor for purposes of determining if the rent is fair, equitable and reasonable based on economic conditions of the Lessor and the Lessee. Adjustments in rent must have prior written approval of Lender. It is understood and agreed between the parties hereto that, if any installment of rental is not paid within thirty (30) days after becoming due, interest at the rate of eight (8) percent per annum will become due and will run until said rent is paid. Lessor shall provide Lessee of notice of default within the thirty (30) day period.

4. Conditions:

A. It is mutually agreed by the Lessor and the Lessee that the express purpose of this Lease is to enable the Lessee to obtain a loan from a federal agency agreed upon by the Lessee or from a private lender for renovation, new construction or purchase of a home.

B. The Lessor, in consideration of the granting of such loan by the Mortgagee to the Lessee, hereby consents thereto and grants permission to the Lessee to execute and deliver to the Mortgagee a Real Estate Mortgage covering the Lessee's leasehold interest in and to the property above described including improvements now existing thereon or which may be constructed thereon.

C. The Lessor agrees that this Lease may not be terminated for any reason without the written consent of the Mortgagee as long as any of the indebtedness secured by the mortgage remains unpaid. This provision shall apply to any attempted termination by surrender of the leasehold interest. Upon the Lessor obtaining the Mortgagee's consent or after termination of the Mortgagee's interest in the leased premises, the Lessee agrees that if the Lessee shall fail to comply with, or shall violate any of the provisions of this Lease, the Lessor or his authorized representative may declare the Lease forfeited after giving sixty (60) days written notice, and may thereupon take such action to repossess the premises and such other action as may be necessary to protect the interest of the Lessor as provided for by law, but such forfeiture shall not release the Lessee from paying all rents and other obligations contracted for or from damages for such failure or violation; PROVIDED, however, that in the event of such declared forfeiture, the Lessee's liability for rent contracted for shall extend only for the duration of that particular annual rental period for which said Lessee, pursuant to the provisions stated herein, would have paid in advance and not for the entire unexpired term of said Lease, whatever said unexpired term may be at the time of said declared forfeiture. After the termination of the Mortgagee's interest in the leased premises, this Lease may be terminated upon the failure of the Tenant to comply with any of the provisions of this Lease.

D. Lessee understands and agrees that any and all use rights heretofore held by Lessee(s) in the premises, are extinguished through the signing of this Lease and that the Lessee shall hereafter hold rights only by virtue of this Lease.

E. Upon expiration of this Lease, or upon its termination in accordance with terms hereof, unless such termination is due to default upon the part of the Lessee(s), Lessee(s) or any successors in interest shall be entitled to full enjoyment of the premises and Lessee(s) shall have the right to reassume their land assignment and all rights thereunder. If not so eligible, Lessee(s) and any successors in interest shall, upon demand, surrender to Lessor upon expiration or other termination of this Lease complete and peaceable possession of the premises and any or all improvements thereon, which shall be the property of the Tribe. Personal property shall remain the Lessee's property. Lessee hereby agrees that in the event this Lease is not renewed or extended and the land assignment is not reassumed, the Lessee shall have the right to remove the improvements placed on the leased premises with the loan obtained under section 4(a) within thirty (30) days of the said termination date. In the event the Lessee removes said improvements, Lessee shall be responsible for the costs of renovation of the premises, which renovation shall include removal of foundations, sanitary septic systems, sidewalks, fences, and the filling, leveling and seeding of the ground to restore the original condition as may be determined in writing by the Lessor as being in the best interests of the Lessor. At Lessor's option, a bond may be required to assure compliance with such restorations prior to the removal of improvements in an amount sufficient to assure such restoration.

F. The Lessee will keep the buildings, fences and other improvements on the premises in good repair and condition, excepting ordinary wear and tear, loss by fire, or unavoidable depreciation for destruction. The Lessee shall properly conceal all legal refuse areas. The Lessee shall be responsible for construction and maintaining all improvements which may be required by applicable law and Lessee shall indemnify and save harmless the Lessor against all action, claims and damages by reason of the Lessee's failure to keep and maintain said premises and the improvements thereon as provided hereinabove or by reason of Lessee's non-observance of any applicable laws, ordinances or regulations. The Lessor shall not be liable for any loss, damage or injury of any kind whatsoever to the person or property of the Lessee or sublessee or any of the Lessee's or sublessee's employees, guests, or invitees, or of any other person whatsoever, caused by any use of the leased premises, or by any defect in any building, structure, or other improvement erected thereon, or arising from any accident on said premises or any fire or other casualty thereon, or occasioned by the failure on the part of the Lessee's or sublessee's employees, guests, or invitee or arising from any other cause whatsoever; and the Lessees, as a material part of the consideration of this Lease, hereby waives, on Lessee's behalf, all claims and demands against the Lessor and agrees to indemnify and save Lessor free and harmless from liability for all claims and demands for any such loss, damage, or injury, together with all costs and expenses arising therefrom and in connection therewith.

G. If the Lessor shall sell or otherwise transfer title to the premises, he will do so subject to the provision of this Lease.

H. The terms of this Lease shall be binding upon the heirs, executors, and administrators, and successors and assigns of both Lessor and Lessee in like manner as upon the original parties.

I. The Lessor warrants that he has the right to lease the premises and will defend the Lessee's possession against any and all persons whomsoever.

J. No member of, or delegate to Congress shall be admitted to any share or part of this contract or to any benefit that may arise here from, but this provision shall not be construed to extend to this contract if made with a corporation or company for its general benefit.

K. The Lessee agrees that he will not use or cause to be used any part of said premises for any unlawful purpose.

L. The Lessee or his successors in interest shall pay, if any, if and when the same become due and payable, all taxes, general and special assessments and other like charges including any and all license fees or charges properly assessed which may be levied, assessed or imposed during the term of this Lease upon or against the leased land and all interest therein and improvements and other property thereon for which either the Lessee or Lessor may become liable in relation thereto and Lessee shall hold harmless the Lessor from any such taxes and claims, or sale or other proceedings to enforce payment thereof. Should Lessee fail to pay any such taxes, liens or claims when due, Lessor may at its option, upon written notice to Lessee, settle or discharge any such taxes, claims, etc., and demand reimbursement by the Lessee together with interest thereon at the current local commercial bank rate. Failure to make such payment within thirty (30) days of Lessor's demand shall constitute a breach of this Lease, and the Lessor may declare this Lease immediately ended with Lessee forfeiting the rent paid for that year, subject to the nontermination provision of section 4(C) and subject to the appeal procedures in 25 C.F.R. Part 2. This provision shall not prohibit Lessor from pursuing its remedies at law to recover the amount it paid. In addition to the rents, taxes and other charges herein provided, Lessee shall pay all charges for water, sewer, gas, oil, electricity, telephone and any other utility services applied for and used on said premises.

M. Merchantable timber within the leased area shall remain the property of the Lessor and there shall be no removal of any trees except with the written approval of the Lessor's Forestry Department.

N. It is understood and agreed that this lease, or any amendment thereto, or encumbrance thereunder shall be valid only after approval by the Secretary of Interior or his authorized representative, delegate or successor. Approval of this Lease will not constitute an approval of a mortgage secured in the loan from or guaranteed by Lender. Subsequent mortgages, loans, or other encumbrances require separate approval from the Secretary. No assent, express or implied, to any breach of any of the Lessee's covenants shall be deemed to be a waiver of any succeeding breach of any covenants.

O. The Lessor shall justly compensate the Lessee for any impairment of Lessee's rights under this Lease or of Lessee's unobstructed use of the leased premises resulting from any condemnation of the land subject to this Lease or from the Lessor's grant of any easement or rights-of-way concerning said land. Lessor shall not voluntarily grant any right of use to the subject premises that would materially interfere with the Lessee's rights to or use of the premises without the written permission of the Lessee and the Mortgagee, if the indebtedness remains outstanding. Unless the mortgage interest has been terminated, any payment resulting from condemnation, or the Lessor's voluntary grant, shall be made jointly payable to the Lessor and the Mortgagee.

P. The Lessee, his heirs, successors, executors, administrators and assigns, shall be required to comply with all applicable laws and regulations covering sanitation, plumbing, electrical, building, and other relevant codes. Lessee agrees to pay the prevailing fee in Shawano County for a building inspection, if required by the Lessor. Lessor may require that the inspection be done by the Shawano County Building Inspector, however Shawano County shall not have jurisdiction to enforce their codes. Lessor has primary jurisdiction for adoption and enforcing such codes. Lessor may, however, base its codes on Shawano County's codes. The Lessee shall comply with all applicable Federal and Tribal regulations regarding leasing. After the termination of the Mortgagee's interest in the leased premises; the Lessee must obtain the prior approval of the Lessor before any improvements of any kind are constructed on the leased premises.

Q. The Lessor and its authorized representatives shall have the right, at any reasonable time during the term of this Lease, to enter upon the leased premises, or any part thereof, to inspect the same and all buildings and other improvements erected and placed thereon. After the termination of the Mortgagee's interest in the leased premises, this Lease or any right to or interest in this Lease or any of the improvements on the leased premises may not be encumbered without the prior written approval of the Lessor, and no such encumbrance shall be valid without said approval. The Lessor reserves the right to require any terms and condition before any encumbrances may be made as to the leased premises as it feels will best protect the Lessor's interest in the leased premises.

R. Any notice required by or sent pursuant to any provision of this Lease shall be sufficient if it is sent by first-class certified mail. In the case of the Lessee, to the lessee's last known mailing address stated above and in the case of the Lessor to the Lessor at the Lessor's mailing address stated above. Notice to Mortgagee shall be mailed to address provided to Lessor by Mortgagee or other lender. The Lessee agrees to pay and discharge all reasonable costs, attorney's fees and expenses that shall be made and incurred by the Lessor in enforcing the covenants and agreements of this Lease.

S. While the leased premises are in trust or restricted status, all of the Lessee's obligations under this Lease, and the obligation of his sureties, are to the United States as well as to the equitable owner of the land.

T. Nothing contained in this Lease shall operate to delay or prevent a termination of Federal trust responsibilities with respect to the land by the issuance of a fee patent or otherwise during the term of the Lease; however, such termination shall not serve to abrogate the Lease. The equitable owners of the land and the Lessee and his surety or sureties shall be notified of any such change in the status of the land.

5. Sovereign Immunity. Lessor acknowledges and agrees that upon the occurrence of a breach of any of its obligations under this Lease, the Lessee and/or any Mortgagee or Lender, or its successors or assigns, may protect and enforce its rights by appropriate judicial proceedings against Lessor to be held exclusively within the courts of the Tribe. Such rights shall include, without limitation, the right to pursue any applicable Stockbridge-Munsee Tribal law to enforce the terms of this Lease. This waiver of immunity is not intended, nor shall it be construed to, by implication or otherwise, waive the immunity of the Tribe from suit in any way to any issue not directly arising under this Lease.

6. Assignment. The Lessee shall not assign the Leasehold Estate without prior written consent of the Lessor. Nothing in the Lease shall prevent the Lessee, with the Lessor's and Secretary's consent, from executing and recording a mortgage, declaration of trust and/or other security instrument as may be necessary or appropriate to obtain financing. In the event of default on any mortgage or other loan agreement by the Lessee on the Leasehold Estate, the lender may commence foreclosure proceedings by the terms of this Ordinance.

7. Right of First Refusal. Subsequent to Lessee's breach of any covenant or agreement under a mortgage or security instrument for which the Lease or any improvements on the Leasehold Estate are pledged as security, and upon the expiration of any applicable cure period provided Lessee therein, the Lessor shall have the right of first refusal to acquire the Lessee's Leasehold Estate (subject to all valid liens and encumbrances) upon either payment in full of all sums secured by the mortgage or assumption of the loan evidenced by the note and mortgage and execution of an assumption agreement acceptable in all respects to the Lender. This right of first refusal may be exercised at any time within thirty (30) days of the date of the Lender's written notice to the Lessor of the Lessee's failure to cure the default in accordance with the terms of the Lender's written notice to the Lessor of the Lessee's failure to cure the default in accordance with the terms of the Lender's acceleration notice to the Lessee under the mortgage or other security instrument requiring the Lessor to pay all sums secured by the mortgage, which notice shall be given before the Lender or successor invokes any other remedies provided under the mortgage or by law. This right of first refusal shall be exercised by notice in writing from the Lessor to the Lessee and the Lender. The Lessor's right of first refusal to acquire the Lessee's interest in the Leasehold Estate, such right of first refusal shall be subject to any right the Lessee may have under the mortgage or by law to reinstatement after the acceleration, and right to bring a court action to assert the non-existence of a default or any other defense to acceleration and sale foreclosure.

The estate acquired by the Lessor through exercise of the right of first refusal shall not merge with any other estate or title held by the Lessor as long as the Leasehold Estate and/or any improvements on the Leasehold Estate, or any interest therein, are mortgaged or otherwise pledged as security for any loan, and the Leasehold Estate shall remain subject to any valid and subsisting mortgage or other security instrument.

8. Foreclosure. In the event the Lender acquires the Leasehold Estate by foreclosure of the mortgage, declaration of trust and/or other security instrument or assignment of the Leasehold Estate in lieu of foreclosure (for which foreclosure or assignment in lieu of foreclosure shall not require approval of the Lessor or the Secretary) then:

(a) The Lender will notify the Lessor in writing of the availability of the Leasehold Estate and the Improvements for sale, the sales price and any other terms of sale;

(b) If a purchaser is found who is an enrolled member of the Tribe, the Lease will be transferred by the appropriate federal agency or private lender to the purchaser, with the written consent and approval of the Tribe.

(c) If a purchaser cannot be found, the appropriate federal agency or private lender shall be entitled to sublease the leased premises to any enrolled member of the Tribe wishing to sublease the same. The term of the initial sublease period and any succeeding periods shall not exceed one year each. A purchaser approved by the Tribe must wait, where the leased premises are sublet, until the expiration of any current sublease before occupying the premises.

IN WITNESS WHEREOF, the parties have signed and sealed the Lease on the date first above written.

STATE OF WISCONSIN )

) SS

COUNTY OF SHAWANO)

I, ____________________, Lessee(s) of the property described herein depose and say the I am leasing the land herein described above for my own use and benefit and not directly or indirectly for the benefit of any other person or corporation, that I, Lessee have no agreement, arrangement or understanding with any corporation whereby the said land or any part thereof, shall or may be used, enjoined or occupied by or for the benefit of any person or corporation other than myself.

LESSOR: LESSEE:

__________________________ _________________________________

DATE: __________________ DATE: ___________________

Subscribed and sworn before me this __________ day of _____________, 19____, the above named ___________________, to me known to be the person who signed and executed the foregoing instrument.

___________________________

Notary Public State of Wisconsin

County of Shawano

My Commission Expires:

Approved By:

____________________________ _____________________________

Stockbridge-Munsee Tribal Council Bureau of Indian Affairs

Date: _________________ Date: __________________