Title YAE — Youth And Elders

Chapter YAE.01 — Youth Code

Legislative History

1. Resolution No. 0764, adopted August 8, 1981.

2. Resolution No. 1104, adopted September 20, 1988.

3. Resolution No. 1161, adopted July 18, 1989.

Section YAE.01.01 — Council Findings

(a) Recognizing that there is no resource that is more vital to the continued existence and integrity of the Stockbridge-Munsee Community Band of Mohican Indians than its children, the Stockbridge-Munsee Tribal Council finds:

(1) That Art. VII, Sec. 1 (f) of the Stockbridge-Munsee Community Constitution and By-Laws (approved 11-18-37) which states, in part: "To promulgate and enforce ordinances, subject to the approval of the Secretary of the Interior, governing the conduct of members of the Community; ...and establishing proper agencies for law enforcement of the Community; ..." authorizes the creation of a Children's Court; and

(2) That Indian families are often broken up by the unwarranted removal of their children from them by non-tribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and

(3) That the States exercising jurisdiction over Indian child custody proceedings have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families; and

(4) That the Stockbridge-Munsee Community needs a recognized Children's Court system to insure that off-reservation courts will be willing to return children of the Tribe to the Stockbridge-Munsee Community for care and guidance; and

(5) That the children of the Stockbridge-Munsee Community must receive, preferably in their own homes, the care and guidance needed to prepare them to take their places as adult members of the Stockbridge-Munsee Community; and

(6) That the Stockbridge-Munsee Community has a direct interest in protecting Indian children who reside or are domiciled on the Stockbridge-Munsee Reservation irrespective of blood quantum; and

(7) That the Stockbridge-Munsee Community, must protect and preserve the essential tribal relations and cultural heritage of its children consistent with the best interests of the children: and

(8) That the appropriate means of addressing these concerns is through the passage of a child welfare ordinance under the title Stockbridge-Munsee Tribal Law, Youth Code.

Section YAE.01.02 — Purpose And Construction

(a) Council Declaration of Purpose: This Code shall be interpreted and understood to accomplish the following tribal objectives:

(1) To insure that the young Indian people of the Stockbridge-Munsee Community receive assistance and guidance in their own homes, whenever possible, separating the youth from his or her parent only when necessary for his or her welfare;

(2) To protect and preserve the identity and pride of the young Indian people of the Stockbridge-Munsee Community as American Indians;

(3) To provide a simple procedure for addressing and resolving conflicts involving Indian youth that is reflective of tribal traditions as well as the prevailing community standards, and which affords all affected persons a fair and impartial hearing, consistent with individual rights;

(4) To insure that off-reservation courts will be willing and able to return young people of the Tribe to the Stockbridge-Munsee Community for care and guidance;

(5) To insure the continued existence of the Tribe by protecting against the unwarranted removal of Indian children from their families;

(6) To establish a Youth Court that shall protect the child's interest by choosing a course of action that least restricts the child's freedom and best promotes the child's health, safety, welfare and tribal identity consistent with the interests of the Stockbridge-Munsee Community;

(7) In situations where it is not possible to maintain family unity, to find the next best alternative, mindful of the child's tribal heritage and cultural background, as well as other special needs;

(8) To insure the care, protection, and wholesome mental and physical development of all Indian children of the Stockbridge-Munsee Community;

(9) To respond to children's needs for care and treatment through community based programs;

(10) To provide the children with and assure the availability of preventive services, accountable case planning, and other social services designed to preserve and/or reunify families;

(11) To insure that the sovereignty of the Stockbridge-Munsee Tribe is recognized in all matters affecting the welfare of the young people of the Stockbridge-Munsee Community.

(b) Construction: This Code is exempted from the rule of strict construction. It shall be read and understood in a manner that gives full effect to the purposes for which it is enacted.

(c) Applicable Law: Whenever there is uncertainty or a question as to the interpretation of certain provisions of this Code, tribal law or custom shall be controlling and where appropriate, may be based on the written or oral testimony of a qualified elder, historian, or other representative.

(d) Crimes Committed by Juveniles: Delinquent acts committed by any Indian youth shall be disposed of as provided by Stockbridge-Munsee Tribal Law, except as otherwise may be provided.

Section YAE.01.03 — Jurisdiction

(a) Exclusive Jurisdiction: The Court shall have exclusive original jurisdiction over any proceeding concerning a youth alleged to be in need of care, termination of parental rights, adoption, paternity, or guardianship which involves:

(1) Any Indian youth who resides or is domiciled on the Stockbridge-Munsee Community Reservation;

(2) Any youth who is a member or is eligible for membership in the Stockbridge-Munsee Tribe regardless of the youth's residence or domicile; or

(3) Any Indian youth who has been placed in temporary care on the reservation or in any care facility licensed by the Tribe for placement of Indian youth.

(b) Jurisdiction Over Adults: The Court shall have jurisdiction over adults in aid of its powers under this Code, and may make such orders as are necessary for the welfare of a youth.

(c) Concurrent Jurisdiction: When state, federal or other tribal courts have jurisdiction over any of the matters provided for in this Code, the Court has concurrent jurisdiction over the same matters to an extent consistent with federal laws.

(d) Jurisdiction - Limitations: The limitations on jurisdiction in this section are not intended to reflect the Tribe's view as to the legally permissible limits of jurisdiction, but are merely designed to define tribal activity in this area in accordance with tribal Priorities and resources.

(e) Jurisdictional Agreements: The Tribe may enter into such intertribal and tribal-state agreements regarding jurisdiction over youth custody matters as it deems appropriate and necessary to protect the best interest of Stockbridge-Munsee Community youth.

Section YAE.01.04 — Transfers Of Jurisdiction And Intervention.

(a) Notice to Other Tribes of Pendency of Action: When the Court or the Indian Child Welfare Worker has reason to believe a youth, who is a party to an action under this Code, may be enrolled or may be a member or eligible for enrollment or membership in another tribe, the Indian Child Welfare Worker shall notify the other tribe of the pendency of the action.

(b) Transfer of Jurisdiction to Stockbridge-Munsee Community Youth Court: The Court may accept or decline any transfer of jurisdiction over a youth by ex parte motion, but shall allow aggrieved parties a hearing on their objections, if any.

(c) Child Protective Board Investigation and Recommendation: The Child Protective Board and the Indian Child Welfare Worker shall meet, investigate, and make recommendations to the Tribal Council on whether to accept or request a transfer of jurisdiction, or to intervene in another court's proceeding in the following cases:

(1) When the Tribe has received notice or has reason to believe that an action involving a Stockbridge-Munsee Youth is pending in another court, or

(2) When the Tribe has received a request from another jurisdiction to transfer a case from Stockbridge-Munsee Community Youth Court to the other jurisdiction.

(d) Guidelines for Transfers of Cases Involving Youths with Multi-Tribal Affiliations: In deciding whether to transfer to or accept transfer from another jurisdiction, in cases involving a youth who may be enrolled or eligible for enrollment in another tribe, the Child Protective Board and the Tribal Council shall be guided by the following considerations:

(1) The youth's length of residence on or near a tribe's territorial jurisdiction;

(2) The frequency of contacts the youth has had with a particular tribe;

(3) The youth's participation in tribal activities;

(4) Previous adjudications by the other tribe's court, if any, with respect to the Youth;

(5) Residence on a particular reservation by the youth's parent or extended family member with whom the youth has resided for a substantial Period of time;

(6) The wishes of the parent(s) and of the youth if he or she is over the age of twelve;

(7) Tribal membership of the youth's parent, guardian, or other custodian:

(8) Interest asserted by the tribe in response to notice given by the Stockbridge-Munsee Tribe;

(9) Tribal programs and resources available to meet the youth's needs and problems; and

(10) Any other factors the Child Protective Board and Tribal Council deem relevant.

(e) Tribal Council Action: The Tribal Council shall decide whether to accept, reject or modify the recommendation of the Child Protective Board.

(f) Requests for Transfer or Intervention: If the Tribal Council decides that the Tribe should intervene in another court's action or should request that jurisdiction be transferred to the Stockbridge-Munsee Community Youth Court, the Tribal Council shall request the Presenting Officer to file the appropriate petition. Upon receipt of transfer from another jurisdiction, the presenting officer shall file the appropriate action in the Youth Court.

(g) Transfer to Another Jurisdiction: If the Tribal Council decides that the Tribe should transfer the case to another jurisdiction, the Tribal Council shall request the presenting officer to file a motion in the Youth Court for an order transferring jurisdiction.

Section YAE.01.05 — Definitions

(a) Abandon: When a parent or custodian leaves a youth without provisions for care or support for a period exceeding three (3) days and the parents whereabouts cannot be ascertained, or when a parent voluntarily or pursuant to a court order relinquishes care and custody of a youth and fails to communicate with the youth other than on an incidental basis for a period exceeding one hundred eighty (180) days.

(b) Adult: Any person subject to the jurisdiction of the Stockbridge-Munsee Tribe who is either eighteen (18) years of age or older, married or otherwise emancipated.

(c) Court, Tribal Court or Youth Court: The Stockbridge-Munsee Community Court when exercising jurisdiction under this Code, unless the context clearly requires otherwise.

(d) Custodian: An adult person, other than a parent or guardian, who has been given temporary physical care, custody and control of a youth, including the duty to provide food, clothing, shelter, medical care, education, and supervision to the youth.

(e) Delinquent Act: An act committed by a youth which if committed by an adult would be designated a crime or for which a penalty is provided under tribal law.

(f) Domicile/Residence: The determination of domicile and residence shall be in accordance with tribal law and custom. In the absence of other factors clearly demonstrating an intent to establish a permanent home off the reservation, a youth's domicile/residence shall be deemed to be within the reservation.

(g) Extended Family: This term shall be defined by the law or custom of the Indian youth's tribe, or in the absence of such law or custom, shall be a person who has reached the age of eighteen (18) and who is the youth's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or step-parent.

(h) Guardian: A person other than the youth's parent who is by tribal law or custom responsible for that youth.

(i) Guardian Ad Litem: An adult appointed by the Court to represent the best interests of a youth in any proceeding to which he or she may be a party.

(j) Guardianship: Authority, including Legal Custody, transferred or assumed by Tribal Court approved agreement or Tribal Court action to make all decisions of legal import for a Youth.

(k) ICWW: Indian Child Welfare Worker.

(l) Indian Tribe: Any Indian tribe, band, nation, or other organizational group, or community of Indians traditionally recognized as an Indian tribe by the Tribal Council or recognized as eligible for services provided to Indians by the Secretary of the Interior because of their status as Indians, including any Alaska Native village as defined in Section 3(c) of the Alaska Native Claims Settlement Act as amended.

(m) Indian Youth: Means any unmarried person who is under eighteen (18) years of age and is either:

(1) enrolled in or a member of an Indian tribe or is eligible for enrollment or membership in an Indian tribe, or

(2) the biological child of an enrolled member of an Indian tribe or eligible member of an Indian tribe; or

(3) a member of an Indian tribe as documented by Tribal Resolution.

(n) Legal Custody:

(1) Authority transferred or assumed by Tribal Court approved agreement or Tribal Court action to make decisions of legal import for a minor child as to care, custody, and control of the child;

(2) Legal custody shall not include authority to place the minor child in another home or with any agency or to transfer the child's domicile;

(3) Legal custody shall not include authority to enroll a youth in another tribe if the child is presently enrolled, or eligible for enrollment, in the Stockbridge-Munsee Tribe.

(4) Legal custody shall be terminated upon Tribal Court order and the child shall immediately be given into the custody of the Court.

(o) Legal Custody (Temporary):

(1) Authority over a minor child temporarily transferred in writing by the parent(s) of the child to any adult member of the child's extended family or tribe as to care, custody, and control of the child for a period of up to, but not exceeding, 180 days; or

(2) Absent written authority of the parent(s) temporary legal custody may be given by the parent(s) to members of the child's extended family only and shall not exceed thirty (30) days in duration;

(3) Notwithstanding any written agreement, temporary legal custody shall be terminated upon demand of the parent(s) and the child shall be immediately returned to the custody of the Parent(s);

(4) Temporary legal custody shall not include authority to place the minor child in another home or with any agency or to transfer the child's domicile;

(5) Temporary legal custody may be terminated by Tribal Court order upon determination of the Court that such action is in the best interests of the child and the child shall immediately be given into the custody of the Court.

(6) Temporary legal custody shall not include authority to enroll a youth in another Tribe if the child is presently enrolled, or eligible for enrollment, in the Stockbridge-Munsee Tribe.

(p) Parent: Includes a biological or adoptive parent but does not include persons whose parental rights have been terminated, nor does it include an unwed father whose paternity has not been acknowledged or established pursuant to PART VI, PATERNITY, of this Chapter.

(q) Probable Cause/Reason to Believe: Facts which support a reasonable belief of the existence of a particular conclusion.

(r) Qualified Elder, Historian, or Other Tribal Representative: An individual who, because of his or her knowledge and experience, has been appointed by the Stockbridge-Munsee Community Tribal Council to testify as to the traditions and customs of the Stockbridge-Munsee Tribe.

(s) Reservation: Means "Indian Country" as defined in 18 U.S.C. 1151 and any lands not covered under such definition when title to such land is held by the United States in trust for the benefit of any Indian tribe or Indian individual and provided such land is subject to a restriction by the United States against alienation.

(t) Shelter Care: Means an emergency or temporary placement for youths in need of care.

(u) Stockbridge-Munsee Tribe: Means the Stockbridge-Munsee Community Band of Mohican Indians.

(v) Tribal Status: The tribe or tribes, if any, in which a youth is eligible to be enrolled or to be a member or is enrolled or is a member.

(w) Ward of the Court: Any youth appearing before the Youth Court and who is the subject of any proceeding over which the Court exercises jurisdiction.

(x) Written Authority: Written agreement, between the parent(s) and a member of the Youth's tribe as to temporary legal custody of the youth, duly notarized and approved by the Youth Court.

(y) Youth (minor):

(1) A person under the age of eighteen (18) years.

(2) A person eighteen (18) years of age or older concerning whom proceedings are commenced in Youth Court prior to his or her eighteenth (18th) birthday.

(3) A person eighteen (18) years of age through twenty (20) years of age under the continuing jurisdiction of the Youth Court.

Section YAE.01.06 — The Court.

(a) Establishment: There is hereby established for the Stockbridge Munsee Tribe a division of the Stockbridge-Munsee Community Court to be known as the Stockbridge-Munsee Community Youth Court, hereinafter Youth Court.

(b) Judges and Judicial Officers: The Youth Court shall consist of one or more judges as elected by the Stockbridge-Munsee Tribe; and other judicial officers as may be appointed by the Stockbridge-Munsee Community Tribal Council.

(c) Qualifications: The Youth Court judges' qualifications and compensation shall be the same as for judges who sit on the Stockbridge-Munsee Community Court. Any judge of the Stockbridge-Munsee Community Court may serve as a judge of the Youth Court.

(d) Disqualification: In the event that all Tribal Judge are unable to hear and determine a matter due to absence, illness, or conflict of interest, the Tribal Council shall have authority to appoint a substitute judge in accordance with the Stockbridge-Munsee Community Court Code, Chapter TCT.01, TCT.01.06(d).

(e) Powers and Duties of Youth Court Judge: In carrying out duties and powers under this Code, judges of the Youth Court shall have the same powers and duties as judges of the Stockbridge-Munsee Community Court.

(f) Authority of the Youth Court:

(1) The Court is authorized to cooperate fully with any federal, state, tribal, public, or private agency to participate in any diversion, rehabilitation or training programs and to receive grants-in-aid to carry out the purposes of this Code.

(2) The Court may utilize such social services as may be furnished by any tribal, federal, state, or private agency.

Section YAE.01.07 — Social Services Staff

(a) Social Services Staff - Defined: "Social Services Staff" means those persons employed or appointed by the Stockbridge-Munsee Tribe who are trained to deliver services in specific social areas such as, but not limited to, mental health, alcohol and drug abuse, community health, and education.

(b) Duties: The Social Services Staff upon request of the Indian Child Welfare Worker shall assist the Indian Child Welfare Worker to:

(1) Request intervention in Indian Child Welfare cases in state court;

(2) Request transfer of Indian Child Welfare cases from state court to the Youth Court;

(3) Make recommendations to be included in the Indian Child Welfare Worker's pre-dispositional and pre-termination of parental rights reports under this Code.

(4) Recommend to the Tribal Council any changes that should be made in the Youth Code.

(5) Make recommendations to the Tribal Council governing the licensing and operation of shelter care, foster care and other youth Placement facilities.

Section YAE.01.08 — Indian Child Welfare Worker.

(a) Appointment: The Tribal Council shall appoint an Indian Child Welfare Worker to carry out the duties and responsibilities set forth in this Code.

(b) Qualifications: The Indian Child Welfare Worker shall have an educational background and/or prior experience in the field of delivering social services to Indian youth.

(c) Resource Development: The Indian Child Welfare Worker shall identify and develop within the tribal community resources designed to enhance each tribal youth's potential as a responsible member of the Stockbridge-Munsee Community.

(d) Duties Not Performed: The Indian Child Welfare Worker shall not be employed as, nor perform the duties of: prosecutor, defender, presenting officer, or law enforcement official.

(e) Duties: The Indian Child Welfare Worker shall:

(1) Make investigations as provided in this Code or as directed by the Youth Court;

(2) Make reports as provided in this Code or as directed by the Youth Court;

(3) Place a youth in shelter care as provided in this Code; and

(4) Perform such duties in connection with care, custody, or transportation of youth as the Youth Court requires.

Section YAE.01.09 — Presenting Officer.

(a) The Tribal Council shall appoint, a Presenting Officer to carry out the duties and responsibilities set forth in this Code. The Chief Judge of the Stockbridge-Munsee Community Court shall annually certify to the Tribal Council the number of qualified Presenting Officers needed to carry out the purposes of this Code.

(b) The Presenting Officer's qualifications and compensation shall be the same as those of the official who acts as Prosecutor for the Stockbridge-Munsee Community Court.

(d) The Presenting Officer shall represent the people of the Stockbridge-Munsee Community in all proceedings under this Code, acting on their behalf and in their best interests.

(e) The Presenting Officer shall be empowered to establish policies and procedures necessary to carry out the duties of office, not inconsistent with Stockbridge-Munsee Community Tribal Law.

Section YAE.01.10 — Guardian Ad Litem.

(a) Appointment: The Youth Court, under any proceedings authorized by this Code, shall appoint for the purpose of that proceeding a guardian ad litem for a youth where it finds that the youth does not have a natural or adoptive parent, guardian, or custodian willing and able to exercise sound judgment as to the best interests of the youth, or upon the request of the Indian Child Welfare Worker.

(b) Qualifications: The guardian ad litem must be familiar with the rights of youth and provisions of this Code.

(1) Represent the youth's best interest in any proceeding as required by the Court; and

(2) Make recommendations to the Court on disposition.

(d) Compensation: The Youth Court, with Tribal Council approval, shall determine what compensation, if any, shall be made to the Guardian Ad Litem.

Section YAE.01.11 — Confidentiality.

(a) Hearings and Conferences: All hearings and conferences under this Code shall be closed to the public. Only the Presenting Officer, the Youth Court Judge, the Indian Child Welfare Worker, the tribal law enforcement officer(s), and the parties to the action shall be permitted at the hearings and conferences; provided that the parties may agree to allow the presence of other persons. Any person asked to testify or speak shall be permitted at the hearings and conferences but only for the limited purpose of giving testimony or presenting evidence.

(b) Records: All conference, hearing, and law enforcement records and files under this Code shall be confidential and shall not be open to inspection to any but the following, except as may be ordered by the Youth Court in the youth's best interest:

(1) The youth and his or her legal representative.

(2) The parent, guardian, or custodian.

(3) The Indian Child Welfare Worker.

(4) The Presenting Officer.

(c) A Judge of the Youth Court shall review all requests for access to closed records and in no case shall closed records be opened to others without such review and written approval of the Youth Court Judge.

(d) Law enforcement records and files under this Code concerning a youth shall be kept separate from the records and files of adults.

Section YAE.01.12 — Service.

(a) Service: Except as otherwise expressly provided in this Code, every pleading, motion, notice and similar paper which is required or permitted to be served upon a person shall be given in the following manner:

(1) By personally delivering a copy to him/her by handing it to his/her counsel or to the person to be served; or by leaving it at his/her office with a secretary or other person; or if the person to be served has no office, leaving it at his/her dwelling place or usual place of residence with some person of suitable age and discretion then residing therein; or

(2) If personal service cannot be made, then by certified mail, return receipt requested, postage prepaid, and properly addressed to the last known residence of the person to be served. Service by mail shall be made by the Court Clerk.

(3) In the event that service can not be made, or is refused, a record of attempts of service shall be made a part of the file maintained by the Court Clerk.

(4) Delivery of all documents on behalf of the Tribe will be made at the discretion of the court. Personal service off the reservation may be made by others.

(b) Designated Tribal Agent For Service Of Notice: The designated tribal agent for service of notice of proceedings pursuant to 25 C.F.R. 23.12 shall be the Court Clerk.

Section YAE.01.13 — Continuances

(a) When to Order: Except as otherwise expressly provided, the Court may continue any proceeding:

(1) Upon the motion of a party if there is a finding that good reason exists for the continuance, including time to insure proper notice or to produce material evidence or witnesses currently unavailable; or

(2) Upon the Court's own motion if it considers it to be in the best interest of the youth.

(b) Effect: A continuance suspends the time limits for the holding of hearings and the filing of documents.

Section YAE.01.14 — Contempt.

(a) Definition: Any willful disobedience or interference with any lawful order or process of the Court shall constitute contempt.

(b) Punishment: The Court may punish any person for contempt pursuant to Stockbridge-Munsee Tribal Law, Chapter TCT.01, Section TCT.01.15.

(c) Bench Warrant: A Youth Court judge may issue a warrant for a person's arrest for contempt upon failure to appear at any ordered conference or hearing either in person or by legal representative, such warrant shall be issued in accordance with Stockbridge-Munsee Tribal Law, Chapter TCT.01, Section TCT.01.16.

Section YAE.01.15 — Rights Of Parties.

(a) Rights: All parties are entitled to the following rights in all proceedings under this Code.

(1) A statement by the Youth Court to the youth and his or her parent, guardian or custodian that they have the right to have a legal representative advise and represent them, at their expense. A party may request a continuance of a proceeding in order to seek legal representation.

(2) The opportunity to subpoena witnesses.

(3) The opportunity to introduce, examine and cross-examine witnesses.

(4) The opportunity to discover, offer and inspect evidence.

(5) The opportunity to present arguments and statements.

(b) Jury Trial: There is no right to trial by jury during any proceeding under this Code.

Section YAE.01.16 — Appeal.

(a) Record: For purposes of appeal, a record of the proceedings shall be made available to the youth, his or her parent, guardian or custodian. Costs of obtaining this record shall be paid by the party seeking appeal unless waived by the court.

(b) Time Limit: Any party to a proceeding under this Code may appeal a final order or disposition of the case by filing a written notice of appeal with the Youth Court within thirty (30) days of the final order or disposition.

(c) Conduct of Proceeding: All appeals shall be conducted in accordance with Stockbridge-Munsee Tribal Law, Chapter TCT.03, except as modified in this Chapter.

Section YAE.01.17 — Full Faith And Credit.

(a) The Youth Court shall give full faith and credit to state and other tribes' custody court orders if the Court granting the order had jurisdiction over the case and the order does not violate the public policy of the Stockbridge-Munsee Tribe.

Section YAE.01.18 — Amendments; Severability And Non-Liability.

(a) Amendments: Amendments to this Code will be effective upon enactment by the Stockbridge-Munsee Community Tribal Council without further review by the Secretary of Interior.

(b) Severability and Non-Liability: If any section, provision, or portion of this Code is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this Code will not be affected thereby. The Tribe declares there is no liability on the part of the Tribe, its agencies, or employees for damages that may occur as a result of reliance upon or conformance with this Code. The Stockbridge-Munsee Tribe, by adoption of this Code, does not waive sovereign immunity in any respect.

Section YAE.01.19 — Effective Date.

This Code, duly adopted by Council Resolution #1104, September 20, 1988, shall take effect the 18th day of July, 1989.

Chapter YAE.02 — Youth In Need Of Care

Legislative History

1. Resolution No. 0764, adopted August 8, 1981.

2. Resolution No. 1104, adopted September 20, 1988.

3. Resolution No. 1161, adopted July 18, 1989.

4. Resolution No. 058-07, adopted August 21, 2007, approved by BIA April 16, 2012.

Section YAE.02.01 — Purpose

(a) The youth of the Tribe are a vital resource to the Community and are integral in the continued existence of the Tribe.

(b) It is imperative that youths and families who need Tribal services administered pursuant to this code are afforded the services and judicial services through the Tribe first, rather than by other governments.

(c) It is the intent of the Tribe to provide its youth with services through effective case planning that will result in preservation of families.

(d) It is the goal of the Tribe to reunify youths with their parents whenever possible.

(e) This ordinance shall be interpreted to compliment the federal Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. and to foster and strengthen self-determination of the Stockbridge-Munsee Community.

Section YAE.02.02 — Definitions

(a) "1856 boundary" means the two township (Bartelme and Red Springs) reservation that was established in the 1856 treaty between the United States and the Stockbridge-Munsee Indians.

(b) "Affected persons" or "affected parties" means a youth who is subject to a petition or court order under this code, the Tribe's Indian Child Welfare Department, the Tribe's ICW attorney, the youth's parents, the youth's guardian or custodian, if applicable, or any other person who may be subject to a court order related to this matter.

(d) "Custodian" means a person having care and custody of a youth under any arrangement with the youth's parent or guardian.

(e) "Direct descendant" means a person who has at least one parent (alive or deceased) that is an enrolled member of the Tribe.

(f) "Indian Child Welfare" or "ICW" means the Stockbridge-Munsee Indian Child Welfare Department, the director or his/her designee.

(g) "Law enforcement Officer" means a Stockbridge-Munsee Tribal police officer or a Shawano County police officer or a State of Wisconsin police officer.

(h) "Proceeding" or "Action" means a youth in need of care, children in need of care, or any court action that involves a youth in need of protective services.

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

(j) "Youth" or "Child" means a person who is under eighteen (18) years of age and,

(1) is a member of the Tribe or is eligible for membership of the Tribe; or,

(2) is a member of another Tribe and resides within the 1856 boundary; or,

(3) is a direct descendant of a member of the Tribe and resides within the 1856 boundary.

Section YAE.02.03 — Authority

This chapter is authorized pursuant to the Tribe's inherent authority and pursuant to Article VII, Section(1)(g) of the Tribe's Constitution.

Section YAE.02.04 — Child Protection Board

(a) The Tribal Protection Board is created to make policy recommendations to Tribal Council regarding youths in general, family issues, code amendments, and other issues related to youths that are not under the jurisdiction of another committee.

(b) The Tribal Protection Board members must have a Chapter YAE.10, Tribal Elder/Youth license.

(c) The Tribal Protection Board will make recommendations to the ICW regarding ICW investigations of Youth in Need of Care, out of home placements, intervening of cases from other courts, and, transfer of cases from other courts into Tribal Court.

(d) The Tribal Protection Board must maintain strict confidence at all times, except when working with ICW and the Tribe's ICW attorney.

(e) The Tribal Protection Board may allow parties to present testimony and evidence regarding investigations of Youth in Need of Care and out of home placements.

(f) Recommendations made to ICW must be made by motion at a duly called meeting and must be put in writing and presented to ICW.

Section YAE.02.05 — Tribal Court Jurisdiction, Continuing Jurisdiction, Conflicts In Jurisdiction

(a) The court shall exercise exclusive jurisdiction over all matters that contained in this Chapter.

(1) The court shall have jurisdiction over a youth upon a petition filed by the ICW alleging the youth is a youth in need of care because of the existence of any of the conditions enumerated in Section YAE.02.12(a)(1)(A) - (P).

(2) The court shall have jurisdiction over:

(A) the parents of the youth,

(B) adults who reside in the youth's home or who have contributed to, encouraged, or tended to cause, by act or omission, a condition of a child described in Section YAE.02.12(a)(1)(A) - (P),

(D) and other youths who may reside or have significant with the youth at the youth's residence(s).

(b) This court shall permit amendment of pleadings and other necessary actions to effect jurisdiction over the youth and conformity with this code.

(c) All hearings shall be closed to the public. If all the affected persons agree, other individuals may be permitted to observe the hearing or offer support to a party.

(d) The court may allow any party or witness to appear by telephone, so long as the person appearing by telephone is in a private "closed" environment.

(e) All proceedings shall be recorded electronically or verbatim or transcribed by a licensed court reporter.

(f) All court records under this Chapter shall remain confidential; only parties, or their legal representatives, or the guardian ad litem may have access to court records.

(g) ICW proceedings in other courts:

(1) The court may, upon petition, accept a case that was originally brought in another court. Cases not accepted by the court within thirty (30) days of the petition being filed shall be deemed a declination of the petition.

(2) If the court accepts jurisdiction of the matter, the court shall notify all parties and the other court.

(3) Dispositional orders issued by the other court prior to this court accepting jurisdiction, shall remain in effect until this court reviews the matter.

(h) The Court shall have continuing jurisdiction over a youth who is determined to be subject to this ordinance, and shall have the power to modify, extend or dismiss previous orders, or consider petitions based upon new evidence concerning the youth.

(i) Whenever an order rendered under this ordinance conflicts with a custody order, physical placement order, or other family court order rendered by any court, the order under this ordinance shall take precedence.

(j) Whenever the court orders a youth be placed outside the home, legal custody of the youth shall be retained by the parent(s) who has legal custody, unless the court specifically orders otherwise.

Section YAE.02.06 — Parties

(a) In the absence of a specific provision in this ordinance or a court order to the contrary, all affected persons shall be parties to a court proceeding under this ordinance. After termination of parental rights, no parent whose rights have been terminated shall be entitled to notice. If paternity has not been established, no notice of any further proceedings regarding the youth need to be served on putative father(s), except in exceptional cases as determined by the court.

(b) The Tribe shall be represented by the Tribe's legal staff and/or ICW.

(c) Any party may be represented by an attorney or lay advocate, at the party's expense, provided the attorney or lay advocate is admitted to practice before the court.

Section YAE.02.07 — Guardian Ad Litem

The court shall appoint a guardian ad litem for each youth that is subject to a proceeding under this code. The guardian ad litem shall be a state licensed attorney who is admitted to practice before the court, or a lay advocate who has completed guardian ad litem training and is admitted to practice before the court. Guardian ad litem fees shall be paid by the court.

Section YAE.02.08 — Records And Discovery

(a) Copies of all law enforcement reports and witness statements shall be made available to the Tribe's legal staff and the ICW upon request.

(b) All records relating to a youth which are relevant to an action, and which are in possession of the ICW, shall be open to inspection by a guardian ad litem or by party's counsel upon demand without release, unless the records are privileged, or the records contain statements given under a promise of confidentiality or contain material which is necessary to protect the interests of the child.. Notwithstanding the previous sentence, if release is required by federal law, the records shall be released.

(c) If records are not released to a requesting party, the reason shall be given to the party, who may ask the court to review the denial of the request, in which case the court may view the records in camera in order to decide whether to order the records be open to inspection.

(d) Persons entitled to inspect records may request copies at their expense.

(e) The court may require counsel or parties not to disclose material contained in the records to any other person if the court reasonably believes such disclosure would be harmful to the child.

Section YAE.02.09 — Informal Disposition

(a) Upon referral of any youth who may be a youth in need of care as defined in Section YAE.02.12(a)(1)(A) - (P) the ICW may investigate the circumstances by meeting with the child(ren), meeting with the parents or guardians, and other persons of interest, and offer voluntary services, or institute any other informal, voluntary arrangement designed to further the best interest of the child(ren). At any time the ICW deems appropriate, proceedings may be instituted under any part of this ordinance.

(b) The ICW and affected persons, including the child(ren) if twelve (12) year of age or older, may upon mutual consent, petition the court to institute peacemaking proceedings in any case where the youth could be subject to a petition for a Youth in Need of Care. At any time the ICW deems appropriate, the ICW may withdraw voluntary consent and proceedings may be instituted under any part of this ordinance.

Section YAE.02.10 — Accelerated Proceedings

Notwithstanding any provision of this ordinance, the court may accelerate or combine hearings, if it is in the best interests of the child and/or the parties voluntarily agree.

Section YAE.02.11 — Emergency Petition

(a) Each petition shall contain the following:

(1) The name of the petitioner.

(2) The name and birth date of the youth(s).

(3) The name of the parents and/or guardian and/or custodian.

(4) The address of the youth(s) and parents.

(5) The enrollment status of the youth(s) and parents.

(6) A plain and concise of the circumstances and facts, including the date(s) and location, as to why the petitioner believes the youth is a youth in need of care, including which provision(s) of Section YAE.02.12(a)(1)(A) - (P) is implicated.

(7) That the petition is for emergency custody.

(8) A certification that the child is a youth as defined in Section YAE.02.02(j).

(9) The signature of the ICW or the Tribe's attorney.

Section YAE.02.12 — Emergency Custody

(a) Taking a Youth into Custody

(1) Any law enforcement officer or the ICW may take a youth into emergency custody when the law enforcement officer or the ICW determines that it is in the best interests of the youth and the law enforcement officer or ICW reasonably believes one or more of the following circumstances exists, has existed, or is likely to exist:

(A) The youth is suffering from illness, injury, sexual abuse, or is in immediate danger from his or her surroundings and removal from these surroundings is necessary.

(B) The youth will cause injury or harm to self or another, or to the property of another, or will be subject to injury or harm by another, or another child living or staying in the same household will be or has been subject to injury or harm by another.

(C) The youth's parent, guardian, or custodian is unavailable, unwilling, or unable to provide necessary supervision or care such that child's safety or well-being, or the safety or well-being of another youth living or staying in the same household is at imminent risk.

(D) The child has habitually run away from his parents, guardians, or custodians.

(E) The child is away or be taken away so as to be unavailable for further court proceedings.

(F) Emergency custody of the child would be permitted under the law of the state where the child is physically found at the time of the institution of emergency custody procedures.

(G) The child has been abandoned.

(H) The child has suffered or is likely to suffer serious psychological/emotional or physical harm inflicted upon the minor by his or her parent, guardian or custodian by other than accidental means or which is self-inflicted and which causes or creates a substantial risk of death, disfigurement, or impairment of bodily or mental functions.

(I) For reasons other than poverty, has not been provided with adequate food, clothing, shelter, medical care, education or supervision by his or her parent, guardian or custodian necessary for the minor's health and well-being.

(J) Has a parent or guardian/custodian who requests tribal intervention and states that he or she is unable to care for, control, or provide the necessary special care or treatment for the child.

(K) Has been committing delinquent acts with parental pressure, acquiescence, guidance or approval.

(L) Has been committing delinquent acts and is under the age of twelve (12) years.

(M) Has engaged in conduct otherwise prohibited to minors and whose parent, guardian or custodian fails to correct or regulate such conduct.

(N) Is suffering emotional damage for which the parent(s) or guardian is unwilling to provide treatment, which is evidenced by one or more of the following characteristics:

(i) anxiety,

(ii) depression,

(iii) withdrawal,

(iv) outwardly aggressive behavior; or

(O) Has been placed for care or adoption in violation of the Indian Child Welfare Act of 1978.

(P) Another child who resides in the child's home, or has regular contact with the home or its residence is subject to one or more of the above conditions.

(2) Any law enforcement officer or the ICW who takes a youth into emergency custody must file an emergency petition with the court by the end of the next business day, or the youth must be returned to the family.

(3) The Tribe shall make reasonable efforts to notify all affected persons of the emergency petition and date and time of the emergency court hearing.

(4) Any person taking a youth into emergency custody shall immediately attempt to notify the ICW and parent, guardian or custodian by the most practical means, and shall continue to reasonably make such attempts until notification is made. The physical location of the child(ren) need not be disclosed to the parent, guardian or custodian if the notifying person reasonably believes that providing such information will imminently endanger the child.

(5) The agency taking a youth into emergency custody shall have the authority to make all decisions regarding the care and well-being, and placement of the youth until the youth is released from custody by order of the court.

(b) Emergency Court Hearing

(1) The court must have an emergency hearing within the next two business days to determine if the court has jurisdiction; if Tribe has made reasonable efforts to provide notice of the emergency hearing; and, whether probable cause exists to believe that the youth is in need of care.

(2) The court shall advise the child, the parents, guardian or custodians, of the allegations made, the possible consequences of the hearing, the right of counsel at a party's own expense, the right to confront and cross-examine witnesses, and the right to present evidence, including witnesses.

(3) If the court determines that the court does not have jurisdiction; the Tribe has not made reasonable efforts to notify the affected persons; or, probable cause does not exist to believe that youth is in need of care, the court shall dismiss the petition and the youth shall be returned to the parent, guardian, or custodian.

(4) If the court determines that the court has jurisdiction, the Tribe has made reasonable efforts to notify the affected persons, and probable cause exists to believe that the youth is in need of care because one or more of the conditions in Section YAE.02.12(a)(1), the court shall issue an order identifying:

(A) That the court has jurisdiction,

(B) Reasonable efforts have been made to notify the affected persons,

(D) If other Indian tribe(s) needs to be noticed,

(E) The custody of the youth(s).

(F) The physical placement of the youth(s),

(G) An appointment of a guardian ad litem,

(H) The date of the Section YAE.02.15 fact finding (to be scheduled within calendar 30 days) and the date of the Section YAE.02.16 dispositional hearing,

(I) Any other special conditions, and,

(J) The signature of the judge.

Section YAE.02.13 — Youth In Need Of Care Petition And Notice

(a) If an Emergency petition has not been filed, the ICW or Tribe's attorney may a file a petition with the court if they believe that a child is a youth in need of care.

(b) Each petition shall contain the following:

(1) The name of the petitioner.

(2) The name and birth date of the youth(s).

(3) The name of the parents and/or guardian and/or custodian.

(4) The address of the youth(s) and parents.

(5) The enrollment status of the youth(s) and parents.

(6) A plain and concise of the circumstances and facts, including the date(s) and location, as to why the petitioner believes the youth is a youth in need of care, including which provision of Section YAE.02.12(a)(1)(A) - (P) is implicated.

(7) That the petition is not for emergency custody.

(8) A certification that the child is a youth as defined in Section YAE.02.02(j).

(9) The signature of the ICW or the Tribe's attorney.

(c) Upon the filing of a petition, the court shall schedule an initial hearing within 30 days of the petition being filed

(d) The Clerk of Court shall notice all affected persons of the petition for youth in need of care, and provide notice by U.S. Mail of the date and time of the initial hearing. All affected persons appearing at the initial hearing, shall be served notice by the clerk of subsequent hearings, either orally in court on the record, of by U.S. Mail.

Section YAE.02.14 — Initial Hearing

(a) The court must determine if the court has jurisdiction; if the parties have been provided notice of the initial hearing; and, whether probable cause exists to believe that the youth is in need of care.

(1) The court shall advise the child, the parents, guardian or custodians, of the allegations made, the possible consequences of the hearing, the right of counsel at a party's own expense, the right to confront and cross-examine witnesses, and the right to present evidence, including witnesses, and the right to peacemaking.

(2) If the court determines that the court does not have jurisdiction; notice has not been made; or probable cause does not exist to believe that youth is in need of care, the court shall dismiss the petition and the youth shall be returned to the parent, guardian, or custodian.

(3) If the court determines that the court has jurisdiction, that reasonable efforts have been made to notice the affected parties, and probable cause exists to believe that the youth is in need of care because one or more of the conditions in Section YAE.02.12(a)(1)(A) - (P), the court shall issue an order identifying:

(A) That the court has jurisdiction,

(B) Reasonable efforts have been made to notify the affected persons,

(D) If other Indian tribe(s) need to be noticed,

(E) The custody of the youth(s).

(F) The physical placement of the youth(s),

(G) An appointment of a guardian ad litem,

(H) The date of the Section YAE.02.15 fact finding (to be scheduled within calendar 30 days) and the date of the Section YAE.02.16 dispositional hearing,

(I) Any other special conditions, and,

(J) The signature of the judge.

(4) Notwithstanding Section YAE.02.14(a)(3), the parties may stipulate:

(A) That the youth is in need of care;

(B) to the services and counseling to be provided;

(D) to custody and visitation of the youth;

(E) to the conditions of return;

(F) to any other special conditions;

(G) and request that the court grant an order based upon the stipulation, with a review date no longer than six (6) months from the date of entry.

Section YAE.02.15 — Fact Finding Hearing

(a) The Court must determine if there is clear and convincing evidence to support a finding that a youth is in need of care.

(b) Testimony: The Court shall hear testimony concerning the circumstances which gave rise to the petition. Before testifying at a Court hearing, every witness shall first take an oath swearing to tell the truth.

(c) Rules of Evidence - Purpose: The purpose of these rules of evidence is to ensure that the Court is able to determine the truth of a matter with a minimum of delay, confusion and uncertainty.

(d) Rules of Evidence - Reliability: The rules of evidence used in state and federal courts shall not apply to hearings before the Stockbridge-Munsee Youth Court. Where there is more than one kind of evidence about the same subject, the Court should hear the most reliable kind of evidence. In oral testimony, persons who testify from personal knowledge, such as first-hand observation of or participation in the event described, shall be preferred as witnesses to persons who have second-hand knowledge of the event.

(e) Rules of Evidence - Relevance: Evidence submitted during Court hearings must be related either to the issues before the Court or to the weight and credibility which should be given to other evidence. When questioned by the Court or another party, the party who wishes to present certain evidence shall explain why he or she thinks the evidence is relevant.

(f) Rules of Evidence - Ruling by Court: When the relevance or reliability of evidence is challenged and the Court decides whether or not to use the evidence, it shall explain the decision.

(g) Admissibility of Statements Made at the Preliminary Inquiry: All statements made at the Preliminary Inquiry are part of the court record and are admissible in the Fact Finding Hearing unless ruled to be inadmissible by the court.

(h) Questioning Witnesses - Order Called: The Court shall determine the order in which parties or their representatives shall be allowed to question witnesses. The Court shall protect the witnesses from harassment or unnecessarily repetitive questioning. The Court itself may call and question any witnesses.

(i) Questioning Witnesses - Leading Questions: When questioning a witness, the Court and parties or their representatives shall not ask questions in such a way as to suggest the answer desired unless the witness is being cross-examined or is clearly hostile to the person asking questions.

(j) Rules for Discovery: The rules for discovery shall be the same as those rules established by the Stockbridge-Munsee Community Court.

(k) If the court determines by clear and convincing evidence believe that the youth is in need of care because one or more of the conditions in Section YAE.02.12(a)(1)(A) - (P) exists, the court shall issue an order identifying:

(1) The youth is need of care,

(2) The custody of the youth(s).

(3) The physical placement of the youth(s),

(4) The date of the dispositional hearing (to be scheduled within 35 calendar days),

(5) Any other special conditions, and,

(6) The signature of the judge.

(l) Notwithstanding Section YAE.02.15(k), the parties may stipulate:

(1) That the youth is in need of care;

(2) to the services and counseling to be provided;

(3) to examinations such as behavioral, alcohol, or drugs;

(4) to custody and visitation of the youth;

(5) to the conditions of return;

(6) to any other terms or conditions;

(7) and request that the court grant an order based upon the stipulation, with a review date no longer than six (6) months from the date of entry.

Section YAE.02.16 — Disposition.

(a) Pre-dispositional Report: The Indian Child Welfare, in consultation with the Child Protective Board and (Tribal professional staff or County Social Services staff if necessary), shall prepare a written report summarizing the circumstances leading to the petition, the court's fact finding hearing, the child's personal history, the resources available that are suitable to the child and family, the recommended disposition and the rationale for the recommended disposition.

(b) Placement Recommendations: If placement with someone other than the youth's parent, guardian or custodian is recommended by the ICW, the report shall contain specific reasons for not recommending placement of the youth with his/her parent, guardian or custodian.

(c) Pre-dispositional Report - Service: The ICW shall file with the court and mail the Pre-dispositional to all affected parties and the guardian ad litem, at least five (5) business days before the dispositional hearing.

(d) Additional Reports: Any affected party may file a Pre-dispositional report with the court and the party must mail or otherwise serve the report to the other affected parties.

(e) Dispositional Hearing - Time: If the dispositional hearing is separate from the Fact Finding Hearing, it shall take place within 35 calendar days of the Fact Finding Hearing.

(f) Conduct of Dispositional Hearing: If disputed, the court may hear testimony to determine the proper disposition for the youth. All parties shall be given the opportunity to contest the factual contents and conclusions of Pre-dispositional , but not the merits or procedure of the fact-finding hearing.

(g) In considering the appropriate disposition, the court may consider any or all of the following factors:

(1) Special physical, intellectual, or emotional needs of the youth.

(2) Social, cultural or religious traditions of the youth, the youth's family, or the Tribe.

(3) Availability of resources, not limited to financial resources, within the youth's extended family.

(4) The youth's preference, if the child is 12 years old or older.

(5) The recommendation of the ICW, the guardian ad litem, professionals, or any other affected person.

(6) Other factors related to meet the best interests of the youth.

(h) Dispositional Alternatives for Youths in Need of Care: If a youth has been determined to be in need of care, the Court may take any of the following dispositions which are listed by priority:

(1) Permit the youth to remain with his or her parent, guardian or custodian, subject to any such limitations and conditions the court may order;

(2) Place the youth with an extended family member subject to any limitations and conditions the court may prescribe;

(3) Place the youth in a foster home which has been licensed or approved by the Tribe, subject to any limitations and conditions the court may order;

(4) Place the youth in a professional care facility approved by the Tribe;

(5) Transfer legal custody to an agency responsible for youths in need of care, qualified to receive and care for the youth; and/or,

(6) Recommend that parental termination proceedings begin.

(i) Other Services: The court may also order:

(1) That the youth and/or family member submit in drug counseling or alcohol testing.

(2) That the youth and/or family member(s) be subject to random drug tests.

(3) That the youth and/or family member(s) participate in specified counseling, treatment, or educational programs.

(4) Out-patient or in-patient alcohol, drug, or mental health treatment for specified purposes for a specified period of time.

(5) Appropriate releases of information for the court and/or ICW.

(6) Who is financially responsible for the costs of treatment or counseling.

(7) Restitution for the acts of the youth, if the youth has caused damage to property, injury to a person, or if the acts have cost the Tribe financially.

(8) Appoint a guardian for the youth.

(9) Transfer jurisdiction to another Indian tribe upon a showing that the youth is eligible for membership in that Tribe, and a petition has been filed requesting transfer, or upon a showing that the youth is subject to a proceeding in another court, provided that the judges discuss appropriate jurisdiction via the Tribal court established Teague protocol.

(10) Visitation by parties or extended family members as appropriate.

(11) Any other disposition calculated to provide for physical, mental, emotional, or developmental needs of the youth.

(j) Dispositional Order Is Final: The dispositional order constitutes a final order for purposes of appeal.

Section YAE.02.17 — Review And Modification Of Dispositional Order.

(a) Review and Modification: Dispositional orders are to be reviewed by the Court at least every six (6) months. A dispositional order may be modified upon a finding of a good to modify.

(b) Motion to Modify: The Court shall review a dispositional order at any time upon a motion to modify by the following:

(1) The youth;

(2) The youth's parent, guardian or custodian;

(3) The ICW; or,

(4) The Tribe's attorney.

(c) Review Hearing: The Court shall conduct a hearing to review its dispositional order at least once every six months, or earlier upon motion of any party. The Court shall review the performance of the youth, the youth's parent, guardian, or custodian, the Indian Child Welfare Worker, and any other parties to the disposition.

(d) Standard for Modification: If the request for review of a disposition is based on the alleged violation of a Court order, the Court shall not modify its dispositional order unless it finds clear convincing evidence of the violation.

Section YAE.02.18 — Enforcement

The court may find a person in contempt of court and/or order fines be paid in accordance with the Stockbridge-Munsee Rules of Civil Procedure.

Section YAE.02.19 — Effective Date

This ordinance is effective after Tribal Council approval by resolution and approval from the Bureau of Indian Affairs. This ordinance repeals the existing Chapter YAE.02, Youth in Need of Care. If there are any active ICW cases in Tribal Court on the effective date, those cases shall remain under the terms of the repealed Chapter YAE.02, Youth in Need of Care.

Section YAE.02.20 — Severability

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

Chapter YAE.03 — Guardianship

Legislative History

1. Resolution No. 0764, adopted August 8, 1981.

2. Resolution No. 1104, adopted September 20, 1988.

3. Resolution No. 1161, adopted July 18, 1989.

4. Resolution No. 01-08, adopted October 2, 2007, approved by BIA April 16, 2012.

Section YAE.03.01 — Starting An Action To Appoint Guardian

(a) Petition - Who May File: Any person at least eighteen (18) years old may file a petition with the Tribal Court requesting that he or she be appointed as a guardian over a proposed ward. If the petitioner is married: his or her spouse must also be at least eighteen (18) years old and must sign the petition unless the spouse's whereabouts is unknown or unless this requirement is waived by the Court.

(b) Petition - Contents: A petition for appointment of guardian shall include:

(1) The name, birth date, residence, and tribal status of the proposed ward;

(2) The name, birth date, residence, and tribal status, if known, of the proposed ward's family and in the case of a youth (person under age 18), the youth's parent(s); and,

(3) A concise statement of the facts and reasons supporting the request that the petitioner be appointed as a guardian.

Section YAE.03.02 — Guardianship Hearing.

(a) Setting the Hearing: When the Court receives the petition it shall set a hearing date, which shall not be more than thirty-five (35) calendar days after the Court receives the petition.

(b) Notice of Hearing: Notice of hearing shall be served on all parties in the manner specified under Section YAE.01.12 of Chapter YAE.01. Notice shall be served at least twenty (20) days prior to the date of the hearing. The notice shall include: the name of the court; the date of the hearing; the time and place of the hearing; the purpose of the hearing; and a copy of the petition. Notice shall be served on:

(1) The proposed ward;

(2) The youth's parent(s), if the proposed ward is under 18 years of age;

(3) The Presenting Officer or Tribe's Legal Office, if the proposed ward is under 18 years of age;

(4) Any person the Court deems necessary for proper adjudication; and

(5) Any person the parties believe necessary for the hearing.

(1) Proposed ward over 18 years of age:

(A) The Tribal Court shall appoint or approve a guardian ad litem. The guardian ad litem shall prepare a report regarding the proposed guardianship, and serve the report to the Court and to all interested parties 5 calendar days prior to the hearing. The guardian ad litem shall consult with the petitioner, other family members as appropriate, health and social service personnel who have had prior professional contacts with the proposed ward to determine whether appointment of a guardian would be in the best interests of the proposed ward. The guardianship report shall be in writing and contain the professional opinions of all personnel consulted.

(B) The Court may alternatively use the services of a licensed social worker to perform the duties of the guardian ad litem.

(2) Proposed ward under 18 years of age.

(A) The Indian Child Welfare Worker shall prepare a guardianship report. The Indian Child Welfare Worker shall serve the report to the Court and to all interested parties 5 calendar days prior to the hearing. In preparing the report, the Indian Child Welfare Worker shall conduct a complete home study and shall consult with the youth's parent(s), all health, education and social service personnel who have had prior professional contacts with the youth, and with the petitioner(s) to determine whether appointment of a guardian would be in the best interests of the youth. The Indian Child Welfare Worker may also review the child's previous court record, if any. In addition, the Indian Child Welfare Worker must obtain the recommendation, if any, of the Stockbridge-Munsee Community Tribal Council as to the disposition and any other relevant issues. The guardianship report shall be in writing and contain the professional opinions of all personnel consulted.

(B) The Court may alternatively use the services of a licensed social worker to perform the duties of the Indian Child Welfare worker.

(d) Additional Reports: Any party may file a report which shall include his or her recommendations for consideration by the Court.

(e) Guardianship Hearing - Purpose: The Court shall conduct the hearing to determine whether appointment of a guardian is in the best interest of the proposed youth.

(f) Guardianship Hearing - Conduct: In the cases of the proposed ward being under the age of 18 years old, the hearing shall be private and closed. The following procedural rules apply, Section YAE.02.08, (F)-(O) of Chapter YAE.02.

(1) Testimony and evidence shall be presented to determine whether guardianship is in the best interest of the proposed youth. The Court shall consider all guardianship reports submitted for review.

(2) All parties shall be given the opportunity to contest the factual contents and conclusions of the guardianship reports and other medical reports.

Section YAE.03.03 — Grounds For Appointing A Guardian And Burden Of Proof.

(a) The Court may appoint a guardian when the parent has consented in writing to the guardianship, if the proposed youth is under 18 years of age.

(b) Alternatively, if there is no consent the Court must find all the following conditions have been proved by clear and convincing evidence if the proposed youth is under 18 years of age:

(1) That appointment of a guardian is in the best interest of the youth; and

(2) The youth's best interests would not be served if the youth does not have a guardian; and

(3) That the petitioner(s) can provide appropriate and adequate parental care for the youth's financial and emotional support.

(c) If the proposed ward is over 18 years of age, the Court must find by clear and convincing evidence that the proposed ward is legally incompetent and is unable to manage his or her affairs.

(1) The Court shall consider the medical reports and reports and the guardian ad litem and any other relevant evidence, including substantiated findings of elder abuse as provided for in Chapter YAE.11.

Section YAE.03.04 — Placement Preference.

The order of preference in placing a youth with a guardian is:

(a) Extended family member;

(b) A member of or person eligible for enrollment in the Stockbridge-Munsee Tribe;

(d) If this order of placement preference cannot be met, for good cause shown, then placement may be made with any person who has knowledge of and a desire to foster the youth's tribal affiliation and special needs.

Section YAE.03.05 — Enrollment Prior To Appointment Of Guardian.

If a youth is eligible for enrollment in the Stockbridge-Munsee Tribe, the Indian Child Welfare Worker may assist the parent in making application for enrollment of the youth to the Stockbridge-Munsee Community Tribal Enrollment Clerk.

Section YAE.03.06 — Order Of Appointment - Powers Of Guardian.

(a) If the Court orders the appointment of a guardian, the order may define or limit the guardian's power. If the order does not define or limit the power of the guardian, the guardian has all the rights and responsibilities of a ward except:

(1) The power to enroll ward in a tribe other than the Stockbridge-Munsee Tribe if the ward is enrolled or eligible for enrollment in the Stockbridge-Munsee Tribe;

(2) The guardian shall not move outside a fifty mile radius of the Stockbridge-Munsee Community without tribal court approval upon notice and hearing;

(3) Authority to place a ward in another home or with any agency, or to transfer the ward's domicile without court approval;

(4) The guardian may not consent to any adoption of the child, if the ward is under 18 years of age.

Section YAE.03.07 — Visitation.

The Court may order visitation between the ward and parent(s) or any other person if the Court finds such visitation is in the best interest of the ward..

Section YAE.03.08 — Court Review.

Unless otherwise ordered by the Court, the guardianship shall not be subject to continuing supervision. Unless otherwise ordered by the Court, the guardianship shall be subject to Court review every 12 months.

Section YAE.03.09 — Severability

In the event that any provision of this ordinance is ruled illegal by a court of competent jurisdiction, the remaining provisions of this ordinance shall remain unaffected.

Chapter YAE.04 — Termination Of Parental Rights

Legislative History

1. Resolution No. 0764, adopted August 8, 1981.

2. Resolution No. 1104, adopted September 20, 1988.

3. Resolution No. 1161, adopted July 18, 1989.

Section YAE.04.01 — Starting An Action For Termination Of Parental Rights.

(a) Petition: A proceeding to terminate parental rights shall be initiated by filing a petition with the Court. The petition shall include:

(1) The name, birth date, residence, and tribal status of the youth who is the subject of the petition;

(2) The name, birth date, residence, and tribal status, if known, of the Youth's parent(s), guardian or custodian;

(3) If the youth is residing with someone other than a parent, the location and length at that location; and

(4) A concise statement of the facts and reasons supporting request that parental rights be terminated.

(b) Setting the Hearing: When the Court receives the petition, it shall set a date for the termination hearing, which shall not be more than sixty (60) days after the Court receives the petition.

(c) Notice of Hearing: Notice of hearing shall be served on all parties in the manner specified under Section YAE.01.12 of Chapter YAE.01. Service shall be executed by tribal law enforcement, the court clerk or other person designated to perform this duty. Notice shall be served at least twenty (20) days prior to the date of the hearing. The notice shall include: the name of the court; the date of the hearing; the time and place of the hearing; the purpose of the hearing; and a copy of the petition. Notice shall be served on:

(1) The youth;

(2) The youth's parent(s), guardian or custodian;

(3) Any person the Court deems necessary for proper adjudication; and

(4) Any person the parties believe necessary for the hearing.

(d) Pre-termination Report - Preparation: The Indian Child Welfare Worker, in consultation with the Social Services Staff and/or Child Protective Board, shall prepare a pre-termination report. In preparing the report the Indian Child Welfare Worker shall consult with the Youth╒s parents, guardian, or custodian and all social services, health, law enforcement and education personnel who have had prior professional contacts with the youth and his or her parent(s), guardian or custodian to determine whether termination of parental rights would be in the best interest of the youth. The Indian Child Welfare Worker may also review any pertinent court record. In addition, the Indian Child Welfare Worker must obtain from the Stockbridge-Munsee Tribal Council any recommendation it may have as to disposition and any other relevant issues. The pre-termination report shall be in writing and contain the professional opinion of all personnel consulted.

(e) Pre-termination Report - Service: The Indian Child Welfare Worker shall mail the pre-termination report to the Court and all parties to the proceeding, at least ten (10) days before the hearing.

(f) Additional Reports: Any party may file a pre-termination report which shall include his or her recommendations for consideration by the Court.

(g) Termination Hearing - Purpose: The Court shall conduct the termination hearing to determine whether termination of parental rights is in the best interest of the youth.

(h) Termination Hearing - Conduct: The hearing shall be private and closed. The following procedural rules apply, Subsections YAE.02.16(f) - (j) of Chapter YAE.02.

(1) The Court shall hear testimony to determine whether termination of parental rights is in the best interest of the youth. The Court shall consider all pre-termination reports submitted for review.

(2) All parties shall be given the opportunity to contest the factual contents and conclusions of the pre-termination reports.

Section YAE.04.02 — Grounds For Termination And Burden Of Proof.

(a) The Court may terminate a person's parental rights only when the following conditions have been proved beyond a reasonable doubt:

(1) That termination of parental rights is in the best interest of the youth; and

(2) That guardianship, rather than termination of parental rights, is not in the youth's best interest; and

(3) That an appropriate adoptive home is available and that adoption proceedings have been filed in conjunction with the termination proceedings.

(b) In addition, the Court must find by proof beyond a reasonable doubt that:

(1) the parent has consented to the termination of his or her parental rights under the terms of Section YAE.04.03, or

(2) That the parent is responsible for abuse of the youth as defined in Section YAE.04.04.

Section YAE.04.03 — Consent.

(a) Consent of the parent to terminate parental rights is not valid unless:

(1) It is in writing;

(2) The parent has received counseling from the Stockbridge Munsee Community Social Services Staff on alternatives to termination such as guardianship, parental support services, and so on;

(3) The parent orally explains his understanding of the meaning of termination of parental rights and its consequences to the Youth Court judge and the judge certifies that the terms and consequences of the consent were fully explained and were fully understood by the parent; and

(4) The consent was given no sooner than thirty (30) days after the birth of the youth.

(b) Any consent may be withdrawn prior to the entry of a final decree of adoption and, if no other grounds exist for terminating parental rights, the child shall be returned to the parent.

Section YAE.04.04 — Abuse - Defined.

Abuse as a condition of termination of parental rights means: conduct resulting or likely to result in serious psychological/emotional or physical harm to a child including sexual abuse or exploitation when such conduct is engaged in or permitted by a person having care or custodial authority over such child.

Section YAE.04.05 — Disposition.

If parental rights are terminated, adoption procedures shall proceed. If parental rights are not terminated but sufficient grounds for finding the youth is in need of care have been proved to the Court, the Court may make a disposition consistent with the Youth in Need of Care provisions of this Code.

Section YAE.04.06 — Enrollment Prior To Entry Of Termination Order.

If a youth is eligible for enrollment in the Stockbridge-Munsee Tribe, the Indian Child Welfare Worker shall submit an application for enrollment of the youth to the Stockbridge-Munsee Community tribal enrollment clerk prior to any final order terminating parental rights.

Chapter YAE.05 — Adoption

Legislative History

1. Resolution No. 0764, adopted August 8, 1981.

2. Resolution No. 1104, adopted September 20, 1988.

3. Resolution No. 1161, adopted July 18, 1989.

Section YAE.05.01 — Adoption - General Provisions.

(a) Petition - Who May File: Any person eighteen (18) years or older wishing to adopt a youth may file a petition with the Youth Court requesting that he or she be appointed as an adoptive parent. If the petitioner is married: his or her spouse must also be at least eighteen (18) years old and must sign the petition unless the spouse's whereabouts is unknown or unless this requirement is waived by the Court. "Spouse" for purposes here includes parties to a marriage recognized under tribal custom or parties to a relationship wherein the couple has resided together for seven (7) years or more and intend to reside together as a family.

(b) Petition - Contents: The adoption petition shall include:

(1) The name, date of birth, residence and tribal status of the Youth;

(2) The full name to be given to the child to be adopted;

(3) The name, age, place and duration of residence and the tribal status of the petitioner(s);

(4) The relation, if any, of the petitioner(s) to the youth;

(5) The names and addresses, if known, of all persons whose consent is required; and proof of consent, if given;

(6) A description of any previous civil proceedings involving the care or custody of the youth to be adopted and the results of these proceedings;

(7) The reasons the petitioner(s) desire(s) to adopt the youth.

Section YAE.05.02 — Availability For Adoption.

A youth may be adopted only if he has no parents by reason of death or by the voluntary or involuntary termination of the parent-child relationship. The Court may conduct a hearing as provided under Chapter YAE.04, Termination of Parental Rights, prior to or in consolidation with an adoption hearing.

Section YAE.05.03 — Adoption Hearing.

(a) Setting the Hearing: When the Court receives the petition for adoption, it shall set a date for the adoption hearing, which shall not be more than sixty (60) days after the Court receives the petition, unless extended for good cause shown.

(b) Notice of Hearing: Notice of hearing shall be served on all parties in the manner specified under Subsections YAE.02.16(f) - (j) of Chapter YAE.02. Service shall be executed by tribal law enforcement, the court clerk or other person designated to perform this duty. Notice shall be served at least twenty (20) days prior to the date of the hearing. The notice shall include: the name of the court; the date of the hearing; the time and place of the hearing; the purpose of the hearing; and a copy of the petition. Notice shall be served on:

(1) The petitioner(s);

(2) The youth;

(3) The youth's parent(s), guardian or custodian;

(4) The Presenting Officer;

(5) Any person the Court deems necessary for proper adjudication; and

(6) Any person the parties believe necessary for the hearing.

(c) Pre-Adoption Report: The Indian Child Welfare Worker, in consultation with the Social Services Staff, shall prepare a pre-adoption report. In preparing the report, the Indian Child Welfare Worker shall conduct a complete home study including all information reasonably available concerning:

(1) The physical and mental condition of the youth, the petitioner(s) and the petitioner(s)' family;

(2) The parent(s) of the youth;

(3) The home environment, family life, health facilities and resources of the petitioner(s);

(4) The youth's cultural heritage and tribal status;

(5) The marital status of the petitioner(s), if married, and divorce, if any. The names and ages of other children, both natural and adopted, of the petitioner(s);

(6) The recommendation, if any, of the Stockbridge-Munsee Community Tribal Council regarding the adoption; and

(7) Any other facts and circumstances relating to the propriety and advisability of the adoption as may be required by the Court.

When the petitioner(s) is a member of the youth's extended family, the Court, in its discretion, may waive the formal written requirements for the pre-adoptive report and require only such oral information from the Indian Child Welfare Worker and Social Services Staff as the Court deems necessary.

(d) Pre-Adoption Report - Service: The Indian Child Welfare Worker shall mail the pre-adoption report to the Court and all parties to the proceedings at least ten (10) days before the hearing.

(e) Additional Reports: Any party may file a report which shall include his or her recommendations for consideration by the Court.

(f) Adoption Hearing - Purpose: The Court shall conduct the adoption hearing to determine whether adoption is in the best interest of the youth.

(g) Adoption Hearing - Conduct: The hearing shall be private and closed. The following procedural rules apply, Section 8.8 (F)-(O) of Chapter YAE.02.

Section YAE.05.04 — Grounds For Entering Decree Of Adoption.

The Court may enter a decree of adoption if it finds that all necessary procedures have been followed, and that it would be in the best interest of the youth.

Section YAE.05.05 — Denial Of Adoption Petition.

If the adoption petition is denied, the Court shall specifically state the reasons for the denial and shall designate who shall have custody of the youth.

Section YAE.05.06 — Decree Of Adoption.

(a) If the Court grants the petition for adoption, the decree shall include:

(1) Such facts as are necessary to establish the youth is available for adoption, and that the adoptive home and parents are adequate and capable of providing proper care of the youth:

(2) A provision that the Bureau of Vital Statistics of the state where the child was born and the Bureau of Indian Affairs shall be notified of the adoption and a certified copy of the decree shall be mailed to those offices, and

(3) A provision changing the legal name of the person adopted may be included.

(b) Effect of Decree of Adoption: A decree of adoption has the following effect: It creates the relationship between the adopted person and the petitioner and all relatives of the petitioner, that would have existed if the adopted person were a legitimate blood descendant of the petitioner. This relationship shall be created for all purposes, including inheritance and applicability of statutes, documents, and instruments, whether executed before or after entry of the adoption decree.

Section YAE.05.07 — Adoption Records.

All records, reports, proceedings, and orders in adoption cases are confidential and shall not be available for release or inspection. Information contained in such records may be released upon petition to the Youth Court by the adopted person after reaching legal majority. However, information may be released as necessary to amend the child's birth certificate.

Chapter YAE.06 — Paternity

Legislative History

1. Resolution No. 0764, adopted August 8, 1981.

2. Resolution No. 1104, adopted September 20, 1988.

3. Resolution No. 1161, adopted July 18, 1989.

4. Resolution No. 08-2000, adopted March 21, 2000, approved by BIA March 31, 2000.

5. Resolution No. 0002-13, adopted October 2, 2012.

Section YAE.06.01 — Purpose

This law is intended to be construed and applied liberally to assist the Tribe, mothers and potential fathers in determining the paternity of all children subject to the Tribe's jurisdiction and the corresponding rights and responsibilities that a parent has to a child.

Section YAE.06.02 — Definitions

(a) "Acknowledgment of Paternity" means the putative father of a child born out of wedlock may assume parental responsibility for the child and recognized such child as his biological child heir and offspring by executing a formal acknowledgment of paternity. The acknowledgement shall also be signed by the mother of the child.

(b) "Child" means the natural or adopted child under the age of eighteen (18) years old.

(d) "Court Order" means a Tribal Court Order or a valid Court Order of a competent jurisdiction.

(e) "Custody" means the biological mother of a child born out wedlock has all the rights and responsibilities consistent with the rights and responsibilities of a parent of a biological child except where the court grants legal custody to another person or transfers legal custody to an agency.

(f) "Custodial Party" means an adult, other than the parent or guardian, who has been given temporary physical care, custody and control of a child, including the duty to provide food, clothing, shelter, medical care, education and supervision of the child.

(g) "Guardian" means a person other than the child's parent who is by tribal law or custom responsible for that child.

(h) "Judge" means a Stockbridge-Munsee Community Judge.

(i) "Jurisdiction" means the Stockbridge-Munsee Tribal Court shall have jurisdiction in paternity matters when one or more of the following applies:

(1) One or more parties or the child is an enrolled member of the Stockbridge-Munsee Community, Band of Mohican Indians;

(2) One or more of the parties or the child resides or is domiciled within Stockbridge-Munsee Community.

(A) This Ordinance shall apply to all lands which for purposes of enforcement of this Ordinance includes proclaimed reservation lands and tribal trust lands as well as individual trust lands under the jurisdiction of the Stockbridge-Munsee Community.

(B) This Ordinance shall also apply in relation to lands that the Tribe owns in fee simple.

(3) One or more of the parties has submitted to the jurisdiction of the Tribal Court by filing an answer, counter-claim or appearance in Tribal Court.

(j) "Parent" means the biological or adopted person of a minor child.

(k) "Tribal Child Support Agency" means the Stockbridge-Munsee Tribal Child Support Agency. (See also, YAE.09.04(aa))

(l) "Tribal Member" means enrolled member of the Stockbridge-Munsee Community, Band of Mohican Indians.

Section YAE.06.03 — Petition To Determine Paternity.

(a) Who May File: Any interested party, including the biological mother, the putative father, the child's legal guardian and the Tribal Child Support Agency or Indian Child Welfare may petition the court for the determination of the paternity of a child.

(b) Petition Contents: The petition shall be entitled; "In the matter of the paternity of (child's name)" and shall contain the following information.

(1) The name, birth date, and residence of the child. If there is evidence that the child or the parties may be in danger of physical or emotional harm by the disclosure of the address, this shall be redacted.

(2) Information showing that the child is a tribal child, or a descendant of a Tribal member.

(3) The name and address of the biological mother.

(4) The name and address of the putative father.

(5) The name, address and relationship to the child of all the other interested parties.

(6) A statement from the moving party setting forth the reasonable possibility of the requisite sexual contact between the parties.

(7) The petitioner's interest in the matter.

(c) Notice of Hearing: The Court Clerk shall cause the summons and a copy of the petition to be served personally or by registered mail upon all interested parties pursuant to established court procedures for service. Service shall also be made on the Tribal Child Support Agency or Indian Child Welfare if they hold an interest in the action by ordinary mail. Proof of service shall be filed with the court on a form provided for that purpose by the Office of the Court Clerk. Service shall be made at least ten (10) days prior to the initial hearing.

(d) A petition for determination of paternity must be filed within eighteen (18) years after the child's birth.

Section YAE.06.04 — Initial Hearing.

At the initial hearing the court shall determine whether any interested party wishes to contest the petition. Before doing so, the court shall inform the parties of the following:

(a) The nature and possible consequences of the proceeding.

(b) The right to confront and cross-examine witnesses.

(d) The right to request genetic tests.

(e) That the party contesting the petition has the defenses that the putative father was sterile or impotent at the time of conception or did not have sexual intercourse with the mother during the period six (6) to ten (10) months prior to the birth of the child.

Section YAE.06.05 — Genetic Tests.

(a) Should the Respondent fail appear at the initial hearing and the Petitioner provides credible evidence that there was requisite sexual contact during the conceptive period, the Tribal Court shall order genetic testing be conducted. A copy of the Order for Genetic Testing shall be sent to the Petitioner and Respondent by the Tribal Clerk of Court. The Order shall indicate the date, time and place that the parties must appear at to provide a genetic testing sample.

(b) The Court may upon its own discretion and shall upon request of any party or the Tribal Child Support Agency, require the child, putative father, mother, or direct descendant of the mother or putative father if one of the parties is deceased, to submit to genetic tests.

(c) Genetic tests shall be performed by a person certified to collect genetic samples and be analyzed by an accredited genetic testing laboratory.

(d) The Court may order such tests by additional experts at the request and expense of a party as the Court deems necessary.

(e) If genetic tests show that the punitive father is the biological father by a percentage of 96.1% or higher, paternity is presumed and he shall be adjudicated the legal father at the final paternity hearing.

(f) Whenever the results of the genetic tests exclude the putative father as the biological father of the child, this evidence shall be conclusive evidence of non paternity and the Court shall dismiss the action.

(g) If any party refuses to submit to the genetic tests this fact shall be taken into account as evidence and, a default judgment may be entered by the Court and such refusal shall be deemed in Contempt of the Court in accordance with Section TCT.01.13 and Section TCT.02.16.

(h) If the action was brought by the child's biological mother but she refuses to submit herself or the child to the genetic tests, the action shall be dismissed.

Section YAE.06.06 — Paternity Hearing.

If the matter remains contested following the genetic test, and the percentage of probability is 96.0% or lower, the Court shall expeditiously and fairly conduct a hearing to determine paternity. The hearing may be conducted in an informal manner, but the decision shall be based solely upon the evidence produced at the hearing. The hearing shall be closed to the public, and the proceedings shall remain confidential except upon order of the Court for good cause shown.

Section YAE.06.07 — Special Circumstances

There are special circumstances in which the establishment of paternity may not be in the best interests of the child. They include:

(a) If the child subject to the action was conceived as a result of rape or incest and the mother has requested that paternity establishment not move forward, then the Tribal Court will dismiss the paternity action.

(b) If there is a pending adoption of the child and the establishment of paternity is not in the best interests of the child, then the Tribal Court will dismiss the paternity action.

Section YAE.06.08 — Judgment.

(a) If the paternity of the putative father is established at the hearing by the preponderance of evidence, a judgment establishing paternity and declaring the putative father to be the biological father shall be entered. If paternity is not so established, the petition shall be dismissed.

(b) If paternity is established, the judgment may make provision for custody and visitation pursuant to Section DMR.02.08 as if the parents had been married.

(c) If paternity is established, the judgment may make provisions for child support and medical support pursuant to Chapter YAE.09 Child Support Order if requested by either parent or if the custodial parent and/or child is receiving IV-A or IV-E benefits.

(d) One or both parties shall be ordered to repay the costs of genetic tests, unless one or more of the parties have income that falls 175% or more below federal poverty levels.

(e) Establishment of paternity shall have no effect on enrollment with the Stockbridge-Munsee Tribal Community, Band of Mohican Indians, but may be utilized by a party when making application for enrollment.

Section YAE.06.09 — Effect Of Marriage By Biological Mother And Putative Father.

In any case where the alleged father and biological mother of any child born out of wedlock shall lawfully marry, such child shall be considered the biological child of the mother and father, unless the parental rights of either parent were terminated prior to the marriage. This presumption will only be effective if the parties complete and file with the WI Department of Vital Records an Acknowledgment of Marital Child and the husband's name is added to the official birth record. If the birth record does not contain the name of the father, a paternity action may be brought forward to the Tribal Court.

Chapter YAE.07 — Juvenile Delinquency, Curfew, And Hitchhiking

Legislative History

1. Resolution No. 034-96, adopted May 28, 1996.

Section YAE.07.01 — Purpose

This ordinance regarding curfew and hitch-hiking is enacted in an effort to create an atmosphere on the Stockbridge-Munsee Reservation which is free from gangs or gang-related activity.

Section YAE.07.02 — Interpretation

This ordinance shall be deemed as 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 morals. All provisions of this ordinance shall be liberally construed for the accomplishment of these purposes.

Section YAE.07.03 — Definitions.

(a) "Child" shall mean any person who has not yet attained his or her eighteenth (18th) birthday.

(b) "Going home" means traveling towards one's permanent residence with the intent of remaining at the residence.

(c) "Hitchhiking" means attempting to solicit or soliciting free travel, or travel for a nominal price, from passing vehicles.

(d) "Loiter" means to remain in an area for no apparent or obvious reason.

Section YAE.07.04 — Curfew.

(a) No child shall loiter, idle or remain in or upon any road, street, trail or public place within the exterior boundaries of the Stockbridge-Munsee Reservation between 9:00 p.m. and 6:00 a.m.

(b) No parent or guardian shall knowingly permit his or her child or ward of such as indicated above to loiter, idle or remain in or upon any road, street, trail or public place within the hours stated herein, unless such child is accompanied by a parent, guardian or some person of lawful age having legal custody or lawful temporary physical custody of such child, or unless any such child is going home from school activities, church programs, or approved organizational activities, or unless his or her employment makes it necessary for him or her to be upon said roads, streets, trails or public places, in which case this ordinance shall not apply.

(c) Any child shall have reasonable time to travel to his or her home or to the home of a family member after school activities, church programs, approved organizational activities, or employment, not to exceed one hour after the termination of such activity, to be within the definition of the term "going home."

Section YAE.07.05 — Hitchhiking

No child under the age of eighteen (18) years shall hitchhike within the exterior boundaries of the Stockbridge-Munsee Reservation.

Section YAE.07.06 — Penalties

For a violation of Sections YAE.07.04 or YAE.07.05 of this ordinance:

(a) If the child is a resident on the Stockbridge-Munsee Reservation, he or she shall be escorted by the law enforcement officer to his or her permanent residence or home of another family member.

(b) If the child is a resident on the Menominee Nation Reservation, the law enforcement officer may:

(1) contact Menominee law enforcement officials and transfer custody of the child to them; or

(2) contact a parent of the child and transfer custody of the child to the parent.

(1) contact a parent of the child and transfer custody of the child to the parent; or

(2) contact the appropriate county official to ensure that the child is delivered safely off the reservation.

(d) A civil citation shall be issued to the child if the child is fourteen (14) years of age or over.

(e) A civil citation shall be issued to the parent(s), guardian or responsible adult party for the violation when the child involved is under the age of fourteen (14) years.

(f) A conviction under the provisions of this ordinance shall be subject to a forfeiture of not more than $500.

(g) In place of or in addition to the penalty described in (f), the Court, in its discretion, may impose an alternative sentence which addresses the violation in a manner consistent with tribal and cultural values. Such alternative sentence may include, but is not limited to, community service, family counseling, and educational programming.

Section YAE.07.07 — Effect On Other Ordinances

(a) Language related to juvenile delinquency, curfew, and hitchhiking was deleted from the Public Peace and Good Order Ordinance and hereby superseded and replaced by the provisions of this ordinance.

Chapter YAE.08 — Custody, Physical Placement And Visitation Ordinance

Legislative History

1. Resolution No. 031-13, adopted March 19, 2013, approved by BIA January 30, 2014.

Section YAE.08.01 — Policy And Purpose

(a) It is the policy of the Stockbridge-Munsee Community to have fair and equitable legal custody, physical placement and visitation orders based on the facts surrounding each case and the best interest of the child.

(b) The purpose of this Ordinance is to establish a system and standards for the Court to use when creating and modifying legal custody, physical placement and visitation orders in cases where the Indian Child Welfare Act does not apply. This Ordinance can be used for actions between parents in relation to children born either as part of a marriage or outside of marriage.

Section YAE.08.02 — Definitions

(a) Unless otherwise defined in this Ordinance, the terms shall have the same definitions as under Chapter YAE.01 of the Youth Code. Any terms not defined either under this Ordinance or in Chapter YAE.01 are used in their ordinary and everyday sense.

(b) "Best interest of the child" means the interest of a child to:

(1) have a full, meaningful, respectful, and loving relationship with both parents and family;

(2) be free from physical, verbal, sexual, and emotional abuse;

(3) receive appropriate medical care;

(4) receive appropriate education;

(5) be raised in conditions which maximize the chances of the child becoming a contributing member of society; and

(6) be raised in an environment that is respectful of the child's culture(s) and heritage(s).

(d) "Domestic abuse" means the infliction of physical, sexual or emotional injury, or the creation of a reasonable fear that physical or sexual injury will be inflicted, by a parent or a member or former member of a child's household, against a child or another member of the household.

(e) "Legal custody" means the authority to make major decisions on a child's behalf, including decisions about education, spirituality and healthcare.

(1) "Joint legal custody" means more than one person has the authority to make major decisions on a child's behalf.

(2) "Sole legal custody" means only one person has legal custody and the authority to make major decisions on a child's behalf.

(f) "Major decisions" means decisions regarding consent to marry, consent to enter military service, consent to obtain a motor vehicle operator's license, authorization for nonemergency health care, choice of school, choice of religion and/or other similar activities.

(g) "Parent" means the biological or adoptive parent of either a marital or a non-marital child, but does not include persons whose parental rights have been terminated.

(h) "Physical placement" means the condition under which a person has the right to have a child physically placed with that person and has the right and responsibility to make, during that placement, routine daily decisions regarding the child's care, consistent with major decisions made by a person having legal custody.

(i) "Visitation" means the right to have reasonable visits with a child.

Section YAE.08.03 — Court Authority In Custody, Physical Placement And Visitation Actions

(a) When it is necessary to determine the legal custody, physical placement, and/or visitation of a child, the Court shall make such provisions as it deems just and reasonable in accordance with this Ordinance and other applicable laws. Other laws containing causes of actions relating to custody matters include the Youth in Need of Care Ordinance (Chapter YAE.02), Guardianship (Chapter YAE.03), and Dissolution of Marriage (Chapter DMR.02).

(b) If legal custody and physical placement are uncontested, the parties may submit a voluntary agreement as to the legal custody and physical placement of the child to the Court. The Court shall approve the agreement if it is in the best interest of the child.

(c) The Court shall work cooperatively to coordinate with other Tribal and State courts when there is a request to transfer of an action into or out of the Court and/or there are simultaneous proceedings in another court. Such coordination with Wisconsin courts shall be consistent with Section 801.54, Wis. Stat., regarding "Discretionary transfer of civil actions to tribal court."

Section YAE.08.04 — Jurisdiction

(a) The Court has jurisdiction over custody, physical placement and visitation actions for marital or non-marital children under this Ordinance when one or more of the following applies:

(1) one or more parties or the child is an enrolled member or eligible for enrollment as a member of the Stockbridge-Munsee Community;

(2) one or more of the parties or the child resides or is domiciled within lands under the jurisdiction or ownership of the Stockbridge-Munsee Community; or

(3) the parties consent to the jurisdiction of the Court.

Section YAE.08.05 — Commencing A Custody, Physical Placement Or Visitation Proceeding

(a) A proceeding is commenced by a parent filing a petition with the Court to seek custody of a child; seek physical placement of a child; or seek visitation rights to a child.

(b) A person other than a parent may seek legal custody or physical placement of a child only if:

(1) the child is not in the physical custody of one of his or her parents; or

(2) the person has a parent-child relationship with the child; or

(3) the petition alleges that neither parent is a suitable custodian or placement.

(c) An adult who is a grandparent, great-grandparent, step-parent, step-grandparent or who has maintained a relationship similar to a grandparent-child or parent-child relationship with the child may file a petition with the Court to seek visitation rights.

(d) The petition shall identify:

(1) the interested parties, including the child's parents, custodian(s) or person(s) who have physical placement, by name and address if known or identify if not known;

(2) what rights are sought by the person;

(3) why the person is filing the petition at this time;

(4) whether the person is aware of any other active cases relating to the custody of the child in this Court or other courts;

(5) whether the person is aware of any threats of imminent harm to the health, safety or welfare of the child; and

(6) such other information the person believes is appropriate.

(e) The person filing the petition must serve a copy of the petition on other interested parties, including the child's parent(s), custodian(s) or person(s) who have physical placement.

(f) The Court may, upon a showing of good cause, permit the intervention of other interested parties in the proceeding.

(g) The Stockbridge-Munsee Community normally is not a party to the private actions brought under this Ordinance, but may file a request to intervene at any point in the proceedings if it believes that a child is a youth in need of care in accordance with tribal law.

Section YAE.08.06 — Appointment Of A Guardian Ad Litem

(a) When the Court determines it appropriate:

(1) A guardian ad litem will be appointed in any case when the Court has special concern for the welfare of a child or when the Court believes a report will assist it with making a determination on the issues that is in the best interests of the child.

(2) A guardian ad litem will likely be appointed in any contested custody or placement case.

(3) A guardian ad litem often will not be appointed when an action is uncontested and in actions to modify existing orders when the modification will not substantially alter the amount of time that a parent spends with a child or other terms of the order.

(4) A party to an action may request that the Court appoint a guardian ad litem; however, the Court is not required to appoint a guardian ad litem if the Court believes that the party has requested the appointment solely for a tactical purpose or for the sole purpose of delay, and not for a purpose that is in the best interest of the child.

(b) The guardian ad litem has none of the rights or duties of a general guardian. The guardian ad litem shall be responsible to:

(1) be an advocate for the best interests of a child;

(2) consider, but shall not be bound by, the wishes of the child or the positions of others as to the best interests of the child; and

(3) investigate the issues and provide a written report with related recommendations to the Court.

(c) If the child is a non-marital child whose paternity has not been established, the guardian ad litem may, on the behalf of the child, bring an action or motion under applicable law to have paternity established.

(d) The guardian ad litem shall be compensated at a rate that the Court determines is reasonable, to be paid by the parties.

(1) The Court may apportion the amount that each party shall pay or assess the cost equally between the parties.

(2) If both parties show that they are indigent and the Court has budgeted funds for the payment of guardian ad litem services, the Court may direct that such costs be paid out such budgeted funds.

(e) Any person who serves as a guardian ad litem for a juvenile must have and maintain an Elder/Youth license in accordance with tribal law.

Section YAE.08.07 — Temporary Custody And/Or Placement Orders

(a) When the Court believes immediate action is in the best interests of the child, the Court may make temporary custody and/or placement orders without an immediate hearing. However, in such instances, a hearing must be held as soon as practicable thereafter, but not later than fifteen (15) days after the issuance of the temporary order.

(b) Notice of motion for a temporary order may be served when the action is commenced, or any time after, and shall be accompanied by an affidavit stating the basis for the request for relief and, when appropriate, an explanation of the need for immediate action.

(c) The Court will schedule a hearing on such temporary orders as soon as reasonably possible, but not later than twenty (20) days after the motion is filed.

Section YAE.08.08 — Court Proceedings

(a) The initial hearing in actions filed under this Ordinance shall normally be held within thirty (30) days of a petition being filed.

(b) Parties, whether seeking sole or joint legal custody or periods of physical placement, shall file a parenting plan with the Court within thirty (30) days of the initial hearing or such other timeframe as determined by the Court.

(1) Except for cause shown, if a party fails to timely file a required parenting plan that party waives the right to object to the other party's parenting plan.

(2) A parenting plan shall provide information about the following questions:

(A) What legal custody or physical placement the party is seeking.

(B) Where the party lives currently and where the parent intends to live during the next two (2) years. If there is evidence of domestic abuse, the party is not required to disclose the specific address but only a general description of where he or she currently lives and intends to live during the next two (2) years.

(C) Where the party works and the hours of employment. If there is evidence of domestic abuse, the party is not required to disclose the specific address but only a general description of where he or she works.

(D) Who will provide any necessary child care when the parent cannot and who will pay for the child care.

(E) Where the child will go to school.

(F) What doctor or health care facility will provide medical care for the child.

(G) How the child's medical expenses will be paid.

(H) What the child's religious commitment will be, if any.

(I) Who will make decisions about the child's education, medical care, choice of child care providers and extracurricular activities.

(J) How the holidays will be divided.

(K) What the child's summer schedule will be.

(L) Whether and how the child will be able to contact the other parties when the child has physical placement with the party providing the parenting plan.

(M) How the party proposes to resolve disagreements related to matters over which the court orders joint decision making.

(N) What child support, family support, maintenance or other income transfer there will be.

(O) If there is evidence of domestic abuse, how the child will be transferred between the parties for the exercise of physical placement to ensure the safety of the child and the parties.

(c) The Court will schedule such hearings as are necessary and appropriate. Proceedings shall be conducted in an expeditious manner and in accordance with tribal law and the Court's Rules of Procedure.

(d) If a guardian ad litem is appointed for a child, the Court shall schedule a status hearing approximately thirty (30) days, or sooner if practical, after appointment in order to receive an update on the actions taken and work performed by the guardian ad litem in the matter.

(e) The Court may refer the parties to peacemaking. The Court shall not refer the parties to peacemaking if attending the session will cause undue hardship or would endanger the health or safety of either party.

Section YAE.08.09 — Custody And Physical Placement Determinations

(a) In determining legal custody and periods of physical placement, the Court shall consider all facts relevant to the best interest of the child. The Court may not prefer one potential custodian over another on the basis of the sex or race of the custodian. The Court may consider tribal custom and tradition as part of the determination of what is in the best interest of a child.

(b) Legal Custody.

(1) It is the rebuttable presumption of the Court that joint legal custody by the parents is in the best interest of the child. However, the Court will only give joint legal custody if it determines doing so is in the child's best interest and the following applies:

(A) Both parties agree to joint legal custody; or

(B) One party requests joint legal custody or both parties request sole legal custody, and the Court determines all of the following:

(i) Both parties are capable of performing parental duties and responsibilities and wish to have an active role in raising the child.

(ii) No conditions exist at the time which would substantially interfere with the exercise of joint legal custody.

(iii) The parties will be able to cooperate in the future decision making required under an award of joint legal custody.

(2) An opposing party may rebut a presumption that joint legal custody is in the best interest of the child with a showing by preponderance of the evidence why the parties will not be able to cooperate in decision making. Evidence of domestic abuse creates a rebuttable presumption that the parties will not be able to cooperate.

(3) The Court shall not give sole legal custody to a party who refuses to cooperate with the other party if that refusal to cooperate is unreasonable.

(1) A child is entitled to periods of physical placement with both parents unless the Court determines that physical placement with a party would endanger the child's physical, mental or emotional health.

(2) The Court shall allocate periods of physical placement that allow the child to have regularly occurring, meaningful periods of physical placement with each party and that maximizes the amount of time the child may spend with each party, taking into account geographic separation and accommodations for different households.

(3) The Court will not deny physical placement for failure to meet, or grant periods of physical placement for meeting, any financial obligation to the child.

(d) The Court shall consider the following factors in determining legal custody and periods of physical placement:

(1) The wishes of the parties, including the child's parents, or other family members, as shown through testimony or documents submitted to the Court.

(2) The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.

(3) The relationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest.

(4) The child's adjustment to the home, school, religion and community.

(5) Whether the mental or physical health of a party, child, or other person living in a proposed custodial household negatively affects the child's well-being.

(6) The availability of public or private child care services.

(7) The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.

(8) Whether there is evidence of domestic abuse.

(9) Whether either party has or had a significant problem with alcohol or drug abuse.

(10) Such other factors as the Court may, in each individual case, determine to be relevant.

(e) If the Court finds that a party has engaged in a pattern or serious incident of domestic abuse, the safety and well-being of the child and the safety of any party who was the victim of the abuse shall be the paramount concerns in determining legal custody and periods of physical placement.

(f) If a party is a member of the National Guard or of a reserve unit of the U.S. armed forces, the Court shall not consider as a factor in determining the legal custody of a child whether he or she has been or may be called to active duty and consequently is, or in the future will be or may be, absent from home.

Section YAE.08.10 — Custody And Physical Placement Orders

(a) After considering all relevant testimony and evidence to make its determinations as to legal custody and physical placement, the Court shall issue a written order identifying the party or parties with legal custody and/or physical placement based on the best interests of the child. This order is not considered a sealed order.

(1) If the action is contested, the order shall state the Court's determinations as to legal custody and/or physical placement and why they are in the best interest of the child.

(2) In an order for legal custody, the Court may specify who may make certain major decisions for the child. The Court may give one party sole power to make specified decisions, while both parties retain equal rights and responsibilities for other decisions.

(3) In an order for joint legal custody and periods of physical placement, the Court may specify one party as the primary caretaker and his or her home as the primary home of the child.

(4) No party awarded legal custody may take any action inconsistent with any applicable physical placement order, unless the Court expressly authorizes that action.

(5) In an order of physical placement, the Court shall specify the right of each party to the physical control of the child in sufficient detail to enable a party deprived of that control to request relief for interference with custody or parental rights.

(6) If the best interests of the child demand it and the Court determines that neither parent is able to care for the child adequately or that neither parent is fit and proper to have the care and custody of the child, the Court may order the legal custody of the child be with a relative of the child or an appropriate governmental entity.

(7) The Court may order that parties to participate in parenting classes, attend counseling, share medical or medical history information or meet other requirements as are in the best interest of the child. The party ordered to meet such requirements shall be responsible for costs of compliance.

(b) If the Court grants periods of physical placement to more than one party, either or both parties may be granted a reasonable amount of electronic communication at reasonable hours during the other party's periods of physical placement with the child. Electronic communication shall not be used as a substitute for a party's periods of physical placement with the child. If the Court grants electronic communication to a party whose physical placement with the child is supervised, the party's electronic communication with the child shall also be supervised.

(c) If the Court determines that joint custody is inappropriate, then the Court order shall state why the presumption of awarding joint legal custody is rebutted, what evidence rebutted the presumption, and why its determination relating to legal custody and physical placement are in the best interest of the child.

(d) If the Court finds that a party has engaged in a pattern or serious incident of domestic abuse or other activity that endangered the child's physical, mental or emotional health, and the Court awards periods of physical placement to both parties, the Court shall provide for the safety and well-being of the child and for the safety of the party who was the victim of the abuse, if applicable. This may include:

(1) requiring supervised exchanges of the child;

(2) requiring supervised physical placement and/or visitation;

(3) requiring a party to attend and complete a certified treatment program for batterers and/or alcohol or substance abusers;

(4) prohibiting a party from being under the influence of alcohol or controlled substances during the exchange of the child or prohibiting a person from possessing or using alcohol or controlled substances during the period of physical placement; or

(5) ordering any other conditions that the Court determines is necessary for the safety and well-being of the child and the party who was the victim of the abuse, if applicable.

(e) Parental Access to Records.

(1) Unless otherwise ordered by the Court or except as provided under subsection (2) below, access to a child's medical, dental and school records is available to a parent regardless of whether the parent has legal custody of the child.

(2) A parent who has been denied periods of physical placement does not have the normal rights of a parent in relation to that child's records, including a right to access such records.

Section YAE.08.11 — Visitation Rights

(a) The Court may grant reasonable visitation rights to a person if the Court determines it is in the best interest of the child, so long as:

(1) the parents, guardian or legal custodian have notice of the hearing on visitation rights;

(2) the objection, if any, of the parents, guardian or legal custodian to the visitation is considered.

(b) Whenever possible, the wishes of the child shall be considered when the Court is determining whether to grant visitation rights; however, it is presumed that a fit parent's decision regarding non-parental visitation is in the best interest of the child.

(c) The Court may deny visitation rights to a person if he or she has been convicted of the intentional homicide of a parent of the child, and the conviction has not been reversed, set aside or vacated.

(d) The Court may consider tribal custom and tradition as part of its determination whether visitation rights are in the best interest of a child.

(e) The Court shall issue a written order granting or denying visitation rights. Such order is not considered a sealed order.

Section YAE.08.12 — Modification Of Court Orders

(a) The Court may order the following modifications to legal custody orders or physical placement orders, unless the modifications are being requested by a parent who is proposing to move a child, in which case Section YAE.08.14 shall apply.

(b) Substantial Modifications.

(1) Within Two (2) Years After Final Judgment.

(A) Modification Necessary Because Current Conditions Are Harmful to Child. The Court may not modify any of the following orders within the initial two (2) years after entry unless the party seeking the modification shows by substantial evidence that the modification is necessary because the current custodial conditions are harmful to the best interest of the child:

(i) An order of legal custody.

(ii) An order of physical placement if the modification would substantially alter the time a party may spend with the child, unless required by circumstances in accordance with subsection (b) below.

(B) Modification of Substantially Equal Physical Placement Orders. If the parties have substantially equal periods of physical placement pursuant to a custody order and circumstances make it impractical for the parties to continue to have substantially equal physical placement, then the Court may modify the order if it is in the best interest of the child.

(2) After Two (2) Year Period.

(A) Upon a party's request, the Court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a party may spend with the child if the Court finds all of the following:

(i) The modification is in the best interest of the child.

(ii) There has been a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.

(B) There is a rebuttable presumption that:

(i) Continuing the current legal custody order is in the best interest of the child.

(ii) Continuing the child's physical placement with the party with whom the child resides for the greater period of time is in the best interest of the child.

(C) A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification.

(c) The Court may modify an order of physical placement, which does not substantially alter the amount of time a party spends with the child, at any time if the Court finds that the modification is in the best interest of the child.

(d) The Court may deny a party's physical placement rights at any time if it finds that the physical placement rights would endanger the child's physical, mental or emotional health.

(e) The Court may modify an order of physical placement at any time if it finds that a party has repeatedly and unreasonably failed to exercise periods of physical placement as allocated under that order. A failure to exercise periods of physical placement due to active military service shall not be grounds modify an order of physical placement.

(f) If a party opposes modification or termination of a legal custody or physical placement order, then the Court shall state, in writing, its reasons for the modification or termination.

(g) If after an initial order is entered, the parties agree to a modification in an order of physical placement or legal custody and file a stipulation with the Court that specifies the agreed upon modification, the Court shall incorporate the terms of the stipulation into a revised order of physical placement or legal custody unless the Court finds that the modification is not in the best interest of the child.

(h) The Court may not enter an order for modification until notice of the modification request has been given to the child's parents, if they can be found, guardian and to any person having custody of the child.

Section YAE.08.13 — Enforcement Of Physical Placement Orders

(a) A party who has been awarded periods of physical placement may file a motion for enforcement of the physical placement order with the Court, if the party has had one or more periods of physical placement denied by the other party or substantially interfered with by the other party. The motion shall allege facts sufficient to show such denial or interference and request the imposition of a remedy or any combination of remedies.

(b) The moving party shall serve a copy of the motion upon the responding party by personal service. The responding party may respond to the motion either in writing before or at the hearing or orally at the hearing.

(c) The Court shall hold a hearing on the motion no later than thirty (30) days after the motion has been served, unless the time is extended by mutual agreement of the parties or upon the motion of a guardian ad litem and the approval of the Court. The Court may order that a guardian ad litem be appointed for the child prior to the hearing.

(d) If at the conclusion of the hearing, the Court finds that the responding party has intentionally and unreasonably denied the moving party one or more periods of physical placement or that the responding party has intentionally and unreasonably interfered with one or more of the moving party's periods of physical placement, then:

(1) the Court shall:

(A) grant additional periods of physical placement to replace those denied or interfered with; and

(B) award the moving party a reasonable amount for the cost of maintaining an action under this section and for attorney fees.

(2) the Court may also:

(A) issue an order specifying the times for the exercise of periods of physical placement;

(B) find the responding party in contempt; and/or

(C) grant an injunction ordering the responding party to strictly comply with the judgment or order relating to the award of physical placement.

(D) issue an order requiring the responding party to pay to the moving party a sum of money sufficient to compensate the moving party for any financial loss or expenses associated with the periods of physical placement that were denied or interfered with.

(e) The Court may not permanently modify an order of legal custody or physical placement in an action under this section.

Section YAE.08.14 — Moving A Child's Residence

(a) Notice to Other Parent.

(1) If periods of physical placement have been ordered for more than one parent, then the parent shall provide not less than sixty (60) days written notice to the other parent, with a copy to the Court, of his or her intent to:

(A) Establish his or her legal residence with the child at any location outside the State of Wisconsin.

(B) Establish his or her legal residence with the child at any location within the State of Wisconsin that is at a distance of One Hundred and Fifty (150) miles or more from the other parent.

(2) The parent proposing the move shall provide notice of the proposed action to the other parent. The notice shall state the parent's proposed action, including the specific date and location of the move or specific beginning and ending dates and location of the removal, and that the other parent may object within thirty (30) days.

(A) Such notice shall normally be delivered by certified mail.

(B) If the parent is unable to obtain delivery by certified mail, the parent may provide an affidavit to the Court setting out his or her efforts to have the notice delivered.

(C) When a parent's address is protected for purposes of privacy or safety, then the parent proposing the move shall petition the Court clerk to forward the required notice to the other parent. The Court clerk shall also forward any objection received by the other parent.

(b) The Court may approve a move or removal without notification to the other parent where the move or removal is in the best interest of the child and one or more of the following applies:

(1) the other parent submits an affidavit consenting to the move or removal;

(2) the parent proposing the move or removal submits an affidavit stating that the other parent, without undue interference from the parent proposing the move or removal or his or her family, has not exercised his or her rights to periods of physical placement or maintained regular contact with the child in three years and the parent proposing the move or removal provides documentation from a child support agency that the other parent is behind the equivalent of at least one year in child support, for that child;

(3) the other parent is incarcerated or otherwise institutionalized; or

(4) the other parent lives out of state.

(1) Within thirty (30) days after receiving the notice, a parent who objects to the move or removal shall send to the parent proposing the move or removal and file with the Court, a written notice of objection to the proposed action. Such notice shall be sent by first-class mail to the address provided in the initial notice or to the Court clerk when the address is not available due to privacy or security concerns.

(2) If the Court receives a notice of objection, it shall be deemed to constitute a motion to review. The parent proposing the move or removal may not move with or remove the child pending resolution of the dispute, or final order of the Court, unless the parent petitions for and obtains a temporary order to do so.

(3) The Court shall hold a hearing on the dispute within twenty (20) days. The burden of proof is on the parent proposing the move or removal.

(4) Standards for Modification if the Move or Removal is Contested.

(A) The Court may allow the move or removal and modify the legal custody or physical placement order as necessary if the Court finds all of the following:

(i) The modification is in the best interest of the child.

(ii) The move or removal will result in a substantial change of circumstances since the entry of the last order affecting legal custody or the last order substantially affecting physical placement.

(B) With respect to subsection (A) above, there is a rebuttable presumption that continuing the current allocation of decision making under a legal custody order or continuing the child's physical placement with the parent with whom the child resides for the greater period of time, if applicable, is in the best interest of the child. This presumption may be overcome by:

(i) the parent objecting to the move or removal by a showing that the move or removal is unreasonable and not in the best interest of the child; or

(ii) the parent proposing the move or removal by a showing that the move or removal is reasonable and in the best interest of the child.

(C) A change in the economic circumstances or marital status of either party is not sufficient to meet the standards for modification under that section.

(5) The Court may prohibit the move or removal if the Court finds that the prohibition is in the best interest of the child.

(6) Factors in the Court's Determination. In making its determination, the Court shall consider all of the following factors:

(A) Whether the purpose of the proposed action is reasonable.

(B) Whether the proposed action will unduly affect the child's ties to his or her tribal community and culture.

(C) The nature and extent of the child's relationship with the other parent and the disruption to that relationship which the proposed action may cause.

(D) The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent.

(E) The child's adjustment to the home, school, religion and community.

(d) Notice for other Moves or Removals. Unless the parents agree otherwise, a parent with legal custody and physical placement rights shall notify the other parent before removing the child from his or her primary residence for at least fourteen (14) consecutive days, but not more than ninety (90) consecutive days.

Chapter YAE.09 — Child Support

Legislative History

1. Resolution No. 026-04, adopted June 1, 2004, approved by BIA June 15, 2004.

2. Resolution No. 052-04, adopted October 5, 2004, approved by BIA November 8, 2004.

3. Resolution No. 046-05, adopted September 20, 2005.

4. Resolution No. 009-13, adopted November 6, 2012.

5. Resolution No. 054-13, adopted May 29, 2013.

6. Resolution No. 08-15, adopted November 18, 2014.

7. Resolution No. 050-17, adopted September 19, 2017.

Section YAE.09.01 — Authority, Purpose And Scope

(a) The purpose of this Ordinance is to establish the legal responsibility of parents to provide financially for their children's general well-being. The Stockbridge-Munsee Community finds its children are among the Tribe's most valuable resources and their financial needs must be met to ensure their success in the future. Therefore, it is the intent of the Tribe to define a process to establish, modify and enforce child support court orders involving members of the Stockbridge-Munsee Community, and all those subject to the jurisdiction of the Stockbridge-Munsee Community.

(b) The Stockbridge-Munsee Community authorized the creation of the Stockbridge-Munsee Tribal Child Support Agency (SMTCSA) (Agency) and hereby delegates to that Agency, through the Child Support Manager the responsibility and authority for implementing, monitoring and enforcing this Law. Included in this delegation of authority is rule-making authority to facilitate enforcement of child support orders and obligations. The enforcement authority delegated under this section includes the authority to make rules that govern the compliance of other tribal departments, businesses, agencies, boards, committees or other tribal entity that may be in a position to facilitate the collection or enforcement of child support obligations. An example of a Tribal Child Support Agency rule affecting a tribal department might, for instance, be a rule that requires the loan department to either deny a tribal loan in cases where a noncustodial parent payor was more than one month in arrears on child support payments or grant the loan conditioned on a portion of that loan being used to satisfy the outstanding child support arrears.

(c) The SMTCSA is not an administrative decision-making body and is not subject to actions under Section TCT.02.23 of Stockbridge-Munsee Tribal Law. This Chapter is expressly exempted from the operation of Section TCT.02.23.

(d) Nothing in this Law is intended to waive the sovereign immunity of the Stockbridge-Munsee Community or its application to the SMTCSA and its agents and employees acting within the scope of their authority.

Section YAE.09.02 — Applicability

(a) This Law applies to the SMTCSA and its agents and employees acting within the scope of their authority; individuals participating in the child support program; tribal departments including but not limited to the Mohican Loan Department, the Education Office, the Elderly Center, the Family Center, the Conservation Department; tribal boards, committees and commissions including but not limited to the Gaming Commission; tribal business and any other tribal entity that offers a benefit, including but not limited to all tribally issued licenses, permits, assignments and passes. The Agency may not make any rules or guidelines regarding the determination of membership.

Section YAE.09.03 — Jurisdiction

(a) Territorial Jurisdiction. The Stockbridge-Munsee Community has jurisdiction over land held in trust by the United States, whether for the Stockbridge-Munsee Community or individual members, over land held in fee by the Stockbridge-Munsee Community and over all lands declared reservation lands, to the extent not inconsistent with federal law.

(b) Subject Matter Jurisdiction. The Stockbridge-Munsee Tribal Court may exercise jurisdiction in paternity and child support matters where there is personal jurisdiction and when one or more of the following applies:

(1) One or more parties or the child is an enrolled member of the Stockbridge-Munsee Community, Band of Mohican Indians;

(2) In the case of enforcement of a child support order pursuant to Federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C. §1738B, when a party is a contract, temporary or regular employee of the Stockbridge-Munsee Community.

(3) The enrolled member asserted parentage in a declaration of paternal interest filed with the Wisconsin Department of Health and Family Services Section 48.025, Wis. Stat., or in a statement acknowledging paternity filed with the State Registrar under Section 69.15(3)(b) 1 or 3, Wis. Stat.

(4) In cases where the parties are not enrolled members but have requested services from the SMTCA.

(5) In cases where the Tribal Court issued a divorce or custody judgment involving a minor child.

(c) Personal Jurisdiction. The Stockbridge-Munsee Tribal Court, in any proceeding under this Ordinance, may exercise personal jurisdiction over a resident individual, or the individual's guardian or conservator. Also in any proceeding under this Ordinance, the Court may exercise personal jurisdiction over a nonresident individual, or the individual's guardian or conservator, if any of the following applies:

(1) The individual is personally served with a summons or other notice on lands under the jurisdiction of the Tribe, which includes both land held in trust by the United States, whether for the Stockbridge-Munsee Community or individual members, and land held in fee by the Stockbridge-Munsee Community.

(2) The individual submits to the jurisdiction of the Tribal Court, by consent, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction.

(3) The individual resided with the child on Tribal lands.

(4) The individual resided on Tribal lands and provided prenatal expenses or support for the child.

(5) The child resides on Tribal lands as a result of the acts or directives of the individual.

(6) The individual engaged in sexual intercourse on Tribal lands, and the child may have been conceived by that act of intercourse.

Section YAE.09.04 — Definitions

(a) Administrative enforcement actions" means actions authorized by federal regulations which are taken to enforce a child support order without obtaining an order from the Court Additionally, administrative enforcement actions means all enforcement actions authorized through the KIDS system and those specifically set forth in Section YAE.09.14 of this Ordinance.

(b) "Alternative Payment Plan" means a negotiated agreement between a child support agency and a Payor, or an order set by the court, which establishes terms for the payment of the arrearage debt.

(c) "Arrears" means the amount of money the Payor has not paid pursuant to the most recent child support court order. Arrears does not include birth expenses imposed by a state or other Tribe.

(d) "Child" means the natural or adopted child under the age of eighteen (18) years old, or the age of nineteen (19) years if attending an accredited course to obtain a high school diploma or high school equivalency and resides with the custodial parent.

(e) "Child Support Manager" means the person in charge of the day to day operation of the Agency.

(f) "Child Support Order" means a Stockbridge-Munsee court order, or other court order from a court of competent jurisdiction relating to payment of child support.

(g) "Court" means the Stockbridge-Munsee Tribal Court as established by the Stockbridge-Munsee Tribal Law.

(h) "Court Order" means a Tribal Court Order or a valid Court Order of a court of competent jurisdiction.

(i) "Custodial Party" means the person who has had placement of the child, whether by voluntary agreement or by Court Order.

(j) "Disposable Income" means gross pay minus mandatory deductions. Disposable income is the amount that is left after subtracting mandatory deductions from gross pay. Mandatory deductions include federal, state and local taxes; unemployment insurance; workers' compensation insurance; state employee retirement deductions; and other deductions determined by state law. Health insurance premiums may be included in a state's mandatory deductions; they are mandatory deductions for federal employees. The Consumer Credit Protection Act (CCPA) limits the amount of disposable earnings which may be withheld to 60% of the payer's disposable earnings per pay period, or up to 50% of the payer's disposable earnings per pay period if the payer is supporting a second family. Wisconsin's income withholding statute prohibits withholding at a level that would leave the payer below the poverty line.

(k) "Duty to support" means an obligation imposed or imposable by law or by order, decree, or judgment of any court, whether incidental to an action for divorce separation, separate to provide support for child(ren).

(l) "Guardian or Conservator" means a person who looks after and is legally responsible for someone who is unable to manage their own affairs, especially an incompetent or disabled person or a child whose parents have died or do not have the ability to parent their child. For purposes of this Ordinance, the guardian or conservatorship must be court-ordered and the order must show the length of time for which the guardianship has been granted.

(m) Gross Income" means the income of a parent before any taxes, loans or other deductions are made.

(1) Gross income shall include the following:

(A) Salaries and wages, including bonuses;

(B) Interest and investment income;

(C) Social Security disability and or social security retirement benefits BUT NOT Supplemental Security Income or "SSI," which is a needs based federal benefit that is expressly exempted from child support garnishment and income withholding;

(D) Net proceeds from worker's compensation or other personal injury awards;

(E) Unemployment benefits;

(F) Voluntary deferred compensation, including pension and profit-sharing plans;

(G) Military and veteran benefits;

(H) Undistributed income of a business, partnership or corporation; and

(I) All other income, whether taxable or not, including per capita and Tribal bonuses in accordance with applicable laws.

(2) Gross income does not include:

(A) TANF, food stamp or other monetary general assistance;

(B) Foster care or kinship care;

(D) Child Support for other children but shall be calculated by the Court into the record in accordance with Section YAE.09.07(f).

(n) "Judge" means a Stockbridge-Munsee Community Judge.

(o) "In-Kind Contributions" means non-monetary payment to a non-assignable child support obligation owed to a payee. In-Kind contributions may include goods or services provided by the payor. In-Kind contributions shall be assigned a whole dollar amount, be based on the current market value of the services, be agreed upon by both the custodial and non-custodial parties and must be approved by the Tribal Court.

(p) "Interested party" means a person or entity who has an interest in a legal proceeding. For purposes of this Ordinance, the Agency shall be deemed an interested party in all actions affecting the family where minor children are involved.

(q) "Income imputed based on earning capacity" means the amount of income that exceeds the parent's actual income and represents the parent's ability to earn, based on the parent's education, training and recent work experience, earnings during previous periods, current physical and mental health, history of child care responsibilities as the parent with primary physical placement, and the availability of work in or near the parent's community.

(r) "Income imputed from assets" means the amount of income ascribed to assets that are unproductive and to which income has been diverted to avoid paying child support or from which income is necessary to maintain the child or children at the standard of living they would have if they were living with both parents, and that exceeds the actual income from the assets.

(s) "Income modified for business expenses" means the amount of income after adding wages paid to dependent household members, adding undistributed income that the Family court determines is not reasonably necessary for the growth of the business, and subtracting business expenses that the Family Court determines are reasonably necessary for the production of that income or operation of the business and that may differ from the determination of allowable business expenses for tax purposes.

(t) "Intact family" means a family in which the child or children and the obligor reside in the same household and the obligor shares his or her income directly with the child or children and has a legal obligation to support the child or children.

(u) "Parent" means the biological or adopted person of a minor child.

(v) "Per Capita Payment" shall mean those payments made or distributed to all enrolled tribal members paid directly from the net revenues of the Tribe.

(w) "Payee" or "Obligee" means the parent, legal guardian or agency which is the recipient of child support.

(x) "Payor" or "Obligor" means the party who is responsible to pay child support.

(y) "Resident" means an individual who has a primary residence on federal trust land held in trust for the benefit of the Stockbridge-Munsee Community.

(z) "Serial parent" means a parent who has prior child support orders or a duty to support.

(aa) "Tribal Child Support Agency" or "Agency" means the Stockbridge-Munsee Tribal Child Support Agency.

(bb) "Tribal Member" means enrolled member of the Stockbridge-Munsee Community, Band of Mohican Indians.

(cc) "Tribal Treasurer" means the duly elected Treasurer of the Stockbridge-Munsee Tribal Council.

Section YAE.09.05 — Actions For Establishment And Modification Of Child Support

(a) In a proceeding affecting the family, including but not limited to, the dissolution of marriage, custody, paternity or child support establishment and modification pursuant to this Chapter, the Tribal Court may order one or both parents of the minor child(ren) to pay an amount of child support to the custodial party pursuant to the guidelines in this Chapter. The Court shall provide notice to the parties that they can sign up for services with the Child Support Agency. For purposes of all actions affecting the family where there are minor children involved, the Agency shall be considered an interested party and shall receive notice from the Court of any proceedings in the case and have the right have the right to file a separate child support petition pursuant to the Agency's required procedures. The Agency shall prepare and file the child support petition or stipulation for the Court's consideration in a distinct child support action. Any deviations from the standards shall be noted in writing in the child support order. The Tribal Court shall consider the following relevant factors when determining child support:

(1) The financial, emotional, educational and medical needs of the child(ren);

(2) The financial resources of one or both parents;

(3) The standard of living the child(ren) would have enjoyed had the parents resided together.

(b) The Tribal Court shall refer all cases involving child support or paternity to the Tribal Child Support Agency for review and recommendation. The parties shall comply with the Agency's program requirements. The Tribal Child Support Agency shall follow their procedures to establish a child support order consistent with tribal law for the Court's consideration.

(c) Child support shall continue until the child reaches the age of eighteen (18) years. Child support will continue until the child reaches the age of nineteen (19) only if enrolled in an accredited program to achieve a high school diploma and still resides full time with the payee. If this applies, the child support will terminate on the day following the high school graduation or the child's nineteenth birthday, whichever occurs first.

(d) Certified Child Support Orders. The court shall enter, certify and distribute a child support order, temporary or permanent, to the Agency, within five (5) days from the date of a hearing. The Agency shall provide the court with the draft order or provide such information as needed to assist the court in meeting this timeframe.

Section YAE.09.06 — Commencement Of New Child Support Cases

(a) An original action for child support shall be commenced through a Summons and Petition. The Plaintiff is responsible to ensure that proper service is made on the defendant and any co-defendants.

(b) The Summons and Petition shall contain the name of the plaintiff, the name of the defendant and any co-defendants.

(c) The Petition shall state the names and dates of birth of the children that are involved in the action and for whom child support is being sought.

(d) The Petition shall notice the parties that they have the right to obtain legal representation at their own expense and to file an Answer to the Complaint no later than ten (10) days from the date of service of the Complaint.

(e) A Summons and Petition shall, whenever possible, be served on a defendant by personal service or to any person of apparent normal understanding and fourteen (14) years of age or older, residing within the residence of the defendant or respondent

(f) Any person over the age of eighteen (18), not a party to the action, may make personal service. In the case of personal service, an affidavit of service shall be returned to the petitioner and filed in the docket with the Clerk of Court and shall constitute proof of personal service.

(g) When the Summons and Petition cannot by reasonable diligence be personally served on the defendant, service may be made by mail. In the case of service by mail, copy of the Summons and Petition shall be sent by registered or certified mail to the defendant's last known address.

(1) A return receipt for mail delivery signed by the defendant shall be returned to the petitioner and filed in the docket with the Clerk of Court.

(2) If the mail delivery is not returned as signed, but the regular mail was not returned as undeliverable, the plaintiff shall file an Affidavit of Mailing which shall be filed in the docket with the Clerk of Court and shall constitute proof of service by mail.

(h) In the event the Defendant cannot be served with the Summons and Petition either personally or by mail, service may be by publication. Service by publication shall mean publication of the Summons once in each of two consecutive weeks in a newspaper of general circulation whose readership is primarily located in the vicinity of the Defendant. The published Summons shall state the address at which the Petition can be obtained. Proof of publication of the Summons shall be returned to the Petitioner and filed in the docket by the Clerk of Court and shall constitute proof of service by publication.

Section YAE.09.07 — Child Support Calculations

(a) Child support shall be established utilizing the income of the parents and the guidelines in this section.

(b) Determining Income Modified for Business Expenses. In determining a parent's monthly income, the Court may adjust a parent's gross income as follows:

(1) Adding wages paid to dependent household members.

(2) Adding undistributed income that the Court determines is not reasonably necessary for the growth of the business. The parent shall have the burden of proof to show that any undistributed income is reasonably necessary for the growth of the business.

(3) Reducing gross income by the business expenses that the Court determines are reasonably necessary for the production of that income or operation of the business and that may differ from the determination of allowable business expense for tax purpose.

(c) Determining Income Imputed Based on Earning Capacity. When a parent's income is less that the parent's earning capacity or is unknown, the Court may impute income to the parent at an amount that represents the parent's ability to earn, based on the parent's education, training and recent work experience, earnings during previous periods, current physical and mental health, history of child care responsibilities as the parent with primary physical placement and the availability of work in or near the parent's community. If evidence is presented that due diligence has been exercised to ascertain information on the parent's actual income or ability to earn and that information is unavailable, the Commission may impute to the parent the income that a person would earn by working thirty-five (35) hours per week for the federal minimum hourly wage under 29 USC 2016(a)(1). If a parent has gross income or income modified for business expenses below his or her earning capacity, the income imputed based on earning capacity shall be the difference between the parent's earning capacity and the parent's gross income or income modified for business expenses.

(d) Determining Income Imputed from Assets.

(1) The Court may impute a reasonable earning potential to a parent's assets if the Court finds both of the following:

(A) The parent has ownership and control over any real or personal property, including but not limited to, life insurance, cash and deposit account, stocks and bonds, business interests, net proceeds resulting from worker's compensation or other personal injury awards not intended to replace income, and cash and corporate income in a corporation in which the parent has an ownership interest sufficient to individually exercise control and the cash or corporate income is not included as gross income.

(2) The parent's assets are underproductive and at least one (1) of the following applies:

(A) The parent has diverted income into assets to avoid paying child support.

(B) Income from the parent's assets is necessary to maintain the child or children at the standard of living they would have had if they were living with both parents.

(3) The Commission shall impute income to assets by multiplying the total net value of the assets by the current 6-month treasury bill rate or any other rate that the Commission determines is reasonable and subtracting the actual income from the assets that were included as gross income.

(e) In-Kind Contributions. Only when agreed upon by both parties and the Tribal Court, in-kind contributions may be considered in lieu of cash child support and other non-assignable debts owed to the custodial party. The Court may consider circumstances of the parties including whether a non-custodial party is able obtain employment or has no other financial resources available to meet the current cash child support obligation.

(1) In-kind may not be ordered to repay assigned debts owed to a state or tribal jurisdiction. All in-kind orders must describe the type of in-kind contribution and must assign a dollar value to the contribution.

(2) Should an in-kind contribution not be met, the recipient of the in-kind is responsible to notify the Tribal Child Support Agency no later than the last day of each month of the non-compliance in writing. If a notice of non-compliance is not received by the last day of the month, it shall be presumed the in-kind contribution was met and the payor shall receive a credit based on the Court Order on the first day of each following month on his/her child support account statement maintained by the Tribal Child Support Agency.

(3) Nothing in this section allows a payor of in-kind contributions to exceed the limits on the hunting or gathering of all regulated natural resources including limits and seasons imposed by tribal law. In-kind orders may only apply to the extent permitted under tribal, state and federal laws.

(f) If a child is receiving Social Security cash benefits as a result of the natural parent's disability, the amount owed for current support shall be reduced by the amount of the child's monthly cash benefit. Should the child's monthly cash benefit exceed the amount of the monthly child support obligation there shall be no credit against any child support arrears debt.

(g) Child support obligations must be based on the percentages contained in Section YAE.09.07(h) and shall be represented as a whole dollar amount or sum certain in the Court Order.

(h) The basic child support guideline in this section shall be utilized when one party has primary placement of a child(ren). Child support is reduced to a whole dollar amount by multiplying the payor's or serial parent gross income by the number of children in the case as follows:

(1) 17% for one child

(2) 25% for two children

(3) 29% for three children

(4) 31% for four children

(5) 34% for five or more children

(i) If a payor has more than one child support case, the amount of the prior child support order or duty to support shall be deducted from his or her gross income and then multiplied by the percentages in (H) above.

(j) Non-marital children cases are determined by the child support order date and the legal obligation for marital children will begin on the child's date of birth.

(k) Child support arrears may be ordered by the Tribal Court dating back to the date of application or referral received by the Tribal Child Support Agency or the date of filing of the action if the Tribal Child Support Agency is not involved in the action.

Section YAE.09.08 — Shared-Placement Guidelines

(a) Shared placement calculations must be utilized when one parent has overnight placement of the child(ren) overnight 25% (92 days) or more per calendar year.

(1) To determine the percentage, divide the number of overnight placements by 365 days per year.

(2) Calculate each parent's monthly income available for child support. If one or both parents have a prior child support obligation or duty to support, determine the parent's adjusted gross income available for this child support order pursuant to Section YAE.09.07(h).

(3) Child Support is based on each parent's income multiplied by the appropriate percentage standard and then multiplied by 150% (household maintenance expenditures for each parent), then multiplied by the percentage of time the other parent has with the children and then offsetting each parent's child support obligation against each other to determine child support for the month.

Section YAE.09.09 — Split-Placement Guidelines

(a) Split-placement calculations must be used when the parents have two or more children and each parent has placement of one or more, but not all, of the minor children.

(1) Calculate each parent's monthly income available for child support. If one or both parents have a prior child support obligation, determine the parent's adjusted gross income available for this child support order pursuant to Section YAE.09.07(h).

(2) Multiply the amount of adjusted gross income for each parent by the pro-rata percentage standard for the number of children in split-placement who are placed with the other parent. The pro-rata percentage standard for the number of children in split-placement who are placed with the other parent is calculated by determining the appropriate percentage standard for the total number of children, dividing the total number of children and adding together the percentages for the children in split-placement who are placed with the other parent as follows:

(A) 2 children=12.5% for each child (25% divided by 2)

(B) 3 children=9.67% for each child (29% divided by 3)

(D) 5 children=6.8% for each child (34% divided by 5)

Section YAE.09.10 — Low-Income Payors

(a) Payors whose income falls below 150% of the federal poverty level are considered low income payors. The Tribal Child Support Agency shall annually apply the low-income payor table from the Wisconsin Administrative Codes.

(b) Child support will be determined by multiplying the percentages in the table referenced in Section YAE.09.07(h) by the gross monthly income of the payor.

Section YAE.09.11 — High-Income Payors

(a) The Tribal Court may apply reduced percentages under Section YAE.09.07 if the payor is considered to earn high income. The Tribal Court may apply the following percentages to the proportion of a payor's monthly income available for child support that is greater than or equal to $7,000 and less than or equal to $12,500:

(1) 14% for one child

(2) 20% for two children

(3) 23% for three children

(4) 25% for four children

(5) 27% for five or more children

(b) The Tribal Court may apply the following percentages to the proportion of a payor's monthly income available for child support that is greater than $12,500:

(1) 10% for one child

(2) 15% for two children

(3) 17% for three children

(4) 19% for four children

(5) 20% for five or more children

(c) Medical support may be considered and one or both parents has accessible and affordable health coverage available for the child at a reasonable cost. Reasonable cost is defined at no more than 5% of a parent's gross wages.

(1) Each parent may be ordered to pay one-half of the insurance premiums and any uncovered services.

(2) The Tribal Court may incorporate responsibility for contribution to the cost of private health insurance as an upward or downward adjustment to the payor's child support obligation.

(3) The Tribal Court may not order a parent whose income is below 150% of the federal poverty level to enroll a child in a private health insurance plan or contribute to the cost of a private health insurance plan unless there is no cost to the parents.

Section YAE.09.12 — Deviation

(a) There is a rebuttable presumption that the award of child support pursuant to the guidelines listed above is appropriate. However, the Tribal Court may consider a deviation from the child support guidelines only after considering specific factors in this section. The Court must find by the preponderance of evidence that use of the guidelines is not in the best interests of the child and unfair to either of the parties. Any basis for a deviation from the guidelines must be included in the written order for support.

(1) The financial resources of the child and or both parents.

(2) Maintenance received by either parent.

(3) The needs of each party in order to support himself or herself at a level equal to the federal poverty guidelines.

(4) The needs of any person other than the child, whom either party is legally obligated to pay support.

(5) The desirability of the custodial party to remain in the home as a full-time parent.

(6) Extraordinary travel expenses incurred in exercising the right to periods of physical placement.

(7) The physical, mental and emotional needs of the child.

(8) The child's educational needs.

(9) The tax consequences to each party.

(10) The best interests of the child.

(11) The earning capacity of each parent, based on each parent's education, training and work experience and the availability of work in or near the parent's community.

(12) The agreement of the parties for a deviation.

Section YAE.09.13 — Post Judgment Modification Of Order.

(a) Every two (2) years from the date of the Order, the Tribal Child Support Agency Specialist shall initiate a review of the order to determine whether substantial changes of circumstances exist that merit a request for modification. The Agency shall petition the Court for modification if substantial changes of circumstances exist.

(b) The non-custodial parent, the custodial parent and any interested party has a right to ask for a review of their child support order. The review is done by the Tribal Court upon the request of the non-custodial parent, custodial parent or any other interested party, if there is a substantial change in circumstance.

(1) The child's placement is changed;

(2) Either parent or the child has a significant change in his or her finances that would lead to a change in child support of more than ten percent (10%) or forty dollars ($40.00) month;

(3) The payee is receiving public benefits and is required to have a current support order in place;

(4) It has been twenty-four (24) months since the date of the last child support order or revision to the child support order, unless the child support amount is expressed as a percentage; or

(5) A change has occurred and if the current circumstances had been in place at the time the order was issued, a significantly different order would have been issued.

(d) The Notice and Motion shall contain the name(s) of the Petitioner(s), Defendant(s), Co-defendants and the names and dates of birth of the children. The Notice and Motion shall be signed by the moving party and must include the date, time and location of hearing. The date of the hearing may be no earlier than ten (10) days from the date of service.

(e) The Notice and Motion shall indicate that each party has the right to be represented at their own expense.

Notices and Motions may be made by mail. A copy of the Notice and Motion shall be sent by regular mail to the non-moving party by the moving party. If the regular mail was not returned as undeliverable, the moving party shall file an Affidavit of Mailing which shall be filed in the docket with the Clerk of Court and shall constitute proof of service by mail.

(f) If the regular mail is returned as undeliverable, the moving party shall attempt personal service pursuant to Section YAE.09.06(e) or if that fails, service by publication pursuant to Section YAE.09.06(g).

Section YAE.09.14 — Enforcement Of Child Support Orders

(a) Agency Responsibilities. The Agency shall:

(1) Track and document the progress of a party who is under an enforcement action.

(2) Take additional enforcement action when a party fails to comply with a previous enforcement action.

(3) Document the reasons why an enforcement action is not taken, when such action would have been appropriate under the circumstances.

(4) Refund amounts that were improperly withheld, when possible, terminate wage withholding when appropriate and allocate amounts across multiple cases.

(b) Income Withholding.

(1) Following the issuance of an order for child support by the Tribal Court, the Tribal Child Support Agency shall issue a Federal Notice of Income Withholding and submit the Notice to the employer or other source of income of the payor.

(2) If the Tribal Court may find there is good cause to not issue an automatic income withholding order and if the parties agree in writing to not have automatic withholding, the Tribal Child Support Agency shall not issue a Notice of Income Withholding pursuant to Section YAE.09.14(b)(1) above. However, if the payor becomes delinquent in an amount equal to one month of child support, the Tribal Child Support Agency must issue a Notice of Income Withholding and submit to the employer or other source of income.

(3) Income Withholding Orders shall indicate the amounts to withhold and any additional amounts to repay any arrearages pursuant to the terms of the Order. The employer must submit all amounts withheld to the State Disbursement Unit no later than five (5) days following the date of withholding from the income. If the source of income is per capita of the Stockbridge-Munsee Tribe, the Tribal Child Support Agency shall provide the Treasurer with an income withholding form no later than forty-five (45) days prior to the scheduled release of the per capita payment.

(4) Foreign Income Withholding Orders. All withholding orders submitted from other jurisdictions shall be sent to the Child Support Agency for review and verification of enrollment, employment. The Agency shall send notice to the payor that this order has been received and forwarded for enforcement. Included in the notice shall be the right of the payor to object in writing to the enforcement within twenty (20) days of the notice. The only allowable objection to the recognition and enforcement of the income withholding order is a mistake of fact (error in the amount of current support or arrears) or a mistake of identity of the payor. (See Definition Section for "disposable income").

(5) The maximum amounts allowed to be withheld from any source of income shall be no more than fifty percent (50%) of the payor's disposable income available for child support.

(6) If the employer fails to withhold income in accordance with the terms contained in the Notice of Income Withholding, the employer will be liable for all amounts that should have been withheld from the payor.

(7) An employer may not discharge, refuse to employ or take disciplinary action against a payor based on the issuance of the income withholding notice. Should an employer take such action they will be subject of a contempt finding.

The Tribal Child Support Agency shall promptly terminate an income withholding order and provide the employer or other source of income a Notice of Income Withholding Termination notice when there is no current child support order and all arrearages have been satisfied.

(8) If income withholding is inapplicable, ineffective or insufficient to ensure payment of child support, other administrative enforcement actions may be utilized; including suspension, revocation or denial of tribal privileges such as loans and tribally issued permits or licenses, and other enforcement actions as more fully set forth below.

(c) Other Authorized Administrative Enforcement Actions. In the event that a payor is at least one (1) month delinquent in paying his or her child support obligation, he or she may, with notice, be subject to the following enforcement actions:

(1) increase in amount of wages withheld;

(2) placement on state and tribal lien docket;

(3) credit bureau reporting and reporting to the tribal loan department;

(4) intercept of income and/or other payments, including, to the extent possible, both federal and state income tax returns;

(5) seizure of personal property;

(6) suspension, revocation and or denial of state and tribally issued licenses and or permits;

(7) denial of passport;

(8) denial of loans;

(9) referral for criminal charges;

(10) any other enforcement action included in this law or in a rule established under this law.

(d) Tribal Court Enforcement Action. If the Agency does not have the authority to conduct the appropriate enforcement action, or the payor is unresponsive to the enforcement actions being imposed by the Agency, the case shall be referred to the Tribal Court for enforcement. The Court may order any of the enforcement actions the Agency is authorized to implement. In addition, the Court may order the following to enforce a child support order:

(1) Bonds and Other Guarantees. The Court may require a payor to provide a surety, bond or guarantee to secure the payment of arrears, if wage withholding is not applicable, practical or feasible to secure payment of arrears.

(2) Claims Against Estates.

(A) The Court may approve a claim for past and future support against a payor's estate.

(B) The Court may issue a restraining order against an estate from which a payor will inherit.

(3) The Court may order a payor to perform community service. The number of hours of work required may not exceed what would be reasonable considering the amount of arrears the payor owes. The payor shall be provided a written statement of the terms of the community service order and that the community service order is monitored. The order shall specify:

(A) how many hours of community service the payor is required to complete;

(B) the time frame in which the hours must be completed;

(D) any other information the Court determines is relevant.

(E) and that community service may not be interpreted or used in any way as an in-kind satisfaction of a child support or arrearages obligation.

(4) A payor who disobeys a lawful child support order shall be subject to punishment for contempt of court.

(A) A payor found in contempt of court may be subject to any of the civil enforcement remedies available to the court including civil forfeitures.

(B) The payor may be fined in an amount not to exceed one thousand dollars ($1,000.00) per act of contempt.

(D) In the event that the Tribe has entered into an agreement for jail services, as a last resort, the Court may consider a jail sentence.

(E) The Court in its order may offer purge conditions to the contempt order provided the purge conditions have a timeframe not to exceed thirty (30) days unless otherwise agreed to by all parties.

(e) Due Process and Requests for Court Hearings in Enforcement Actions. The Agency shall provide due process prior to taking enforcement actions. Due process at a minimum shall include an initial written notice and a final notice. The Agency shall promulgate such rules and regulations as are needed in order to enforce this provision.

(f) Objections to Enforcement Actions Limited. The only allowable objection for which a hearing may be requested is for "mistake of fact." The individual may allege for example that the amount of arrears is a mistake or that there has been a mistake of identity.

Section YAE.09.15 — Petition-Registration For Enforcement Of Foreign Order

(a) All requests from foreign jurisdictions shall be referred to the Tribal Child Support Agency for proper processing under this Section. The Tribal Court will recognize any valid child support order that is properly registered with the Tribal Court pursuant to 28 U.S.C. §1738B, Federal Full Faith and Credit for Child Support Orders Act.

(b) The Petition shall include:

(1) The name of the petitioner;

(2) The name of the payor;

(3) Statement that upon information and belief the payor is an enrolled member or employee of the Stockbridge-Munsee Community;

(4) The name of the child and other children that the payor may have child support obligations;

(5) The amount of arrears;

(6) A copy of the most recent court order that the foreign jurisdiction is seeking to enforce;

(7) The record of payment over the past twelve months;

(8) The amount or percentage of the per capita payment sought from the petition;

(9) The person or entity that should be paid if the petition is granted;

(10) Any other relevant information that will aid the court;

(11) Any filing fee as required by the Tribal Court must accompany the petition;

(12) Service shall be made by the Tribal Child Support Agency of the registration action by sending a copy of the petition to the payor. Included in the notice shall be the right of the payor to object in writing to the registration within twenty (20) days of the notice. The only allowable objection to the recognition and enforcement of a judgment is a mistake of fact (error in the amount of current support or arrears) or a mistake of identity of the payor.

Section YAE.09.16 — Enforcement Of Foreign Judgment

(a) A judgment shall be considered enforceable after it is signed by the judge as a Court Order and twenty (20) days have lapsed and no objection by the payor has been received.

(b) The Court Order shall not allow any modification of the underlying child support order or otherwise change the payment percentage, or other payment amount in the underlying child support order.

(c) The Tribal Child Support Agency shall issue a Federal Notice of Income Withholding and submit the Notice to the employer or other source of income of the payor.

(1) Income withholding orders shall indicate the amounts to withhold and any additional amounts to repay and any arrearages pursuant to the terms of the Order. The employer must submit all amounts withheld to the State Disbursement Unit within five (5) days following the date of withholding from the payor's income.

(2) If the source of income is per capita of the Stockbridge-Munsee Tribe, the Tribal Child Support Agency shall provide the Treasurer with an income withholding form no later than forty-five (45) days prior to the scheduled release of the per capita payment.

(3) The maximum amounts allowed to be withheld from any source of income shall be no more than fifty percent (50%) of the payor's gross income.

(4) If the employer fails to withhold income in accordance with the terms contained in the Notice of Income Withholding, the employer will be liable for all amounts that should have been withheld from the payor.

(5) An employer may not discharge, refuse to employ or take disciplinary action against a payor based on the issuance of the income withholding notice. Should an employer take such action they will be subject to a contempt finding. A finding of contempt may result in a forfeiture of up to $1,000.00 per act and each day may constitute a separate act.

Section YAE.09.17 — Amendments

(a) This Ordinance shall be reviewed no less than every four years. Amendments to this Ordinance will be effective upon enactment by the Stockbridge-Munsee Community Tribal Council without further review by the Secretary of the Interior.

Chapter YAE.10 — Elder/Youth License Ordinance

Legislative History

1. Resolution No. 057-99, adopted September 7, 1999, approved by BIA November 1, 1999.

2. Resolution No. 082-99, adopted December 6, 1999, approved by BIA December 17, 1999.

3. Resolution No. 09-2000, adopted March 21, 2000, approved by BIA March 29, 2000.

4. Wisconsin Department of Health and Family Services approves Tribal Elder/Youth License and Tribe as a Tribal Designated Rehabilitative Review Agency, May 8, 2000.

5. Resolution No. 071-02, adopted November 19, 2002, approved by BIA December 31, 2002.

6. Resolution No. 056-03, adopted December 16, 2003, approved by BIA January 22, 2004.

7. Resolution No. 01-11, adopted October 26, 2010.

Section YAE.10.01 — Purpose, Findings, And Scope

(a) Purpose: In general, the Tribe must adhere to federal law and state law by conducting criminal background checks on employees and volunteers who work with youth. The purpose of this Ordinance is to meet the specific needs of the Community and adhere to the applicable state and federal laws.

(b) Tribal Council Findings:

(1) Tribal Council recognizes that elders and youth are vulnerable members of the Community who should not be placed at risk by being placed in the care of persons who may have a propensity to harm elders/youth. Tribal Council finds that in the interest of ensuring that elders/youth utilizing tribal services are not exposed to individuals who have a propensity to harm elders/youth, an individual desiring a position with elders/youth is subject to a background investigation and must obtain an elder/youth license.

(2) Tribal Council also recognizes the importance of optimal employment opportunities to the Community. Tribal Council finds that if an applicant is unable to obtain an elder/youth license, the applicant should not automatically be denied other employment within the same facility, or for other positions within the Tribe. Tribal Council recognizes that specific employment duties for one position may require an elder/youth license while another position within the same facility may not require a license.

(c) Scope: This Ordinance applies to all Tribal employment positions, service contracts, and volunteer positions that have regular contact or control over elders/youth, and to boards and committees whose responsibilities and duties provide access to elders/youth. In general, the Ella Besaw Center, the Health Center, the Day Care Center, Head Start, and the Family Center are within the scope of licensing. However, this Ordinance is intended to include other Tribal departments, agencies, entities, or persons if they have regular contact or control over elders/youth, or if other Tribal/federal/state laws are applicable.

Section YAE.10.02 — Definitions

(a) "Abuse" means abuse as defined in Wis. Stat. § 48.02(1), Wis. Stat. §46.90(1), and Wis. Admin. Code § Ch. HFS 13.03(1).

(b) "Applicant" means a potential employee, volunteer, volunteer organization, or service contractor who is seeking a Tribal elder/youth license or an elder/youth licensee whose license is under review.

(d) "CIB" means the Criminal Information Bureau administered through the Wisconsin Department of Justice.

(e) "Clear and convincing evidence" means more than 'more likely than not', but less than 'reasonable doubt.'

(f) "Compliance" means the Tribal Compliance Department.

(g) "Conviction" means an adjudication where the applicant has been convicted of a crime, or pleaded guilty or no contest to a crime in a court of competent jurisdiction.

(h) "Crimes list" means the list of statutory crimes contained in the table in Section YAE.10.12.

(i) "Degree of risk review" means the applicant has a conviction for a crime, the conviction is not a permanent bar crime from the crimes list, and the applicant's degree of risk to elders/youth is resolved through a Preliminary Determination and a Final Determination conducted by Human Resources.

(j) "Elder" means a person over fifty-five (55) years old, or a person eligible for elder tribal services.

(k) "Elders/Youth" means elders or youth.

(l) "Employment" as used in this Ordinance means the applicant, volunteer, or service contractor is performing work or services for the Tribe.

(m) "Finding" means the Tribal Social Worker, Indian Child Welfare Agency, county Social Services, or similar agency has determined by the preponderance of the evidence that neglect, abuse, or misappropriation of property has occurred against the applicant.

(n) "Human Resources" means the Human Resources Department of the Stockbridge-Munsee Community.

(o) "Indirect or irregular contact or control" means applicants who primarily perform clerical, administrative, maintenance or other support functions and are not expected to have regular contact or control with elders/youth or their personal property. Indirect or irregular contact or control also means occasional contact with elders/youth.

(p) "License" means a revocable permit issued by the Human Resources department to an applicant who successfully completes a criminal background check.

(q) "Neglect" means failure, refusal, or inability to provide necessary care, food, clothing, medical, dental care, or shelter to an individual, for reasons other than poverty, so as to seriously endanger the physical health of an individual.

(r) "Pending charge" means the applicant has been charged with a crime and there has been no adjudication.

(s) "Permanent bar crime" means a crime on the Crimes List that makes the applicant ineligible from obtaining an elder/youth license.

(t) "Position", as used in this Ordinance, means employment, volunteer or service contracts with the Tribe and whose duties have direct and regular contact with elders/youth.

(u) "Preponderance of the evidence" means 'more likely than not.'

(v) "Record" means the employment application, license application, investigation summary, preliminary and final determination documentation, and correspondence between the applicant and Human Resources, and other relevant information obtained in the licensing process.

(w) "Regular contact or control" means in the course of performing the applicant's expected duties, the person will have direct, frequent, or singular contact (unsupervised one-on-one contact) over one or more elders/youth, or their property. Applicants having any overnight duties shall be considered regular contact or control. Occasional contact with elders/youth shall not be considered regular contact or control.

(x) "Sexual Registry" means the Wisconsin Department of Corrections Sexual Offender Registry Information System, a similar state or federal registry.

(y) "Volunteer", as used in this Ordinance, means a person not employed by the Tribe, but performs functions or services for the Tribe. Volunteer also includes a person who accompanies elder/youth on any overnight activities, or a person not directly supervised by an Elder/Youth licensee.

(z) "Volunteer Organizations", as used in this Ordinance, means programs that are administered or funded by the Tribe, but does not include organizations that receive Tribal donations and are not administered by the Tribe.

(aa) "Youth" means a person under the age of eighteen (18) years old.

Section YAE.10.03 — Licensed Positions

(a) Human Resources shall compile and regularly update an accurate list of employment and service contract positions that require an Elder/Youth license.

(1) Positions that require a license shall be positions where the applicant has regular contact or control with or over elders/youth.

(2) Positions excluded in most situations, should be positions that have irregular contact or control with or over elders/youth.

(3) Job postings, applicable contracts, and applicable volunteer postings shall state the applicant must obtain an elder/youth license to be eligible for employment.

(4) All records involved in the licensing process shall be confidential, stored, and preserved in Human Resources, except records that are required to be disclosed for lawful regulatory purposes.

(5) All current applicants who have regular contact or control with and over elders/youth must obtain an Elder/Youth license.

(b) Department Managers/Directors shall compile and regularly update an accurate list of volunteer positions and volunteer organizations that require licensing, utilizing the criteria in (a)(1), (2) and submit the list to Human Resources.

(c) At the end of each Tribal fiscal year, Human Resources shall report to the state Department of Health and Family Services the total number of licenses applied for, the number of denials, and the number of licenses approved in order that the DHFS may submit the statistical information to the Wisconsin legislature.

Section YAE.10.04 — License Application

(a) Applications that require licensing must have a separate elder/youth license application, in addition to the regular employment application.

(1) License application asks applicant if they have ever been arrested, detained, charged, convicted or pleaded nolo contendere.

(2) License application clearly states that a thorough background check will be conducted.

(3) License application shall state that an omission or misleading information on the license application shall be grounds for a revoking the license and/or denial of license.

(4) License application shall state that the license only makes the applicant eligible for the position, and a successful background investigation does not entitle or guarantee the applicant a position with the Tribe.

(5) Application shall state that if the applicant is licensed and hired for the position, the applicant shall be subject to subsequent background investigations, as a condition of the applicant's employment.

(6) From completed license application, Human Resources determines if any information on the application might permanently bar the applicant from obtaining a license.

(A) Human Resources consults with the Legal Department regarding any legal issues from the license application that might permanently bar an applicant from obtaining an elder/youth license.

(B) If the license application permanently bars the applicant from obtaining a license, the applicant is informed in writing that a determination has been made that the applicant is unable to obtain an elder/youth license.

(i) The notification specifically states that the crime listed on the application is a permanent bar crime and a license cannot be issued.

(ii) The notification states that the applicant has a right to appeal the determination to Tribal Court.

(iii) The notification states that the applicant is not barred from applying for other positions that do not require elder/youth license.

(b) Chapter EMP.02, the Employee Preference Policy Ordinance, is not applicable to this Ordinance.

Section YAE.10.05 — Background Check

(a) If the applicant's license application does not prevent the applicant from obtaining a license, Human Resources, by written notification, requests Compliance to conduct criminal background check of applicant.

(1) Compliance conducts CIB, fingerprint background investigation, and investigates (but is not limited to) the following:

(A) Applicable state and tribal courts shall be contacted if the applicant has resided in other states and/or on Indian reservations.

(B) Other technology may be supplemented with the CIB and fingerprint background investigation if the other technology is more efficient and as reliable as the CIB and fingerprint investigation.

(D) Information maintained by the Wisconsin department of regulation and licensing regarding the status of the person's credentials, if applicable.

(2) Compliance requests information from applicable county and/or Indian Child Welfare regarding findings of abuse, neglect, or misappropriation of property of a client/elder/youth against the applicant.

(3) Compliance submits written report of background investigation to Human Resources.

(b) Human Resources shall contact the Tribal Legal Department for clarification of crimes.

Section YAE.10.06 — Provisional License

(a) The technology that exists in 1999 prevents a fingerprint investigation from being completed before 6-7 weeks. It is very difficult for the Tribe to provide adequate service to the elders/youth if positions are held open 6-7 weeks awaiting results of the fingerprint background check. Therefore, in the following situation a provisional Elder/Youth license may be issued by Human Resources to the applicant:

(1) Category I Crimes:

(A) The license application and the CIB do not have any convictions that are Category I crimes, and,

(B) There have been no findings from an applicable agency, and,

(2) Category II Crimes:

(A) There has been a finding, or conviction from the application or CIB that is a Category II crime, and,

(B) The applicant's name does not appear in the sexual registry, and,

(C) Human Resources has made a Preliminary Determination that the risk of harm to elders/youth does not prevent the applicant from receiving a provisional elders/youth license.

(b) The provisional license shall be issued for no longer than 120 calendar days.

(1) The provisional license is a temporary license pending, at a minimum, a completed finger print investigation.

(2) If the background investigation cannot be completed within 120 calendar days, Human Resources may extend the provisional license in 30-day increments until the background investigation is completed.

(3) If further investigation reveals that the applicant has a Category I conviction, the applicant's provisional license shall be suspended by Human Resources and the license application shall proceed through Preliminary and Final Determinations.

(4) If further investigation reveals that the applicant has a Category II conviction, or that the applicant might not be eligible for licensing the provisional license may be suspended by Human Resources, and the license application shall proceed through the Preliminary and Final Determination process.

(5) If the provisional license is suspended, the applicant is not eligible to work with elders/youth in any capacity.

Section YAE.10.07 — Preliminary Determination

(a) Human Resources shall make a Preliminary Determination by utilizing Risk Review Procedures whether an applicant is eligible for licensing after reviewing the application, CIB, findings, Sexual Registry results, and fingerprint (if available) reports from Compliance.

(1) Two individuals must be involved to make the Preliminary Determination. In most case, the two individuals should be from Human Resources. If Human Resources has only one individual available to make the Preliminary Determination, the Tribal Administrator shall be substituted.

(2) The intent of the Preliminary Determination is twofold:

(A) If it appears that the applicant might not be eligible for licensing, Human Resources must reduce to writing the specific reasons why an applicant might not be eligible for licensing, and,

(B) Provide the applicant an opportunity to clarify, refute, or dispute information contained in the background investigation.

(3) If the background investigation leads to a Preliminary Determination that a license will be not be issued, the applicant receives written notification from Human Resources by U.S. mail that a Preliminary Determination has been made that the applicant is not eligible for licensing.

(4) The notification must contain:

(A) A statement that a Preliminary Determination indicates that the applicant is not eligible for licensing.

(B) A specific statement regarding the information or factors that led to the preliminary decision.

(C) A statement that a Final Determination will be made 10 business days from the date the notification was sent, and the applicant must respond in writing to Human Resources.

(i) The notification must state that if the applicant does not respond to Human Resources with 10 business days, the applicant waives their right to appeal to Tribal Court.

(ii) If the applicant does not respond within 10 business days to explain, deny, or refute unfavorable and incorrect information from the background investigation, Human Resources will make a Final Determination denying the Elder/Youth license to the applicant.

(D) A statement that the applicant has the opportunity and responsibility to explain, deny, or refute unfavorable and incorrect information gathered in the investigation before the Final Determination is made.

(E) A written summary of the background investigation and explanation of the process Human Resources utilized in making its decision.

(i) The applicant is not entitled to view the actual reports (from federal, state, tribal, or county courts or agencies) utilized in the investigation, but may view summaries compiled by Compliance or Human Resources.

(ii) The applicant may contact the originating federal, state, tribal, or county court or agency to receive a copy of the actual reports that Compliance and/or Human Resources utilized in order to challenge the accuracy and completeness of the report.

Section YAE.10.08 — Final Determination

(a) Human Resources shall make a Final Determination whether a license shall be issued after the applicant has had an opportunity to respond to the Preliminary Determination.

(1) Two individuals must be involved to make the Final Determination. In most cases, the two individuals should be from Human Resources. If Human Resources has only individual available to make the Final Determination, the Tribal Administrator shall be substituted.

(b) If the applicant has not responded to the Preliminary Determination to deny a license, Human Resources shall make a Final Determination.

(1) Human Resources may review the Preliminary Determination to make the Final Determination, but is not obligated to.

(2) Human Resources, via U.S. mail must notify the applicant that a Final Determination has been made

(A) The notification shall contain the applicable portions from the Preliminary Determination.

(B) The notification shall state that because the applicant did not respond to the Preliminary Determination, the applicant has waived their right to appeal, unless good cause can be shown to the Tribal Court.

(c) If the applicant has responded to the Preliminary Determination, Human Resources shall make a Final Determination utilizing the Risk Review Procedures and shall consider the following:

(1) Despite the potential risk of harm to elders/youth, has the applicant has demonstrated by clear and convincing evidence that the applicant should not pose a foreseeable threat to elders/youth and is eligible for licensing.

(d) If the applicant has responded to the Preliminary Determination and is not eligible for licensing, the applicant receives written notification via U.S. mail that a Final Determination has been made that the applicant is not eligible for licensing.

(1) The final notification must contain:

(A) Relevant information from the Preliminary Determination.

(B) Notice of right to appeal to Tribal Court, if the applicant has not waived their right to appeal.

(D) A statement that the applicant may reapply for licensing 24 months from the date of this application being initiated by the applicant.

(e) If a license is issued to the applicant, the license shall be valid for no longer than four years, and shall be subject to subsequent background investigations.

Section YAE.10.09 — License Review

(a) Every four years, from the date of licensing, the licensee shall be subject to review of their license including a complete background investigation.

(1) Human Resources notifies the licensee, and the licensee's immediate supervisor, that the license will expire in 120 days and the licensee must reapply to Human Resources within 14 calendar days to have their license renewed.

(2) Compliance shall conduct a complete background investigation, as in Section YAE.10.05(a).

(3) If the license review indicates that the license may not be reissued, the procedures from the preliminary and Final Determinations shall be utilized.

(b) If Human Resources or Compliance has reason to believe that a license review is necessary before the expiration of the license, and Human Resources requests additional information, Compliance shall conduct additional background investigation and Human Resources shall review the employee's license.

(1) If reasonable cause exists, Human Resources has the authority to immediately suspend a license. Reasonable cause is to be determined on a case by case basis, but may include knowledge of new facts, pending charge(s), or other significant factors that would otherwise affect license eligibility.

(A) Two individuals must be involved to the make the decision to suspend a license. In most cases, the two individuals should be from Human Resources. If Human Resources has only one individual available to make the decision, the Tribal Administrator shall be substituted.

(B) If the license is suspended, the person must be notified via U.S. mail. The notification must contain a written summary of Human Resources' findings and conclusions. If the person's license is suspended, the person is not eligible to work or volunteer with elders/youth in any capacity that requires a license, while the license is suspended. If the license is suspended, the person has the right to appeal the decision pursuant to Section YAE.10.10.

(2) Revocation of license: Human Resources has the authority to revoke a license provided that Human Resources utilizes the procedures contained in Section YAE.10.07 Preliminary Determination and Section YAE.10.08 Final Determination.

(c) All licensees have an ongoing obligation to inform Human Resources if there are any arrests, charges, convictions, no contest pleas, or findings against the licensees.

Section YAE.10.10 — Appeal Rights And Limited Waiver Of Sovereign Immunity

(a) Notwithstanding Chapter TCT.02 of the Tribal Ordinances, the Tribal Court has jurisdiction to review Human Resources Final Determination if an applicant has been denied an elder/youth license, if the applicant has not waived their right to appeal by failing to respond after the Preliminary Determination.

(1) The Tribal Court may grant jurisdiction to an applicant who has waived their right to appeal only if good cause can be shown.

(b) The Tribal Court hearing shall be closed to the public, except for the relevant parties to the case.

(c) The Tribal Court's review shall be from the record of the license application process, unless good cause can be shown.

(d) The Tribal Court's standard of review is abuse of discretion.

(1) Because the licensing determination is very fact specific, is performed by a Tribal department that regularly makes Human Resource/employment decisions, and Tribal Council has determined that elders/youth are in need of protection, the Tribal Court's review of the license determination will be restricted to the following:

(A) The Court will not remand a Human Resource's Final Determination unless,

(i) Human Resources made a plain error in the process of making of making its Final Determination, or,

(ii) The determination to deny a license was so unreasonable that a reasonable person could not have made a similar determination.

(2) The applicant's sole remedy is to remand the Final Determination to Human Resources for reconsideration of the Final Determination.

(e) Standing: Only the applicant (or their attorney) has standing to request that the Tribal Court review the Final Determination.

(f) The waiver provided in this Ordinance is granted only for suits in the Stockbridge-Munsee Tribal Court. The Stockbridge-Munsee Community does not waive its immunity from suit to any suits brought in any court other than the Stockbridge-Munsee Community Tribal Court.

(g) Notwithstanding the Administrative Appeals Ordinance (Section TCT.02.23), and notwithstanding waivers contained in some Tribal Ordinances and procedures, the terms of this appeal Ordinance control all aspects of the appeal process for this Ordinance.

(h) Applicant shall pay a filing fee of twenty-five dollars to the Tribal Court, unless the Tribal Court waives the fee upon a showing of financial hardship.

Section YAE.10.11 — Date Of Applicability

(a) This Ordinance shall take effect 30 calendar days after approval from the Bureau of Indian Affairs.

(b) All current applicants, employees, volunteers, volunteer organizations that are within the scope of this Ordinance must apply for an Elder/Youth license within 60 calendar days after this Ordinance takes effect.

Section YAE.10.12 — Elder/Youth License Crimes List

Wisconsin Statutes	Crimes	Category I – Permanent Bar	Category II – Risk Review
346.63	OWI (F) (F) If with passenger < 16 yoa (F) If 3^rdor greater offense		XX XX
346.62(4)	Reckless Driving – Causing Great Bodily Harm		XX
346.67	Hit and Run – Causing Great Bodily Harm or Death		XX
346.67	Hit and Run – Cause Bodily Harm or Property Damage		XX
940.01	1^st Degree Intentional Homicide	XX
940.02	1^st Degree Reckless Homicide	XX
940.03	Felony Murder	XX
940.05	2^nd Degree Intentional Homicide	XX
940.06	2^nd Degree Reckless Homicide	XX
940.07	Homicide by Negligent Control of a Dangerous Animal		XX
940.08	Homicide by Negligent Handling of Dangerous Weapon, Explosives or Fire	XX
940.09	Homicide by Intoxicated Use of a Vehicle or Firearm		XX
940.12	Assisting Suicide	XX
940.19(1)	Battery (Misdemeanor)		XX
940.19(2)-(6)	Battery (Felony)	XX
940.19(5)	Battery to an Unborn Child		XX
940.20	Battery – Special Circumstances		XX
940.20(3)	Battery or Threat to Witnesses		XX
940.203	Battery or Threat to Judge		XX
940.205	Battery or Threat to a Department of Revenue Employee		XX
940.207	Battery or Threat to a Dept. of Commerce or DIHL Employee		XX
940.21	Mayhem	XX
940.22(2)	Sexual Exploitation by Therapist, Sexual Contact	XX
940.22(3)	Sexual Exploitation by Therapist – Duty to Report	XX
940.225(1)	1^st Degree Sexual Assault	XX
940.225(2)	2^nd Degree Sexual Assault	XX
940.225(3)	3^rd Degree Sexual Assault	XX
940.225(3m)	4^th Degree Sexual Assault	XX
940.23	Reckless Injury		XX
940.25	Injury by Intoxicated Use of a Vehicle		XX
940.285(F) (M)	Abuse of Vulnerable Adults (Felony and Misdemeanor)	XX
940.29	Abuse of Residents of a Penal Facility	XX
940.291	Law Enforcement – Failure to Render Aid	XX
940.295 (F) (M)	Abuse/Neglect of Patients and Residents	XX
940.30	False Imprisonment		XX
940.305	Taking Hostages	XX
940.31	Kidnapping	XX
940.32	Stalking (Felony)	XX
940.32	Stalking (Misdemeanor)		XX
940.43	Intimidation of Witnesses		XX
940.45	Intimidation of Victims (F or M)		XX
941.20(1)	Endangering Safety – Dangerous Weapon (M)		XX
941.20(2) or (3)	Endangering Safety – Dangerous Weapon (F)	XX
941.21	Disarming a Peace Officer		XX
941.30	Recklessly Endangering Safety		XX
941.32	Administering Dangerous or Stupefying Drug	XX
941.38	Criminal Gang Member Solicitation & Contact	XX
942.08	Invasion of Privacy	XX
943.10(1)	Burglary		XX
943.10(2)	Burglary While Armed		XX
943.20	Theft		XX
943.201	Misappropriation of Personal Identifying Information or Documents		XX
943.23(1g, 1m,or 1r)	Operate Motor Vehicle without Owners Consent		XX
943.32(1)	Robbery (F)		XX
943.32(2)	Robbery with a Dangerous Weapon	XX
943.50	Retail Theft		XX
944.20	Lewd and Lascivious Behavior	XX
944.205	Photographs, Motion Pictures, Videotapes, or Other Visual Representations Showing Nudity	XX
946.43	Assaults by Prisoners		XX
946.74(1)	Aiding Escape from Mental Institution (Misdemeanor)		XX
946.74(2)	Aiding Escape from Mental Institution (Felony)		XX
947.013	Harassment Forfeiture Misdemeanor Felony	XX XX	XX
948.02(1)	1^st Degree Sexual Assault of a Child	XX
948.02(2)	2^nd Degree Sexual Assault of a Child	XX
948.02(3)	Sexual Assault of a Child – Failure to Act	XX
948.02(3m)	Sexual Assault of a Child – Sexual Assault by Certain Persons	XX
948.025	Repeated Acts of Sexual Assault of Same Child	XX
948.03(2)	Physical Abuse of a Child - Intentional	XX
948.03(3)	Physical Abuse of a Child – Reckless	XX
948.03(4)	Physical Abuse of a Child – Failure to Act	XX
948.04	Causing Mental Harm to a Child	XX
948.05	Sexual Exploitation of a Child	XX
948.055	Causing a Child to View or Listen to Sexual Activity	XX
948.06	Incest with a Child	XX
948.07	Child Enticement	XX
948.08	Soliciting a Child fro Prostitution	XX
948.09	Sexual Assault with a Child Age 16 or Older		XX
948.095	Sexual Assault of Student by School Staff	XX
948.10	Exposing Genitals or Pubic Area	XX
948.11(2a)	Exposing a Child to Harmful Material (Felony)	XX
948.11(2b)	Exposing a Child to Harmful Material (Misdemeanor)	XX
948.12	Possession of Child Pornography	XX
948.13	Child Sex Offender Working with Children	XX
948.20	Abandonment of a Child	XX
948.21	Neglecting a Child (Misdemeanor)		XX
948.21	Neglecting a Child – Result in Death (F)	XX
948.22	Failure to Support (F)		XX
948.23	Concealing Death of Child	XX
948.24	Unauthorized Placement for Adoption	XX
948.30	Abduction of Another's Child; Constructive Custody	XX
948.31	Interference with Custody by Parent or Others		XX
948.35	Solicitation of a Child to Commit a Felony	XX
948.36	Solicitation of a Chile to Commit a Class A Felony	XX
948.40	Contribute to the Delinquency of a Minor (M)		XX
948.40	Contribute to the Delinquency of a Minor (F)	XX
948.51	Hazing Felony Misdemeanor	XX	XX
948.60	Possession of a Dangerous Weapon by Person Under 18 (Felony)		XX
948.605(3)	Gun-Free School Zones; Discharge of Firearm (F)		XX
948.61	Dangerous Weapons Other Than Firearms on School Premises		XX
948.62	Receiving Stolen Property from a Child (Felony)		XX
********	ALL OTHER 948 CRIMES THAT ARE FELONIES		XX
961.41(1)	Manufacture, Distribution, or Delivery		XX
961.41(1m)	Possession with Intent to Manufacture, Distribute, or Deliver		XX
961.41(3g)	Possession (F)		XX
961.43(1)(a)	Acquire or Obtain Possession of a Controlled Substance by Misrepresentation, Fraud, Forgery, Deception, or Subterfuge (Felony)		XX
961.43(1)(b)	To Possess/Make a Counterfeit Substance or to Duplicate the Appearance, Packaging, Form or Label of a Controlled Substance (Felony)		XX
961.455	Using a Child for Illegal Drug Distribution or Manufacturing Purposes	XX
961.46	Distribution to Persons Under 18 (Felony) (Misdemeanor)	XX XX
961.465	Distribution to Prisoners		XX
961.49	Distribution of or Possession with Intent to Deliver at or Near Certain Places	XX
961.492	Distribution of or Possession with Intent to Deliver on Public Transit (Felony)		XX
961.575	Delivery of Drug Paraphernalia to a Minor (Misd)	XX
********	ALL OTHER 961 CRIMES THAT ARE FELONIES	XX
All crime convictions include attempt, conspiracy, solicitation, or party to crimes If conviction is from another jurisdiction and involves all elements of an above-listed crime, that conviction or plea is treated as the above-listed crime

Chapter YAE.11 — Elder Protection Code

Legislative History

1. Resolution No. 07-08, adopted December 4, 2007, approved by BIA May 9, 2012.

Section YAE.11.01 — Authority.

(a) Article VII.1.f. of the Stockbridge-Munsee Community Constitution grants the Tribal Council the power to promulgate and enforce ordinances governing the conduct of members of the Community.

Section YAE.11.02 — Purpose.

(a) The purpose of this Code is to establish Tribal law to protect the Elders of the Stockbridge-Munsee Community from abuse, neglect, and exploitation. The Stockbridge-Munsee Community honors, respects, and protects its Elders. Our Elders possess unique and irreplaceable stores of knowledge, skill, and experience that enhance and enrich the lives of the entire Community. The interests of the Community, now and in the future, are advanced when our Elders remain confident they are protected from abuse, neglect, and exploitation and free to fully participate in the activities and proceedings of the Community.

(b) The Stockbridge-Munsee Tribal Council enacts this Code to provide for public peace and good order of the Stockbridge-Munsee Reservation and to minimize health and accident hazards within the exterior boundaries of the reservation.

(c) The Stockbridge-Munsee Tribal Council enacts this Code because it is necessary to protect the social, economic and political well being of the Stockbridge-Munsee Community and its members.

(d) The Stockbridge-Munsee Tribal Council further finds this Code crucial to protect the health, safety, and welfare of the members of the Tribe and to protect and preserve the familial obligations and duties to our Elders.

Section YAE.11.03 — Scope.

(a) This Code supplements and expands on those protections afforded to all Tribal members in the Community's Domestic Abuse Ordinance (Chapter DMR.03) and Family Violence Ordinance (Chapter DMR.04). The provisions of this Code shall control in event of conflicting or inconsistent policy or procedures of the Community's Domestic Abuse Ordinance and/or Family Violence Ordinance.

(b) This Code shall be liberally construed to affect the purpose and scope stated above and shall be interpreted to comply with the customs and traditions of the Stockbridge-Munsee Community.

Section YAE.11.04 — Declaration Of Policy.

(a) The dignity and self-reliance of the Community's Elders shall be acknowledged and respected by family members, the Tribal community, and employees of the Community. The rights of each Elder shall be protected. See Section YAE.11.18, Rights of Elders, Their Families, Caretakers and Guardians for specific rights and protections.

(b) The Community further recognizes that Elder abuse, as a family problem, is not a private matter when the well-being and safety of an Elder is endangered.

(c) The Community recognizes that many Elders suffer the infirmities of aging and may be in need of protective services. These services should, to the maximum degree feasible under programs, services, and resources available within federal, state, and Tribal funds limits, allow the Elder the same rights as all Tribal members, and at the same time protect the Elder from abuse, exploitation, and degrading treatment.

(d) The Community shall establish those services and assure their availability to all Elders when in need of them and to place the least possible restrictions on personal liberty and exercise of rights consistent with due process and protection from abuse, neglect, and exploitation.

(e) The Elderly Steering Committee ("ESC") shall be consulted during the development of implementing plans and programs and shall review and recommend amendments as required.

(f) Each Elder shall be encouraged to create a Living Will, designate a Durable Power of Attorney for healthcare, and/or designate a Durable Power of Attorney for finance and property to ensure the Elder's wishes and protection in the event of incapacitation.

(g) Specifically, this Code requires the following:

(1) There shall be prompt reporting to the Stockbridge-Munsee Department of Elderly Services ("DES") of abuse, neglect or self-neglect, or exploitation of an Elder.

(2) The DES shall take action upon receipt of a report of suspected cases of the abuse, neglect or self-neglect, or exploitation of an Elder by documenting any reported incident and notifying appropriate agencies.

(3) The DES shall work in conjunction with other appropriate agencies in the delivery of Elder protection services.

(4) The DES shall develop and establish appropriate procedures and/or MOA's with appropriate agencies to implement this Code.

Section YAE.11.05 — Definitions.

Terms used in this Code have the following meaning:

(a) "Abandonment" means the failure of the family, caretaker, or guardian to provide reasonable support and to maintain regular contact with an Elder.

(b) "Abuse" means one or more of the following:

(1) The intentional or negligent infliction of bodily harm, unreasonable confinement, or intimidation causing mental anguish by any person, including a person having a special relationship with the Elder, e.g., a spouse, child, or other relative, or a caretaker.

(2) The infliction of physical, emotional, or mental injury on an Elder, or sexual abuse or exploitation of an Elder.

(3) Attempting to cause or causing physical harm, bodily injury, or assault on an Elder or the Elder's family, household or caretaker. This includes, but is not limited to, beating, choking or burning, inappropriate medication or tying or locking a person up. This also includes sexual abuse, which occurs when a person has been forced, tricked, threatened, or otherwise coerced into sexual contact against one's will.

(4) Material Abuse, sometimes called financial exploitation, or the misuse of an Elder's money or property.

(c) "Advocate" means manager of DES designated to provide oversight of Elder abuse prevention and intervention programs and to ensure Elders have access to and the benefit of protective services.

(d) "Caretaker" means any of the following:

(1) A person who is required by Tribal law or custom or state law to provide services or resources to an Elder.

(2) A person who voluntarily undertakes to provide care, services, or resources to an Elder.

(3) An institution or agency which voluntarily or is required by Tribal law or custom, state or federal law, or contract to provide services or resources to an Elder.

(4) An employee of any institution or agency specified in Section YAE.11.03.

(e) "Court" means the Stockbridge-Munsee Community Tribal Court.

(f) "Community" means the Stockbridge-Munsee Community.

(g) "DES" means the Stockbridge-Munsee Community Department of Elderly Services.

(h) "Elder" means any person subject to the jurisdiction of the Community who is fifty-five (55) years of age or more.

(i) "Emergency" means any situation in which an Elder is immediately at risk of death or injury and is unable to consent to services that would remove that risk.

(j) "Exploitation" means any of the following:

(1) The improper use or attempted misuse of funds, property, or other resources of an Elder.

(2) The improper use or attempted misuse of an Elder by any person for personal gain or profit or otherwise. This includes, but is not limited to, deception, diverting income, mismanagement of funds.

(3) The failure or refusal to use the funds, property, or other resources of an Elder either for the Elder's benefit or according to the Elder's desires.

(4) Any similar act, whether criminal or civil in nature, that is in violation of the norms and values of a reasonably prudent person

(k) "Family" means all of the customary family relationships recognized by the Community, including extended family relationships.

(l) "Guardian ad Litem" means the person appointed by the Court to take legal action on behalf of an Elder (a ward of the court) and to make decisions for the Elder including consent to or refusal of medical treatment.

(m) "Guardian of Property" means the person appointed by the Court to manage the property of an Elder.

(n) "Good Faith" means an honest belief or purpose and the lack of intent to defraud.

(o) "Incapacity" means the current inability of a person to sufficiently understand, make, and communicate responsible decisions about him or herself and to understand the consequences of any such decision as a result of physical illness or disability, mental illness, deficiency or disability, or chronic use of drugs or alcohol. Incapacity may vary in degree and duration and shall not be determined solely on the basis of age.

(p) "Investigator" means a person who may or may not be a member of law enforcement who has the authority to initiate and complete an investigation regarding elder abuse.

(q) "Infirmities of Aging" means organic brain damage caused by advanced age or other physical degeneration in connection therewith to the extent that the person so afflicted is substantially impaired in his or her ability to adequately provide for his or her care or custody.

(r) "Least Restrictive Alternative" means an approach which allows an Elder independence and freedom from intrusion consistent with the Elder's needs by requiring that the least disruptive method of intervention be used when intervention is necessary to protect the Elder from harm.

(s) "Living Will" means the written instructions that tell medical physicians and family members what life-sustaining treatment one does or does not want if one becomes unable to make decisions at some future time.

(t) "Neglect" means any of the following:

(1) The failure of an Elder's family, guardian, or caretaker to provide for the basic needs of an Elder by not supplying resources, services, or supervision necessary to maintain an Elder's physical and/or mental health and includes the inability of an Elder to supply such basic needs for him or herself.

(2) The interference with the delivery of necessary services or resources.

(3) The failure to report abuse, neglect, or exploitation of an Elder.

(4) The failure to provide services or resources essential to the Elder's practice of his or her customs, traditions, or religion.

(5) The abandonment of an Elder by his or her family.

(u) "Power of Attorney" means a written document signed by an Elder and notarized granting someone authority to act as agent or attorney-in-fact regarding the Elder's business in the name of the Elder. At all times, the Elder may exercise their judgment and have influence in all decisions. There powers may include:

(1) "General Power of Attorney" comprises all of the Elder's business activities, including signing papers, title documents, contracts, bank accounts, etc.

(2) "Durable Power of Attorney" grants powers limited to specific matters, such as selling a particular piece of real estate, handling specific bank accounts, etc. "

(A) "Special Power of Attorney for Health Care" means the appointment by an Elder of someone else to make the Elder's health care decisions in the event of incapacitation.

(B) "Special Power of Attorney for Finances and Property" means the appointment by an Elder of someone else to make the Elder's financial and property related decision in the event of incapacitation.

(v) "Protective Placement" means the placement of an Elder in a hospital, nursing home, residential care facility, hospice, or the transfer of the Elder from one such institution to another with the Elder's consent or appropriate legal authority.

(w) "Protective Services" means those services provided to an Elder with the Elder's consent or with appropriate legal authority and include, but are not limited to, social case work, psychiatric and health evaluations, home care, day care, legal assistance, social services, health care, case management, guardianship, and other services consistent with this Code. Protective services include protective supervision, but does not include protective placement.

(x) "Protective Supervision" means a legal status created by the Court following adjudication on the grounds of neglect or exploitation permitting the Elder to remain in the home, providing that the Department of Elderly Services or designated agent provide supervision and assistance correcting the neglect or exploitation of the Elder.

(y) "Representative Payee" means a person who is appointed by a Tribal or other governmental entity to receive, on behalf of an Elder who is unable to manage funds by reason of physical or mental incapacity, any funds owed to such Elder by the appointing entity.

(z) "Retaliation" means taking any of the following actions against any person(s), or the person's family, reporting Elder abuse, neglect, or exploitation:

(1) Threatening or intimidating the person(s).

(2) Causing bodily harm.

(3) Causing termination, suspension, or reprimand by the employer.

(4) Damaging real or personal property.

(aa) "Self-neglect" means a significant danger to an Elder's physical or mental health because the Elder person is responsible for her or his own care but is unable to provide adequate food, shelter, clothing, or medical/dental care.

(bb) "Will" means the legal document used to divide assets and property after one's death.

Section YAE.11.06 — Duty To Report Abuse, Neglect, Self-Neglect And Exploitation Of An Elder.

(a) Any person who has reasonable cause to suspect that an Elder has been abused, neglected or self-neglected, or exploited shall immediately report the abuse, neglect or self-neglect, or exploitation to the manager or designee of the Stockbridge-Munsee Community Department of Elderly Services ("DES") unless they have a privileged relationship with their patient or client. Individuals bound by a privileged relationship duty, may only anonymously disclose information about their client/patient if there is an urgent need for hospitalization, guardianship, protective services or protective placement.

(b) The following individuals have a special duty to report abuse, neglect or exploitation

(1) The Elder's family or caretaker.

(2) Any Elder/Youth License holder and elected official of the Community.

(3) Any person or agency or employee of such agency with a fiduciary duty to the Elder.

Section YAE.11.07 — Anonymous Reports.

Except for those persons in Section YAE.11.06, persons reporting Elder abuse, neglect, or exploitation may remain anonymous.

Section YAE.11.08 — Immunity For Reporting.

Any person who in good faith reports suspected abuse, neglect or self-neglect, or exploitation of an Elder shall be immune from any legal action based on that person's report.

Section YAE.11.09 — Civil Violation And Penalty For Failing To Report.

(a) Any person who is required by this Code to report suspected Elder abuse, neglect or self-neglect, or exploitation and fails to do so is subject to civil penalty in Tribal Court not to exceed $5,000. The Tribal Prosecutor has the authority to prosecute under this section. Further, the person failing to report is subject to any civil suit brought by or on behalf of the Elder for damages suffered as a result of the failure to report, notwithstanding any determination through clear and convincing evidence by the Stockbridge-Munsee Community Tribal Courts that the person failing to report violated this Code.

(b) Privileged Communication. No evidentiary privilege except for the doctor-patient, attorney-client or priest-penitent privilege may be raised as a justifiable defense or reason for failing to report suspected Elder abuse or neglect or for testifying as required by this Code.

Section YAE.11.10 — Civil Violation And Penalty For A Report Made In Bad Faith.

Any person who makes a report of suspected abuse, neglect or self-neglect, or exploitation knowing it to be false is subject to a civil penalty not to exceed $5,000. The Stockbridge-Munsee Community Tribal Court shall assess the penalty only after petition by Tribal Prosecutor, notice, an opportunity for hearing, and a determination by clear and convincing evidence that the person making the report knew the report to be false. Any person making a false report is subject to any civil suit for damages brought by or on behalf of the person(s) named as suspected abusers in the false report.

Section YAE.11.11 — Reports.

(a) Reports of suspected Elder abuse, neglect, or exploitation shall be made to the DES manager or designee. DES shall forward the information to Shawano County under the terms of an applicable MOU for investigatation of the complaint. Anonymous reports shall be investigated as required by this Code.

(b) The information gathered by DES will include:

(1) The Elder's name, address or location, and telephone number.

(2) The name, address or location, and telephone number of the person(s) or agency suspected of abusing, neglecting, or exploiting the Elder.

(3) The nature and degree of the incapacitation of the Elder.

(4) The name, address or location, and telephone number of the Elder's caretaker, if applicable.

(5) If not anonymous, the name, address or location, and telephone number of witness(s).

(6) A description of the acts which are reported as abusive or neglectful or exploitive.

(7) Any other information that the reporter believes might be helpful in establishing abuse, neglect, or exploitation.

Section YAE.11.12 — Investigations.

(a) Shawano County shall initiate an investigation. DES and/or appropriate State and County agencies shall conduct in-person interviews with the Elder, the Elder's family, caretaker, guardian, and the person(s) suspected of having committed the acts reported, employees of agencies or institutions with knowledge of the Elder's circumstances, and any other person the investigator believes has pertinent information. DES and/or appropriate State and County agencies shall also conduct observations and other fact finding as required. The existence and contents of medical records and other reports of abuse or neglect may be ascertained.

(b) Written Investigation Referral Report.

(1) A written referral by DES and the results of the investigation shall be filed with the DES. The report will remain on file for a period of five (5) years, even if it is determined that there is insufficient evidence to pursue any legal action.

(2) In addition to criminal penalties available under state law, when a report of abuse has been substantiated, the report shall be filed with the Tribal Prosecutor, or other appropriate agencies.

(3) When a report of abuse is found to have been made in bad faith, the investigation report shall be held and maintained as an inactive file for possible use in a civil violation investigation or proceeding pursuant to Section YAE.11.10.

(4) An investigation report shall contain the information set forth in Section YAE.11.11 and the results of the investigator's interview, observations, assessments, and other facts.

(c) Subpoena of Medical and Financial Records. The Tribal Court may issue subpoenas for the release of medical records and financial records upon motion in order to facilitate investigations of reported Elder abuse. The Tribal Court must find reasonable grounds to believe that Elder abuse or exploitation is occurring or has occurred in order to issue a subpoena.

Section YAE.11.13 — Interference With Investigation And Retaliation–Civil Penalty.

(a) No person shall intentionally interfere, intentionally obstruct, or knowingly provide false information with a lawful investigation of suspected Elder abuse.

(b) No person shall retaliate by any means against any person who has made a good faith report of suspected Elder abuse or who cooperates with an investigation of suspected Elder abuse.

(c) Any person who violates the provisions of Section YAE.11.13(a) or (b) above shall be enjoined from such activity and shall be subject to a civil penalty of up to $5,000 per occurrence. The Tribal Prosecutor has authority to initiate and prosecute the action in Tribal Court. Further, notice of such determination shall be provided to the person's employer and appropriate licensing agencies. If the person violating the above provisions is an employee of the Community, appropriate disciplinary action shall be imposed consistent with the Community's employment law.

Section YAE.11.14 — Criminal Investigation.

Any investigation and any other procedure allowed under this Code may continue even if an investigation for the purpose of filing criminal charges is undertaken.

Section YAE.11.15 — Provision Of Services.

After an investigation of Elder abuse, neglect or self-neglect, or exploitation is completed, the DES shall determine if the Elder or any other individual involved in the alleged abuse, neglect or self-neglect, or exploitation is in need of services under this Code.

Section YAE.11.16 — Services And Protective Placement.

(a) Services may be provided.

(1) Voluntary Services.

(A) Services may be provided on a voluntary basis by the DES, or other agency when requested by an abused, neglected or self-neglected, or exploited Elder and the Elder is found by the DES to be in need of such services.

(B) Voluntary services will cease if the Elder's consent to such services is withdrawn unless the Elder has been properly deemed incapacitated.

(C) Such services shall be provided for a period of not more than fourteen (14) calendar days at a time. At the end of each 14-day period, the DES shall reassess the Elder's needs before continuing to provide services and placement.

(D) Voluntary services will be provided consistent with the level of funding and resources.

(2) Involuntary Services or Protective Placement.

(A) Involuntarily services or protective placement shall be provided on an involuntary basis by the DES or other agency only as the Tribal Court determines they are necessary.

(B) Involuntary services or protective placement shall be provided to any Elder who is incapacitated and, then only, upon a Tribal Court order as required by this Code.

(C) Such services or placement may be provided in a manner least restrictive of the Elder's liberty and rights consistent with the Elder's welfare and needs consistent with Section YAE.11.18.

(D) The Court's determination of the degree of incapacity, if any, as well as whether Elder abuse, neglect, or exploitation has occurred is the standard the DES or other state agency shall use to develop individual plans for the delivery of Elder protection services.

(b) Services as determined necessary by the DES or other agency that are consistent with Section YAE.11.18 may be delivered to the Elder or Elder's family, caretaker, and/or guardian in order to protect the Elder.

(c) The Elder, and where appropriate, the Elder's family, caretaker, and or guardian shall be informed by the DES or other agency of their rights as allowed under this Code and other Tribal law. This includes the right to refuse voluntary services and placement and the right to have the Court determine the necessity of involuntary services and placement.

(d) The Elder and/or guardian if able to do so, shall pay for all or part of the costs of services or placement provided to the Elder unless there are other resources available.

Section YAE.11.17 — Emergency Services Or Placement.

(a) Immediate Protection or Placement. If there is good cause to believe that an emergency exists where an Elder is at risk of immediate and irreparable physical harm based on personal observation and if the DES and/or appropriate State or County agency and a Law Enforcement Officer believe the Elder will be irreparably harmed during the time it takes to secure an emergency protection order, the DES and/or State or County agency and the law enforcement officer shall immediately protect the Elder. This includes, where necessary, transporting the Elder for medical treatment or to an appropriate facility. Immediately after the Elder is protected, a petition for an emergency protection order shall be filed and the procedures set out in this Section followed.

(b) The DES, through the Tribal Prosecutor, or other agency via its counsel shall petition and the Court shall issue an emergency protection order authorizing protective services or protective placement on an emergency basis upon the petition is supported by clear and convincing evidence that:

(1) The Elder is at risk of immediate physical harm, or,

(2) The Elder is incapacitated and cannot consent to protective services or the person possessing power of attorney for the Elder is unavailable, to give consent, and, .

(3) An emergency clearly exists.

(1) Set out the specific emergency services to be provided to the Elder to remove the conditions creating the emergency.

(2) Provide only those services which will remove the emergency.

(3) Allow protective placement only if the evidence shows that it is necessary.

(4) Designate the DES or other agency to implement the order.

(5) Be issued for a maximum of ten (10) calendar days.

(d) The Court may authorize forcible entry by law enforcement to enforce the emergency protection order after is has been shown that attempts to gain voluntary access to the Elder have failed.

(e) The petition for an emergency protection order shall contain the following.

(1) The name, address, location, and interest of the petitioner.

(2) The name, address, location, and condition of the Elder.

(3) The nature of the emergency.

(4) The nature of the Elder's incapacity.

(5) The proposed protective services, and where applicable, protective placement.

(6) The attempt(s), if any, to secure the Elder's consent to services.

(7) Any other facts the petitioner believes will assist the Court.

(f) The emergency protection petition and notice of hearing shall be served on the Elder, the Elder's family, caretaker, and/or guardian at least forty-eight (48) hours before a hearing on the petition is scheduled.

(g) The Court can set an emergency protection order aside upon a petition of any party showing good cause.

(h) Any person who acts in good faith pursuant to this section is immune from any civil or criminal suit based on the person's actions.

Section YAE.11.18 — Rights Of Elders, Their Families, Caretakers And Guardians.

(a) An Elder, the Elder's family, the Elder's caretaker, and/or the guardian shall be informed about an Elder abuse investigation before it begins unless an emergency exists, in which case, they shall be informed as soon as reasonably possible.

(b) An Elder may refuse to accept Elder protective services (even if there is good cause to believe that the Elder has been or is being abused, neglected, or exploited) provided that the Elder is able to care for himself/herself and/or has the capacity to understand the nature of the services offered unless court ordered.

(c) The Elder's family, caretaker, and/or guardian may refuse for themselves, but not for the Elder, those Elder protective services offered pursuant to this Code.

(d) An Elder and the Elder's family, caretaker, and/or guardian may refuse to allow an investigator into their home and the investigator shall so inform the Elder, the Elder's family, caretaker, and/or guardian of this right before seeking entry. The investigator shall also inform them of the right of the investigator to seek a warrant to gain access.

(e) Service of Process. The Elder, Elder's family, caretaker, and/or guardian shall be served personally. No hearing shall be held unless proper service has occurred.

(f) The Elder, Elder's family, caretaker, and/or guardian have the right to attend any proceeding pertaining to the determination of the Elder's capacity and the Elder shall be present at all proceedings unless the Court determines the Elder's health would be at risk at such proceedings.

(g) The Elder, Elder's family, caretaker, and/or guardian have the right to be represented by counsel at their expense at all proceedings.

(h) The Elder, Elder's family, caretaker, and/or guardian have their right to seek independent medical, psychological, or psychiatric evaluation of the Elder at the Elder or family's expense.

Section YAE.11.19 — Petition And Hearing.

(a) Jurisdiction. The Court has jurisdiction to hear a cause of action for protection and issue such an order consistent with Section TCT.01.02 of the Stockbridge-Munsee Tribal Court Code.

(b) The Stockbridge-Munsee Community's Tribal Prosecutor shall file petitions and present facts on behalf of the petitioner or the Tribe for legal proceedings authorized or required by this Code.

(c) A Guardian ad Litem, at the Court's expense shall be appointed by the Stockbridge-Munsee Community Tribal Court to represent the legal interests of the Elder.

(d) A hearing on a petition authorized or required by this Code shall be conducted with the purpose of protecting the Elder only when necessary and only to the extent shown by the facts and using the least restrictive alternatives. The Elder and all other interested parties shall have the right and opportunity to be heard fully and to present evidence. The Court shall issue a timely written statement of its findings in support of any order allowed by this Code.

Section YAE.11.20 — Determining Incapacity.

The Court shall determine, when necessary, whether an Elder is incapacitated and the degree of incapacity. A finding of incapacity shall be based on clear and convincing evidence of incapacitation and on a medical doctor's evaluation and report as to degree of incapacitation. A guardian may be appointed pursuant to YAE.03, Guardianship.

Section YAE.11.21 — Determining Abuse, Neglect Or Exploitation Of An Incapacitated Elder.

The Court shall also determine by clear and convincing evidence, when necessary, whether abuse, neglect, exploitation or incapacitation has occurred.

Section YAE.11.22 — Determining Abuse, Neglect Or Exploitation Of An Elder.

(a) The Court shall determine whether by clear and convincing evidence that an Elder has been a victim of abuse, neglect or exploitation as defined in this Code.

(b) An Elder may wish to Petition the matter before the Stockbridge-Munsee Community Tribal Court under the Elder Protection Code because:

(1) The Elder wishes to be assisted by and through the Department of Elderly Services and the Tribal Prosecutor and/or;

(2) The Elder wishes the matter to be civil in nature. The Petitioner must provide one or more of the grounds pursuant to this Code as justification to bring the matter before the Stockbridge-Munsee Community Tribal Court.

Section YAE.11.23 — Elder Protection Order And Time Limits.

(a) If the Court determines that an Elder is abused, neglected, exploited, or incapacitated, the Court shall issue an Elder protection order which provides appropriate protection for the Elder. Such protection may include, but is not limited to the following:

(1) Removing the Elder from the place where the abuse, neglect, or exploitation has taken or is taking place.

(2) Removing the person who abused, neglected, or exploited an Elder from the Elder's home immediately.

(3) Restraining the person who has abused, neglected, or exploited the Elder from continuing such acts.

(4) Placing the Elder under protective supervision, wherein the Elder is permitted to remain in the home providing the DES or a designated agent provides supervision and assistance to correct the neglect or exploitation of the Elder.

(5) Requiring an Elder's family or caretaker or any other person with a fiduciary duty to the Elder account for the Elder's funds and property.

(6) Requiring any person who has abused, neglected, or exploited an Elder to pay restitution to the Elder for damages resulting from that person's wrongdoing.

(7) Appointing a representative or a Guardian ad Litem for the Elder.

(8) Recommending that a representative payee be named.

(9) Ordering the DES or other agency to prepare a plan for and deliver protective services which provide the least restrictive alternatives for services, treatment, or placement consistent with the Elder's needs.

(b) A non-emergency Elder protection order shall be subject to review every ninety (90) calendar days unless otherwise determined by the Tribal Court. The non-emergency protection order may be extended as many times as necessary to protect the Elder.

Section YAE.11.24 — Confidentiality And Penalty.

(a) Name of Reporter. As required by this Code, the name of the person who reports abuse or neglect is confidential and shall not be released to any person unless the reporter consents to the release or release is ordered by the Court. The Court may release the reporter's name only after notice to the reporter is given, a closed evidentiary hearing is held, and the need to protect the Elder is found to be greater than the reporter's right to confidentiality. The reporter's name shall be released only to the extent as determined necessary to protect the Elder.

(b) Investigation and Hearing Records. Records of an investigation of Elder abuse or of a Court hearing regarding Elder abuse are confidential. Such records shall be open only to the Elder and the Elder's family and caretaker, unless the family or caretaker is the suspected abuser. If the DES, Tribal Prosecutor, Tribal Law Enforcement Officers, Court officials, coroner or medical examiner, appropriate State or County agencies or any other person has reason to believe that an Elder died as the result of abuse or neglect, the Court shall determine who has reasonable cause to have access to such records.

(c) Court Proceedings. A proceeding held pursuant to this Code will be closed and confidential. Persons who may attend are the Elder, the Elder's family and caretaker, representatives of the DES, or other agency, necessary Court officials, and attorneys for the parties. Other persons may appear only to testify. Persons who attend or testify at such a proceeding shall only reveal information about the proceeding for the purposes related to the continued care of the elder, or pursuant to a Court order.

(d) Penalty. Any person who violates any provision of this section shall be subject to Tribal Court Contempt Power pursuant to §14 of the Tribal Court Rules of Procedure. In addition, if the violation is committed by an employee of the Community, the person shall be subject to appropriate disciplinary action.

Section YAE.11.25 — Violation Of Protection Orders.

Violation of Court ordered protection orders by a respondent may be punished by fine of not more than $5,000 per occurrence. Additionally, the respondent in violation of Court ordered protection orders may be subject to criminal penalties.

Section YAE.11.26 — Severability.

In the event that any provision of this ordinance is ruled illegal by a court of competent jurisdiction, the remaining provisions of this ordinance shall remain unaffected.