The Cherokee Code: Published by Order of the Tribal Council of the Eastern Band of Cherokee Indians

Chapter 14 - Criminal Law, Articles 1-8*

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*Editor's note: Ord. No. 117, adopted March 3, 2000, completely repealed former Ch. 14 and replaced it with the similar provisions of Ch. 14 as currently set out herein. For a detailed history of former Ch. 14, please refer to the Code Comparative Table.
Cross references: Criminal procedure, ch. 15; alcohol, ch. 18; firearms, ch. 144.
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Article I - In General
Article II - Crimes Against Public Peace
Article III - Property Crimes
Article IV - Alcoholic Beverages
Article V - Sexual Assault
Article VI - Crimes Against Public Safety
Article VII - Crimes Against Children
Article VIII - Weapons Offenses
Article IX - Crimes of Bodily Injury
Article X - Sexual Offender Registration Program
Article XI - Fraud, Forgery, Embezzlement, False Pretenses
Article XII - Perjury and Obstructing Justice
Article XIII - Offenses Against Public Morality and Decency
Article XIV - Gang Enforcement and Prevention
Article XV - Enhanced Penalties
Article XVI - Forfeitures

ARTICLE I. IN GENERAL

Sec. 14-1. Reserved.


Sec. 14.1.1. Application to persons subject to criminal jurisdiction of the Cherokee Court.

(a) The following criminal offenses and penalties contained herein shall apply to all members of any federally recognized Indian tribe who violate the provisions of this chapter within the territorial jurisdiction of the Eastern Band of Cherokee Indians. That territorial jurisdiction shall include all lands held in trust for the Eastern Band of Cherokee or its members and all other lands owned by the Eastern Band of Cherokee.

(b) In addition to the penalties contained herein, the court may order a defendant who is found guilty to pay restitution to the victim(s) of the crime, to the Tribe, a Tribal program or a Tribal entity. An order of restitution shall be subject to enforcement as a debt to the Tribe, along with any fine imposed by the court, and the restitution shall be distributed as ordered by the court.

(c) For offenses that allow exclusion as a punishment, such punishment shall only be imposed in the discretion of the Tribal Council in accordance with Chapter 2 of the Cherokee Code.

(Ord. No. 117, 3-3-2000; Ord. No. 108, 7-9-2004)

Sec. 14-1.2. Application to persons not subject to criminal jurisdiction.

Other persons who enter the territorial jurisdiction of the Eastern Band of Cherokee Indians are expected to comply with the laws of the Eastern Band even if they are not subject to the criminal jurisdiction of the court. If the Tribe is restricted by federal Indian law from prosecuting such a person criminally, then the following civil remedies shall apply to any act by such a person that would otherwise constitute a crime under this chapter or any other criminal law applicable in the Tribe's territory:

(1) If any victim has suffered actual damages as a result of the person's actions, then he or she may bring a civil action, at his or her own expense, against the person in the Cherokee Court for actual and punitive damages, and any other relief permitted by law.

(2) If the person holds a lease, license, permit or other authorization to operate within the Tribe's territory, then that lease, license, permit or authorization may be terminated, after notice, hearing, and a finding that the violation occurred by the committee or agency that issued the lease, license, permit or authorization. Any such termination may be appealed to the Tribal Council, but such an appeal shall not be heard unless the person files a written notice of appeal with the Tribal Operations Program within 30 days after the committee or agency decision.

(3) The Tribal Council may order the exclusion of any such person for any length of time that the council determines appropriate to protect the welfare of the Eastern Band, including permanent exclusion, after notice and a hearing pursuant to Chapter 2.

(Ord. No. 117, 3-3-2000)

Sec. 14-1.3. Three strikes rule.

(a) Any member of the Eastern Band who has been convicted on three separate occasions of any drug offense, or any offense for which exclusion is allowed whether or not that punishment has been imposed, shall forfeit his or her right to receive per capita distributions of net gaming proceeds. This section shall apply only to offenses that occur after the effective date of this section. The Cherokee Court shall notify the Tribal Finance Office of any person to whom this section applies.

(b) Such per capita distributions shall be paid to a responsible person for support of the convicted person's minor children, if any, to the Tribe to cover any debt owed by the defendant to the Tribe, or to the convicted person's victim(s) for restitution, until such amounts are paid in full.

(c) If no amounts are payable under subsection (b), then a convicted person to whom this section applies shall not be used in calculating the shares for per capita distribution.

(Ord. No. 117, 3-3-2000)

Sec. 14-1.4. Exclusion.

For those offenses that allow exclusion as a punishment, exclusion may be imposed only by Tribal Council in accordance with Chapter 2 of the Cherokee Code.

(Ord. No. 117, 3-3-2000)

Sec. 14-1.5. Equal application of laws.

(a) All persons, regardless of race, age, or sex will comply and be subject to the laws of the Eastern Band of Cherokee Indians whenever they are within the boundaries of Qualla Boundary and its territories.

(b) All persons, regardless of race, age, or sex will be subject to all of the same charges, convictions, and fines that enrolled members of the Eastern Band are subject to.

(c) The Cherokee Police Department shall have the right to issue citations to non members, as well as members.

(d) The Cherokee Court system shall have the right to hear cases, impose fines and penalties on non members, as well as members.

(e) Tribal jurisdiction on all persons shall be equal and nondiscriminatory towards anyone, regardless of race, age, or sex as long as they are visiting or living or doing business on the lands of the Eastern Band of Cherokee Indians.

(f) The intent of this ordinance shall be carried out by the Chief of the Cherokee Police Department, the Chief Justice of the Tribal Court, and the Legal Department.

(Ord. No. 667, 8-11-2001)

Sec. 14.1.6. Reporting by physicians and hospitals of wounds, injuries and illnesses.

(a) Cases of wounds, injuries or illnesses as are enumerated in subsection (b) shall be reported as soon as it becomes practicable before, during or after completion of treatment of a person suffering such wounds, injuries or illnesses. If such a case is treated in a hospital, sanitarium or other medical institution or facility, such report shall be made by the director, administrator, or other person designated by the director or administrator, or if such case is treated elsewhere, such report shall be made by the physician or surgeon treating the case, to the Cherokee Police Department or to the Federal Bureau of Investigation.

(b) Cases of wounds, injuries or illness which shall be reported by physicians or hospitals include every case of bullet wound, gunshot wound, powder burn or any other injury arising from or caused by, or appearing to arise from or be caused by, the discharge of a gun or firearm, every case of illness apparently caused by poisoning, every case of a wound or injury caused, or apparently caused by a knife or sharp or pointed instrument if it appears to the physician or surgeon treating the case that a criminal act was involved, and every case of a wound, injury or illness in which there is grave bodily harm or grave illness if it appears to the physician or surgeon treating the case that the wound, injury or illness resulted from a criminal act of violence.

(c) Each report made pursuant to subsections (a) and (b) above shall state the name of the wounded, ill, or injured person, if known, and the age, race, residence or present location, if known, and the character and extent of his injuries.

(d) Any hospital, sanitarium, or other medical institution or facility or director, administrator, or other designated person, or physician or surgeon participating in good faith in the making of a report pursuant to this subsection shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as the result of the making of such report.

(Ord. No. 818, 5-19-2003)

Sec. 14-1.7. Restitution for contract health services expenses.

(a) A person who is found guilty of any criminal conduct is liable for restitution to the Tribe for the contract health services expenses, if any, incurred by the Tribe or the Cherokee Indian Hospital Authority (CIHA) as a result of such conduct.

(b) A notarized statement by a Tribal or CIHA employee who has knowledge of such expenses shall be filed with the Clerk of the Cherokee Court prior to the entry of judgment in cases subject to this section and shall be admissible into evidence without further identification.

(c) A person is not liable for restitution of expenses that are covered by insurance or resources other than funds allocated for contract health services expenses. Neither Tribal health nor CIHA employees shall be responsible for charging any individual with a crime in connection with this section.

(d) The liability established under this section is a debt to the Tribe and amounts recovered under this section shall be used for contract health services.

(e) Restitution ordered for a victim and court costs shall have priority over the restitution authorized by the section. Nothing in this section shall be deemed to alter the overriding priority for child support established in Cherokee Code section 16C-5(f).

(f) Nothing in this section shall be deemed to limit the authority of the Cherokee Court to order restitution to a victim, the Tribe, a Tribal program or other Tribal entity, or to limit the Tribe's authority to collect this debt by other lawful means.

(g) In ordering garnishment of per capita distributions for restitution ordered under this section, the Cherokee Court is authorized to consider the financial condition of the enrolled member and his or her family and may order garnishment of less than the full per capita distribution, if the enrolled member demonstrates that funds are necessary for family support.

(h) The liability established under this section is an individual debt and shall not be considered a liability of the estate or the heirs of a deceased individual.

(Ord. No. 108, 7-9-2004)

Inchoate Crimes

Sec. 14-2.1. Attempt.

(a) It shall be unlawful to engage in conduct within the territorial jurisdiction of the Eastern Band of Cherokee Indians constituting a substantial step toward commission of any offense under Tribal, federal, or state law applicable to the jurisdiction in which any part of the offense was to be completed with the kind of culpability otherwise required for the commission of the offense.

(b) It shall be unlawful to engage in conduct anywhere constituting a substantial step toward the commission of any Tribal, federal or state offense within the territorial jurisdiction of the Eastern Band of Cherokee Indian while acting with the kind of culpability otherwise required for the commission of the offense.

(c) Attempts shall be punishable by the same penalties as the completed crime.

(Ord. No. 117, 3-3-2000)

Sec. 14-2.2. Criminal conspiracy.

(a) It shall be unlawful to, with one or more persons, engage in or cause the performance of conduct with the intent to commit any offense punishable by Tribal, federal or state law applicable to the jurisdiction in which the conduct is agreed to be performed, if any one person commits an overt act in pursuance of the conspiracy.

(b) It shall be unlawful to agree anywhere with one or more persons to engage or cause the performance of conduct with the intent to commit any Tribal, federal or state offense within the territorial jurisdiction of the Eastern Band of Cherokee Indian, and any one person commits an overt act in pursuance of the conspiracy.

(c) Conspiracy to commit an offense carries the same possible punishment as the completed offense.

(Ord. No. 117, 3-3-2000)

Sec. 14-2.3. Solicitation.

(a) It shall be unlawful within the territorial jurisdiction of the Eastern Band of Cherokee Indian to entice, advise, incite, order, or otherwise encourage another to commit any offense, with the intent that such other person commit an offense punishable under the laws of the jurisdiction where the conduct was to be performed.

(b) It shall be unlawful anywhere to entice, advise, incite, order, or otherwise encourage another to commit any offense, with the intent that such other person commit an offense punishable by Tribal, federal or state laws within the territorial jurisdiction of the Eastern Band of Cherokee Indian.

(c) Solicitation shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both.

(Ord. No. 117, 3-3-2000)

ARTICLE II. CRIMES AGAINST PUBLIC PEACE

Sec. 14-5.1. Reserved.


Sec. 14-5.2. Communicating threats.

(a) A person is guilty of a misdemeanor if without lawful authority:

(1) He willfully threatens to physically injure the person or damage the property of another,

(2) The threat is communicated to the other person, orally, in writing, or by any other means,

(3) The threat is made in a manner and under circumstances which would cause a reasonable person to believe that the threat is likely to be carried out.

(b) A violation of this section is punishable by a fine of not more than $500.00 or imprisonment of not more than six months, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-5.3. Telephone harassment.

(a) A person is guilty of the offense of telephone harassment if he unlawfully:

(1) Uses in telephonic communications any words or language of a profane, vulgar, lewd, lascivious or indecent character, nature or connection.

(2) Uses in telephonic communication any words or language threatening to inflict bodily harm to any person or physical injury to the property of any person or for the purpose of extorting money or other things of value from any person.

(3) Telephones another repeatedly, whether or not conversation ensues, for the purpose of abusing, annoying, threatening, terrifying, harassing or embarrassing any person at the called number.

(4) Makes a telephone call and fails to hang up or disengage the connection with the intent to disrupt the service of another.

(5) Telephones another and knowingly makes any false statement concerning death, injury, illness, disfigurement, indecent conduct or criminal conduct of the person telephoned, or of any member of his family or household with the intent to abuse, annoy, threaten, terrify, harass or embarrass.

(6) Knowingly permits any telephone under his control to be used for any purposes prohibited by this section

(b) A violation of this section is punishable by a fine of not more than $500.00 or imprisonment of not more than one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-5.4. Filing a false emergency report.

(a) A person is guilty of filing a false emergency report if he willfully:

(1) Makes or causes to be made, any telephonic communication through any police or emergency telephone systems, including false, misleading or unfounded reports; or

(2) Knowingly make any false statements concerning death, injury, illness, disfigurement, indecent conduct or criminal conduct for the purpose of interfering with the operation of these emergency systems; or

(3) Hinders or obstructs any peace officer in the performance of his duty.

(b) A violation of this section is punishable by a fine of not more than $500.00 or imprisonment of not more than one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-5.5. Stalking.

(a) Definition of terms:

(1) Harass means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

(2) Course of conduct means the pattern of conduct composed of a series of acts over time, however short, evidencing a continuity of purpose.

(3) Credible threat means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

(b) A person commits the offense of stalking if the person willfully on more than one occasion follows, harasses or is in the presence of another person without legal purpose.

(c) A person commits the offense of aggravated stalking if the person willfully on more than one occasion follows, harasses or is in the presence of another person without legal purpose, and:

(1) Makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury; or

(2) Commits the offense when there is a court order in effect prohibiting similar behavior; or

(3) Commits the offense within five years of a prior conviction for this offense; or

(4) The person stalked is a minor under 16 years of age.

(d) Penalty:

(1) A violation of subsection (b) of this section shall be punished by a fine of $500.00, imprisonment for up to one year, or both.

(2) A violation of subsection (c) of this section shall be punished by fine of $5,000.00, imprisonment for up to one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-5.6. Reserved.

Sec. 14-5.7. Littering.

(a) No person, firm or corporation shall intentionally, carelessly or recklessly throw, scatter, spill or place or intentionally, carelessly or recklessly cause to be blown, scattered, spilled, thrown or placed or otherwise dispose of any litter upon any public property or upon private property within the territory of the Eastern Band of Cherokee Indians.

(b) No vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, shifting, leaking, or otherwise escaping therefrom, except that sand may be dropped for the purpose of securing traction, or water or other substance may be sprinkled on a roadway in cleaning or maintaining such roadway. Trucks, trailers or other vehicles when loaded with rock, gravel, stone or other similar substances which could blow, leak, sift or drop shall not be driven or moved on any highway unless the height of the load against all four walls does not extend above a horizontal line six inches below their tops when loaded at loading point, or if not loaded, unless the load shall be securely covered by tarpaulin or some other suitable covering, or unless it is otherwise constructed so as to prevent any of its load from dropping, sifting, leaking, blowing, or otherwise escaping therefrom. Nothing in this subsection shall be applicable to or in any manner restrict the transportation of seed, cotton, or poultry or livestock or silage or other feed grain used in the feeding of poultry or livestock.

(c) This section shall not apply to lands or property that is designated by the Eastern Band for the disposal of garbage and refuse where the public is authorized to use such property for such purpose. Neither shall it apply to utilization of a litter receptacle.

(d) Whenever litter is blown, scattered, spilled, thrown or placed from a vehicle or water craft, the operator thereof shall be presumed to have committed such offense.

(e) The word "litter" as used in this section shall mean any rubbish, waste material, cans, refuse, garbage, trash, debris, dead animals or discarded materials of every kind and description. The word "vehicle" shall mean any motorized means of grounds transportation. The word "water craft" shall mean any boat or vessel used for transportation upon water.

(f) A violation of this section shall be punishable by a fine of not more than $200.00 and any subsequent offense shall be punishable by a fine of $500.00 or one year in jail, or both.

(Ord. No. 271, 8-5-1982; Ord. No. 117, 3-3-2000; Ord. No. 539, 11-18-2002)

Sec. 14-5.8. Fireworks.

(a) The wholesale and retail sale of fireworks (pyrotechnics) or the use thereof is prohibited on the Cherokee Indian Reservation.

(b) Violation of this section by any person or business holding a trader's license granted under the authority of Title 25 of the Code of Federal Regulation shall be cause for cancellation of the license.

(c) Persons subject to the criminal jurisdiction of the Cherokee Court who violate this section shall be punished by a fine of not more than $100.00 or imprisonment of not more than thirty (30) days or both.

(Res. No. 209, 7-8-1976; Ord. No. 117, 3-3-2000)

Sec. 14-5.9. Laser devices.

(a) For purposes of this section, the term "laser" means light amplification by stimulated emission of radiation.

(b) It is unlawful intentionally to point a laser device at a law enforcement officer, or at the head or face of another person, while the device is emitting a laser beam.

(c) Persons subject to the criminal jurisdiction of the Cherokee Court who violate this section shall be punished by a fine of not more than $100.00 or imprisonment of not more than 30 days, or both.

(d) This section does not apply to a law enforcement officer who uses a laser device in discharging or attempting to discharge the officer's official duties. This section does not apply to a health care professional who uses a laser device in providing services within the scope of practice of that professional nor to any other person who is licensed or authorized by law to use a laser device or uses it in the performance of the person's official duties.

(e) This section does not apply to laser tag, paintball guns, and other similar games and devices using light emitting diode (LED) technology.

(Ord. No. 117, 3-3-2000)

Sec. 14-5.10. Doing business without a license.

(a) It shall be unlawful to commence or carry on any business, trade, profession, or calling, the transaction or carrying on of which is required by law to be licensed, without having an appropriate license.

(b) Doing business without a license shall be punishable by a fine not to exceed $250.00, by a term of imprisonment not to exceed one month, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-5.11. Abusing a corpse.

(a) It shall be unlawful to purposely and unlawfully remove, conceal, dissect, assault or destroy a corpse or any part of a corpse; or to disinter a corpse that has been buried or otherwise interred.

(b) Abusing a corpse shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, exclusion for a term of not less than one year not more than five years, or any combination of them.

(Ord. No. 117, 3-3-2000)

Sec. 14-5.12. Violation of privacy.

(a) It shall be unlawful, except as authorized by law to:

(1) Trespass on property with intent to subject anyone to eavesdropping or other surveillance, or to visually observe another, in a private place;

(2) Install in any private place, without the consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying or broadcasting sounds or events in such place, or use any such unauthorized installation;

(3) Install or use outside of any private place any device for hearing, recording, amplifying, or broadcasting sounds originating in such place which would not ordinarily be audible or comprehensible outside without the consent of the person or persons entitled to privacy there; or

(4) Divulge without consent of the sender or receiver the existence or content of any such message if the actor knows that the message was illegally intercepted, or if he learned of the message in the course of employment with an agency engaged in transmitting it.

(b) Definitions:

(1) Eavesdrop means to overhear, record, amplify, or transmit any part of an oral or written communication of others without the consent of at least one party thereto by means of any electrical, mechanical or other device. Such eavesdropping or other surveillance shall include, but not be limited to, unauthorized access to computers, data processing equipment or any electronic or manual data storage or record keeping equipment or other such storage devices.

(2) Private place means a place where one can reasonably expect to be safe from casual or hostile intrusion or surveillance.

(3) Violation of privacy shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both.

(Ord. No. 117, 3-3-2000)

Secs. 14-5.13—14-5.15. Reserved.

Sec. 14-5.16. Noise offenses.

(a) Generally. It shall be unlawful for any person to willfully make, cause to be made or continue any loud, raucous or disturbing noise. A loud, raucous or disturbing noise is any sound which, because of its volume level, duration or character, annoys, disturbs, injures or endangers the comfort, health, peace or safety of reasonable persons of ordinary sensibilities. The term "loud, raucous or disturbing noise" shall be limited to noises heard upon the public streets, in a public park, school or public building or upon the grounds thereof; in church or hospital or upon the grounds thereof; on a parking lot open to members of the public; or in an occupied residential unit which is not the source of the noise or upon the grounds thereof.

(b) Specifically prohibited acts. The following specific acts are declared to be loud, raucous or disturbing noises in violation of this article, but this enumeration shall not be deemed to be exclusive:

(1) Blowing horns. The sounding of any horn, whistle or signal device on any automobile, motorcycle, bus or other vehicle or railroad train except as a danger signal or as required by law, or the sounding of such device intermittently or continuously for a period in excess of 60 seconds.

(2) Radios, amplifiers, phonographs, group gatherings, etc. Singing, yelling, or the using, operating or permitting to be played, used or operated any radio, amplifier, musical instrument, phonograph, interior or exterior loudspeakers, or other device for the producing or reproducing of sound in such manner as to cause loud, raucous or disturbing noise.

(3) Pets and animals. Allowing any animal, including dogs, cats, and birds, in a person's possession or control to howl, bark, meow, squawk or make any other unreasonably loud, raucous, jarring, or disturbing sounds so as to be a nuisance to persons within the area of audibility. This section shall not apply to hunting dogs while in the actual process of hunting.

(4) Motor vehicles. All noises coming from motor vehicles not properly equipped with standard mufflers and noise reducing equipment or not in proper operating condition.

(5) Fireworks and firearms. The explosion of any fireworks unless under a written permit obtained from the proper authority and between the hours of 9 a.m. and 10:30 p.m. Monday through Saturday; or the discharge of any firearm within 300 feet of any residence, other than one's own residence.

(c) Exemptions. The following uses and activities shall be exempt from the noise regulations set forth in this chapter:

(1) A bell or chime from any building clock, school or church.

(2) Any siren, whistle, or bell lawfully used by emergency vehicles or any other alarm systems used in an emergency situation; provided, however, that burglar alarms not terminating within 30 minutes after the responsible person has been notified shall be unlawful.

(3) Warning devices required by any applicable local or federal safety regulations.

(4) Agricultural and horticultural operations conducted in a reasonable manner.

(5) Noise caused by any type of construction equipment while it is being used for the purpose for which it was designed and purchased.

(6) The operation of an automobile race track, except between the hours 11:30 p.m. and 12:00 noon.

(7) Any community or school sponsored athletic event, except between the hours of 11:30 p.m. and 7:00 a.m.

(8) Nothing herein shall be construed to hold a landlord liable, responsible or violation of this section unless the landlord sponsors or participates in the activity that violates a provision of this section.

(d) Penalties. Violations of this section shall constitute a misdemeanor and, upon conviction, a violator shall be punishable by a fine of up to $500.00 and/or imprisonment for not more than thirty (30) days.

(e) Injunctions. In addition to other civil remedies provided by this chapter, a violation of this section is declared to be a public nuisance, and may be subject to abatement by a restraining order or injunction issued by the Cherokee Court on motion or petition of any person.

(Ord. No. 565, 3-12-01)

Secs. 14-5.17—14-5.19. Reserved.

Sec. 14-5.20. Cruelty to animals.

(a) It shall be unlawful purposely or knowingly to:

(1) Torture or seriously overwork an animal;

(2) Fail to provide necessary food, care, or shelter for an animal in one's custody;

(3) Abandon an animal in one's custody;

(4) Transport or confine an animal in a cruel manner;

(5) Kill, injure, or administer poison to an animal without legal privilege to do so; or

(6) Cause one animal to fight with another.

(b) Cruelty to animals shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both. It is a defense to prosecution under this section that the conduct of the actor toward the animal was an accepted veterinary in practice or directly related to a bona fide experimentation for scientific research, provided that if the animal is to be destroyed, the manner employed will not be unnecessarily cruel.

(c) Conviction under this section may result in confiscation of cruelly treated animals belonging to the accused and it shall be proper for the court in its discretion to order a final determination of the custody of the confiscated animals.

(Ord. No. 117, 3-3-2000)

Secs. 14-5.22—14-5.29. Reserved.

Protection of Family

Sec. 14-5.30. Abandonment and failure to support spouse and children.

(a) For purposes of this section:

(1) Supporting spouse means a spouse, whether husband or wife, upon whom the other spouse is actually substantially dependent or from whom such other spouse is substantially in need of maintenance and support.

(2) Dependent spouse means a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.

(b) A supporting spouse is guilty of this offense if the supporting spouse either:

(1) Willfully abandons a dependent spouse without providing that spouse with adequate support; or

(2) While living with a dependent spouse, willfully neglects to provide adequate support for that dependent spouse.

(c) Any parent who shall willfully neglect or refuse to provide adequate support for that parent's child, whether natural or adopted, and whether or not the parent abandons the child, shall be guilty of this offense. Willful neglect or refusal to provide adequate support of a child shall constitute a continuing offense and shall not be barred by any statute of limitations until the youngest living child of the parent shall reach the age of 18 years.

(d) Abandonment and failure to support spouse and children shall be punishable by a fine of not less than $250.00 nor more than $5000.00, with said fine used for the benefit of the abandoned or unsupported spouse or child.

(Ord. No. 117, 3-3-2000)

ARTICLE III. PROPERTY CRIMES

Sec. 14-10—14-10.8. Reserved.

Sec. 14-10.9. Criminal mischief to property.

A person is guilty of the crime of criminal mischief to property if he or she:

(1) Purposely or recklessly damages tangible personal property of another; or,

(2) In the employment of fire, explosives, or other dangerous means, negligently damages personal property of another; or

(3) Purposely or recklessly tampers with tangible personal property of another so as to endanger person or property; or

(4) Purposely or recklessly causes another to suffer pecuniary loss by deception or threat.

(5) Criminal mischief shall be punishable by a fine not to exceed five thousand dollars ($5,000.00), by a term of imprisonment not to exceed one (1) year, or both.

(Ord. No. 871, 8-9-2001)

Sec. 14-10.10. Cutting timber, removal of rock, trapping animals.

(a) No person, firm, or corporation shall enter upon lands assigned or leased to another and damage, injure, cut, trim, or remove any tree, shrub, flower, or plant without the knowledge and written consent of the lawful owner of the land through assignment or lease.

(b) No person, firm, or corporation shall enter upon lands assigned or leased to another and remove any earth, rocks or minerals without the knowledge and written consent of the lawful owner of the land through assignment or lease.

(c) No person, firm of corporation shall enter upon lands assigned or leased to another to trap wild animals without the knowledge and written consent of the lawful owner of the land through assignment or lease.

(d) No person, firm, or corporation shall enter upon land held, used or reserved by the Tribe and damage, injure, cut trim or remove any tree, shrub, flowering plant, earth, rocks or minerals, or trap any wild animals without the knowledge and written consent of the Tribe through a license, use permit or council resolution.

(e) Each violation of this section shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.11. Injuring real property.

(a) It shall be unlawful to willfully and wantonly damage, injure or destroy any real property whatsoever, either of a public or private nature, without lawful authority.

(b) Injuring real property shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.12. Tampering with public property.

(a) It shall be unlawful to:

(1) Steal, deface, mutilate, alter, falsify, or remove all or part of any record, map, book, document or thing, or any court documents or records, placed or filed in any public office, or with any public officer, or to permit another to do so;

(2) Knowingly injure, deface or remove any signal, monument or other marker placed or erected as part of an official survey of the Eastern Band of Cherokee Indians or Federal government without authority to do so; or

(3) Intentionally deface, obliterate, tear down, or destroy any copy or transcript or extract from any law or any proclamation, advertisement, or notice set up or placed by any public officer or court, without authority to do so and before the expiration of the time for which the same was to remain posted.

(b) Tampering with public property shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.13. Injuring public property.

(a) It shall be unlawful to:

(1) Intentionally break down, pull down or otherwise injure or destroy any jail or other place of confinement;

(2) Intentionally and without authority dig up, remove, displace or otherwise injure or destroy any public roadway, highway or bridge or private road or other public building or structure;

(3) Remove or injure any milepost, guidepost or road or highway sign or marker or any inscription on them while such is erected along a road or highway; or

(4) Knowingly and without authority to do so, remove, injure, deface, or destroy any public building or structure, or any personal property belonging to the Eastern Band of Cherokee Indians, or any other government or government agency.

(b) Injuring public property shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.14. Injuring telephone wires, or other communication equipment; interfering with emergency communication.

(a) It shall be unlawful for any person to unnecessarily disconnect the wire or in any other way render any telephone equipment, telephone line, or any part of such line or other communication equipment unfit for use in transmitting messages, or to unnecessarily cut, tear down, destroy or in any way render unfit for the transmission of messages any part of the wire of a telephone line or other communication equipment.

(b) In addition, it shall be unlawful for a person, who is not himself/herself making an emergency communication, to intentionally interfere with an emergency communication.

(1) "Emergency communication" shall include communications to law enforcement agencies or other emergency personnel, or other individuals, relating or intending to relate that an individual is or is reasonably believed to be, or reasonably believes himself/herself or another person to be, in imminent danger of bodily injury, or that an individual reasonably believes that his/her property or the property of another is in imminent danger of substantial damage, injury or theft.

(2) "Intentional Interference" shall include forcefully removing a communications instrument or other emergency equipment from the possession of another, hiding a communications instrument or other emergency equipment from another, or other equipment or other emergency equipment unavailable to another, disconnecting a communications instrument or other emergency equipment, removing a communications instrument from its connection to communications lines or wavelengths, damaging or otherwise interfering with communications equipment or connections between a communications instrument and communication lines or wavelengths, disabling a theft-prevention alarm system, providing false information to cancel an earlier call or otherwise falsely indicating that emergency assistance is no longer needed when it is, and any other type of interference that makes it difficult or impossible to make an emergency communication or that conveys a false impression that emergency assistance is unnecessary when it is needed.

(c) Violation of this section shall be punishable by a fine no to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both.

(Ord. No. 117, 3-3-2000; Ord. No. 406, 9-26-2002)

Sec. 14-10.15. First degree trespass.

(a) Offense. A person commits the offense of first degree trespass if, without authorization, he enters or remains:

(1) On premises of another so enclosed or secured as to demonstrate clearly an intent to keep out intruders; or

(2) In a building of another.

(b) First degree trespass shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.16. Second degree trespass.

(a) Offense. A person commits the offense of second degree trespass if, without authorization, he enters or remains on the property of another:

(1) After he has been notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person; or

(2) That is posted, in a manner reasonably likely to come to the attention of intruders, with notice not to enter the property.

(b) Second degree trespass shall be punishable by a fine not to exceed $1,000.00, by a term of imprisonment not to exceed 30 days, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.17. Domestic criminal trespass.

(a) Any person who enters the property occupied by a present or former spouse or by a person with whom the person charged has lived as if married, after being forbidden to do so or remains after being ordered to leave by the lawful occupant, shall be guilty of a misdemeanor if the complainant and the person charged are living apart; provided, however, that no person shall be guilty if said person enters upon the premises pursuant to a judicial order or written separation agreement which gives the person the right to enter upon said premises for the purpose of visiting with minor children. Evidence that the parties are living apart shall include but is not necessarily limited to:

(1) A judicial order of separation;

(2) A court order directing the person charged to stay away from the premises occupied by the complainant;

(3) An agreement, whether verbal or written, between the complainant and the person charged that they shall live separate and apart, and such parties are in fact living separate and apart; or

(4) Separate places of residence for the complainant and the person charged.

(b) Domestic criminal trespass shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.18—14-10.29. Reserved.

Sec. 14-10.30. Robbery with a dangerous weapon.

(a) Any person who unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, while having in possession or with the use or threatened use of any firearms or other dangerous weapon, implement or means, whereby the life of a person is endangered or threatened, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of robbery with a dangerous weapon.

(b) Robbery with a dangerous weapon shall be punishable by a fine of not less than $500.00 not more than $5,000.00, by imprisonment for not less than three months nor more than one year, by exclusion for a period of not less two years nor more than ten years, or by any combination of them. Should the commission of the offense result in the death or serious bodily injury to any person, a sentence of exclusion may be imposed for any period not exceeding life in addition to the punishment authorized above.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.31. Robbery.

(a) Any person who unlawfully takes or attempts to take personal property from another or from any place of business, residence or banking institution or any other place where there is a person or persons in attendance, at any time, either day or night, or who aids or abets any such person or persons in the commission of such crime, shall be guilty of robbery.

(b) Robbery shall be punishable by a fine of not less than $250.00 nor more than $5,000.00, by imprisonment for not less than three months nor more than one year, by exclusion for a period of not less than one year nor more than five years, or by any combination of them.

(Ord. No. 117, 3-3-2000)

Secs. 14-10.32—14-10.39. Reserved.

Sec. 14-10.40. Burglary.

(a) It shall be unlawful to break into by any force whatsoever and enter in any manner any dwelling, office, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, garage, tent, vessel, railroad car, airplane, motor vehicle, trailer or semitrailer, mobile home, or any similar enclosed structure of another without consent with the intent to steal or commit any offense punishable by imprisonment. If a person is present within such structure, it shall be known as burglary in the first degree; if no person is present in such structure, it shall be known as burglary in the second degree.

(b) Burglary in the first degree shall be punishable by a fine of not less than $500.00 not more than $5,000.00, by imprisonment for not less than three months nor more than one year, by exclusion for a period of not less two years nor more than ten years, or by any combination of them. Should the commission of the offense result in the death or serious bodily injury to any person, a sentence of exclusion may be imposed for any period not exceeding life in addition to the punishment authorized above.

(c) Burglary in the second degree shall be punishable by a fine of not less than $250.00 nor more than $5,000.00, by imprisonment for not less than three months nor more than one year, by exclusion for a period of not less than one year nor more than five years, or by any combination of them.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.41. Breaking and entering.

(a) It shall be unlawful to break into by any force whatsoever and enter in any manner any dwelling, office, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, garage, tent, vessel, railroad car, airplane, motor vehicle, trailer or semitrailer, mobile home, trunk, drawer, box, coin operated machine, or similar structure, object, device of another without consent, with the intent to:

(1) Cause annoyance or injury to any person therein;

(2) Cause damage to any property therein;

(3) Commit any offense therein, not punishable by imprisonment;

(4) Cause, or does actually cause, whether intentionally or recklessly, fear for the safety of another.

(b) Breaking and entering shall be punishable by a fine of not less than $250.00 nor more than $5,000.00, by imprisonment for a period not exceeding one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.50. Arson in the first degree.

(a) It shall be unlawful to knowingly and willfully start a fire or cause an explosion with the purpose of:

(1) Destroying or damaging any building, dwelling, occupied structure or other property of another exceeding $1,000.00 in value; or

(2) Destroying or damaging any property, by the owner, to collect insurance for such loss.

(b) Arson in the first degree shall be punishable by a fine of not less than $500.00 nor more than $5,000.00, by imprisonment for a term of not less than six months nor more than one year, or any combination of them.

(c) Should the commission of this offense result in the death of or serious bodily injury to any person, a sentence of exclusion may be imposed for any period not exceeding life in addition to the punishment authorized above.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.51. Arson in the second degree.

(a) It shall be unlawful to knowingly or recklessly, carelessly, or negligently, without regard to the consequences, start a fire or cause an explosion which:

(1) Endangers human life or safety; or

(2) Damages or destroys the property of another.

(b) Arson in the second degree shall be punishable by a fine of not less than $250.00 nor more than $5,000.00, by imprisonment for a term not exceeding one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.52. Arson in the third degree.

(a) It shall be unlawful after having started any fire, even though started safely for a lawful purpose, to fail to either:

(1) Take reasonable measures to put out or control the fire; or

(2) To give prompt alarm, if the fire is spreading in such manner that it may endanger the life or property of another.

(b) Arson in the third degree shall be punishable by a fine of not less than $250.00 nor more than $5,000.00, by imprisonment for a term not exceeding one year, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.60. Larceny.

(a) It shall be unlawful to take or carry away any tangible or intangible personal property by fraud or stealth with the intent to deprive the owners thereof. If the value of the property taken or carried away exceeds $1,000.00, it shall be known as grand larceny.

(b) Larceny shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding six months, or both.

(c) Grand larceny shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding one year, or both. A sentence of exclusion for a period not exceeding ten years may be imposed in addition to the punishment authorized above.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.61. Receiving or possessing stolen property.

(a) It shall be unlawful to possess, receive, buy, or conceal any personal property that has been stolen or otherwise obtained from its true owner in violation of this Code with intent to deprive the true owner thereof.

(b) Receiving stolen property shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding one year, or both.

(c) If the value of the property exceeds $1,000.00, a sentence of exclusion for a period not exceeding ten years may be imposed in addition to the punishment authorized above.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.62. Theft of property lost, mislaid, or delivered by mistake.

(a) It shall be unlawful to fail to take reasonable measures to restore property to a person entitled thereto, with the intent to deprive the owner thereof, when it is known or reasonably suspected that the property has been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient.

(b) Theft of property lost, mislaid, or delivered by mistake shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding one year, or both.

(c) If the value of the property exceeds $1,000.00, a sentence of exclusion for a period not exceeding ten years may be imposed in addition to the punishment authorized above.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.63. Theft of services.

(a) It shall be unlawful to obtain services known to be available only for compensation by deception, threat, force or any other means with the intent to avoid due payment thereof.

(b) Theft of services shall by punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding one year, or both.

(c) If the value of the service rendered exceeds $1,000.00, a sentence of exclusion for a period not exceeding ten years may be imposed in addition to the punishment authorized above.

(Ord. No. 117, 3-3-2000)

Sec. 14-10.64. Unauthorized use of a vehicle.

(a) It shall be unlawful to take, drive or operate another's motor vehicle, motorcycle, bicycle, or wheeled conveyance without the consent of the owner, with the intent to temporarily deprive the owner of its use or possession.

(b) Unauthorized use of a vehicle shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding one year, or both.

(c) If the vehicle sustains damages while in the custody, possession, or under the control of the person violating this section, the violator shall be required to make double restitution of the amount of the actual damage to the vehicle.

(Ord. No. 117, 3-3-2000)

ARTICLE IV. ALCOHOLIC BEVERAGES

Sec. 14-15. Reserved.

Sec. 14-15.1. Public intoxication.

(a) No person may be prosecuted solely for being intoxicated in a public place. A person intoxicated in a public place but not disruptive may be rendered assistance as provided in subsection (c).

(b) Any person arrested for being intoxicated and disruptive in a public place deemed by the arresting officer to be in need of shelter or health care as provided for in subsection (c), may be transported to an appropriate facility by the officer and issued a citation for being intoxicated and disruptive in a public place.

(c) An officer may render assistance to any person found intoxicated in a public place by taking any of the following actions:

(1) The officer may direct or transport the intoxicated person to their home.

(2) The officer may direct or transport the intoxicated person to the home of a friend or relative willing to accept them.

(3) The officer may direct or transport an intoxicated person in need of clothing or shelter but unable to provide for him or her self to an appropriate facility authorized for this purpose by the Tribal Council.

(d) An intoxicated person directed or transported to a shelter or health-care facility may be detained only until they are sober or for a maximum of 24 hours. An intoxicated person may elect to remain at the facility for a longer period if the facility is able to accommodate them.

(e) The officer may use reasonable force to restrain the intoxicated person if necessary to protect himself, the intoxicant or others. No officer shall be held civilly or criminally liable on account of reasonable measures taken under authority of this section.

(f) An intoxicated person who is incarcerated under this section may pay the $20.00 jail fee within ten days of the period of incarceration. If the $20.00 fee is not paid in that time frame, the intoxicated person may be brought to court, and court costs may be added to the jail fee to cover the administrative expenses.

(Ord. No. 117, 3-3-2000)

Sec. 14-15.2. Sale of alcoholic beverages.

(a) A person shall be guilty of a misdemeanor if he sells any alcoholic beverage on the Cherokee Indian Reservation unless such sale is in conformance with a Tribal ordinance authorizing the sale of alcoholic beverages.

(b) A violation of this section is punishable by a fine of not more that $500.00 or imprisonment of not more than one year, or both.

(c) Persons who violate this section but are not subject to the criminal jurisdiction of the Cherokee Court shall be cited and charged in the United States Courts.

(Ord. No. 117, 3-3-2000)

Sec. 14-15.3. Transportation of alcoholic beverages.

(a) It shall be unlawful for a person to transport fortified wine, malt beverages or spirituous liquor in the passenger area of a motor vehicle in other than the manufacturer's unopened original container. It shall be unlawful for person who is driving a motor vehicle on a highway or public vehicular area to consume in the passenger area of that vehicle any fortified or unfortified wine, malt beverage or spirituous liquor. Violation of this section shall constitute a criminal offense punishable by a fine of $25.00 to $500.00, imprisonment for not more than 30 days.

(b) Taxis. It shall be unlawful for a person operating a for-hire passenger vehicle to transport fortified or unfortified wine, malt beverages or spirituous liquor unless the vehicle is transporting a paying passenger who owns the alcoholic beverage being transported. Not more than five liters of fortified wine or spirituous liquor or combination of the two may be transported by each passenger.

(c) Definitions. For purposes of this section, the following definitions shall apply:

(1) Open container. If the seal on a container of alcoholic beverages has been broken, it is opened within the meaning of this section.

(2) Passenger area of a motor vehicle shall mean the area designated to seat the driver and passengers and an area within the reach of a seated driver or passenger, including the glove compartment. In the case of a station wagon, hatchback or similar vehicle, the area behind the last upright back seat shall not be considered part of the passenger area.

(3) Alcoholic beverages shall mean any beverages containing at least one-half of one per cent alcohol by volume, including malt beverages unfortified wine, fortified wine, spirituous liquor and mixed beverages.

(4) Fortified wine shall mean any wine made by fermentation from grapes, fruits, berries, rice or honey, to which nothing has been added other than pure brandy made from the same type of grape, fruit, berry, rice or honey that is contained in the base wine and which has an alcoholic content of not more than 24 percent alcohol by volume.

(5) Malt beverage shall mean beer, lager, malt liquor, ale, porter and any other brewed or fermented beverage containing at lest one-half of one percent and not more than six percent alcohol by volume.

(6) Mixed beverages shall mean a drink composed in whole or in part of spirituous liquor and served in a quantity less than the quantity contained in a closed package.

(7) Spirituous liquor or liquor shall mean distilled spirits or ethyl alcohol, including spirits of wine, whiskey, rum, brandy, gin and all other distilled spirits and mixtures of cordials, liqueur and premixed cocktails, in closed containers for beverage use regardless of their dilution.

(8) Unfortified wine shall mean wine that has an alcoholic content produced only by natural fermentation or by the addition of pure cane, beet, or dextrose sugar and that has an alcoholic content of not more than 17 percent by volume.

(Ord. No. 117, 3-3-2000)

Sec. 14-15.4. Drinking alcoholic beverages in public places.

(a) It shall be unlawful for a person to consume fortified or unfortified wine, malt beverages or spirituous liquor in the open air or inside a parked vehicle in the following areas of the Cherokee Indian Reservation;

(1) In a school or church parking lot.

(2) In a parking lot adjacent to a tribal or federal government building or facility or in a parking area adjacent to a private business, which is open to the public.

(b) Violation of this section shall constitute a criminal offense punishable by a fine of not less than $25.00 nor more than $500.00 or imprisonment for not more than 30 days, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-15.5. Intoxicated and disruptive in public.

(a) It shall be unlawful for any person in a public place to be intoxicated and disruptive in any of the following ways:

(1) Blocking or otherwise interfering with traffic on a highway or public vehicular area; or

(2) Blocking or lying across or otherwise preventing or interfering with access to or passage across a sidewalk or entrance to a building; or

(3) Grabbing, shoving, pushing or fighting others or challenging others to fight; or

(4) Cursing or shouting at or otherwise rudely insulting others; or

(5) Begging for money or other property.

(b) Intoxicated and disruptive in public shall be punishable by a fine not to exceed $250.00, by a term of imprisonment not to exceed three months, or both.

(c) Upon a second or subsequent conviction under this section, a punishment of a fine not to exceed $500.00 or a term of imprisonment not to exceed six months, or both may be imposed.

(Ord. No. 117, 3-3-2000)

Sec. 14-15.6. Providing alcoholic beverages to/possession of/consumption of alcoholic beverages by/persons under 21 years old.

(a) Providing to. It shall be unlawful for any person to sell or give malt beverages, unfortified wine, fortified wine, spirituous liquor or mixed beverages to anyone less than 21 years of age. Violation of this subsection (a) shall constitute a criminal offense punishable as follows:

(1) First offense. A mandatory minimum sentence of not less than a $1,000.00 fine, costs, and imprisonment for not less than 72 hours.

(2) Second offense. A mandatory minimum sentence of not less than a $3,000.00 fine, costs, and imprisonment for not less than six months.

(3) Subsequent offenses. A mandatory minimum sentence of not less than a $5,000.00 fine, costs, and imprisonment for not less than one year.

(b) Purchase, attempt to purchase, possession, or consumption. It shall be unlawful for a person less than 21 years of age to purchase, to attempt to purchase, to possess, or to consume malt beverages, unfortified wine, fortified wine, spirituous liquor, or mixed beverages.

(1) Violation of this subsection (b) shall constitute a criminal offense. Persons who violate this subsection who are between 16 and 21 years of age shall be subject to the following:

a. First offense. Fifty dollar fine and costs. Defendant shall be placed on six to 12 months probation, with the terms of probation to include 72 hours of community service work and the defendant shall be ordered to obtain a substance abuse assessment and complete any recommended treatment plan at the defendant's expense.

b. Second offense. One hundred dollar fine and costs. Defendant shall be placed on six to 12 months probation, with terms of probation to include 96 hours of community service work, and the defendant shall be ordered to obtain a substance abuse assessment and complete any recommended treatment plan at the defendant's expense.

c. Third offense. Two hundred fifty dollar fine and costs. Defendant shall be placed on six to 12 months probation, with terms of probation to include 120 hours of community service work, and the defendant shall be ordered to obtain a substance abuse assessment and complete any recommended treatment plan at the defendant's expense.

d. Subsequent offenses. Imprisonment not to exceed six months and a $500.00 fine, or both. Defendant shall be ordered to perform 240 hours of community service and obtain a substance abuse assessment and complete any recommended treatment plan at the defendant's expense.

(2) Violation of this subsection (b) by a person who is under 16 years of age shall subject such person to the jurisdiction of the juvenile court and to the dispositional alternatives outlined in Section 7A-53 of the Juvenile Code.

(c) Aiding and abetting. It shall be unlawful for any person to aid or abet another in violation of subsection (a) or (b) of this section.

(1) Violation of this subsection (c) shall constitute a criminal offense. Persons 16 years of age and older who violate this subsection shall be punished by a fine not to exceed $500.00 or a term of imprisonment not to exceed 6 months, or both.

(2) Violation of this subsection (c) by persons under 16 years of age shall subject such persons to the jurisdiction of the juvenile court and to the dispositional alternatives outlined in Section 7A-53 of the Juvenile Code.

(d) Fraudulent use of identification. It shall be unlawful for any person to obtain or attempt to obtain alcoholic beverages in violation of subsection (b) of this section by using or attempting to use:

(1) A fraudulent or altered driver's license; or

(2) A fraudulent or altered identification document other than a driver's license; or

(3) A driver's license issued to another person; or

(4) An identification document other than a driver's license issued to another person.

Violation of this subsection (d) shall constitute a criminal offense. Persons 16 years of age and older who violate this subsection shall be punished by a fine not to exceed $500.00 or a term of imprisonment not to exceed six months, or both. Violation of this subsection (d) by persons under 16 years of age shall subject such persons to to the jurisdiction of the juvenile court and to the dispositional alternatives outlined in Section 7A-53 of the Juvenile Code.

(e) Allowing use of identification. It shall be unlawful for any person to permit the use of his driver's license or any other identification document of any kind by any person who violates or attempts to violate subsection (b) of this section. Violation of this subsection (e) shall constitute a criminal offense punishable by a fine not to exceed $500.00 or a term of imprisonment not to exceed six months, or both.

(Ord. No. 117, 3-3-2000; Ord. No. 286, 7-17-2000; Ord. No. 871, 8-9-2001; Ord. No. 350, 9-13-2004)

ARTICLE V. SEXUAL ASSAULT

Sec. 14-20. Reserved.

Sec. 14-20.1. Taking indecent liberties with children.

A person shall be guilty of taking indecent liberties with children if they either:

(1) Willfully take or attempt to take any improper or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or

(2) Willfully commit or attempt to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.

(3) For purposes of this section, indecent liberties shall include any sexual contact of the genitalia, anus, groin, breast, inner thigh or buttocks which do or may abuse, humiliate, harass, degrade, arouse or gratify the sexual desire of any person.

(Ord. No. 117, 3-3-2000)

Sec. 14-20.2. Aggravated sexual abuse.

A person shall be guilty of aggravated sexual abuse if he or she:

(1) Knowingly causes another person to engage in a sexual act by using force against that other person; or

(2) Knowingly causes another person to engage in a sexual act by threatening or placing that other person in fear that any person will be subject to death, serious bodily injury, or kidnapping; or

(3) Knowingly renders another person unconscious and thereby engages in a sexual act with that other person; or

(4) Knowingly administers to another person by force or threat of force or without the knowledge or permission of that person a drug, intoxicant or other similar substance and thereby substantially impairs the ability of that other person to appraise or control conduct and engages in a sexual act with that other person; or

(5) Engages in a sexual act with another person who has not attained the age of 13 years.

(Ord. No. 117, 3-3-2000)

Sec. 14-20.3. Sexual abuse.

A person shall be guilty of sexual abuse if he or she:

(1) Knowingly causes another person to engage in a sexual act by threatening or placing that other person in fear; or

(2) Knowingly engages in a sexual act with another person and that other person is:

a. Incapable of appraising the nature of the conduct; or

b. Physically incapable of declining participation in or communicating unwillingness to engage in the sexual act.

(Ord. No. 117, 3-3-2000)

Sec. 14-20.4. Sexual abuse of minor or a ward.

A person shall be guilty of sexual abuse of a minor or a ward if he or she:

(1) Engages in a sexual act with another person who has not attained the age of 16; or

(2) Knowingly engages in a sexual act with another person who is in official detention and under the custodial, supervisory or disciplinary authority of the person so engaging.

(Ord. No. 117, 3-3-2000)

Sec. 14-20.5. Reserved.

Sec. 14-20.6. Punishment.

Any person subject to the criminal jurisdiction of the Eastern Cherokee Court of Indian Offenses or any successor Cherokee tribal court who shall be convicted of any offense defined by this section shall be subject to punishment by imprisonment for up to 12 months or by fine of up to $5,000.00, or both, for each offense, at the discretion of the court.

(Ord. No. 117, 3-3-2000)

Sec. 14-20.7. Repealed.

ARTICLE VI. CRIMES AGAINST PUBLIC SAFETY

Sec. 14-25. Reserved.

Sec. 14-25.1. Toxic waste disposal.

(a) The storage, burial or disposal of any nuclear refuse, by-product, waste or radioactive material or any chemicals or other toxic refuse, by-products or waste material within the trust lands or any other lands of the Eastern Band of Cherokee Indians is absolutely prohibited.

(b) Persons violating this section shall be punished by mandatory imprisonment for one year for each violation together with a mandatory fine of $5,000.00 for each violation. Persons not subject to the criminal jurisdiction of the Cherokee Court who violate this section shall be subject to civil actions for actual and punitive damages. All non-members determined in violation of this section shall be subject to civil actions for actual and punitive damages. All nonmembers determined in violation of this section by civil proceedings in the Cherokee Court may be banished form the Cherokee Indian Reservation and shall be required to forfeit all right to enter Cherokee trust lands. Persons violating this section shall be required to bear the expenses of the removal and clean-up of all such materials.

(c) The provisions of this section shall not apply to the maintenance and use of x-ray or other radioactive materials for medical treatment by the Cherokee Indian Hospital, physicians or dentists on the Cherokee Indian Reservation.

(Ord. No. 117, 3-3-2000)

Sec. 14-25.2. Drugs.

(a) In order to insure consistence in the application and enforcement of criminal laws pertaining to the sale, distribution, and/or possession of illegal drugs, narcotics, and/or drug paraphernalia on the Cherokee Indian Reservation and in surrounding areas, the Tribe does adopt the laws of the State of North Carolina General Statutes, Secs. 90-86—90-113.8, and 90-113.20—90-113.24, as well as any amendments. All such laws shall be applied by the Cherokee Court against persons subject to the criminal jurisdiction of the Cherokee Court. All such laws shall be enforced by Cherokee Police, North Carolina Highway Patrol officers and by federal law enforcement officers with all non-Cherokee violators cited into the court of competent jurisdiction.

(b) The penalty for drug offenses under the jurisdiction of the Cherokee Court of Indian Offenses or any successor court shall be the penalty imposed by the North Carolina General Statutes, not to exceed $5,000.00, a term of imprisonment not to exceed one year, or any combination of them.

(c) An additional sentence of exclusion for a period not to exceed 20 years may also be imposed.

(Ord. No. 117, 3-3-2000; Ord. No. 390, 10-27-2000)

Sec. 14-25.3. Leaving unused well open and exposed.

(a) It shall be unlawful for any person, firm or corporation, after discontinuing the use of any well, to leave said well open and exposed; said well, after the use of same has been discontinued, shall be carefully and securely filled: Provided, that this shall not apply to wells on farms that are protected by curbing or board walls.

(b) Leaving an unused well open and exposed shall be punishable by a fine not to exceed $250.00, by a term of imprisonment not to exceed three months, or both.

(Ord. No. 117, 3-3-2000)

Sec. 14-25.4. False reports and alarms.

(a) It shall be unlawful to initiate or circulate a report or warning of a fire, bombing, or other crime or catastrophe, knowing that the report or warning is false or baseless and that it is likely to cause evacuation of any building, place or assembly, or facility of public transport, or to cause public inconvenience or alarm or action of any sort by an official or volunteer agency organized to deal with emergencies.

(b) False reports shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both.

(Ord. No. 117, 3-3-2000)

Section 14-25.5. Violations of exclusion resolutions and orders.

(a) It is unlawful for any person who has been excluded from Cherokee trust lands pursuant to this chapter to violate the exclusion resolution or order.

(b) It is unlawful for any person to aide or abet any person in the violation of an exclusion resolution order.

(c) Violation of this section is a misdemeanor punishable by a fine not to exceed $5,000.00 or incarceration for a period not to exceed six months, or both.

(d) In addition, whether or not the violator of this section is subject to criminal jurisdiction of the Cherokee Tribal Court:

(1) Which, by the use of flashing or blinding lights, tends to blind and effectively hampers the vision of the operator of any motor vehicle passing on a public street, road or highway; or

(2) Which involves red, green or amber lights or reflectorized material which resembles traffic signal lights or traffic control signs; or

(3) Which, by the use of lights, reasonably causes the operator of any motor vehicle passing upon a public street, road or highway to mistakenly believe that there is approaching or situated in his lane of travel some other motor vehicle or obstacle, device or barricade, which would impede his traveling in such lane;