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

ARTICLE IX. CRIMES OF BODILY INJURY

Sec. 14-40. Reserved.

Sec. 14-40.1. Domestic violence.

(a) Purpose. The purpose of the domestic violence criminal ordinance is to recognize that the crime of domestic violence is an extremely serious crime against society, the Tribe, and the family, and to provide the victim of domestic violence the maximum protection from further violence which the law can provide. Furthermore, the purpose of this section is to recognize that the strength of the Tribe is founded on healthy families, and that the safety of victims of domestic violence must be ensured by immediate intervention by law enforcement, prosecution, education, counseling, and other appropriate services.

It is the intent of the Eastern Band of Cherokee Indians Tribal Council that the official response to cases of domestic violence is that violent crime will not be excused or tolerated. Furthermore, it is the explicit intent of the Eastern Band of Cherokee Indians Tribal Council that domestic violence be prosecuted without requiring that the alleged victim and perpetrator be married, share a residence, or be presently involved in a relationship.

(b) Definition. The crime of domestic violence occurs when a person commits one of the following acts against an intimate partner or against a member of such intimate partner's family or household, or against an animal of such intimate partner:

(1) Attempting to cause or causing physical harm, bodily injury, or assault to an intimate partner or to a member of such intimate partner's family or household, or to an animal of such intimate partner;

(2) Placing an intimate partner or a member of the intimate partner's family or household in fear of the infliction of physical harm, bodily injury or assault;

(3) Willfully attempting to cause or causing emotional distress to an intimate partner or to a member of such intimate partner's family or household;

(4) Causing an intimate partner or a member of such intimate partner's family or household to engage involuntarily in sexual activity by force, threat of force, or duress; or

(5) Committing any willful violation of a court order intended to protect the intimate partner or a member of such person's family or household;

(6) Committing one of the following offenses, as defined by the Eastern Band of Cherokee Indians Criminal Code, against an intimate partner or against a family member, household member, or animal of such intimate partner:

a. Injuring real property (§ 14-10.11);

b. Injuring telephone, wires or other telephone equipment (§ 14-10.14);

c. Criminal trespass (§§ 14-10.15, 14-10.16, and/or 14-10.17);

d. Burglary (§ 14-10.40);

e. Breaking and entering (§ 14-10.14);

f. Criminal mischief (§ 14-10.9);

g. Arson (§§ 14-10.50, 14-10.51, and/or 14-10.52);

h. Assault (§§ 14-40.10, 14-40.11, 14-40.12);

i. Maiming (§ 14-40.14);

j. Discharging a firearm into an occupied building (§ 14-40.15);

k. Harassment; telephone harassment (§§ 14-25.13 and/or 14-5.3);

l. Kidnapping (§ 14-40.30);

m. False imprisonment (§ 14-40.31);

n. Custodial interference (§ 14-40.32);

o. Homicide (§§ 14-40.40 and/or 14-40.41);

p. Sex offenses - including rape, taking indecent liberties with children, aggravated sexual abuse, sexual abuse, sexual abuse of minor or ward (§§ 14-20.1, 14-20.2, 14-20.3, 14-20.4);

q. Stalking (§ 14-5.5);

r. Communicating threats (§ 14-5.2);

s. Harassment (§§ 14-5.3 and/or 14-25.13);

t. Weapons law violations (§§ 14-34.10, 14-34.11, 14-34.12, 14-34.13, and/or 14-34.14);

u. Cruelty to animals (§ 14-5.20);

The commission of one of the above-referenced crimes against an intimate partner or against a member of such party's family or household, or against an animal of such party shall trigger the application of this ordinance.

(c) Intimate partner/family member.

(1) Intimate partner means:

a. A current or former spouse;

b. Persons who have a dating relationship or have been in a dating relationship. For purposes of this section, a dating relationship is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.

c. Persons who have engaged in an ongoing sexual relationship; or

d. Persons who have a child in common, or who are expecting a child together.

(2) Intimate partner's family includes: Any immediate family relationship that an intimate partner, as defined above, may have. Such relationship may include, a relationship between parent / child, siblings, grandparents / grandchild, step-parent / step-child, foster parent / foster child, or any relationship where circumstances have created a close family-type relationship, such as cousins raised as siblings.

(d) Causing physical harm or bodily injury means causing physical pain, serious illness, or an impairment of a physical condition.

(e) Causing apprehension of bodily injury means any physical act, including the utterance of verbal threats, which causes a person or animal to reasonably fear serious bodily injury or death.

(f) Causing emotional distress means engaging in conduct that would cause a reasonable person emotional distress and does in fact cause emotional distress to the person. Examples of conduct which may cause emotional distress include, but are not limited to, the following:

(1) Creating a disturbance at a person's place of employment or school;

(2) Repeatedly telephoning a person's place of employment or residence;

(3) Repeatedly following a person in a public place or places;

(4) Repeatedly keeping a person under surveillance by remaining present outside his or her home, school, place of employment, vehicle or other place occupied by the person or by peering in the person's windows;

(5) Improperly concealing a minor child from a person with sole or joint custody of the minor, repeatedly threatening to improperly remove the person's minor child from the jurisdiction or from his or her physical care, repeatedly threatening to conceal the person's minor child or making a threat following an actual or attempted improper removal or concealment, unless the removal or attempted removal was made while fleeing from an incident or pattern of domestic violence; or

(6) Threatening physical force, confinement or restraint.

(g) Willful violation of court order. For purposes of this section, willful violation of a court order is defined as any violation of any term contained in a lawful order issued by a properly constituted judicial authority pursuant to a criminal or civil case in tribal, federal, or state court where said order:

(1) Enjoins the perpetrator from threatening to commit or committing acts of domestic violence against a current or former intimate partner, or against a family or household member of a current or former intimate partner, or against an animal of a current or former intimate partner;

(2) Prohibits the perpetrator from intimidating, harassing, menacing, annoying, telephoning, contacting, or otherwise interfering or communicating with a current or former intimate partner, or against a family or household member of a current or former intimate partner, or against an animal of a current or former intimate partner;

(3) Removes and/or excludes the perpetrator from the residence of a current or former intimate partner or of a family or household member, and a reasonable area surrounding the residence;

(4) Requires the perpetrator to stay away from the residence, school, place of employment, or a specified place frequented regularly by a current or former intimate partner, or by a family or household member of a current or former intimate partner;

(5) Prohibits the perpetrator from using or possessing a firearm or other weapon specified by the Court; or

(6) Grants temporary custody of a minor child to the person protected by the order.

For purposes of this section, a lawful order is defined as any order of protection, no contact order, pretrial release condition, condition of probation or parole, consent order, injunction, or other similar order that is issued by an Indian tribe, the United States of America, or a state, as long as the issuing court has jurisdiction over the parties and the matter under the law of the tribe, the U.S. or the state and reasonable notice and opportunity to be heard is given to the person against whom the order is sought sufficient to protect that person's right to due process. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by tribal, federal, or state law, and in any event, within a reasonable time after the order is issued, sufficient to protect the respondent's due process rights.

The tribe maintains criminal jurisdiction under this section for willful violations of a court order, even if the Cherokee Court lacked jurisdiction to issue the original order which was violated. The Tribe maintains criminal jurisdiction under this section for willful violations of orders issued by the Cherokee Court, even if the violation occurs outside of the territorial jurisdiction of the Eastern Band of Cherokee Indians.

(h) Any person with knowledge that the crime of domestic violence is occurring, or is imminent, may report such information to the Cherokee Police Department or the Office of the Tribal Prosecutor. Every report involving an allegation of Domestic Violence must be investigated by the Cherokee Police Department or the Office of the Prosecutor Criminal process for a violation of this section may be issued only upon the request of the Police or the Tribal Prosecutor following an investigation by the Cherokee Police Department or the Office of the Tribal Prosecutor. Nothing in this section shall prohibit individual citizens from initiating charges against an intimate partner for the violation of other criminal statues.

(1) Duties of Cherokee Law Enforcement Officers. Cherokee law enforcement officers who respond to calls involving action which could constitute the crime of domestic violence under this section shall use all reasonable means to protect the alleged victim(s) and prevent further violence. All calls regarding domestic violence shall be responded to immediately. Cherokee law enforcement officers shall also adhere to the requirements set forth in chapter 50B of this Code. Any law enforcement officer shall have immunity from any liability, civil or criminal, in making arrests or exercising any other authorized authority if the law enforcement officer acts in good faith so as to provide protection for victims of domestic violence. Law enforcement officers shall have the same immunity with respect to participation in any court proceedings resulting from arrests made for domestic violence or any crimes involving domestic violence.

(2) Mandatory arrest.

a. Violation of order:A law enforcement officer must arrest within 24 hours and charge a person with the appropriate crime if the officer has probable cause to believe that person has willfully violated a court order, as defined in this section.

b. Commission of domestic violence crime. A law enforcement officer must arrest within 24 hours and charge a person with the appropriate crime if the officer has probable cause to believe that the person has committed or is committing the offense of domestic violence, even if a warrant has not been issued and the offense was committed outside the presence of the officer. If the conditions for arrest are present, the officer shall arrest the alleged perpetrator of domestic violence regardless of whether the alleged victim signs a complaint and whether the arrest is against the expressed wishes of the alleged victim. If a law enforcement officer receives complaints of domestic violence from two or more opposing persons, the officer must evaluate each complaint separately to determine who was the predominant aggressor. If the officer determines that one person was the predominant aggressor, the officer need not arrest the other person believed to have committed an offense. The law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage requests for intervention by law enforcement by any party. In addition, the law enforcement officer shall not consider the use or abuse of alcohol or controlled substance by either party in making a determination as to whether the crime of domestic violence has been committed. Further, the law enforcement officer shall not make an arrest based on who hit who first, but shall consider the dynamics of domestic violence. In determining whether a person is the predominant aggressor, the office must consider:

1. The history of domestic violence, both documented prior complaints and convictions and the law enforcement officer's own prior knowledge of the family;

2. The relative severity of the in juries inflicted on each person, or serious threats creating reasonable fear of bodily injury;

3. The degree to which one of the persons has acted with deliberate intent to control, isolate, intimidate, emotionally demean, cause injury or pain or fear of harm to the person or to a member of the person's family or household;

4. The likelihood of future injury to each person;

5. Whether one of the persons acted in self-defense.

(3) Familial relationships of law enforcement. In instances where law enforcement officers respond to a call involving a relative by blood or marriage, the officer shall note the relationship on the case report. The supervisor reviewing the report shall review the report for accuracy and will ensure that the appropriate action has been taken.

(4) Authority to seize weapons. Incident to an arrest for a crime of domestic violence, as defined herein, a law enforcement officer:

a. Must seize all weapons that are alleged to have been involved or threatened to be used in the commission of the crime;

b. Must seize any weapon that is in plain view of the officer or was discovered pursuant to a consensual search if an existing order or condition of release prohibits the use or possession of a firearm or other weapon;

c. Must seize any weapon that is in plain view of the officer or was discovered pursuant to a consensual search, as necessary for the protection of the officer or other persons.

(5) Report to domestic violence program. Whenever a police officer or the Office of the Tribal Prosecutor completes the investigation of an alleged act of domestic violence, regardless of whether an arrest is made, the investigating party shall make a writ ten incident report of the alleged abuse and submit that report to the Eastern Band of Cherokee Indians' Domestic Violence Program within 48 hours for purposes of program coordination. When the investigating party does not bring charges, make a warrantless arrest, or arrests two or more persons for a crime involving domestic violence, the written report must set forth the grounds for not bringing charges, for not arresting, or for arresting both parties. In addition, all reports, regardless of who is arrested or not arrested, must contain:

a. A description of the circumstances surrounding any action which could constitute the crime of domestic violence under this section, such as a description of all parties, any witnesses, and surrounding environment;

b. A description of the injuries or harm inflicted upon either or both parties; and

c. Summaries of all statements from the parties and witnesses describing the circumstances surrounding any action which could constitute the crime of domestic violence under this section.

(i) Duties of Tribal Prosecutor.

(1) Within 120 days following enactment of this section, the Tribal Prosecutor will develop and implement written policies and procedures for the prosecution of the crime of domestic violence which will advance effective prosecution of the crime and maximize the protection and safety of the victims of domestic violence and their families. These policies and procedures will include the following:

a. A prosecutorial policy that the employment, economic, educational, physical and/or mental health and political status of the alleged perpetrator and victim will not factor into determinations regarding domestic violence crimes;

b. A "no drop" policy that prohibits victims from withdrawing charges;

c. A process describing the utilization of advocates during every phase of criminal justice proceedings;

d. The prosecutor will not dismiss a domestic violence case without prior consultation and review with the arresting officer and advocate;

e. The prosecutor will expedite proceedings with a minimum of continuances and shall consider the present residency of the victim as it relates to continuances, especially if the victim has relocated off the reservation for safety;

f. The victim may, but shall not be required to act as the primary witness. In instances requiring "victimless" prosecution, the prosecution is required to enlist any and all evidentiary avenues, including photographs, other witness, medical records, testimony from law enforcement, history of past abuse, excited utterances, etc.

(2) The Prosecutor shall notify the alleged victim of the following rights:

a. The right to be informed of all hearing dates and continuances;

b. The right to provide the court with a victim-impact statement and an assessment of the likelihood of future harm;

c. The right to be present at sentencing and to address the court at such time;

d. If the alleged perpetrator is eligible for probation, the right to advise the court of conditions of probation required to assure the safety of the alleged victim; and

e. If the domestic violence resulted in damage to or loss of property, the ability to ask the court to order restitution for those losses.

(3) The prosecutor shall notify the alleged victim of domestic violence when the prosecutor declines to prosecute a case, or when the prosecutor dismisses the criminal charges, or when the prosecutor enters into a plea agreement.

(4) The prosecutor shall be educated in the psycho-social aspects of domestic violence, including the fear and self-doubt that could lead an alleged victim to find it difficult to testify against the defendant. Alleged victims shall be treated with dignity, respect and sensitivity.

(5) The prosecutor shall inform an alleged victim of the victim's right to petition for a civil Order for Protection under chapter 50B of the Cherokee Code, and shall assist in the preparation of this petition, regardless of whether or not criminal charges are brought against an alleged perpetrator.

(j) Bond and pretrial release.

(1) No person arrested for a crime of domestic violence or violation of an order for protection shall be released from detention until after the expiration of 72 hours from arrest, notwithstanding the ability to post a cash or surety bond, unless released by a judge of the Cherokee Court after a formal release hearing. During the 72 hours, it shall be a rebuttable presumption that the defendant poses a risk of violence and/or intimidation to the victim. In no case shall any person arrested for domestic violence be released prior to the expiration of 72 hours from arrest unless the victim has been informed that the defendant's release is imminent and has been given an opportunity to be heard at a formal release hearing. At the release hearing, a judge must review the facts of the act of domestic violence under this section and determine whether:

a. The person poses a credible threat of violence, repeated harassment or bodily injury to the alleged victim or to the victim's family or household;

b. Is a threat to public safety; and

c. Is reasonably likely to appear in court.

(2) In making the determination required by subsection (j)(1), the court will consider whether the arrested person's pattern of violent or threatening behavior towards a victim or victim's family or household member is chronic, and whether the seriousness of the behavior has been escalating, indicating a heightened danger of severe or lethal injury to the victim.

(3) Before releasing a person arrested for or charged with a crime involving domestic violence, the court must make findings on the record, concerning the determination made in accordance with subsection (j)(1) and may impose conditions of release or bail on the defendant to protect the alleged victim of domestic or family violence and to ensure the defendant's appearance at a subsequent court hearing. The conditions may include, but are not limited to, an order:

a. That the defendant stay away from the home, school, business or place of employment of the alleged victim and/or other members of the victim's household or family;

b. That the defendant refrain from harassing, annoying, telephoning, contacting or otherwise communicating with the alleged victim, household members of the victim, family members of the victim, either directly or indirectly;

c. That the defendant refrain from assaulting, beating, molesting, or wounding the alleged victim, as well as household members, family, and animals of the alleged victim;

d. That the defendant refrain from removing, damaging property belonging to the victim, household members of the victim, and the victim's family;

e. That the defendant be prohibited from using or possessing a firearm or other weapon specified by the court;

f. That the defendant report within ninety-six (96) hours to a tribal health program for a domestic violence evaluation and comply with all treatment recommendations. If alcohol and/or drugs is indicated, the defendant shall also be prohibited from possessing or consuming alcohol or controlled substances and will be required to complete a chemical dependency evaluation conducted by a tribal chemical dependency program and comply with treatment recommendations. A copy of the order will be faxed to the appropriate tribal program to ensure compliance with this provision.

g. To remain within the jurisdiction of the Cherokee Tribal Court at all times;

h. Any other conditions required to protect the safety of the alleged victim and to ensure the appearance of the defendant in court.

(4) Once these conditions of release are imposed, the court shall:

a. Issue a written order for conditional release;

b. Immediately distribute a copy of the order to the tribal Prosecutor's office and to the Cherokee Police Department;

c. Provide the Cherokee Police Department with any available information concerning the location of the defendant to ensure that the safety of the victim, as well as members of the victim's household and family are protected;

d. Use all reasonable means to immediately notify the victim of the alleged crime of the defendant's release from custody and furnish the victim with an official copy of all conditions of release. The location of the victim is confidential and law enforcement, the prosecutor, and court are prohibited from divulging it, except in accordance with subsection (n) below

(k) Court-ordered and court-referred mediation prohibited. The court shall not order defendants and victims of the crime of domestic violence into mediation or any other type of couples counseling, alternative justice, restorative justice, peace-making, circle sentencing, or any other mediation type of situation that would put the victim in the position of dealing directly with the defendant, even if the victim has the right to refuse to participate.

(l) Privileges.

(1) The following evidentiary privileges do not apply in any criminal proceeding in which a spouse or other family or household member is the victim of an alleged crime involving domestic violence perpetrated by the other spouse:

a. The privilege of confidential communications between spouses;

b. The testimonial privilege of spouses.

(2) The victim/advocate privilege. A victim of domestic violence may refuse to disclose and may prevent any volunteer or employee of a program for victims of domestic violence from disclosing the content of oral communications and written records and reports concerning the victim.

(m) Diversion prohibited; deferred sentencing permitted.

(1) The court shall not approve diversion of a perpetrator of domestic violence. The court may defer sentencing of a perpetrator of domestic violence if:

a. Consent of the prosecutor is obtained after consultation with the victim;

b. A hearing is held in which the perpetrator enters a plea or judicial admission to the crime; and

c. The victim is notified and given the opportunity to be heard; and

d. The court orders conditions of the deferred sentence that are necessary to protect the victim, prevent future violence, and rehabilitate the perpetrator.

(2) The case against a perpetrator of domestic violence may be dismissed if the perpetrator successfully completes all conditions imposed by the court.

(n) Location of victim. The court shall waive any requirement that the victim's location be disclosed to any person, other than the attorney of a criminal defendant, upon a showing that there is a possibility of further violence. Provided, that the court shall order a criminal defense attorney not to disclose to his client the victim's location.

(o) Penalties. Any person subject to the criminal jurisdiction of the Cherokee Court who shall be convicted of the crime of domestic violence shall be subject to punishment by imprisonment for up to 12 months, by a fine of up to $5,000.00, or any combination of these penalties. A court may not sentence a person convicted of the crime of domestic violence to community service in lieu of jail. Further, the court may not order residential confinement in the home of the victim. The use of alcohol or any controlled substance in the committing of domestic violence or any crime related to domestic violence shall not diminish the seriousness of domestic violence. The fact that the perpetrator was under the influence at the time of the offense shall not be used by law enforcement, the prosecution, or the court to mitigate the severity of the violence.

(p) Conditions of probation or parole.

(1) In determining whether a defendant convicted of domestic violence should be placed on probation or parole, the court must consider the safety and protection of the victim and any member of the victim's family or household.

(2) After reviewing the facts and determining that the defendant poses a credible threat of violence, repeated harassment or bodily injury to the alleged victim or family or household of the victim, the court will make findings of fact and will condition any probation or parole upon compliance upon certain conditions, including but not limited to the following:

a. That the defendant stay away from the home, school, business or place of employment of the victim and/or other members of the victim's household or family;

b. That the defendant refrain from harassing, annoying, telephoning, contacting or otherwise communicating with the victim, household members of the victim, or family members of the victim;

c. That the defendant refrain from assaulting, beating, molesting, or wounding the victim, as well as household members, family, and animals of the alleged victim;

d. That the defendant refrain from removing or damaging property belonging to the victim, household member(s) and family of the victim;

e. That the defendant be prohibited from using or possessing a firearm or other weapon specified by the Court and surrender any weapons owned or possessed;

f. That the defendant may visit his or her child or children at times and places provided by the terms of any existing order entered by a judge or magistrate;

g. That the defendant begin a batterer's treatment program and/or continue with any treatment recommendations of an approved batterer's treatment program as ordered as a condition of pretrial release. If alcohol and/or drugs is indicated, the defendant shall also be prohibited from possessing or consuming alcohol or controlled substances and will be required to complete a chemical dependency evaluation conducted by an approved chemical dependency program and comply with treatment recommendations. A copy of the order will be transmitted to the appropriate program to ensure compliance with this provision.

h. That the defendant pay restitution to the victim, to the victim's family or household member, or to a program or agency which has provided services to the victim as a result of the defendant's present domestic violence case.

i. Any other conditions required to protect the safety of the victim and/or the victim's family or household.

(3) The court shall establish policies and procedures for responding to reports of nonattendance or noncompliance by a defendant with the conditions of probation imposed pursuant to subsection (2).

(q) Revocation of bond, probation, parole. The court, together with the Tribal Prosecutor, will establish policies and procedures for responding to reports of noncompliance with any conditions of a bond, probation or parole imposed pursuant to subsections (g), (j), and (p).

(r) Child discipline. Nothing within this section shall be construed to prohibit the reasonable, lawful actions of a parent to discipline a child in their custody.

(s) Protections of this section. The provisions of subsections (h), (i), (j), (k) and (1) of this section will be extended to the victim of any crime which would qualify as domestic violence under this section, regardless of whether the defendant was charged with domestic violence or another crime under this chapter.

(t) Exclusion. All persons who are subject to the civil jurisdiction of the Cherokee Court who are guilty of committing domestic violence shall be subject to exclusion from Tribal territory pursuant to chapter 2 of the Cherokee Court.

(u) Willful violation of the prohibition on possessing a firearm. No person convicted of the crime of domestic violence in any state or tribal jurisdiction may ever possess a firearm once they have been convicted, irrespective of the sentence received. Willful violation of this prohibition will subject the defendant to a period of confinement not less than 30 days and not to exceed one year and a fine of not less than $1,000.00, but not more than $5,000.00, plus costs.

(v) Order of protection, chapter 50B. No provision or penalty enumerated in this section is meant to infringe upon the right of an alleged victim to file an Order of Protection against the perpetrator under the provisions of chapter 50B of the Cherokee Code.

(w) Ethics; familial relationships of law enforcement, prosecution and judges. All public servants shall be expected to perform their duties and proceed in accordance with this code no matter what the employment, education, social and political status of the alleged perpetrator and/or victim. Public servants shall be held to the highest professional standards in response to the crime of domestic violence.

(x) Severability. In the event of a court finding of invalidity of any clause or section of this article, such invalid clause or section shall be severed from the remaining body of the article, and the remainder of this article shall remain in full force and effect.

(y) Prior inconsistent laws repealed. Any existing laws which are inconsistent with his ordinance are specifically repealed.

(Ord. No. 117, 3-3-2000; Ord. No. 870, 8-9-2001; Ord. No. 817, 9-23-2003)

Secs. 14-40.2—14-40.8. Reserved.

Secs. 14-40.9—14-40.11. Reserved.

Editor's note--Ord. No. 817, ratified September 23, 2003, amended the Code by repealing former §§ 14-40.9--14-40.11 in their entirety. Former § 14-40.9 pertained to assault in the first degree, and derived from Ord. No. 117, ratified March 3, 2000; and Ord. No. 871, ratified August 9, 2001. Former § 14-40.10 pertained to assault in the second degree; and derived from the aforementioned Ord. No. 117 and Ord. No. 871. Former § 14-40.11 pertained to assault in the third degree, and derived from the aforementioned Ord. No. 871.

Sec. 14-40.12. Patient abuse and neglect.

(a) It shall be unlawful for any person to physically abuse a patient of a health care facility or a resident of a residential care facility, when the abuse is the result of an intentional or grossly negligent act or omission which causes serious bodily injury or death.

(b) Patient abuse and neglect 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 nor more than life, or any combination of them.

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

Sec. 14-40.13. Domestic abuse, neglect, and exploitation of disabled or elder adults.

(a) Abuse. A person is guilty of abuse if that person is a caretaker of a disabled or elder adult who is residing in a domestic setting and, with malice aforethought, knowingly and willfully: (i) assaults, (ii) fails to provide medical or hygienic care, or (iii) confines or restrains the disabled or elder adult in a place or under a condition that is cruel or unsafe, and as a result of the act or failure to act the disabled or elder adult suffers mental or physical injury.

(b) Neglect. A person is guilty of neglect if that person is a caretaker of a disabled or elder adult who is residing in a domestic setting and, wantonly, recklessly, or with gross carelessness: (i) fails to provide medical or hygienic care, or (ii) confines or restrains the disabled or elder adult in a place or under a condition that is unsafe, and as a result of the act or failure to act the disabled or elder adult suffers mental or physical injury.

(c) Exploitation. A person is guilty of exploitation if that person is a caretaker of a disabled or elder adult who is residing in a domestic setting, and knowingly, willfully and with the intent to permanently deprive the owner of property or money: (i) makes a false representation, (ii) abuses a position of trust or fiduciary duty, or (iii) coerces, commands, or threatens, and, as a result of the act, the disabled or elder adult gives or loses possession and control of property or money.

(d) Definitions. The following definitions apply in this section:

(1) Caretaker. A person who has the responsibility for the care of a disabled or elder adult as a result of family relationship or who has assumed the responsibility for the care of a disabled or elder adult voluntarily or by contract.

(2) Disabled adult. A person 18 years of age or older or a lawfully emancipated minor who is present in the State of North Carolina and who is physically or mentally incapacitated as defined in G.S. 108A-101(d).

(3) Domestic setting. Residence in any residential setting except for a health care facility or residential care facility as these terms are defined in G.S. 14-32.2.

(4) Elder adult. A person 60 years of age or older who is not able to provide for the social, medical, psychiatric, psychological, financial, or legal services necessary to safeguard the person's rights and resources and to maintain the person's physical and mental well-being.

(e) Domestic abuse, neglect, and exploitation of disabled or elder adults 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 nor more than ten years or any combination of them.

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

Sec. 14-40.14. Maiming.

(a) It shall be unlawful to wrongfully, purposely, or knowingly deprive a human being of a member of his body or render it useless, or to cut out or off, disable or disfigure any part of the body of another.

(b) Maiming 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 nor more than life, or any combination of them.

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

Sec. 14-40.15. Discharging a firearm into occupied property.

(a) It shall be unlawful for any person to willfully or wantonly discharge or attempt to discharge any barreled weapon capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second, or a firearm, into any building, structure, vehicle, aircraft, watercraft, or other conveyance.

(b) Discharging a firearm into occupied property 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 nor more than life, or any combination of them.

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

Sec. 14-40.16. Elder abuse and neglect.

(a) It shall be unlawful for any person to abuse or neglect an elderly person by:

(1) Intentional or negligent infliction of bodily injury; or

(2) Unreasonable confinement, intimidation, cruel punishment or treatment resulting in physical harm, pain, or mental anguish of the elder.

(b) For purposes of this section, "elderly person" includes any person who is at least 60 years of age, or an incapacitated adult over 18 years of age.

(c) Elder abuse and neglect shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion of not less than one year nor more than life, or any combination of them.

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

Secs. 14-40.17—14-40.29. Reserved.

Sec. 14-40.30. Kidnapping.

(a) It shall be unlawful to intentionally and wrongfully remove another from his place of residence, business, or from the vicinity where he is found, or to unlawfully confine or conceal another for a substantial period, for any of the following purposes:

(1) To hold for ransom or reward, or as a shield or hostage;

(2) To facilitate commission of any offense, or flight thereafter;

(3) To inflict bodily injury on or to terrorize the victim or another; or

(4) To interfere with the performance of any Eastern Band of Cherokee Indian governmental or political function.

(b) A removal, restraint, or confinement is wrongful within the meaning of this section if it is accomplished by force, threat, or deception, or, in the case of a child under the age of 14 or incompetent, if it is accomplished without the consent of a parent, guardian, or other person responsible for general supervision of his welfare.

(c) Kidnapping 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. 14-40.31. False imprisonment.

(a) It shall be unlawful to knowingly, and without lawful authority, restrain or imprison another so as to interfere with his liberty.

(b) False imprisonment 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. 14-40.32. Custodial interference.

(a) It shall be unlawful to knowingly and without lawful authority:

(1) Take, entice, conceal, or detain a child under the age of 16 from his parent, guardian, or other lawful custodian; or

(2) With the intent to hold the child for a period substantially longer than any visitation or custody period previously awarded by a court of competent jurisdiction; or

(3) With the intent to deprive another person of their lawful visitation or custody rights; or

(4) Intentionally take, entice or detain an incompetent or other person who has been committed by authority of law to the custody of another person or institution from the other person or institution, without good cause and with knowledge that there is not legal right to do so.

(b) Custodial interference 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. 14-40.33. Criminal coercion.

(a) It shall be unlawful to intentionally and wrongfully restrict another's freedom of action to his detriment by threatening to:

(1) Commit any criminal offense;

(2) Accuse anyone wrongfully of a criminal offense;

(3) Expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business reputation; or

(4) Unlawfully take or withhold action as an official, or cause an official to take or withhold action.

(b) It is an affirmative defense to criminal coercion, except for subsection (a)(1) above, that the actor believed the accusation or secret to be true or the proposed official action justified and that his purpose was limited to compelling the other in a lawful manner to behave in a way reasonably related to the circumstances which were the subject of the accusation, exposure, or proposed official action.

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

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

Sec. 14-40.40. Homicide in the first degree.

(a) It shall be unlawful to:

(1) Purposely, knowingly, and wrongfully cause the death of another human being; or

(2) Cause the death of another human being due to the commission or attempted commission of a felony or offense punishable by exclusion.

(b) Homicide in the first degree shall be punishable by a fine of $5,000.00, by a term of imprisonment not to exceed one year; exclusion for a period not less than ten years nor more than life; or any combination of them.

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

Sec. 14-40.41. Homicide in the second degree.

(a) It shall be unlawful to:

(1) Recklessly or negligently with disregard of the possible consequence of one's conduct to cause the death of another human being; or

(2) Cause the death of another human being by operating a motor vehicle in a reckless, negligent, or careless manner, or while under the influence of an alcoholic beverage, intoxicating liquor, a controlled substance, or any drug, to a degree which renders the person incapable of safely driving a vehicle.

a. A blood alcohol content in excess of .08 shall create a rebuttable presumption that the person was under the influence of an alcoholic beverage.

b. For purposes of this section, a motor vehicle is any self-propelled vehicle and includes, but is not limited to, any automobile, truck, van, motorcycle, train, engine, watercraft, aircraft, or snowmobile.

(b) Homicide in the second degree shall be punishable by a fine of $5,000.00, by a term of imprisonment not to exceed one year, exclusion for a period of not less than one year nor more than life; or any combination of them.

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

Sec. 14-40.42. Causing a suicide.

(a) It shall be unlawful to intentionally cause a suicide by force, duress, or deception.

(b) Causing a suicide 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 period of not less than one year nor more than 20 years; or any combination of them.

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

Sec. 14-40.43. Aiding or soliciting a suicide.

(a) It is unlawful to intentionally aid or solicit another to attempt to commit suicide.

(b) Punishment:

(1) Aiding or soliciting a suicide shall be punishable by a fine not to $5,000.00, by a term of imprisonment not to exceed one year, or both.

(2) If the defendant's conduct has actually caused or contributed substantially to a suicide, or attempted suicide, then exclusion for a period of not more than ten years may also be imposed.

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

Secs. 14-40.44--14-40.49. Reserved.

Sec. 14-40.50. Assault with deadly weapon with intent to kill and inflicting serious injury.

(a) It is unlawful to assault another person with a deadly weapon with intent to kill and inflicting serious injury

(b) It is unlawful to assault another person with a deadly weapon and inflict serious injury

(c) It is unlawful to assault another person with a deadly weapon with intent to kill.

(d) Unless a person's conduct is covered under some other provision of law providing greater punishment, assault with a deadly weapon with intent to kill and inflicting serious injury shall be punishable by a fine not less than $2,500.00 and not more than $5,000.00, by a term of imprisonment of not less than six months and not more than one year, exclusion for a period of not less than five years nor more than life; or any combination of them. Unless a person's conduct is covered under some other provision of law providing greater punishment, assault with a deadly weapon and inflict serious injury and assault with a deadly weapon with intent to kill shall be punishable by a fine not less than $1,000.00 and not more than $5,000.00, by a term of imprisonment of not less than 90 days and not more than one year, exclusion for a period of not less than one year nor more than 20 years; or any combination of them.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.51. Assault on law enforcement, probation, or parole officer.

(a) It shall be unlawful to commit an assault with a firearm or other deadly weapon on a law enforcement officer, probation officer, or parole officer while the officer discharging or attempting to discharge his or her official duties.

(b) It shall be unlawful to commit an assault inflicting serious injury on a law enforcement officer, probation officer, or parole officer while the officer is discharging or attempting to discharge his or her official duties.

(c) It shall be unlawful to commit a simple assault on a law enforcement officer, probation officer, or parole officer while the officer is discharging or attempting to discharge his or her official duties.

(d) Unless a person's conduct is covered under some other provision of law providing greater punishment, assault with a firearm on a law enforcement officer, probation officer, or parole officer, shall be punishable by a fine of not less than $1,000.00 and not more than $5,000.00, by a term of imprisonment of not less than 90 days and not more than one year, exclusion for a period of not less than one year nor more than 20 years; or any combination of them. Unless a person's conduct is covered under some other provision of law providing greater punishment, assault inflicting serious injury or assault using a deadly weapon other than a firearm on a law enforcement officer, probation officer, or parole officer, shall be punishable by a fine of not less than $500.00 and not more than $5,000.00, by a term of imprisonment of not less than 45 days and not more than one year, exclusion for a period of not less than one year nor more than 15 years; or any combination of them. Unless a person's conduct is covered under some other provision of law providing greater punishment, simple assault on a law enforcement officer, probation officer, or parole officer shall be punishable by a fine of not less than $250.00 and not more than $5,000.00, by a term of imprisonment of not less than seven days and not more than one year, exclusion for a period up to one year, or any combination of them.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.52. Assault or affray on a firefighter, an emergency medical technician, medical responder, emergency department nurse, or emergency department physician.

(a) It shall be unlawful to commit an assault with a firearm or other deadly weapon on an emergency medical technician, a medical responder, an emergency department nurse, an emergency department physician, or a firefighter.

(b) It shall be unlawful to commit an assault inflicting serious injury on an emergency medical technician, a medical responder, an emergency department nurse, an emergency department physician, or a firefighter.

(c) It shall be unlawful to commit an simple assault on an emergency medical technician, a medical responder, an emergency department nurse, an emergency department physician, or a firefighter.

(d) Unless a person's conduct is covered under some other provision of law providing greater punishment, assault with a firearm or other deadly weapon on an emergency medical technician, a medical responder, an emergency department nurse, an emergency department physician, or a firefighter shall be punishable by a fine of not less than $1,000.00 and not more than $5,000.00, by a term of imprisonment of not less than 45 days and not more than one year, exclusion for a period of not less than one year nor more than 15 years; or any combination of them. Unless a person's conduct is covered under some other provision of law providing greater punishment, assault inflicting serious injury on an emergency medical technician, a medical responder, an emergency department nurse, an emergency department physician, or a firefighter shall be punishable by a fine of not less than $250.00 and not more than $5,000.00, by a term of imprisonment of not less than 14 days and not more than one year, exclusion for a period up to one year; or any combination of them. Unless a person's conduct is covered under some other provision of law providing greater punishment, simple assault on an emergency medical technician, a medical responder, an emergency department nurse, an emergency department physician, or a firefighter 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 period of not less than one year nor more than 10 years; or any combination of them.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.53. Assault on a government employee.

(a) It shall be unlawful to commit an assault with a firearm or other deadly weapon on an officer or employee of the Eastern Band of Cherokee Indians, the state or any political subdivision of the state, or the United States of America when the officer or employee is discharging or attempting to discharge his official duties.

(b) It shall be unlawful to commit an simple assault on an officer or employee of the Eastern Band of Cherokee Indians, the state or any political subdivision of the state, or the United States of America when the officer or employee is discharging or attempting to discharge his official duties.

(c) Unless a person's conduct is covered under some other provision of law providing greater punishment, assault with a firearm on a government employee shall be punishable by a fine of not less than $500.00 and not more than $5,000.00, by a term of imprisonment of not less than 45 days and not more than one year, exclusion for a period of not less than one year nor more than 15 years, or any combination of them. Unless a person's conduct is covered under some other provision of law providing greater punishment, simple assault on a government employee 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 period of not less than one year nor more than ten years; or any combination of them.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.54. Assault inflicting serious bodily injury.

(a) It shall be unlawful to assault another person and inflict serious bodily injury

(b) "Serious bodily injury" is defined as bodily injury that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization.

(c) Unless a person's conduct is covered under some other provision of law providing greater punishment, assault inflicting serious bodily in jury shall be punishable by a fine of not less than $500.00 and not more than $5,000.00, by a term of imprisonment of not less than 45 days and not more than one year, exclusion for a period of not less than one year nor more than 15 years; or any combination of them.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.55. Assault with a deadly weapon.

(a) It shall be unlawful to assault another person with a deadly weapon.

(b) Unless a person's conduct is covered under some other provision of law providing greater punishment, assault with a deadly weapon 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 period of not less than one year nor more than ten years; or any combination of them.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.56. Assault on a female.

(a) It shall be unlawful for a male person at least 18 years of age to assault a female.

(b) Unless a person's conduct is covered under some other provision of law providing greater punishment, assault on a female 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 period of not less than one year nor more than ten years; or any combination of them.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.57. Assault on a child.

(a) It shall be unlawful to assault a child under the age of 12 years.

(b) Unless a person's conduct is covered under some other provision of law providing greater punishment, assault on a child 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 period of not less than one year nor more than ten years; or any combination of them.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.58. Assault on a school employee.

(a) It shall be unlawful to assault a school employee or school volunteer when the employee or volunteer is discharging or attempting to discharge his or her duties as an employee or volunteer, or to assault a school employee or school volunteer as a result of the discharge or attempt to discharge that individual's duties as a school employee or school volunteer. For purposes of this section, the following definitions shall apply:

(1) Duties means:

a. All activities on school property;

b. All activities, wherever occurring, during a school authorized event or the accompanying of students to or from that event; and

c. All activities relating to the operation of school transportation.

(2) Employee or volunteer means:

a. An employee of the Cherokee Central Schools, a local board of education; or a charter school authorized under N.C.G.S. 115C-238.29D, or a nonpublic school which has filed intent to operate under Part 1 or Part 2 of article 39 of chapter 115C of the North Carolina General Statutes;

b. An independent contractor or an employee of an independent contractor of the Cherokee Central Schools, a local board of education, charter school authorized under N.C.G.S. 115C-238.29D, or a nonpublic school which has filed intent to operate under Part 1 or Part 2 of article 39 of chapter 115C of the North Carolina General Statutes, if the independent contractor carries out duties customarily performed by employees of the school; and

c. An adult who volunteers his or her services or presence at any school activity and is under the supervision of an individual listed in subsection a. or b. of this subsection.

(b) Assault on a school employee 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 period of not less than one year nor more than 10 years; or any combination of them.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.59. Assaulting by pointing gun.

(a) It shall be unlawful to point any gun or pistol at any person, either in fun or otherwise, whether such gun or pistol be loaded or not loaded.

(b) Unless a person's conduct is covered under some other provision of law providing greater punishment, assault by pointing a gun 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 period of not less than one year nor more than ten years; or any combination of them.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.60. Habitual assault.

(a) A person commits the offense of habitual misdemeanor assault if that person violates any of the provisions of Code sections 14-40.50 through 14-40.59 and has been convicted of five or more prior convictions in Cherokee Court, at least two of which were assaults.

(b) Unless a person's conduct is covered under some other provision of law providing greater punishment, habitual assault shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment of not less than six months and not more than one year, exclusion for a period of not less than one year nor more than 10 years; or any combination of them

(Ord. No. 817, 9-23-2003)

Sec. 14-40.61. Assault on sports official.

(a) It shall be unlawful to assault a sports official when the sports official is discharging or attempting to discharge official duties at a sports event, or immediately after the sports event at which the sports official discharged official duties.

(b) A "sports official" is a person at a sports event who enforces the rules of the event, such as an umpire or referee, or a person who supervises the participants, such as a coach.

(c) A "sports event" includes any interscholastic or intramural athletic activity in a primary middle, junior high, or high school, college, or university, any organized athletic activity sponsored by a community, business, or nonprofit organization, any athletic activity that is a professional or semiprofessional event, and any other organized athletic activity within the territorial jurisdiction of the Eastern Band of Cherokee Indians.

(d) Unless a person's conduct is covered under some other provision of law providing greater punishment, assault on a sports' official shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.62. Simple assault; assault and battery; simple affray.

(a) It shall be unlawful to commit a simple assault or a simple assault and battery or to participate in a simple affray.

(b) Simple assault, simple assault and battery or simple affray shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.63. Criminal use of laser device.

(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) A violation of this section is an infraction.

(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. 817, 9-23-2003)

Sec. 14-40.64. Reckless endangerment.

(a) It shall be unlawful to recklessly endanger another by an act or omission to act which threatens to cause serious bodily injury to another, whether or not such harm actually occurs. If serious bodily injury does occur, it shall be known as "aggravated reckless endangerment."

(b) Aggravated reckless endangerment shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both. Reckless endangerment shall be punishable by a fine not to exceed $500.00, by a term of imprisonment not to exceed 30 days, or both.

(Ord. No. 817, 9-23-2003)

Sec. 14-40.65. Offensive touching.

(a) A person is guilty of the crime of offensive touching if he or she touches or strikes another person in an offensive manner without his or her consent.

(b) Offensive touching shall be punishable by a fine not to exceed $500.00 or by imprisonment of not more than 30 days or both.

(Ord. No. 817, 9-23-2003)

ARTICLE X. SEXUAL OFFENDER REGISTRATION PROGRAM

Sec. 14-50. Reserved.

Sec. 14-50.1. Purpose.

The Eastern Band of Cherokee Indians recognizes that sex offenders often pose a high risk of engaging in sex offenses even after being released from incarceration or commitment and that protection of the public from sex offenders is of paramount governmental interest. Further, the Eastern Band of Cherokee Indians recognizes that local law enforcement officers' efforts to protect our community, conduct investigations, and quickly apprehend offenders who commit sex offenses are impaired by the lack of information available to law enforcement agencies about convicted sex offenders who live within the Tribe's jurisdiction. Release of information about sex offenders will further the governmental interest of public safety so long as the information released is rationally related to the furtherance of those goals.

Therefore, it is the purpose of this article to assist local law enforcement agencies' efforts to protect their communities by requiring sex offenders to register with local law enforcement agencies and to require the exchange of relevant information about sex offenders among law enforcement agencies and to authorize the access to necessary and relevant information about sex offenders to others as provided in this article.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.2. Definitions.

The following definitions apply in this article:

(1) Division means the Division of Criminal Statistics of the Department of Justice.

(2) Penal institution means a detention facility operated under the jurisdiction of the Division of Prisons of the Department of Correction, or a county jail.

(3) Release means discharged or paroled.

(4) Reportable offense means conviction of, adjudicated or committed for a violation, solicitation, conspiracy or attempt to commit a violation of the following:

a. Cherokee Tribal Code: Section 14-20.1 (Taking indecent liberties with children); Section 14-20.2 (Aggravated sexual abuse); Section 14-20.3 (Sexual abuse); Section 14-20.4 (Sexual abuse of minor or ward); Section 14-30.5 (Child abuse in the first degree); Section 14-80.2 (Incest); Section 14-80.4 (Indecent exposure);

b. Any offense against a minor prohibited by North Carolina Statutes, all sexually violent offenses prohibited by North Carolina Statutes, including NCGS. 14-27.2 (first degree rape); NCGS 14-27.3 (Second degree rape); NCGS 14-27.4 (First degree sexual offense); NCGS 14-27.5 (Second degree sexual offense); NC GS 14-27.6 (Attempted rape or sexual offense); NCGS 14-27.7 (Intercourse and sexual offense with certain victims); NCGS 14-178 (Incest between near relatives); NCGS 14-190.6 (Employing or permitting minor to assist in offenses against public morality or decency); NCGS 14-190.16 (First degree sexual exploitation of a minor); NCGS 14-190.17 (second degree sexual exploitation of a minor); NCGS 14-190.17A (Third degree sexual exploitation of a minor); NCGS 14-190.18 (Promoting prostitution of a minor); NCGS 14-190.19 (Participating in prostitution of a minor); NCGS 14-202.1 (Taking indecent liberties with children);

c. 18 U.S.C. 2241 (Aggravated Sexual Abuse); 18 U.S.C. 2242 (Sexual Abuse); 18 U.S.C. 2243 (Sexual Abuse of a Minor or Ward); 18 U.S.C. 2244 (Abusive Sexual Contact); 18 U.S.C. 2251 (Sexual Exploitation of Children); 18 U.S.C. 2252 (Certain Activities Relating to Material Involving Sexual Exploitation of Minors); 18 U.S.C. 2252A (Certain Activities Relating to Material Constituting or Containing Child Pornography); 18 U.S.C. 2260 (Production of Sexually Explicit Depictions of a Minor for Importation into the United States).

d. A reportable offense shall also include all convictions or adjudications or commitments for the above offenses by any tribal, federal, or state jurisdiction, which if committed on the Cherokee Reservation or within the State of North Carolina, would have been a sex offense as defined by Chapter 14 of the Eastern Band of Cherokee Code or the North Carolina General Statutes or the United States Code as described above.

e. All delinquency findings or adjudications of minors for offenses listed in subsections (4)a.—d. above, in any jurisdiction shall also be a reportable offense.

f. Individuals who have been released from a mental health facility or from a prison's mental health facility for treatment for any mental disorder, mental illness, mental disease, defect, or has been found not guilty or not responsible by reason of mental disease or defect for any offenses enumerated in subsections (4)a.—d. of this section. In the event that such individual is deemed legally incompetent, it shall be the responsibility of the guardian to register the individual as required by this article.

g. Reportable offenses must have occurred any time after March 7, 1991.

(5) Reserved for future codification.

(6) Sexually violent person is defined as a person who has been convicted of a reportable offense as defined in this chapter, has been adjudicated delinquent for a reportable offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of mental disease, defect, or illness, and who is a danger to the community because he or she suffers from a mental disorder that make it substantially probable that the person will engage in acts of sexual violence.

(7) Vulnerable adult is defined as a person who is vulnerable to assault either because of the infirmities of aging or mental incompetence.

(8) Chief of police shall mean the top law enforcement officer with the Cherokee Police Department.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.3. Registration.

A person who is a resident and who has a reportable offense shall be required to maintain registration with the chief of police. If the person moves to the Cherokee Reservation from outside this jurisdiction the person shall register within ten days of establishing residence in the territory of the Eastern Band of Cherokee Indians or whenever the person has been present in the territory of the Eastern Band of Cherokee Indians for 15 days, whichever comes first. If the person is a current resident of territory of the Eastern Band of Cherokee Indians, the person shall register:

(1) Within ten days of release from a penal institution; or

(2) In the event an individual is convicted of a reportable offense but not sentenced to a term of incarceration in any penal institution, correctional facility, detention center, mental health facility or jail, but is required to serve a term of probation, supervised release, or conditional release, the individual shall immediately register with the Cherokee Police Department if he or she intends to reside in the Cherokee territory.

(3) In the event that an individual is released from a mental health facility or from a prison's mental health facility for treatment as enumerated in subsection 14-50.2(4)f., such individual must register with the Cherokee Police Department within 10 days of release from the facility.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.4. Duration of registration requirements.

(a) If a person has one reportable offense, he or she shall register for ten years following release from a prison, jail, correctional facility, detention center, mental health institution or release from parole or probation as enumerated in section 14-50.3.

(b) If a person has more than one reportable offense from any court of competent jurisdiction referred to in this article, he or she shall be required to register for the remainder of the individual's natural life.

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

Sec. 14-50.5. Information to be provided to the Cherokee Police Department.

(a) The Cherokee Police Department shall maintain a registry of all persons subject to this article. The registry shall contain the following information:

(1) The person's name, including any aliases used by the person;

(2) Information sufficient to identify the person, including date of birth, gender, race, height, weight, hair and eye color, markings (including scars, tattoos, and other distinguishing features;

(3) The offense for which the person was convicted, adjudicated or committed, the conviction, adjudication or commitment statute, the county and state of conviction, adjudication or commitment, Tribal court of conviction, adjudication or commitment, US District court of conviction, adjudication or commitment, the date of conviction adjudication or commitment, and the sentence imposed;

(4) The person's fingerprints;

(5) The person's driver's license, social security number and or any government issued identification number;

(6) The Federal Bureau of Investigation number, US Marshal number, state identification number, if any;

(7) Enrollment number, if any;

(8) Photograph.

(9) All of the following that are applicable:

a. The date the person was placed on probation, supervision, conditional release, or other type of supervision;

b. The date the person was or is to be released from confinement, whether on parole or otherwise, or discharged or terminated from a sentence or commitment.

c. The date the person entered the reservation.

d. The address at which the person will be residing.

e. The name of the supervising agency if applicable, the office telephone number, address, and the agent assigned for supervision.

f. A description of any motor vehicle that the person owns or that is registered in the person's name. The information provided under this paragraph shall include a description of the vehicle, including make, model, license number, and any other identifying information.

g. The name and the address of the place at which the person is or will be employed.

h. The name and location of any school in which the person is or will be enrolled.

i. The most recent date on which the information in the registry was updated.

(b) All registrants will be required to provide information whenever there is any change in residence, school, employment, use of vehicle, and/or change in name. This update must be received no later than five calendar days after the change has occurred.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.6. Frequency of registration.

(a) The covered individuals shall be subject to annual registration on the anniversary date of the initial registration.

(b) The covered individuals shall provide written notice of changes of the registration information to the Cherokee Police Department within five days of the change.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.7. Duties of the Cherokee Police Department.

(a) The Cherokee Police Department shall maintain the registry information in an orderly manner. Such duties may be delegated to a specific division of the department.

(b) The registry may be expunged by the Cherokee Police Department in the event that the convicted sex offender provides authenticated court documents that the conviction was overturned, reversed, set aside, or vacated.

(c) If a registered sex offender moves to another jurisdiction, the Cherokee Indian Police Department shall inform the local law enforcement of the new jurisdiction of the change of residency.

(d) The Police Department shall notify the individual of the need for the annual update at least 20 calendar days before the anniversary date.

(e) If a sex offender is excluded from the reservation pursuant to this article the Police Department shall:

(1) Escort the individual to the boundary of the reservation and remove him or her.

(2) Serve notice on other jurisdictions as in subsection (c) of this section.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.8. Registered sex offenders requirements.

Registered sex offenders shall:

(1) Avoid contact with children under 18 and vulnerable adults. Registered sex offenders shall refrain from living in any home or residence where a child under 18 years or a vulnerable adult lives. (Exceptions may apply when the registered sex offender is himself under 18). Registered sex offenders shall not be licensed nor permitted to work in the care of children or vulnerable adults.

(2) In the event a registered sex offender seeks employment which may involve some contact with children or vulnerable adults, (for example, in a fast food restaurant), or in the event a registered sex offender seeks to participate in a volunteer activity which may involve some contact with children under 18 or vulnerable adults, the sex offender must first notify the employer or director of the volunteer activity of his/her sex offender status prior to beginning such employment or volunteer activity.

(3) Sex offenders who attend schools with children under 18 or with vulnerable adults shall notify school administrators of his/her sex offender status. This must be done prior to enrollment, or, if the sex offender is already enrolled, notification must be done prior to attending any classes or school functions.

(4) Enter and complete a mental health program specifically related to sexual offender therapy and abide by all policies and procedures of the sex offender treatment program.

(5) Refrain from the use of illegal substances.

(6) Participate in Alcoholic Anonymous and Narcotics Anonymous, as recommended by mental health professionals.

(7) Provide written documentation of compliance with subsections (4) and (6) of this section to the Cherokee Indian Police Department every six months.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.9. Tribal prosecutor's enforcement power.

(a) The Tribal prosecutor shall be responsible for enforcing the penalty provisions of this chapter.

(b) The Chief may appoint a special prosecutor to enforce this provision of the Eastern Cherokee Code.

(c) A special prosecutor must be appointed if the Tribal prosecutor is a member of the immediate family of the party accused.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.10. Failure to register and/or comply with sex offender requirements.

(a) It shall be a crime for a sexual offender to fail to register with the Cherokee Police Department, to intentionally offer false information to the Cherokee Police Department or fail to comply with any other requirements of the Tribe's sexual offender registration program, including those requirements set out in section 14-50.8.

(b) The penalty for violation of this section shall be as follows:

(1) For the first offense the offender shall be fined $2,500.00, and imprisoned a minimum of 30 days, subject to a maximum term of imprisonment of up to six months.

(2) For the second and any subsequent offense the offender shall be fined $5,000.00 and imprisoned for a minimum term of six months in jail, subject to a maximum term of one year in jail, in addition to the provisions of section 14-50.11.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000; Ord. No. 587, 2-26-01)

Sec. 14-50.11. Exclusion for failure to register or comply with sex offender requirements.

(a) A sexual offender who is a Tribal member and who fails to register or maintain registry updates and changes, or fails to comply in any way with the requirements of this article, including the requirements of section 14-50.8, on two or more occasions shall be subject to exclusion from the Cherokee Indian Reservation, if at a hearing before the Tribal council, the Tribe's attorney proves by clear and convincing evidence that the individual is a sexually violent person, and any two of the following four provisions:

(1) It is substantially likely that the individual will re-offend.

(2) The individual shows no remorse.

(3) The individual fails to comply with provisions of the laws of the Eastern Band of Cherokee.

(4) The individual has not shown any progress in sex offender treatment groups or therapy.

(b) The hearing shall be public.

(c) The Tribe shall have the right to hire an independent psychologist or psychiatrist to prosecute this action.

(d) If the Tribal council is satisfied that the individual is a sexually violent person the individual shall be subject to all the terms of exclusion, as enumerated in the Cherokee Code.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.12. Rights of tribal members subject to petition for exclusion for failure to register or for failure to comply with sex offender requirements.

The individual shall have a right to:

(1) Be represented by counsel, at their own expense.

(2) Remain silent.

(3) Present and cross-examine witnesses.

(4) Have the hearing recorded.

(5) Public hearing.

(6) 45-days' written notice of the proceedings. Such notice shall be served personally. If the Tribal attorney is unable to serve notice on the individual within 20 days, the prosecutor may use publication notice in the Cherokee One Feather.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.13. Non-tribal members who fail to register or who fail to comply with sex offender requirements.

A non-tribal member who fails to register or maintain registry changes and updates, or fails to comply with any other requirements included in this article, including failure to comply with the requirements of section 14-50.8, shall be subject to a forfeiture not to exceed five thousand dollars, revocation of all licenses and privileges on the Eastern Cherokee Indian Reservation, and exclusion from the reservation pursuant to chapter 2 of this Code.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.14. Duration of exclusion.

(a) An individual excluded from the reservation pursuant to this provision shall have the opportunity to petition for restoration of status of Tribal member and/or residency after ten years.

(b) The petition for restoration of status of tribal member and/or residency shall contain information to a preponderance of the evidence that the individual is no longer sexually violent and presents no danger to the community. Hearing on a petition for restoration of status shall be at the Tribal council's discretion.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.15. Access to registration information.

(a) All information (except items listed in subsections 14-50.5(a)(4)—(7) and information relating to juvenile delinquency adjudications) obtained by the Cherokee Police Department pursuant to section 14-50.5 is public record. This information shall be available for public inspection and may be published in local newspapers and posted in public places from time to time. The Cherokee Police Department shall release any other relevant information that is necessary to protect the public concerning a specific person, but shall not release the identity of the victim of the offense that required registration under this article.

(b) Registry information which pertains to juveniles who have been adjudicated to be delinquent shall only be provided to appropriate school officials or, upon written request, to certain groups, entities, organization, or corporations that utilizes volunteers or employees in working with, caring for, supervising or protecting children or vulnerable adults.

(c) The Cherokee Police Department will share all registry information with law enforcement agencies from other jurisdictions.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.16. Prior inconsistent laws repealed.

Any existing laws which are inconsistent with this amendment are specifically repealed.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

Sec. 14-50.17. Severability.

If any section of this chapter is deemed unconstitutional, the remaining provisions shall have full force and effect.

(Ord. No. 117, 3-3-2000; Ord. No. 391, 10-27-2000)

ARTICLE XI. FRAUD, FORGERY, EMBEZZLEMENT, FALSE PRETENSES

Sec. 14-60. Reserved.

Sec. 14-60.1. Deceptive business practices.

(a) It shall be unlawful, in the course of business, to intentionally:

(1) Use or possess for use a false weight or measure, or any other device for falsely determining or recording any quality or quantity;

(2) Sell, offer, or expose for sale, or deliver less than the represented quality or quantity of any commodity or service;

(3) Take or attempt to take more than the represented quantity of any commodity or service when as buyer he furnishes the weight or measure;

(4) Sell, offer, or expose for sale adulterated or mislabeled commodities. For purposes of this section, the following terms shall be defined accordingly:

a. Adulterated means varying from the standard of composition or quality prescribed by law or commercial usage.

b. Mislabeled means varying from the standard of truth or disclosure in labeling prescribed by law or commercial usage.

(5) Make a substantial false or misleading statement in any advertisement addressed to the public or a substantial segment thereof for the purpose of promoting the purchase or sale of property or services;

(6) Make a false or misleading written statement for the purpose of obtaining property or credit; or

(7) Make a false or misleading written statement for the purpose of promoting the sales of securities, or omit information required by law to be disclosed in written documents relating to securities.

(b) Deceptive business practices shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding one year, or both.

(c) It is an affirmative defense to deceptive business practices that the defendant's conduct was not knowingly or recklessly deceptive.

(d) Upon a second or subsequent offense, exclusion for a period of not more than ten years may be imposed in addition to the punishment authorized above.

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

Sec. 14-60.2. Extortion.

(a) It shall be unlawful to take, receive, or control the use or disposition of property of another with the intent to deprive him of the possession or use thereof by threatening to:

(1) Cause bodily harm to any person;

(2) Commit any offense;

(3) Unlawfully injure or destroy any property;

(4) Expose any personal information or secret, tending to expose any person to hatred, contempt, or ridicule, or to impair his business or reputation, except by institution of legal proceedings to recover the debt demanded or proper reports to bona fide credit agencies; or

(5) Unlawfully take or withhold official action.

(b) Extortion 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 extorted 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. 14-60.3. Blackmail.

(a) It shall be unlawful for any person, with the intent to extort or gain from such person any chattel, money or valuable security, to knowingly send or deliver any letter or writing which:

(1) Contains threats or menaces; or

(2) Shall accuse, or threaten to accuse any other person of any crime punishable by law with death or by imprisonment in prison.

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

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

Sec. 14-60.4. Fraudulent use of a credit, debit or bank card.

(a) It shall be unlawful to use a credit, debit or bank card for the purpose of obtaining property or services with knowledge that:

(1) The card was stolen;

(2) The card has been revoked or canceled; or

(3) For any other reason his use of the credit, debit or bank card is unauthorized by either the issuer or the person to whom the card has been issued.

(b) Fraudulent use of a credit, debit or bank card shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding one year, or both. Restitution shall be required.

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

Secs. 14-60.6—14-60.9. Reserved.

Sec. 14-60.10. Forgery.

(a) It shall be unlawful to alter any writing of another without his authority, or to make, complete, execute, authenticate, issue, or transfer any writing so that it purports to be the act of another who did not authorize that act, with the intent to defraud or injure anyone. "Writing" includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege, or identification.

(b) Forgery shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding one year, by a sentence of exclusion for a period of not less than one year nor exceeding five years, or any combination of them. Upon a second or subsequent conviction for forgery, a sentence of exclusion for a period of not less than five years nor exceeding ten years may be imposed in addition to the punishment authorized above.

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

Sec. 14-60.11. Criminal simulation.

(a) It shall be unlawful to make, alter, or utter or attempt to circulate or sell as genuine any object so that it appears to have value because of antiquity, rarity, source, or authorship which it does not possess, with intent to defraud anyone.

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

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

Sec. 14-60.12. Fraudulent handling of recordable instruments.

(a) It shall be unlawful to destroy, remove or conceal any will, deed, mortgage, security instrument, any record of the Eastern Band of Cherokee Indians for which the law provides public recording, including documents of the Cherokee Tribal Council that require legislative action, or to knowingly record a false or forged instrument, with the intent to deceive or injure anyone, or to conceal wrong doing.

(b) Fraudulent handling of recordable instruments shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding one year, by sentence of exclusion for a period not less than one year nor exceeding five years, or any combination of them. Upon a second or subsequent conviction for fraudulent handling of recordable instruments, a sentence of exclusion for a period not less than five years nor exceeding ten years may be imposed in addition to the punishment authorized above.

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

Sec. 14-60.13. Tampering with records.

(a) It shall be unlawful to falsify, destroy, remove, or conceal any writing or record, with the intent to deceive or injure anyone or to conceal any wrong doing.

(b) Tampering with records shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a term not exceeding one year, or both a fine and imprisonment, or by a sentence of exclusion for a term not less than one year nor exceeding five years, or any combination of the above punishments. Upon a second or subsequent conviction for tampering with records, a sentence of exclusion for a period not less than five years nor exceeding ten years may be imposed in addition to the punishment authorized above.

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

Secs. 14-60.14—14-60.19. Reserved.

Sec. 14-60.20. Embezzlement.

(a) It shall be unlawful to wrongfully or fraudulently appropriate for a person's own use, or the use of another, property of another with which the person has been entrusted.

(b) Embezzlement 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 embezzled 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)

Secs. 14-60.21—14-60.29. Reserved.

Sec. 14-60.30. False pretenses.

(a) It shall be unlawful to obtain, take, or receive any property of another by means of a trick or deception, or false or fraudulent representation, statement, or pretense with the intent to deprive owner thereof.

(b) False pretenses shall be punishable by a fine not exceeding $5,000.00, or by imprisonment or a term not exceeding one year, or both.

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

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

Sec. 14-60.31. Securing execution of documents by deception.

(a) It shall be unlawful to intentionally, and by deception, cause another to execute any instrument affecting or likely to affect the pecuniary interest of any person.

(b) Securing execution of documents by deception shall be punishable by a fine of not exceeding $5,000.00, by imprisonment for a period not exceeding one year, or both.

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

Sec. 14-60.32. Worthless checks.

(a) It shall be unlawful for any person, firm, or corporation to draw, make, utter or issue and deliver to another, any check or draft on any bank or depository for the payment of money or its equivalent, knowing at the time of the making, drawing, uttering, issuing and delivering such check of draft, that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation.

(b) It shall be unlawful for any person, firm or corporation to solicit or to aid and abet any other person, firm or corporation to draw, make utter or issue and deliver to any person, firm or corporation any check or draft on any bank or depository for the payment of money or its equivalent, being informed, knowing or having reasonable grounds for believing at the time of the soliciting of the aiding and abetting that the maker or the drawer of the check or draft has not sufficient funds on deposit in, or credit with, such bank or depository with which to pay the same upon presentation.

(c) The word "credit " as used in this section shall be construed to mean an arrangement or understanding with the bank or depository for the payment of any such check or draft.

(d) Any person, firm or corporation subject to the criminal jurisdiction of the Cherokee Court violating any provision of this section shall be guilty of a criminal offense and upon conviction shall be punishable by a fine of up to $500.00 or imprisonment up to one year, or both, at the discretion of the court.

(e) For the purposes of this section, an issuer is presumed to know that the check or order would not be paid, if:

(1) The issuer had no account with the drawee at the time the check or order was issued; or

(2) Payment was refused by the drawee for lack of funds, upon presentation within 30 days after issue, and the issuer failed to make good within 10 days after notice of that refusal is sent to the issuer by certified mail to the address written or printed on the check or draft.

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

Sec. 14-60.33. Obtaining property in return for worthless check, draft or order.

(a) It shall be unlawful for any person, with intent to cheat and defraud another, to obtain money, credit, goods, wares or any other thing of value by means of a check, draft, or order of any kind upon any bank, person, firm or corporation, and where the person has not provided for the payment or acceptance of the same, and the same be not paid upon presentation.

(b) Obtaining property in return for a worthless check, draft, or order shall be punishable by a fine not to exceed $500.00 or imprisoned up to one year, or both, at the discretion of the court. The giving of the aforesaid worthless check, draft or order shall be prima facie evidence of an intent to cheat and defraud.

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

Sec. 14-60.34. Obtaining property or services from slot machines, etc., By false coins or tokens.

(a) It shall be unlawful for any person to operate, or cause to be operated, or who shall attempt to operate, or attempt to cause to be operated any automatic vending machine, slot machine, coin-box telephone or other receptacle designed for the sale, use or enjoyment of property or service, by means of a slug or any false, counterfeited, mutilated, sweated or foreign coin, or by any means, method, trick or device whatsoever not lawfully authorized by the owner, lessee or licensee, of such machine, coin-box telephone or receptacle.

(b) It shall be unlawful for any person to take, obtain or receive from or in connection with any automatic vending machine, slot machine, coin-box telephone or other receptacle designed for the use or enjoyment of property or service, any goods, monies, or services without depositing in and surrendering to such machine, coin- box telephone or receptacle lawful coin of the United States of America to the amount required therefor by the owner, lessee or licensee of such machine, coin-box telephone or receptacle.

(c) Obtaining property or services from slot machines, etc., by false coins or tokens shall be punishable by a fine not exceeding $5,000.00, or by imprisonment or a term not exceeding one year, or both.

(d) If the value of the property gained by the use of false coins or tokens 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. 14-60.35. Manufacture, sale, or gift of devices used for cheating slot machines.

(a) It shall be unlawful for any person, with intent to cheat or defraud the owner, lessee, licensee or other person entitled to the contents of any automatic vending machine, slot machine, coin-box telephone or other receptacle, to manufacture for sale, sell, or give away, any slug, device or substance whatsoever intended or calculated to be placed or deposited in any such automatic vending machine, slot machine, coin- box telephone or other such receptacle.

(b) Manufacture, sale, or gift of devices used for cheating slot machines shall be punishable by a fine not exceeding $5,000.00, or by imprisonment or a term not exceeding one year, or both.

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

Sec. 14-60.36. Defrauding innkeeper or campground owner.

(a) No person shall, with intent to defraud, obtain food, lodging, or other accommodations at a hotel, inn, boardinghouse, eating house, or campground.

(b) Obtaining such lodging, food, or other accommodation by false pretense, or by false or fictitious show of pretense of baggage or other property, or absconding without paying or offering to pay therefor, or surreptitiously removing or attempting to remove such baggage, shall be prima facie evidence of such fraudulent intent, but this section shall not apply where there has been an agreement in writing for delay in such payment.

(c) Defrauding innkeeper or campground owner shall be punishable by a fine not exceeding $5,000.00, or by imprisonment or a term not exceeding one year, or both.

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

Sec. 14-60.37. Defrauding creditors.

(a) It shall be unlawful to:

(1) Destroy, remove, conceal, encumber, transfer, or otherwise deal with property subject to a security interest with the intent to hinder enforcement of that interest;

(2) Deal with property with the intent to defeat or obstruct the operation of any law relating to the administration of property for the benefit of creditors;

(3) Knowingly falsify any writing or record relating to the property; or

(4) Knowingly misrepresent or refuse to disclose to a person entitled to administer property for the benefit of creditors, the existence, amount or location of the property, or any other information which the actor could be legally required to furnish in relation to such administration.

(b) Defrauding creditors shall be punishable by a fine of not exceeding $5,000.00, by imprisonment for a period not exceeding one year, or both.

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

Sec. 14-60.38. Making a false credit report.

(a) It shall be unlawful to knowingly make a materially false or misleading statement to obtain property or credit for oneself or another or to keep some other person from obtaining credit.

(b) Making a false credit report shall be punishable by a fine not exceeding $5,000.00, by imprisonment for a period not exceeding one year, or both.

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

Sec. 14-60.39. [Reserved].

ARTICLE XII. PERJURY AND OBSTRUCTING JUSTICE

Sec. 14-70. Reserved.

Sec. 14-70.1. Perjury in the first degree.

(a) It shall be unlawful for any person, in any official proceeding, to make a false statement under oath or equivalent affirmation, or swear or affirm the truth of a statement previously made, when the statement is material and he does not believe it to be true.

(b) Falsification is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It is no defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material in a given factual situation is a question of law to be decided by the Court.

(c) It is no defense to prosecution under this section that the oath or affirmation was administered or taken in an irregular manner or that the declarant was not competent to make the statement. A document purporting to be made on oath or affirmation at any time when the actor presents it as being verified shall be deemed to have been duly sworn or affirmed.

(d) No person shall be guilty of an offense under this section of he retracted the falsification in the course of the proceeding in which it was made before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding.

(e) No person shall be convicted of an offense under this section where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant.

(f) Perjury in the first degree shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

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

Sec. 14-70.2. Perjury in the second degree.

(a) It shall be unlawful for any person, with the purpose to mislead a public servant in performing his official function, to:

(1) Make any written false statement which he does not believe to be true;

(2) Purposely create a false impression in a written application for any benefit by omitting information necessary to prevent statements therein form being misleading;

(3) Submit or invite reliance on any writing which he knows to be forged, altered or otherwise lacking in authenticity; or

(4) Submit or invite reliance on any sample, specimen, map, boundary mark, or other object which he knows to be false.

(b) A person is guilty of perjury in the second degree if he makes a false statement which he does not believe to be true, on or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable.

(c) It is no defense to prosecution under this section that the oath or affirmation was administered or taken in an irregular manner or that the declarant was not competent to make the statement. A document purporting to be made on oath or affirmation at any time when the actor presents it as being so verified shall be deemed to have been duly sworn or affirmed.

(d) No person shall be guilty of an offense under this section if he retracted the falsification in the course of the proceeding in which it was made before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding.

(e) No person shall be convicted of an offense under this section where proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant.

(f) Perjury in the second degree shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

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

Sec. 14-70.3—14-70.9. Reserved.

Sec. 14-70.10. Tampering with witnesses.

(a) It shall be unlawful, while believing that an official proceeding or investigation is pending or is about to be instituted, to attempt to induce or otherwise cause a person to:

(1) Testify or inform falsely;

(2) Withhold any testimony, information, document, or thing, or evidence;

(3) Elude legal process summoning him to testify or supply evidence;

(4) Absent himself from any proceeding or investigation to which he has been legally summoned;

(5) To harm another by an unlawful act in retaliation for anything done by another in his capacity as a witness or informant; or

(6) To solicit, accept or agree to accept any benefit in consideration for doing any of the things specified in this section.

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

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

Sec. 14-70.11. Tampering with evidence.

(a) It shall be unlawful, while believing that an official proceeding or investigation is pending or is about to be instituted, to:

(1) Alter, destroy, conceal or remove any record, document, or thing with the intent to impair its verity or availability in such proceeding or investigation; or

(2) Make, present, or use any record, document, or thing knowing it to be false with a purpose to mislead a public servant who is or may be engaged in such proceeding or investigation.

(b) Tampering with evidence shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

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

Sec. 14-70.12. Tampering with public records.

(a) It shall be unlawful to:

(1) Knowingly make a false entry in, or false alteration of, any record, document or thing belonging to, received by or kept by the Eastern Band of Cherokee Indians or any government for information or record, or required by law to be kept by others for information of the Eastern Band of Cherokee Indians or government;

(2) Make, present or use any record, document, or thing knowing it to be false and with the purpose that it be taken as a genuine part of information or records referred to in subsection 1 above; or

(3) Purposely and unlawfully destroy, conceal, remove or otherwise impair the truth or availability of any such record, document or thing belonging to or received or kept by the Eastern Band of Cherokee Indians or any government.

(b) Tampering with public records shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

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

Sec. 14-70.13. Impersonation a public servant.

(a) It shall be unlawful to falsely pretend to hold a position in the public service with the purpose to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense to his prejudice.

(b) Impersonating a public servant 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. 14-70.14. Obstructing governmental functions.

(a) It shall be unlawful to:

(1) Use force, violence, intimidation, or engage in any other unlawful act with a purpose to interfere with a public servant performing or purporting to perform an official function; or

(2) Purposely obstruct, impair, or prevent the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

(3) Obstructing governmental functions 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. 14-70.15. False arrest.

(a) It shall be unlawful for any public officer or person pretending to be a public officer to, under the pretense or color of any process or other legal authority, arrest or detain a person against his will, except where such person reasonably believed he is authorized by law to do so.

(b) False arrest 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. 14-70.16. Refusing to aid an officer.

(a) It shall be unlawful to knowingly or recklessly refuse to aid a law enforcement officer or fire fighter in the performance of his official duties when called upon by the officer to do so.

(b) Refusing to aid an officer 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. 14-70.17. Obstructing justice.

(a) It shall be unlawful, with the purpose to hinder the apprehension, prosecution, conviction or punishment of another for the commission of an offense, to:

(1) Harbor or conceal the other;

(2) Provide or aid in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;

(3) Conceal or destroy evidence of the offense, or tamper with a witness, informant, document or other source of information, regardless of its admissibility in evidence;

(4) Warn the other of impending discovery or apprehension, except if such warning is given in an attempt to get the other person to comply with the law;

(5) Volunteer false information to a law enforcement officer for the purpose of preventing the apprehension of another; or

(6) Obstruct by force, threat, bribery or deception anyone from performing an act which might aid in the discovery, apprehension, prosecution or conviction of another person.

(b) Obstructing justice shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both, unless the recipient of any of the above aid has been sentenced to exclusion, in which case a conviction under this section may result in both parties being banished for a term up to the original sentence of exclusion, plus a fine up to $5,000.00.

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

Sec. 14-70.18. Providing contraband.

(a) It shall be unlawful to provide any person in official detention with alcoholic beverages, drugs, weapons, implements of escape, or any other thing or substance which the actor knows is improper or unlawful for the detainee to possess.

(b) Providing contraband 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. 14-70.19. Resisting lawful arrest.

(a) It shall be unlawful to create a substantial risk of bodily harm to anyone or employ means of resistance justifying or requiring force to overcome the resistance for the purpose of preventing a law enforcement officer from effecting an arrest or detention of any person.

(b) Resisting arrest 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. 14-70.20. Escape.

(a) It shall be unlawful to:

(1) Remove oneself from official detention or fail to return to official detention following temporary leave granted for a specific purpose or period;

(2) Knowingly procure, make, or possess anything which may facilitate escape while being held in official detention;

(3) Aid another person to escape official detention; or

(4) Knowingly provide a person in official detention with anything which may facilitate such a person's escape.

(b) "Official detention" means arrest, detention in any facility for custody of persons under charge or convicted of a crime, or any other detention for law enforcement purposes, but "official detention" does not include supervision of probation or parole, or constraint incident to release on bail.

(c) Escape 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. 14-70.21. Bail jumping.

(a) It shall be unlawful to fail without just cause to appear in person after having been released on bail or on one's own recognizance by court order or other lawful authority upon condition that he subsequently appear on a charge of an offense.

(b) Bail jumping 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. 14-70.22. Failure to obey a lawful order of the court.

(a) It shall be unlawful to purposely or knowingly fail to obey an order, subpoena, warrant or command duly made, issued, or given by any court of the Eastern Band of Cherokee Indians, or any officer thereof, or otherwise issued according to law, without just cause.

(b) This section shall apply to failure to appear as a party in a civil action, when such appearance has been ordered by the court.

(c) Failure to obey a lawful order of the court 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. 14-70.23. Unlawful obtaining of services by excluded person.

(a) It shall be unlawful for any person under sentence of exclusion during the term of such exclusion, to:

(1) Attempt to secure or to unlawfully secure any tribal benefit or service; or

(2) Apply for or attempt to claim any right, privilege or immunity by virtue of membership in the Eastern Band of Cherokee Indians except as provided by law.

(b) Unlawful obtaining of services by an excluded person shall be punishable by a fine of $5,000.00, and by imprisonment for a term not to exceed one year, and by exclusion for a term equal to the original term of exclusion which was violated.

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

Sec. 14-70.24. Aiding the unlawful obtaining of services by excluded person.

(a) It shall be unlawful for any person to aid or assist a person under the sentence of exclusion to:

(1) Attempt to secure or to unlawfully secure any tribal benefit or service; or

(2) Apply for or attempt to claim any right, privilege or immunity by virtue of membership in the Eastern Band of Cherokee Indians except as provided by law.

(b) Aiding the unlawful obtaining of services by an excluded person shall be punishable by a fine of $5,000.00, and by imprisonment for a term not to exceed one year, and by exclusion for a term equal to the exclusion term originally imposed upon the banished person for which aid or assistance was attempted or secured.

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

Secs. 14-70.25—14-70.29. Reserved.

Sec. 14-70.30. Bribery.

(a) It shall be unlawful to ask for, give or accept any money, goods, right in action, property, thing of value or advantage, present or prospective, or any promise or undertaking, given with a wrongful or corrupt intent to influence unlawfully the person to whom it is given.

(b) Bribery shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

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

Sec. 14-70.31. Improper influence in official matters.

(a) It shall be unlawful to:

(1) Threaten unlawful harm to any person with intent to influence another's decision, opinion, recommendation, vote or other exercise of discretion as a public servant, party official, or voter;

(2) Threaten harm to any public servant or relative of a public servant with the intent to influence the public servant's decision, opinion, recommendation, vote or other exercise of discretion in a judicial, legislative, or administrative proceeding;

(3) Threaten harm to any public servant or official or relative of either with the intent to influence him to violate his duty; or

(4) Privately address any public servant who has or will have an official discretion in a judicial or administrative proceeding and making thereby any representation, entreaty, argument, or other communication designed to influence the outcome on the basis of considerations other than those authorized by law.

(b) It is no defense to prosecution under this section that a person whom the actor sought to influence was not qualified to act in the desired way, whether because he had not yet assumed office or lacked jurisdiction, or for any other reason.

(c) Improper influence in official matters shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

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

Sec. 14-70.32. Improper gifts to public officials.

(a) It shall be unlawful to knowingly confer, offer or agree to confer benefit to a public servant with the intent to induce an exercise of their discretion in an unlawful manner, or to determine official impartiality.

(b) This section shall not apply to:

(1) Fees prescribed by law to be received by public servant, or any benefit for which the recipient gives lawful consideration or to which he is otherwise entitled;

(2) Gifts or other benefits conferred on account of kinship, traditional ceremonies, or other personal, professional or business relationship independent of the official status of the receiver; or

(3) Trivial benefits incidental to personal, professional or business contacts and involving no substantial risk of undermining official impartiality. A trivial benefit is one that does not exceed $25.00 in value.

(c) Improper gifts to public servants shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this Section, exclusion may be imposed for not less than ten years nor more than life.

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

Sec. 14-70.33—14-70.39. Reserved.

Sec. 14-70.40. Unofficial misconduct.

(a) It shall be unlawful to exercise or attempt to exercise any of the functions of a public office when one has not been elected or appointed to office.

(b) Unofficial misconduct shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less then ten years nor more than life.

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

Sec. 14-70.41. Oppression in office.

(a) It shall be unlawful when acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity, with knowledge that such conduct is illegal, to:

(1) Subject another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or infringement of personal or property rights; or

(2) Deny or impede another in the exercise or enjoyment of any rights, power, or immunity.

(b) Oppression in office shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

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

Sec. 14-70.42. Misusing tribal money or property.

(a) Definitions.

(1) Tribal money includes all money, bonds, and evidences of indebtedness or their equivalent, belonging to, received or held by the Eastern Band of Cherokee Indians or any other government, or any account or money held by the Eastern Band of Cherokee Indians or government for any individual group.

(2) Tribal property includes personal property, materials (including but not limited to documents and communications prepared or received by any Tribal program or entity, and materials obtained during employee training opportunities paid for by the Eastern Band of Cherokee Indians), equipment, tools, vehicles, real property, evidences of indebtedness or their equivalent, belonging to, received or held by the Eastern Band of Cherokee Indians or any other government, or any account or money held by the Eastern Band of Cherokee Indians or government for any individual or group.

(b) Misusing Tribal Monies. It shall be unlawful for a person in possession of or charged with the receipt, safekeeping, transfer or disbursement or Tribal monies to:

(1) Without lawful authority appropriate the Tribal money or any portion of it to his own use or use of another;

(2) Lend the Tribal money or any portion thereof without authority;

(3) Fail to keep the Tribal money in his possession until lawfully disbursed or paid out according to law or returned to the custody of the Tribe;

(4) Deposit the Tribal money in an unauthorized bank or with a person not lawfully authorized to receive such;

(5) Knowingly keep any false account, or make a false entry or erasure in any account of or relating to the Tribal money;

(6) Fraudulently alter, falsify, conceal, destroy, or obliterate any such account;

(7) Knowingly refuse or omit to pay over or return on lawful demand by competent authority any Tribal monies in his actual or constructive possession;

(8) Knowingly omit to transfer Tribal money when transfer is required by proper authority;

(9) Make a profit for himself or another when not lawfully entitled to such, or in an unlawful manner, out of Tribal monies;

(10) Fail to pay over to the proper account or authority any fines, forfeitures, or fees received by him;

(11) Otherwise handle Tribal money in a manner not authorized by law for his own benefit; or

(12) Handle Tribal money in a reckless manner as a result of which a risk of loss of such Tribal money is significant.

(c) Misusing Tribal property. It shall be unlawful for a person in possession of or charged with the safekeeping, transfer or use of Tribal property to:

(1) Without lawful authority appropriate the Tribal property or any portion of it to his own use of another;

(2) Lend, sell, lease, or give-away, or dispose of the Tribal property or any portion thereof without authority;

(3) Knowingly make a false entry or erasure in any Tribal property record or other record relating to the Tribal property;

(4) Fraudulently alter, falsify, conceal, destroy, or obliterate any such Tribal property record;

(5) Knowingly refuse or omit to return upon lawful demand by competent authority any Tribal property in his actual or constructive possession;

(6) Knowingly omit to transfer possession of the Tribal property when transfer is required by proper authority or upon termination, transfer, or resignation;

(7) Make a profit for himself or another when not lawfully entitled to such, or in an unlawful manner, from Tribal property;

(8) Otherwise handle Tribal property in a manner not authorized by law for his own benefit; or

(9) Handle Tribal property in a reckless manner as a result of which a risk of loss of such money or Tribal property is significant.

(d) Punishment for misuse of Tribal money or Tribal Property. Misusing Tribal money or misusing Tribal property are punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

(Ord. No. 117, 3-3-2000; Ord. No. 537, 11-18-2002)

Sec. 14-70.43. Compensation for past official behavior.

(a) It shall be unlawful to solicit, accept or agree to accept any financial benefit as compensation for having given, as a public servant, a decision, opinion, recommendation or vote favorable to another, or for having otherwise exercised a discretion in his favor, or for having violated his duty; or offer, confer or agree to confer compensation, acceptance of which is prohibited by this section.

(b) Compensation for past official behavior shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

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

Sec. 14-70.44. Official unlawful action.

(a) It shall be unlawful, being a public servant, and with the intent to materially benefit himself or another or to harm another, to:

(1) Knowingly commit an unauthorized act which purports to be an act of his office, or knowingly refrain from performing a non-discretionary duty imposed on him by law; or

(2) Knowing that official action is contemplated or in reliance on information which he has acquired by virtue of his office or from another public servant, which information has not been made public:

a. Acquire or divest himself of a valuable interest in any property, transaction or enterprise which may be affected by such action or information; or

b. Speculate or wager on the basis of such action or information, and knowingly aid another to do any of the foregoing.

(b) Official unlawful action shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

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

Sec. 14-70.45. Special influence.

(a) It shall be unlawful to solicit, receive, or agree to receive any financial benefit as consideration for exerting special unlawful influence upon a public servant, in order to influence that public servant to violate the law or to exercise his discretion in a particular fashion or procuring another to do so; or to offer, confer, or agree to confer any financial benefit receipt of which is prohibited by this section.

(b) Special influence shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, by exclusion for not less than five years nor more than ten years, or any combination of them. For a second or subsequent conviction under this section, exclusion may be imposed for not less than ten years nor more than life.

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

ARTICLE XIII. OFFENSES AGAINST PUBLIC MORALITY AND DECENCY

Sec. 14-80. Reserved.

Sec. 14-80.1. Prostitution.

(a) It shall be unlawful to:

(1) Be an inmate or resident of a house of prostitution or otherwise engage in sexual activity as a business or for hire;

(2) Loiter in or within view of a public place for the purpose of being hired to engage sexual activity;

(3) Engage in or offer or agree to engage in any sexual activity with another person for a fee;

(4) Pay or offer or agree to pay another person a fee for the purpose of engaging in an act of sexual activity;

(5) Enter or remain in a house of prostitution for the purpose of engaging in sexual activity;

(6) Own, control, manage, supervise, or otherwise keep, alone or in association with another, a house of prostitution or a prostitution business;

(7) Solicit a person to patronize a prostitute;

(8) Procure or attempt to procure a prostitute for another;

(9) Lease or otherwise permit a place controlled by the actor, alone or in association with others, to be used for prostitution or the promotion of prostitution;

(10) Procure an inmate for a house of prostitution;

(11) Encourage, induce, or otherwise purposely cause another to become or remain a prostitute.

(12) Transport a person with a purpose to promote that person's engaging in prostitution or procuring or paying for transportation with that purpose;

(13) Share in the proceeds of a prostitute pursuant to an understanding that one is to share therein, unless one is the child or legal dependent of a prostitute;

(14) Own, operate, manage, or control a house of prostitution; or

(15) Solicit, receive, or agree to receive any benefit for doing any of the acts prohibited by this section.

(b) Definitions:

(1) House of prostitution means a place where prostitution or promotion of prostitution is regularly carried on by one or more persons under the control, management, or supervision of another.

(2) Inmate means a person who engages in prostitution in or through the agency of a house of prostitution.

(3) Public place means any place to which the public or a substantial group thereof has access.

(4) Sexual activity means intercourse or any sexual act involving the genitals of one person and the mouth or anus of another person, regardless of the gender of either participant.

(c) On the issue of whether a place is a house of prostitution, the following shall be admissible in evidence: its general reputation; the reputation of the persons who reside in or frequent the place; the frequency, timing, and duration of visits by non-residents. Testimony of a person against his spouse shall be admissible to prove an offense under this Section.

(d) Prostitution shall be punishable by a fine not to exceed $500.00, by a term of imprisonment not to exceed six months, or both. Upon a second or subsequent conviction for prostitution, exclusion may also be imposed for a term not to exceed two years.

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

Sec. 14-80.2. Incest.

(a) It shall be unlawful for parties to engage in intercourse or any other sexual act if the familial relationship between the parties is one of:

(1) Grandparent and grandchild; or

(2) Parent and child or stepchild or legally adopted child; or

(3) Siblings of half or whole blood; or

(4) Uncle and niece, and nephew and aunt.

(b) Incest shall be punishable by a fine not to exceed $5,000.00, by a term of imprisonment not to exceed one year, or both. Upon a second or subsequent conviction for incest, exclusion may also be imposed for a term not to exceed two years.

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

Sec. 14-80.3. Bigamy.

(a) It shall be unlawful for any person, being married, to marry any other person during the life of the former husband or wife.

(b) Nothing contained in this section shall extend to any person marrying a second time, whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to have been living within that time; nor to any person who at the time of such second marriage shall have been lawfully divorced from the bond of the first marriage; nor to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction.

(c) Bigamy 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. 14-80.4. Indecent exposure.

(a) It shall be unlawful for any person to willfully expose the private parts of his or her person in any public place and in the presence of any other person or persons, of the opposite sex, or to aid or abet in any such act, or to procure another to perform such act; or for any person, who as owner, manager, lessee, director, promoter or agent, or in any other capacity knowingly to hire, lease or permit the land, building, or premises of which he is owner, lessee or tenant, or over which he has control, to be used for purposes of any such act.

(b) "Private parts" for purposes of this section shall include the male or female genitals, the male or female buttocks, and the areola and nipple area of the female breasts.

(c) Notwithstanding any other provision of law, a woman may breast feed in any public or private location where she is otherwise authorized to be, irrespective of whether the nipple of the mother's breast is uncovered during or incidental to the breast feeding.

(d) Indecent exposure shall be punishable by a fine not to exceed $500.00, by a term of imprisonment not to exceed six months, or both.

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

Sec. 14-80.5. Spreading venereal disease

(a) It shall be unlawful to infect another person with venereal disease, if one knows or has reason to believe she/he is infected with a venereal disease.

(b) The court shall, upon conviction, have the power to order the medical examination and treatment of the convicted offender and may also order an investigation to determine to what extent others have or may have been infected by the convicted offender.

(c) Spreading venereal disease 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. 14-80.6. Knowingly engaging in conduct reasonably likely to transfer HIV.

(a) It shall be unlawful for any person knowing that he or she has Acquired Immune Deficiency Syndrome (AIDS) or is a carrier or the human immunodeficiency virus (HIV) to engage in conduct reasonably likely to result in transfer of the person's own blood, bodily fluids containing visible blood, semen, or vaginal secretions into the bloodstream of another, or through the skin or other membranes of another person, except during in utero transmission of blood or bodily fluids; and

(1) The other person did not consent to the transfer of blood, bodily fluids containing blood, semen, or vaginal secretions; or

(2) The other person consented to the transfer but at the time of giving consent had not been informed by the person that the person transferring such blood or fluids had AIDS or was a carrier of HIV.

(b) The court shall, upon conviction, have the power to order the medical examination and treatment of the convicted offender and may also order an investigation to determine to what extent others have or may have been infected by the convicted offender.

(c) Knowingly engaging in conduct reasonably likely to transfer HIV shall be punishable by a fine of $5,000.00 and imprisonment for not more than one year.

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

Sec. 14-80.7. Obscene literature and exhibitions.

(a) It is unlawful for any person, corporation or business to intentionally disseminate obscenity. A person, corporation or business disseminates obscenity within the meaning of this section if they:

(1) Sell, deliver or provide or offer or agree to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene; or

(2) Present or direct an obscene performance, still or motion, picture, film, filmstrip, or projection slide or sound recording; or

(3) Publish, exhibit or otherwise makes available anything obscene.

(b) It is unlawful for any person, corporation or business to sell, deliver or provide or offer or agree to sell, deliver or provide any tool, toy, novelty or device designed for sexual use or gratification, or depicting human or animal genitalia. This subsection (b) shall not apply to a model or other object actually sold or delivered to a health care provider or health educator for educational purposes.

(c) For purposes of this section any material is obscene if:

(1) The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c); and

(2) The average person applying contemporary community standards relating to the depiction or description of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and

(3) The material lacks serious literary, artistic, political, or scientific value; and

(4) The material as used is not protected or privileged under the Indian Civil Rights Act.

(d) As used in this section, "sexual conduct" means:

(1) Vaginal, anal, or oral intercourse, whether actual or simulated; or

(2) Masturbation, excretory functions, or lewd exhibition of uncovered genitals; or

(3) An act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing costume.

(e) Obscenity shall be judge with reference to ordinary adults except that it shall be judged with reference to children or other especially susceptible audiences if it appears from the character of the material or circumstances of its dissemination to be especially designed for or directed to such children or audiences.

(f) It is unlawful for any person, corporation, or business to knowingly and intentionally created, buy, procure or possess obscene material with the purpose and intent of disseminating it unlawfully.

(g) Obscene material disseminated, procured, or promoted in violation of this section is contraband.

(h) Violation of this section is punishable as follows: a first offense shall be punishable by a fine not to exceed $500.00; a second offense within five years shall be punishable by a fine not to exceed $2000.00 or imprisonment for a period not to exceed six months, or both; a third offense and any subsequent offense within 5 years shall be punishable by a fine not to exceed $5,000.00 or imprisonment for a period not to exceed one year, or both.

(Ord. No. 49, 12-28-2003)

ARTICLE XIV. GANG ENFORCEMENT AND PREVENTION

Sec. 14-90. Reserved.

Sec. 14-90.1. Definitions.

(a) Criminal street gang means a formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols and have two or more members who, individually or collectively, engage in or have engaged in a pattern of criminal street gang activity.

(b) Criminal street gang member is a person who is a member of a criminal street gang as defined in subsection (a) and who meets two or more of the following criteria:

(1) Admits to criminal street gang membership.

(2) Is identified as a criminal street gang member by a parent or guardian.

(3) Is identified as a criminal street gang member by a documented reliable informant.

(4) Resides in or frequents a particular criminal street gang's area and adopts their style of dress, their use of hand signs, or their tattoos, and associates with known criminal street gang members.

(5) Is identified as a criminal street gang member by an informant of previously untested reliability and such identification is corroborated by independent information.

(6) Has been arrested more than once in the company of identified criminal street gang members for offenses which are consistent with usual criminal street gang activity.

(7) Is identified as a criminal street gang member by physical evidence such as photographs or other documentation.

(8) Has been stopped in the company of known criminal street gang members four or more times.

(c) Pattern of criminal street gang activity means the commission or attempted commission of, or solicitation or conspiracy to commit any combination of the following, on separate occasions within a three-year period:

(1) Two or more felonies defined under the laws of the state in which they occur or offenses defined under the Major Crimes Act, 18 U.S.C. § 1153; or

(2) Three or more misdemeanors defined under the laws of the state in which they occur or offenses defined in Cherokee Criminal Code; or

(3) A combination of one felony or Major Crimes Act offense and two misdemeanor or Cherokee Criminal Code offenses; or

(4) The comparable number of delinquent acts or violations of law which would be classified as above if committed by an adult.

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

Sec. 14-90.2. Criminal street gang activity; enhancement of penalties.

Upon a finding in the Cherokee Court of Indian Offenses or any successor court at sentencing that the defendant is a member of a criminal street gang, the penalty for any offense in violation of the Cherokee Code of Offenses, or any delinquent act or violation of law which would be a violation of the Cherokee Code of Offenses if committed by an adult, may be enhanced if the offender was a member of a criminal street gang at the time of the commission of such offense. The burden of proof required for such findings allowing sentence enhancement shall be a "preponderance of the evidence," however, the burden of proof for a conviction of the underlying criminal offense remains "beyond a reasonable doubt." The enhancement will be sentencing at the maximum punishment for adults of one year imprisonment and a fine of $5,000.00, to be used by Tribal Council to fund gang prevention or enforcement programs. In the case of juvenile offenders the disposition may include, but is not limited to:

(1) Probation for a period of six months to one year;

(2) Performance of community service hours;

(3) Restitution to victims/community members;

(4) Placement in behavior management facilities until completion/graduation from school or a court ordered program;

(5) Counseling; and,

(6) Placement in detention facilities for a period of time to be determined by the presiding judge.

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

Sec. 14-90.3. Soliciting, or recruiting criminal street gang membership.

It shall be unlawful for a person to intentionally cause, encourage, solicit, or recruit another person to join a criminal street gang that requires as a condition of membership or continued membership the commission of any crime. Adult persons subject to the provisions of this article shall be subject to punishment by imprisonment for up to one year and/or a fine of $5,000.00 to be used by Tribal Council to fund gang prevention or enforcement programs. In the case of juvenile offenders the disposition may include, but is not limited to:

(1) Probation for a period of six months to one year;

(2) Performance of community service hours;

(3) Restitution to victims/community members;

(4) Placement in behavior management facilities until completion/graduation from school or a court ordered program;

(5) Counseling; and,

(6) Placement in detention facilities for a period of time to be determined by the presiding judge.

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

Sec. 14-90.4. Profits, proceeds, and instrumentalities of criminal street gang activities or recruitment; forfeiture.

All profits, proceeds, and instrumentalities of criminal street gang activity or recruitment and all property used or intended or attempted to be used to facilitate the criminal activity or recruitment of any criminal street gang or of any criminal street gang member, are subject to seizure and forfeiture, with proceeds of said forfeiture to be used by Tribal Council to fund gang prevention or enforcement programs.

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

Secs. 14-91 — 14-96. Reserved.

ARTICLE XV. ENHANCED PENALTIES

(a) The fine described in this section shall be imposed in addition to any other penalties imposed under this chapter; within the limits provided by federal law.