2011 Legislative Ordinances
Date2011
MediumDocument
ClassificationsArchive
Object numberLG.LGO.2011
Description2011 Legislative Ordinances#11-02-J&PS-11-02-T12
Finding Aid11-02-J&PS-11-02-T12: Chapter 1 General Matters
11-01-NR-11-01-T40: Chapter 2 Flood Damage Prevention Ordinance of the Citizen Potawatomi Nation
TRANSCRIPTION:
Citizen Potawatomi Nation
Ordinance #11-02-J&PS-11-02-T12
CHAPTER 1
GENERAL MATTERS
SECTION 12-2-175. CITATION
This act establishes, and shall be known as, "The Citizen Potawatomi
Nation Criminal Sexual Crimes Registration Code".
SECTION 12-2-176. PURPOSE
A. The Citizen Potawatomi Nation finds it to be in the best
interest of all members and affiliates to clarify the
procedures and evidence used by the Citizen Potawatomi
Nation for sex offender prosecution, registration, and
notification.
B. Having elected to function as a registration jurisdiction on
May 29, 2007, by Tribal Resolution 07-145, the Citizen
Potawatomi Nation bears the responsibility of implementing
sex offender registration and notification decisions and for
assuring compliance with the federal Sex Offender
Registration and Notification Act of 2007 (SORNA) (Title I of
Public Law 109-248), the Citizen Potawatomi Nation
Constitution, and this Act.
C. The intent of this code is to implement the federal Sex
Offender Registration and Notification Act of 2007 (SORNA)
and shall be interpreted liberally to comply with the terms
and conditions of that Act as presently written or hereafter
amended.
SECTION 12-2-177. Constitutional Authority
The Tribal Legislature has the power to enact ordinances governing
future criminal law and criminal procedures in the Citizen Potawatomi
Nation pursuant to Article VII of the Constitution of the Citizen
Potawatomi Nation.
SECTION 12-2-178. Preamble
BE IT ENACTED by the Tribal Legislature of the Citizen Potawatomi
Nation assembled to establish a criminal sexual crimes registration code
in accordance with Article VII of the Constitution of the Citizen
Potawatomi Nation, establish such code to be called, "The Citizen
Potawatomi Nation Criminal Sexual Crimes Registration Code" ("Act").
In order to implement this code to its fullest, the Nation is hereby
authorized to work cooperatively with necessary state, federal, or tribal
agencies. However, in doing so, the Nation shall not waive any tribal
sovereign immunity.
SECTION 12-2-179. Establishment of Registries
A. This Act hereby authorizes the Citizen Potawatomi Nation
Police Department to serve as the Nation's Sex Offender
Registration Office, which shall maintain and operate a sex
offender registration pursuant to the provisions of this code.
B. This Act hereby establishes a Citizen Potawatomi Nation Sex
Offender Registration and Notification system, which shall
be maintained and operated pursuant to the provisions of
this code.
C. This Act hereby establishes a Citizen Potawatomi Nation Sex
Offender registry website, which shall be maintained and
operated pursuant to the provisions of this code.
D.
SECTION 12-2-180. Criminal and Civil Sanctions
A. Offenders who reside or enter within the territorial
jurisdiction of the Citizen Potawatomi Nation or otherwise
reside on property owned by the Citizen Potawatomi Nation
in fee or trust regardless of location, who are employed
within the exterior boundaries of the Citizen Potawatomi
Nation or on property owned in fee or trust regardless of
location, or who attend school within the exterior
boundaries of the Citizen Potawatomi Nation or on property
owned in fee or trust regardless of location, that have been
convicted of the offenses listed in this Act are subject to the
requirements of this code.
B. Any violation of a provision of this code by a sex offender
who is an Indian shall be considered a felonious crime and
subject to the penalty of one (1) year imprisonment and/or a
fine of five thousand dollars ($5,000.00) or both.
C. Any violation of a provision of this code by a sex offender
who is not an Indian shall be considered a civil violation
subject to enforcement by any means not prohibited by
federal law, including but not limited to the issuance of fines,
forfeitures, civil contempt, and banishment.
D.
CHAPTER 2
TERMINOLGY
SECTION 12-2-181. Definitions
Words and phrases as used herein and elsewhere in Title 12 shall be
defined as follows:
A. "Absconder" shall mean a convicted sex offender who goes
in a clandestine manner out of the jurisdiction of the Court,
or lies concealed, in order to avoid process of law.
B. "Advocate" shall mean a person who speaks or writes in
support or defense of a person, cause, etc.
C. "Bodily injury" shall mean, but is not limited to, bodily harm
(however slight), disfigurement, mental anguish, chronic
pain, pregnancy, disease, or loss or impairment of a sexual or
reproductive organ.
D. "Citizen Potawatomi Nation" shall mean the Government of
the Citizen Potawatomi Nation and its membership as
defined in Article III of the Constitution of the Citizen
Potawatomi Nation.
E. "Citizen Potawatomi Nation Sex Offender Registration
Office" shall mean the office designated by the Citizen
Potawatomi Nation to register sexual offenders and
maintain the sex offender registry, pursuant to the
Constitution and applicable laws of the Citizen Potawatomi
Nation.
F. "Consanguinity" shall mean a relationship by descent from a
common ancestor.
G. "Consent" shall mean to voluntarily give permission,
approval, or agreement.
H. "Convicted" shall mean a sex offender who has been subject
to penal consequences based on a conviction, however it
may be styled. This includes adults as well as juvenile
offenders.
I. "Court" shall mean the Citizen Potawatomi Nation District
Court and all proceedings under this Act shall refer to the
same.
J. "Developmental Disability" shall mean an impairment of
general intellectual functioning or adaptive behavior which
meets the following criteria:
1. It originated before the person became 18 year of age;
2. It has been continuous since its origination and can be
expected to continue indefinitely;
3. It constitutes a substantial burden to the impaired
person's ability to perform in society; and
4. It is attributable to mental retardation, cerebral palsy,
epilepsy, autism, or any other condition found to be
closely related to mental retardation because it
produces a similar impairment or requires treatment
and services to those required for a person who is
mentally retarded.
K. "Digitized Format" shall mean information kept digitally on
an electronic data base and does not mean hard copies or
physical objects.
L. "Dru Sjodin National Sex Offender Public Website (NSOPW)"
shall mean the public website maintained by the Attorney
General of the United States pursuant to 42 U.S.C. § 16920.
M. "Employee" shall mean any individual who is self-employed
or works for any entity whether compensated or not.
Volunteers of a tribal agency or organization are included
within the definition of employee for registration purposes.
N. "Force" or "Coercion" shall mean the exercise of physical
control or threatening influence over a victim sufficient to
negate voluntary consent, including but not limited to any of
the following circumstances:
1. When the perpetrator overcomes the victim through
the actual application of physical force or physical
violence;
2. When the perpetrator coerces the victim to submit by
threatening to use force or violence on the victim;
3. When the perpetrator coerces the victim to submit by
threatening to retaliate in the future (including threats
of physical punishment, kidnapping, or extortion)
against the victim or against any other person, and the
victim believes the perpetrator has the ability to
execute this threat; and
4. When the perpetrator, through concealment or by the
element of surprise, is able to overcome the victim.
O. "Foreign Conviction" shall mean one obtained outside of the
United States.
P. "Gender"-Throughout this code, the terms "he," "his,"
"him" and the like shall be deemed to include "she," "her,"
etc.
Q. "Immediate" or "Immediately" shall mean within four (4)
hours of first entry onto lands within the Nation's territorial
jurisdiction. Any participants of the Citizen Potawatomi
Festival, who are subject to mandatory registration in any
jurisdiction, must register with the Citizen Potawatomi
Nation Police Department prior to entering the Festival
grounds.
R. "Imprisonment" shall mean incarceration pursuant to a
conviction, regardless of the nature of the institution which
the offender serves the sentence. The term is to be
interpreted broadly rather than in a narrow sense, and
includes for example confinement in a state "prison" as well
as in a federal, military, foreign, BIA, private or contract
facility, local or tribal "jail" or mental health facility. Persons
under "house arrest" following conviction of a covered sex
offense are required to register pursuant to the provisions of
this code during their period of "house arrest".
S. "Indecent" shall mean morally or sexually offensive.
T. "Indian" shall mean a person of any age who is a member of
a federally recognized Indian tribe, as defined by 25 U.S.C.
450(b) et seq., and who resides or is found within, or is
subject to, the jurisdiction of the Citizen Potawatomi Nation.
U. "Intimate Parts" shall mean parts of the human body
primarily in, but not limited to, the genital area, groin, inner
thigh, buttocks, and breast.
V. "Jurisdiction" shall mean, unless otherwise specified, the 50
states, District of Columbia, the five principal U.S. Territories
- i.e. Commonwealth of Puerto Rico; Guam; American
Samoa; the Northern Mariana Islands; the United States
Virgin Islands - and Indian tribes that elect to function as
registration authorities under 42 U.S.C. § 16927.
W. "Lewd" shall mean, obscene, wicked, immoral, or lascivious.
X. "Mental Illness" shall mean a substantial disorder of thought
or mood, which significantly impairs judgment, behavior,
capacity to recognize reality, or ability to cope with ordinary
demands of life.
Y. "Minor" shall mean an individual who has not attained the
age of 18 years of age.
Z. "Perpetrator" shall mean a person accused of criminal
sexual conduct.
AA. "Physically Helpless Person" shall mean a person who is
unconscious, asleep, or who for any other reason is
physically unable to communicate unwillingness to an act.
BB. "Predisposition" shall mean to give an inclination or
tendency to commit an act beforehand.
CC. "Resides" shall mean, with respect to an individual, the
location of the individual's home or other place where the
individual habitually lives.
DD. "Sex Offender" shall mean a person convicted of a sex
offense under state, federal, military, territorial, local,
maritime, foreign, or tribal law.
EE. "Sex Offender Registry" shall mean the registry of sex
offenders and notification program maintained by the
Citizen Potawatomi Nation.
FF. "Sex Offense" shall mean, a criminal offense that has an
element involving a sexual act or sexual contact with
another. The term sex offense or sexual offense is not used
to refer to any and all crimes of a sexual nature, but rather to
those covered by definition of "sex offenses" appearing in
42 U.S.C. § 16911(5) and under this Act.
GG. "Sexual Act" shall mean (i) oral-genital or oral-anal contact,
(ii) any degree of genital or anal penetration, (iii) direct
genital touching of a child under the age of 16 years, and (iv)
touching of oneself in a manner to humiliate, embarrass, or
harass another person.
HH. "Sexual Contact" shall mean the intentional touching of the
victim's or perpetrator's intimate parts by the perpetrator or
by the victim through the action or initiation of the
perpetrator, including the intentional touching of the
clothing covering the immediate area of the victim's or the
perpetrator's intimate parts, if that intentional touching can
be reasonably construed as being for the purpose of sexual
arousal or gratification, or done for a sexual purpose, or in a
sexual manner, including such actions for revenge, to inflict
humiliation, or out of anger.
II. "Sexual Penetration" shall mean sexual intercourse,
cunnilingus, fellatio, anal intercourse, or any other intrusion,
however slight, of any part of a person's body or of any
object into the genital or anal openings of another person's
body, but emission of semen is not required.
JJ. "SMART Office" shall mean the Office of Sex Offender
Sentencing, Monitoring, Apprehending, Registering, and
Tracking, which was established within the United States
Department of Justice under the general authority of the
Attorney General of the United States pursuant to 42 U.S.C. §
16920.
KK. "SORNA" shall mean the federal Sex Offender Registration
and Notification Act of 2007.
LL. "Student" shall mean an individual who enrolls or attends an
educational institution, including (whether public or private)
a secondary school, trade or professional school, and
institutions of higher education.
MM. "Temporarily Incapacitated Person" shall mean a person
who is rendered temporarily incapable of appraising or
controlling his conduct due to the influence of a controlled
substance, alcohol, anesthetic, or other substance,
regardless of the voluntary or involuntary nature or method
of the consumption or use, or due to any other act
committed upon that person with or without his consent.
NN. "Victim" shall mean the person alleged to have been
subjected to the criminal sexual conduct.
OO. "Weapon" shall mean any object, although not inherently
dangerous, which is used in a way that is likely to cause
serious injury or death. Weapons include, without limitation,
firearms, whether or not loaded and whether or not capable
of being fired, knives, brass knuckles, clubs, iron bars,
baseball bats, and any other device capable of causing
serious injury.
SECTION 12-2-182. Consideration of Foreign Sex Offenses Under
This Act
A. Convictions which require registration under this Act include
convictions for sex offenses by any country, including, but
not limited to, any U.S. jurisdiction, Canada, the United
Kingdom, Australia, and New Zealand, including sex offenses
under federal, military, state, territorial, maritime, tribal, or
local law, where an independent judiciary generally enforces
the right to a fair trial in that country during the year in
which the conviction occurred. Sex offense convictions
under the laws of any foreign country shall require
registration on the same footing as domestic convictions.
B. The following are considered sex offenses that require
registration under this Act:
1. Sexual acts and sexual contact offenses that have an
element involving a sexual act or sexual contact with
another. The offenses covered include all sexual
offenses whose elements involve:
a. Oral-genital or oral-anal contact;
b. Any degree of genital, anal, or oral penetration;
c. Direct genital touching of a child under the age
of 16 years; and
d. Touching of oneself in a manner to humiliate,
embarrass, or harass another person.
2. Specified offenses against a minor that involves any of
the following:
a. An offense (unless committed by a parent or
guardian) involving kidnapping;
b. An offense (unless committed by a parent or
guardian) involving false imprisonment;
c. Solicitation to engage in sexual conduct;
d. Use in a sexual performance;
e. Any sexual touching of, or contact with, a
person's body, either directly or through the
clothing;
f. Solicitation to practice prostitution; use of other
persons in prostitution, including, but not
limited to the crimes of pandering, procuring, or
pimping;
g. Video voyeurism;
h. Possession, production, or distribution of child
pornography;
i. Criminal sexual crime involving a minor, or the
use of the internet to facilitate or attempt such
crimes; and
j. Any crimes that by its nature is a sex offense
against a minor.
3. Any offenses listed within the Citizen Potawatomi
Nation Code which are specifically set out as Sex
Offenses or have an element involving a Sexual Act or
Sexual Contact with another person.
SECTION 12-2-183. Offenses Considered Felony Offenses under
this Act
A. Attempts and conspiracies to commit offense that are
otherwise covered by the definition of "sex offenses."
B. A conviction for any of the following included within SORNA,
or offenses prosecuted under the Assimilative Act (18 U.S.C.
§ 1752 or § 1753), or any similar offense, and any other
offense listed hereafter in this code, shall be considered a
felony offense:
1. 18 U.S.C. § 1591 (sex trafficking of children),
2. 18 U.S.C. § 1801 (video voyeurism of a minor),
3. 18 U.S.C. § 2241 (aggravated sexual abuse),
4. 18 U.S.C. § 2242 (sexual abuse),
5. 18 U.S.C. § 2243 (sexual abuse of a minor or ward),
6. 18 U.S.C. § 2244 (abusive sexual contact),
7. 18 U.S.C. § 2245 (offenses resulting in death),
8. 18 U.S.C. § 2251 (sexual exploitation of children),
9. 18 U.S.C. § 2251A (selling or buying of children),
10. 18 U.S.C. § 2252 (material involving the sexual
exploitation of a minor),
11. 18 U.S.C. § 2252A (material containing child
pornography),
12. 18 U.S.C. § 2252B (misleading domain names on the
internet),
13. 18 U.S.C. § 2252C (misleading words or digital images
on the internet),
14. 18 U.S.C. § 2260 (production of sexually explicit
depictions of a minor for import in to the United
States),
15. 18 U.S.C. § 2421 (transportation of a minor for illegal
sexual activity),
16. 18 U.S.C. § 2422 (coercion and enticement of a minor
for illegal sexual activity),
17. 18 U.S.C. § 2423 (Mann Act),
18. 18 U.S.C. § 2424 (failure to file factual statement about
an alien individual),
19. 18 U.S.C. § 2425 (transmitting information about a
minor to further criminal sexual crimes).
CHAPTER III
TIERED OFFENSES
SECTION 12-2-184. "Tier I" Offenses
A. A Tier I offense includes any sex offense not included in Tier
II or Tier III for which a person has been convicted by any
jurisdiction, local government, tribal law, or a foreign
country that involves any sexual act or sexual contact with
another person, including, but not limited to any tribal
offense listed under this Act which expressly states that it is
a Tier I offense or is included in following list of tribal
offenses as they are defined by Title 12 of the Citizen
Potawatomi Nation Criminal Code:
1. Incest
2. Indecent Exposure
3. Sexual Assault
4. Deviate Sexual Intercourse
5. Coercion and Enticement
6. Offense Resulting in Death
7. Attempt
8. Criminal Conspiracy
9. Solicitation
10. Child Pornography; Possession or Receipt of Child
Pornography
11. Child Abuse
12. Duty to Report Child Abuse and Obscene or
Pornographic Material Depicting Minors
13. Child Endangerment by Permitting Child Abuse
14. Indecent Solicitation of Minors
15. Kidnapping
16. False Imprisonment of a Minor
17. Prostitution
18. Misleading Domain Name on the Internet
19. Misleading Words or Digital Images on the Internet
20. And any other offense not covered in this Act, but
addressed in the Citizen Potawatomi Nation Tribal
Statutes, that would require registration in a sex
offender database pursuant to federal guidelines.
SECTION 12-2-185. "Tier II" Offenses
It is the intent of the Citizen Potawatomi Nation to reclassify all crimes
which would be considered Tier I offenses under federal law as Tier III
offenses pursuant to the Tribal Code.
SECTION 12-2-186. "Tier III" Offenses
A. Any sex offense where the offender is punishable by more
than one (1) year in jail, is a Tier III offense. Tribal offenses
specifically specified under this section need not include a
punishment by more than one (1) year.
B. A Tier III offense includes any sex offense for which a person
has been convicted by a jurisdiction, local government, tribal
law, or a foreign country, that involves:
1. The use of minors in prostitution, including
solicitations,
2. Enticing a minor to engage in criminal activity,
3. Sexual contact with a minor, including offenses that
cover sexual touching of or contact with the intimate
parts of the body, either directly or through the
clothing,
4. The use of a minor in a sexual performance, or
5. The production for distribution of child pornography,
6. Non-parental kidnapping of a minor,
7. A sexual act with another by force or threat, or
8. A sexual act with another who has been rendered
unconscious or involuntarily drugged, or who is
otherwise incapable of appraising the nature of the
crimes or declining to participate.
C. Conviction of any of the following federal offenses, or similar
offenses, shall be considered Tier III Offenses:
1. 18 U.S.C. § 1801 (video voyeurism of a minor),
2. 18 U.S.C. § 2252 (material involving the sexual
exploitation of a minor),
3. 18 U.S.C. § 2252 A (possession or receipt of material
containing child pornography),
4. 18 U.S.C. § 2252 B (misleading domain name),
5. 18 U.S.C. § 2252 C (misleading words or digital images),
6. 18 U.S.C. § 2422 (a) (coercion to engage in
prostitution),
7. 18 U.S.C. § 2423 (b) (travel with the intent to engage in
illicit conduct),
8. 18 U.S.C. § 2423 (c) (engaging in illicit conduct in
foreign places),
9. 18 U.S.C. § 2424 (failure to file factual statement about
an alien individual),
10. 18 U.S.C. § 2425 (transmitting information about a
minor to further criminal sexual conduct).
11. 18 U.S.C. § 1591 (sex trafficking by force, fraud, or
coercion),
12. 18 U.S.C. §2241 (aggravated sexual abuse),
13. 18 U.S.C. §2242 (sexual abuse),
14. 18 U.S.C. §2243 (sexual abuse of a minor or ward),
15. 18 U.S.C. § 2244 (abusive sexual contact).
16. 18 U.S.C. § 2251 (sexual exploitation of children),
17. 18 U.S.C. §2251 A (selling or buying of children),
18. 18 U.S.C. §2252 (production, sale, or distribution of
material involving the sexual exploitation of a minor),
19. 18 U.S.C. §2252 A (production, sale, or distribution of
material containing child pornography),
20. 18 U.S.C. §2260 (production of sexually explicit
depictions of a minor for import into the United
States),
21. 18 U.S.C. §2421 (transportation for prostitution),
22. 18 U.S.C. §2422 (b) (coercing a minor to engage in
prostitution),
23. 18 U.S.C. §2423 (a) (transporting a minor to engage in
illicit conduct).
24. Any military offense specified by the Secretary of
Defense of the United States under section
175(a)(8)(C)(i) of PL 105-119 (codified at 10 U.S.C. §951).
D. A Tier III offense includes any tribal offense listed under this
Act which expressly states that is a Tier II or Tier III offense.
E.
CHAPTER V
COURT PRACTICES AND PROCEDURES
SECTION 12-2-189. Procedures
All criminal procedures regarding this Act shall follow and be bound by
Title 11, Criminal Court Procedures.
SECTION 12-2-190. Rights of the Accused
An accused sexual offender shall have the same rights as a
non-sexual criminal offender under Title 5 of the Citizen
Potawatomi Nation Code, including but not limited to the
following:
1. The right to jury trial upon request;
2. The right to counsel;
3. If the accused is indigent, the right to have counsel
appointed to him free of charge by the Nation.
B. An accused sexual offender shall have any other rights
conferred by tribal law.
SECTION 12-2-191. Inadmissible Evidence
A. Evidence generally inadmissible. The following evidence is
not admissible in any civil or criminal proceeding involving
alleged sexual misconduct except as provided:
1. Evidence offered to prove that any alleged victim
engaged in other sexual behavior; or
2. Evidence offered to prove any alleged victim's sexual
predisposition.
B. Exceptions. In a criminal case, the following evidence is
admissible:
1. Evidence of specific instances of sexual behavior by
the alleged victim offered to prove that a person other
than the accused was the source of the semen, injury,
or other physical evidence; or
2. Evidence of specific instances of sexual behavior by
the alleged victim with respect to the person other
than the accused was the source of the semen, injury,
or other physical evidence; or
3. Evidence, which the exclusion of, would violate the
constitutional rights of the defendant.
C. In a civil case, evidence offered to prove the sexual behavior
or sexual predisposition of any alleged victim is admissible
only if it is otherwise admissible under these rules and its
probative value substantially outweighs the danger of harm
to any victim and of unfair prejudice to any party. Evidence
of an alleged victim's reputation is admissible only if it has
been placed in controversy by the alleged victim.
D. Procedure to Determine Admissibility. A party intending to
offer evidence under subdivision (B) must:
1. File a written motion at least fourteen (14) days before
trial specifically describing the evidence and stating
the purpose for which it is offered unless the court, for
good cause, requires a different time for filling or
permits filing during trial; and
2. Serve the motion on all parties and notify the alleged
victim or, when appropriate, the alleged victim's
parent, guardian, or legal representative; and
3. Request the court to conduct a hearing out of the
presence of the jury, if any, and afford the victim and
parties a right to attend and be heard. The hearing
shall be closed except to motion and related papers,
and the record of the hearing must be sealed and
remain under seal unless the court orders otherwise.
SECTION 12-2-192. Testimony, Resistance and Suppression of
Victim Information
A. Testimony. In order to convict a person of any crime defined
in this Act it shall not be necessary that the testimony of the
alleged victim be corroborated.
B. Resistance. A victim need not resist the perpetrator in the
perpetrator's commission of an offense under any section or
subsection of this Act. Resistance by a victim is not an
element of any offense and the absence of a victim's
resistance is not a defense in a prosecution under this Act.
C. Suppression of Names and Details. Upon the request of the
victim or the perpetrator in a prosecution under this Act, or
by the court's own motion, the court shall order the names
of the victim and the perpetrator and the details of the
alleged offense to be confidential until such time as the
perpetrator is convicted by a jury, the charge dismissed, or
the case is otherwise concluded, whichever occurs first.
SECTION 12-2-193. Prior Bad Acts
A. In a criminal case in which the defendant is accused of an
offense of sexual assault, evidence of the defendant's
commission of another sexual offense or offenses or sexual
assault is admissible, and may be considered for its bearing
on any matter to which it is relevant.
B. In a case in which the prosecutor intends to offer evidence
under this rule, the prosecutor shall disclose this evidence to
the defendant, including statements of witnesses or a
summary of the substance of any testimony that is expected
to be offered, at lease fourteen (14) days before the
scheduled date of trial or at such later time as the court may
allow for good cause.
C. This rule shall not be construed to limit the admission or
consideration of evidence under any other rule.
SECTION 12-2-194. Court Orders
A. Court Orders of Judgment and Sentence shall contain all of
the following:
1. The exact language of the Tribal criminal code under
which the sex offender was convicted;
2. If possible, the analogous federal crime statute and
the maximum possible penalty for that crime under
federal law;
3. That a lengthier sentence of imprisonment for the
crime would have been imposed but for the
restrictions of the Indian Civil Rights Act of 1968
prohibiting a sentence of greater than one year of
incarceration;
4. The tier of the offense and the registration
requirements of that tier offense. If different than the
three tiered system under SORNA, the tier that the
conviction falls in under SORNA. Offender shall not be
excused from mandatory registration requirements in
the event that the court order fails to contain this
information;
5. Whether the defendant had a right to counsel;
6. Whether the defendant was represented by counsel;
7. If applicable, whether the defendant knowingly and
voluntarily waived his right to counsel;
8. Court order may also contain any additional
information that the court deems necessary and
appropriate.
SECTION 12-2-195. Victim-Advocate Privilege
A. For the purposes of this section, a victim advocate is a
person who is an employee or volunteer at a sexual assault
or sexual abuse shelter or is a service provider for victims of
sexual assault or sexual abuse and who has had at least ten
(10) hours of training or experience regarding sexual assault
and sexual abuse or sexual assault or sexual abuse victims.
B. The victim-advocate privilege is applicable in all sexual
assault cases and in domestic violence cases.
C. Except as otherwise provided in this section, a victim of
sexual assault may prevent an advocate from disclosing
confidential oral communications between the victim and
the advocate and written records and reports concerning
the victim unless the privilege is waived.
D. The privilege does not relieve a person from any duty
imposed in the mandatory reporting of sexual child abuse. A
person may not claim privilege when providing evidence in
proceedings concerning sexual child abuse.
E. The court may order the advocate to disclose information
only if the information's probative value substantially
outweighs the danger of harm to any victim and of unfair
prejudice to any party and only directly to the court in
chambers. The court may then decide if such information
shall be given to a jury.
SECTION 12-2-196. Mandatory Restitution
Notwithstanding any other civil or criminal penalty authorized by law,
the court shall order restitution for any offense under this Act.
A. Scope and Nature of Order:
1. Directions. The order of restitution under this section
shall direct the defendant to pay the victim (through
the appropriate court mechanism) the full amount of
the victim's losses as determined by the court
pursuant to paragraph (B).
2. Enforcement. An order of restitution under this
section shall be issued and enforced in accordance
with laws of the Citizen Potawatomi Nation.
B. Definitions. For purposes of this subsection, the term "full
amount of the victim's losses" includes any costs incurred by
the victim for:
1. Medical services relating to physical, psychiatric, or
psychological care;
2. Physical and occupational therapy or rehabilitation;
3. Necessary transportation, temporary housing, and
child care expenses;
4. Lost income;
5. Attorneys' fees, as well as other costs incurred; and
6. Any other losses suffered by the victim as a proximate
result of the offense.
C. Order mandatory. The issuance of a restitution order under
this section is mandatory. The court may not decline to issue
an order under this section because of the economic
circumstances of the defendant or the fact that a victim has
received, or is entitled to receive, compensation for his or
her injuries from the proceeds of insurance or any other
source.
SECTION 12-2-197. Criminal Forfeiture - Property Subject to
Criminal Forfeiture
A. A person who is convicted of an offense under this Act shall
forfeit to the Citizen Potawatomi Nation such person's
interest in:
1. Any visual depiction or child pornography described in
this Act, or any book, magazine, periodical, film,
videotape, or other matter which contains any such
visual depiction, which was produced, transported,
mailed, shipped, or received in violation of this Act;
2. Any property, real or personal, constituting or
traceable to gross profits or other proceeds obtained
from such offense; and
3. Any property, real or personal, used or intended to be
used to commit or to promote the commission of such
offense or any property traceable to such property.
B. The procedure for forfeiture shall follow tribal law. If not
tribal law has been enacted then the court shall follow
procedures directed by federal law for forfeitures.
SECTION 12-2-198. Juveniles
A. The term "convicted" or a variant thereof, used with respect
to sex offenses, includes an adjudicated delinquent as a
juvenile for that offense, but only if the offender is 14 years
of age or older at the time of the offense and the offense
adjudicated was comparable to or more severe than
aggravated sexual abuse or was an attempt or conspiracy to
commit such an offense.
B. Juvenile offenders not prosecuted as adults are not required
to register in the sex offender registry unless the offender is
14 years of age or older at the time of the offense and has
been adjudicated delinquent for an offense comparable to or
more severe than aggravated sexual assault as described in
this Act or an attempt or conspiracy to commit such an
offense.
C. Juveniles who are prosecuted and convicted as adults of a
sex offense covered by this Act shall be treated the same as
an adult sex offender.
D. The court may, at the request of the juvenile, seal the
juvenile's court record when the juvenile reaches the age of
majority, however, the court shall not remove or expunge
the status of the conviction under SORNA. The juvenile must
continue to comply with all the requirements of sex offender
registration.
SECTION 12-2-199. Sex offender Mental Health
A. Any person who has been clinically diagnosed with a mental
illness, mental retardation, or a developmental disability that
is convicted of any offense in this Act, shall be required to
undergo a psychiatric assessment to determine if
incarceration is an appropriate penalty.
B. A psychiatric assessment may be done by a psychiatrist or a
psychologist with a current license in good standing to
practice in that field.
C. If the psychiatrist or psychologist administering the
psychiatric assessment determines that incarceration is not
appropriate, then the convicted person may be involuntarily
civilly committed to an institution or other facility for
treatment. However, the offender must continue to comply
with all the requirements of the sex offender registration.
D. Such treatment shall last until the convicted person has been
released by the facility under the direction of a psychiatrist
or psychologist and that psychiatrist or psychologist believes
that the convicted person is no longer a risk to society.
E. Periodic review hearings may be requested by the court or
by the prosecutor to inquire as to the ongoing treatment of
the convicted person.
F. If the person is released from a treatment facility, he shall
immediately report to the Citizen Potawatomi Nation Sex
Offender Registration Office and register as a sex offender.
SECTION 12-2-200. Notice to the Offender
The Citizen Potawatomi Nation District Court shall notify and explain to
the offender the requirements of registration either before his release
form incarceration or immediately after sentencing. The Nation shall
require the offender to sign a form that indicates he has been notified
and explained such registration requirements and that he understands
the registration requirements. The form shall be filed in the offender's
criminal case.
CHAPTER VI
REGISTRATION
SECTION 12-2-201. Registry Requirements for Offenders
A. All persons convicted under this Act must register as a sex
offender. Registration is required for all offenses under this
Act unless specifically stated to the contrary.
B. Where to Register:
1. Sex offenders shall initially register with the Citizen
Potawatomi Nation Sex Office within three (3) days of
sentencing, if no jail time is ordered.
2. If the offender is incarcerated, he shall register at the
facility in which he is detained before his release.
3. All offenders must also register within three (3) days in
the jurisdiction in which he:
a. Was convicted,
b. Resides,
c. Is employed, and
d. Goes to school.
C. Current information. All sex offenders convicted under this
Act shall keep their information current in the registry at all
times. A sex offender is required to appear in person at the
Citizen Potawatomi Nation Sex Offender Office to update
any change in the offender's information within three (3)
days of such change. The information required to be
updated includes but is not limited to: (a) name, (b) address,
(c) employment or termination of employment, (d) school,
or termination of school (e) termination of residence.
D. Current information. All sex offenders convicted under this
Act shall keep their information current in the registry at all
times. A sex offender is required to inform the Citizen
Potawatomi Nation Sex Offender Office to update any
change in the offender's information within three (3) days of
such change. The information required to be updated
includes but is not limited to: (a) email address, (b) instant
message address, (c) any other designations used in internet
communications, postings, or telephone communications,
(d) vehicle information, or (e) temporary lodging
information in order to notify jurisdictions where the
offender will be temporarily staying.
E. Registration Period. The registration period begins to run
upon release from custody for an incarcerated offender, or
at sentencing for sex offenders not incarcerated.
F. Clean Record. A Tier I sex offender who has maintained a
clean record for at least ten (10) years may petition the court
to reduce the registration period. A clean record is satisfied
if:
1. The offender has not been convicted of any offense
for which imprisonment for more than one year may
be imposed;
2. The offender has not been convicted of any sex
offense;
3. The offender has successfully completed any periods
of supervised release, probation, and parole; and
4. The offender has successfully completed an
appropriate sex offender treatment program certified
by the jurisdiction which convicted the offender or by
the Attorney General (42 U.S.C. § 16915(b)(1)). Such
jurisdiction shall decide what program design is
sufficient and what "successful completion" is.
G. Clean Record. A Tier III sex offender who is required to
register because of a juvenile adjudication may have a
registration and notification requirement terminated if the
following conditions are met:
1. The offender is required to register based on a
delinquency adjudication for an offense which
required Tier III registration;
2. The offender has had twenty-five (25) years with a
"clean record";
a. The offender has not been convicted of any
offense for which imprisonment for more than
one year may be imposed;
b. The offender has not been convicted of any sex
offense;
c. The offender has successfully completed any
periods of supervised release, probation, and
parole; and
d. The offender has successfully completed an
appropriate sex offender treatment program
certified by the jurisdiction which convicted the
offender or by the Attorney General (42 U.S.C. §
16915(b)(1)). Such jurisdiction shall decide what
program design is sufficient and what
"successful completion" is.
H. A Tier I sex offender is required to personally appear to take
a photograph, and review and verify registration information
at least one (1) time per year with the citizen Potawatomi
Nation Sex Offender Office. The offender's date of review
shall be on or before the last date of registration.
This in-person appearance and requirements will occur at
least one (1) time per year for fifteen (15) years unless
otherwise established.
I. All Tier II offenses are classified by the Citizen Potawatomi
Nation as Tier III offenses for purposes of this Act and, as
such, all Tier II sex offenders are required to personally
appear to take a photograph, and review and verify
registration information every three (3) months with the
Citizen Potawatomi Nation Sex Offender Office.
This in-person appearance and requirements will occur at
least every three (3) months.
J. A Tier III sex offender is required to personally appear to
take a photograph, and review and verify registration
information every three (3) months with the Citizen
Potawatomi Nation Sex Offender Office.
This in-person appearance and requirements will occur every
three (3) months for life unless otherwise established.
K. Upon entering the Nation's jurisdiction for residency, work,
or school, a sex offender from another jurisdiction must
register with the Citizen Potawatomi Nation Sex Offender
Office within twenty-four (24) hours of entering.
L. Failure to register in any jurisdiction, or update current
information, shall carry a maximum penalty of incarceration
of not more than one (1) year, or a civil penalty of not more
than Five Thousand Dollars ($5,000.00) or both.
M. When a new jurisdiction is informed an offender intends to
reside, be employed, or attend school in their jurisdiction,
and that offender fails to appear for registration as required
in a new jurisdiction, the jurisdiction receiving notice must
inform the jurisdiction that provided notification (that the
offender was to commence employment, residence, and/or
school in the new jurisdiction) that the offender failed to
appear for registration.
SECTION 12-2-202. Registry Requirements of The Citizen
Potawatomi Nation
A. This Act applies to all sex offenders, including those
convicted of sexual offenses prior to its enactment. The
Nation is specifically required to register offenders if they are
in the tribal judicial system as prisoners, supervisees, or
registrants or if they re-enter the system due to another
conviction. The Nation shall develop a plan to notify such
offenders of the new requirement. The Nation shall register:
1. Sex offenders convicted by a tribal court who are
sentenced and released on probation or post-
imprisonment supervision prior to the jurisdiction's
passage of this Act and registration was not required
at that time.
2. Sex offenders who were not required to register
previously, or who have completed any registration or
probation requirements, and have been convicted of
any new offense.
3. Tier I offenders within three (3) months of becoming
subject to the Act.
4. Tier II offenders within three (3) months of becoming
subject to the Act.
5. Tier III offenders within three (3) months of becoming
subject to the Act.
B. If a sex offender fails to register, cannot be located, or may
have absconded in the Nation's jurisdiction, as required by
this Act, the Nation shall:
1. Put forth an effort to determine whether the sex
offender has absconded;
2. If no determination can be made, then a law
enforcement agency with the jurisdiction to
investigate must be notified;
3. If another jurisdiction or federal authorities gave
notice of the possibility of a sex offender absconding,
the jurisdiction proving such shall be notified.
C. If a sex offender fails to register, cannot be located, or has
absconded in the Nation's jurisdiction, as required by this
Act, the Nation shall:
1. Petition the court for a warrant to arrest and detain
the offender until a hearing can be set to determine
the penalty, if any, for the offender's non-compliance;
2. Revise the information in the tribal registry and the
Nation Sex Offender Registry to reflect that the sex
offender has failed to register and the offender's new
status as an absconder;
3. Notify the United States Marshal Service; and
4. Enter the sex offender into the National Crime
Information Center Wanted Person File.
SECTION 12-2-203. Maintenance and Management of Registry
A. The Citizen Potawatomi Nation shall maintain a jurisdiction-
wide sex offender registry conforming to the requirements
of the national Sex Offender Registration and Notification
Act of 2007
B. The Nation may manage and enforce the registration of all
tiers of offenders who are convicted, reside, go to school, or
work within this jurisdiction.
C. The Citizen Potawatomi Nation may implement and maintain
an electronic database of information and ensure that such
information can be immediately transmitted to others and
immediately accessed.
D. The Citizen Potawatomi Nation shall procure and maintain all
times computer software to enable the Nation to establish
and operate a uniform sex offender registry and Internet
web sites. Such software shall facilitate (a) the immediate
exchange of information among jurisdictions, (b) public
access over the Internet to appropriate information,
including the number of registered sex offenders in the
Nation's jurisdiction, (c) full compliance with the
requirements of the Sex Offender Registration and
Notification Act of 2007, (d) communication of information
to community notification program participant.
E. Sex Offender Website. The Nation's registered sex offender
information shall be made available on the Internet, and in a
manner that is readily accessible to all jurisdictions and to
the public. The website shall:
1. Allow for immediate exchange of information among
other jurisdictions;
2. Provide for public access to appropriate information
on sex offenders in the Nation's jurisdiction;
3. Be able to receive information from other participating
jurisdictions regarding offenders entering the tribal
jurisdiction;
4. Work in conjunction with the Dru Sjodin National Sex
Offender Public Website;
5. Allow for data links to sex offender safety and
education resources;
6. Have instructions on how to correct erroneous
information on a sex offender listed on the website;
7. Give notice and warning that information on the
website should not be used to unlawfully injure,
harass, or commit a crime against any individual
named in the registry, or residing, or working at any
reported address. The warning shall note that any
action could result in civil and criminal penalties;
8. Implement field search capabilities, including but not
limited to, name, telephone numbers, county, city, or
town, zip code, and geographical radius; and
9. Provide an automated notification system which
incorporates substantially the following features;
a. The information required to be included on sex
offender websites is posted on the Nation's sex
offender website within three (3) business days;
b. The Nation's sex offender website includes a
function under which members of the public and
organizations can request notification when sex
offenders commence residence, employment, or
school at attendance within zip codes or
geographic radius areas specified by the
requester, where the requester provides an e-
mail address to which the notice is to be sent;
and
c. Upon posting on the Nation's sex offender
website of new residence, employment, or
school attendance information for a sex
offender within an area specified by the
requester, they system automatically send an e-
mail notification to the requester which
identifies the sex offender sufficiently that the
requester can then access the Nation's website
and view the information about the sex offender
on the website.
F. In addition to the public website, the Nation shall notify,
within three (3) business days of an offender registering or
updating information, the following:
1. The U.S. Attorney General or national database;
2. All States, including the District of Columbia, the five
principal U.S. Territories, and any tribe operating as a
SORNA registration jurisdiction;
3. All law enforcement agencies, including, but not
limited to police departments, sheriff's offices,
prosecutor's offices, probation agencies, and any
other agencies with criminal investigation,
prosecution, or sex offender supervision functions,
schools, and the public housing agency in the area
where the offender resided;
4. Each jurisdiction where the offender is or will be
employed, attends school, and resides;
5. Agencies in the immediate area that conduct
employment background checks under section 3 of
the National Child Protection Act of 1993;
6. Social Service or volunteer entities in the area
responsible for protecting minors;
7. Any organization or individual that has requested
notification.
SECTION 12-2-204. Registry Information Required to be Reserved
by The Potawatomi Nation
A. The following information on each sex offender is required
to be kept by the Citizen Potawatomi Nation Sex Offender
Office, and shall be used on the public website unless
specifically excluded:
1. Name including a legal name, a nickname, a tribal or
traditional name, any aliases;
2. Date of Birth, and dates that the offender uses at a
birth date;
3. Detailed physical description. This includes a general
appearance of the offender including tattoos, scars, or
other identifying marks;
4. Current Photos. At least one photograph of the
offender shall be posted. If available, more than one
photographs should be used showing the front and
back of the offender, and the offender in other
presentations;
5. All internet identifiers or monikers for purposes of
routing or self-identification in the Internet
communications or postings and email and instant
messaging addresses;
6. Telephone numbers including cell, work, and
residential locations or any other designations used by
sex offender for purposes of routing or self-
identification in telephonic communication;
7. Residence address. Past and current street addresses
only, no post office boxes. If no street address is
available, then a reasonable description of where the
person' home is located shall be used;
8. Other residences or temporary lodging information.
This includes any place where the offender has stayed
or will stay for seven (7) accumulative days or more,
including the address and period of time the offender
stays there;
9. Employer name and address, which included self-
employment whether compensated or not. If the sex
offender has no fixed place of employment, list other
employment information concerning places where the
sex offender works such as a normal travel route or
the general area(s) in which the offender works;
10. Professional licenses;
11. School or educational information. Name and address
of any educational institution where the offender is
currently enrolled and physically present;
12. Vehicle information. License plate, registration
number or identifier, description of any vehicle owned
or regularly operated by the offender for personal or
work use, and permanent or frequent location where
all vehicles are kept. This includes watercraft, aircraft,
and any other land vehicles, such as ATV's;
13. Text of provision of law defining the criminal offense
for which the offender is registered. This can be
electronic text or a data link;
14. Fingerprints and palm prints. This can be digitized
form, or links to the central registry.
15. Driver's license or identification card (digitized
photocopy);
16. Tribal affiliation and CDIB card (digitized photocopy);
17. Passport and immigration documents. However, all
document numbers must be digitized;
18. Criminal History, including the date of all arrests, the
date of all convictions, any outstanding warrants, the
registration status, and the status of parole,
probation, or supervised release;
19. A DNA sample taken from the sex offender for analysis
and entry into the Combined DNA Index System
(CODIS); and
20. Social Security number.
B. Such information shall be promptly shared among
registration jurisdiction and disclosure of all of the
information, except that which is mandatorily excluded, to
the general public and specified entities.
SECTION 12-2-205. Mandatory Exclusions
The following information shall not be placed for public viewing on the
sex offender registry web site: a) the identity of any victims of a sex
offense, b) the offender's social security number, c) arrests that did not
result in conviction, d) travel and immigration document number, or e)
internet identifiers.
SECTION 12-2-206. Review Information
A. Each time an offender appears before the Citizen
Potawatomi Nation Sex Offender Office for review and
verification of his information, the attending officer shall
take a new photo of the offender and provide additional
forms to the offender to verify or correct the offender's
information.
B. The updated information must be immediately entered into
the register and transmitted by electronic means to all
participating jurisdictions.
SECTION 12-2-207. Citizen Potawatomi Nation as Residence,
Employer, and School Jurisdictions
A. If the Citizen Potawatomi Nation registers a sex offender
because he resides, works, or attends school within its
jurisdiction, the Nation shall immediately notify all
jurisdictions where the offender intends to reside, work, or
attend school and shall immediately notify other jurisdictions
where the offender is currently registered, or is required to
register.
B. If a sex offender is currently registered in the Citizen
Potawatomi Nation jurisdiction because he was convicted,
resides, works, or attends school therein, and the offender
gives notice that he intends to take up residence outside the
Citizen Potawatomi Nation Jurisdiction, the Nation must
immediately notify all jurisdictions where the offender is
currently registered or is required to register. The Nation
shall also notify the U.S. Marshals Service and update all of
the offender's registry information.
SECTION 12-2-208. Registration Not Required
The nation shall not require registration with the sex offender registry
based on a tribal court conviction if the defendant was denied the right
to the assistance of counsel and the defendant would have had a right to
the assistance of counsel under the United States Constitution in
comparable state court proceedings.
SECTION 12-2-209. Miscellaneous
A. Immunity for Good faith Conduct:
The Citizen Potawatomi Nation and their agencies, officers,
and employees, shall be immune from liability for good faith
conduct under this Act.
B. Employee of the Citizen Potawatomi Nation:
Any employee of the Citizen Potawatomi Nation who fails to
inform the Citizen Potawatomi Nation that he is a registered
sex offender, or who fails to register as a sex offender, or
who fails to keep sex offender registration current, may be
discharge from employment with the Citizen Potawatomi
Nation without further notice.
SECTION 12-2-144 through 12-2-147.
Sections 12-2-144 through 12-2-147 shall be renumbered as Sections 12-2-
148 through 12-2-151 to facility the placement of the following crimes in
the Tribal Criminal Code (as required by federal law).
SECTION 12-2-144. Incest
A. It shall be unlawful for any persons, who being within the
degree of consanguinity within which marriages are by the
Citizen Potawatomi Nation declared incestuous and void, to
the intermarry with each other, or commit adultery or
fornication with each other.
B. Tier I offense-Penalty. The penalty for incest shall be
incarceration for not more than one (1) year and a fine of not
more than Five Thousand Dollars ($5,000.00), or both, plus
costs.
SECTION 12-2-145 Misleading Domain Name on the Internet
A. It shall be unlawful for a person to knowingly use a
misleading domain name on the Internet with the intent to
deceive a minor or adult person into viewing material
constituting obscenity.
B. For the purposes of this section, a domain name that
includes a word or words to indicate the sexual content of
the site, such as "sex" or "porn", is not misleading.
C. For the purposes of this section, the term "material that is
harmful to minors" means any communication, consisting of
nudity, sex, or excretion, that, taken as a whole and with
reference to its context:
1. Is patently offensive to prevailing standards in the
adult community as a whole with respect to what is
suitable material for minors; and
2. Lacks serious literary, artistic, political, or scientific
value for minors.
D. Tier I offense-Penalty. Any person found to be in violation of
this section shall be punished by imprisonment of not more
than one (1) year or a fine of not more than Five Thousand
Dollars ($5,000.00), or both.
SECTION 12-2-146. Misleading Words or Digital Images on the
Internet
It shall be unlawful for any person to:
A. Knowingly embed words or digital images into the source
code of a website with the intent to deceive a person into
viewing material constituting obscenity.
B. Knowingly embed words or digital images into the source
code of a website with the intent to deceive a minor into
viewing material harmful to minors on the Internet.
C. Construction. For the purposes of this section, a word or
digital image that clearly indicates the sexual content of the
site, such as "sex" or "porn", is not misleading.
Tier I offense-Penalty. Any person found to be in violation of
this section shall be punished by imprisonment of not more
than one (1) year or a fine of not more than Five Thousand
Dollars ($5,000.00), or both.
NOW, THEREFORE BE IT ENACTED BY THE LEGISLATURE OF THE CITIZEN
POTAWATOMI NATION that the above Criminal Sexual Conduct
ordinance, of the Tribal Code of the Citizen Potawatomi Nation IS
HEREBY APPROVED.
EFFECTIVE DATE: This ordinance shall become effective upon adoption
by the Legislature of the Citizen Potawatomi Nation.
CERTIFICATION
In his capacity as Secretary-Treasurer of the Citizen Potawatomi
Nation, the undersigned hereby certifies that the above and foregoing
ordinance is a true and correct copy of Ordinance #11-02J&PS-11-02-T12, as
approved on the 28th day of June, 2010, with 15 voting for,
0 opposed, 1 absent and 0 abstaining.
D. Wayne Trousdale
Secretary-Treasurer
Executive Approval:
X Approved
Disapproved
John A. Barrett
Tribal Chairman
Citizen Potawatomi Nation
Ordinance #11-01-NR-11-01-T40
CHAPTER 2
FLOOD DAMAGE PREVENTION ORDINANCE
OF
THE CITIZEN POTAWATOMI NATION
SECTION 40-2-101. CITATION
This ordinance shall be known as the "Flood Damage Prevention Ordinance" and
shall apply to tribally-owned lands of the Citizen Potawatomi Nation subject to
periodic flooding.
STATUTORY AUTHORIZATION, FINDINGS OF FACT, PURPOSE AND METHODS
SECTION 40-2-102. STATUTORY AUTHORIZATION
The Citizen Potawatomi Nation, pursuant to legislative authority granted by Article 4
Section 3 of the Citizen Potawatomi Nation Constitution, does ordain as follows:
SECTION 40-2-103. FINDINGS OF FACT
(A) The flood hazard areas of Citizen Potawatomi Nation Tribal lands are subject
to periodic inundation which results in loss of property, health and safety hazards,
disruption of commerce and governmental services, and extraordinary public
expenditures for flood protection and relief, all of which adversely affect the public
health, safety and general welfare.
(B) These flood loses are created by the cumulative effect of obstructions in
floodplains which cause an increase in flood heights and velocities, and by the
occupancy of flood hazards areas by uses vulnerable to floods and hazardous to
other lands because they are inadequately elevated, floodproofed or otherwise
protected from flood damage.
SECTION 40-2-104. STATEMENT OF PURPOSE
It is the purpose of this ordinance to promote the public health, safety and general
welfare and to minimize public and private losses due to flood conditions in specific
areas by provisions designed to:
A. Protect human life and health;
B. Minimize expenditure of public money for costly flood control projects;
C. Minimize the need for rescue and relief efforts associated with flooding and
generally undertaken at the expense of the general public;
D. Minimize prolonged business interruptions;
E. Minimize damage to public facilities and utilities such as water and gas mains,
electric, telephone and sewer lines, streets and bridges located in floodplains;
F. Help maintain a stable tax base by providing for the sound use and
development of flood-prone areas in such a manner as to minimize future
flood blight areas; and
SECTION 40-2-105. METHODS OF REDUCING FLOOD LOSSES
In order to accomplish its purposes, this ordinance uses the following methods:
A. Restrict or prohibit uses that are dangerous to health, safety or property in
times of flood, or cause excessive increases in flood heights or velocities;
B. Require that uses vulnerable to floods, including facilities which serve such
uses, be protected against flood damage at the time of initial construction;
C. Control the alteration of natural floodplains, stream channels, and natural
protective barriers, which are involved in the accommodation of flood waters;
D. Control filling, grading, dredging and other development which may increase
flood damage;
E. Prevent or regulate the construction of flood barriers which will unnaturally
divert flood waters or which may increase flood hazards to other lands.
SECTION 40-2-106. DEFINITIONS
Unless specifically defined below, words or phrases used in this ordinance shall be
interpreted to give them the meaning they have in common usage and to give this
ordinance its most reasonable application.
ALLUVIAL FAN FLOODING - means flooding occurring on the surface of an alluvial
fan or similar landform which originates at the apex and is characterized by high-
velocity flows; active processes of erosion, sediment transport, and deposition; and
unpredictable flow paths.
APEX - means a point on an alluvial fan or similar landform below which the flow path
of the major stream that formed the fan becomes unpredictable and alluvial fan
flooding can occur.
AREA OF SHALLOW FLOODING - means a designated AO, AH, or VO zone on a
community's Flood Insurance Rate Map (FIRM) with a one percent chance or greater
annual chance of flooding to an average depth of one to three feet where a clearly
defined channel does not exist, where the path of flooding is unpredictable and
where velocity flow may be evident. Such flooding is characterized by ponding or
sheet flow.
AREA OF SPECIAL FLOOD HAZARD - is the land in the floodplain within a community
subject to a one percent or greater chance of flooding in any given year. The area
may be designated as Zone A on the Flood Hazard Boundary Map (FHBM). After
detailed ratemaking has been completed in preparation for publication of the FIRM,
Zone A usually is refined into Zones A, AE, AH, AO, A1-99, VO, V1-30, VE or V.
BASE FLOOD - means the flood having a one percent chance of being equaled or
exceeded in any given year.
BASEMENT - means any area of the building having its floor subgrade (below ground
level) on all sides.
CRITICAL FEATURE - means an integral and readily identifiable part of a flood
protection system, without which the flood protection provided by the entire system
would be compromised.
DEVELOPMENT - means any man-made change in improved and unimproved real
estate, including but not limited to buildings or other structures, mining, dredging,
filling, grading, paving, excavation or drilling operations or storage of equipment or
materials.
ELEVATED BUILDING - means a non-basement building: (i) built, in the case of a
building in Zones A1-30, AE, A, A99, AO, AH, B, C, X, and D, to have the top of the
elevated floor, or in the case of a building in Zones V1-30, VE, or V, to have the bottom
of the lowest horizontal structure member of the elevated floor elevated above the
ground level by means of pilings, columns (posts and piers), or shear walls parallel to
the floor of the water; and (ii) adequately anchored so as not to impair the structural
integrity of the building during a flood of up to the magnitude of the base flood. In
the case of Zones A1-30, AE, A, A99, AO, AH, B, C, X, and D, "elevated building" also
includes a building elevated by means of fill or solid foundation perimeter walls with
openings sufficient to facilitate the unimpeded movement of flood waters. In the
case of Zones V1-30, VE, or V, "elevated building" also includes a building otherwise
meeting the definition of "elevated building," even though the lower area is enclosed
by means of breakaway walls if the breakaway walls met the standards of Section
60.3(e)(5) of the National Flood Insurance Program regulations.
EXISTING CONSTRUCTION - means for the purposes of determining rates, structures
for which the "start of construction" commenced before the effective date of the
FIRM or before January 1, 1975, for FIRMs effective before that date. "Existing
construction" may also be referred to as "existing structures."
EXISTING MANUFACTURED HOME PARK OR SUBDIVISION - means a manufactured
home park or subdivision for which the construction of facilities for servicing the lots
on which the manufactured homes are to be affixed (including, at a minimum, the
installation of utilities, the construction of streets, and either final site grading or the
pouring of concrete pads) is completed before the effective date of the floodplain
management regulations adopted by a community.
EXPANSION TO AN EXISTING MANUFACTURED HOME PARK OR SUBDIVISION-
means the preparation of additional sites by the construction of facilities for servicing
the lots on which the manufactured homes are to be affixed (including the
installation of utilities, the construction of streets, and either final site grading or the
pouring of concrete pads).
FLOOD OR FLOODING - means a general and temporary condition of partial or
complete inundation of normally dry land areas from:
1. the overflow of inland or tidal waters.
2. the unusual and rapid accumulation or runoff of surface waters from any
source.
FLOOD INSURANCE RATE MAP (FIRM) - means an official map of a community, on
which the Federal Emergency Management Agency has delineated both the areas of
special flood hazards and the risk premium zones applicable to the community.
FLOOD INSURANCE STUDY - is the official report provided by the Federal Emergency
Management Agency. The report contains flood profiles, water surface elevation of
the base flood, as well as the Flood Boundary-Floodway Map.
FLOODPLAIN OR FLOOD-PRONE AREA - means any land area susceptible to being
inundated by water from any source (see definition of flooding).
FLOODPLAIN MANAGEMENT - means the operation of an overall program of
corrective and preventive measures for reducing flood damage, including but not
limited to emergency preparedness plans, flood control works and floodplain
management regulations.
FLOODPLAIN MANAGEMENT REGULATIONS - means zoning ordinances, subdivision
regulations, building codes, health regulations, special purpose ordinances (such as a
floodplain ordinance, grading ordinance and erosion control ordinance) and other
applications of police power. The term describes such state or local regulations, in
any combination thereof, which provide standards for the purpose of flood damage
prevention and reduction.
FLOOD PROTECTION SYSTEM - means those physical structural works for which
funds have been authorized, appropriated, and expended and which have been
constructed specifically to modify flooding in order to reduce the extent of the areas
within a community subject to a "special flood hazard" and the extent of the depths
of associated flooding. Such a system typically includes hurricane tidal barriers,
dams, reservoirs, levees or dikes. These specialized flood modifying works are those
constructed in conformance with sound engineering standards.
FLOOD PROOFING - means any combination of structural and non-structural
additions, changes, or adjustments to structures which reduce or eliminate flood
damage to real estate or improved real property, water and sanitary facilities,
structures and their contents.
FLOODWAY (REGULATORY FLOODWAY) - means the channel of a river or other
watercourse and the adjacent land areas that must be reserved in order to discharge
the base flood without cumulatively increasing the water surface elevation more
than a designated height.
FUNCTIONALLY DEPENDENT USE - means a use which cannot perform its intended
purpose unless it is located or carried out in close proximity to water. The term
includes only docking facilities, port facilities that are necessary for the loading and
unloading of cargo or passengers, and ship building and ship repair facilities, but does
not include long-term storage or related manufacturing facilities.
HIGHEST ADJACENT GRADE - means the highest natural elevation of the ground
surface prior to construction next to the proposed walls of a structure.
HISTORIC STRUCTURE - means any structure that is:
1. Listed individually in the National Register of Historic Places (a listing
maintained by the Department of Interior) or preliminarily determined by the
Secretary of the Interior as meeting the requirements for individual listing on
the National Register;
2. Certified or preliminarily determined by the Secretary of the Interior as
contributing to the historical significance of a registered historic district or a
district preliminarily determined by the Secretary to qualify as a registered
historic district;
3. Individually listed on a state inventory of historic places in states with historic
preservation programs which have been approved by the Secretary of
Interior; or
4. Individually listed on a local inventory or historic places in communities with
historic preservation programs that have been certified either:
a) by an approved state program as determined by the Secretary of
the Interior or;
b) directly by the Secretary of the Interior in states without approved
programs.
LEVEE - means a man-made structure, usually an earthen embankment, designed and
constructed in accordance with sound engineering practices to contain, control, or
divert the flow of water so as to provide protection from temporary flooding.
LEVEE SYSTEM - means a flood protection system which consists of a levee, or
levees, and associated structures, such as closure and drainage devices, which are
constructed and operated in accordance with sound engineering practices.
LOWEST FLOOR - means the lowest floor of the lowest enclosed area (including
basement). An unfinished or flood resistant enclosure, usable solely for parking of
vehicles, building access or storage in an area other than a basement area is not
considered a building's lowest floor; provided that such enclosure is not built so as to
render the structure in violation of the applicable non-elevation design requirement
of Section 60.3 of the National Flood insurance Program regulations.
MANUFACTURED HOME - means a structure transportable in one or more sections,
which is built on a permanent chassis and is designed for use with or without a
permanent foundation when connected to the required utilities. The term
"manufactured home" does not include a "recreational vehicle".
MANUFACTURED HOME PARK OR SUBDIVISION - means a parcel (or contiguous
parcels) of land divided into two or more manufactured home lots for rent or sale.
MEAN SEA LEVEL - means, for purposes of the National Flood Insurance Program, the
National Geodetic Vertical Datum (NGVD) of 1929 or other datum, to which base
flood elevations shown on a community's Flood Insurance Rate Map are referenced.
NEW CONSTRUCTION - means, for the purpose of determining insurance rates,
structures for which the "start of construction" commenced on or after the effective
date of an initial FIRM or after December 31, 1974, whichever is later, and includes any
subsequent improvements to such structures. For floodplain management purposes,
"new construction" means structures for which the "start of construction"
commenced on or after the effective date of a floodplain management regulation
adopted by a community and includes any subsequent improvements to such
structures.
NEW MANUFACTURED HOME PARK OR SUBDIVISION - means a manufactured home
park or subdivision for which the construction of facilities for servicing the lots on
which the manufactured homes are to be affixed (including at a minimum, the
installation of utilities, the construction of streets, and either final site grading or the
pouring of concrete pads) is completed on or after the effective date of floodplain
management regulations adopted by a community.
RECREATIONAL VEHICLE - means a vehicle which is:
1. built on a single chassis;
2. 400 square feet or less when measured at the largest horizontal projections;
3. designed to be self-propelled or permanently towable by a light duty truck;
and
4. designed primarily not for use as a permanent dwelling but as temporary
living quarters for recreational, camping, travel, or seasonal use
START OF CONSTRUCTION - (for other than new construction or substantial
improvements under the Coastal Barrier Resources Act (Pub. L. 97-348)), includes
substantial improvement and means the date the building permit was issued, provided
the actual start of construction, repair, reconstruction, rehabilitation, addition,
placement, or other improvement was within 180 days of the permit date. The actual
start means either the first placement of permanent construction of a structure on a site,
such as the pouring of slab or footings, the installation of piles, the construction of
columns, or any work beyond the stage of excavation; or the placement of a
manufactured home on a foundation. Permanent construction does not include land
preparation, such as clearing, grading and filling; nor does it include the installation of
streets and/or walkways; nor does it include excavation for basement, footings, piers or
foundations or the erection of temporary forms; nor does it include the installation on
the property of accessory buildings, such as garages or sheds not occupied as dwelling
units or not part of the main structure. For a substantial improvement, the actual start of
construction means the first alteration of any wall, ceiling, floor, or other structural part
of a building, whether or not that alteration affects the external dimensions of the
building.
STRUCTURE - means a walled and roofed building, including a gas or liquid storage
tank, which is principally above ground, as well as a manufactured home.
SUBSTANTIAL DAMAGE - means damage of any origin sustained by a structure
whereby the cost of restoring the structure to its before damaged condition would
equal or exceed 50 percent of the market value of the structure before the damage
occurred.
SUBSTANTIAL IMPROVEMENT - means any reconstruction, rehabilitation, addition, or
other improvement of a structure, the cost of which equals or exceeds 50 percent of
the market value of the structure before "start of construction" of the improvement.
This includes structures which have incurred "substantial damage", regardless of the
actual repair work performed. The term does not, however, include either:
1. Any project for improvement of a structure to correct existing violations of
state or local health, sanitary, or safety code specifications which have been
identified by the local code enforcement official and which are the minimum
necessary conditions or;
2. Any alteration of a "historic structure", provided that the alteration will not
preclude the structure's continued designation as a "historic structure."
VARIANCE - is a grant of relief to a person from the requirement of this ordinance
when specific enforcement would result in unnecessary hardship. A variance,
therefore, permits construction or development in a manner otherwise prohibited by
this ordinance. (For full requirements see Section 60.6 of the National Flood
Insurance Program regulations.)
VIOLATION - means the failure of a structure or other development to be fully
compliant with the community's floodplain management regulations. A structure or
other development without the elevation certificate, other certifications, or other
evidence of compliance required in Section 60.3(b)(5), (c)(4), (c)(10), (d)(3), (e)(2),
(e)(4), or (e)(5) of the National Flood Insurance Program regulations is presumed to
be in violation until such time as that documentation is provided.
WATER SURFACE ELEVATION - means the height, in relation to the National Geodetic
Vertical Datum (NGVD) of 1929 (or other datum, where specified), of floods of
various magnitudes and frequencies in the floodplains of coastal or riverine areas.
Section 40-2-107. GENERAL PROVISIONS
A. LANDS TO WHICH THIS ORDINANCE APPLIES
The ordinance shall apply to all tribally-owned lands of the Special Flood
Hazard Areas of the Citizen Potawatomi Nation.
B. BASIS FOR ESTABLISHING THE AREAS OF SPECIAL FLOOD HAZARD
The areas of special flood hazard identified by FEMA in a scientific and
engineering report entitled, "The Flood Insurance Study for Pottawatomie
County, Oklahoma and Incorporated Areas" dated September 3, 2010, with
the accompanying Flood Insurance Rate Map (FIRM) are hereby adopted on
September 3, 2010, by reference and declared to be a part of this ordinance.
However, until this date the current effective flood maps for the City of
Shawnee dated April 2, 1992, shall be used for this purpose until September 3,
2010.
C. ESTABLISHMENT OF DEVELOPMENT PERMIT
A Development Permit shall be required to ensure conformance with the
provisions of this ordinance.
D. COMPLIANCE
No structure or land shall hereafter be located, altered, or have its use
changed without full compliance with the terms of this ordinance and other
applicable regulations.
E. ABROGATION AND GREATER RESTRICTIONS
This ordinance is not intended to repeal, abrogate, or impair any existing
easements, covenants, or deed restrictions. However, where this ordinance
and another ordinance, easement, covenant, or deed restriction conflict or
overlap, whichever imposes the more stringent restrictions shall prevail.
F. INTERPRETATION
In the interpretation and application of this ordinance, all provisions shall be:
1. considered as minimum requirements;
2. liberally construed in favor of the governing body; and
3. deemed neither to limit nor repeal any other powers granted under State
statutes.
G. WARNING AND DISCLAIMER OR LIABILITY
The degree of flood protection required by this ordinance is considered
reasonable for regulatory purposes and is based on scientific and engineering
considerations. On rare occasions greater floods can and will occur and flood
heights may be increased by man-made or natural causes. This ordinance does
not imply that land outside the areas of special flood hazards or uses permitted
within such areas will be free from flooding or flood damages. This ordinance
shall not create liability on the part of the community or any official or employee
thereof for any flood damages that result from reliance on this ordinance or any
administrative decision lawfully made thereunder.
Section 40-2-108. ADMINISTRATION
A. DESIGNATION OF THE FLOODPLAIN ADMINISTRATOR
The Citizen Potawatomi Nation Floodplain Board shall appoint the Floodplain
Administrator to administer and implement the provisions of this ordinance
and other appropriate sections of 44 CFR (National Flood Insurance Program
Regulations) pertaining to floodplain management.
B. DUTIES & RESPONSIBILITIES OF THE FLOODPLAIN ADMINISTRATOR
Duties and responsibilities of the Floodplain Administrator shall include, but
shall not be limited to the following:
1. Maintain and hold open for public inspection all records pertaining to the
provisions of this ordinance;
2. Review permit applications to determine whether proposed construction
or other development, including the placement of manufactured homes,
will be reasonably safe from flooding;
3. Review, approve or deny all applications for development permits
required by adoption of this ordinance;
4. Review permits for proposed development to assure that all necessary
permits have been obtained from those Federal, State or local
governmental agencies (including Section 404 of the Federal Water
Pollution Control Act Amendments of 1972, 33 U.S.C. 1334) from which
prior approval is required;
5. Where interpretation is needed as to the exact location of the boundaries
of the areas of special flood hazards (for example, where there appears to
be a conflict between a mapped boundary and actual field conditions) the
Floodplain Administrator shall make the necessary interpretation;
6. When base flood elevation data has not been provided in accordance with
Article 3, Section B, the Floodplain Administrator shall obtain, review and
reasonably utilize any base flood elevation data and floodway data
available from a Federal, State or other source, in order to administer the
provisions of Article 5; and
7. When a regulatory floodway has not been designated, the Floodplain
Administrator must require that no new construction, substantial
improvements, or other development (including fill) shall be permitted
within Zones A1-30 and AE on the community's FIRM, unless it is
demonstrated that the cumulative effect of the proposed development,
when combined with all other existing and anticipated development, will
not increase the water surface elevation of the base flood more than one
foot at any point within the community.
C. PERMIT PROCEDURES
Application for a Development Permit shall be presented to the Floodplain
Administrator on forms furnished by him/her and may include, but not be
limited to, plans in duplicate drawn to scale showing the location, dimensions,
and elevation of proposed landscape alterations, existing and proposed
structures, including the placement of manufactured homes, and the location
of the foregoing in relation to areas of special flood hazard. Additionally, the
following information is required:
1. Elevation (in relation to mean sea level), of the lowest floor (including
basement) of all new and substantially improved structures;
2. Elevation in relation to mean sea level to which any nonresidential
structure shall be floodproofed;
3. A certificate from a registered professional engineer or architect that the
nonresidential floodproofed structure shall meet the floodproofing criteria
of Article 5, Section B(2);
4. Description of the extent to which any watercourse or natural drainage
will be altered or relocated as a result of proposed development; and
5. Maintain a record of all such information in accordance with Article 4,
Section (B)(1).
Approval or denial of a Development Permit by the Floodplain Administrator shall
be based on all of the provisions of this ordinance and the following relevant
factors:
1. The danger to life and property due to flooding or erosion damage;
2. The susceptibility of the proposed facility and its contents to flood damage
and the effect of such damage on the individual owner;
3. The danger that materials may be swept onto other lands to the injury of
others;
4. The compatibility of the proposed use with existing and anticipated
development;
5. The safety of access to the property in times of flood for ordinary and
emergency vehicles;
6. The costs of providing governmental services during and after flood
conditions including maintenance and repair of streets and bridges, and
public utilities and facilities such as sewer, gas, electrical and water
systems;
7. The expected heights, velocity, duration, rate of rise and sediment
transport of the flood waters and the effects of wave action, if applicable,
expected at the site;
8. The necessity to the facility of a waterfront location, where applicable;
9. The availability of alternative locations, not subject to flooding or erosion
damage, for the proposed use;
D. VARIANCE PROCEDURES
1. The Citizen Potawatomi Nation Floodplain Board shall hear and render
judgment on requests for variances from the requirements of this
ordinance.
2. The Citizen Potawatomi Nation Floodplain Board shall hear and render
judgment on an appeal only when it is alleged there is an error in any
requirement, decision, or determination made by the Floodplain
Administrator in the enforcement or administration of this ordinance.
3. Any person or persons aggrieved by the decision of the Citizen
Potawatomi Nation Floodplain Board may appeal such decision in the
Citizen Potawatomi Nation Tribal Court System.
4. The Floodplain Administrator shall maintain a record of all actions
involving an appeal and shall report variances to the Federal Emergency
Management Agency upon request.
5. Variances may be issued for the reconstruction, rehabilitation or
restoration of structures listed on the National Register of Historic Places
or the State Inventory of Historic Places, without regard to the procedures
set forth in the remainder of this ordinance.
6. Variances may be issued for new construction and substantial
improvements to be erected on a lot of one-half acre or less in size
contiguous to and surrounded by lots with existing structures constructed
below the base flood level, providing the relevant factors in Section C of
this Article have been fully considered. As the lot size increases beyond
the one-half acre, the technical justification required for issuing the
variance increases.
7. Upon consideration of the factors noted above and the intent of this
ordinance, the Appeal Board may attach such conditions to the granting of
variances as it deems necessary to further the purpose and objectives of
this ordinance (Article 1, Section C).
8. Variances shall not be issued within any designated floodway if any
increase in flood levels during the base flood discharge would result.
9. Variances may be issued for the repair or rehabilitation of historic
structures upon a determination that the proposed repair or rehabilitation
will not preclude the structure's continued designation as a historic
structure and the variance is the minimum necessary to preserve the
historic character and design of the structure.
10. Prerequisites for granting variances:
a) Variances shall only be issued upon a determination that the variance is
the minimum necessary, considering the flood hazard, to afford relief.
b) Variances shall only be issued upon:
1) showing a good and sufficient cause;
2) a determination that failure to grant the variance would result
in exceptional hardship to the applicant; and
3) a determination that the granting of a variance will not result in
increased flood heights, additional threats to public safety,
extraordinary public expense, create nuisances, cause fraud on
or victimization of the public, or conflict with existing local laws
or ordinances.
c) Any application to whom a variance is granted shall be given
written notice that the structure will be permitted to be built with
the lowest floor elevation below the base flood elevation, and that
the cost of flood insurance will be commensurate with the
increased risk resulting from the reduced lowest floor elevation.
11. Variances may be issued by a community for new construction and
substantial improvements and for other development necessary for
the conduct of a functionally dependent use provided that:
a) the criteria outlined in Article 4, Section D(1)-(9) are met, and
b)the structure or other development is protected by methods that
minimize flood damages during the base flood and create no
additional threats to public safety.
Section 40-2-109. PROVISIONS FOR FLOOD HAZARD REDUCTION
A. GENERAL STANDARDS
In all areas of special flood hazards the following provisions are required for all new
construction and substantial improvements:
1. All new construction or substantial improvements shall be designed (or
modified) and adequately anchored to prevent flotation, collapse, or lateral
movement of the structure resulting from hydrodynamic and hydrostatic
loads, including the effects of buoyancy;
2. All new construction or substantial improvements shall be constructed by
methods and practices that minimize flood damage;
3. All new construction or substantial improvements shall be constructed with
materials resistant to flood damage;
4. All new construction or substantial improvements shall be constructed with
electrical, heating, ventilation, plumbing, and air conditioning equipment and
other service facilities that are designed and/or located so as to prevent water
from entering or accumulating within the components during conditions of
flooding;
5. All new and replacement water supply systems shall be designed to minimize
or eliminate infiltration of flood waters into the system;
6. New and replacement sanitary sewage systems shall be designed to minimize
or eliminate infiltration of flood waters into the system and discharge from
the systems into flood waters; and
7. On-site waste disposal systems shall be located to avoid impairment to them
or contamination from them during flooding.
SECTION B. SPECIFIC STANDARDS
In all areas of special flood hazards where base flood elevation data has been
provided as set forth in Article 3, Section B the following provisions are required:
1. Residential Construction - new construction and substantial improvement of
any residential structure shall have the lowest floor (including basement),
elevated to or above the base flood elevation. A registered professional
engineer, architect, or land surveyor shall submit a certification to the
Floodplain Administrator that the standard of this subsection as proposed in
Article 4, Section C(1) is satisfied.
2. Nonresidential Construction - new construction and substantial
improvements of any commercial, industrial, or other nonresidential structure
shall either have the lowest floor (including basement) elevated to or above
the base flood level or together with attendant utility and sanitary facilities,
be designed so that below the base flood level the structure is watertight with
walls substantially impermeable to the passage of water and with structural
components having the capability of resisting hydrostatic and hydrodynamic
loads and effects of buoyancy. A registered professional engineer or architect
shall develop and/or review structural design, specifications, and plans for the
construction, and shall certify that the design and methods of construction
are in accordance with accepted standards of practice as outlined in this
subsection. A record of such certification which includes the specific elevation
(in relation to mean sea level) to which such structures are floodproofed shall
be maintained by the Floodplain Administrator.
3. Enclosures - new construction and substantial improvements, with fully
enclosed areas below the lowest floor that are usable solely for parking of
vehicles, building access or storage in an area other than a basement and
which are subject to flooding shall be designed to automatically equalize
hydrostatic flood forces on exterior walls by allowing for the entry and exit of
floodwaters. Designs for meeting this requirement must either be certified by
a registered professional engineer or architect or meet or exceed the
following minimum criteria:
a) A minimum of two openings having a total net area of not less than
one square inch for every square foot of enclosed area subject to
flooding shall be provided.
b) The bottom of all openings shall be no higher than one foot above
grade.
c) Openings may be equipped with screens, louvers, valves, or other
coverings or devices provided that they permit the automatic entry
and exit of floodwaters.
4. Manufactured Homes -
a) Require that all manufactured homes to be placed within Zone A on a
community's FHBM or FIRM shall be installed using methods and
practices which minimize flood damage. For the purposes of this
requirement, manufactured homes must be elevated and anchored to
resist flotation, collapse, or lateral movement. Methods of anchoring
may include, but are not limited to, use of over-the-top or frame ties to
ground anchors. This requirement is in addition to applicable State and
local anchoring requirements for resisting wind forces.
b) Require that manufactured homes that are placed or substantially
improved within Zones A1-30, AH, and AE on the community's FIRM on
sites: (1) outside of a manufactured home park or subdivision, (ii) in a new
manufactured home park or subdivision, (iii) in an expansion to an existing
manufactured home park or subdivision, or (iv) in an existing
manufactured home park or subdivision on which a manufactured home
has incurred "substantial damage" as a result of a flood, be elevated on a
permanent foundation such that the lowest floor of the manufactured
home is elevated to or above the base flood elevation and be securely
anchored to an adequately anchored foundation system to resist flotation,
collapse, and lateral movement.
c) Require that manufactured homes be placed or substantially improved on
sites in an existing manufactured home park or subdivision with Zones A1-
30, AH and AE on the community's FIRM that are not subject to the
provisions of paragraph (4) of this section be elevated so that either:
1) the lowest floor of the manufactured home is at or above the base
flood elevation, or
2) the manufactured home chassis is supported by reinforced piers or
other foundation elements of at least equivalent strength that are
no less than 36 inches in height above grade and be securely
anchored to an adequately anchored foundation system to resist
flotation, collapse, and lateral movement.
5. Recreational Vehicles - Require that recreational vehicles placed on sites
within Zones A1-30, AH, and AE on the community's FIRM either:
a) be on the site for fewer than 180 consecutive days,
b) be fully licensed and ready for highway use, or
c) meet the permit requirements of Article 4, Section C(1), and the elevation
and anchoring requirements of "manufactured homes" in paragraph (4)
of this section. A recreational vehicle is ready for highway use if it is on
its wheels or jacking system, is attached to the site only by quick
disconnect type utilities and security devices, and has no permanently
attached additions.
C. STANDARDS FOR SUBDIVISION PROPOSALS
1. All subdivision proposals including the placement of manufactured home
parks and subdivisions shall be consistent with Article 1, Sections B, C, and
D of this ordinance.
2. All proposals for the development of subdivisions including the placement
of manufactured home parks and subdivisions shall meet Development
Permit requirements of Article 3, Section C; Article 4, Section C; and the
provisions of Article 5 of this ordinance.
3. All subdivision proposals including the placement of manufactured home
parks and subdivisions shall have adequate drainage provided to reduce
exposure to flood hazards.
4. All subdivision proposals including the placement of manufactured home
parks and subdivisions shall have public utilities and facilities such as
sewer, gas, electrical and water systems located and constructed to
minimize or eliminate flood damage.
Section 40-2-110. PENALTIES FOR NON-COMPLIANCE
A. GENERAL REQUIREMENTS
In accordance with Section 59.2(b) of CFR 44, Chapter 1, of the
National Flood Insurance Program (NFIP) regulation, to qualify for the
sale of federally-subsidized flood insurance, a community must adopt
floodplain management regulation that meet or exceed the minimum
standards of Section 60. "These regulations must include effective
enforcement provisions."
In accordance with Section 60.1(b) of CFR 44, Chapter 1, of the NFIP
regulations, "These regulations must be legally-enforceable, applied
uniformly throughout the community to all privately and publicly
owned land within flood-prone (i.e. mudflow) or floodrelated erosion
areas, and the community must provide that the regulations take
precedence over less restrictive conflicting local laws, ordinances, or
B. ENFORCEMENT
No structure or land shall hereafter be constructed, located,
extended, converted, or altered without full compliance with the
terms of this ordinance and other applicable regulations. Violation of
the provisions of this ordinance by failure to comply with any of its
requirements (including violations of conditions and safeguards
established in connection with conditions) shall constitute a
misdemeanor. Any person who violates this ordinance or fails to
comply with any of its requirements shall upon conviction thereof be
fined not more than $10,000 or imprisoned for not more than 90 days,
or both, for each violation, and in addition shall pay all costs and
expenses involved in the case. Nothing herein contained shall prevent
the Citizen Potawatomi Nation from taking such other lawful action as
is necessary to prevent or remedy any violation.
It is hereby found and declared by the Citizen Potawatomi Nation that severe
flooding has occurred on tribally-owned lands and will certainly occur within the
future; that flooding is likely to result in infliction of serious personal injury or death,
and is likely to result in substantial injury or destruction of property within its
jurisdiction; in order to effectively comply with minimum standards for coverage
under the National Flood Insurance Program; and in order to effectively remedy the
situation described herein, it is necessary that this ordinance become effective
immediately.
Therefore, an emergency is hereby declared to exist, and this ordinance, being
necessary for the immediate preservation of the public peace, health and safety, shall
be in full force and effect from and after its passage and approval.
Therefore, Potawatomi Ordinance No. 11-01-NR-11-01-T40 entitled "Flood
Damage Prevention Ordinance of the Citizen Potawatomi Nation" supersedes all
other flood damage prevention ordinances of the Citizen Potawatomi Nation.
NOW, THEREFORE BE IT ENACTED BY THE LEGISLATURE OF THE CITIZEN
POTAWATOMI NATION that the above Flood Damage Prevention Ordinance, of the Tribal
Code of the Citizen Potawatomi Nation IS HEREBY APPROVED.
EFFECTIVE DATE: This ordinance shall become effective upon adoption by the
Legislature of the Citizen Potawatomi Nation.
CERTIFICATION
In his capacity as Secretary-Treasurer of the Citizen Potawatomi Nation, the
undersigned hereby certifies that the above and foregoing ordinance is a true and
correct copy of Ordinance #11-01-NR-11-01-T40, as approved on the 28th day of
June, 2010, with 15 voting for, 0 opposed, 1 absent
and 0 abstaining.
D. Wayne Trousdale
Secretary-Treasurer
X Approved
Disapproved
John A. Barrett
Tribal Chairman