12.01.040 Tribal Law, Customs and Practices

(a) Application of Customs and Practices. The customs and practices of the Saint Regis Mohawk Tribe shall be applied in all situations where it is relevant to resolve a land dispute.

(b) Order of Consideration. Written tribal laws will be considered first. If no written Tribal law applies to the circumstance raised in a dispute, the Tribe's customs and practices may be considered.

(c) Resolution of Ambiguity. Where any doubt arises as to past practices and customs, the Court, with the agreement of both parties, may request the advice of Tribal Members who may be familiar with the Tribe's customs and practices, or the Court may pose a certified question to the Tribal Council or the Tribal Clerk. If issues of doubt regarding past practices and customs are presented in Tribal Court, the matter must be resolved through normal tribal court procedure for witness and evidence collection.

(d) Acknowledgment. The Tribe acknowledges that Mohawk Nation Council of Chiefs uses its own process to record property ownership of its members, which may be recognized by the Tribe as evidence of property ownership for the Tribe's land recording purposes or to resolve land disputes brought to the Tribe.

(e) Guiding Legal Principles. In order to resolve land disputes according to tribal customs and practices, this chapter will set forth the general legal principles that have governed land use and occupancy on the reservation.

(1) Power to Issue Deeds is Reserved. The power to make land assignments and to issue Use and Occupancy Deeds is vested in the Saint Regis Mohawk Tribal Council as the sovereign government with jurisdiction and authority over the Reservation. The Tribal Council and the Tribal Clerk issue deeds in their official capacity based on deeds, contracts and other agreements or documents such as wills.

(2) Resolution of Disputes. The Tribal Council shall exercise its discretion and judgment in issuing deeds and it may do so upon request of a Tribal Member with the presentation of proper documentation. It is recognized that a request to the Council to issue a deed may change the ownership of land in a way that may negatively affect a Tribal Member. The issuance of a deed by the Tribal Council and the Tribal Clerk does not constitute the resolution of a land dispute. If a Tribal Member disagrees with the recordation or issuance of a deed, the remedy is to file a land dispute claim in Tribal Court.

(3) Forms of Evidence of Land Ownership. The following documentation may be considered valid evidence of land ownership for all or a portion of land identified in a Use and Occupancy Deed:

(A) Official and Original or Certified Copy of a Use and Occupancy Deed issued and signed by the Tribal Council and recorded in the Tribal Clerk's records.

(B) Valid Land Contract.

(D) Valid Bill of Sale.

(E) Valid receipt for the purchase of property if accompanied by other evidence to substantiate a sale of property.

(F) Prior Tribal Council finding.

(G) Prior Tribal Court finding.

(H) Decisions from other Courts.

(I) Sworn written testimony.

(J) Sworn oral testimony.

(K) Any other relevant evidence.

(4) Limitation on Who May Use and Occupy Land.

(A) Only Tribal Members shall be permitted to possess a Use and Occupancy Deed on the Reservation. A corporation, limited liability corporation, or trust either testamentary or inter vivos shall not be permitted to possess a Use and Occupancy Deed on the Reservation even if such entity is formulated under Tribal law; provided however that wholly-owned Tribal entities or those created by the Tribe that are formed for the benefit of the Tribe may use and possess land as needed.

(B) In any case where a Tribal Member wants to transfer land to a minor Tribal Member, the land shall be held in trust by a legal guardian until the minor Tribal Member reaches the age of majority, which is eighteen (18) years old. When the minor Tribal Member reaches the age of majority the legal guardian's trust obligation shall no longer have any force or effect. The legal guardian shall have a fiduciary responsibility to the minor Tribal Member until the minor reaches the age of majority.

(5) Limitation on the Right to Transfer. Reservation land may not be sold to, held by, pledged, assigned, or in any way relinquished to a non-member of the Saint Regis Mohawk Tribe.

(6) Assumptions Regarding Land Ownership.

(A) When two or more Tribal Members are listed as owners of property and are granted the interest simultaneously, the owners shall be deemed joint tenants with rights of survivorship, unless expressly declared to be tenants in common. As joint tenants, the owners will own equal undivided shares. Upon the death of one of the tenants, that share will be distributed equally to the remaining tenants (survivorship). A joint tenant may transfer his/her share, but that transfer will automatically change the ownership between the transferring joint tenant and the non- transferring joint tenants to tenants in common. The transfer does not change the relationship between the non-transferring joint tenants.

(B) If a deed declares the property will be held as tenants in common, each owner will own the property in equal shares unless different portions are expressly stated in the deed and each owner is entitled to possess the whole. A tenant in common may sell his/her share to anyone. If a tenant dies, there is no right of survivorship with the other tenants and that share will pass through inheritance as provided for in the Probate Ordinance.

(C) A deed held by a husband and wife creates a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common. A tenancy in the entirety means that upon the death of one spouse, the property automatically passes to the surviving spouse and probate is not necessary.

(D) These assumptions shall apply to all deeds existing on the date the amendments to this chapter are adopted unless the Tribal Member/s request the deeds be amended to reflect the intention of the owners that may be different than the assumptions enacted here.

(7) Use and Occupancy Deed. A Use and Occupancy Deed is an official Tribal document granting the holder the right to use and occupy land at the will of the Tribe, signed by the Tribal Council and certified by the Tribal Clerk.

(A) All land assignments and deeds made or issued by the Council are presumptively valid. The deed recorded first with the Tribal Clerk of the Saint Regis Mohawk Tribe will supersede all other deeds, unless it can be shown that the deed recorded first is subject to challenge under subparagraph (b).

(B) A deed issued and/or recorded by the Tribal Clerk may only be challenged if (i) there has been a substantial error committed by the Tribal Council or Clerk in issuing the deed; (ii) there is evidence of fraud in the documents used to substantiate the issuance of the deed; or (iii) evidence of fraud, deceit, coercion or duress in the signing of documents or in the transfer made in the deed. The party challenging the deed has the burden of proof to show with clear and convincing evidence that a deed was not properly issued or recorded.

(C) The Tribal Council has the right to correct or amend deeds in order to correct language or typographical errors and these corrections may not be reviewed. The Tribal Council also has the right to correct clerical errors, including errors that may have resulted in a deed being issued in violation of a previously recorded valid deed. Tribal Council, however, shall provide written notice to all affected parties of the error and of its intent to make a correction.

(D) Correction of clerical errors may be challenged and shall be reviewed under the arbitrary and capricious standard, and a party may seek declaratory or injunctive relief.

(E) If a land claim dispute is filed, all actions by all parties in relation to the property in dispute shall be stayed pending review.

(F) All recorded deeds must bear the signature of the Tribal Council along with the signature and seal of the Tribal Clerk.

(G) Use and Occupancy Deeds may be transferred between Tribal Members either through a land contract, a bill of sale, by simple purchase, or as a gift between family members. In order to ensure the Tribe's land records are current and accurate and reflect the current ownership, upon the effective date of this chapter, all transfers of Use and Occupancy Deeds shall be recorded with the Tribal Clerk. The failure to record a transfer which took place prior to the effective date of this chapter is not a basis to declare a transfer invalid.

(H) Use and Occupancy Deeds may not be transferred to a non-member or non-Indian in any manner, and the Tribe reserves the right to declare invalid such a transfer.

(8) Land Contracts. A land contract is an agreement between a buyer and seller for the purchase of a right to use and occupy a parcel of land where the buyer makes installment payments to the seller for the eventual conveyance of the Tribal Use and Occupancy Deed or right to occupy the property. The following shall be considered in assessing the validity of a Land Contract:

(A) The agreement may be informal, but must be written.

(B) The agreement shall provide that a buyer will receive a deed to the property when all of the conditions of the contract have been satisfied.

(C) Each contract will differ, but many land contracts provide that the buyer may occupy and make improvements to the land, even though the complete right to use and occupy is not transferred until the land contract is fulfilled. Once executed, a land contract may be filed with the Tribal Clerk's office to provide notice to the community at large. If there are multiple land contracts the Tribal Court must have a hearing to determine which land contract takes precedence.

(D) Upon the effective date of this chapter, to validate the final conveyance of the right to use and occupy property and to ensure the Tribe's Land Records are accurate and current,

once a land contract is fulfilled, and if it was not previously recorded it shall be recorded with the Tribal Clerk and a Use and Occupancy Deed shall then be issued. The failure to record a contract that was fulfilled prior to the effective date of this chapter shall not be a basis to declare the contract invalid.

(E) If the buyer defaults under the terms of the contract, the seller may seek to evict the buyer through a claim in Tribal Court, if necessary, and may keep the installment payments and any improvements thereon, unless the buyer can demonstrate to the Court's satisfaction that to return the land with the improvement along with keeping monies paid would result in the seller's unjust enrichment. The Tribal Court must have a hearing to determine if the buyer is entitled to any compensation. The Tribal Court must state its findings in a written order.

(9) Bill of Sale. A Bill of Sale is a record of a purchase transaction between individuals for the exchange of their right to use and occupy a particular parcel of land and may stand as a deed conveying the right to use and occupy the property under tribal law. The following shall be considered in assessing a Bill of Sale:

(A) As of the effective date of this chapter, the Bill of Sale must be signed, witnessed or notarized and then recorded with the Tribal Clerk in order to be a valid transfer of the right to use and occupy property.

(B) In the past, Bills of Sale were not always recorded with the Tribal Clerk. In the event the Bill of Sale was not recorded, the Bill of Sale will be considered a binding document evincing an intent to transfer the right to use and occupy a property in the same manner as a deed, unless there is evidence expressly contrary to that intent.

(C) In the instance that there are two Bills of Sale for one particular property, the Bill of Sale dated first will supersede any and all other Bills of Sale unless it can be shown to be invalid. A Bill of Sale may only be deemed invalid by the Tribal Court if there is evidence of fraud, deceit, coercion or duress in the transfer made in the Bill of Sale or in the signing of the document. The party challenging the Bill of Sale has the burden of proof to show with clear and convincing evidence that a document is invalid.

(10) Survey of Tribal Lands.

(A) For those transfers of property where a survey is required, the parties may either provide the survey themselves, subject to the approval of the Tribal Clerk, or the Tribal Clerk may provide assistance in obtaining a survey. The Tribal Clerk shall set a fee schedule for the cost of a survey, to be approved by the Tribal Council. For those Tribal Members who cannot afford a survey, they can submit a request to Tribal Clerk or his/her designee for a fee waiver, subject to availability of resources. The Tribal Clerk shall determine, based upon established guidelines, who shall be eligible for such a waiver.

(B) Property transferred on the Reservation must be properly described with boundaries that are clearly delineated, measurable and not in dispute. As of the effective date of this chapter, a survey by a licensed surveyor is required for all parcels of land transferred on the Reservation unless:

(i) there is an existing survey of the subject parcel that is less than ten (10) years old; or

(ii) the parties and any affected adjacent landowners enter into a boundary line agreement that provides an accurate description of the property being transferred, and the parties agree in writing that a survey is not necessary and they agree to be bound to the property description; or

(iii) the transfer is a family transfer and does not change the existing boundaries of the property, unless the Tribal Clerk deems it necessary. If the Tribal Clerk deems a survey necessary none shall be required if the affected adjacent landowners enter into a boundary line agreement.

(i) If a parcel is not surveyed prior to a transfer and a dispute arises as to boundaries described within the transferring document, the parties to the transaction or adjacent landowners agree to be bound by an impartial survey by a third party, unless the transferring document is so ambiguous that the surveyor cannot complete the survey. In that instance, the Tribal Court shall be empowered to decide how the boundaries shall be surveyed, based on evidence presented in a Tribal Court proceeding.

(ii) In resolving boundary disputes, the Tribal Court may not rely on GIS or other data to determine property boundaries. The parties shall provide the Court with surveys performed by licensed surveyors to support any claims regarding boundary lines provided that, in the case of ambiguity in a deed and relying on common law principles in drawing property boundaries, the Court may issue instructions to resolve an ambiguity so that a proper survey may be performed. If neither party presents a survey to the Court in a boundary dispute or in a case involving property lines, the Court may order a survey and assess the cost to the party or parties in its discretion.