Final Exclusion Order Issued in Banishment Case
By KRISTAN KORNS, Two Rivers Tribune
A final exclusion order was issued by Judge Christine Williams in the Arthur “Arty” Jones exclusion case on Friday, September 6, after nearly a year of legal wrangling.
“Defendant’s Motion to Dismiss is denied,” Judge Williams wrote in her order. “The Exclusion Order issued by the court on October 22, 2012, will be enforced starting immediately.”
Williams’ decision came after a long appeals process and over four years since the previous Hoopa Valley Tribal Chairman campaigned on a platform of excluding drug dealers from the valley.
Former Tribal Chairman Leonard Masten Jr. pushed for exclusion after Jones was arrested in September 2011.
Law enforcement authorities found five ounces of methamphetamine and a pound of marijuana in Jones’ home. He pleaded guilty in February 2012 to methamphetamine transport and sale, and was later sentenced to three years of felony probation.
The Tribal Council voted to recommend the Tribal Court exclude Jones from Hoopa in June 2012 using Title 5, a law passed in 1986 that allows the Tribe to banish people from the reservation.
Former Vice Chairman Byron Nelson Jr. said at the time, “We can confuse the issue and not do anything, or we can start cleaning up the valley. We either stand with the drug dealers, or not. That is what this is about.”
Jones’ attorney, Clifford “Lyle” Marshall, served as Chairman of the Hoopa Valley Tribe for six years, and was also one of more than 30 community members who wrote letters of support for Jones after his arrest.
Marshall appealed the Court’s original order and argued that the Tribal Court was trying to “impose a criminal penalty for a conviction of a crime by another court” and added “the express language in the ballot initiative that the membership voted on, specifically denies the Tribal Court jurisdiction to hear criminal cases.”
Marshall also argued that excluding Jones from accessing his own home located within the Reservation would amount to an unconstitutional taking of Jones’ property.
“We’ll be presenting the deed to the court. The property is in his name, it’s fee land, and it’s deeded,” Marshall said.
Rebecca McMahon, interim senior attorney for the Office of Tribal Attorney (OTA), explained, “If Jones owned any property at the time the order was issued, they would have to determine if the exclusion order was unconstitutional.”
“Under the fifth amendment, you can’t be deprived of property without due process or just compensation,” McMahon said.
The Hoopa Valley Tribal Appeals Court issued an order on July 30, 2012, that allowed Jones to temporarily cross reservation lands in order to travel directly to and from his home while the land ownership issue was investigated by the Tribal Court.
Judge Williams investigated the land ownership issue and reviewed the documents submitted to the court.
“At the time the Hoopa Valley Tribal Court issued the Order of Exclusion, October 22, 2012, Leilani N. Pole owned the property in question,” Williams wrote in the final order of exclusion. “Defendant acquired his interest in the property in question after the issuance of the exclusion order.”
The Court ruled that Jones wasn’t deprived of any property rights by the exclusion order because he didn’t own any property within the Reservation when the exclusion order was first issued.
Jones and his attorney filed another appeal just over two weeks later, citing the Brendale v. Confederated Tribes and Bands of the Yakima Nation case from 1989.
“A large percentage of the land… is owned in fee [or leased] by nonmembers… [and] has lost its character as an exclusive tribal resource, and has become, as a practical matter an integrated portion of the County,” the citation read.
Jones and his attorney argued that because most of the Hoopa Valley was deeded land that, “the power to exclude has ‘become outmoded’.”
McMahon, responding for the Hoopa Valley Tribe’s Office of Tribal Attorney (OTA), wrote that the appeal was simply turned in too late to be considered by the Court.
“Jones did not submit his appeal of the Order until September 20, 2013, which is too late to be considered,” McMahon wrote. “As such, this appeal must be dismissed.”