None Designated CHAPTER 47 REAL PROPERTY Section 47-1. CONTROL OF PROPERTY. The Tribal Council Shall direct the management and control of all property, either real or personal belonging to the Eastern Band of Cherokee Indians. SOURCE: Sec.23, Charter and Governing Document of the Eastern Band of Cherokee Indians (1986). Section 47-2 LAND DEVELOPMENT PLAN. (a) The Land Development Plan prepared by Tribal Planning Board dated January 8, 1976 shall be the official development plan for future development of the Cherokee Reservation. (b) The Plan may be altered or revised by the Tribal Planning Board after conducting hearings. Alterations or revisions t the Plan shall n not become official until they are approved by the Tribal Council. SOURCE: Res. 83, eff. Jan. 8, 1976. Section 47-3 RIGHTS RESERVED TO TRIBE WHEN POSSESSORY HOLDING ISSUED. The following rights shall be reserved by the Tribe when possessory holdings are issued to individual tribal members: (a) Legal title to land shall remain vested in the United States of America in Trust for the Eastern Band of Cherokee Indians. (b) The power and responsibility to control the leasing of, the transfer of, and the manner and method of inheritance and devise of the possessory holding. (c) All minerals are reserved to the Tribe together with the right to issue mineral leases and permits and to draw the income therefrom or allocate the income therefrom between the Tribe and the possessory holder. (d) The power and responsibility to control the cutting of timber on the possessory holding. (e) To grant or create easement and rights-of-way for roads, streets, alleys, water lines, sewer lines, electric and telephone lines, or any other public utility over the possessory holding. (f) The right to zone, from time to time, the land area within which the possessory holding may be situated and to control type and nature of the use thereof. SOURCE: Res. 373, eff. Oct. 14, 1960. Section 47-4. RIGHTS GRANTED TO MEMBER WHEN POSSESSORY HOLDING ISSUED. The following rights shall be granted by the Tribe to a tribal member when a possessory holding is issued: (a) Recognition by the Tribal Council that the possessory holding has been assigned to the holder, assuming the holder has complied with the terms and conditions under which the assignment was made. (b) The possessory holder may construct a building or other improvements on this possessory holding for residential, business, industrial, or other purposes subject to the approval of the Business Committee. (c) The possessory holder may collect for damages or destruction of any improvement as the result of the issuance of an easement or right-of-way over this holding for any purpose by the Tribe. (d) The possessory holder may collect for the disturbance of the surface of this holding or the interference of the use thereof as a result of the Tribe's issuance of a mineral leases or permit. (e) The possessory holder may transfer all or any part of this holding to another recognized member of the Band under such conditions as may be prescribed by the Tribal Council. (f) The possessory holder may grant leases or permits on this possessory holding to a member, or non-member of the Band for a definite period of time and for a prescribed consideration in accordance with the then applicable rules and regulations of the Bureau of Indian Affairs, and the Tribe and subject to the approval of the Business Committee and the Secretary of the Interior or his authorized representative. Such consideration shall be divided between the possessory holder and the Tribe in percentages established by the Tribal Council. (g) Any improvements placed on the land are considered the personal property of the possessory holder in which the Tribe has no interest. They may be bequeathed by will, or absent a will, shall be distributed to the next of kin in the manner provided by the laws of the State of North Carolina. (1) If the holder of the possessory right shall die and leave surviving a wife or a husband who is also a member of the Band, the survivor shall have a life interest in the possessory holding. (2) If the holder of the possessory right shall die and leave surviving a wife who is not a member of the tribe, the surviving widow shall at the option of the Tribal Council be permitted to use and occupy the holding during her lifetime if she does not remarry, but will not be recognized to have any possessory rights in the holding. (3) If the holder of the possessory right shall die and leave a husband or wife who is a non-member, together with surviving minors who are tribal members the surviving spouse may use the possessory holding improvements for the benefit of such minors during the period of their minority; then the possessory holding shall, with the approval of the Tribal Council, be partitioned by agreement to the heirs. A surviving non-member wife shall, with the approval of the Tribal Council, be permitted to use a portion equal to a child's share under conditions set forth in 47-4(g)(2). A surviving non-member husband shall, with the approval of the Tribal Council, be permitted to use a portion equal to a child's share under conditions set forth in Section 47-4(g)(4). (4) If the holder of the possessory right shall die and leave a surviving husband or children or heirs other than a non-member wife who are non-members of the Tribe, but who under State Law would be entitled to inherit personal property from the holder of the possessory right , the Tribal Council, at their option, shall (A) purchase the improvements recognized to be the personal property of the holder of the possessory rights at their fair appraised value, or (B) give Tribal approval for a permit or lease to the surviving husband or other non-member for use of the improvements and premises on which they are located for such period of time as will enable the non-member for use of the improvements and premises on which they are located for such period of time as will enable the non-member husband or other non-member heirs to amortize the value of such improvements under leasing and permitting regulations. (5) In any event as described in 47-4(g)(1)-(4), this certificate must be surrendered to the officers of the Tribe who shall issue new certificates to the new possessory holder or rightful users thereof in such manner as to show their interest therein. (6) The above rights of the holder or user of possessory rights are subject to any Tribal laws of general application which may be enacted by the Tribal Council and which by reference are made a part hereof. SOURCE: Res. 373, eff. Oct. 14, 1960. Section 47-5. POSSESSORY ASSIGNMENTS FROM TRIBAL LANDS. When possessory holdings are assigned from tribal lands to individual tribal members the assignee must make bonafide entry on such land within twelve months from the date of assignment. During each year after the assignment the assignee must clear and put into cultivation one acre of land, with five acres cleared in five years. The assignee must also construct a home on such lands within ten years of the assignment. The assignee shall comply with all tribal and federal restrictions on the cutting and disposition of timber. Section 47-6. Any tribal member who abandons such assigned lands and fails to utilize it during a period of five years shall forfeit all right, title and interest to said lands which shall revert to the Tribe. Section 47-7. These conditions shall not restrict the tribal member from leasing the possessory holding or selling the possessory right to another tribal member according to custom and subject to approval of the Business Committee. SOURCE: Res. , eff. Oct. 18, 1932. Section 47-8. POSSESSORY HOLDINGS OF AGED AND HELPLESS TRIBAL MEMBERS. (a) Any tribal member who cares for an aged or helpless tribal member without assistance from tribal funds or from relatives shall be allowed reasonable compensation for their services. Such compensation shall constitute a lien against the possessory holding and the improvements of the aged or helpless member for one year after their death. If reasonable compensation is not repaid to the member who performed such services within one year after their death, the possessory holding together with all improvements shall pass to the member rather than to the lawful heirs of the deceased aged or helpless member. (b) If any member cares for an aged or helpless member without assistance from relatives but with the aid of Tribal funds, the total amount of Tribal funds so used shall constitute a lien against the holdings and improvements of the aged or helpless member. If such funds are not repaid to the Tribe Treasury within one year after their death, the holding and improvements of the deceased member shall revert to the Tribe and the council may reassign the holding to any member who is landless and not indebted to the Tribe. (c) If any tribal member who is an heir of an aged or helpless member shall care for such member without assistance from other heirs or the Tribe, such heir performing such services shall be allowed reasonable compensation for their services, which shall constitute a lien against the holding and improvements. If such compensation is not paid to the member performing the services by other heirs within one year after death, the holding and improvements shall pass to the heir who performed the services. (d) Any member who desires to care for an aged or helpless member under provisions of this ordinance must file their name and other necessary information with the Council or the Business Committee before any claim can be made under these provisions. Such records shall be carefully preserved by the Council and the Agency. If any funds are paid in satisfaction of services performed hereunder, such payment shall be witnessed by three tribal officials in writing, and the paper filed with the Agency and the Tribe. If no payments are made, holdings may be transferred according to this Ordinance one year after death of the old or helpless member. SOURCE: Res. 314, eff. Feb., 1960. Section 47-9 TRANSFER OF POSSESSORY HOLDINGS. No transfer of a possessory holding shall be valid unless the transfer is consented to an approved by both a husband and wife. However, the consent and approval of non-member spouse shall not be required inasmuch as such spouse has no right of ownership to tribal lands. SOURCE: Res. 47,eff. Oct. 16, 1956. Section 47-10. POSTING OF LAND TRANSFERS BETWEEN MEMBERS. (a) Any tribal member desiring to transfer a possessory holding shall have a notice posted at the Indian Agency office and at the Cherokee Post Office for ten days in advance of the regular monthly meeting of the Business Committee. The notice shall set out a full description of the land intended to be transferred. (b) The Business Committee shall not approve any land transfer that has not met the above notice posting requirement. SOURCE: Res. 33, eff. Oct. 14, 1946. Section 47-11. ASSIGNMENT OF HOUSE SITES. The tribal Council shall apply the following standards when assigning tribal land to tribal members who do not have a holding on which to build a house: (a) A house must be constructed on the lot assigned to the tribal member within three years or otherwise the lot shall automatically revert back to the Tribe and may be reassigned to another tribal member. (b) The lot must be used for home purposes and cannot be sold by the grantee to another tribal member. (c) Lots may only be assigned to tribal members who do not own a possessory holding suitable for a house site. (d) Assignments shall not be made to tribal members under the age of eighteen unless they are married and have family. (e) Assignment shall be made only to tribal members who are head of a household. SOURCE: Res. 168, eff. May 11, 1976. Section 47-12. ASSIGNMENTS AS SECURITY FOR HOME LOANS. (a) Tribal members with possessory holdings shall have the right to assign or pledge a leasehold interest in such holding as security for a loan which is used to provide a home for the member. (b) Leasehold mortgages shall be assignable only in the event of default. (c) Leasehold mortgages for homes shall only include that portion of the possessory holding upon which the house or improvement is located, together with road rights-of-way. SOURCE: Res. 426, eff. Aug. 31, 1961. Section 47-13. ASSIGNMENT AS SECURITY FOR LOANS OTHER THAN HOMES. Tribal members with possessory holdings shall have the right to assign a leasehold interest through a leasehold mortgage as security for small business loans, building repair loans, building expansion loans, operating loans, or other business related loans. SOURCE: Res. 484, eff. Feb. 9, 1962. Section 47-14. TRUSTEE'S FEES. (a) The fees charged in connection with any loan secured by a deed of trust on a leasehold interest on the Cherokee Indian Reservation for any collection, foreclosure or attorney's fees, shall not exceed five (5%) per cent of the gross proceeds of the sale. (b) All deeds of trust secured by a leasehold interest in Cherokee trust lands shall designate a trustee's fee of no more than five (5%) per cent of the sale proceeds, which together with actual expenses incurred as filing and advertising fees, shall be the only fees or expenses deemed valid or enforceable in the event of a foreclosure sale of leasehold interests in Cherokee trust lands. (c) No loan or deed of trust shall be approved or be valid that provides for such fees in excess of five (5%) per cent. SOURCE: Ord. 29, eff. Oct. 27, 1981. Section 47-15. ASSIGNMENT OF CHEROKEE COUNTY LANDS. (a) Those enrolled members who live on Cherokee trust lands in Cherokee County who do not have a record of an assignment or transfer of a possessory holding shall be recognized as owners of lands they occupy not to exceed fifteen acres. (b) The Realty Office shall survey and record the ownership of all such possessory holdings in Cherokee County that are not a matter of record. SOURCE: Res. 146, eff. Jun. 17, 1980; Res. 236, eff. Oct. 15, 1980. Section 47-16. BOUNDARIES OF TRIBAL RESERVE. The boundaries of the Tribal Reserve are as follows: Beginning at a point 1.4 miles from the Soco Gap, at the boundary line of the Reservation on Cranberry Branch (described on may attached) from this point proceed to the State Highway across Soco Creek. From the State Highway to Jumper Gap, from Jumper Gap to the point indicated on the map as one mile above Charlie Sampson's house on Jenkins Creek. From this point on Jenkins Creek through the Littlejohn Gap and across Bigwitch to the Wrights Creek Gap, from the Wrights Creek Gap straight across to the mouth of the Heintooga Creek, from the mouth of Heintooga Creek straight up the Reservation line by the Soco Gap back to the starting point on Cranberry Branch. SOURCE: Res. 39, eff. Oct. 22, 1941; Res. 433, eff. June 20, 1977. Section 47-17. LANDS RESERVED FOR TRIBAL USE. (a) Lots 76,77, 78, and 79 of the Qualla Boundary as surveyed and subdivided by M.S. Temple, being four lots in Soco Gap, have commercial value and shall be reserved for tribal use or for commercial lease by the Tribe. (b) Such portion of the land around Soco falls and within a radius of half a mile from the falls shall be reserved for the benefit and use of the Tribe. (c) Other tracts of land that in the opinion of the Business Committee are of commercial value to the Tribe may be withheld by the Business Committee for the sole use and benefit of the Tribe. SOURCE: Res. _,eff. Oct. 18, 1932. Section 47-18. ROAD RIGHTS OF WAY. In order to prevent encroachments and insure proper maintenance to BIA roads within the Cherokee Indian Reservation, there is hereby reserved a right of way to the Tribe for thirty feet from the center line of each BIA road and control of the sixty foot road right of way is granted to the Roads Department of the Cherokee Indian Agency. SOURCE: Res. 46, eff. Oct. 21, 1946. Section 47-19. EASEMENTS - HOLDINGS BORDERING ROADWAYS. (a) The boundary line of all possessory holdings that border upon any road or highway shall run with the right-of-way or easement line of such road or highway. (b) So long as any such road or highway is maintained and used, the property within the right-of-way or boundary lines of such road or highway shall be and remain the property of the Tribe, and may be used for any lawful purpose as authorized by the Tribal Council, subject to the road or highway use right. (c) In the event any road or highway shall be permanently closed or abandoned as a road or highway, at that time the boundary lines of the possessory holdings on either side of such road or highway shall be extended to the centerline of the abandoned road or highway, subject to any then existing public rights or uses in the lands within the abandoned area. SOURCE: Res. 684, eff. Dec. 16, 1963. Section 47-20. ENCROACHMENT - ROAD- PERMIT. (a) Before any construction shall be started within thirty feet of the centerline of any road on the Cherokee Reservation, a written request for an Encroachment Permit shall be submitted to the Roads Division of the Cherokee Indian Agency. Such permit shall require approval of the Tribal Roads Committee. (b) For purposes of this section, construction shall include but not be limited to fence-building, home construction, trenching, laying electric power lines, water lines, telephone cable, septic tank, drain fields, signs, access road and driveway intersections. SOURCE: Res. 33, eff. Dec. 4, 1973. Section 47-21. REVERSIONARY RIGHTS - HOUSING AUTHORITY. Upon payment in full of loans made to the Qualla Housing Authority by H.U.D., the Tribal Council shall assign possessory holdings to those tribal members who actually occupy such houses at the time of the loan pay-off, and any reversionary interests of prior occupants of such home, including the original contributor of the home site, shall be terminated and voided. SOURCE: Res. 329, eff. Jan. 9, 1981. Section 47-22. EVICTION. (a) The Cherokee Court shall have authority to evict persons living in houses built by the Qualla Housing Authority or in other rental housing, when such persons are in arrears on their rental payments. (b) The Cherokee Court shall have authority to evict persons occupying residences or building used for commercial or industrial purposes where such premises are occupied under leases and the occupant, tenant or lessee: (1) is in default or arrears on their lease or rent payments, or (2) is continuing to occupy the leased premises after the term of the lease has expired, or (3) has done or committed any act by which, according to the conditions of the lease, their leasehold or rental estate has ceased, or (4) does not have a valid lease approved by the Tribe and Bureau of Indian Affairs in effect, or (5) has vacated or abandoned the property for a period of thirty (30) days. (c) The Cherokee Court shall have authority to evict persons occupying residences or buildings used for commercial or industrial purposes when such premises are subject to a leasehold deed of trust or mortgage and the Cherokee Court has entered an Order of Foreclosure in favor of a leasehold mortgage holder. (d) Pleadings, notice and service of process requirements for eviction proceedings shall comply with the Rules of Civil Procedure adopted and applicable to the Cherokee Court. (e) At the termination of the lease term to Qualla Housing Authority for mutual help housing program units, only the Tribal Council shall have authority to reassign the possessory interest in the land. SOURCE: Ord. 337, eff. Jan. 22, 1990. Section 47-23. CAMPING AND PICNICKING. (a) Camping and picnicking shall be restricted to designated areas on the Cherokee Indian Reservation. Camping and picnicking shall be limited to those areas specifically provided by the Tribe for such purposes or to such campground and picnic areas operated as commercial businesses by tribal members or leasehold tenants. (b) The Cherokee Police Department shall advise all persons camping or Picnicking in an unauthorized area that they are violating a tribal ordinance and direct them to an authorized area for such activities. SOURCE: Res. 43-S, eff. Jul. 31, 1968. Section 47-24. HOME IMPROVEMENT PROGRAM. (a) Tribal members selected to participate in the Program shall assign a house site of approximately one-half acre to the Tribe. Participants shall thereafter be tenants of the Tribe. ' (b) All Participants in the Home Improvement Program must sign an agreement setting forth the consideration received by them in exchange for their assigning their possessory rights to said house site together with any rights to transfer or convey the house site except with the approval of the Tribe. (c) Participants must continuously occupy and live in the improved house. Participants may not sell, rent, lease, transfer or convey the house or any part thereof. If Participants vacate the improved house, or purport to sell, rent, lease, transfer or convey the property, the Tribe shall have the right to reassign the home and house site. (d) If a Participant is residing in the improved house at the time of his death, the improvements shall revert to the Participant's enrolled heirs in accordance with his will, or in the absence of a will, to those enrolled heirs recognized by the Tribe as being entitled thereto. If Participant has no direct heirs, the house site and all improvements thereon shall remain the property of the Tribe. (e) The above restrictions shall be binding upon the Participants for 15 years following execution of their agreement with the Tribe. If the Participants continue to occupy the home at the end of the 15 year period, such Participants may then transfer or convey the house site and improvements to another tribal member. (f) The Participant shall convey a right-of-way to the house site to the Tribe which shall be valid for the duration of the restriction period. (g) All restrictions shall be binding on only the original Participant. SOURCE: Res. 112, eff. Jan. 22, 1982. Section 47-25. LEASES. The Business Committee shall negotiate, approve and execute in behalf of the Tribe all leases or permits for both assigned and unassigned tribal lands in compliance with existing tribal law and federal law and regulations appertaining thereto and based on the merits of each application. SOURCE: Res. ,eff. Oct. 11, 1912; Res. ,eff. Oct. 17, 1932; Res. eff. Nov. 8, 1933; Res. ,eff. Feb. 5, 1941; Res. 84, eff. Oct. 18, 1956; Res. 102, eff. Dec. 18, 1956; Res. 640, eff. Oct. 10, 1963; Res. 44, eff. Apr. 28, 1967; Res.63, eff. Dec. 12, 1967; Res. 8-S, eff. Jan. 12, 1968; Res. 49-S, eff. Jul.31 1968. 47-26. LEASE RENTAL BONDS. Where security in the form of a rental bond on properties leased by the Tribe is required by federal regulations, neither the Tribal Council nor any Council committee shall have authority to postpone, suspend or waive a rental bond. SOURCE: Res. 458, eff. Jan. 9, 1987 Section 47-27. LAND DISPUTES. The following procedures and standards shall be applied by the Tribal Council or any committee in resolving any land dispute between tribal members. (a) No land dispute may be presented to the Tribal Council concerning the ownership or inheritance rights of any land if the Tribal Council, Lands Committee or other Council committee has previously ruled on the dispute more than one year before and if a written record exists of the previous ruling. (b) No Council or committee action will be taken on any land dispute in which there exists a prior ruling more than one year old until or unless the claimant shall deposit with the Tribal Council or the Lands Committee a sum equal to the per diem payment due to all Council or Committee members. (c) No person shall be recognized as entitled to a possessory interest in Cherokee lands unless they can establish such rights in one of the following ways: (1) Inheritance of a possessory interest through the will of a deceased member or by intestate succession from a deceased member with the estate or inheritance approved by the Tribal Council. (2) Transfer from a previous possessory holder by purchase or gift, with the voluntary transfer approved by the Tribal Council or an appropriate committee. (3) Assignment from the Tribal Council of tribal lands, unassigned trust lands or tribal lands whose possessory use has expired or reverted to the Tribe. (d) In resolving disputes among tribal members, the criteria set forth in section (c) shall also be applied to the claimant's ancestors or predecessors in possession. SOURCE: Res. , eff. Feb. 11, 1931; Res. 55, eff. Oct 24, 1949; Res. 715, eff. Mar. 2, 1964; Res. 350, eff. May 3, 1979; Res. 261, eff. Nov. 7, 1980; Res. 343, eff. Apr. 2, 1981. Section 47-28. CHURCHES. Those churches on Reservation lands which presently hold under lease shall be assigned those parcels of land on which a church is located, with such assignments recorded in the land and improvements shall revert to Tribal status. SOURCE: Res. 588, eff. Apr. 6, 1987. Section 47-29. CHEROKEE FORECLOSURE ORDINANCE. (a) Jurisdiction. The Cherokee Court shall have jurisdiction over all foreclosure proceedings which concern leasehold interests in Cherokee Indian trust lands located within the State of North Carolina. (b) Federal Approval. Foreclosures of leasehold interests in Cherokee Indian trust lands located in North Carolina shall be filed in and heard by the Cherokee Court, consistent with the terms and conditions or 25 U.S.C. 483a. (c) Applicable Foreclosure Laws. Foreclosure of deeds of trust or mortgages on leasehold interests in Cherokee Indian trust lands shall be conducted in accordance with the foreclosure laws and statutes of the State of North Carolina, subject to rights of redemption by the lessor, including the Eastern Band of Cherokee Indians, contained in such mortgage or deed of trust. SOURCE: Ord. 338, eff. Jan. 22, 1990. Section 47-30. DEED OF TRUST LIEN. (a) The filing and recording of a leasehold deed of trust or mortgage on parcels of Cherokee Indian trust land within the State of North Carolina shall constitute a valid and enforceable first lien on such leasehold. (b) Perfection of leasehold deed of trust lien shall be accomplished by recording both a lease and deed of trust or mortgage in the Books of Miscellaneous Records in The Realty Office of the Cherokee Bureau of Indian Affairs. SOURCE: Ord. 339, eff. Jan. 22, 1990.