Statutes | Jamestown S'Klallam Tribal Code Title 21 Chapter 21.3 ยง 21.3.2A.88.150 | 2020
(1) The following are subject to seizure and forfeiture and no property right exists in them:
(a) Any property or other interest acquired or maintained in violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88.070 to the extent of the investment of funds, and any appreciation or income attributable to the investment, from a violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070
(b) All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, in any manner to facilitate a violation of sections 3..268A.100, 3..268A.101 or 3.2A.88070, except that:
(i) No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070
(ii) No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owners knowledge or consent
(iii) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission and
(iv) When the owner of a conveyance has been arrested for a violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070, the conveyance in which the person is arrested may not be subject to forfeiture unless it is seized or process is issued for its seizure within 60 days of the owners arrest
(c) Any property, contractual right, or claim against property used to influence any enterprise that a person has established, operated, controlled, conducted, or participated in the conduct of, in violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070
(d) All proceeds traceable to or derived from an offense defined in sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070 and all
moneys, negotiable instruments, securities, and other things of value significantly used or intended to be used significantly to facilitate commission of the offense
(e) All books, records, and research products and materials, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070
(f) All moneys, negotiable instruments, securities, or other tangible or intangible property of value furnished or intended to be furnished by any person in exchange for a violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070, all tangible or intangible personal property, proceeds, or assets acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070.
A forfeiture of money, negotiable instruments, securities, or other tangible or intangible property encumbered by a bona fide security interest is subject to the interest of the secured party if, at the time the security interest was created, the secured party neither had knowledge of nor consented to the act or omission. No personal property may be forfeited under this subsection (1)(f), to the extent of the interest of an owner, by reason of any act or omission, which that owner establishes was committed or omitted without the owners knowledge or consent and
(g) All real property, including any right, title, and interest in the whole of any lot or tract of land, and any appurtenances or improvements which are being used with the knowledge of the owner for a violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070, or which have been acquired in whole or in part with proceeds traceable to an exchange or series of exchanges in violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070, if a substantial nexus exists between the violation and the real property. However:
(i) No property may be forfeited pursuant to this subsection (1)(g), to the extent of the interest of an owner, by reason of any act or omission committed or omitted without the owners knowledge or consent
(ii) A forfeiture of real property encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party, at the time the security interest was created, neither had knowledge of nor consented to the act or omission.
(2) Real or personal property subject to forfeiture under this section may be seized by any law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. Seizure of real property shall include the filing of a lis pendens by the seizing agency.
Real property seized under this section shall not be transferred or otherwise conveyed until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later: PROVIDED, That real property seized under this section may be transferred or conveyed to any person or entity who acquires title by foreclosure or deed in lieu of foreclosure of a security interest. Seizure of personal property without process may be made if:
(a) The seizure is incident to an arrest or a search under a search warrant
(b) The property subject to seizure has been the subject of a prior judgment in favor of the Tribe in a criminal injunction or forfeiture proceeding or
(c) The law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of sections 3.2.68A.100, 3.2.68A.101 or 3.2A.88070.
(3) In the event of seizure pursuant to subsection (2) of this section, proceedings for forfeiture shall be deemed commenced by the seizure. The law enforcement agency under whose authority the seizure was made shall cause notice to be served within 60 days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property.
Service of notice of seizure of real property shall be made according to the rules of civil actions. However, the Tribe may not obtain a default judgment with respect to real property against a party who is served by substituted service absent an affidavit stating that a good faith effort has been made to ascertain if the defaulted party is incarcerated within the state, and that there is no present basis to believe that the party is incarcerated within the state.
Notice of seizure in the case of property subject to a security interest that has been perfected by filing a financing statement, or a certificate of title, shall be made by service upon the secured party or the secured partys assignee at the address shown on the financing statement or the certificate of title. The notice of seizure in other cases may be served by any method authorized by law or court rule including, but not limited to, service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the 60 day period following the seizure.
(4) If no person notifies the seizing law enforcement agency in writing of the persons claim of ownership or right to possession of items specified in subsection (1) of this section within 90 days of the service of notice from the seizing agency in the case of personal property and ninety days in the case of real property, the item seized shall be deemed forfeited. The community property interest in real property of a person whose spouse or domestic partner committed a violation giving rise to seizure of the real property may not be forfeited if the person did not participate in the violation.
(5) If any person notifies the seizing law enforcement agency in writing of the persons claim of ownership or right to possession of items specified in subsection (1) of this section within fortyfive days of the service of notice from the seizing agency in the case of personal property and ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right.
The notice of claim may be served by any method authorized by law or court rule including, but not limited to, service by first-class mail. Service by mail shall be deemed complete upon mailing within the 90 day period following service of the notice of seizure in the case of personal property and within the ninety day period following service of the notice of seizure in the case of real property.
The hearing shall be before the Tribal Court. In all cases, the burden of proof is upon the law enforcement agency to establish, by a preponderance of the evidence, that the property is subject to forfeiture.
The seizing law enforcement agency shall promptly return the article or articles to the claimant upon a determination by the court that the claimant is the present lawful owner or is lawfully entitled to possession thereof of items specified in subsection (1) of this section.
(6) When property is forfeited under this chapter, the seizing law enforcement agency may sell the property that is not required to be destroyed by law and that is not harmful to the public.
(7)(a) When property is forfeited, the seizing agency shall keep a record indicating the identity of the prior owner, if known, a description of the property, the disposition of the property, the value of the property at the time of seizure, and the amount of proceeds realized from disposition of the property.
(b) Each seizing agency shall retain records of forfeited property for at least seven years.
(c) Each seizing agency shall file a report including a copy of the records of forfeited property with the Tribal treasurer each calendar quarter.
(d) The quarterly report need not include a record of forfeited property that is still being held for use as evidence during the investigation or prosecution of a case or during the appeal from a conviction.
(e) The net proceeds of forfeited property is the value of the forfeitable interest in the property after deducting the cost of satisfying any bona fide security interest to which the property is subject at the time of seizure and in the case of sold property, after deducting the cost of sale, including reasonable fees or commissions paid to independent selling agents, and the cost of any valid landlords claim for damages claimed incident to this section.
(f) The value of sold forfeited property is the sale price. The value of destroyed property and retained firearms or illegal property is zero.
(8) Upon the entry of an order of forfeiture of real property, the court shall forward a copy of the order to the assessor of the county in which the property is located. Orders for the forfeiture of real property shall be entered by the Tribal Court, subject to court rules. Such an order shall be filed by the seizing agency in the county auditors records in the county in which the real property is located.
(9) This section will not limit any other rights a landlord may have against a tenant to collect for damages. However, if a law enforcement agency satisfies a landlords claim under subsection (11) of this section, the rights the landlord has against the tenant for damages directly caused by a law enforcement officer under the terms of the landlord and tenants contract are subrogated to the law enforcement agency.