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.
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