Animal law in indian country companion animals_02-12-10


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  • One of the most intractable problems I’ve run across regarding to animals in Indian country is who the animal or animals belong to. Is it a “white person’s” dog? Is it a tribal member’s cat? It is so frustrating because countless people dump countless unwanted pets on the reservation because it’s remote, it’s less likely someone will see them do it, and/or they have a stereotypical belief or just assume that tribal members will be more likely than white people to take the animals in and care for them. Another thought: So are the tribal members supposed to just let the animals starve? Turn them in to animal control if they have such a thing and risk them being euthanized for lack of a good home? Another issue that bears mentioning and may come up later in the livestock discussion: Also, livestock and open range or lack of fencing creates frequent trespass incidents.
  • The Constitution is where the broad brushstrokes regarding animals should reside, not specific prescriptions or prohibitions. But it creates the general mindset of how animals fit into the picture for this tribe. Here’s your word of the day: “Fauna”!
  • I think tie-outs are a bad idea, but sometimes people can’t afford a fence and can’t have the animal inside and there is no other way to restrain the animal.
  • One thing you could do is have a “density” measurement – like if there are 10 or more houses per square mile or you are within a village, town or city limits, the dogs have to be leashed or confined. If you are in a rural area – open desert, houses sparsely placed, not near a major road or highway – dogs can roam free. Also, it is very difficult to enforce when police officers and animal control officers already are overwhelmed with much more serious concerns. They do NOT have time to count the number of dogs per household, trust me!
  • Tribal members always saying, “Oh my God! They’re going to take away my beloved Fido or Fifi! And he or she is all I have!” No. This is not going to happen. Unless you give the authorities a reason for it to happen.
  • Some tribes, just like some non-Indian communities, have been buying into the idea that all their animal-related problems will be solved if they only ban specific breeds. Unfortunately breed-specific legislation seldom works, because it is very difficult to predict which dog is going to attack or bite at any particular time, and no particular breed has been proven to have a great propensity for “aggressiveness” or “viciousness” than another. A much more accurate indicator is past behavior. And what exactly is a “pit bull”? You look at a dog that has a large head, stout, sturdy body, smiling eyes and a wide grin, and it could be many things: an American Staffordshire terrier. An American Pit Bull Terrier. A Staffordshire Bull Terrier. Even a Bull-mastiff! Most tribal members are not going to have pedigree papers on their dogs, and it wouldn’t behoove them to do so under this standard. If the burden of proof rests with the pet owner, as it does for TON, I guess they would have to get a DNA test done to show what the dog is actually “made of.”
  • Senate Indian Affairs Committee Chairman Byron Dorgan (D-ND) proposed this legislation in 2008. President Obama also has talked about upping the maximum criminal penalties in Indian Country, so the issue isn’t dead yet. Still it’s not at the top of the list what with the economic recession, etc. Still, crime in Indian country certainly isn’t going down—if anything, it’s increasing—and it’s starting to get more and more attention because of that. I am hopeful that the issue of sentencing disparities between Indians and non-Indians will rise to the top eventually and get the critical mass needed for passage.
  • (today’s term is ADR, or Alternative Dispute Resolution) ; Most important: Be willing to be patient! Buy-in from the Community is required for ultimate success, especially in enforcement; could take years of back and forth between council, governor, law office, community, etc., before a proposed body of law is adopted, if at all. You may have to go to every district meeting and talk to individual members to really drill down far enough to get enough buy-in!
  • Animal law in indian country companion animals_02-12-10

    1. 1. Animal Law in Indian Country: Companion Animals By Joan M. Bundy , former prosecutor for the Tohono O’odham Nation and Gila River Indian Community
    2. 2. History of Animals and Native Peoples <ul><li>Millennia ago the earliest tribes of humanity domesticated wolves, providing their people and belongings with much needed protection from wild animals and rival tribes as well as assistance with hunting and gathering. These early dogs cleaned up (literally)! </li></ul><ul><li>For example, the ancestors of today’s Tohono O’odham Nation in southern Arizona domesticated wolves. When excavations were done at Ventana Cave around 1945, dog bones were found among the many artifacts and believed to date back thousands of years. </li></ul>
    3. 3. History of Animals and Native Peoples (cont.) <ul><li>Many native peoples traditionally so revered the natural world that they elevated many wild animals to the status of fetishes , or spiritual icons with special powers. </li></ul><ul><li>  The Desert People are an example of a tribal community that deems cruelty and neglect of animals deeply offensive to their beliefs and morals. Their oral teachings inform that the natural world surrounding us and of which we are a part must be revered and kept in balance, lest sickness or other harm befall any ill-thinking or acting person or their loved ones: “Making animals suffer or cruelly killing them for sport was sure to cause illness. The animals had wisdom; they were willing to be eaten by man but would punish him and send disease if they were wasted disrespectfully.”* </li></ul>* The Papago Indians and Their Basketry , by Terry DeWald (1979).
    4. 4. Animal code language needs to be culturally appropriate and practical <ul><li>Be aware of differing cultural, traditional & historical notions. </li></ul><ul><li>Examples: </li></ul><ul><ul><li>“ You shouldn’t spay or neuter” – sterilization takes away from an animal’s “wildness” or “freedom” to fully experience all aspects of life; hard to defend with the extreme overpopulation situation both on- and off-reservation, worldwide! </li></ul></ul><ul><ul><li>“ Animals should be allowed to roam free” – that’s a great ideal, but unfortunately it just isn’t practical especially in heavily populated areas where there is a lot of vehicle traffic; too many dangers for the animals and the people who encounter them! </li></ul></ul><ul><li>  </li></ul>
    5. 5. <ul><li>In reality, it’s everybody’s concern! </li></ul><ul><li>Tribal ancestors domesticated these animals, and we have a responsibility to carry on their care. </li></ul><ul><li>Sure, we’d like to blame current owners for ignorance, indifference, abandonment, callousness, etc. That may be an immediate cause, but that is not the whole story! </li></ul><ul><li>All of us, to one extent or another, are to blame for not properly honoring our fellow creatures and for living in disharmony with nature. </li></ul>So whose job is it to deal with companion animals?
    6. 6. But just whose animal is it? <ul><li>Animals “ignore” jurisdictional borders – They haven’t gone to law school, and they have no idea about federal, tribal, state, county, city or other jurisdictions’ authority or lack thereof. </li></ul><ul><li>Can the animal be identified? It is always helpful, of course, if an animal has an ID tag, microchip or, in the case of livestock, a brand. Unfortunately this is all too rare, and the animal by proxy becomes the property of the tribe or any community member or resident who happens upon it </li></ul><ul><li>Dumped animals a huge problem – like tribal communities don’t already have enough social issues to deal with without having to tackle the non-tribal communities’ pet overpopulation and non-tribal individuals’ irresponsibility with their animals! </li></ul>
    7. 7. Borrow…but make it what you want! <ul><li>There’s no shame in copying boilerplate language from state/county/city legislation or even another tribe. If you have nothing else, it will at least give you a starting point. </li></ul><ul><li>That being said, the sky’s the limit! The possibilities for animal law are limited only by your imagination…of course keeping in mind tribal beliefs and avoiding conflict with existing tribal code as well as federal laws and regulations. </li></ul>
    8. 8. Always start with the Constitution: <ul><li>TON Article 18, Section 1, “Environmental Policy”: </li></ul><ul><li>“ It shall be the policy of the Tohono O’odham Nation to encourage productive and enjoyable harmony between members of the nation and their environment; to promote efforts which will preserve and protect the natural and cultural environment of the Tohono O’odham Nation, including its lands, air, water, flora and fauna* ; its ecological systems, and natural resources, and its historic and cultural artifacts and archeological sites; and to create and maintain conditions under which members of the nation and nature can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations of members of the Tohono O’odham Nation.” </li></ul>* Fauna means “animals”
    9. 9. Then go into the Criminal Code: <ul><li>TON Title 7, Section 3.9, “Cruelty of Animals”: </li></ul><ul><li>“ A person commits the offense of cruelty of animals when he or she, either intentionally , or negligently , mistreats , abandons , neglects , kills or injures any animal without legal justification or authority .” They face up to 60 days in jail and up to $300 in fines. </li></ul><ul><li>TON Title 7, Section 5.2, “Poisoning Animals”: </li></ul><ul><li>“ A person commits the offense of poisoning animals when he or she willfully administers poison to an animal belonging to another with the intent that the animal take or swallow the poison.” There is an exception for government officials controlling predatory animals. Otherwise, the offender risks the same penalty as above: up to 60 days in jail and up to $300 in fines. </li></ul>
    10. 10. Then look at animal-control provisions: <ul><li>Some typical animal-control clauses: </li></ul><ul><li>IDs - Owner* must have collar w/ ID & tag for rabies vaccination on dog or cat by 4 months </li></ul><ul><li>Pets at large – no pets at large, especially female dogs in heat, and dogs and cats in or near feast houses, dance grounds, public parks, shopping areas, government buildings, schools, businesses, etc. [Best bet: Keep animals confined at all times.] </li></ul><ul><li>Tie-outs – permitted, but only where adequate food, water, shelter and exercise space is provided as well as freedom from entanglement or choking </li></ul>* Owner defined by TON as “any person harboring or keeping an animal other than livestock for more than three consecutive days.”
    11. 11. How many animals is “too many”? <ul><li>A lot of tribal animal control codes have a household limit – e.g. TO went with two, Gila River considered three but it was shot down </li></ul><ul><li>This is not practical , partly because many of the animals people acquire are not “purchased” or “adopted” formally ( e.g. born to unsterilized dogs or wander onto property) </li></ul><ul><li>Difficult to enforce – cops and ACOs have enough to do without counting dogs!   </li></ul>
    12. 12. Quantity (cont.) <ul><li>The practical approach: If a household’s dogs are well cared for, properly confined and don’t cause problems for anyone, it’s never going to become an issue or even come to the attention of the law. </li></ul><ul><li>By comparison: Arizona does not limit quantity except in some private homeowner associations; some counties and cities do, though (for example, Pinal County requires a kennel permit for more than four dogs) </li></ul><ul><li>Regardless, know your personal limits: No matter where one lives, the number of companion animals that are appropriate depends on the ability of the residents to care for the animals (money, time, space, disposition, priorities, etc.); some people can’t handle even one pet! </li></ul>
    13. 13. Some thoughts on breed bans <ul><li>Breed bans: Typical bans relate to prohibitions of coyote- or wolf-dog hybrids or supposedly “dangerous” breeds ( e.g., TON banned Rottweilers and “pit bulls”, including mixed breeds) </li></ul><ul><li>The trouble with these breed bans is that breed-specific legislation (“BSL”) is none too accurate. </li></ul><ul><li>Also, most tribal members don’t have purebreds with papers! Most “rez dogs” are mutts of sorts. What are they gonna do, get a DNA test? </li></ul>
    14. 14. Biting animals: <ul><li>Dog or cat bites/injures human: e.g. quarantined 7+ days* </li></ul><ul><li>Other domestic animal bites human: 14+ days </li></ul><ul><li>Wild animal bites human: may be killed and sent to necropsy lab </li></ul><ul><li>Domestic animal may be killed before quarantine ends if has rabies or owner consents </li></ul><ul><li>Dog harasses other non-human animal: if owner notified dog bit or injured livestock or other domestic or game animal, must keep dog confined; if found loose again, may be killed </li></ul><ul><li>Dog kills other non-human animal: must kill dog within 48 hours – owner, Animal Control Officer or victim </li></ul>* Primarily to test for rabies
    15. 15. “ Vicious” and “destructive” animals: <ul><li>Vicious animal: defined as “any animal of the order Carnivora that bites, attempts to bite, endangers or otherwise injures or causes injury to a human being without sufficient provocation, or any animal that, while at large, kills or causes injury to any domesticated animal, including livestock.” </li></ul><ul><li>Should a person keep, control, or harbor any “vicious animal” that has endangered a human: Face jail up to a year and/or $250-$1,000 fine. </li></ul><ul><li>Destructive animal: defined as “any animal that destroys, damages or causes damage to private or public property or injures or kills another animal.” </li></ul><ul><li>Should a person keep a “destructive animal”: Face up to 180 days’ jail, $500 fine and/or restitution. </li></ul>
    16. 16. Is there an animal-human abuse link? <ul><li>Sadly, yes. </li></ul><ul><li>Why? “ Practice, practice, practice!” Helpless animals are where serial rapists/killers often get their start </li></ul><ul><li>The FBI’s “Homicidal Triad” has been established as a reliable key to future dangerousness to humans: </li></ul><ul><li>(1) Animal Abuse </li></ul><ul><li>(2) Firestarting </li></ul><ul><li>(3) Bedwetting </li></ul><ul><li>This does NOT mean that every person who ever harmed an animal will become a serial killer! It just means that those who do harm humans almost always also harmed animals. </li></ul>
    17. 17. “ But animal cruelty doesn’t happen in Indian Country” ( oh really? ) <ul><li>Animal-cruelty anecdotes from TON land: </li></ul><ul><li>Gang-related dog torture, mutilation and killings – KaKa Village, Hickiwan District; juvenile boys – devil worshiping and animal sacrifices </li></ul><ul><li>Two boys stabbed and stomped puppy to death and destroying and damaging shrines and interior of church at Ge Wo’o village; friend who attended an Insane Clown Posse shock-heavy metal concert in Phoenix gave them idea </li></ul><ul><li>Gangbangers tossed around, stomped on and eventually killed rival gangbanger’s sister’s cat in front of her </li></ul><ul><li>Man stomped cat to death in domestic-violence situation </li></ul><ul><li>Man shot two dogs in New Year’s drunken spree, killing one </li></ul>
    18. 18. Animal abuse not only cruelty, also can consist of “mere” NEGLECT <ul><li>NEGLECT can mean many things, including failing to provide any or sufficient/acceptable* : </li></ul><ul><ul><li>Water (should be safe to drink and clear of debris) </li></ul></ul><ul><ul><li>Food (healthy, not spoiled) </li></ul></ul><ul><ul><li>Grooming (brushing, removal of mats/burrs/cactus spines from coat) </li></ul></ul><ul><ul><li>Temperature control (cooling, warmth as needed) </li></ul></ul><ul><ul><li>Protection from elements (sun, wind, precipitation, flying dirt and debris, insects, etc.) </li></ul></ul><ul><ul><li>Proper medical care </li></ul></ul>* Recognizing the necessity for somewhat diminished standard of non-human animal care due to generally lower standard of human living on most reservations
    19. 19. Why neglect? <ul><li>Ignorance (need education on proper care or training of a pet) </li></ul><ul><li>Lack of financial resources </li></ul><ul><li>Too busy </li></ul><ul><li>Don’t care </li></ul><ul><li>Not my problem (“It’s my girlfriend’s cat, not mine”) </li></ul>
    20. 20. For comparison’s sake: United States Arizona Counties/ Cities Feds do not really have much animal law that applies to “pets” (just the “Endangered Species Act” and other things that mostly affect wildlife) Primarily §13-2910; in 1999 Arizona upped the penalty for committing an act of intentional animal cruelty from a Class 1 Misdemeanor to a Class 6 Felony. Varies widely
    21. 21. Prosecution and Penalties in Indian Country <ul><li>Tribal members – limit is year in jail and/or $5,000; some discussion in Congress of upping that to three years* but hasn’t happened yet (e.g. TON animal control ordinance only up to $300 and/or 60 days in jail; GRIC $50-500) </li></ul><ul><li>Non-tribal members – no jail time (any fine amount or other non-confinement option, like animal seizure/euthanasia) </li></ul><ul><li>Limits can be frustrating! (Neither feds nor state interested in prosecuting animal-related cases) </li></ul>
    22. 22. Some final thoughts <ul><li>In the rush to convert oral traditions into written laws, don’t lose your sense of who you are as a people! </li></ul><ul><li>Think about incorporating more culturally appropriate ways of dealing with issues, like “talking circles” for addressing conflict, or “shaming” for punishing prohibited conduct, or whatever else works for your tribe! </li></ul>