                                     TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                          OFFICE OF THE ATTORNEY GENERAL
                                                    State of California

                                                  DANIEL E. LUNGREN
                                                     Attorney General
                                         ______________________________________

                                      OPINION              :
                                                           :       No. 96-609
                                       of                  :
                                                           :       February 28, 1997
                             DANIEL E. LUNGREN             :
                                Attorney General           :
                                                           :
                            ANTHONY D. DA VIGO             :
                            Deputy Attorney General        :
                                                           :
                    ______________________________________________________________________

                     THE HONORABLE FRED AGUIAR, MEMBER OF THE CALIFORNIA STATE
         ASSEMBLY, has requested an opinion on the following questions:

                          1. Would a violation of an exclusion order issued by the tribal council of an Indian tribe,
         prohibiting an individual from entering or occupying real property or structures on the reservation, constitute
         a misdemeanor under the terms of Penal Code section 602, subdivision (l)?

                          2. What action, if any, would a county sheriff be required to take to enforce an exclusion
         order issued by the tribal council of an Indian tribe, prohibiting an individual from entering or occupying real
         property or structures on the reservation?

                                                        CONCLUSIONS

                           1. A violation of an exclusion order issued by the tribal council of an Indian tribe,
         prohibiting an individual from entering or occupying real property or structures on the reservation, would not
         constitute a misdemeanor under the terms of Penal Code section 602, subdivision (l).
                           2. A county sheriff would not be required to take any action to enforce an exclusion order
         issued by the tribal council of an Indian tribe, prohibiting an individual from entering or occupying real
         property or structures on the reservation.

                                                           ANALYSIS

                          The tribal council of the Chemehuevi Indian Tribe has adopted an ordinance
         Footnote No. 1 providing in part:

                            "a. It is unlawful and constitutes a violation of this Ordinance for any person to enter
               or remain upon any portion of the Chemehuevi Indian Reservation, if they have been excluded
               from the Reservation by order of the Tribal Council and they have been personally served with a
               notice to show cause under Section 9.52.30(a) or 9.52.40 and failed to attend the noticed hearing
               or, if they attended the hearing, they have been personally served with the order excluding them.

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                           "b. It is unlawful and constitutes a violation of this Ordinance for any lessee or
               assignee of Tribal trust land or owner or tenant of housing located on the Reservation to allow a
               person excluded from the Reservation under this Chapter to enter, occupy or remain upon or
               within their lease, assignment, home or rental unit, after notice of exclusion has been given as
               provided in Section 9.52.50." (§ 9.52.10.)

         Section 9.52.20 specifies the particular grounds for exclusion, e.g., threatening the peace and quiet or
         personal safety of persons who live or work on the reservation, cutting down trees, defacing signs,
         discharging pollutants or toxic waste, and damaging cultural artifacts or grave sites. Section 9.52.30 sets forth
         the procedures for the issuance of an exclusion order, including notice, service, and pre-exclusion and
         post-exclusion hearings. Each order of exclusion provides in part:

                          "You are prohibited from entering or remaining upon the reservation while this order
               remains in effect. If you violate this order, tribal enforcement officials may remove you and your
               possessions from the reservation. You may be guilty of criminal trespass under the California
               Penal Code and subject to arrest and imprisonment."

                         We are first asked to address whether a violation of a tribal council exclusion order as
         described above would constitute a misdemeanor under the terms of section 602, subdivision (l), of the Penal
         Code (hereinafter "subdivision (l)"). Footnote No. 2 The statute provides:

                           ". . . [E]very person who willfully commits a trespass by any of the following acts is
               guilty of a misdemeanor:

                            ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                          "(l) Entering and occupying real property or structures of any kind without the
               consent of the owner, the owner's agent, or the person in lawful possession.

                            ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

         The second inquiry presented is whether a county sheriff would be required to enforce such an exclusion
         order. We conclude that a violation of the exclusion order in question would not per se satisfy the descriptive
         elements of a criminal trespass as defined in subdivision (l); thus, a sheriff would not be authorized to
         enforce the issuance of such an order. However, the provisions of subdivision (l) may be enforced on the
         reservation where the terms thereof are independently applicable.

                         Whether California law may be applied to Indian reservations located in the state depends
         primarily upon the approval of Congress. As stated in California v. Cabazon Band of Mission Indians (1987)
         480 U.S. 202, 207:

                           "The Court has consistently recognized that Indian tribes retain `attributes of
               sovereignty over both their members and their territory,' United States v. Mazurie, 419 U.S. 544,
               557 (1975), and that `tribal sovereignty is dependent on, and subordinate to, only the Federal
               Government, not the States,' Washington v. Confederated Tribes of Colville Indian Reservation,
               447 U.S. 134, 154 (1980). It is clear, however, that state laws may be applied to tribal Indians on
               their reservations if Congress has expressly so provided. . . .

                           "In Pub. L. 280 [18 U.S.C., § 1162, . . .] Congress expressly granted six States,
               including California, jurisdiction over specified areas of Indian country within the States. . . .
               California was granted broad criminal jurisdiction over offenses committed by or against Indians
               within all Indian country within the State."

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         The governing federal law, title 18, United States Code, section 1162, subdivision (a), provides as follows:

                           "Each of the States or Territories listed in the following table shall have jurisdiction
               over offenses committed by or against Indians in the areas of Indian country listed opposite the
               name of the State or Territory to the same extent that such State or Territory has jurisdiction over
               offenses committed elsewhere within the State or Territory, and the criminal laws of such State
               or Territory shall have the same force and effect within such Indian country as they have
               elsewhere within the State or Territory:

                           "State or Territory of Indian country affected

                           ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                           "California All Indian country within the State.

                           ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " Footnote No. 3

                           Clearly, under federal law (18 U.S.C., § 1162) California's criminal statutes apply to Indian
         reservations in the state. Tribal code provisions and orders, on the other hand, do not constitute the criminal
         laws of the state and have no force and effect elsewhere within California. Such tribal code provisions and
         orders are not enforceable by a county sheriff either within or without the reservation.

                           We believe that if a tribal order of exclusion met all of the elements of a trespass as defined
         in subdivision (l), a county sheriff could enforce the provisions of the state law based upon issuance of such
         an order. The exclusion order in question, however, does not satisfy the requirements of subdivision (l) and
         thus a violation of such an order would not invoke the application of state law.

                          Specifically, this subject exclusion order is violated by a person who, having been excluded
         by the tribal council, enters or remains on the reservation. (§ 9.52.10, subd. (a).) Further, the order is violated
         by a person on the reservation (lessee or assignee) who allows an excluded person to "enter, occupy or
         remain" on the reservation. (§ 9.52.10, subd. (b).) However, a violation of subdivision (l) requires that the
         individual both enter and occupy real property or structures without the consent of the owner. As explained
         by the court in People v. Wilkinson (1967) 248 Cal.App.2d Supp. 906, 909-910:

                            "It is not a violation of Penal Code section 602, subdivision (l) to enter private
               property without consent unless such entry is followed by occupation thereof without consent.
               Nor is it a violation to occupy without consent if the entry be made with consent. This is so
               because the conjunction used is `and' not `or'. . . ."

         In People v. Brown (1965) 236 Cal.App.2d Supp. 915, 919-920, the court analyzed the issue as follows:

                            "Defendants next contend that section 602, subdivision (l) by its very terms is not
               applicable where the entering of a building was with the express or implied consent of the
               owner. . . .

                          "It was stipulated that the bank's premises were open to the public, including the
               defendants and their associates.

                          "Respondent argues that section 602, subdivision (l) is applicable where the entry of a
               building was with the consent of the owner if the owner later withdraws his consent, and that
               following that withdrawal a person on the premises may become a trespasser. The cases cited for
               the proposition that an invitation may be withdrawn at any time (Rogers v. Duhart, 97 Cal. 500,


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                and Riechhold v. Sommarstrom Inv. Co., 83 Cal.App. 173) are both civil cases, and do not
                involve the issue of criminal trespass.

                             "As noted above . . . the plain meaning of the words used in the statute should be
                followed. Section 602, subdivision (l) by its terms applies to `entering and occupying . . .
                without . . . consent. . . .'

                             "Recent enactments of the Legislature, such as Penal Code section 602.5 (1961):
                `Every person . . . who enters or remains . . . without consent of the owner' (italics ours) indicate
                that the distinction between the use of the word `and' and the word `or' was well understood by
                the framers of the legislation. Section 602.5 by its wording gives fair warning that either the act
                of entering or the act of remaining on certain premises without consent will constitute a trespass.
                Section 602, subdivision (l) gives no such warning. There is nothing in the wording of this
                statute to indicate that it makes criminal the act of occupying without the consent of the owner
                after an original entry by permission. . . ." Footnote No. 4

         Hence, an unconsented entry followed by consent to remain, or a consented entry without consent to remain,
         would violate the terms of the exclusion order in question, but would not violate subdivision (l).

                           We conclude that a violation of an exclusion order issued by the tribal council of an Indian
         tribe, prohibiting an individual from entering or occupying real property or structures on the reservation
         would not constitute a misdemeanor under the terms of subdivision (l) and thus a county sheriff would not be
         required to enforce a violation of the order.

                                                                   *****

         Footnote No. 1
         All references hereafter to the tribal code of the Chemehuevi Indian Tribe are by section number only.
         Footnote No. 2
         No other California criminal statute appears applicable to the particular circumstances presented herein.
         Footnote No. 3
         The term "Indian country" includes all land within the limits of any Indian reservation under the jurisdiction of the United
         States Government. (18 U.S.C., § 1151.) The application of California's civil laws to activities on Indian reservations is
         governed by a different federal law. (28 U.S.C., § 1360(a).) While trespass has both civil and criminal aspects, we are
         concerned here only with the criminal connotation.
         Footnote No. 4
         Penal Code section 602.5 provides in full:
                    "Every person other than a public officer or employee acting within the course and scope of his employment in
         performance of a duty imposed by law, who enters or remains in any noncommercial dwelling house, apartment, or other
         such place without consent of the owner, his agent, or the person in lawful possession thereof, is quilty of a
         misdemeanor."




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