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S.C. Code § 27-16-80
Code
of Laws of South Carolina 1976
Title 27. Property and Conveyances
Chapter 16. The Catawba Indian Claims Settlement Act
§ 27-16-80. Tribal
courts - original and appellate civil; full faith and credit; waiver of
jurisdiction; appeal to non-Tribal courts; claims and suits against Tribe;
limited sovereign immunity; liability insurance; partial applicability
of Tort Claims Act; satisfaction of judgments.
(A) The Tribe may provide in its constitution for a Tribal Court having
civil jurisdiction which may extend up to, but not exceed, the extent
provided in this chapter and the federal implementing legislation. The
Tribe may have a court of original jurisdiction, as well as an appellate
court.
(1)
With respect to actions on contracts, the Tribal Court may be vested with
jurisdiction over an action on a contract:
(a)
to which the Tribe or a member of the Tribe is a party, which expressly
provides in writing that the Tribal Court has concurrent or exclusive
jurisdiction.
(b)
between the Tribe or a member of the Tribe and other parties or their
agents who are physically present on the Reservation when the contract
is made, and which is to be performed in part on the Reservation so long
as the contract does not expressly exclude jurisdiction of the Tribal
Court. For purposes of this section, the delivery of goods or the solicitation
of business on the Reservation does not constitute part performance sufficient
to confer jurisdiction.
(c)
to which the Tribe or a member of the Tribe is a party where more than
fifty percent of the services to be rendered are performed on the Reservation,
so long as the contract does not expressly exclude jurisdiction of the
Tribal Court.
(2)
With respect to actions in tort, the Tribal Court may be vested with jurisdiction
over an action arising out of:
(a)
an intentional tort, as defined by South Carolina law, committed on the
Reservation, in which recovery is sought for bodily injuries or damages
to tangible property located on the Reservation.
(b)
negligent tortious conduct occurring on the Reservation or conduct occurring
on the Reservation for which strict liability may be imposed, excluding,
however, accidents occurring within the right-of-way limits of a highway,
road, or other public easement owned or maintained by the State or its
subdivisions
or by the United States, which abuts or crosses the Reservation. However,
the action in tort involving a nonmember of the Tribe as defendant may
be removed to a state or federal court of appropriate jurisdiction if
the amount in controversy exceeds the jurisdictional limits then applicable
to magistrate's court in South Carolina.
(3)
The Tribal Court may be vested with exclusive jurisdiction over internal
matters of the Tribe.
(4)
The Tribal Court also may be vested with jurisdiction over domestic relations
where both spouses to the marriage are members of the Tribe and both reside
on the Reservation or last resided together on the Reservation before
the separation leading to their divorce.
(5)
The Tribal Court also may be vested with jurisdiction to enforce against
a business located on the Reservation and members or nonmembers residing
on the Reservation, tribal civil regulations regulating conduct on the
Reservation enacted pursuant to Section 10.2 or 17 of the Settlement Agreement.
The entity or person is charged with notice of the Tribe's regulations
governing conduct on the Reservation and is subject to the enforcement
of the regulations in the Tribal Court unless the Tribe specifically has
exempted the entity or person from any or all regulation or enforcement
in Tribal Court.
(B)
The original jurisdiction of the Tribal Court over the matters set forth
in subsections (A)(1)(b), (A)(1)(c), (A)(2), and (A)(4) must be concurrent
with the jurisdiction of the Court of Common Pleas of South Carolina,
the Family Court, and the United States District Court for South Carolina.
The original jurisdiction of the Tribal Court over the matters set forth
in subsection (A)(1)(a) must be concurrent or exclusive depending upon
the agreement of the parties. The original jurisdiction of the Tribal
Court over matters set forth in subsection (A)(3) must be exclusive. The
original jurisdiction of the Tribal Court over matters set forth in subsection
(A)(5) must be exclusive unless the Tribe has waived exclusive jurisdiction
as to any person or entity. As to all sections referred to in this subsection,
jurisdiction over appeals, if any, must be governed by subsection (D).
(C)
The Tribe may waive Tribal Court jurisdiction or the application of tribal
laws with respect to a person or firm residing, doing business, or otherwise
entering upon the Reservation or contracting with the Tribe. A member
of the Tribe also may waive Tribal Court jurisdiction or specify in the
contract the law of an appropriate jurisdiction to govern a commercial
transaction or the interpretation of a contract to which the member is
a party.
(D)(1)
All final judgments entered in actions tried in Tribal Court are subject
to an appeal to the Family Court, the Court of Common Pleas, or the United
States District Court, depending upon whether that court would have had
jurisdiction over the appealed matter had it been commenced in that court,
if all of the following circumstances exist:
(a)
A party to the suit is not a member of the Tribe;
(b)
The amount in controversy or the cost of complying with an equitable order
or decree exceeds the jurisdictional limits then applicable in the magistrates'
courts of South Carolina;
(c)
The subject matter of the suit does not fall within subsection (A)(1)(a)
if jurisdiction is exclusive or subsection (A)(3) or (A)(5). The Tribe
may enlarge the right of appeal to include other subject matters and members
of the Tribe, subject to rules and procedures the applicable court and
relevant state laws may provide.
(2)
In an appeal, the court, as appropriate, may:
(a)
enter judgment affirming the Tribal Court;
(b)
dismiss the case for lack of jurisdiction of the Tribal Court, but only
in those
cases where the Tribal Court first has addressed the issue of its jurisdiction;
(c)
reverse or remand the case for retrial or reconsideration in Tribal Court;
or
(d)
grant a trial de novo in its court.
(3)
In an appeal, a trial, or a trial de novo, the reviewing court shall apply
any regulation enacted pursuant to tribal authority.
(E)(1)
In cases subject to subsection (A)(2) or (D), all final judgments of the
Tribal Court must be given full faith and credit in the state court with
appropriate jurisdiction, and the Tribal Court shall grant full faith
and credit to state court final judgments.
(2)
In those cases which are not subject to subsection (A)(2) or (D), the
judgment must be reviewed by the state court in the manner provided in
the Uniform Arbitration Act, Section 15-48-10 et. seq. or, if appropriate,
by the federal court in the manner provided in the United States Arbitration
Act, 9 U.S.C. 1 et. seq.
(F)(1)
The Tribe may sue or be sued, in a court of competent jurisdiction. However,
the Tribe enjoys sovereign immunity including damage limits and, except
as provided in this subsection, immunity from seizure, execution, or encumbrance
of properties, to the same extent as the political subdivisions of the
State as provided in the South Carolina Tort Claims Act, Chapter 78 of
Title 15. With respect to nonconsumer liability based on contract, however,
the Tribe, in a written contract, may provide that it is immune from suit
on that contract as if there had been no waiver of sovereign immunity.
(2)
Notwithstanding the provisions of this subsection, the Tribe is subject
to suit as provided in Section 27-16-120(B).
(3)
The Tribe shall procure and maintain liability insurance with the same
coverage and limits as required of political subdivisions of the State
by Section 15-78-140(b).
(4)
An action alleging tortious conduct by an employee of the Tribe acting
within the scope of his duties which seeks money damages against the Tribe
must name only the Tribe as a party defendant.
(5)
A settlement or judgment in an action or a settlement of a claim filed
with the Tribe constitutes a complete bar to further action by the claimant
against the Tribe by reason of the same occurrence.
(6)
A claimant may file a verified claim for damages with the Tribe before
filing
suit but is not required to file the claim as a prerequisite to filing
suit.
(a)
The claim must set forth the circumstances which brought about the loss,
the extent of the loss, the time and the place the loss occurred, the
names of all witnesses, if known, and the amount of the loss sustained.
(b)
The Tribe shall designate an employee or office to accept the filing of
claims. Filing may be accomplished by receipt by the Tribe's designee
of certified mailing of the claims or by compliance with the provisions
of law relating to service of process.
(c)
If filed, the claim must be received within one year after the loss was
or should have been discovered.
(d)
The Tribe has one hundred eighty days from the date of the filing of the
claim in which to determine whether the claim is allowed or disallowed.
Failure to notify the claimant of action upon the claim within one hundred
eighty days after the filing of the claim is considered a disallowance
of the claim.
(e)
While the filing of the claim is not required as a prerequisite to suit,
if a claimant files a claim, he may not institute an action until after
the occurrence of the earliest of one of the following three events:
(i)
passage of one hundred eighty days from the filing of the claim with the
Tribe;
(ii)
Tribe's disallowance of the claim;
(iii)
Tribe's rejection of a settlement offer.
(7)
The provisions of the following sections of the South Carolina Tort Claims
Act apply to the Tribe to the same extent as they apply to the State and
its political subdivisions:
(a)
Section 15-78-100(c), joint tortfeasors;
(b)
Section 15-78-110, statute of limitations;
(c)
Section 15-78-170, survival actions;
(d)
Section 15-78-190, applicability of uninsured or underinsured defendant
insurance.
(8)
If the Tribe's insurance coverage is inadequate or unavailable to satisfy
a judgment within the limits of the Tort Claims Act, neither the judgment
nor any other process may be levied upon the corpus or principal of the
Tribal Trust Funds or upon property held in trust for the Tribe by the
United States. However, the Tribe or the Secretary of Interior shall honor
valid orders of a federal or state court which enters money judgments
for causes of action against the Tribe arising after the effective date
of this chapter, by making an assignment to the judgment creditor of the
right to receive income out of the next quarterly payment or payments
of income from the Tribal Trust Funds.
(G)
The Indian Child Welfare Act, 25 U.S.C. Section 1901 et seq., applies
to Catawba Indian Children as set forth in the federal implementing legislation.
(H)
If no Tribal Court is established by the Tribe, the State shall exercise
jurisdiction over all civil and criminal causes arising out of acts and
transactions occurring on the Reservation or involving members of the
Tribe. If the Tribe does establish a Tribal Court pursuant to Section
27-16-70(B) or 27-16-80(A), Section 27-16-70(B)(2) or 27-16-80 (B) governs
whether jurisdiction is exclusive or concurrent.
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