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Absentee-Shawnee Tribe of Indians of Oklahoma

 

Forcible Entry and Detainer

Section 101. Forcible Entry and Detention

Section 102. Powers of Tribal Court

Section 103. Extent of Jurisdiction

Section 104. Issuance and Return of Summons

Section 105. Service of Summons

Section 106. Constructive Service of Summons

Section 107. Answer or Affidavit by Defendant

Section 108. Trial by Tribal Court

Section 109. Procedure Where No Jury Available

Section 110. Attorney Fee

Section 111. Writ of Execution--Form--New Trial

Section 112. Stay of Execution

Section 113. Forcible Entry and Detainer Action on Small Cairns Docket

Section 114. Affidavit Form

Section 115. Summons--Form

AST FORC ENTRY Section 101
Section 101. Forcible Entry and Detention

The Tribal Court shall have jurisdiction to try all actions for the forcible entry and detention, or detention only, of real property, and claims for the collection of rent or damages to the premises may be included in the same action, but other claims may not be included in the same action. A judgment in an action brought under this ordinance shall be conclusive as to any issues adjudicated therein, but it shall not be a bar to any other action brought by either party.

Absentee Shawnee Forcible Entry and Detainer Section 101, AST FORC ENTRY Section 101

 

 

 




AST FORC ENTRY Section 102
Section 102. Powers of Tribal Court

The Tribal Court shall have power to inquire, in the manner hereinafter directed, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having a lawful and peaceable entry into land or tenements, unlawfully and by force hold the same, and if it be found, upon such inquiry, that an unlawful and forcible entry has been made, or that the same lands and tenements are held unlawfully, then the court shall cause the party complaining to have restitution thereof.

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AST FORC ENTRY Section 103
Section 103. Extent of Jurisdiction

Proceedings under this ordinance may be had in all cases against tenants holding over their terms and, incident thereto, to determine whether or not tenants are holding over their terms; in sales of real estate on executions, orders or other judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree, by virtue of which such sale was made; in sales by executors, administrators, guardians and on partition, where any of the parties to the partition were in possession at the commencement of the suit, after such sales, so made, on execution or otherwise, shall have been examined by the Tribal Court, and the same adjudged valid; and in the cases where the defendant is a settler or occupier of lands and tenements without color of title, and to which the complainant has the right of possession. This section is not to be construed as limiting the provisions of the preceding section.

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AST FORC ENTRY Section 104
Section 104. Issuance and Return of Summons

The summons shall be issued and returned as in other cases, except that it shall command the Chief of the Tribal Police or other person serving it, to summon the defendant to appear for, trial at the time and place specified therein, which time shall be not less than five (5) days nor more than fifteen (15) days from the date that the summons is issued. The summons shall apprise the defendant of the nature of the claim that is being asserted against him; and there shall be endorsed upon the summons the relief sought and the amount for which the plaintiff will take judgment if the defendant fails to appear. In all cases, pleadings may be amended to conform to the evidence.

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AST FORC ENTRY Section 105
Section 105. Service of Summons

The summons may be served as in other cases except that such service shall be at least three (3) days before the day of trial, and the return day shall not be later than the day of trial, and it may also be served by leaving a copy thereof with some person over fifteen (15) years of age, residing on the premises, at least three (3) days before the day of trial; or, if service cannot be made by the exercise of reasonable diligence on the tenant or on any person over the age of fifteen (15) years residing on the premises, the same may be served by registered mail, with return receipt, postmarked at least three (3) days before the date of trial.

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AST FORC ENTRY Section 106
Section 106. Constructive Service of Summons

If, in the exercise of reasonable diligence, service cannot be made upon the defendant personally nor upon any person residing upon the premises over fifteen (15) years of age, then in lieu of service by registered mail, service may be obtained for the sole purpose of adjudicating the right to restitution of the premises by the Tribal Police's posting said summons conspicuously on the building on the premises, and, if there by no building on said premises, then by posting the same at some conspicuous place on the premises sought to be recovered at least five (5) days prior to the date of trial, and by the claimant's mailing a copy of said summons to the defendant at his last known address by registered or certified mail at least seven (7) days prior to said date of trial. Such service shall confer no jurisdiction upon the Tribal Court to render any judgment against the defendant for the payment of money nor for any relief other than the restoration of possession of the premises to the claimant. Such service shall not be rendered ineffectual by the failure of the defendant to actually receive or sign a return receipt for such mailed process.

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AST FORC ENTRY Section 107
Section 107. Answer or Affidavit by Defendant

(a) In all cases in which the defendant wishes to assert title to the land or that the boundaries of the land are in dispute, he shall, before the time for the trial of the cause, file a verified answer or an affidavit which contains a full and specific statement or the facts constituting his defense of affidavit, the action shall proceed as one in ejectment before the Tribal Court.

If the defendant files an affidavit he shall file answer within ten (10) days after the date the affidavit is filed.

(b) In all cases in which the cause of action is based on an asserted breach of a lease by the defendant, or the termination or expiration of a lease under which the defendant claims an interest in the property in a verified answer or affidavit, the plaintiff may proceed with the forcible entry and detainer action instead of an ejectment action.

(c) No answer by the defendant shall be required before the time for trial of the cause.

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AST FORC ENTRY Section 108
Section 108. Trial by Tribal Court

All cases for forcible entry and detainer or detainer only shall be tried by the Tribal Court without a jury unless the rent and damages prayed for exceeds ten thousand dollars ($10,000). Any or all cases under this ordinance may be referred to a Court Referee by the Tribal Court.

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AST FORC ENTRY Section 109
Section 109. Procedure Where No Jury Available

If a jury be properly demanded by either party, and no jury is available from the general panel, the judge shall immediately direct that an open venire be issued to the Chief of the Tribal Police or one of his deputies, for such number of jurors as may be deemed necessary, to be selected without resorting to the jury wheel. The persons selected shall have the qualifications of jurors.

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AST FORC ENTRY Section 110
Section 110. Attorney Fee

A reasonable attorney fee shall be allowed by the Tribal Court to the prevailing party.

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AST FORC ENTRY Section 111
Section 111. Writ of Execution--Form--New Trial

If judgment be for plaintiff, the Tribal Court shall, at the request of the plaintiff, his agent or attorney, issue a writ of execution thereon, which shall be in substantially the following form:

[HEADING]

The Absentee Shawnee Tribe of Oklahoma to:

The Chief of the Tribal Police:

Whereas, in a certain action for the forcible entry and detention (or for the forcible detention as the case may be) of the following described premises, to wit:____ tried before me, wherein, ____ was plaintiff, and ____ was defendant, judgment was rendered on the ____ day of____, 19____, that the plaintiff have restitution of said premises; and also that he recover rent, attorney fees and costs in the sum of ____; you, therefore, are hereby commanded to cause the defendant to be forthwith removed from said premises and the said plaintiff to have restitution of the same; also that you levy on the goods and chattels of the said defendant, and make the cost aforesaid, and all accruing costs, and of this writ, make legal service and due return.

Witness my hand this ____ day of____, 19____

____

A. B. Judge

A motion for a new trial may be filed only within three (3) days of judgment but shall not operate to stay execution.

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AST FORC ENTRY Section 112
Section 112. Stay of Execution

If no supersedeas bond be posted within the time provided herein, the officer shall forthwith restore the plaintiff to possession of the premises by executing the writ prescribed in the preceding section and shall make levy to collect the amount of the judgment and all accruing costs. The officer's return shall be as upon other executions.

The defendant shall have three (3) days after the date of judgment to post supersedeas bond conditioned as provided by law. This time limit may be enlarged by a trial judge's order to not more than ten (10) days after the date of judgment. The posting of a supersedeas bond shall not be construed to relieve the defendant of his duty to pay current rent as it becomes due while the appeal is pending. The rent shall be paid into the Tribal Court Clerk's office together with poundage. If there be controversy as to the amount of rent, the judge shall determine by order how much shall be paid in what time intervals. Withdrawal by the plaintiff of rent deposited in the Tribal Court Clerk's office pending appeal shall not operate to estop him from' urging on appeal his right to the possession of the premises. Failure to pay current rentals while the appeal is pending shall be considered as abandonment of the appeal.

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AST FORC ENTRY Section 113
Section 113. Forcible Entry and Detainer Action on Small Cairns Docket

An action for forcible entry and detainer brought pursuant to procedures prescribed otherwise in this ordinance standing alone and when joined with a claim for recovery of rent, damages to the premises, where the total recovery sought, exclusive of attorney's fees and other court costs, does not exceed the jurisdictional amount for the “small claims court”, shall be placed on the small claims docket of the Tribal Court. The Tribal Court Clerk may in connection with such actions prepare the affidavit, by which the action is commenced, and the summons and generally assist the unrepresented plaintiffs to the same extent that he is now required so to do under the Small Claims Procedure Ordinance.

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AST FORC ENTRY Section 114
Section 114. Affidavit Form

The actions for unlawful entry and detainer standing alone or when joined with a claim for collection of rent or damages to the premises, or both, shall be commenced by filing an affidavit in substantially the following form with the Clerk of the Tribal Court:

IN THE TRIBAL COURT ABSENTEE SHAWNEE TRIBE OF OKLAHOMA

____________________________________

)

 

 

Plaintiff,

)

 

 

vs.

 

)

Case No. CIV-

 

____________________________________

)

 

 

Defendant.

)

 

 

 

FORCIBLE ENTRY AND DETAINER AFFIDAVIT

Absentee Shawnee Tribe ) ss.

____, being duly sworn, deposes and says:

The defendant resides at ____, and defendant's mailing address is ____.

The defendant is indebted to the plaintiff in the sum of $____ for rent and for the further sum of $____ for damages to the premises rented by the defendant; the plaintiff has demanded payment of said sum(s) but the defendant refused to pay the same and no part of the amount sued for herein has been paid,

and/or

The defendant is wrongfully in possession of certain real property within the Tribal jurisdiction described as ____; the plaintiff is entitled to possession thereof and has made demand on the defendant to vacate the premises, but the defendant refused to do so.

____

Plaintiff

Subscribed and sworn to before me this ____ day of ____, 19____

____

Notary Public (Clerk or Judge)

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AST FORC ENTRY Section 115
Section 115. Summons--Form

The summons to be issued in an action for forcible entry and detainer shall be in the following form:

SUMMONS

The [Name of Tribes]:

To the within named defendant:

You are hereby directed to relinquish immediately to the plaintiff herein total possession of the real property described as ____ or to appear and show cause why you should be permitted to retain control and possession thereof.

This matter shall be heard at ____ [Name or address of Tribal Courthouse], in ____, [Town], [Name of Tribe], at the hour of ____ o'clock on the ____ day of ____ (month), 19 ____, or at the same time and place three (3) days after service hereof, whichever is the latter. (This date shall be not less than five (5) days from the date summons is issued.) You are further notified that if you do not appear on the date shown, judgment will be given against you as follows:

For the amount of the claim for deficient rent and/or damages to the premises, as it is stated in the affidavit of the plaintiff and for possession of the real property described in said affidavit, whereupon a writ of execution shall issue directing the Tribal Police to remove you from said premises and take possession thereof.

In addition, a judgment for costs of the action, including attorney's fees and other costs, may also be given.

Dated this ____ day of____, 19____.

____

Clerk of the Tribal Court (of Judge)

____

Plaintiff or Attorney

____

Address

____

Telephone Number

Absentee Shawnee Forcible Entry and Detainer Section 115, AST FORC ENTRY Section 115

 

 

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