Civil
Procedure - Chapters 5-8
Civil
Procedure - Chapters 9-16
[TITLE II - LAW AND ORDER CODE - SUBPART B] - CIVIL PROCEDURE
- CH. 1-4
GENERAL PROVISIONS
Section 1. Scope of This Act
This Act
governs the procedure in the Courts of the Tribes in all suits of a
civil nature whether cognizable as cases at law or in equity except
where a law or ordinance of the Tribes specifies a different procedure.
These rules shall be construed to secure the just, speedy, and inexpensive
determination of every action.
Section 2. Jurisdiction in Civil Actions
The Tribal
Court may exercise jurisdiction over any person or subject matter on
any basis consistent with the Constitution of the Tribes, the Indian
Civil Rights Act of 1968, as amended, and any specific restrictions
or prohibitions contained in Federal law.
Section 3. Title of this Act
This Act
shall be known as the Code of Civil Procedure.
Section 4. Force of the Tribal Common Law
The customs
and traditions of the Tribes, to be known as the Tribal Common Law,
as modified by the Tribal Constitution and statutory law, judicial decisions,
and the condition and wants of the people, shall remain in full force
and effect within the Tribal jurisdiction in like force with any statute
of the Tribes insofar as the common law is not so modified, but all
Tribal statutes shall be liberally construed to promote their object.
Section 5. Definitions
Unless
a different meaning is clearly apparent from the context, the term:
(a)
"Chief Executive Officer" shall mean the Chairperson of the Cheyenne-Arapaho
Tribes of Oklahoma, unless a different meaning is attributed to this
term in an agreement with another Indian Tribes which provides for
the operation of an intertribal Court.
(b)
"other Indian Tribe" shall mean any Federally recognized
Indian Tribe other than these Tribes.
(c)
"real property" or "non-trust interest in
real property" shall mean any interest in real property within the
Tribal jurisdiction other than the Indian trust title held by the
United States for the use of any Indian or Indian Tribe, or the fee
title to any land held by any Indian or Indian Tribe which is subject
to a restriction upon alienation imposed by the United States. Nothing
in this Act shall be construed as affecting or attempting to affect
the trust or restricted title to trust or restricted Indian land.
(d)
"reservation" means the last recognized reservation boundaries of
the Tribes irrespective of whether they have been disestablished.
(e)
"Business Committee" means the Business Committee of the Cheyenne-Arapaho
Tribes of Oklahoma unless a different meaning is attributed to the
term by an agreement with another Indian Tribe providing for the establishment
of an intertribal Court.
(f)
"Tribal jurisdiction" means all Indian Country as defined in 18 U.S.C.
§1151 whether within or without the reservation which is subject
to the jurisdiction of the Tribes.
(g)
"Attorney General" means the Tribal Attorney, Tribal Court Prosecutor
or other appropriate legal advisor as designated by the Business Committee.
Section 6. No Effect Upon Sovereign Immunity
Nothing
in this Act contained shall be construed to be a waiver of the sovereign
immunity of the Tribes, its officers, employees, agents, or political
subdivisions or to be a consent to any suit beyond the limits now or
hereafter specifically stated by Tribal law.
Section 7. Declaratory Judgment
The Court,
in any actual controversy before it, shall have the authority to declare
the rights of the parties in that suit in order to resolve disputes
even though a money judgment or equitable relief is not requested or
not due. In particular, the Court may issue its declaratory judgment
recognizing Tribal common law marriages and divorces, and provide for
the custody of children and division of property in such divorces.
Section 8. Court Costs Not Charged to Tribes
The Tribes,
its officers, employees, agents, or political subdivisions acting in
their official capacity shall not be charged or ordered to pay any Court
costs or attorney fees under this Act, but if these entities prevail
in the action, the cost which such entities would have been required
to pay may be charged as costs to the losing party as in other cases.
Section 9. Effect of Previous Court Decisions
All previous
decisions of the Courts of the Tribes, insofar as they are not inconsistent
with this Act, shall continue to have precedential value in the Tribal
Court.
Section 10. C.F.R Not Applicable
Any and
all provisions of Part 11 of Title 25 of the Code of Federal Regulations
as presently or hereafter constituted are declared to be not applicable
to the Tribes.
Section 11. Laws Applicable to Civil Actions
(a) In
all civil cases, the Tribal District Court shall apply:
(1)
The Constitution, Statutes, and Common Law of the Tribes not prohibited
by applicable Federal law, and, if none, then
(2)
The Federal law including Federal common law, and, if none, then
(3)
The laws of any State or other jurisdiction which the Court
finds to be compatible with the public policy and needs of the Tribes.
(b) No
Federal or state law shall be applied to a civil action pursuant to
paragraphs (2) and (3) of Subsection (a) of this Section if such law
is inconsistent with the laws of the Tribes or the public policy of
the Tribes.
(c) Where
any doubt arises as to the customs and usages of the Tribes, the Court,
either on its own motion or the motion of any party, may subpoena
and request the advice of elders and councilors familiar with those
customs and usages.
Section 12. Court Action When No Procedure Provided
In any
case in which no specific procedure is provided for by Tribal law or
Court rule the Court may proceed in any lawful fashion not inconsistent
with Tribal law, the rules of the Court, or the Indian Civil Rights
Act.
CHAPTER 1 - COMMENCEMENT OF ACTION: PLEADINGS, MOTIONS AND ORDERS
Section 101. Commencement of Action
A civil
action is commenced by filing a complaint with the Court.
Section 102. One Form of Action
There shall
be one form of action to be known as a "civil action".
Section 103. "Claim" Defined
As used
in this Act, the term "claim means any right of action which may
be asserted in a civil action or proceeding and includes, but is not
limited to, a right of action created by statute.
Section 104. Notice of Pendency of Action
Upon the
filing of a complaint in the District Court, the action is pending so
as to charge third persons with notice of its pendency. While an action
is pending, no third person shall acquire an interest in the subject
matter of the suit as against the plaintiff's title, except as provided
in Sections 105 and 106 of this Act.
Section 105. Notice of Pendency Contingent Upon Service
Notice
of the pendency of an action shall have no effect unless service of
process is made upon the defendant within one hundred twenty (120) days
after the filing of the petition.
Section 106. Special Notice for Actions Pending in Other Courts
No action
pending in either state or federal court, or the court of any other
Indian Tribe, shall constitute notice with respect to any real property
or personal property located within the Tribal jurisdiction until a
notice of pendency of the action, identifying the case and the court
in which it is pending and giving the legal description of the land
affected, or the description of the personal property and its location
(if known) affected by the action, is filed of record in the office
of the Clerk of the Tribal Court.
Section 107. Pleadings Allowed; Form of Motions
(a)
Pleadings. There shall be a complaint and an answer; a reply
to a counterclaim denominated as such; an answer to a cross-claim,
if the answer contains a cross-claim; a third-party complaint, if
a person who was not an original party is summoned under the provisions
of Section 117; and a third party answer, if a third-party complaint
is served. No other pleading shall be allowed, except that the Court
may order a reply to an answer or a third party answer.
(b)
Motions and Other Papers.
(1)
An application to the Court for an order shall be by motion which,
unless made during a hearing or trial, shall:
(i) be made in writing;
(ii) state with particularity the grounds therefore; and
(iii)
set forth the relief or order sought.
The
requirement of a writing is fulfilled if the motion is stated in
a written notice of the hearing of the motion.
(2)
The rules applicable to captions, signing, and other matters of
form of pleadings apply to all motions and other papers provided
for by these rules.
(3)
All motions shall be signed in accordance with Section 111 of this
Act.
Section 108. General Rules of Pleading
(a)
Claims for Relief. A pleading which sets forth a claim for
relief, whether an original claim, counterclaim, crossclaim, or third-party
claim, shall contain (1) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (2) a demand for
judgment for the relief to which he deems himself entitled. Relief
in the alternative or of several different types may be demanded.
(b)
Defenses; Form of Denials. A party shall state in short and plain
terms his defenses to each claim asserted and shall admit or deny
the averments upon which the adverse party relies. Denials shall fairly
meet the substance of the averments denied. He may make his denials
as specific denials of designated averments or paragraphs, or he may
generally deny all the averments except such designated averments
or paragraphs as he expressly admits. When a pleader intends in good
faith to deny only a part or a qualification of an averment, he shall
specify so much of it as is true and material and shall deny only
the remainder. When he intends to controvert all averments in a pleading,
including averments of the grounds upon which the Court's jurisdiction
depends, if any, he may do so by general denial subject to the obligation
set forth in Section 111. If he is without knowledge or information
sufficient to form a belief as to the truth of an averment, he shall
so state and this has the effect of a denial.
(c)
Affirmative Defenses. In pleading to a preceding pleading,
a party shall set forth affirmatively each of the following defenses
relied upon:
(1)
Accord and satisfaction;
(2)
Arbitration and award;
(3)
Assumption of risk;
(4)
Contributory negligence;
(5)
Discharge in bankruptcy;
(6)
Duress;
(7)
Estoppel;
(8)
Failure of consideration;
(9)
Fraud;
(10)
Illegality;
(11)
Injury by fellow servant;
(12)
Laches;
(13)
License;
(14)
Payment;
(15)
Release;
(16)
Res judicata;
(17)
Statute of frauds;
(18)
Statute of limitations;
(19)
Waiver;
(20)
Any other matter constituting an avoidance or affirmative defense.
When
a party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the Court on terms, if justice so requires,
shall treat the pleading as if there had been a proper designation.
(d) Effect
of Failure to Deny. Averments in a pleading to which a
responsive pleading is required, other than those as to the amount
of damage, are admitted when not denied in the responsive pleading.
Averments in a pleading to which no responsive pleading is required
or permitted shall be taken as denied or avoided.
(e)
Pleading to Be Concise and Direct; Consistency.
(1)
Each averment of a pleading shall be simple, concise, and direct.
No technical forms of pleadings or motions are required.
(2)
A party may set forth and at trial rely upon two or more statements
of a claim or defense alternatively or hypothetically, either in
one count or defense or in separate counts or defenses. When two
or more statements are made in the alternative and one of them if
made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative
statements. A party may also state as many separate claims or defenses
as he has regardless of consistency and whether based on legal,
equitable, or other grounds. All statements shall be made subject
to the obligations set forth in Section 111 of this Act.
(f)
Construction of Pleadings. All pleadings shall be liberally
construed so as to do substantial justice.
Section 109. Pleading Special Matters
(a)
Capacity. It is not necessary to aver or assert the capacity
of a party to sue or be sued or the authority of a party to sue or
be sued in a representative capacity or the legal existence of an
organized association of persons that is made a party, except to the
extent required to show the jurisdiction of the Court, if necessary.
When a party desires to raise an issue as to the legal existence of
any party or the capacity of any party to sue or be sued or the authority
of a party to sue or be sued in a a representative capacity, he shall
do so by specific negative averment, which shall include such supporting
particulars as are peculiarly within the pleader's knowledge, and
that party shall have the burden of proof on that issue.
(b)
Fraud, Mistake, Condition of the Mind. In all averments of
fraud or mistake, the circumstances constituting fraud or mistake
shall be stated with particularity. Malice, intent, knowledge, and
other condition of mind of a person may be averred generally.
(c) Conditions
Precedent. In pleading the performance or occurrence of conditions
precedent, it is sufficient to aver generally that all conditions
precedent have been performed or have occurred. A denial of performance
or occurrence of conditions precedent shall be made specifically and
with particularity.
(d)
Official Document or Act. In pleading an official document
or official act it is sufficient to aver that the document was issued
or the act done in compliance with law.
(e) Judgment.
In pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or of a board or officer, it
is sufficient to aver the judgment or decision without setting forth
matter showing jurisdiction to render it.
(f)
Time and Place. For the purpose of testing the sufficiency
of a pleading, averments of time and place are material and shall
be considered like all other averments of material matter.
(g)
Special Damage. When items of special damage are claimed, they
shall be specifically stated, but specific amounts need not be alleged
in order to obtain judgment in the amount to which the party is entitled.
Section 110. Form of Pleadings, Motions, and Briefs
(a)
Caption; Names of Parties. Every pleading shall contain a caption
setting forth the name of the Court, the title of the action, the
file number, and a designation of the type of pleading in the terms
expressed in Section 107(a). In the complaint the title of the action
shall include the names of all the parties, but in other pleadings
it is sufficient to state the name of the first party on each side
with an appropriate indication of other parties. In the initial third
party complaint, counterclaim, cross-claim, motion and petition in
intervention or a pleading by a party suing or being sued in a representative
capacity, appropriate designations of all affected parties shall be
made and their names stated. Thereafter, papers relating to such matters
may contain only the name of the first party in each category with
an appropriate indication of other parties.
(b)
Paragraphs; Separate Statements. All averments of claim or
defense shall be made in numbered paragraphs, the contents of each
of which shall be limited as far as practicable to a statement of
a single set of circumstances; and a paragraph may be referred to
by number in all succeeding pleadings, or motions, or briefs. Each
claim founded upon a separate transaction or occurrence and each defense
other than denials shall be stated in a separate count or defense
whenever a separation facilitates the clear presentation of the matters
set forth.
(c)
Adoption by Reference; Exhibits. Statements in a pleading,
or motion, or brief may be adopted by reference in a different part
of the same pleading or in another pleading or in any motion or brief.
A copy of any written instrument which is an exhibit to a pleading,
or a motion, or a brief is a part thereof for all purposes.
Section 111. Signing of Pleadings
Every pleading
of a party represented by an licensed attorney or advocate shall be
signed by at least one attorney or advocate of record in his individual
name, whose address and telephone number shall be stated. A party who
is not represented by an attorney or advocate shall sign his pleading
and state his address and telephone number. Except when otherwise specifically
provided by Rule or statute, pleadings need not be verified or accompanied
by affidavit. The English and American Common Law Rule in equity that
the averments of an answer under oath must be overcome by the testimony
of two witnesses or of one witness sustained by corroborating circumstances
is not applicable in the Tribal Courts. The signature of an attorney
or advocate constitutes a certificate by him that he has read the pleading;
that to the best of his knowledge, information, and belief there is
good ground to support it; and that it is not interposed for delay.
If a pleading is not signed or is signed with intent to defeat the purpose
of this Section it may be stricken as sham and false and the action
may proceed as though the pleading had not been served. For a willful
violation of this Section an attorney or advocate may be subjected to
appropriate disciplinary action. Similar action may be taken if scandalous
or indecent matter is inserted.
Section 112. Defenses and Objections - When and How Present -
By Pleadings or Motions - Motion for Judgment on the Pleadings
(a)
When Presented.
(1)
A defendant shall serve his answer within 20 days after the service
of the summons and complaint upon him, except when service is made
under any one of Sections 216, 218 or 221 of this Act and a different
time is prescribed in the order of Court, or under the statute of
the Tribes.
A
party served with a pleading stating a cross-claim against him shall
serve an answer thereto within 20 days after the service upon him.
The plaintiff shall serve his reply to a counterclaim in the answer
within 20 days after service of the answer, or, if a reply is ordered
by the Court, within 20 days after service of the order unless the
order otherwise directs. The Tribes or an officer or agency thereof
shall serve an answer to the complaint or to a cross-claim, or a
reply to a counterclaim, within 60 days after the service upon the
Attorney General (or the Chief Executive Officer of the Tribes if
there is no Attorney General) of the pleading in which the claim
is asserted, provided that no default judgment shall be entered
against the Tribes, and upon affidavit of the Chief Executive Officer
of the Tribes that the Tribes have no attorney but that an attorney
contract is pending approval with the Bureau of Indian Affairs,
the Court shall allow the Tribes to answer within twenty (20) days
after approval of the Attorney contract or within sixty (60) days
after service, whichever is later.
The
service of a motion permitted under this Section alters these periods
of time as follows, unless a different time is fixed by order of
the Court: (1) if the Court denies the motion or postpones its disposition
until the trial on the merits, the responsive pleading shall be
served within 10 days after notice of the Court's action; (2) if
the Court grants a motion for a more definite statement the responsive
pleading shall be served within 10 days after the service of the
more definite statement.
(2)
Within the time in which an answer may be served, a defendant may
file any entry of appearance and reserve twenty (20) additional
days to answer or otherwise defend. Any entry of appearance shall
extend the time to respond twenty (20) days from the last date for
answering and is a waiver of all defenses numbered 2, 3, 4, 5, and
9 of paragraph (b) of this Section, provided, that a waiver
of sovereign immunity shall not be implied under defense numbered
9 of paragraph (b) of this Section since a defense based upon sovereign
immunity is a defense to the subject matter jurisdiction of the
Court and not a defense to the parties capacity to be sued.
(b)
How Presented. Every defense, in law or fact, to a claim for
relief in any pleading, whether a claim, counterclaim, cross-claim,
or third-party claim, shall be asserted in the responsive pleading
thereto if one is required, except that the following defenses may
at the option of the pleader be made by motion:
(1)
Lack of jurisdiction over the subject matter;
(2)
Lack of jurisdiction over the person;
(3)
Improper venue or forum non convenieus;
(4)
Insufficiency of process;
(5)
Insufficiency of service of process;
(6)
Failure to state a claim upon which relief can be granted;
(7)
Failure to join a party under Section 303;
(8)
Another action pending between the same parties for the same
claim;
(9)
Lack of capacity of a party to be sued; and
(10)
Lack of capacity of a party to sue.
A motion
making any of these defenses shall be made before pleading if a further
pleading is permitted. No defense or objection is waived by being
joined with one or more other defenses or objections in a responsive
pleading or motion. If a pleading sets forth a claim for relief to
which the adverse party is not required to serve a responsive pleading,
he may assert at the trial any defense in law or fact to that claim
for relief. If, on a motion asserting the defense numbered (6) to
dismiss for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to and
not excluded by the Court, the motion shall be treated as one for
summary judgment and disposed of as provided in Section 905, and all
parties shall be given reasonable opportunity to present all materials
made pertinent to such a motion by Section 905. Every motion to dismiss
shall be accompanied by a concise brief in support of that motion
unless waived by order of the Court.
(c)
Motion for Judgment on the Pleadings. After the pleadings are
closed but within such time as not to delay the trial, any party may
move for judgment on the pleadings. If, on a motion for judgment on
the pleadings, matters outside the pleadings are presented to and
not excluded by the Court, the motion shall be treated as one for
summary judgment and disposed of as provided in Section 905, and all
parties shall be given reasonable opportunity to present all materials
made pertinent to such a motion by Section 905. Every motion for judgment
on the pleadings shall be accompanied by a concise brief in support
of that motion unless waived by order of the Court.
(d)
Preliminary Hearings. The defenses specifically enumerated
(1)-(10) in subdivision (b) of this Section, whether made in a pleading
or by motion, and the motion for judgment mentioned in subdivision
(c) of this Section shall be heard and determined before trial on
application of any party, unless the Court orders that the hearing
and determination thereof be deferred until the trial.
(e)
Motion for More Definite Statement. If a pleading to
which a responsive pleading is permitted is so vague or ambiguous
that a party cannot reasonably be required to frame a responsive pleading,
he may move for a more definite statement before interposing his responsive
pleading. The motion shall point out the defects complained of and
the details desired. If the motion is granted and the order of the
Court is not obeyed within 10 days after notice of the order or within
such other time as the Court may fix, the Court may strike the pleading
to which the motion was directed or make such order as it deems
just. Such motions are not favored.
(f) Motion
to Strike. Upon motion made by a party before responding
to a pleading or, if no responsive pleading is permitted by this Act,
upon motion made by a party within 20 days after the service of the
pleading upon him or upon the Court's own initiative at any time,
the Court may order stricken from any pleading any insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter. If,
on a motion to strike an insufficient defense, matters outside the
pleadings are presented to and not excluded by the Court, the
motion shall be treated as one for partial summary judgment and all
parties shall be given reasonable opportunity to present all materials
made pertinent to such a motion by the rules relating to summary judgment.
(g)
Consolidation of Defenses in Motion. A party who makes a
motion under this Section may join with it any other motions herein
provided for and then available to him. If a party makes a motion
under this Section but omits therefrom any defense or objection then
available to him which this Section permits to be raised by motion,
he shall not thereafter make a motion based on the defense or objection
so omitted, except a motion as provided in subdivision (h) (2) hereof
on any of the grounds there stated. The Court may, in its discretion,
permit a party to amend his motion by stating additional defenses
or objections at any time prior to a decision on the motion.
(h)
Waiver or Preservation of Certain Defenses.
(1)
A defense of lack of jurisdiction over the person, improper venue
or forum non convenieus, insufficiency of process, insufficiency
of service of process or lack of capacity of a party to sue is waived
(A) if omitted from a motion in the circumstances described in subdivision
(g), or (B) if it is neither made by motion under this Section nor
included in a responsive pleading or an amendment thereof permitted
by Section 118(a) to be made as a matter of course or (C) if a permissive
counterclaim is filed pursuant to Section 114(b).
(2)
A defense of failure to state a claim upon which relief can be granted,
a defense of failure to join a party indispensable under Section
303, and an objection of failure to state a legal defense to a claim,
and a defense of another action pending may be made in any pleading
permitted or ordered under Section 107(a), or by motion for judgment
on the pleadings, or at the trial on the merits.
(3)
Whenever it is determined, upon suggestion of the parties or otherwise
that the Court lacks jurisdiction of the subject matter, the Court
shall dismiss the action.
Section 113. Final Dismissal on Failure to Amend
On granting
a motion to dismiss a claim for relief, the Court shall grant leave
to amend if the defect can be remedied and shall specify the time within
which an amended pleading shall be filed which should normally be ten
(10) days absent good cause for a shorter or longer time. If the amended
pleading is not filed within the time allowed, final judgment of dismissal
with prejudice shall be entered on motion except in cases of excusable
neglect. In such cases amendment shall be made by the party in default
within a time specified by the Court for filing an amended pleading.
Within the time allowed by the Court for filing an amended pleading,
a plaintiff may voluntarily dismiss the action without prejudice.
Section 114. Counterclaim and Cross-Claim
(a)
Compulsory Counterclaims. A pleading shall state as a counterclaim
any claim which at the time of serving the pleading the pleader has
against any opposing party, if it arises out of the transaction or
occurrence that is the subject matter of the opposing party's claim
and does not require for its adjudication the presence of third parties
of whom the Court cannot acquire jurisdiction. But the pleader need
not state the claim if
(1)
at the time the action was commenced the claim was the subject of
another pending action or
(2)
the opposing party brought suit upon his claim by attachment or
other process by which the Court did not acquire jurisdiction to
render a personal judgment on that claim, and the pleader is not
stating any other counterclaim under this Section. A party pleading
a compulsory counterclaim does not thereby waive any defenses the
pleader may otherwise have which are otherwise properly raised.
(b)
Permissive Counterclaims. A pleading may state as a counterclaim
any claim against an opposing party not arising out of the transaction
or occurrence that is the subject matter of the opposing party's claim.
(c)
Counterclaim Exceeding Opposing Claim. A counterclaim may or
may not diminish or defeat the recovery sought by the opposing party.
It may claim relief exceeding in amount or different in kind from
that sought in the pleading of the opposing party.
(d)
Counterclaim Against the Tribes. This Act shall not be construed
to enlarge beyond the limits now fixed by law the right to assert
counterclaims or to claim credits against the Tribes or an officer
or agency thereof. A compulsory counterclaim does not waive the defense
of sovereign immunity when made by the Tribes or an officer or an
agency thereof. A permissive counterclaim waives the defense of sovereign
immunity for the purpose of determining the permissive counterclaim
stated by the Tribes, their officer, or agency, but does not waive
such defense for any other purpose.
(e)
Counterclaim Maturing or Acquired After Pleading. A claim which
either matured or was acquired by the pleader after serving his
pleading may, with the permission of the Court, be presented as a
counterclaim by supplemental pleading.
(f)
Omitted Counterclaim. When a pleader fails to set up a counterclaim
through oversight, inadvertence, or excusable neglect, or when justice
requires, he may by leave of Court set up the counterclaim by amendment,
except that when such amendment is served within the time otherwise
allowed for amendment without leave of the Court by Section 118(a)
of this Act, he may set up such counterclaim by amendment without
leave of the Court.
(g) Cross-Claim
Against Co-party. A pleading may state as a cross- claim any claim
by one party against a CO-party arising out of the transaction or
occurrence that is the subject matter either of the original action
or of a counterclaim therein or relating to any property that is the
subject matter of the original action. Such cross-claim may include
a claim that the party against whom it is asserted is or may be liable
to the cross-claimant for all or part of a claim asserted in the action
against the cross-claimant.
(h) Joinder
of Additional Parties. Persons other than those made parties to
the original action may be made parties to a counterclaim or cross-claim
in accordance with the provisions of Sections 303 and 304.
(i) Separate
Trials; Separate Judgments. If the Court orders separate trials
as provided in Section 706(b), judgment on a counterclaim, cross-claim,
or third party claim may be rendered in accordance with the terms
of Section 901(b) when the Court has jurisdiction so to do, even if
the claims of the opposing party have been dismissed or otherwise
disposed of.
Section 115. Counterclaim: Effect of the Statutes of Limitation
(a) Where
a counterclaim and the claim of the opposing party arise out of the
same transaction or occurrence, the counterclaim shall not be barred
by a statute of limitation notwithstanding that it was barred at the
time the petition was filed, and the counterclaimant shall not be
precluded from recovering an affirmative judgment.
(b) Where
a counterclaim and the claim of the opposing party:
(1)
Do not arise out of the same transaction or occurrence; and
(2)
Both claims are for money judgments; and
(3)
Both claims had occurred before either was barred by a statute of
limitation; and
(4)
The counterclaim is barred by a statute of limitation at the time
that it is asserted, whether in an answer or an amended answer,
the counterclaim may be asserted only to reduce the opposing party's
claim.
(c) Where
a counterclaim was barred by a statute of limitation before the claim
of the opposing party arose, the barred counterclaim cannot be used
for any purpose.
Section 116. Counterclaims Against Assigned Claims
A party,
other than a holder in due course, who acquired a claim by assignment
or otherwise, takes the claim subject to any defenses or counterclaims
that could have been asserted against the person from whom he acquired
the claim, but the recovery on a counterclaim may be asserted against
the assignee only to reduce the recovery of the opposing party.
Section 117. Third-Party Practice
(a) When
Defendant May Bring in Third Party. At any time after commencement
of the action a defending party, as a third-party plaintiff, may cause
a summons and complaint to be served upon a person not a party to
the action who is or may be liable to him for all or part of the plaintiff's
claim against him, or who is or may be liable to him on a claim arising
out of the transaction or occurrence that is the subject matter of
any one or more of the claim(s) being asserted against him. The third-party
plaintiff need not obtain leave to make the service if he files the
third-party complaint not later than 10 days after he serves his original
answer. Otherwise he must obtain leave on motion upon notice to all
parties to the action. The person served with the summons and third-party
complaint, hereinafter called the third-party defendant, shall make
his defenses to the third-party plaintiff's claim as provided in Section
112 and his counterclaims against the third-party plaintiff and cross-claims
against other third-party defendants as provided in Section 114. The
third-party defendant may assert against the plaintiff any defenses
which the third-party plaintiff has to the plaintiff's claim. The
third-party defendant may also assert any claim against the plaintiff
arising out of the transaction or occurrence that is the subject matter
of the plaintiff's claim against the third-party plaintiff. The plaintiff
may assert any claim against the third-party defendant arising out
of the transaction or occurrence that is the subject matter of the
plaintiff's claim against the third-party plaintiff, and the third-
party defendant thereupon shall assert his defenses as provided in
Section 112 and his counterclaims and cross-claims as provided in
Section 114. A third- party defendant may proceed under this Section
against any person not a party to the action who is or may be liable
to him for all or part of the claim made in the action against the
third-party defendant. Any party may move to strike the third-party
claim, or for its severance or separate trial.
(b) When
Plaintiff May Bring in Third Party. When a counterclaim is asserted
against a plaintiff; he may cause a third party to be brought in under
circumstances which under this Section would entitle a defendant to
do so.
(c) Party
Defendants in Real Property Actions. In an action involving real
property, any person appearing in any manner in the title thereto,
or claiming or appearing to claim some interest in the real property
involved, may be included as a party defendant by naming such person
as a party defendant in the caption of the complaint; and when such
person is made a defendant in the body of the complaint under the
appellation of substantially the following words, "said defendant
named herein claims some right, title, lien, estate, encumbrance,
claim, assessment, or interest in and to the real property involved
herein, adverse to plaintiff which constitutes a cloud upon the title
of plaintiff and defendant has no right, title, lien, estate, encumbrance,
claim, assessment, or interest, either in law or in equity, in and
to the real property involved herein", that same is sufficient to
include any and all claims, known or unknown, 'that such defendant
may have in and to the real property involved in such case, it not
being necessary to set out the reason for such claim or claims in
the complaint or other pleading for such person being made a party
defendant.
Section 118. Amended and Supplemental Pleadings
(a) Amendments.
A party may amend his pleading once as a matter of course at any time
before a responsive pleading is served or, if the pleading is one
to which no responsive pleading is permitted and the action has not
been placed upon the trial calendar, he may so amend it at any time
within 20 days after it is served, including amendments to add omitted
counterclaims or cross-claims or to add or drop parties. Otherwise
a party may amend his pleading only by leave of the Court or by written
consent of the adverse party; and leave shall be freely given when
justice so requires. A party shall plead in response to an amended
pleading within the time remaining for response to the original pleading
or within 10 days after service of the amended pleading, whichever
period may be the longer, unless the Court otherwise orders.
(b) Amendments
to Conform to the Evidence. When issues not raised by the pleadings
are tried by express or implied consent of the parties, they shall
be treated in all respects as if they had been raised in the pleading's.
Such amendment of the pleadings as may be necessary to cause them
to conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment; but failure
so to amend does not affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground that it is not
within the issues made by the pleadings, the Court may allow the pleadings
to be amended and shall do so freely when the presentation of the
merits of the action will be subserved thereby and the objecting party
fails to satisfy the Court that the admission of such evidence would
prejudice him in maintaining his action or defense upon the merits.
The Court may grant a continuance to enable the objecting party to
meet such evidence. Where the pretrial conference order has superseded
the pleadings, the pre-trial order is controlling and it is sufficient
to amend the order and the pleadings need not be amended.
(c) Relation
Back of Amendments. Whenever the claim or defense asserted in
the amended pleading arose out of the conduct, transaction or occurrence
set forth or attempted to be set forth in the original pleading, the
amendment relates back to the date of the original pleading. An amendment
changing the party against whom a claim is asserted relates back if
the foregoing provision is satisfied and, within the period provided
by law for commencing the action against him, the party to be brought
in by amendment (1) has received such notice of the institution of
the action that he will not be prejudiced in maintaining his defense
on the merits, and (2) knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have
been brought against him.
The delivery
or mailing of process to the Attorney General, or his designee, or
the Attorney General of the Tribes, or an agency or officer thereof
who would have been a proper defendant if named, satisfies the requirement
of clauses (1) and (2) thereof with respect to the Tribes or any agency
or officer thereof to be brought into the action as a defendant.
(d) Supplemental
Pleadings. Upon motion of a party the Court may, upon reasonable
notice and upon such terms as are just, permit him to serve a supplemental
pleading setting forth transactions or occurrences or events which
have happened since the date of the pleading sought to be supplemented.
Permission may be granted even though the original pleading is defective
in its statement of a claim for relief or defense. If the Court deems
it advisable that the adverse party plead to the supplemental pleading,
it shall so order, specifying the time therefor. A supplemental pleading
will relate back to the original pleading if it arises out of the
conduct, transaction, or occurrence set forth in the original pleading.
Section 119. Pretrial Procedure; Formulating Issues
(a) In
any action, the Court may in its discretion direct the attorneys for
the parties to appear before it for a conference to consider:
(1)
The simplification of the issues;
(2)
The necessity or desirability of amendments to the pleadings;
(3)
The possibility of obtaining admissions of fact and of documents
which will avoid unnecessary proof;
(4)
The limitation of the number of expert witnesses;
(5)
The advisability of a preliminary reference of issues to a master
for findings to be used as evidence when the trial is to be by jury;
(6)
Such other matters as may aid in the disposition of the action.
(b) The
Court shall make an order which recites the action taken at the conference,
the amendments allowed to the pleadings, and the agreements made by
the parties as to any of the matters considered, and which limits
the issues for trial to those not disposed of by admissions or agreements
of counsel; and such order when entered controls the subsequent course
of the action, unless modified at the trial to prevent manifest injustice.
The Court in its discretion may establish by Rule a pretrial calendar
on which actions may be placed for consideration as above provided
and may either confine the calendar to jury actions or to non-jury
actions or extend it to all actions.
Section 120. Lost Pleadings
If a pleading
be lost or withheld by any person, the Court may allow a copy thereof
to be substituted.
Section 121. Tenders of Money or Property
When a
tender of money or property is alleged in any pleading, it shall not
be necessary to deposit the money or property in Court when the pleading
is filed, but it shall be sufficient if the money or property is deposited
in Court at trial, or when ordered by the Court.
Section 122. Dismissal of Actions
(a) Voluntary
Dismissal: Effect Thereof.
(1)
By Plaintiff: By Stipulation. Subject to the provisions of Section
307 or Section 802 of this statute of the Tribes, an action may
be dismissed by the plaintiff without order of Court
(i) by filing a notice of dismissal at any time before service
by the adverse party of an answer or of a motion of summary judgment,
whichever first occurs, or
(ii)
by filing a stipulation of dismissal signed by all parties who
have appeared in the action. Unless otherwise stated in the notice
of dismissal or stipulation, the dismissal is without prejudice,
except that a notice of dismissal without the consent of the defendants
operates as an adjudication upon the merits when filed by a plaintiff
who has once voluntarily dismissed, without the consent of the
defendants, in any Court of any Indian Tribe, the United States,
or any state an action based on or including the same claim, unless
such previous dismissal was entered due to inability to obtain
personal jurisdiction over an indispensable party or lack of subject
matter jurisdiction in the Court in which the case was previously
filed. If the plaintiff claims either or both of these exceptions,
it shall so state in its notice of dismissal and shall apply to
the District Court, upon notice to all adverse parties for an
order determining that the previous dismissal was within one or
both of the two stated exceptions and that the plaintiff is entitled
to dismiss the current action without prejudice. The Court may
grant such application in its discretion and allow the plaintiff
to dismiss without prejudice on such terms as are just, due regard
being had for costs, attorney fees, and inconvenience of the defendants,
and any apparent motive to harass, embarrass, or delay the defendants.
(2)
By Order of the Court. Except as provided in paragraph (1) of this
subdivision of this Section, an action shall not be dismissed at
the plaintiff's instance save upon order of the Court and upon such
terms and conditions as the Court deems property. If a counterclaim
has been pleaded by a defendant prior to the service upon him of
the plaintiff's motion to dismiss, the action shall not be dismissed
against the defendant's objection unless the counterclaim can remain
pending for independent adjudication by the Court. Unless otherwise
specified in the order, a dismissal under this paragraph is without
prejudice.
(b) Involuntary
Dismissal: Effect Thereof. For failure of the plaintiff to prosecute
or to comply with this Act, any Court rule, or any order of the Court,
a defendant may move for dismissal of an action or of any claim against
him. After the plaintiff, in an action tried by the Court without
a jury, has completed the presentation of his evidence, the defendant,
without waiving his right to offer evidence in the event the motion
is not granted, may move for dismissal on the ground that upon the
facts and the law the plaintiff has shown no right to relief. The
Court as trier of the facts may then determine them and render judgment
against the plaintiff or may decline to render any judgment until
the close of all the evidence. If the Court renders judgment on the
merits against the plaintiff, the Court shall make findings as provided
in Section 751(a). Unless the Court in its order for dismissal otherwise
specifies, a dismissal under this subdivision and any dismissal not
provided for in this Section, other than a dismissal for lack of jurisdiction,
or for failure to join a party under Section 303, operates as an adjudication
upon the merits.
(c) Dismissal
of Counterclaim, Cross-Claim, or Third Party Claim. The provisions
of this Section apply to the dismissal of any counterclaim, cross-claim,
or third-party claim. A voluntary dismissal by the claimant alone
pursuant to paragraph (1) of subdivision (a) of this Section shall
be made before a responsive pleading is served or, if there in none,
before the introduction of evidence at the trial or hearing.
CHAPTER TWO - PROCESS, SUMMONS, FILING OF PLEADINGS AND OTHER PAPERS
Section 201. Issuance of Summons
Upon the
filing of the complaint the Court Clerk shall forthwith issue a summons
and deliver it for service with a copy of the complaint to the plaintiffs
attorney, Chief of Tribal Police or to a person specially appointed
by the Court to serve it. Upon request of the plaintiff separate or
additional summons shall issue against any defendants.
Section 202. Form of Summons
The summons
shall be signed by the Court Clerk, be under the seal of the Court,
contain the name of the Court and the names of the parties, be directed
to the defendant, state the name and address of the plaintiff's attorney,
if any, otherwise the plaintiff's address, and the time within which
this Act requires the defendant to appear and defend, and shall notify
him that in case of his failure to do so, judgment by default will be
rendered against him for the relief demanded in the complaint. When,
under Section 218, service is made pursuant to a statute or rule of
the Court, the summons, or notice, or order in lieu of summons shall
correspond as nearly as may be to that required by the ordinance or
rule of the Court.
Section 203. Who May Serve Process Personally
(a) Process
including a subpoena, if served in person, shall be served by the
Chief of the Tribal Police or his deputy, or the Bureau of Indian
Affairs Police, or their deputy, a person licensed to make service
of process in civil cases pursuant to Court rule, or a person specially
appointed by the Court for that purpose. A subpoena may also be served
by any person over eighteen years of age who is not a party to the
action.
(b) When
process has been served and return thereof is filed in the office
of the Court Clerk, a copy of the return shall be sent by the Court
Clerk to the serving party's attorney within three (3) days after
the return is filed.
(c) Process,
other than a subpoena, shall not be served by a party's attorney except
as provided in Section 204 of this Chapter. A party shall not make
service of process unless appearing without an attorney, in which
case, the party may make service of process in the same manner and
to the same extent that an attorney for the party could have served
that process under this Chapter.
(d) The
Court shall freely make special appointments to serve all process
under this paragraph.
Section 204. Service of Process by Mail
(a) A
summons and petition, and a subpoena, may be served by mail by the
plaintiff's attorney, or any person authorized to serve process pursuant
to Section 203 of this Chapter.
(b) Service
by mail may be accomplished by mailing the subpoena, or a copy of
the summons and petition, by certified mail, return receipt requested
and delivery restricted to the addressee.
(c) Service
pursuant to this paragraph shall not be the basis for the entry of
a default or a judgment by default unless the record contains a return
receipt showing acceptance by the defendant or a returned envelope
showing refusal of the process by the defendant. If delivery of the
process is refused, upon the receipt of notice of such refusal and
at least ten (10) days before applying for entry of default or judgment
by default, the person serving the process shall mail to the defendant
by first-class mail postage prepaid a copy of the summons and petition
and a notice that despite such refusal the case will proceed and that
judgment by default will be rendered against him unless he appears
to defend the suit. A copy of said notice and proof of mailing thereof
shall be filed of record in the case prior to the entry of a judgment
by default. Any such default or judgment by default shall be set aside
upon motion of the defendant if the defendant demonstrates to the
Court that the return receipt was signed or delivery was refused by
an unauthorized person. Such motion shall be filed within one (1)
year after the defendant has notice of the default or judgment by
default but in no event more than two (2) years after the judgment.
(d) In
the case of an entity described in subsection (c) of Section 217 of
this Chapter, acceptance or refusal by any officer or by any employee
of the registered office or principal place of business who is authorized
to or who regularly receives certified mail shall constitute acceptance
or refusal by the party addressed.
(e) In
the case of governmental organization subject to suit, acceptance
or refusal by an employee of the office of the officials specified
in the appropriate subsection of Section 217 of this Chapter who is
authorized to or who regularly receives certified mail shall constitute
acceptance or refusal by the party addressed.
Section 205. Service by Publication
Service
of summons upon a named defendant may be made by publication when it
is stated in the petition, verified by the plaintiff or his attorney,
or in a separate affidavit by the plaintiff or his attorney filed with
the Court, that with due diligence service cannot be made upon the defendant
by any other method.
Section 206. Publication Service Upon Parties and the Unknown
Successors of Named Parties
(a) Service
of summons upon named parties, the unknown successors of a named party,
a named decedent, or a dissolved partnership, corporation, or other
association may be made by publication when it is stated in the complaint,
verified by the plaintiff or his attorney, or in a separate affidavit
by the plaintiff or his attorney filed with the Court, that the person
who verified the complaint or the affiant does not know, and with
due diligence cannot ascertain, the following:
(1)
Whether a person named as a party is living or dead, and, if dead,
the names or whereabouts of his successors, if any.
(2)
The names or whereabouts of a party and the unknown successors,
if any, of the named decedent or other parties.
(3)
Whether a partnership, corporation, or other association named as
a party continues to have legal existence or not; or the name or
whereabouts of its officers or successors.
(4)
Whether any person designated in a record as a trustee continues
to be the trustee; or the names or whereabouts of the successors
of the trustee, or
(5)
The names or whereabouts of the owners or holder of special assessment
or improvement bonds, or any other bonds, sewer warrants or tax
bills of similar instruments.
(b) Service
pursuant to this Section shall be made by publication of a notice,
signed by the Court Clerk, in a newspaper authorized by law to publish
legal notices which is published within the reservation. If no newspaper
authorized by law to publish legal notices is published within the
reservation, the notice shall be published in some such newspaper
of general circulation within the reservation which is published in
an adjoining county.
(c) All
named parties, their unknown successors, and other persons who may
be served by publication may be included in one notice. The notice
shall state:
(1)
The name of the Court in which the petition is filed,
(2)
The names of the parties,
(3)
Designate the parties whose unknown successors are being served,
if any,
(4)
That the named parties and their unknown successors have been sued
and must answer the complaint or other pleading on or before a time
to be stated (which shall not be less than thirty-one (31) days
from the date of the publication, or judgment, the nature of which
shall be stated, will be rendered accordingly.
(5)
It is not necessary for the publication notice to state that the
judgment will include recovery of costs in order for a judgment
following the publication notice to include costs of suit.
(d) If
jurisdiction of the Court is based on property, any real property
subject to the jurisdiction of the Court and any property or debts
to be attached or garnished must be described in the notice.
(e) Service
is complete upon publication.
Section 207. Publication Notice for Recovery of Money
When the
recovery of money is sought, it is not necessary for the publication
notice to state the separate items involved, but the total amount that
is claimed must be stated. When interest is claimed, it is not necessary
to state the rate of interest, the date from which interest is claimed,
or that interest is claimed until the obligation is paid.
Section 208. Publication Notice in Quiet Title Actions
In an action
to quiet title to real property, it is not necessary for the publication
notice to state the nature of the claim or interest of either party,
and in describing the nature of the judgment that will be rendered should
the defendant fail to answer, it is sufficient to state that a decree
quieting plaintiff's title to the described property will be entered.
It is not necessary to state that a decree forever barring the defendant
from asserting any interest in or to the property is sought or will
be entered if the defendant does not answer. In quiet title actions
notice shall be published twice. The second publication shall be not
less than seven nor more than forty-five days after the first publication.
The answer shall be due thirty-one days after the second publication,
and service is complete upon the second publication.
Section 209. Completion of Publication Service
Service
by publication is complete when made in the manner and for the time
prescribed in this Chapter. Service by publication shall be proved by
the affidavit of any person having knowledge of the publication with
a copy of the published notice attached. No default judgment may be
entered on such service until proof of service by publication is filed
with and approved by the Court.
Section 210. Entry of Default on Party Served by Publication
Before
entry of a default judgment or order against a party who has been served
solely by publication under this Chapter, the Court shall conduct an
inquiry to determine whether the plaintiff, or someone acting in his
behalf, made a distinct and meaningful search of all reasonably available
sources to ascertain the whereabouts of any named parties who have been
served solely by publication under this subsection. Before entry of
a default judgment or order against the unknown successors of a named
defendant, a named decedent, or a dissolved partnership, corporation,
or association, the Court shall conduct an inquiry to ascertain whether
the requirements described in subsection (a) of Section 206 of this
Chapter have been satisfied.
Section 211. Vacating Default Judgments Where Service is by Publication
(a) A
party against whom a default judgment or order has been rendered,
without other service than by publication in a newspaper, may, at
anytime within three (3) years after the date of the judgment or order,
have the judgment or order opened and be let in to defend.
(b)
Before the judgment or order is opened, the applicant shall notify
the adverse party of his intention to make such challenge, and shall
(1)
File a full answer to the petition,
(2)
Pay all costs if the Court requires them to be paid, and,
(3)
Satisfy the Court by affidavit or other evidence that during the
pendency of the action he had no actual notice thereof in time to
appear in Court and make his defense.
(c) The
title to any property which is the subject of and which passed to
a purchaser in good faith by or in consequence of the judgment or
order to be opened shall not be affected by any proceedings under
the Section. Nor shall proceedings under this Section affect the title
of any property sold before judgment under an attachment.
(d) The
adverse party, on the hearing of any application to open a judgment
or order as provided by this Section, shall be allowed to present
evidence to show that during the pendency of the action the applicant
has notice thereof in time to appear in Court and make his defense.
Section 212. Certain Technical Errors Not Grounds for Vacating
Judgment
(a) No
judgment heretofore or hereafter rendered in any action against unknown
heirs or devisees of a deceased person shall ever be construed, or
held to be, either void or voidable upon the ground that an affidavit
of the plaintiff to the effect that the name of such heirs or devisees,
or any of them, and their residences, are unknown to the plaintiff,
was not annexed to his complaint so long as said affidavit is on file
in the action, and all such judgments, if not otherwise void, are
hereby declared to be valid and binding from the date of rendition.
(b) No
judgment heretofore or hereafter rendered in any action against any
person or party served by publication shall be construed or held to
be void or voidable because the affidavit for such service by publication
on file in the action was made by the attorney for the plaintiff or
because the complaint or other pleading was verified, if verification
is necessary, by the attorney for the plaintiff or party seeking such
service by publication. In all such cases it shall be conclusively
presumed, if otherwise sufficient, that the allegations and statements
made by such attorney were and are in legal effect and for all purposes
made by plaintiff and shall have the same force and effect as if actually
made by the plaintiff.
(c) All
such judgments, if not otherwise defective or void, are hereby declared
valid and legally effective and conclusive as of the date thereof
as if such affidavit was made or the complaint or pleading was verified
by the plaintiff or other party obtaining such service by publication.
Section 213. Meaning of "Successors" for Publication Purposes
The term
"successors" includes all heirs, executors, administrators, devisees,
trustees, and assigns, immediate and remote, of a named individual,
partnership, corporation, or association.
Section 214. Minimum Contacts Required for Effective Long Arm
Service
Service
outside of the Tribal jurisdiction does not give the Court in persona
jurisdiction over a defendant who is not subject to the jurisdiction
of the Courts of these Tribes, or who has not, either in person or through
an agent, submitted himself to the jurisdiction of the Courts of these
Tribes either by appearance, written consent, or having voluntarily
entered into sufficient contacts with the Tribes, its members, or its
territory to justify tribal jurisdiction over him in accordance with
the principals of due process of law and federal Indian law.
Section 215. Consent is Effective Substitute for Service
An acknowledgment
on the back of the summons or the voluntary appearance of a defendant
is equivalent to service.
Section 216. Service Pursuant to Court Order
If service
cannot be made by personal delivery or by mail, a defendant of any class
referred to in subsection (a) or (c) of Section 217 of this Chapter
may be served as provided by Court order in any manner which is reasonably
calculated to give him actual notice of the proceedings and an opportunity
to be heard. The Court may enter an order requiring such service whenever
service has been by publication only prior to entering a default judgment.
Section 217. Manner of Making Personal Service
The summons
and complaint shall be served together. The plaintiff shall furnish
the person making service with such certified copies as are necessary.
If the complaint is not served with the summons, the case shall not
be dismissed but the time to answer should be extended by the Court
upon motion. The person serving the summons shall state on the copy
that is left with the party served the date that service is made.
Where service is to be made by mail, the person mailing the summons
shall state on the copy that is mailed to the party to be served the
date of mailing. These provisions are not jurisdictional, but if the
failure to comply with them prejudices the party served, the Court
may extend the time to answer. Service of the summons and complaint
and service of subpoenas shall be made as follows:
(a) Upon
an individual other than an infant or an incompetent person, by delivering
a copy of the summons and a copy of the complaint to him personally
or by leaving copies thereof at his dwelling house or usual place
of abode with some person fifteen (15) years of age or older then
residing therein or by delivering a copy of the summons and of the
complaint to an agent authorized by appointment or by law to receive
service of process.
(b) Upon
an infant, by delivering a copy of the summons and complaint to either
parent and the legal guardian of the infant, if any, or the person
with whom he resides if the infant is under the age of fourteen years.
If the infant is over the age of fourteen years, by serving either
parent and the legal guardian of the infant, if any, or the person
with whom he resides and by serving the infant personally if the legal
guardian cannot be located.
(c) Upon
a domestic or foreign corporation or upon a partnership or other unincorporated
association which is subject to suit under a common name, by delivering
copy of the summons and of the complaint to an officer, a managing
or general agent, or to any other agent authorized by appointment
or by law to receive service of process and, if the agent is one authorized
by statute to receive service and the statute so requires, by also
mailing a copy to the defendant. Service may also be had upon such
entities by delivering the summons and complaint to a place of business
of such entity and leaving a copy with the person in charge of that
place of business at the time service is made.
(d) Upon
the United States, by delivering a copy of the summons and of the
complaint to the United States Attorney for the Western District of
Oklahoma or to an assistant United States Attorney or clerical employee
designated by the United States Attorney in a writing filed with the
Clerk of the United States District Court for the Western District
of Oklahoma and by sending a copy of the summons and of the complaint
by registered or certified mail to the Attorney General of the United
States at Washington, District of Columbia, and in any action attacking
the validity of an order of an officer or agency of the United States
not made a party, by also sending a copy of the summons and of the
complaint by registered or certified mail to such officer or agency.
(e) Upon
any office or agency of the United States, by serving the United States
and by delivering a copy of the summons and of the complaint to such
officer or agency. If the agency is a corporation the copy shall be
delivered as provided in subsection (c) of this Section.
(f) Upon
a state, a state municipal corporation, any other Indian Tribes not
a party to this Act, or other governmental organization thereof subject
to suit, by delivering copy of the summons and of the complaint to
the Chief Executive Officer thereof or by serving the summons and
complaint in the manner prescribed by the law of that state or Tribes
for the service of summons or other like process upon any such defendant.
(g) Upon
these Tribes by delivering a copy of the summons and complaint to
the Chief Executive Officer of the Tribes, or to such Tribal officer
or employee as may be designated by the Chief Executive Officer of
the Tribes in a writing filed with the Clerk of the Tribal District
Court, and by sending a copy of the summons and complaint by registered
or certified mail, return receipt requested, to the Attorney General
and in any action attacking the validity of an order of an officer
or agency of the Tribes not made a party, by also sending a copy of
the summons and complaint by registered or certified mail, return
receipt request, to such officer or agency. The name and address of
the Attorney General may always be obtained from the Bureau of Indian
Affairs.
(h) Upon
any officer or agency of these Tribes by serving the Tribes, and by
delivering a copy of the summons and complaint to such officer or
agency. If the agency is a corporation, the copy shall be delivered
as provided in subsection (c) of this section.
Section 217.1. Effect of Service of Some of Several Defendants
(a) Where
the action is against two or more defendants, and one or more shall
be been served, but not all of them, the plaintiff may proceed as
follows:
(1)
If the action be against defendants jointly indebted upon contract,
tort, or any other cause of action, he may proceed against the defendants
served, unless the Court otherwise orders; and if he recover judgment,
it may be entered against: (a) all the defendants thus jointly indebted
only insofar as the judgment may be enforced against the joint property
of all, and (b) against the defendants served insofar as the judgment
may be enforced against the separate property of the defendants
served, and if they are subject to arrest, against the persons of
the defendants served.
(2)
If the action be against defendants severally liable, he may, without
prejudice to his rights against those not served, proceed against
the defendants served in the same manner as if they were the only
defendants.
(b) A
judgment against one or more defendants served, whether jointly or
severally liable, shall not be construed to make such judgment a bar
to another action against those not served.
Section 218. Service Upon Party Not Inhabitant of or Found Within
the Reservation
(a) Whenever
an ordinance of the Tribes or an order of the Court of the Tribes
provides for service of summons, or of a notice, or of an order in
lieu of summons upon a party not an inhabitant of or found within
the geographical boundaries of the Tribal reservation, service may
be made under the circumstances and in the manner prescribed by the
ordinance or order, or, if there is no provision therein prescribing
the manner of service, in a manner stated in this Act.
(b) In
any action against a foreign corporation or association where service
is authorized by Tribal law upon a Tribal Officer, and the party seeking
service elects to serve the Tribal Officer, service shall be made
as follows:
(1)
The Tribal District Court Clerk shall issue a summons and shall
forthwith mail or personally serve triplicate copies of said summons,
together with a copy of the complaint and the service fee to the
Tribal Officer. The Court Clerk shall make due return, indicating
that the summons and complaint copies have been delivered to the
Tribal Officer and the date of such delivery. Receipt of the summons
and complaint by the Tribal Officer shall constitute service upon
him. Within three (3) working days after service upon him, the Tribal
Officer shall send copies of the summons and complaint to such foreign
corporation or association, by registered or certified mail, return
receipt requested, at its office as shown by the articles of incorporation,
or charter, or by the latest information officially filed in the
office of the Tribal Officer. The summons shall set forth the last-known
address of the office of the corporation or association as ascertained
by the parties by use of due diligence, and the Tribal Officer shall
mail copies of the summons and complaint to the corporation or association
at this address. The Tribal Officer shall maintain one copy of the
summons and complaint with the records of the corporation or association.
(2)
The original summons that is served on the Tribal Officer shall
be in form and substance the same as provided in suits against residents
of the Tribal jurisdiction. The summons shall state an answer date
which shall be not less than forty-five (45) days nor more than
sixty (60) days from the date that such summons was issued.
Section 219. Territorial Limits of Effective Service
(a) All
process, other than subpoena or process involving the detention, seizure,
or arrest of persons or property, may be served anywhere within the
reservation boundaries, or any Indian Country, as defined by 18 U.S.C.§1151,
which is 5 to the jurisdiction of the Tribes and, when authorized
by an ordinance of the Tribes or by this Act, beyond these territorial
limits.
(b) In
addition, persons who are brought in as parties pursuant to Section
117 of this Act, or as additional parties to a pending action or a
counterclaim or cross-claim therein pursuant to Section 303, may be
served in the manner stated in subsections (a)-(f) of Section 217
of this Act at all places outside the reservation of the Tribes but
within the United States, and persons required to respond to an order
of commitment for civil contempt may be served, but not arrested,
at the same places.
(c) A
subpoena or process involving the detention, seizure, or arrest of
persons or property, may be served and compulsorily enforced only
within the Indian Country, as defined by 18 U.S.C. §1151, which
is subject to the jurisdiction of the Tribes. A subpoena or other
process involving the detention, seizure or arrest of a person or
property may be served anywhere within the United States, but no compulsory
enforcement thereof may be maintained in this Court unless such person
or property is located within the Indian Country of the Tribes when
service is made.
(d) When
the exercise of jurisdiction is authorized by Tribal or Federal law,
service of the summons and complaint may be made outside this reservation:
(1)
By personal delivery in the manner prescribed for service within
this reservation,
(2)
In the manner prescribed by the law of the place in which the service
is made for service in that place in an action in any of its Courts
of general jurisdiction,
(3)
By publication is appropriate circumstances,
(4)
As directed by the foreign authority in response to a letter rogatory,
or
(5)
As directed by the Court.
Section 220. Return of Service of Process
(a) The
person serving the process shall make proof of service thereof to
the Court promptly and in any event within the time during which the
person served must respond to the process. If service is made by a
person other than the Chief of Tribal police or his deputy, the Bureau
of Indian Affairs Police or their deputy, or an attorney by mail,
he shall make affidavit thereof. Return of receipt for certified or
registered mail shall be attached to the proof of service if service
was made by mail. A copy of each publication of notice shall be attached
to the return of service by publication. Failure to make proof of
service does not affect the validity of the service.
(b) The
person serving the summons shall state on the copy that is left with
the party served, as well as on the return, the date that service
is made. Where service is to be made by mail, the person mailing the
summons shall state on the copy that is mailed to the party to be
served the date of mailing. These provisions are not jurisdictional,
but if the failure to comply with them prejudices the party served,
the Court may extend the time to answer.
Section 221. Alternative Provisions for Service in a Foreign Country
(a) Manner.
When the law of the Tribes referred to in Section 218 of this Chapter
authorizes service upon a party not an inhabitant of or found within
the territorial limits of effective service of the Tribal Court, and
when service is to be effected upon the party in a foreign country,
it is also sufficient if service of the summons and complaint is made:
(1) in the manner prescribed by the law of the Tribe, state, or foreign
country for service in that Tribe, state, or country in an action
in any of its Courts of general jurisdiction; or (2) as directed by
the foreign authority in response to a letter rogatory when service
in either case is reasonably calculated to give actual notice; or
(3) upon an individual, by delivery to him personally, and upon a
corporation or partnership or association, by delivery to an officer,
a managing; or general agent; or (4) by any form of mail, requiring
a signed receipt, to be addressed and dispatched by the Clerk of the
Court to the party to be served; or (5) as directed by the order of
the Court. Service under (3) or (5) above may be made by any person
who is not a party and is not less than 18 years of age or who is
designated by order of the District Court or by the foreign Court.
On request, the Clerk shall deliver the summons to the plaintiff for
transmission to the person or the foreign Court or officer who will
make the service.
(b) Return.
Proof of service may be made as prescribed by Section 220 of this
Chapter, or by the law of the Tribe, state, or foreign country, or
by order of the Court. When service is made by mail pursuant to subsection
(a) of this Section, proof of service shall include a receipt signed
by the addressee or other evidence of the delivery to the address
satisfactory to the Court.
Section 222. Subpoena
(a) For
Attendance of Witnesses; Form; Issuance. Every subpoena shall
be issued by the Clerk under the seal of the Court, shall state the
name of the Court and the title of the action, and shall command each
person to whom it is directed to attend and give testimony at a time
and place therein specified. The Clerk shall issue a subpoena, or
a subpoena for the production of documentary or other physical evidence
signed and sealed, but otherwise in blank, to a party requesting it,
who shall fill it in before service.
(b) For
Production of Documentary Evidence. A subpoena may also command
the person to whom it is directed to produce the books, papers, documents,
or tangible things designated therein; but the Court, upon motion
made promptly and in any event at or before the time specified in
the subpoena for compliance therewith may (1) quash or modify the
subpoena if it is unreasonable and oppressive or (2) condition denial
of the motion upon the advancement by the person in whose behalf the
subpoena is issued of the reasonable cost of producing the books,
papers, documents, or tangible things.
(c) Service.
A subpoena may be served by the Chief of the Tribal Police, by his
deputy, the Indian Police of the Bureau of Indian Affairs, or by any
other person authorized by the Court or by this Act who is not a party
and is not less than 18 years of age. Service of a subpoena thereof
to such person and by tendering to him the fees for one day's attendance
and the mileage allowed by law. When the subpoena is issued on behalf
of the Tribes or an officer or agency thereof, fees and mileage need
not be tendered, but fees paid shall be charged to such Tribal Officer
or agency budget. A subpoena may be served as provided in Section
204 if accepted by the addressee, All subpoena service expenses may
be recovered as other costs.
(d) Subpoena
for Taking Depositions; Place of Examination.
(1)
Proof of service of a notice to take a deposition as provided in
Sections 405(b) and 406(a) or presentation of prepared notices to
be attached to the subpoena constitutes a sufficient authorization
for the issuance by the Clerk of the District Court of subpoenas
for the persons named or described therein. The subpoena may command
the person to whom it is directed to produce and permit inspection
and copying of designated books, papers, documents, or tangible
things which constitute or contain matters within the scope of the
examination permitted by Section 401(b), but in that event the subpoena
will be subject to the provisions of Section 401(c) and subdivision
(b) of this Section.
The
person to whom the subpoena is directed may, within 10 days after
the service thereof or on or before the time specified in the subpoena
for compliance, if such time is less than 10 days after service,
serve upon the attorney designated in the subpoena written objection
to inspection or copying of any or all of the designated materials.
If objection is made, the party serving the subpoena shall not be
entitled to inspect and copy the materials except pursuant to an
order of the Court from which the subpoena was issued. The party
serving the subpoena may, if objection has been made, move upon
notice to the deponent for an order at any time before or during
the taking of the deposition.
(2)
A resident of the Tribal jurisdiction may be required to attend
an examination at any place within the Tribal jurisdiction not more
than fifty (50) miles from his residence, except that he may be
required to attend in the county or district wherein he resides
or is employed or transacts his business in person, or in the town
in which the District Court is located, or at such other convenient
place as is fixed by an order of the Court. A nonresident of the
Tribal jurisdiction may be required to attend only in the county
wherein he is served with a subpoena or resides or within 50 miles
from the place of service, or at such other convenient place as
is fixed by an order of the Court.
(e) Subpoena
for Hearing or Trial.
(1)
At the request of any party,subpoenas for attendance at a hearing
or trial shall be issued by the Clerk of the District Court. A subpoena
requiring the attendance of a witness at a hearing or trial may
be served at any place within the Tribal jurisdiction or at any
place without the Tribal jurisdiction that is within 100 miles of
the place of the hearing or trial specified in the subpoena; and,
when a statute of the Tribes provides therefore, the Court upon
proper application and cause shown may authorize the service of
a subpoena at any other place.
(2)
A subpoena directed to a witness in a foreign country shall issue
under the circumstances and in the manner and be served as may be
provided by any Tribal statute.
(f) Contempt.
Failure by any person without adequate excuse to obey a subpoena served
upon him within the Tribal jurisdiction may be deemed a contempt of
the District Court.
Section 230. Summons, Time Limit for Service
(a) If
service of process is not made upon a defendant within one hundred
twenty (120) days after the filing of the complaint and the plaintiff
cannot show good cause why such service was not made within that period,
the action shall be dismissed as to that defendant without prejudice
upon the Courts own initiative with notice to the plaintiff or upon
motion.
(b) If
service of process is not made upon a defendant within one hundred
eighty (180) days after the filing of the complaint, the action shall
be deemed to have been dismissed without prejudice as to that defendant.
This Section shall not apply to service in a foreign country.
Section 231. Service and Filing of Pleadings and Other Papers
(a) Service:
When Required. Except as otherwise provided in this Act, every
order required by its terms to be served, every pleading subsequent
to the original complaint unless the Court otherwise orders because
of numerous defendants, every paper relating to discovery required
to be served upon a party unless the Court otherwise orders, every
written motion other than one which may be heard ex parte, and every
written notice, appearance, demand, offer of judgment, designation
of record on appeal, and similar paper shall be served upon each of
the parties. No service need be made on parties in default for failure
to appear except the pleadings asserting new or additional claims
for relief against them shall be served upon them in the manner provided
for service of summons.
In an
action begun by seizure of property, in which no person need be or
is named as defendant, any service required to be made prior to the
filing of an answer, claim, or appearance shall be made upon the person
having custody or possession of the property at the time of its seizure,
and upon any person then known to claim an ownership interest in the
property.
(b) Service:
How Made. Whenever service is required or permitted to be made
upon a party represented by an attorney (including any person licensed
to practice law before the Tribal Court) the service shall be made
upon the attorney unless service upon the party himself is ordered
by the Court. Service upon the attorney or upon a party shall be made
by delivering a copy to him or by mailing it to him at his last known
address or, if no address is known, by leaving it with the Clerk of
the Court who shall mail a copy thereof to the party's last address
of record. Delivery of a copy within this Section means: handing it
to the attorney or to the party; or leaving it at his office with
his Clerk or other person in charge thereof; or, if there is no one
in charge, leaving it in a conspicuous place therein; or if the office
is closed or the person to be served has no office, leaving it at
his dwelling house or usual place of abod