Cheyenne-Arapaho Tribes of Oklahoma [Law and Order Code]
Last amended: 1988
[TITLE II - LAW AND ORDER CODE - SUBPART B] - CIVIL PROCEDURE - CH. 9-16
CHAPTER NINE - JUDGMENT
Section 901. Judgments - Costs
(a) Definition; Form. "Judgment" as used in this Title includes a final determination of the rights of the parties in an action, including those determined by a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings.
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the Court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there are no just reasons for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims, or rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at anytime before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
(c) Demand for Judgment; Default. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief is his pleadings.
(d) Costs. Except when express provision therefor is made either in a statute of the Tribes or in this Title, costs shall be allowed as of course to the prevailing party unless the Court otherwise directs; but costs, including attorney fees and statutory authorization for collection of damages or requirement for bonds or undertakings, against the Tribes, their officers, and agencies shall be imposed only to the extent specifically permitted by tribal law. A general statement in this Title that such are payable by a party or by the plaintiff or defendant is not authority to impose such costs, damages, or requirements upon the Tribes, their officers, and agencies. Costs may be taxed by the clerk on one (1) day's notice. On motion served within ten (10) days thereafter, the action of the clerk may be reviewed by the Court.
(e) Applied to Probate Proceedings. A judgment shall be considered a lawful debt in all proceedings held by the Department of the Interior or by the Tribal District Court in the distribution of decedent's estates.
Section 902. Default
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by this Title and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.
(b) Judgment. Judgment by default may be entered as follows:
(1) By the clerk. When the plaintiff's claims against a defendant is for a sum certain or for a sum which can, by computation, be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if he has been defaulted for failure to appear and if he is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the Court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application. If, in order to enable the Court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the Court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the Tribes.
(c) Setting Aside Default. For good cause shown the Court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Section 909(b).
(d) Plaintiff, Counterclaimants, Cross-claimants. The provisions of this Section apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Section 901(c).
(e) Judgment Against the Tribes. No judgment by default may be entered against the Tribes, their officers, or agencies unless sixty (60) days written notice has been served upon the Chief Executive Officer and the Tribal Legislative Authority. If during such sixty- (60) day period the Tribes are without counsel, and the Tribes have submitted to the Bureau of Indian Affairs an attorney contract for approval, no default may be entered until thirty (30) days after approval of the contract. During such period, the Tribes, their agencies, or officers shall be allowed to cure any default. No judgment by default shall be entered against the Tribes, their agencies, or officers in any case unless the claimant establishes his claim or right to relief, including his authority to bring the suit, and his damages by evidence satisfactory to the Court.
Section 903. Offer of Judgment
At any time more than ten (10) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within ten (10) days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability, or both, remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than ten (10) days prior to the commencement of hearings to determine the amount or extent of liability.
Section 904. Judgment for Specific Acts - Vesting Title
If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the Court may direct the act to be done at the cost of the disobedient party by some other person appointed by the Court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The Court may also in proper cases adjudge the party in contempt. If real or personal property is within the tribal jurisdiction, and the interest in said property at issue in the action is not held in trust by the United States as Indian lands, the Court in lieu of directing a conveyance of that interest may enter a judgment divesting the interest from any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application.
Section 905. Summary Judgment
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of twenty (20) days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at least ten (10) days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be entered on the issue of liability alone although there is a genuine issue as to the amount of damages.
(d) Case Not Fully Adjudicated on Motion. If on motion under this Section judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the Court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The Court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this Section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the Court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the Court at any time that any of the affidavits presented pursuant to this Section are presented in bad faith or solely for the purpose of delay, the Court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
Section 906. Declaratory Judgments
The procedure for obtaining a declaratory judgment in actions arising in equity, or through contract, or pursuant to any specific Tribal law authorizing a declaratory judgment, shall be in accordance with this Title, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Sections 703 and 704. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The Court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.
Section 907. Entry of Judgment
(a) Subject to the provisions of Section 901(b), the Court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it:
(1) upon a general verdict of a jury, or upon a decision by the Court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the Court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the Court,
(2) upon a decision by the Court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories.
(b) Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered in the civil docket book. Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the Court.
Section 908. New Trials - Amendments of Judgments
(a) Grounds. A new trial is a re-examination in the same Court, of an issue of fact, or of law, or both and may be granted to all or any of the parties and on all or part of the issues for any of the following reasons:
(1) Irregularity in the proceedings of the Court, jury, referee, or prevailing party, or any order of the Court or referee, or abuse of discretion, by which the party was prevented from having a fair trial, or
(2) Misconduct of the jury or prevailing party, or
(3) Accident or surprise, which ordinary prudence could not have guarded against, or
(4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice, or
(5) Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property, or
(6) That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law, or
(7) Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, or
(8) Error of law occurring at the trial, and objected to by the party making the application, or
(9) When, without fault of the complaining party, it becomes impossible to make a record sufficient for appeal.
On a motion for a new trial in an action tried without a jury, the Court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions, and direct the entry of a new judgment.
(b) Time for Motion. A motion for a new trial shall be served not later than ten (10) days after the entry of the judgment, except that a motion based upon newly discovered evidence shall be made within one year from the date of the judgment.
(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the Court for good cause shown or by the parties by written stipulation. The Court may permit reply affidavits.
(d) On Initiative of Court. Not later than 10 days after entry of judgment the Court of its own initiative may order a new trial for any reasons for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the Court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the Court shall specify in the order the grounds therefor.
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.
Section 909. Relief From Judgment or Order
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the Court at any time of its own initiative or on the motion of any party and after such notice, if any, as the Court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the Supreme Court, and thereafter while the appeal is pending may be so corrected with leave of the Supreme Court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud etc. On motion and upon such terms as are just, the Court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Section 908(b); (3) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This Section does not limit the power of a Court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified of the proceedings, or to set aside a judgment for fraud upon the Court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in this Title or by an independent action.
Section 910. Harmless Error
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the Court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the Court inconsistent with substantial justice. The Court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Section 911. Stay of Proceedings to Enforce a Judgment
(a) Automatic stay; Exceptions - Injunctions, Receiverships and Patent Accountings. Except as stated in this Title, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten (10) days after its entry. Unless otherwise ordered by the Court, an interlocutory or final judgment in an action for an injunction or in a receivership action, or a judgment or order directing an accounting, shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subsection (c) of this Section govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.
(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the Court may stay the execution of or any proceedings to enforce a judgment pending the deposition of a motion for a new trial or to alter or amend a judgment made pursuant to Section 908, or of a motion or relief from a judgment or order made pursuant to Section 909, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Section 757, or of a motion for amendment to the findings or for additional findings made pursuant to Section 751(b).
(c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the Court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
(d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedes bond may obtain a stay subject to the exceptions contained in subsection (a) of this Section. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedes bond is approved by the Court.
(e) Stay in Favor of the Tribes or Agency Thereof. When an appeal is taken by the Tribes or an officer or agency thereof or by direction of any department of the Government of the Tribes, the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant.
(f) Power of the Supreme Court Not Limited. The provisions in this Section do not limit any power of the Supreme Court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.
(g) Stay of Judgment as to Multiple Claims or Multiple Parties. When the Court has ordered a final judgment under the conditions stated in Section 901(b), the Court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
Section 912. Disability of a Judge
If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the Court under this Title after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the Court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.
Section 913. Reserved
Section 914. Judgment Against Infant
It shall not be necessary to reserve in a judgment or order the right of a minor to show cause against it after his attaining full age; but in any case in which such reservation would be proper, the minor, within two (2) years after arriving at the age of eighteen (18) years, may show cause against such order or judgment.
Section 915. Judgments as Liens
Judgments of the Tribal Court and the Courts of the United States shall be liens on real estate of the judgment debtor within the tribal jurisdiction from and after the time a certified copy of such judgment has been filed in the Court Clerk's land tract records book. A five dollar ($5.00) fee shall be collected for each requested filing in the land tract records book. No judgment whether rendered by the Tribal Court or a Court of the United States shall be a lien on the real estate of a judgment debtor until it has been filed in this manner. Execution shall be issued only by the Tribal Court.
Section 916. Discharge of Money Judgment Liens
In the event of an appeal to the Tribal Supreme Court from a money judgment, the lien of such judgment, and any lien by virtue of an attachment issued and levied in the action in which such judgment was rendered, shall cease upon the judgment debtor or debtor's depositing, with the Court Clerk of the Tribal District Court, cash sufficient to cover the whole amount of the judgment, including interest, costs and any attorney fees, together with costs and interest on the appeal, accompanied by a written statement, executed by the judgment debtor or debtors, that such deposit is made to discharge the lien of such judgment and any lien by virtue of an attachment issued and levied in the action, as provided for herein. It shall be the duty of the Court Clerk, upon receipt of such a cash deposit and written statement, immediately to enter the same and the amount of case received upon the civil appearance docket in the action, upon the judgment docket opposite the entry of such judgment, and upon the land tract records book if the judgment has been filed therein. It shall further be the duty of the Court Clerk to deposit the case so received in any action in a separate interest bearing official depository account and to hold the same pending final determination of the action, and, upon final determination of the action, to pay, or apply the same upon any judgment that might be rendered against the depositor or depositors, and to refund any balance in excess of any such judgment to the depositor or depositors, or, in the event the action be finally determined in favor of the depositor or depositors, to refund the whole amount thereof to the depositor or depositors.
Section 917. Additional Case Deposits
A judgment creditor may, at any time, upon reasonable notice to the judgment debtor or debtors, move the Court for the deposit of additional cash; and if it appears that the case which has been deposited is insufficient to cover the whole amount of the judgment, including interest, costs and any attorney fees, together with costs and interest on the appeal, the Court shall order the deposit of additional cash. If the additional cash is not deposited within a reasonable time, which time shall be set by the Court, the judgment shall be revived and attachment may be issued thereon.
Section 918. Reversal By Supreme Court
In the event of a reversal of the judgment by the Supreme Court, no money deposited to discharge the lien of such judgment shall be refunded by the Court Clerk until final disposition of the action.
Section 919. Interest on Money Judgments
All money judgments of the Tribal District Court shall bear interest at the rate of ten percent (10%) simple interest per annum, except authorized judgments against the Tribes, their political subdivisions, and agents in their official capacity which judgments shall not bear interest unless such is specifically provided for, provided that when a rate of interest is specified in a contract, the rate therein shall apply to the judgment debt and be specified in the judgment if the rate does not exceed the lesser of any limitation imposed by Tribal law, or the law of the jurisdiction in which the contract was made, upon the amount of interest which may be charged. A contract, the rate therein shall apply to the judgment debt and be specified in the judgment if the rate does not exceed the lesser of any limitation imposed by Tribal law, or the law of the jurisdiction in which the contract was made, upon the amount of interest which may be charged.
Section 920. Exempt Property
The following property shall be exempt, except as to enforcement of contractual liens or mortgages, from garnishment, attachment, execution and sale, and other process for the payment of principal and interest, costs, and attorney fees upon any judgment of the Tribal District Court:
(a) Three-fourths (3/4) of the net wages earned per week by the person or an amount equivalent to forty (40) times the federal minimum hourly wages per week, whichever is greater, except as may be specifically provided by law for child support payments.
(b) One automobile of fair market value not exceeding One Thousand Dollars ($1,000.00).
(c) Tools, equipment, utensils, or books necessary to the conduct of the persons business but not including stock or inventory.
(d) Actual trust or restricted title to any lands held in trust by the United States, or subject to restrictions against alienation imposed by the United States but not including leasehold and other possessory interests in such property.
(e) Any dwelling used as the actual residence of the judgment debtor, including up to five acres of land upon which such dwelling is located whether such dwelling is owned or leased by the judgment debtor.
(f) Household goods, furniture, wearing apparel, personal effects, but not including televisions, radios, phonographs, tape recorders, home computers, (not otherwise exempt) more than two (2) firearms, works of art, and other recreational or luxury items.
(g) One horse, one bridle, and one saddle.
(h) All implements of husbandry used upon the homestead, not more than four cows with their immature offspring, two hogs with their immature offspring, ten chickens, and feed suitable and sufficient to maintain said livestock and fowls for a period of one year.
(i) All ceremonial or religious items.
Section 920.1. Payment of Judgments From Individual Indian Moneys
Whenever the Tribal District court shall have ordered payment of money damages to an injured party and the debtor refuses or neglects to make such payment within the time set for payment by the Court, or when an execution is returned showing no property found, and when the debtor has sufficient funds to his credit at any Bureau of Indian Affairs Agency Office to pay all or part of such judgment, the Clerk of the Tribal District Court, upon request of the judgment creditor, shall certify the record to the superintendent of the agency, who shall certify to the Secretary of the Interior the record of the case and the amount of the available funds. If the Secretary shall so direct, the disbursing agent shall pay over to the judgment creditor the amount of the judgment, or such lessor amount as may be specified by the Secretary from the account of the judgment debtor.
SUBCHAPTER A - FOREIGN JUDGMENTS
Section 921. Definition
In this Title "foreign judgment" means any judgment, decree, or order of a Court of the United States, any Indian Tribe, or of any other Court which is entitled to comity or full faith and credit in the Tribal Court.
Section 922. Filling and Status of Foreign Judgments
A copy of any foreign judgment authenticated in accordance with the applicable act of Congress or of the statutes of the Tribes may be filed in the office of the Court Clerk. The clerk shall treat the foreign judgment in the same manner as a judgment of the Tribal District Court. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of the Tribal District Court and may be enforced or satisfied in like manner. Provided, however, that no such filed foreign judgment shall be a lien on real estate of the judgment debtor until a certified copy of the judgment so filed is also filed in the office of the Court Clerk as provided by law in the land track record book.
Section 923. Grounds for Non-Recognition
(a) A foreign judgment is not conclusive if
(1) The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
(2) The foreign court did not have personal jurisdiction over the defendant; or
(3) The foreign court did not have jurisdiction over the subject matter.
(b) A foreign judgment need not be recognized if
(1) The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend;
(2) The judgment was obtained by fraud;
(3) The cause of action on which the judgment is based is repugnant to the public policy of the Tribes;
(4) The judgment conflicts with another final and conclusive judgment;
(5) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise then by proceedings in that court; or
(6) In the case of jurisdiction based only on personal service, the foreign court was seriously inconvenient forum for the trial of action.
Section 924. Notice of Filing
(a) At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the clerk of the Court an affidavit setting forth the name and last known post office address of the judgment debtor, and of the judgment creditor.
(b) Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the judgment creditor's lawyer, if any. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
(c) No execution or other process for enforcement of a foreign judgment filed hereunder shall issue until twenty (20) days after the date the judgment is filed.
Section 925. Stay of Execution of Foreign Judgment
(a) If the judgment debtor shows the Tribal District Court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the Court shall stay enforcement of the foreign judgment until the appeal is concluded, or until the time for appeal expires, or until the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the law of the jurisdiction in which it was rendered.
(b) If the judgment debtor shows the Tribal District Court any ground upon which enforcement of a judgment of the Tribal Court would be stayed, the Court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in the Tribal jurisdiction.
Section 926. Fees
Any person filing a foreign judgment shall pay to the Court Clerk those fees now and hereafter prescribed by the statute or by authorized Court rule for the filing of an action in the Court. Fees for docketing, transcription, or other enforcement proceedings shall be the same as provided for judgments of the Tribal District Court.
Section 927. Optional Procedure
The right of a judgment creditor to bring an action to enforce his judgment instead of proceedings under this subchapter remains unimpaired.
SUBCHAPTER B - EXECUTION
Section 931. Executions Defined
Executions shall be deemed process of the Court, and shall be issued by the clerk, and directed to the Chief of the Tribal Police.
Section 932. Kinds of Executions
Executions are of three kinds:
(a) Against the property of the judgment debtor.
(b) For the delivery of possession of real or personal property, with damages for withholding the same, and costs.
(c) Executions in special cases.
Section 933. Property Subject to Levy
Lands, tenements, goods and chattels, not exempt by law shall be subject to the payment of debts, and shall be liable to be taken on execution and sold, as hereinafter provided.
Section 934. Property Bound After Seizure
All real estate not bound by the lien of the judgment, as well as goods and chattels of the debtor, shall be bound from the time they shall be seized in execution.
Section 935. Execution Must Be Issued Within Five Years
If execution is not issued and filed as provided by this subchapter within five (5) years after the date of any judgment that now is or may hereafter be rendered, in the Tribal Court or if five (5) years have intervened between the date that the last execution on such judgment was filed and the date that writ of execution was filed such judgment shall become unenforceable and of no effect, and shall cease to operate as a lien on the real estate of the judgment debtor. Provided, that this section shall not apply to judgments in favor of the Tribes its subdivisions or agents.
Section 936. Priority Among Property
The writ of execution against the property of the judgment debtor, issuing from the Tribal Court shall command the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same non-trust interest in lands and tenements of the debtor; and the amount of the debt, damages and costs, for which the judgment is entered, shall be endorsed on the execution.
Section 937. Priority Among Executions
When two or more writs of execution against the same debtor shall be sued out and when two or more writs of execution against the same debtor shall be delivered to the officer prior to the date of sale or this property, no preference shall be given to either of such writs; but if a sufficient sum of money be not made to satisfy all such executions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands, provided that nothing herein contained shall be so construed as to affect any preferable lien which one or more of the judgments, on which execution issued, may have on the property of the judgment debtor.
Section 938. Levy By Priority
The officer to whom a writ of execution is delivered, shall proceed immediately to levy the same upon the goods and chattels of the debtor; but if no goods and chattels can be found, the officer shall endorse on the writ of execution, "no goods," and forthwith levy the writ of execution upon any interests in the lands and tenements of the debtor, which may be liable to satisfy the judgment; and if any of the interests in such lands and tenements of the debtor which may be liable shall be encumbered by mortgage or any other lien or liens, such lands and tenements may be levied upon and appraised and sold, subject to such lien or liens, which shall be stated in the appraisement.
Section 939. Who Makes Levy
It shall be unlawful for anyone to levy an attachment or execution within the Tribal jurisdiction who is not a bonded Tribal or Federal Police officer.
Section 940. When Levy Void
Any attachment or execution issued to, or levied by anyone other than a bonded Tribal or Federal Police officer shall be void and of no effect and the Court Clerk or other person issuing same, or officer or other person levying same, as the case may be, together with their bondsmen shall be liable for any damage caused thereby.
Section 941. Penalty for Unlawful Levy
Anyone violating the provisions of Section 939 of this Title shall be punished by a fine not to exceed one hundred dollars ($100.00) or confinement in the Tribal jail not to exceed thirty (30) days or both.
Section 942. Levy on Property Claimed By Third Person
If the officer, by virtue of an execution issued from the Tribal Court, shall levy the same on any goods and chattels claimed by any person other than the defendant, or be requested by the plaintiff to levy on any such goods and chattels, the officer may require the plaintiff to give him an undertaking, with good and sufficient securities to pay all costs and damages that he may sustain by reason of the detention or sale of such property; and until such undertaking shall be given, the officer may refuse to proceed as against such property.
Section 943. Re-Delivery to Defendant
In all cases where the Tribal Police Chief or other officer shall, by virtue of an execution, levy upon any goods and chattels which shall remain upon his hands unsold, for want of bidders, for the want of time to advertise and sell, or any other reasonable cause, the officer may, for his own security, take of the defendant an undertaking, with security, ins such sum as he may deem sufficient, to the effect that the said property shall be delivered to the officer holding an execution for the sale of the same, at the time and place appointed by said officer, either by notice, given in writing, to said defendant in execution, or by advertisement published in a legal newspaper, naming therein the day and place of sale. If the defendant shall fail to deliver the goods and chattels at the time and place mentioned in the notice to him, given, or to pay to the officer holding the execution the full value of said goods and chattels, or the amount of said debt and costs, the undertaking, given as aforesaid, may be proceeded on as in other cases.
Section 944. Notice of Sale of Chattels
The officer who levies upon goods and chattels, but virtue of an execution issued by the Tribal Court, before he proceeds to sell the same shall cause public notice to be given of the time and place of sale, for at least ten (10) days before the day of sale. The notice shall be given by advertisement, published in some newspaper printed, or, in case no legal newspaper be published, by setting up advertisements in five public places in the reservation. Two advertisements shall be put up in the township where the sale is to be held; and where goods and chattels levied upon cannot be sold for want of bidders, the officer making such return shall annex to the execution a true and perfect inventory of such goods and chattels, and the plaintiff in such execution may thereupon sue out another writ of execution, directing the sale of the property levied upon as aforesaid; but such goods and chattels shall not be sold, unless the time and place of sale be advertised, as hereinbefore provided.
Section 945. Further Levy When Property Taken Insufficient
When any writ shall issue, directing the sale of property previously taken in execution, the officer issuing said writ shall, at the request of the person entitled to the benefit thereof, his agent or attorney, add thereto a command to the officer to whom such writ shall be directed, that if the property remaining in his hands not sold shall, in his opinion, be insufficient to satisfy the judgment, he shall levy the same upon lands and tenements, goods and chattels, or either, as the law shall permit, being the property of the judgment debtor, sufficient to satisfy the debt.
Section 946. Filing and Indexing of Execution
(a) When a general execution is issued and placed in the custody of the Tribal Police Chief for levy, a certified copy of such execution shall be filed in the office of the Court Clerk and shall be indexed the same as judgments.
(b) If a general or special execution is levied upon an interest lands and tenements, the Tribal Police Chief shall endorse on the face of the writ the legal description and shall have three disinterested persons who have taken an oath to impartially appraise the property so levied on, upon actual view; and such disinterested persons shall return to the officer their signed estimate of the real value of said property.
(c) To extend a judgment lien beyond the initial or any subsequent statutory period, prior to the expiration of such period, a certified copy of a general execution thereon shall be filed and indexed in the same manner as judgments in the office of the Court.
Section 947. Waiver of Appraisement
It is against the public policy of the Tribes to allow enforcement of execution upon realty without appraisal, and if the words "appraisement waived" or other words of similar import, shall be inserted in any deed, mortgages, bonds, notes, bill or written contract, they shall be of no effect whatsoever and an appraisal shall be ordered notwithstanding any contract to the contrary.
Section 948. Return of Appraisement
The officer receiving such return of appraisement pursuant to Section 946(b) of this Title shall forthwith deposit a copy thereof with the Clerk of the Court and advertise and sell such property, agreeably to the provisions of this Title.
Section 949. When Lien Restricted
If, upon such return, as aforesaid, it appear, by the inquisition, that two thirds of the appraised value of said non-trust interest in lands and tenements, so levied upon is sufficient to satisfy the execution, with costs, the judgment on which such execution issued shall not operate as a lien on the residue of the debtor's estate, to the prejudice of any other judgment creditor; but no such property shall be sold for less than two-thirds of the value returned in the inquest; and nothing in this section contained shall, in any wise, extend to affect the sale of lands by the Tribes but all lands, the corporation or associations indebted to the Tribes for any debt or taxes, or in any other manner, shall be sold without valuation for the discharge of such debt or taxes, agreeably to any laws in such cases made and provided.
Section 950. Notice of Sale of Realty
Any non-trust interest in lands and tenements taken on execution shall not be sold until the officer causes public notice of the time and place of sale to be given by publication for two (2) successive weeks in a legal newspaper and by putting up an advertisement upon the Court house door or other public bulletin board within a common area of the Court house and in five (5) other public places in the reservation, two (2) of which shall be in the township where such lands and tenements lie. Such sale shall not be held less than thirty (3) days after the date of the first publication of the notice herein required.
All sales made without such advertisement shall be set aside on motion by the Court to which the execution is returnable.
Section 951. Confirmation of Sale
If the Court, upon the return of any writ of execution, for the satisfaction of which any lands or tenements have been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity with the provisions of this Title, the Court shall direct the clerk to make an entry on the journal that the Court is satisfied of the legality of such sale, and an order that the officer make to the purchaser a deed for such interest in lands and tenements; and the officer, on making such sale, shall deposit the purchase money with the clerk of the Court where same shall remain until the Court shall have examined his proceedings as aforesaid, when said clerk of the Court shall pay the same of the person entitled thereto, agreeably to the order of the Court.
Section 952. Police Chief's Deed
The Chief of the Tribal Police or other officer who, upon such writ or writs of execution, shall sell the said lands and tenements, or any part thereof, shall make to the purchaser as good and sufficient deed of conveyance of the land sold, as the person or persons against whom such writ or writs of execution were issued could have made of the same, at or any time after they became liable to the judgment. The deed shall be sufficient evidence of the legality of such sale, and the proceedings therein, until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate in the premises therein mentioned as was vested in the party at, or after, the time when such lands and tenements became liable to the satisfaction of the judgment; and such deed of conveyance, to be made by the Chief of the Tribal Police or other officer, shall recite the execution or executions, or the substance thereof, and the names of the parties, the amount and date of rendition of each judgment, but virtue whereof the said lands and tenements were sold as aforesaid, and shall be executed, acknowledged and recorded as is or may be provided by law, to perfect the conveyance of such interests in real estate in other cases.
Section 953. Advance of Printer's Fees
The officer who levies upon goods and chattels, or lands and tenements, or who is charged with the duty of selling the same by virtue of any writ of execution, may refuse to publish a notice of the sale thereof by advertisement in a newspaper until the party for whose benefit such execution issued, his agent or attorney, shall advance to such officer so much money as will be sufficient to discharge the fees of the printer for publishing such notice.
Section 954. Demand for Printing Fees
Before any officer shall be excused from giving the notification mentioned in Section 952, he shall demand of the party for whose benefit the execution was issued, his agent or attorney, the fees in said section specified.
Section 955. Place of Sale
All sales of interests in lands or tenements under execution shall be held at the Tribal Court house unless some other place within the reservation is designated by the judge having jurisdiction in the case. No Tribal Policeman or other officer making the sale of property, either personal or real, nor any appraiser of such property, shall either directly or indirectly, purchase the same; and every purchase so made shall be considered fraudulent and void.
Section 956. Other Executions of Realty Not Sold
If lands or tenements, levied on as aforesaid, are not sold upon one execution, other executions may be issued to sell the property so levied upon.
Section 957. Levy on Realty Under Several Executions
In all cases where two or more executions shall be put into the hands of the Tribal Police or other officer, and it shall be necessary to levy on real estate to satisfy the same, and either of the judgment creditors, in whose favor one or more of said executions are issued, shall require the Tribal Police or other officer to levy said executions, or so many thereof as may be required, on separate parcels of the real property of the judgment debtor or debtors, it shall be the duty of the officer, when required, to levy the same on separate parcels of the real property of the judgment debtor or debtors, when, in the opinion of the appraisers, the property of said debtors will not be sufficient, at two-thirds of its appraised value, to satisfy all the executions chargeable thereon, such part of the same shall be levied on, to satisfy each execution, as will bear the same proportion in value to the whole, as the amount due to the execution bears to the amount of all the executions chargeable thereon, as near as may be according to the appraised value of each separate parcel of said real property.
Section 958. Deed by Successor of Officer Making Sale
If the term of service of the Tribal Police Chief or other officer who has made, or shall hereafter make sale of any non-trust interest in lands and tenements, shall expire, or if the Tribal Police Chief or other officer shall be absent, or be rendered unable by death or otherwise, to make a deed of conveyance of the same, any succeeding Tribal Police Chief or other officer or the law enforcement officer acting on his behalf, on receiving a certificate from the Court from which the execution issued for the sale of said non-trust interest in lands and tenements, signed by the clerk, by order of said Court, setting forth that sufficient proof has been made to the Court that said sale was fairly and legally made, and on tender of the purchase money, or if the same or any part thereof be paid then on proof of such payment and tender of the balance, if any, may execute to the said purchaser or purchasers, or his or their legal representatives, a deed of conveyance of said lands and tenements so sold. Such deed shall be as good and valid in law and have the same effect as if the Tribal Police Chief or other officer who made the sale had executed the same.
Section 959. Payment to Defendant of Overplus After Sale
If, on any sale made as aforesaid, there shall be in the hands of the Tribal Police Chief or other officer more money than is sufficient to satisfy the writ or writs of execution, with interest and costs, the Tribal Police Chief or other officer shall, on demand, pay the balance to the defendant in execution.
Section 960. Reversal of Judgment After Sale of Interest in Land
If any judgment or judgments, in satisfaction of which any non-trust interests lands or tenements are sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of the purchaser or purchasers; but in such cases, restitution shall be made, by the judgment creditors, of the money, for which such lands or tenements were sold, with lawful interest from the day of sale.
Section 961. Execution on Judgment in Favor of Tribes
In all civil actions wherein the Tribes as plaintiff, have heretofore or may hereafter recover judgment, and where in any such action an execution has or may be issued, the Tribes through the officer or officers on whose relation the action was brought, may bid at such execution sale, and buy said property offered for sale, for any amount not to exceed the amount of the judgment in such action and such additional amount as may be approved by the Business Committee said amount to be credited upon the judgment.
And further, when such property offered for the sale at execution is brought by the Tribes, said property may be sold for the Tribes by the officer or officers upon whose relation the Tribes were party plaintiff, and further provided that at such execution sales the attorney or attorneys representing the Tribes may bid for the Tribes, not to exceed the amount of the judgment and such additional amount as may be approved by the Business Committee, provided however, that said bid is not more than one hundred dollars ($100.00) higher than the next best bid, and if there be no other bidder, then not to exceed one hundred dollars ($100.00).
And further provided that in disposing of such property so acquired, if it be personal property the officer or successor of the officer upon whose relation the Tribes were plaintiff may sell said property by executing a good and sufficient Bill of Sale, to be attested by the Secretary of the Tribes. And in disposing of any non-trust interest in real property so acquired or any interest or equity therein, the officer or successor in office on whose relation the Tribes was party plaintiff may execute in the name of the Tribes by said officer a good and sufficient deed, to be attested by the Secretary of the Tribes. Provided, however, that in no event shall any sale be valid under this Title for any amount less than the amount for which said property was originally bid in by the Tribes. The funds obtained upon the sale of any such property shall be placed in the fund for which the judgment was obtained, or if none, then in the Tribal land purchases fund for the purchase of further real property for the Tribes.
Section 962. Reappraisal Where Realty Twice Advertised for Sale
In all cases where a non-trust interest in real estate has been or may hereafter be taken on execution and appraised and twice advertised and offered for sale, and shall remain unsold for the want of bidders it shall be the duty of the Court, on motion of the plaintiff, to set aside such appraisement and order a new one to be made, or to set aside such levy and appraisement and order a new execution to issue, as the case may require.
Section 963. Return of Execution
The Chief of the Tribal Police or other officer to whom any writ of execution shall be directed, shall return such writ to the Court to which the same is returnable, within ninety days from the date thereof.
Section 964. Principal and Surety
In all cases where judgment is rendered in the Tribal Court upon any instrument of writing in which two or more persons are jointly and severally bound, and it shall be made to appear to the Court, by parol or other testimony, that one or more of said persons so bound, signed the same as surety or bail, for his or their co-defendant, it shall be the duty of the clerk of said Court, in recording the judgment thereon to certify which of the defendants is principal debtor, and which are sureties or bail. And the clerk of the Court aforesaid shall issue execution on such judgment, commanding the Chief of the Tribal Police or other officer to cause the money to be made of the goods and chattels, lands and tenements, of the principal debtor; but for want of sufficient property of the principal or debtor to make the same that he cause the same to be made of the goods and chattels, lands and tenements, of the surety or bail. In all cases, the property, both personal and real, of the principal debtor, within the jurisdiction of the court, shall be exhausted before any of the property of the surety or bail shall be taken in execution.
Section 965. Hearing on Assets
In addition to other discovery procedures, the Court, at any time after judgment upon motion of the judgment creditor, may order the judgment debtor to appear and answer concerning his property subject to execution to satisfy the judgment. The order to appear shall be served on the judgment debtor as a summons is served and may contain an order prohibiting the conveyance of any non-exempt property, and may order the production of any books, records, documents, or papers relating to the judgment creditors property. Such order may be enforced by contempt proceedings.
SUBCHAPTER C - CONTRIBUTION
Section 971. Joint Debtors or Sureties
When property, liable to an execution against several persons, is sold thereon, and more than a due proportion of the judgment is laid upon the property of one of them, or one of them pays, without a sale, more than his proportion, he may regardless of the nature of the demand upon which the judgment was rendered, compel contribution from the others; and when a judgment is against several, and is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal; in such case, the person so paying or contributing, is entitled to the benefit of the judgment, to enforce contribution or repayment, if within ten days after his payment he file with the Clerk of Court notice of his payment and claim to contribution or repayment. Upon a filing of such notice, the clerk shall make an entry thereof in the margin of the docket.
Section 972. Joint Tortfeasors - Contribution - Indemnity - Exemptions - Release, Covenant Not to Sue. Etc.
(a) When two or more persons become jointly or severally liable in tort for the same injury to person or property for for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them except as provided in this section.
(b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.
(c) There is no right of contribution in favor of any tortfeasor who has intentionally caused or contributed to the injury or wrongful death.
(d) A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which is in excess of what was reasonable.
(e) A liability insurer which by payment has discharged, in full or in part, the liability of a tortfeasor and has thereby discharged in full its obligation as insurer, is subrogated to the tortfeasor's right of contribution to the extent of the amount it has paid in excess of the tortfeasor's pro rata share of the common liability. This provision does not limit or impair any right or subrogation arising from any other relationship.
(f) This Title does not impair any right of indemnity under existing law. When one tortfeasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.
(g) This subchapter shall not apply to breaches of trust or of other fiduciary obligation.
(h) When a release, covenant not to sue or a similar agreement is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
(1) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
(2) It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.
SUBCHAPTER D - COSTS
Section 981. Affidavit in Forma Pauperis
Any person who cannot afford to pay costs of an action in order to vindicate his rights may be allowed by the Court to proceed without paying costs upon the filing of an affidavit in forma pauperis. The affidavit in forma pauperis shall be in the form following, and attached to the petition, viz.:
[Name of Tribes, Name of Reservation) in the District Court of [Name of Tribes): I do solemnly swear that the cause of action set forth in the petition hereto prefixed is just, and I (or we) do further swear that by reason of my (or our) poverty, I (or we) am (are) unable to give security for costs.
Section 982. False Swearing in Such Case
Any person willfully swearing falsely in making the affidavit aforesaid, shall, on conviction, be adjudged guilty of perjury, and punished as the law prescribes.
Section 983. Costs Where Defendant Disclaims
Where defendants disclaim having any title or interest in land or other property, the subject matter of action, they shall recover their costs, unless for special reasons the Court decide otherwise.
Section 984. Certain Costs Taxes at Discretion of Court
Unless otherwise provided by statute, the costs of motions, continuances, amendments and the like, shall be taxed and paid as the Court, in its discretion, may direct.
Section 985. Costs to Successful Party as Matter of Course
Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the party, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific, real or personal property.
Section 986. Costs in Other Cases
In other actions, the Court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable.
Section 987. Several Actions on Joint Instrument
Where several actions are brought on one bill of exchange, promissory note or other obligation, or instrument in writing, against several parties who might have been joined as defendants in the same action, no costs shall be recovered by the plaintiff in more than one of such actions, if the parties proceeded against in the other actions were, at the commencement of the previous action, openly within the Tribal jurisdiction or otherwise subject to suit and service of process in the Tribal District Court and the whereabouts of such persons were known or could have been ascertained with reasonable diligence.
Section 988. Clerk to Tax Costs
The Clerks of the District Court shall tax the costs in each case, and insert the same in their respective judgments, subject to retaxation by the Court, on motion of any person interested.
Section 989. Cost of Notice or Other Legal Publication
Whenever any notice, or other legal publication is required by law to be made in any action or proceeding pending in the Court, the cost of such publication shall be taxes as other costs in said action or proceeding.
Section 990. Attorney Fees Taxable as Costs
(a) In any civil action to recover on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the Court, to be taxes and collected as costs.
(b) In any civil action to enforce payment of or to collect upon a check, draft or similar bill of exchange drawn on a bank or otherwise, payment upon which said instrument has been refused because of insufficient funds or no account, the party prevailing on such cause of action shall be awarded a reasonable attorney's fee, such fee to be assessed by the Court as costs against the losing party; provided, that said fee shall not be allowed unless the plaintiff offers proof during the trial of said action that prior to the filing of the petition in the action demand for payment of the check, draft or similar bill of exchange had been made upon the defendant by registered or certified mail not less than ten (10) days prior to the filing of such suit.
(c) In any civil action or proceeding to recover for the overpayment of any charge for water, sanitary sewer, garbage, electric or natural gas service from any person, firm or corporation, or to determine the right of any person, firm or corporation to receive any such service, the prevailing party shall be allowed a reasonable attorney fee to be set by the Court, to be taxes and collected as costs.
(d) In any civil action brought to recover damages for breach of an express warranty or to enforce the terms of an express warranty against the seller, retailer, manufacturer, manufacturer's representative or distributor, the prevailing party shall be allowed a reasonable attorney fee to be set by the Court, which shall be taxes and collected as costs.
(e) In any civil action to recover damages for the negligent or willful injury to property and any other incidental costs related to such action, the prevailing party shall be allowed reasonable attorney's fees, Court costs and interest to be set by the Court and to be taxes and collected as other costs of the action, except that a plaintiff who is required to pay costs pursuant to Section 903 of this Title may not recover his attorney's fees as provided by this subsection.
Section 991. Costs Defined
Costs include, in addition to items of expense specifically recoverable as costs pursuant to any statute of the Tribes, fees required to be paid by law for the filing of any paper in an action expense for service of process as provided by law, costs of transcripts, Tribal Police Fees for service of papers and mileage, costs of publication of any notice required to be published, printing of briefs or other documents required by the Court to be printed, and any other items made recoverable as costs by Court rule.
Section 99L Authority of Court to Fix Cost Rates
The Court by rule may set the fees and costs of any service performed by the Court Clerk or Tribal Police Chief on behalf of the parties when such fees and costs are not provided for by Tribal statute. Such fees and costs shall be maintained at the minimum level possible considering the needs of the Court Fund.
CHAPTER TEN - LIMITATION OF ACTIONS
Section 1001. Limitations Applicable
Civil actions can only be commenced within the periods prescribed in this Chapter after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation. There shall be no statute of limitations applicable against civil actions brought by the Tribes on their own behalf except to the extent that a statute of limitation is expressly stated to be applicable to the Tribes by this Code or some Tribal statute.
Section 1002. Limitation of Real Actions
Actions for the recovery of real property or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the claim shall have accrued, and at no other time thereafter.
(a) An action for the recovery of non-trust interest in real property sold on execution, or for the recovery of real estate partitioned by judgment in kind, or sold, or conveyed pursuant to partition proceedings, or other judicial sale, or an action for the recovery of real estate distributed under decree of The Court, in administration or probate proceedings, when brought by or on behalf of the execution debtor or former owner, or his or their heirs, or any person claiming under him or them by title acquired after the date of the judgment or by any person claiming to be an heir or devisee of the decedent in whose estate such decree was rendered, or claiming under, as successor in interest, any such heir or devisee, within five (5) years after the date of the recording of the deed made in pursuance of the sale or proceeding, or within five (5) years after the date of the entry of the final judgment of partition in kind where no sale is had in the partition proceedings; or within five (5) years after the recording of the decree of distribution rendered by the Court in an administration or probate proceeding; provided, however, that where any such action pertains to real estate distributed under decree of the Court in administration or probate proceedings and would at the passage of this Title be barred by the terms hereof, such action may be brought within five (5) years after the passage of this Title.
(b) An action for the recovery of real property sold by executors, administrators, or guardians, upon an order or judgment of a Court directing such sale, brought by the heirs or devisees of the deceased person, or the ward of his guardian, or any person claiming under any or either of them, by the title acquired after the date of judgment or order, within five (5) years after the date of recording of the deed made in pursuance of the sale.
(c) An action for the recovery of real property sold for taxes, within five (5) years after the date of the recording of the tax deed.
(d) An action for the recovery of real property not hereinbefore provided for, within twenty (20) years.
(e) An action for the forcible entry and detention or forcible detention only of real property, within three (3) years.
(f) Paragraphs a, b, and c shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not be applied so as to bar causes of action which have heretofore accrued, until the expiration of five (5) years from and after its effective date.
(g) Nothing in this Section should be construed to impose any statute of limitation upon the enforcement of a right to possession of real property held by the United States in trust for any Indian or Indian Tribes under any law of the United States or restricted against alienation by any law of the United States in conformity to the laws of the United States relating to such real property.
Section 1003. Persons Under Disability In Real Property Actions
Any person entitled to bring an action for the recovery of real property, who may be under any legal disability when the cause of action accrues, may bring his action within two years after the disability is removed.
Section 1004. Limitation of Other Actions
Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
(a) Within seven (7) years: An action upon any contract, agreement or promise in writing.
(b) Within five (5) years: An action upon a contract express or implied not in writing; an action upon a liability created by statute including a forfeiture or penalty except where the statute imposes a different limitation and an action on a foreign judgment.
(c) Within three (3) years: An action for trespass upon real property; an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract except as otherwise provided in building construction tort claims, and not hereinafter enumerated; an action for relief on the ground of fraud the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.
(d) Within one (1) year: An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment.
(e) An action upon the official bond or undertaking of an executor, administrator, guardian, Tribal Police officer, or any other officer, or upon the bond or undertaking given in attachment, injunction, arrest or in any case whatever required by the statute, can only be brought within five (5) years after the cause of action shall have accrued.
(f) An action for relief, not hereinbefore provided for, can only be brought within five (5) years after the cause of action shall have accrued.
Section 1005. Persons Under Disability in Actions Other Than Real Property Action
If a person entitled to bring an action other than for the recovery of real property be, at the time the cause of action accrued, under any legal disability, every such person shall be entitled to bring such action within one year after such disability shall be removed.
Section 1006. Absence or Flight of Defendant
When a cause of action accrues against a person and that person is out of the Tribal jurisdiction or has concealed himself, the period limited for the commencement of the action shall not begin t6 run until he comes into the Tribal jurisdiction, or while he is concealed. If, after a cause of action accrues against a person and that person leaves the Tribal jurisdiction or conceals himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought. Provided, however, that if any statute which extends the exercise of personal jurisdiction of the Court over a person or corporation based upon service outside the Tribal jurisdiction, state, or nation, or based upon service by publication permits the Court of this Tribes to acquire personal jurisdiction over the person, the period of his absence or concealment shall be computed as part of the period within which the action must be brought.
Section 1007. Limitation of New Action After Failure
If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence a new action within two years after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed. An appeal of any judgment or order against the plaintiff other than on the merits as above stated shall toll the two year period during the pendency of the appeal.
Section 1008. Extension of Limitation
In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.
Section 1009. Statutory Bar Absolute
When a right of action is barred by the provisions of any applicable statute, it shall be unavailable either as a cause of action or ground of defense, except as otherwise provided with reference to a counterclaim, setoff, or cross-claim.
Section 1010. Law Governing Foreign Claims
The period of limitation applicable to a claim accruing outside of the Tribal jurisdiction shall be that prescribed either by the law of the place where the claim accrued or by the law of this Tribes whichever last bars the claim.
Section 1011. Limitation of Building Construction Tort Claims
No action in tort to recover damages:
(a) For any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property,
(b) For injury to property, real or personal, arising out of any such deficiency, or
(c) For injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement more than ten (10) years after substantial completion of such an improvement.
CHAPTER ELEVEN = FAMILY RELATIONS
Section 1101. Recording of Marriages and Divorces
All marriages and divorces to which an Indian person in a party, whether consummated in accordance with the State law or in accordance with Tribal law or custom, shall be recorded in writing executed by both parties thereto within three (3) months at the office of the Clerk of the Tribal District Court in the marriage record and a copy thereof delivered to the Bureau of Indian affairs agency of the jurisdiction in which either or both of the parties reside for the agency records.
Section 1102. Tribal Custom Marriage and Divorce
(a) Indians who desire to become married or divorced by the custom and common law of the Tribe shall conform to the custom and common law of the Tribe. Indians who assume or claim a divorce by Tribal common law and custom shall not be entitled to remarry until they have complied with the Tribal common law and remain separated for six months as in the case of statutory divorces, nor until they have recorded such divorce at the office of the Clerk of the Tribal District Court with a copy delivered to the Bureau of Indian Affairs Agency for agency records.
(b) The validity of Indian custom marriage and divorce shall continue to be recognized as heretofore, recognized by the Cheyenne-Arapaho Tribes.
(c) In any case wherein the martial status of an Indian person is at issue, the Court shall have full authority to determine the marital status of the parties to any purported Tribal common law marriage or divorce and enter its declaratory judgment thereon.
Section 1103. Tribal Custom Action
Tribal Custom Adoptions shall continue to be recognized and shall be fully recognized by the Court, without the necessity of filing any document, when proven for the purpose of establishing extended family status in child custody actions, determining child custody, the obligation to support children, and other family matters. However, Tribal common law adoptions shall not be recognized for the purpose of probate of decedent's estates unless, prior to the death of the decedent, the common law adoption was formalized by action of the Tribal Court, or in the case of adults, by a writing acknowledging such adoption filed in the Tribal Court. A Tribal Common law adoption as a child of another does not terminate parental rights of the parents, nor deprive the natural parents of their ultimate right to the custody of child who is adopted by another pursuant to the Tribal common law.
Section 1104. Determination of Paternity and Support
The Tribal District Court shall have jurisdiction of all suits brought to determine the paternity of a child and to obtain a judgment for the support of the child. A judgment of the Court establishing the identity of the father of the child shall be conclusive of that fact in all subsequent determinations of inheritance by the Department of the Interior or by the Tribal District Court.
Section 1105. Determination of Heirs
(a) When any member of the Tribe dies within the Tribal jurisdiction or while owning a non-trust interest in land within the Tribal jurisdiction, leaving property other than an allotment or other trust property subject to the jurisdiction of the United States, any person claiming to be an heir of the decedent and may bring a suit in the Tribal District Court to determine the heirs of the decedent and to divide among the heirs such property of the decedent. No determination of heirs shall be made unless all the possible heirs known to the Court, to the superintendent of the Indian Agency, and to the claimant have been notified of the suit as in service of summons and given full opportunity to come before the Court and defend their interests. Possible heirs who are not residents of the Tribal jurisdiction may be notified by certified mail, return receipt requested, and if said notice is returned refused or otherwise unclaimed, by further first class mail containing a copy of the original notice and an additional notice stating to the recipient that the action will proceed ten days after mailing of the second notice. A copy of every such notice must be preserved in the record of the case.
(b) In the determination of heirs the Tribal District Court shall apply the written laws of the Tribe or the custom of the Tribe as to inheritance if such custom is proved and no written law exists. Otherwise, the Court shall apply State law in deciding what relatives of the decedent are entitled to be his heirs.
(c) Where the estate of the decedent includes any interest in restricted allotted lands or other property held in trust by the United States, over which the administrative law judge would have jurisdiction, the Tribal District Court may distribute only such property as does not come under the jurisdiction of the administrative law judge.
Section 1106. Approval of Wills
When any member of the Tribe dies while domiciled within the Tribal jurisdiction or while owning a non-trust interest in land within the Tribal jurisdiction, leaving a will disposing of property other than an allotment or other trust property subject to the jurisdiction of the United States, the Tribal District Court shall, at the request of any person named in the will or any other interested party, determine the validity of the will after giving notice and full opportunity to appear in Court to all persons who might be heirs of the decedent, as under the preceding section. A will shall be deemed valid if the decedent had a sane mind and understood what he was doing when he made the will and was not subject to any undue influence of any kind from another person, and if the will was made in accordance with Tribal law or custom or made in writing and signed by the decedent in the presence of two witnesses who also sign the will. If the Court determines the will to be validly executed, it shall order the property described in the will to be given to the persons named in the will or to their heirs; but no distribution of property shall be made in violation of a Tribal law or proven Tribal custom which restricts the privilege of Tribal members to distribute property by will.
SUBCHAPTER A - STATUTORY DIVORCE
Section 1111. Grounds for Divorce
The District Court may grant a divorce for any of the following causes:
(a) Abandonment for one (1) year.
(d) When the wife at the time of her marriage, was pregnant by another than her husband.
(e) Extreme cruelty.
(f) Fraudulent contract.
(h) Habitual drunkenness.
(i) Gross neglect of duty.
(j) Imprisonment of the other party in a State or Federal penal institution under sentence thereto for the commission of a felony at the time the petition is filed.
(k) Insanity for a period of five years. The fact and duration of insanity being proved by the testimony of two physicians. Such divorce does not relieve the sane spouse from the obligation and support and shall not be granted unless a guardian has been appointed.
Section 1112. Residence of Plaintiff or Defendant
Either the plaintiff or the defendant in an action for divorce must have been an actual resident, in good faith, of the Tribal jurisdiction for three (3) months next preceding the filing of the petition, or a member of the Tribe.
Section 1113. Personal Jurisdiction
The Court may exercise personal jurisdiction over a person, whether or not a resident of the Tribal jurisdiction who lived within the Tribal jurisdiction in a marital or parental relationship, or both, as to all obligations for alimony and child support where the other party to the martial relationship continues to reside in the Tribal jurisdiction. When the person who is subject to the jurisdiction of the Court has departed from the Tribal jurisdiction he may be served outside of the Tribal jurisdiction by any method that is authorized by the statutes of the Tribe. In all other cases, the Court may grant a divorce but may not enter a personal judgment for alimony or child support.
Section 1114. Custody of Children, Disposition of Prop
That the parties appear to be in equal wrong shall not be a basis for refusing to grant a divorce. If a divorce is granted it shall be granted to both parties. In any such case or where the Court grants alimony without a divorce or in any case where a divorce is refused, the Court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties. In making a property settlement, the Court shall have due regard for the needs of the family and justice to the parties.
Section 1115. Orders Concerning Property, Children· Support and Expenses
After a petition has been filed in an action for divorce and alimony, or for alimony alone, the Court may make and enforce by attachment or otherwise, such order to restrain the disposition of the property of the parties or of either of them, and for the use, management, and control thereof, or for the control of the children and support of the wife or husband during the pendency of the action, as may be right and proper; and may also make such order relative to the expenses of the suit as will insure an efficient preparation of the case; and, on granting a divorce the Court may require the husband or wife to pay such reasonable expenses of the other in the prosecution or defense of the action as may be just and proper considering the respective parties and the means and property of each; provided further, that the Court may in its discretion make additional orders relative to the expenses of any such subsequent actions, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the divorce action made for the benefit of either party or their respective attorneys. Provided, no ex parte orders shall be issued until the opposing party is granted an opportunity to be heard, unless such ex parte order provides that instead of performing thereunder the opposing party may appear on a date certain, not more than twenty (20) days thereafter, and show good cause as to why he should not comply with said order.
Section 1116. Care and Custody of Children
A petition or cross petition for a divorce, legal separation, or annulment must state whether or not the parties have minor children of the marriage. If there are such children, the Court shall make provision for guardianship, custody, support and education of the minor children, and may modify or change any order in this respect, whenever circumstances render such change proper either before or after final judgment in the action.
Any child, not emancipated and declared an adult by Court order, shall be entitled to support by the parents until the child reaches eighteen (18) years of age. If the Court determines that the parents are unable to provide for the support of the children, it may order any person obligated to support the children by the Tribal common law to be brought into the action by service of summons, and may enter an order requiring said person to contribute to the support of the children within their means.
Section 1117. Preference of Child
In any divorce action in which the Court must determine custody, the child may express a preference as to which of its parents the child wishes to have custody. The Court may determine whether the best interest of the child will be served by the expression of preference and if the Court so finds then the Court may consider the expression of preference by the child in determining custody. Provided, however, the Court shall not be bound by that choice and may take other facts into consideration in awarding custody.
Section 1118. Paternity Determination
In an action for a divorce, legal separation or annulment where there are children born to the parties, the Court may determine if the parties to the action are the parents of the children, although the Court finds that the parties are not married; and if the parties to the action are the parents of the children, the Court may determine which party should have custody of said children, and it may award child support to the parent to whom it awards custody, and make an appropriate order for payment of costs and attorney's fees.
Section 1119. Interest on Delinquent Payments
When ordered by the Court, court ordered child support payments and court ordered payments of suit monies shall draw interest at the rate of ten percent (10%) per year from the date they become delinquent, and the interest shall be collected in the same manner as the payments upon which the interest accrues.
Section 1120. Restoration of Wife's Maiden Name
When a divorce is granted, the wife shall be restored to her maiden or former name if she so desires.
Section 1121. Disposition of Property
The Court shall enter its decree confirming in each spouse the property owned by him or her before marriage and the undisposed of property acquired after marriage by him or her in his or her own right. Either spouse may be allowed such alimony out of real and personal property of the other as the Court shall think reasonable, having due regard to the value of such property at the time of the divorce. Alimony may be allowed from real or personal property, or both, or in the form of money judgment, payable either in gross or in installments, as the Court may deem just and equitable. As to such property, whether real or personal, which has been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the Court shall make such division between the parties as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof having due regard to the needs of the family. The Court may set apart a portion of the separate estate of a spouse to the other spouse for the support of the children of the marriage where custody resides with that spouse.
Section 1122. Effect of Divorce
A divorce granted at the instance of one party shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of either party in or to the property of the other, except in cases where actual fraud shall have been committed by or on behalf of the successful party.
Section 1123. Remarriage and Cohabitation
It shall be unlawful for either party to an action for divorce whose former husband or wife is living to marry a person other than the divorced spouse within six (6) months from date of the decree of divorce or to cohabit with such other person during said period and if an appeal be commenced from said decree, it shall be unlawful for either party to such cause to marry any other person and cohabit with such person until the expiration of thirty (30) days from the date on which final judgment shall be rendered pursuant to such appeal. Any person violating the provisions of this section by such marriage shall be deemed guilty of bigamy. Any person violating the provisions of this section by such cohabitation shall be deemed guilty of adultery.
An appeal from a judgment granting or denying a divorce shall be made in the same manner as in any other civil case.
Section 1124. Punishment for Certain Remarriage and Cohabitation
Every person convicted of bigamy as such offense is defined in the foregoing section shall be punished by imprisonment in the Tribal jail for a term of not more than six months.
Section 1125. Remarriage Within Six Months
A marriage wherein one of the parties had not been divorced for six months shall hereafter be ground for annulment of marriage by either party.
Section 1126. Time When Judgment Final
Every decree of divorce shall recite the day and date when the judgment was rendered. If an appeal be taken from a judgment granting or denying a divorce, that part of the judgment does not become final and take effect until the appeal is determined. If an appeal be taken from any part of the judgment in a divorce action except the granting of the divorce, the divorce shall be final and take effect from the date the decree of divorce is rendered, provided neither party thereto may marry another person until six (6) months after the date the decree of divorce is rendered; that part of the judgment appealed shall not become final and take effect until the appeal be determined.
Section 1127. Avoidance of Marriage of Incompetents
When either of the parties to a marriage shall be incapable, from want of age or understanding, or contracting such marriage, the same may be declared void by the District Court, in an action brought by the incapable party or by the parent or guardian of such party; but the children of such marriage begotten before the same is annulled, shall be legitimate. Cohabitation after such incapacity ceases, shall be a sufficient defense to any such action.
Section 1128. Alimony Without Divorce
The wife or husband may obtain alimony from the other without a divorce, in an action brought for that purpose in the District Court, for any of the causes for which a divorce may be granted. Either may make the same defense to such action as he might to an action for divorce, and may, for sufficient cause, obtain a divorce from the other in such action.
Section 1129. Evidence
No divorce shall be granted without proof taken upon the record as in other cases.
Section 1130. Setting Aside of Divorce Decrees
When a decree of divorce has been issued by the District Court, said Court is hereby authorized to dissolve said decree at any future time, provided that both parties to the divorce action file a petition, signed by both parties, asking that said decree be set aside and held for naught. And further provided that both parties seeking to have the decree set aside shall make proof to the Court that neither one has married a third party during the time since the issuance of the decree of divorce.
Section 1131. Termination of Money Payments
(a) In any divorce decree which provides for periodic alimony payments, the Court shall plainly state, at the time of entering the original decree, what dollar amount of all or a portion of each such payment is designated as support, and what dollar amount of all or a portion of such payment is a payment pertaining to a division of property. Upon the death of the recipient, the payments for support, if not already accrued, shall terminate, but the payments pertaining to a division of property shall continue until completed; and the decree shall so specify. The payments pertaining to a division of property shall be irrevocable. Upon the presentation of proper proof of death of such recipient, the Court shall order the judgment for the payment of support to be terminated, and the lien thereof released unless a proper claim shall be made for any amount of past due support payments by any executor, administrator or her within ninety (90) days from the date of death of the recipient. The Court shall also provide in the divorce decree that any such payment of support shall terminate after remarriage of the recipient, unless the recipient can make a proper showing that some amount of support is still needed and that circumstances have not rendered payment of the same inequitable. Provided however, that unless the recipient shall commence an action for such determination within ninety (90) days of the date of such remarriage, the Court shall, upon proper application, order the payment of support terminated and the lien thereof discharged.
(b) An order for continuing the payments of support shall not be a lien against the real property of the person ordered to make such payments unless the Court order specifically provides for a lien on real property or an arrearage in such payments of support has been reduced to a judgment.
(c) The voluntary cohabitation of a former spouse with a member of the opposite sex shall be a ground to modify provisions of a final judgment or order for alimony as support. If voluntary cohabitation is alleged in a motion to modify the payment of support, the Court shall have jurisdiction to reduce or terminate support payments upon proof of substantial change of circumstances relating to need for support or ability to support. As used herein, cohabitation shall mean the dwelling together continuously and habitually of a man and a woman who are in a private conjugal relationship not solemnized as a marriage according to law, or not necessarily meeting all the standards of a common law marriage. The petitioner shall make application for modification and shall follow notification procedures as used in other divorce decree modification actions.
Section 1132. Mailing of Alimony and Support Payments
If a judicial order, judgment or decree directs that the payment of child support, alimony, temporary support or any similar type of payment be made through the office of the Court Clerk, then it shall be the duty of the Court to transmit such payments to the payee by first class United States mail, if requested to do so by the payee. Such payments shall be mailed to the payee at the address specified in writing by the payee. In the event of a change in address of the payee it shall be the duty of the payee to furnish to the Court Clerk in writing the new address of the payee.
Section 1133. Modification of Decree
Notwithstanding that a decree of divorce has become final, the Court may modify its judgment relative to child support or alimony at any time in the interest of justice and equity, having due regard for the needs of the family or families of the parties, upon motion for modification filed in the original action and served with summons requiring an answer to said motion within twenty (20) days. Such motions shall be heard as if they were an independent proceeding and discovery may be had. The order of the Court determining the motion for modification shall be a final appealable order.
Section 1134. Effect on Common Law Divorce
This subchapter shall not be interpreted in derogation of the Tribal common law of Divorce, but is intended for use by those who prefer the statutory method of divorce or who cannot agree as to child custody and support, spousal support, property division, or other similar matters upon which agreement is necessary to effectuate a Tribal common law divorce.
CHAPTER TWELVE - FORCIBLE ENTRY AND DETAINER
Section 1201. Forcible Entry and Detention
The District 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 Title shall be conclusive as to any issues adjudicated therein, but it shall not be a bar to any other action brought by either party.
Section 1202. Powers of Court
The 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, and that the same lands and tenements are held unlawfully, then the court shall cause the party complaining to have restitution thereof.
Section 1203. Extent of Jurisdiction
Proceedings under this Chapter 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 or 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 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.
Section 1204. 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 ten (10) 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.
Section 1205. 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.
Section 1206. 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 ten (10) 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 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.
Section 1207. 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 of the facts constituting his defense of title or boundary dispute. If the defendant files such a verified answer or affidavit, the action shall proceed as one in ejectment before the District 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.
Section 1208. Trial by Court
All cases for forcible entry and detainer or detainer only shall be tried by the Court unless the rent and damages prayed for exceeds ten thousand (10,000) dollars.
Section 1209. 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.
Section 1210. Attorney Fee
A reasonable attorney fee shall be allowed by the Court to the prevailing party.
Section 1211. Writ of Execution - Form - New Trial
If judgment be for plaintiff, the 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:
The Cheyenne-Arapaho Tribes 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 motion for a new trial may be filed only within three (3) days of judgment but shall not operate to stay execution.
Section 1212. Stay of Execution
If no supersedes 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 supersedes 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 supersedes 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 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 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.
Section 1213. Forcible Entry and Detainer Action on Small Claims Docket
An action for forcible entry and detainer brought pursuant to procedures prescribed otherwise in this title 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 District Court. The Court Clerk shall 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 Act.
Section 1214. 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 Court:
IN THE DISTRICT COURT
CHEYENNE-ARAPAHO TRIBES OF OKLAHOMA
) Case No. SC -
FORCIBLE ENTRY AND DETAINER
___________ , 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,
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.
Subscribed and sworn to before me this ___________ day of ______________, 19 ____.
Notary Public (Clerk or Judge)
Section 1215. Summons - Form
The summons to be issued in an action for forcible entry and detainer shall be in the following form:
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 Courthouse), in ________________________ [Town], [Name of Tribes), 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 assistance 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 Court (of Judge)
Plaintiff or Attorney
CHAPTER THIRTEEN - HABEAS CORPUS
Section 1301. Persons Who May Prosecute Writ
Every person restrained of his liberty, under any pretense whatever, may prosecute, a writ of habeas corpus to inquire into the cause of the restraint, and shall be delivered therefrom when the restraint is illegal.
Section 1302. Application for Writ
Application for the writ shall be made by petition, signed and verified either by the plaintiff or by some person in his behalf, and shall specify:
(a) By whom the person, in whose behalf the writ is requested, is restrained of his liberty, and the place where restrained, naming all the parties, if they are known, or describing them, if they are not known.
(b) The cause or pretense of the restraint, according to the best of the knowledge and belief of the applicant.
(c) If the restraint be alleged to be illegal, in what the illegality consists.
Section 1303. Writ Granted
Writs of habeas corpus may be granted by any judge or magistrate of the Tribal District Court, either in open Court, or in vacation; and upon application the writ shall be granted without delay.
Section 1304. Direction and Command of Writ
The writ shall be directed to the officer or party having the person under restraint, commanding him to have such person before the Court, or judge, at such time and place as the Court or judge shall direct, to show cause if any he has for the restraint imposed upon the person on whose behalf the writ is issued, to do and receive what shall be ordered concerning him and have then and there the writ in his possession.
Section 1305. Delivery to Tribal Police Chief
If the writ be directed to the Chief of the Tribal Police, it shall be delivered by the Clerk to him without delay.
Section 1306. Service on Party Other Than Tribal Police Chief
If the writ be directed to any other person, it shall be delivered to the Chief of the Tribal Police and shall be by him served by delivering the writ to such person without delay.
Section 1307. Service When Person Not Found
If the person to whom such writ is directed cannot be found, or shall refuse admittance to the Chief of the Tribal Police, the same may be served by leaving it at the residence of the person to whom it is directed, or by affixing the same on some conspicuous place, either of his dwelling house or where the party is confined under restraint.
Section 1308. Return and Enforcement of Writ
The Chief of the Tribal Police or other person to whom the writ is directed shall make immediate return thereof, and if he neglect or refuse, after due service, to make return, or shall refuse or neglect to obey the writ by producing the party named therein, and no sufficient excuse be shown for such neglect or refusal, the Court shall enforce obedience by attachment.
Section 1309. Manner of Return
The return must be signed and verified by the person making it, who shall state:
(a) The authority or cause of restraint of the party in his custody.
(b) If the authority be in writing, he shall return a copy and produce the original on the hearing.
(c) If he has had the party in his custody or under his restraint, and has transferred him to another, he shall state to whom, the time, place and cause of the transfer.
He shall produce the party on the hearing, unless prevented by sickness or infirmity or other good cause, which must be shown in the return.
Section 1310. Proceedings in Case of Sickness or Infirmity
The Court or judge, if satisfied with the truth of the allegation of sickness or infirmity or other good cause for not producing the body of the person, may proceed to decide on the return, or the hearing may be adjourned until the party can be produced. The plaintiff may except to the sufficiency of, or controvert the return or any part thereof, or allege any new matter in avoidance; the new matter shall be verified, except in cases of commitment on a criminal charge; the return and pleadings may be amended without causing any delay.
Section 1311. Hearings and Discharge
The Court or Judge shall thereupon proceed in a summary way to hear and determine the cause, and if no legal cause be shown for the restraint or for the continuance thereof, shall discharge the party.
Section 1312. Limits on Inquiry
No judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following:
(a) Upon process issued by any court or judge of the United States, or of any State or where such court or judge has exclusive jurisdiction; or,
(b) Upon any lawful process issued on any final judgment of a court of competent jurisdiction; or,
(c) For any contempt of any court, officer or body having authority to commit; but an order of commitment as for a contempt, upon proceedings to enforce the remedy of a party, is not included in any of the foregoing specifications;
(d) Upon a warrant or commitment issued from the Tribal District Court, or any other court of competent jurisdiction, upon indictment or information.
Section 1313. Writ Upon Temporary Commitment
No person shall be discharged from an order of temporary commitment issued by any judicial or peace officer for want of bail, or in cases not bailable, on account of any defect in the charge or process, or for alleged want of probable cause; but in all such cases, the court or judge shall summon the prosecuting witnesses, investigate the criminal charge, and discharge, let to bail or recommit the prisoner, as may be just and legal, and recognize witnesses when proper.
Section 1314. Writ May Issue to Admit to Bail
The writ may be had for the purpose of letting a prisoner to bail in civil and criminal actions.
Section 1315. Notice to Interested Persons
When any person has an interest in the detention, the prisoner shall not be discharged until the person having such interest is notified.
Section 1316. Powers of Court
The Court or judge shall have power to require and compel the attendance of witnesses and to do all other acts necessary to determine the case.
Section 1317. Officers Not Liable for Obeying Orders
No Tribal policeman or other officer shall be liable to a civil action for obeying any writ of habeas corpus or order of discharge or enforcement made thereon.
Section 1318. Issuance of Warrant of Attachment
Whenever it shall appear by affidavit that anyone is illegally held in custody or restraint, and that there is good reason to believe that such person will be carried out of the jurisdiction of the Court or judge, or will suffer some irreparable injury before compliance with the writ can be enforced, the Court or judge may cause a Warrant of Attachment to be issued, reciting the facts, and directed to the Chief of the Tribal Police, commanding him to take the person thus held in custody or restraint, and forthwith bring him before the Court or judge, to be dealt with according to law.
Section 1319. Arrest of Party Causing Restraint
The Court or judge may also, if the same be deemed necessary, insert in the warrant a command for the apprehension of the person charged with causing the illegal restraint.
Section 1320. Execution of Warrant of Attachment
The officer shall execute the Warrant of Attachment by bringing the person therein named before the Court or Judge; and the like return and proceedings shall be required and had as in case of writs of habeas corpus.
Section 1321. Temporary Orders
The Court or Judge may make any temporary orders in the cause of disposition of the party during the progress of the proceedings, that justice may require. The custody of any party restrained may be changed from one person to another, by order of the Court or Judge.
Section 1322. Issuance and Service on Sunday
Any writ, warrant, or process authorized by this Chapter may be issued and served, in case of emergency on any day including Saturdays, Sundays, and holidays.
Section 1323. Issue of Process
All writs and other process, authorized by the provisions of this Chapter may be issued by the Clerk of the Court upon direction of a Judge, and except summons, sealed with the seal of such Court and shall be served and returned forthwith, unless the Court or Judge shall specify a particular time for any such return. And no writ or other process shall be disregarded for any defect therein, if enough is shown to notify the officer or person of the purport of the process. Amendments may be allowed, and temporary commitments, when necessary.
Section 1324. Protection of Infants and Insane Persons
Writ of habeas corpus shall be granted in favor of parents, guardians, masters, husbands and wives; and to enforce the rights and for the protection of infants and insane persons; and the proceedings shall, in all such cases, conform to the provisions of this Chapter.
Section 1325. Security for Costs Not Required
No deposit or security for costs shall be required of an applicant for a writ of habeas corpus.
CHAPTER FOURTEEN - MANDAMUS
Section 1401. Functions of Mandamus
The writ of mandamus may be issued by the Supreme Court or the District Court, or any justice or judge thereof to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty, resulting from an office, trust or station; but though it may require an inferior tribunal or officer to exercise its judgment or proceed to the discharge of any of its functions, it cannot control judicial discretion, or discretion committed to a Tribal Agency by law unless exercised in violation of law.
Section 1402. Writ Not Issued Where Remedy at Law
This writ may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. It may be issued on the information of the party beneficially interested.
Section 1403. Forms and Contents of Writs
The writ is either alternative or peremptory. The alternative writ must state, concisely, the fact showing the obligation of the defendant to perform the act, and his omission to perform it, and command him that immediately upon the receipt of the writ, or at some other specified time, he do the act required to be performed or show cause before the Court at a specified time and place, whey he has not done so; and that he then and there return the writ with his certificate of having done as he is commanded. The peremptory writ must be in a similar form, except that the words requiring the defendant to show cause why he has not done as commanded, must be omitted.
Section 1404. When Peremptory Writ to Issue
When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases, the alternative writ must be first issued. The peremptory writ should not be issued if there is any doubt that a valid excuse may exist.
Section 1405. Petition Upon Affidavit
The petition for the writ must be made upon affidavit, and the Court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.
Section 1406. Allowance and Service of Writ
The allowance of the writ must be endorsed thereon, signed by the Judge of the Court granting it, and the writ must be served personally upon the defendant; if the defendant, duly served, neglect to return the same, he shall be proceeded against as for contempt.
Section 1407. Answer
On the return day of the alternative writ, or such further day as the Court may allow, the party on whom the writ shall have been served may show cause, by answer made in the same manner as an answer to a complaint in a civil action.
Section 1408. Failure to Answer
If no answer be made, a peremptory mandamus must be allowed against the defendant; if answer be made, containing new matter, the same shall not, in any respect, conclude the plaintiff, who may, on the trial or other proceeding, avail himself of any valid objections to its sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance.
Section 1409. Similarity to Civil Action
No other pleading or written allegation is allowed than the writ and answer; these are the pleadings in the case, and have the same effect, and are to be construed and may be amended in the same manner, as pleadings in a civil action; and the issues thereby joined must be tried, and the further proceedings thereon had, in the same manner as in a civil action.
Section 1410. Recovery by Plaintiff
If judgment be given for the plaintiff, he shall recover the damages which he shall have sustained, to be ascertained by the Court, or by referees, as in a civil action, and costs; and a peremptory mandamus shall also be granted to him without delay.
Section 1411. Damages Bar Further Actions
A recovery of damages, by virtue of this Chapter against a party who shall have made a return to a writ of mandamus, is a bar to any other action against the same party for the making of such return.
Section 1412. Penalty for Refusal or Neglect to Perform
(a) Whenever a peremptory mandamus is directed to any public officer, body or board, commanding the performance of any public duty specially enjoined by law, if it appear to the Court that such officer, or any member of such body or board, has, without just excuse, refused or neglected to perform the duty so enjoined, the Court may impose a fine, not exceeding Five Hundred Dollars ($500.00), upon every such officer or members of such body or board. Such fine, when collected, shall be paid into the Tribal treasury,
(b) Whenever the peremptory writ of mandamus is directed to any private person commanding the performance of any private duty specifically enjoined by law, if it appear to the Court that such person has, without just excuse, refused or neglected to perform the duty so enjoined, the Court may impose a civil fine, not exceeding Five Hundred Dollars ($500.00) upon such person and may commit him to the custody of the Tribal Police for a term of sixty (60) days or until he shall perform or agree to perform such duty or otherwise purge his contempt. The Court may, in an appropriate case, order the Chief of the Tribal Police to perform the act required which performance shall have the same effect as if performed by the person to whom the peremptory writ was issued.
CHAPTER FIFTEEN - QUO WARRANTO
Section 1501. Quo Warranto Relief Obtainable by Civil Action
The writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished and the remedies heretofore obtainable in those forms may be had by civil action; provided, that such cause of action may be instituted and maintained by the contestant for such office at any time after the issuance of the certificate of election by the Tribal election board, and before the expiration of thirty (30) days after such official is inducted into office; provided further, that all suits now pending, contesting such elections, shall not be dismissed because of the prematurity as to time of their commencement, which shall be deemed valid and timely, if commenced after the issuance of the election certificate or after twenty (20) days after the result of said election having been declared by such election board; and provided further, that this Chapter shall not apply to any primary election.
Section 1502. Grounds for Action
Such action may be brought in the Supreme Court by its leave or in the District Court, in the following cases:
(a) When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, or shall claim any franchise within the Tribal jurisdiction or any office in any corporation created by authority on this Tribes;
(b) Whenever any public officer shall have done or suffered any act which, by the provisions of law, shall work a forfeiture of his office;
(c) When any association or number of persons shall act within the Tribal jurisdiction as a corporation without being legally incorporated or domesticated;
(d) When any corporation does or admits acts which amount to a surrender or a forfeiture of its rights and privileges as a corporation, or when any corporation abuses its power or intentionally exercises powers not conferred by law;
(e) For any other cause for which a remedy might have been heretofore obtained by writ of quo warranto, or information in the nature of quo warranto.
Section 1503. Persons Who May Bring Action
When the action is brought by the Attorney General when directed to do so by competent authority, it shall be prosecuted in the name of the Tribes, but where the action is brought by a person claiming an interest in the office, franchise or corporation, or claiming any interest adverse to the franchise, gift or grant, which is the subject of the action, it shall be prosecuted in the name and under the direction, and at the expense of such persons. Whenever the action is brought against a person for usurping an office by the Attorney General, he shall set forth in the petition the name of the person rightfully entitled to the office and his right or title thereto; when the action in such case is brought by the person claiming title, he may claim and recover any damage he may have sustained.
Section 1504. Judgment in Contest for Office
In every case contesting the right to an office, judgment shall be rendered according to the rights of the parties, and for the damages the plaintiff or person entitled may have sustained, if any, to the time of the judgment.
Section 1505. Judgment for Plaintiff
If judgment be rendered in favor of the plaintiff or person entitled, he shall proceed to exercise the functions of the office, after he has been qualified as required by law; and the Court shall order the defendant to deliver over all the books and papers in his custody or within his power, belonging to the office from which he shall have been ousted.
Section 1506. Enforcement of Judgment
If the defendant shall refuse or neglect to deliver over the books and papers, pursuant to the order, the Court, or judge thereof, shall enforce the order by attachment or imprisonment, or both.
Section 1507. Separate Action for Damages
When judgment is rendered in favor of the plaintiff, he may, if he has not claimed his damages in the action, have a separate action for the damages at any time within one year after the judgment. The Court may give judgment of ouster against the defendant, and exclude him from the office, franchise or corporate rights; and in cases of corporations, may give judgment that the same shall be dissolved.
Section 1508. Corporations
If judgment be rendered against any corporation, or against any persons claiming to be a corporation, the Court may cause the costs to be collected by execution against the persons claiming to be a corporation, or by attachment against the directors or other officers of the corporation, and may restrain any disposition of the effects of the corporation, appoint a receiver of its property and effects, take an account, and make a distribution thereof among the creditors and persons entitled.
CHAPTER SIXTEEN - SMALL CLAIMS PROCEDURE
Section 1601. Small Claims
The following suits may be brought under the small claims procedure:
(a) Actions for the recovery of money based on contract or tort, including subrogation claims, but excluding libel or slander, where the amount sought to be recovered, exclusive of attorney's fees and other court costs, does not exceed Two Thousand Dollars ($2,000.00). Libel or slander actions may not be brought in the small claims court.
(b) Actions to replevy personal property where the value of personal property sought to be replevied does not exceed Two Thousand Dollars ($2,000.00); where the claims for possession of personal property and to recover money are pleaded in the alternative, the joinder of claims is permissible if neither the value of the property nor the total amount of money sought to be recovered, exclusive of attorney's fees and other costs, does not exceed Two Thousand Dollars ($2,000.00);
No action may be brought under small claims procedure by any collection agency, collection agent or any assignee of a claim. In those cases which are uncontested the amount of attorney's fees allowed shall not exceed ten percent (10%) of the judgment.
Section 1602. Small Claim Affidavit
Actions under the small claims procedure shall be initiated by plaintiff or his attorney filing an affidavit in substantially the following form with the Clerk of the Court:
IN THE DISTRICT COURT
SMALL CLAIMS DIVISION
) Small Claims No. _____
SMALL CLAIMS AFFIDAVIT
___________, being duly sworn, deposes and says:
That the defendant resides at ________________________________ (within) (without) the Tribal jurisdiction, and that the mailing address of the defendant is _________________________________.
That the defendant is indebted to the plaintiff in the sum of $___________ for _________________________________, which arose (within) (without) the Tribal jurisdiction that plaintiff has demanded payment of said sum, but the defendant refused to pay the same and no part of the amount sued has been paid.
That the defendant is wrongfully in possession of certain personal property described as _____________________________________ that the value of said personal property is $________________________. That plaintiff is entitled to possession thereof and has demanded that defendant relinquish possession of said personal property, but that defendant wholly refused to do so.
Subscribed and sworn to before me this ______________________ day of ___________, 19___________.
Notary Public (or Clerk or Judge)
My Commission Expires: _________________________________
On the affidavit shall be printed:
The People of [Name of Tribe), to the within named defendant:
You are hereby directed to appear and answer the foregoing claim and to have with you all books, papers and witnesses needed by you to establish your defense to said claim.
This matter shall be heard at [name and address of courthouse building], in [complete address of courthouse], at the hour of ___________ o'clock of the __________ day of __________________________, 19_____, or at the same time and place seven (7) days after service hereof, whichever is the latter. And you are further notified that in case you do not so appear, judgment will be given against you as follows:
For the amount of said claim as it is stated in said affidavit, for for possession of the personal property described in said affidavit, and, in addition, for costs of the action (including attorney fees where provided by law), including costs of service of this order.
Dated this ___________ day of ___________, 19____.
Clerk of the Court (or Judge)
Section 1603. Preparation of Affidavit
The claimant shall prepare such an affidavit as is set forth in Section 1602 of this Chapter or, at his request, the Clerk of said Court shall draft the same for him. Such affidavit may be presented by the claimant in person or sent to the clerk by mail. Upon receipt of said affidavit, properly sworn to, the Clerk shall file the same and make a true and correct copy thereof, and the clerk shall fill in the blanks in the order printed on said copy and sign the order.
Section 1604. Service of Affidavit
Unless service by the Tribal Police Chief or other authorized person is requested by the plaintiff, the defendant shall be served by mail. The Clerk shall enclose a copy of the affidavit and the order in an envelope addressed to the defendant at the address stated in said affidavit, prepay the postage, and mail said envelope to said defendant by certified mail and request a return receipt from addressee only. The Clerk shall attach to the original affidavit the receipt for the certified letter and the return card thereon or other evidence of service of said affidavit and order. If the envelope is returned undelivered and sufficient time remains for making service, the clerk shall deliver a copy of the affidavit and order to the Tribal Police Chief who shall serve the defendant in the time stated in Section 1605.
Section 1605. Date for Appearance
The date for the appearance of the defendant as provided in the order endorsed on the affidavit shall not be more than thirty (30) days nor less than ten (10) days from the date of said order. The order shall be served upon the defendant at least seven (7) days prior to the date specified in said order for the appearance of the defendant. If it is not served upon the defendant, the plaintiff must apply to the Clerk for a new alias order setting a new day for the appearance of the defendant, which shall not be more than thirty (30) days nor less than ten (10) days from the date of the issuance of the new order. When the clerk has fixed the date for appearance of the defendant, he shall inform the plaintiff, either in person or by certified mail, of said date and order the plaintiff to appear on said date.
Section 1606. Transfer of Actions
On motion of the defendant the action shall be transferred from the small claims docket to the general civil docket of the Court, provided said motion is filed and notice given to opposing party at least forty-eight (48) hours prior to the time fixed in the order for defendant to appear or answer and, provided further, that the defendant deposit the cost of filing a complaint in a civil action, and thereafter, the action shall proceed as other civil actions and shall not proceed under the small claims procedure. The clerk shall enclose a copy of the order transferring the action from the small claims docket to the general docket in an envelope addressed to the plaintiff, with postage prepaid. Within twenty (20) days of the date the transfer order is signed, the plaintiff shall file a civil complaint that conforms to the standards of civil pleadings and shall be answered and proceed to trial as in other civil actions. If the plaintiff ultimately prevails in the action so transferred by the defendant, a reasonable attorney's fee shall be allowed to plaintiff's attorney to be taxes as costs in the case.
Section 1607. Counterclaim or Setoff
No formal pleading, other than the claim and notice, shall be necessary, and their is no requirement to assert any counterclaim or 'cross claim, but if the defendant wishes to state new matter which constitutes a counterclaim or a setoff, he shall file a verified answer, a copy of which shall be delivered to the plaintiff or his attorney in person, and filed with the Clerk of the Court not later than forty-eight (48) hours prior to the hour set for the appearance of said defendant in such action. Such answer shall be made in substantially the following form:
COUNTERCLAIM OR SETOFF
IN THE DISTRICT COURT
SMALL CLAIMS DIVISION
) Small Claims No. _____
CLAIM OF DEFENDANT
___________, being first duly sworn, deposes and says: That said plaintiff indebted to said defendant in the sum of $________ for _________________________________ which amount defendant prays may be allowed as a claim against the plaintiff herein.
Subscribed and sworn to before me this ______ day of ___________, 19____.
Notary Public (or Clerk or Judge)
Section 1608. Actions for Amounts Exceeding in Excess of Two Thousand Dollars
If a claim, a counterclaim, or a setoff is filed for an amount in excess of Two Thousand Dollars ($2,000.00), the action shall be transferred to the general civil docket of the District Court unless both parties agree in writing and file said agreement with the papers in the action that said claim, counterclaim or setoff shall be tried under the small claims procedure. If such an agreement has not been filed, a judgment in excess of Two Thousand Dollars ($2,000.00) may not be enforced for the part that exceeds Two Thousand Dollars ($2,000.00) shall deposit with the Clerk of the Court costs that are charged in other cases, less any sums that have been already paid to the clerk, or his claim shall be dismissed and the remaining claims, if any, shall proceed under the small claims procedure.
Section 1609. Attachment or Garnishment, Other Matters
No attachment or prejudgment garnishment shall issue in any suit under the small claims procedure. Proceedings to enforce or collect a judgment rendered by the trial court in a suit under the small claims procedure shall be in all respects as in other cases. No depositions shall be taken or interrogatories or other discovery proceeding shall be used under the small claims procedure except in aid of execution. No new parties shall be brought into the action, and no party shall be allowed to intervene in the action.
Section 1610. Trial by Court
Actions under the small claims procedure shall be tried to the Court. Provided, however, if either party wishes a reporter, he must notify the Clerk of the Court in writing at least forty-eight (48) hours before the time set for the defendant's appearance and must deposit with said notice with the Clerk the sum of twenty dollars ($20.00) against the costs or producing the record. The plaintiff and the defendant shall have the right to offer evidence in their behalf by witnesses appearing at such hearing, and the judge may call such witnesses and order the production of such documents as he may deem appropriate. The hearing and disposition of such actions shall be informal with the sole object of dispensing speedy justice between the parties.
Section 1611. Payment of Judgment
If judgment be rendered against either party for the payment of money, said party shall pay the same forthwith, provided, however, the judge may make such order as to time of payment or otherwise as may, by him, be deemed to be right and just.
Section 1612. Appeals
Appeals may be taken from the judgment rendered under small claims procedure to the Supreme Court of the Tribes in the same manner as appeals are taken in other civil actions, provided that any party which did not request a reporter and provided in Section 1610 shall not be granted a new trial or other relief on appeal due to lack of a record.
Section 1613. Fees
A fee shall be charged and collected for the filing of the affidavit for the commencement of any action, for the filing of any counterclaim or setoff, for the mailing of the copy of the affidavit as determined by rules of the Court, and, if the affidavit and order are served by the Tribal Police, the Clerk shall collect the usual police service fee, which shall be taxes as costs in the case. After judgment, the clerk shall issue such process and shall be entitled to collect such fees and charges as are allowed by law for the like services in other actions. All fees collected hereunder shall be deposited with other fees that are collected by the District Court. Provided that any statute providing for an award of attorney's fees shall be applicable to the small claims division if the attorney makes an appearance in the case, whether before or after judgment or on hearing for disclosure of assets.
Section 1614. Costs
The prevailing party in an action is entitled to costs of the action, including the costs of service of the order for the appearance of the defendant and the costs of enforcing any judgment rendered therein.
Section 1615. Judgments Rendered Under Small Claims Procedure
(a) Except as otherwise provided herein, judgments rendered under the Small Claims Procedure shall not be entered upon the judgment docket. Such judgment shall not become a lien upon real property unless entered upon the judgment docket as hereinafter provided.
(b) Any small claims judgment, when satisfied by payment other than through the office of the Court Clerk or otherwise discharged, may be released by the Court upon written application to the Court by the judgment debtor and upon proof of due notice thereof having been mailed by the Court Clerk to the judgment creditor at his last known address at least ten (10) days prior to the hearing of the application. Payment of all costs necessary to accomplish said release shall be paid by the judgment debtor.
(c) Such judgment shall become a lien on any non-trust interest real property of the judgment debtor within the Tribal jurisdiction only from and after the time a certified copy of the judgment has been filed in the office of the Court Clerk for entry in the clerk's land tract records book. No judgment under the Small Claims Procedure Act shall be a lien on the real property of a judgment debtor until it has been filed in this manner. When a judgment is entered upon the judgment docket, the Court Clerk shall instruct the prevailing party of the manner in which to proceed to file such judgment for the purpose of obtaining a lien against the real property of the judgment debtor and the Court Clerk shall provide the proper certified copy of the judgment necessary to file.
Section 1616. Fee for Docketing Judgments
The Court Clerk shall, upon payment by the prevailing part of a fee established by Court rule, cause the judgment to be entered upon the judgment docket. Fees collected pursuant to this section shall become part of the cost of the action.
Section 1617. Other Action In Small Claims Court
By leave of the Court, and with the consent of all parties, other actions not provided for herein, or exceeding the maximum amount allowed to be claimed by Sections 1601 and 1608, except actions for liable and slander, may be tried under the small claims procedure. The motion for leave to file in such cases shall contain the consent of the defendant endorsed thereon, or such consent shall be promptly filed upon the submittal for filing of the small claims affidavit.