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to Table of Contents Chitimacha
Comprehensive Codes of Justice and Chitimacha Indian Tribal Court "Rules
of Court"
[Last Amended: April 15, 2003.] Originally Adopted by the Chitimacha Tribal Council, Chitimacha Tribe of Louisiana, December 5, 1989, Effective August 14, 1990; Rules of Court - 1990 TITLE
IV - CIVIL PROCEDURE
CHAPTER 1. PRETRIAL PROCEEDINGS Sec. 101. Commencement of Civil Action. (a) A civil action is commenced by filing a written complaint with the Clerk of the Tribal Court and by service of copies of the complaint on the defendants. (b) A complaint is a concise written statement of the essential facts constituting the claim. (c) A complaint shall be accompanied by payment of the applicable fees as set by the Court. (d) The complaint shall be verged before the Judge, Clerk or any notary public. (Revised by Ordinance #4-98; Adopted: June 18,1998; Effective: June 18,1998 )
(a) Each defendant shall be served with a copy of the complaint. (b) Service shall be made in one of the following ways:
(c) Service of process upon the Tribe or an officer of the Tribe named as a party defendant shall be made by delivering a copy of the complaint to the Tribal Chairman, the tribal attorney and the officer named in the manner prescribed in subsection (b) above, except that service by publication is not permitted. (d) Service in person shall be made by any law enforcement officer or by any adult not a party to the case. (e) Where the Court has jurisdiction of the cause of the action, service may be made anywhere within the United States. (f) The return postal receipt shall be filed in the case record and shall constitute proof of service by mail. The affidavit of service by the person making service shall be filed in the case record and shall constitute proof of service. (g) If a defendant is two or more persons associated in business together and transacting such business under a common name, service of process need be made on only one of the associates; each associate need not be served. (h) If a defendant is a corporation, service of process may be made on any officer, person in charge of any office, or registered agent thereof. (i) If a defendant is a minor, service of process may be made on a parent, person having custody of such minor, or the legally appointed guardian of such minor. If a guardian ad litem has been appointed, service shall also be made on the guardian ad litem. (j) If a defendant has been judicially declared to be of unsound mind, and is either an inmate of an institution for the mentally incompetent, or has a legally appointed guardian, service of process may be on the superintendent of such institution or on such guardian.
(a) At the time the verified complaint is filed, the Clerk shall schedule a hearing on the complaint not less than fifteen (15) days after the complaint is filed. The Clerk shall furnish the plaintiff with a copy of the notice showing the time and place of the hearing and shall affix such notice to the copy of the complaint to be served on each defendant. At the hearing, the presiding Judge shall ascertain whether:
(b) if the claim is ready for trial, the Judge may try it immediately or set a subsequent date for (c) If the claim is not ready for trial, the Judge shall set a subsequent date for trial and order such preparation or other actions to be undertaken by the parties as the Judge deems necessary.
(a) Upon request of any party or upon the Court's own initiative, the Court shall issue subpoenas to compel the testimony of witnesses, or the production of books, records, documents or any other physical evidence relevant to the determination of the case that does not impose an undue burden on the person possessing the evidence. (b) A subpoena shall bear the signature of the Chief Judge or his/her designee, and shall state the name of the Court, the name of the person or description of the physical evidence to be subpoenaed, the title of the proceeding, and the time and place where the witness is to appear or the evidence is to be produced. (Revised by Ordinance #4-93; Adopted: May 10, 1993; Effective: May 10,1993)
A subpoena may be served in the manner prescribed in Section 102, except that service by publication is not permitted. A subpoena must ordinarily be served at least five (5) days in advance of the time set for appearance and must be served sufficiently in advance of the date when the appearance of the witness is required to enable the witness to reach the appearance place by the ordinary or usual method of transportation.
In the absence of a justification satisfactory to the Court, a person who fails to obey a subpoena issued and served in accordance with the provisions of this Code may be cited and held in contempt of court.
(a) Each witness answering a subpoena shall be entitled to a fee as set by the Court for each day the witness' services are required. (b) The fees and expenses provided in this section shall be taxed as court costs and assessed against the parties in the judgment in the case. (Revised by Ordinance #4-98 ; Adopted:June 18,1998; Effective: June 18,1998)
Upon timely application, any person shall be permitted to intervene in an action if the Court determines that justice cannot otherwise be granted or that without such intervention the rights of the person cannot be properly protected. Any person desiring to intervene shall serve a motion to intervene upon the parties. A motion to intervene shall state the grounds for intervention and shall be accompanied by a pleading setting forth the claim or defense for which intervention is ought. Upon hearing or stipulation of the parties, the Court shall determine whether or not intervention will be allowed. CHAPTER 2. TRIALS. Sec. 201. Trial procedure. (a) The time and place of court sessions, the rules of evidence to be followed by the court, and all other details of judicial procedure may be set out in rules of court. (b) All testimony of witnesses shall be given orally under oath in open court and subject to the right of cross-examination. Documentary and tangible evidence shall also be received in open court. (c) Civil cases shall be tried before a Judge and not a jury, except that the Court in its discretion my grant a jury trial upon timely request of a party where the amount in controversy is more than $20,000.00. Within ten (10) days from the execution of the Jury Order, a bond for costs as determined by the Court must be posted with the Clerk of Court by the party requesting same. If the bond is not received within the required time the jury request shall be considered waived. If a jury trial is granted, the Court shall follow the provisions of Section 507 of Title II, and the compensation and expenses of the jurors shall be taxed as court cost, and assessed against the parties in the final judgment. (d) The case of the plaintiff shall be presented first, followed by the case of the defendant. If rebuttal is required, the plaintiff shall proceed first, followed by the defendant. (e) At the conclusion of the evidence, the plaintiff, and the defendant may, in turn, summarize the proof and make final argument. (Revised by Ordinance #4-98; Adopted: June 18,1998; Effective: June 18,1998)
(a) Consolidation. The Court may, upon motion of any party or upon on its own motion, order some or all of the issues raised in separate actions tried together when there is a common issue of fact or law relating to the actions and consolidation would tend to avoid unnecessary cost or delay. (b) Separate trials. The Court may, to avoid prejudice or in furtherance of convenience, order a separate trial of a claim or issue. Sec. 203. Substitution of parties. If a party dies, becomes incompetent, or transfers his interest, a substitute or successor party may be joined or substituted as justice requires. CHAPTER 3. JUDGMENTS Sec. 301. Judgments. A judgment shall be entered in each civil case. The judgment shall be for money or other relief or for dismissal. A judgment is complete and shall be deemed entered when it is signed by the Judge and filed with the Clerk.
(a) If a defendant, after being served with a copy of the complaint as provided in Section 102, and notice of a hearing as provided in Section 103 fails to appear at the hearing or trial or otherwise to defend the case the Court may enter a default judgment granting the relief sought in the complaint upon such showing of proof by the plaintiff as the Court deems appropriate. (b) If a plaintiff, after being notified of the time and place of the hearing as provided in Section 103, fails to appear at the hearing or trial, or otherwise to prosecute the case, the Court may dismiss the case for failure to prosecute. (c) The Court may, for good cause shown, set aside entry of a default judgment or dismissal for failure to prosecute.
Proof that a judgment has been satisfied in whole or in part as to any or all judgment debtors may be executed under oath and filed by an attorney of record. The Clerk shall file all satisfactions of judgment and note the amount thereof in the judgment docket.
(a) If any final judgment for money rendered by the Court is not satisfied within sixty (60) days of entry or such other time fixed by the Court, the judgment creditor may apply to the Court for an order directing the judgment debtor to appear before the Court for purposes of itemizing his property. (b) After giving the judgment debtor an opportunity for hearing, the Court shall determine what property is available for execution and shall order tribal law enforcement officers to seize such property as may be necessary to satisfy the judgment.
A judgment shall constitute a lien on any nonexempt property of the judgment debtor. Notice of this lien may be entered by the judgment creditor in the public records of any county or state where such property is located.
No judgment of the Court for money shall be enforceable after ten years from the date of entry unless application to renew the judgment shall have been filed before the date of expiration pursuant to Section 307. (Revised by Ordinance #4-98; Adopted: June 18,1998 ; Effective: June 18,1998 )
Upon application of the judgment creditor prior to the expiration of ten years after the date of the entry of a judgment for money, the Court shall order the judgment renewed and extended for an additional ten years. (Revised by Ordinance#4-98; Adopted: June 18,1998; Effective: June 18,1998)
Except as provided herein, no execution or enforcement shall issue on any judgment in a civil case until the expiration of ten days after its entry. When a petition for review has been filed with the Court of Appeals following a judgment, the trial Court may stay its judgment or stay or grant an injunction during the pendency of the petition and any ensuing appeal on such terms, bond, or other conditions it considers proper to secure the rights of the adverse party as provided in Section 207 (e) of Title I of this Code.
In civil actions, costs shall be awarded the prevailing party as part of the final judgment unless the Court determines that the case has been prosecuted or defended solely for harassment and without any reasonable expectation of success. No costs shall be awarded against the Tribe or against any officer of the Tribe or member of the Tribal Council sued in his official capacity. Costs shall include filing fees reasonable and necessary expenses of involuntary witnesses, costs associated with compensation and expenses of the jury, and such other proper and reasonable expenses, exclusive of attorneys' fees.
(a) Except for judgments for the support of a spouse or child, the following property of the judgment debtor or the debtor's spouse shall be exempt from execution under Section 304:
(b) Property described in subsection (a) or this Section may, however, be subject to execution where the judgment debtor has executed a valid and lawful mortgage or security agreement with the judgment creditor, specifically pledging such property as collateral.
(a) In a civil action for garnishment filed by a judgment creditor, the Court may order garnishment of unpaid past or future wages of the judgment debtor for satisfaction of the judgment. No garnishment action shall be filed unless the judgment remains unsatisfied sixty (60) days after it was entered. In an action for garnishment the judgment debtor and the judgment debtor's employer shall be named as defendants. (b) The maximum amount of wages subject to garnishment in any one work week shall be the lesser of:
(c) A garnishment order shall lapse when the judgment is satisfied or when the judgment debtor resigns or is dismissed from his employment provided that if the judgment debtor is rehired within 90 days after such resignation or dismissal, the garnishment order shall continue in effect. (d) No employer shall discharge an employee for the reason that a judgment creditor of the employee has garnished or attempted to garnish unpaid earnings of the employee. (e) For the purposes of this Section:
CHAPTER 4. EXTRAORDINARY WRITS Sec. 401. Temporary restraining orders without notice. (a) No temporary restraining order or other injunction without notice shall be granted where the Tribe or a tribal official in his official capacity is a defendant. Otherwise, except as provided in subsection (c), no temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by oral testimony, affidavit, or the verified complaint that immediate and irreparable injury will result to the applicant before notice can be served and a hearing had thereon. (b) Where a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set for hearing at the earliest possible time and shall take precedence over all matters except previously filed matters of the same character. When the motion is heard, the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction; if he fails to do so, the court shall dissolve the temporary restraining order. On two (2) days notice to the party who obtained the temporary restraining order without notice, or on such shorter notice to that party as the Court may prescribe, the adverse party may appear and move for dissolution or modification of the temporary restraining order and the Court shall proceed to hear and determine such motion as expeditiously as possible. (c) Every temporary restraining order granted without notice shall include the date and hour of issuance and shall expire within such time after entry, not to exceed ten (10) days, as provided in the order.
A preliminary injunction restrains activities of a defendant until the case can be determined on the merits. No preliminary injunction shall be issued without notice to the adverse party and an opportunity to be heard, and no preliminary injunction shall be issued absent clear and convincing proof by specific evidence that the applicant will suffer irreparable harm during the pendency of the litigation unless a preliminary injunction is issued, that the balance of equities favors the applicant over the party sought to the enjoined. The Court may dissolve or modify a preliminary injunction at any time as the interests of justice require.
Except as otherwise provided by law, no temporary restraining order or preliminary injunction shall issue except upon the giving of security by the applicant in such sum as the Court deems proper for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States, the Tribe, or of an agency or officer of either.
Relief by habeas corpus shall be granted whenever it appears to the Court that any person is unjustly imprisoned or otherwise unlawfully deprived of his liberty. Upon the filing of a petition for habeas corpus, the Court shall issue a writ directed to the defendant commanding him to bring the person alleged to be wrongfully restrained before the Court at a time and place therein specified at which time the Court shall proceed to hear the matter and render judgment accordingly. CHAPTER 5. PETITIONS TO CHALLENGE THE MEMBERSHIP QUALIFICATION OF AN ENROLLED MEMBER. (Added by Ordinance #3-01; Adopted: December 18, 2001; Effective: November 8, 2002) Sec. 501. Petition to Challenge the Membership Qualification of an Enrolled Member. (a) Any enrolled member of the Chitimacha Tribe may file a petition challenging the eligibility for enrollment of another tribal member with the Clerk for the Tribal Court. (b) Any such Petition shall include: (1) Proof of the Petitioner's enrollment in the Chitimacha Tribe; (2) A sworn affidavit stating the facts and circumstances upon which the Petition is based and any other information that the Petitioner has to substantiate his/her allegations; (3) A statement of any relationship between the Petitioner and the person that is the subject of the Petition; (4) Proof that a copy of the Petition was mailed 1st Class mail return receipt requested to the person that is the subject of the Petition; and (5) The name and address of the Petitioner. Any Petition
not filed in accordance with these procedures shall not be accepted
and shall be returned to the Petitioner with a notice from the Court
clerk of its deficiencies.
Sec. 601. Applicable laws. (a) In determining any case over which it has jurisdiction the Court shall give binding effect to:
(b) Where appropriate, the Court may, in its discretion, be guided by statutes, common law, or rules of decision of the State in which the transaction or occurrence giving rise to the cause of action took place. (Revised
by Ordinance #3-01; Adopted: December 18, 2001: Effective: November
8, 2002) (Revised
by Ordinance #3-01; Adopted: December 18, 2001: Effective: November
8, 2002) Sec. 701. Limitations of actions. The Court shall have no jurisdiction over any action brought more than one (1) year after the occurrence or event giving rise to the cause of action, except that no statue of limitation shall bar an action commenced by the Tribe. (Revised by Ordinance # 2-95 ;Adopted: January 12,1995 ; Effective:January 12,1995;(Revised by Ordinance #3-01; Adopted: December 18, 2001: Effective: November 8, 2002) Back to Top |