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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 VI - FAMILY LAW
Sec. 101. Purpose of Adoption. The purpose of this Chapter is to protect the rights and promote the welfare of Indian children, natural parents and adoptive parents.
(a) Adult - A person eighteen years of age or older. (b) Minor - A person less than eighteen years of age. (c) Guardian - A person appointed by the Court to assume care and custody of a minor, and/or a person determined to be mentally incompetent. (d) Parent -
(Revised by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
Any adult may file a petition to adopt an Indian minor residing within the Reservation or a minor tribal member not residing on the Reservation. The Court may also hear petitions transferred from state courts pursuant to 25 U.S.C. Subsection 1911(b) and Chapter 6 of Title V of this Code. In the case of married persons maintaining a home together, the petition shall be the joint petition of husband and wife except that if one of the spouses is the natural parent of the child to be adopted, the natural parent shall not be required to join in the petition. In any case where all persons petitioning to adopt a child are not Indians, the petition shall not be granted unless:
A petition for adoption shall be filed with the Court, on a form prescribed by the Court. It shall be verified under oath by the adoptive parent or parents, and shall contain; (a) the full name, residence, and sex of the child, and documentary proof of the date and place of the birth of the child to be adopted; (b) the full name, residence, date and place of birth, and occupation of the adoptive parent or parents and documentary proof of their marital status; (c) proof of all consents required under Section 105 of this Title, and any court order terminating the parent-child relationship between the natural parent(s) and the child to be adopted; (d) an agreement by the adopting parent(s) that it is their desire that the relationship of parent and child be established between them and the child; and (e) a full description and statement of value of all property owned or possessed by the child.
Consents to adoption shall be acknowledged before an officer duly authorized to take acknowledgments and witnessed by a representative of the Court. Consents to adoption shall be required from: (a) the child's parents, provided that no consent shall be required as to any parent whose parent-child rights have been terminated by court order with respect to the child to be adopted. A minor parent may consent to an adoption provided the parents of the minor parent concur. The Court may waive consent by the minor's parents if it finds that their withholding of such consent is unreasonable; (b) any legal guardian of the child appointed under this Title; (c) the child, if twelve years of age or older, provided that the Court may waive this requirement, if it deems it necessary for the best interests of the child.
No consent to adoption shall be withdrawn unless authorized by order of the Court, after notice and opportunity to be heard is given to the petitioner in the adoption proceedings, and to the person seeking to withdraw consent. The Court shall not grant permission to withdraw consent unless it finds that the best interests of the child will be served by such withdrawal. The entry of an order of adoption renders any consent irrevocable.
Within five (5) days after the filing of a petition for adoption, the Court shall request a social worker, or similar employee of the Bureau of Indian Affairs or the Tribe to inquire into, investigate, and report in writing to the Court as to the suitability of the child for adoption, the financial ability, fitness and general background of the adoptive home and of the parent or parents, and to make recommendations on the proposed adoption.
(a) Within five(5) days after the written report required by Section 107 is flied, the Court shall fix a time for hearing on the petition for adoption. Notice of the hearing shall be provided to the adoptive parent or parents, any person whose consent is required, and, in the discretion of the Court, to interested persons whose consent is not required under Section 105. The adoptive parent or parents shall appear personally at the hearing. All other persons whose consents are necessary to the adoption shall appear personally, unless represented by a person having a power of attorney authorizing such person to represent them for the purpose of the adoption or unless such person cannot be found. (b) The judge shall separately examine all persons appearing and if satisfied as to the suitability of the child for adoption, the validity of the consents to adoption, the financial ability, fitness, and responsibility of the adoptive parents, and that the best interests of the child will be promoted by the adoption, may enter a final decree of adoption. (c) In the case of a child who has been in the care and custody of the petitioners for more than one year, the decree shall be final. Where the child has not been in the care and custody of the petitioners prior to the hearing, the Court shall enter an interim decree, and place the child in the legal custody of the petitioners for a period of not less than one year prior to entering a final decree of adoption. Where the child has been in the care and custody of the petitioners for less than one year, the Court shall enter an interim decree, and place the child in the legal custody of the petitioners for a period of time such that when the interim decree expires, the petitioners will have had care and custody of the child for at least one year.
Where an interim decree is entered, the Court, after the child has been in the custody of the petitioners for one year, shall request a supplementary written report under the same procedures as in Section 107, as to the welfare of the child, and current conditions of the adoptive home and the adoptive parents. If the Court is satisfied that the interest of the child are best served by the proposed adoption, a final decree of adoption may be entered. No final order shall be entered by the Court until the child to be adopted has lived and resided for period of at least one year in the home of the adoptive parents. In any case where the Court fends that the best interest of the child will not be served by the adoption, a guardian shall be appointed and suitable arrangements for the care of the child shall be made and the Court may request the Bureau of Indian Affairs to provide services to assist in the placement and the care of the child.
(a) All records, reports, proceedings, and orders in adoption cases are confidential records of the Court and shall not be available for release to or inspection by the public. Such records, reports, proceedings and orders shall be made available to Bureau of Indian Affairs for use in fulfilling authorized functions. (b) Upon petition of an adopted person who has reached the age of majority, for good cause shown, the Court shall release to the adopted person the information contained in such adoption records, reports, proceedings and orders.
The final order of adoption shall include such facts as are necessary to establish that the child is eligible and suitable for adoption, that the adoptive home is adequate, and that the adoptive parents are capable of providing proper care of the child, as shown by the investigation reports and the findings of the Court upon the evidence adduced at the hearings. A true and correct copy of each adoption order shall be filed with the Tribal Secretary and with the Clerk of Court.
Minors adopted by order of the Court shall assume the surname of the persons) by whom they are adopted, unless the Court orders otherwise, and shall be entitled to the same rights as natural children or heirs of the persons adopting them. CHAPTER 2. MARRIAGE Sec. 201. Requirements. (a) For a man and a woman to be married under this chapter each must,
(b) Notwithstanding any other provision of this section, the Court in its discretion may issue a license where one or both of the parties is sixteen or seventeen years of age where the parent or legal guardian cannot be located after reasonable efforts have been made to do so, or where the Court finds after a hearing that consent has been unreasonably withheld and the court finds that the parties are capable of assuming the responsibilities of marriage and that marriage would be in the parties' best interests.
Two persons shall not be married under this chapter who are related by blood to each other in any of the following degrees: (a) Parent and child; (b) Grandparent and grandchild; (c) Brother and sister, or half-brother and half-sister; (d) Aunt and nephew, or uncle and niece, whether the relationship is by half or whole blood; (e) Cousins in the first degree. Any attempted marriage between persons so related shall be null and void from the time of the marriage forward, except that children of the marriage shall be considered legitimate, and except as one or both parties may qualify as a putative spouse under Section 204.
A person having an existing spouse shall not be married to another under this Title. A person having an existing spouse is one who has been married under this Title, or under the laws of another tribe, state, or foreign nation, and whose marriage has not been terminated by, (a) a divorce or annulment recognized as valid by the tribe, state, or foreign nation which granted it, and which complies with due process of law; (b) the death of the spouse; or (c) the absence and believed death of the spouse for five years or more. Any attempted marriage between persons so related shall be null and void from the time of the marriage forward, except that children of the marriage shall be considered legitimate, and except as one of or both parties may qualify as a putative spouse under Section 204.
Any person who has cohabited with another to whom he or she is not legally married in the good faith belief that he or she was legally married to that person is a putative spouse until knowledge of the fact that he or she is not legally married terminates the putative marital status and prevents acquisition of further rights. A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance, following termination of the putative marital status. If there is a legal spouse or other putative spouse, rights acquired by a putative spouse do not supersede the rights of the legal spouse or rights acquired by other putative spouses, but the Court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.
(a) Persons wishing to be married must obtain a marriage license from the Tribal Court. There shall be a fee of $15.00 plus recordation costs for each license. To obtain a license, the persons must attest before the judge of the Tribal Court or in an affidavit;
Where necessary, the judge may require the testimony or affidavit of any person necessary to substantiate such information. Where the parties are underage and do not have the required consents they must, at an oral hearing, make the showing set forth in Section 201(b). (b) If the judge is satisfied that the above requirements are met, the judge shall issue a marriage license to the applicants. The marriage license shall be valid for 180 days and shall be in substantially the following form: CHITIMACHA MARRIAGE LICENSE To any person authorized to perform the marriage ceremony: You are hereby authorized to join in marriage __________________ of ______________ and ______________ of __________________within 180 days of the date specked below. Dated this ________day of _______________, 19________________. ___________________________ CHITIMACHA TRIBAL COURT JUDGE The court shall give one copy of the marriage license to the applicants and shall retain one copy for its records. (Revised by Ordinance#6-98; Adopted: June 18,1998; Effective: June 18,1998) (a) A marriage ceremony may be performed by a Judge of the Tribal Court, by any public official whose duties include solemnization of marriages, or by an ordained or recognized minister, priest, or other leader of any religious faith, who shall issue a marriage certificate in substantially the following form: CHITIMACHA MARRIAGE CERTIFICATE I hereby certify that _____________________ of _____________________ and ____________________ of ____________________, having obtained a valid marriage license, appeared before me on the ______ day of _______________, 19________, and were joined in marriage. Signed: Witnesses: ______________________________ The marriage certificate shall be signed by two witnesses other than the persons being married and the person performing the marriage ceremony. Marriage certificates shall be returned to the Tribal court which shall retain the original and deliver a copy to the persons married. (b) The solemnization of the marriage is not invalidated by the fact that the person solemnizing the marriage was not legally qualified to solemnize it, if either party to the marriage believed that person to be so qualified.
Under this title, marriage licenses may be issued and marriage ceremonies performed where at least one party is an Indian and at least one party has been a bona fide resident within the boundaries of the Chitimacha Reservation for a period of ninety (90) days immediately preceding the application for a license.
All children born in wedlock are presumed to be legitimate. All children of a woman who has been married, born within ten (10) months after the dissolution of the marriage, are presumed to be legitimate of that marriage. A child born before wedlock becomes legitimate by the subsequent marriage of its parents. The children of all marriages null in law or dissolved by divorce are legitimate.
The presumption of legitimacy can be disputed only by the husband or wife, or the descendant of one of them. Illegitimacy in such cases may be proved like any other fact.
Common law marriages are not recognized as valid within the Chitimacha Reservation.
A marriage duly licensed and performed under the laws of the United States, any tribe, state, or foreign nation shall be recognized as valid by the Chitimacha Tribal Court for all purposes. CHAPTER 3. ANNULMENT AND DIVORCE; CHILD CUSTODY PROCEEDINGS Sec. 301 Jurisdiction Over Annulment and Divorce Cases. The Court shall have jurisdiction over annulment, divorce and any paternity, child custody, division of property, child support or alimony decree pursuant to such annulment or divorce, where at least one party to the marriage is an Indian, and at least one party has been a bona fide resident within the boundaries of the Chitimacha Reservation for a period of 90 days immediately preceding the filing of the action.
(a) Petition. For any marriage performed under this chapter, one or both of the parties may, within one year of the date of marriage, submit a petition for annulment to the Court, stating as grounds that;
Where one party to the marriage is a minor when the petition is filed, the annulment, the Court shall enter a decree of annulment. The decree shall state the grounds for annulment, must make necessary determinations concerning division of property and child custody, and shall be signed by the presiding judge. A copy of the decree shall be delivered to each of the parties, and the original retained for the records of the Court. In extraordinary circumstances and for good cause shown, an annulment granted where the non-petitioning spouse did not respond may be set aside by order of the Court. Annulment voids a marriage from the time of the marriage forward, except that any children born to the parties during the marriage are legitimate.
(a) Grounds. A divorce shall be granted where the Court finds that;
(b) Petition. One or both parties may file a petition with the Court, sworn before a notary public or other official designated to verify signatures. The petition shall state the grounds for divorce and the facts and circumstances substantiating those grounds. (c) Service of process. The defendant in a divorce proceeding shall be served with a copy of the complaint as provided under Title IV, Section 102 of this Code. (d) Response. The non-petitioning spouse may file a response to the petition within twenty (20) days of receipt of the petition. Such response may state the background facts and circumstances which show that there are no valid grounds for divorce, or may seek a division or custody of children different from any proposed by the petition. (e) Hearing.
(f) Filing Fees. A fee as set by the Court shall be paid at the time any action for divorce under this code is filed, provided, that upon showing satisfactory to the Court that the petitioner is indigent, the Court shall waive all or so much of the filing fee as may be appropriate in the circumstances, keeping in mind that no person shall be barred from the Court because of lack of funds for filing. (Revised by Ordinance #6-98; Adopted: June 18,1998 ; Effective: June 18,1998 )
(a) In any action for annulment or divorce, the Court shall have authority to determine the custody of any child of the marriage, or any other child under eighteen years of age in the custody of either party. The Court may grant custody to one parent, or may grant joint custody, specifying the periods during which each parent shall have custody. (b) In each case, the Court shall determine the visitation rights, if any, of the non-custodial parent. The Court shall grant visitation rights to a parent unless visitation would be seriously endanger the child's physical, mental, or emotional well-being. The Court may order supervised visitation in appropriate cases. (c) The determination of custody shall be based on the best interest of the child, and there shall be no presumption that a parent is better suited to be custodial parent based on that parent's gender. Where appropriate, the Court may also order that the non-custodial parent make periodic payments to cover a portion or all the expenses of care and education of the child. Orders concerning child custody may be modified at any time, on motion of either party, following an additional home study and hearing as provided in Section 303(e) of this Title. In determining the best interest of the child, the Court shall consider the relative ability of the parents to provide adequate food, clothing, shelter, medical care, love and emotional support, and day-to-day supervision. The Court shall also take into account the desires of the child. Differences in financial means shall not be the deciding factor.
(a) The Court shall have authority to determine custody of children as between parents and legal guardians, or as between parents or legal guardians and anyone with actual physical custody of the child, either pursuant to a court order or otherwise, where there is no divorce or annulment proceeding pending. Such a custody proceeding shall commence with the filing of a written petition by the parent or custodian as defined in Title IV, Section 102. (b) The court may order a home study in order to assist in determining custody. In ruling on a custody petition, the Court shall employ the standards set forth in Section 304 of this Title, and may order periodic support payments as set forth in that section. (c) After the Court rules on the petition, neither party may file another custody petition for six months absent a substantial change in circumstances. Any such change shall be described in a petition for modification of custody. Where abuse, neglect, or abandonment of the child is suspected, a petition may be filed under Section 301 of Title V at any time.
(a) When the Court has ordered periodic support payments under Section 304 or 305 of this Title, and the parent does not pay as ordered, the Court shall use the same procedures to collect these payments as it would use to enforce any money judgment in a civil action. These procedures are set forth in Sections 304 and 311 of Title IV. In the case of execution proceedings under Section 304 and garnishment proceedings under Section 311, the Court may initiate the proceedings on its own motion. (b) If the parent willfully refuses to make periodic support payments as ordered by the Court, and the procedures set forth in subsection (a) do not result in full payment, the Court may initiate criminal contempt proceedings under Section 411 of Title III and in the event of conviction shall have available the full range of sanctions for Class A misdemeanors. No such proceedings shall be instituted if the parent fails to pay by reason of indigence.
When an annulment or divorce is granted, the Court shall make such equitable distribution of all real and personal property as it deems just and proper. With respect to trust property,the Court shall have the authority to make appropriate orders to distribute such property, but shall have no authority to order that any property or interest in property be removed from trust status, or to make any order that would result in such removal.
When an annulment or divorce is granted, the Court may order either party to make periodic maintenance payments as necessary for the support of the other party. Such orders may be modified at any time, on motion of either party, to reflect changes in either parts economic circumstances. Upon motion, the Court shall terminate maintenance to any spouse who has remarried.
(a) Upon its own motion or upon motion of either party, the Court may order at any time that maintenance or support payments be made to the Clerk of Court as trustee for remittance to the person entitled to receive the payments. (b) The clerk of the Court shall maintain records listing amounts due, amounts received, the date payments are due, the date payments are received, and the names and addresses of the parties. (c) The parties shall inform the Clerk of the Court of any change of address or of other conditions that may affect the administration of the order. (d) If a party fails to make a required payment, the Clerk of the court shall send by registered or certified mail notice of the arrearage to the obligator. If payment of the sum due is not made to the Clerk within ten (10) days after sending notice, the Clerk shall certify the amount due and promptly initiate collection and contempt proceedings against the obligator. (e) If the person obligated to pay support has left or is beyond the jurisdiction of the Court, the Clerk may institute any other proceedings available under the laws of the jurisdiction for enforcement of the duties of support and maintenance. On any payments to be made through the Court, a late fee shall be charged for payments not received as ordered. Further, persons failing to satisfy arrears within the ten (10) days as provided in the notice may be assessed additional costs and/or sanctions as determined by the Court. (Revised by Ordinance # 6-98 ; Adopted: June 18,1998; Effective: June 18,1998)
(a) Jurisdiction. Upon petition to the Court or in the course of divorce or annulment proceedings, the Court shall have the jurisdiction to adjudicate the paternity of a child for purposes of determining enrollment eligibility and/or to compel payments for support. (b) Petitions. Petitions for declaration of paternity may be filed with the Court by the mother of the child or, if the mother does not have custody, by any other individual who has custody of the child or by the child to determine paternity for enrollment purposes under § 4(C)(12) of Title XI. The petition shall be sworn before a notary public or other official designated to verify signatures. A petition seeking a determination on paternity for purposes of establishing eligibility for enrollment must include information establishing a reasonable possibility of paternity and a request for an order directing that the alleged father take a DNA test. (c) Service of process. The defendant in a paternity proceeding shall be served with a copy of the petition as provided under Title IV, Section 102 of this Code. (d) Response. The defendant in a paternity suit may contest the allegations of the petition by filing a response within 60 days of receiving the petition. The response shall be sworn before a notary public or other official designated to verify signatures. (e) Hearing. (1)Where
such a response is received, the Court shall hold a hearing on the matter.
At the hearing the Court shall receive testimony from any witnesses
called by the parties. The court shall have the authority to order the
defendant to submit to a blood test. The Court may receive the results
of a blood test as evidence only if testimony interpreting the results
is presented by the physician under whose supervision the test was given. (f) Decree. If,
(a) The Court may issue temporary orders during the pendency of an annulment or divorce proceeding as to child custody or maintenance. Such orders may be granted upon motion of either party, or on the Court's own motion. A hearing for which advance notice shall be provided to the parties shall be held prior to the issuance of such temporary orders, unless the court determines that an emergency assists or a party cannot be found, in which case such order may be issued ex parte. If an order is issued ex parte, a hearing shall be held as soon as practicable after the nonmoving party is notified. (b) As a part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the Court to issue a temporary injunction for any of the following relief:
(c) A hearing for which advance notice shall be provided to the parties shall be held prior to the issuance of such temporary orders, unless the court determines that an emergency exists or a party cannot be found, in which case such order may be issued ex parte. If an order is issued ex parte, a hearing shall be held as soon as practicable after the nonmoving party if notified. (d) A temporary order or temporary injunction:
The court, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The Court may order that the amount be paid directly to the attorney, who may enforce the order in his or her own name.
A divorce or annulment duly granted under the laws of the United States, any tribe, state, or foreign nation shall be recognized as valid by the Chitimacha Tribal Court for all purposes. CHAPTER 4. GUARDIANSHIP Sec. 401. Definition of Guardian. A guardian is an adult appointed to take care of the person or property of another. The guardian must exercise the highest standard of care for the ward, and is subject to regulation by the Tribal Court. The Court, when it appears necessary or convenient, may appoint guardians for the persons and/or property of either children under the Court's jurisdiction or incompetents who have no guardian legally appointed by will or deed. Such appointment may be made on the petition of a relative or other person on behalf of the child or incompetent, or a petition of the child if at least fourteen (14) years of age. Before making such appointment, the Court must cause such notice as the Court deems reasonable to be given to any person having the care of the child, and to such other relatives of the child residing on the reservation as the Court may deem proper, and in cases of adult incompetents, the Court may cause notice to be given to the incompetent at least five (5) days before hearing the petition. If a child is under the age of fourteen (14) years, the Court may nominate or appoint their guardian. If the child is fourteen (14) years of age or older, the child may nominate their own guardian who, if approved by the Court, must be appointed accordingly. If the guardian nominated by the child is not approved by the Court, or if the child resides outside of the reservation, or if, after being duly cited by the Court, the child neglects for ten (10) days to nominate a suitable person, the Court may nominate and appoint the guardian in the same manner as if the child were under the age of fourteen (14) years. When a guardian has been appointed by the Court for a child under the age of fourteen(14) years, the child, at any time after the child attains that age, may nominate their own guardian,subject to the approval of the Court. A guardian appointed may as specified by the Court have the custody and care of the education of the child and the care and management of their property until such child arrives at the age of eighteen (18) marries, is emancipated by the Court, or until the guardian is legally discharged, provided, however, that said guardian shall not have the authority, without express written consent of the Court,to dispose of any real or personal property of the child in any manner,including, but not limited to, the child's Individual Indian Money Account and the child's per capita distribution held for the child's benefit in the minor's trust fund. Said guardian shall also have the authority to consent to the medical care and treatment of the child. The Court may order that the Court disburse monthly reimbursement payments to the person or agency to whom custody is granted under this code, provided sufficient funds have been appropriated by the Tribal Council. Said disbursements must be used by the person or agency with custody of the child for the sole purpose of covering expenses incurred in the care and custody of said child and shall not be used for any other purpose. The use of said funds for any purpose other than that described in this section shall subject said person or agency to contempt of Court and to any criminal and civil penalties or remedies provided by the Tribal code. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
(a) By will. The last surviving parent or spouse of a minor or mental incompetent may designate in a will the guardian for the minor or mental incompetent. Upon determination by the Court that the will is valid, and that the person designated is willing to accept the responsibilities of guardianship, the Court shall appoint the person designated; provided that for good cause shown, the Court may decline to appoint the person designated. (b) By Court appointment. Where a minor or mental incompetent is in need of a guardian, and no guardian is appointed pursuant to a valid will, the Court may appoint a guardian, to promote the best interests of the minor or mental incompetent. (c) Hearing. In each case where a guardian is to be appointed, either by will, or by Court appointment, a hearing shall be held following notice to all interested parties. (Added by Ordinance #3-95; Adapted: March 2, 1995; Effective: March 2, 1995)
The types of guardianship shall include guardianship of property and/or guardianship of the person. Guardianship of the person shall include both temporary guardianship and permanent guardianship. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2,1995)
The Court may appoint a guardian of the property of a child or incompetent person under such terms and conditions as the Court sets forth in the written order. The guardianship may cover all property until the child reaches eighteen (18) years of age or until the incompetent person becomes competent or it may be limited to only specific property or a specific legal action as set forth in the written order. A temporary or permanent guardianship of the person may also include guardianship of the child's property if set forth in the written order. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
The Court may appoint a permanent guardian for the child under such terms and conditions as the Court sets forth in the written order. Permanent guardianship provides for permanent custody of a child to someone other than the parent(s), although there is no termination of the parental rights of the parents. There shall be a presumption of continued permanent guardianship in order to provide stability for the child. Permanent guardianship shall only be terminated based upon the unsuitability of the permanent guardian(s) rather than the competency or suitability of the parent(s). The parent(s) and the child's extended family shall be granted liberal visitation rights unless deemed inappropriate by the Court. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
The Court may appoint a temporary guardian under such terms and conditions as the Court sets forth in the written order. A temporary guardianship may be terminated if the Court determines that it is in the best interest of the child to change custody from the temporary guardian to a new guardian or to return the child to the parent, guardian or custodian. The parent(s) and the child's extended family shall be granted liberal visitation rights unless deemed inappropriate by the Court. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
Any person may file a petition for guardianship. The petition shall be initiated either by the proposed guardian or by the child if at least fourteen (14) years of age. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
The petition for guardianship shall include the following, to the best information and belief of the petitioner. (a) The full name, address and tribal affiliation of the petitioner; (b) The full name, sex, date and place of birth, residence and tribal affiliation of the proposed ward; (c) The basis for the Court's jurisdiction; (d) The relationship of the proposed guardian to the proposed ward; (e) The name and address of the person or agency having legal or temporary custody of the proposed ward; (f) The type of guardianship requested; (g) In the case of alleged incompetent persons, the grounds for incompetency under section 411; and (h) A full description and statement of value of all property owned, possessed, or in which the proposed ward has an interest (if guardianship of property is requested). All petitions must be signed and dated by the petitioners, and must be notarized or witnessed by a Clerk of the Court. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
Upon the filing of a guardianship petition, the Court shall immediately request that the social services department or other qualified agency conduct a guardianship report on the proposed guardian and report on the proposed ward. The guardianship report shall contain all pertinent information necessary to assist the Court in determining the best interest of the proposed ward. No determination can be made on a petition for guardianship until the report has been completed and submitted to an considered by the Court. The guardianship report shall be submitted to the Court no later than ten (10) days before the hearing. The Court may order additional reports as it deems necessary. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
In the event that any guardian shall receive any money or funds of any child or incompetent person during their term of office as guardian, before taking and receiving into custody such money or funds, the Court must require of such person a bond with sufficient surety to be approved by the Court and in such sum as the Court shall order, conditioned that the guardian will faithfully execute the duties of their trust, and the following conditions shall form the part of such bond without being expressed therein: (a) To make an inventory of all the estate of the ward that comes into their possession or knowledge and to return the same within such time as the Court may order, and; (b) To dispose of and manage the estate according to law and for the best interests of the ward, and faithfully to discharge their trust in relation thereto, and also in relation to the care, custody and education of the ward, and; (c) To render an account on oath of the property, estate and money of the ward in their hand and all the proceeds or interests derived therefore, and of the management and disposition of the same, within there (3) months after their appointment, and at such other times as the Court directs, and at the expiration of their trust, to settle their accounts with the Court or judge or with the ward if the ward is of full age, or their legal representative, and to pay over and deliver all the estate, movies and effects remaining in their hands, or due from them on such settlement to the person who is legally entitled thereto. The funds of any child or incompetent must be used by their guardian solely for the support and education of such child and for the support of such incompetent, and shall be expended by the guardian in a reasonable manner according to the circumstances and station in life of such ward, and in such manner as can reasonably be afforded according to the income and estate of said ward. If determined to be appropriate by the Court, the written order may set forth that the child's property may not be used for the child's care, but rather to be managed for the child until the child reaches the age of eighteen (18) or is emancipated by the Court. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
In case of incompetent persons, if after a full hearing and examination upon such petition, and upon further proof by the certificate of a qualified physician showing that any person is incompetent as defined in this Code, it appears to the Court that the person in question is not capable of taking care of themself and of managing their property, such Court must appoint a guardian of the person and estate within the powers and duties specified in this chapter. Every guardian of an incompetent person appointed as provided herein has the care and custody of the person of their ward and the management of their estate until such guardian is legally discharged; the guardian must give bond to such ward in like manner and with like conditions as before specified with respect to the guardianship of a child. A person who has been declared insane or incompetent or the guardian, or any relative of such person within the third degree or any friend, may apply by petition to the Court in which they were declared insane, to have the fact of their restoration to capacity judicially determined. The petition shall be verified and shall state that such person is then sane or competent. The Court shall require notice to be given of a hearing upon said petition at some date after said petition has been filed; and at the hearing upon said petition, witnesses shall be examined and a determination made by the court as to whether the petition should be granted and the insane or incompetent person be declared of sound mind and capable of taking care of themself and their property, their restoration to capacity shall be adjudged and the guardianship of such person, if such person shall not be a child, shall cease. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
(a) Upon motion of any person, or the Tribe, the Court may provide notice and a hearing on whether to terminate a guardianship. Grounds for termination shall include, but not be limited to, personal use by the guardian of the assets of the ward, failure to provide a reasonable level of care for the ward,or the marriage of a minor ward. No termination of the guardianship of a minor or incompetent person shall dive rise, in any way, to any right to or distribution of that minor or incompetent person's per capita payment in any way other than as otherwise permitted pursuant to the Chitimacha Comprehensive Codes of Justice. (b) Guardianship, including for guardians of the property the control over the ward's assets, shall terminate automatically upon a minor reaching age 18, or upon a mental incompetent being adjudged by the Court to have regained legal capacity. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
(a) A (i) parent or guardian of the estate of a minor or incompetent person, or (ii) either a representative of or an underage qualified tribal member as that term is defined in the Tribal Gaming Revenue Allocation Plan, may petition the Tribal Court for the authority to expend or distribute an appropriate portion or all of the income or principal of the per capita payment of the ward being held for the benefit of that ward in accordance with the Tribal Gaming Revenue Allocation Plan for the support, maintenance, education, general use and benefit of the ward and the ward's dependents, in the manner, at the time or times and to the extent that the guardian, representative, or underage qualified tribal member, in an exercise of a reasonable discretion, deems suitable and proper, with or without regard to any other funds, income or property which may be available for that purpose. (b) In considering any petition filed under section 413 (a), the Court shall give due regard to:
(c) The Tribal Court shall establish such rules of procedure as may be necessary to administer this Section. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995; Revised by Ordinance #2-02; Adopted: July 25, 2002; Effective: October 4, 2002) CHAPTER 5. GENERAL PROBATE PROVISIONS Sec. 501. Purpose. The following seven chapters of the Chitimacha Comprehensive Codes of Justice (Chapters 5 through 11 of the Family Law Code) are hereinafter referred to as the Probate Code. The objective of the Probate Code is to provide for the exercise of the greatest possible tribal jurisdiction over the probate of the estate of decedents who were domiciled or owned real or personal property on the Chitimacha Indian Reservation. The Chitimacha Tribe finds that probate procedure in the Chitimacha Tribal Court is in the best interest of tribal members in that probate may be concluded more economically and more expeditiously than by other jurisdictions. This code shall be liberally construed and applied to meet the following objectives: (a) To ensure that the property of decedents passes to the rightful heirs or beneficiaries. (b) To comply with the decedent's wishes as much as possible. (c) To comply with tribal custom and tradition. (d) To provide a simple, efficient and inexpensive method for probating decedent's property. (e) To prevent the transfer of land out of tribal ownership and control. (f) To ensure that the rights of creditors of decedents are protected to the extent possible and fair. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
As used in the following seven chapters (Chapters 5 through 11 of the Family Law Code), unless the context otherwise requires: (a) "Administrator" means the person appointed by the Tribal Court to administer the estate of a decedent according to this Probate Code and may include an Administrator nominated by the decedent's will, appointed at the request of an interested party, appointed by the Court, or the public Administrator. (b) "Beneficiary" means any person nominated in a will to receive an interest in property other than in a fiduciary capacity. (c) "Decedent" means a person who has died leaving property that is subject to administration. (d) "Decedent's Estate" all movable and immovable property and all rights and interest related thereto within which the decedent had an interest at the time of his or her death. Including decedent's interest in any property acquired during the marriage. (e) "Distributee" means any person to whom property of a decedent is distributed other than in payment of a claim, or who is entitled to property of a decedent under their will or the laws governing intestate succession. (f) "Heir" means any person, including the surviving spouse, who is entitled under the law governing intestate succession to an interest in the property of a decedent. (g) "Indian" means a person enrolled or eligible for enrollment as a member of the Chitimacha Tribe of Louisiana, or any other person of Indian blood who is an enrolled member of another federally recognized Indian Tribe. (h) "Interested Witness" means any of the following:
(i) "Intestate" means one who dies without leaving a valid will, or the circumstance of dying without leaving a valid will effectively disposing of all of the estate. (j) "Intestate succession" means succession to property of a decedent who dies intestate or partially intestate. (k) "Issue" used to refer to persons who take by intestate succession, means children, grandchildren, lineal descendants of more remote degree, except those who are the lineal descendants of living descendants. The term does include adopted children and non-marital children and their issue. (1) "Member" means an enrolled member of the Chitimacha Tribe of Louisiana. (m) "Personal Property" means all property other than real property. (n) "Property" means any interest, legal or equitable in real or personal property, without distinction as to kind, except trust property. (o) "Real property" means all interest in land or in buildings or improvements permanently attached to land. (p) "Reservation" means the Chitimacha Reservation in Louisiana. (q) "Take by Representation" means the principle upon which the issue of a decedent takes or inherits the share of an estate which their immediate ancestor would have taken or inherited, if living. (r) "Testator" means a decedent who dies leaving a valid will. (s) "Tribal Court" means the Tribal Court of the Chitimacha Tribe of Louisiana. (t) "Tribe" means the Chitimacha Tribe of Louisiana. Chitimacha (u) "Trust Property" means real or personal property title to which is in the United States for the benefit of an Indian or Indian Tribe. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
The Tribal Court shall have jurisdiction to administer in probate the estate of a decedent who, at the time of their death, was domiciled or owned real or personal property situated within the Chitimacha Indian Reservation to the extent that such estate consists of property which does not come within the exclusive jurisdiction of the Secretary of the Interior of the United States. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
Control of funeral arrangements and disposition of the remains of the decedent shall be based upon a decision of the family and the Indian customs of the Tribe. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
Notwithstanding the provisions of this Probate Code relating to descent and distribution, the surviving spouse or other surviving next of kin may distribute any Indian artifacts and finery belonging to the decedent in accordance with the customs and traditions of the Chitimacha Tribe of Louisiana prior to the initiation of the administration of the estate. Such distribution shall be in accordance with directions left by the decedent, if any. (Added by Ordinance #3.95; Adopted: March 2, 1995; Effective: March 2, 1995) .
Whenever fraud has been perpetuated in connection with any proceeding or in any statement filed under this Probate Code or if fraud is used to avoid or circumvent the provisions or purposes of this Probate Code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud including restitution from any person (other than a bona fide purchaser) benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within two years after the discovery of the fraud, but no proceeding may be brought against anyone later than six years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during their lifetime which affect the succession of the estate. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
In proceedings under this Probate Code, the following rules relating to determination of death and status are applicable: (a) A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death and the identity of the decedent; (b) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive, is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report; (c) A person who is absent for a continuous period of five years, during which they have not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry is presumed to be dead. Their death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
Unless specifically provided to the contrary in this Probate Code or unless inconsistent with its provisions, the Chitimacha Rules of Civil Procedure (Title IV), including the rules concerning vacation of orders, and the Chitimacha Rules of Appellate Review (Title I) govern formal proceedings under this Probate Code. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
(a) The judge of the Court may make orders for the sale of personal property at public or private sale for the compounding of debts, for the settlement of an estate as insolvent, for the approval of bonds and all other orders of an ex parte nature as may facilitate the settlement of estates. The orders shall be in writing, signed by the judge issuing the same, and shall be filed and recorded as an entry in the proper record. (b) The judge shall examine the bonds filed by the personal representatives, with a view to ascertaining their sufficiency and may approve the same. The judge may examine any inventory, sale, bill, account current, final account and vouchers filed therewith, or examine into the condition of an estate generally. Bond may be waived for good cause shown. (c) The Court shall have the authority to draft orders requesting property of funds outside the exterior boundaries of the Reservation to be delivered to the Court for probate in the Tribal Court. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
The clerk shall keep a file for each decedent of all documents filed with the Court under this Probate Code and shall keep a numerical index of all such estates to facilitate access to such records. Upon payment of a fee, the Clerk shall issue certified copies of any document or paper so filed. (Added by Ordinance #3-95; Adopted: March 2,1995; Effective: March 2, 1995)
If properly demanded, a party may request a trial by jury in any proceeding in which any genuine controverted question of fact arises. Otherwise all proceedings under this Probate Code shall be handled by a trial judge or the clerk, as is appropriate. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
Except as specifically provided in this Probate Code, every document filed with the Court under this Probate Code shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and the penalties for perjury shall follow deliberate falsification therein. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
(a) If notice of a hearing on any petition or other matter is required and except for specific notice requirements as otherwise provided, the clerk shall cause notice of the time and place of hearing of any petition to be given to any interested person or their attorney if they have appeared by attorney or requested that notice be sent to their attorney. Notice shall be given in accordance with Title IV, Section 102 of this Code, at least 15 days prior to the hearing date. (b) The Court for good cause shown may provide for a different method or time of serving notice for any hearing. (c) Proof of the giving of notice shall be made at or before the hearing and filed in the proceeding. (d) A person, including a guardian ad litem, or other fiduciary, may waive notice by a writing signed by the person or their attorney and filed in the proceeding. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
A person (or their personal representative) who is an heir, devisee, person succeeding to a renounced interest, beneficiary under a testamentary instrument or person designated to take pursuant to a power of appointment exercised by a testamentary instrument may renounce in whole or in part the succession to any property or interest therein by filing a written instrument with the Court not later than six months after the decedent's death or the time at which it is determined that the person is entitled to take property if such is not known at the time of death. The instrument shall (a) describe the property or part thereof or interest therein renounced, (b) be signed by the person renouncing and (c) declare the renunciation and the extent thereof. Upon proper renouncement, the interest renounced passes as if the renouncing person had predeceased the decedent or donee. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995) A person who is divorced from a decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, they are married to the decedent at the time of death. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this Probate Code. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995) (a) A surviving spouse, heir or devisee who criminally and intentionally kills the decedent is not entitled to any benefits passing under this Probate Code and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to or for the benefit of the killer passes as if the killer had predeceased the decedent. (b) Any joint tenant who criminally and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as their property and the killer has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint accounts in banks, savings and loan associations, credit unions and other institutions, and any other form of co-ownership with survivorship incidents. (c) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who criminally and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent. (d) Any other acquisition of property or interest by the killer shall be treated in accordance with the principles of this section. (e) A final judgment of conviction of an offense containing the elements of criminal and intentional killing is conclusive for purposes of this section. In the absence of a conviction of criminal and intentional killing, the Court may determine by a preponderance of evidence whether the killing was criminal and intentional for purposes of this section. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
(a) Where the title to property covered under this Probate Code or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if they had survived except where provided otherwise in this Probate Code. (b) Where two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is to sufficient evidence that these beneficiaries have died otherwise than simultaneously the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed. (c) Where there is not sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants. (d) Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary. (e) These provisions on simultaneous death shall not apply in cases where the decedent has made provision for a different distribution in a will, trust, deed, contract or insurance. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995) CHAPTER 6. WILLS Sec. 601. Who May Make A Will. Any person 18 or more years of age and who is of sound mind may make a will. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
Except as otherwise provided for oral wills (Section 604) or holographic wills (Section 603), every will shall be put in writing signed by the testator, or in the testator's presence and at the testator's direction signed by another person, and shall be signed by at least two persons each of whom either witnessed the signing by the testator of the will or the testator's acknowledgment of the signature and direction to do so. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
A will which does not comply with section 602 of this Probate Code is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
A will which does not comply with Section 602 of this Probate Code is valid as an oral will under Chitimacha custom, if all children, whether residing in testator's home or not, and testator's spouse, if alive, are present at the announcement of the oral will and agree that the testator orally made known the testator's last will before them. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
An attested will may, at the time of its existence or at any subsequent date, be made self-proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before a notary public, authorized authority or a judge, under official seal, attached or annexed to the will in form and content and substantially as follows: The Chitimacha Indian Reservation Chitimacha Tribal Court Charenton, Louisiana We, ____________________ , and _________________ the testator and the witnesses, respectively, whose names are signed to the attached and foregoing instrument, being first duly sworn, do hereby declare to the foregoing authority that the testator signed and executed the instrument as the testator's last will and that the testator signed willingly or directed another to sign for the testator, and that the testator executed the instrument as their free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of their knowledge the testator was at the time 18 years or more of age, of sound mind and under no constraint or undue influence. ______________________ _____________________ ______________________ Subscribed, sworn to and acknowledged before me by _________________the testator, and subscribed and sworn to before me by ______________and ________________ witnesses, this _________________day of _______________________ 19_________. SIGNED BY JUDGE, AUTHORIZED AUTHORITY OR NOTARY (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
(a) Any person who, at the time of execution of the will, would be competent to testify as a witness in Court to the facts relating to execution may act as a witness to the will. Subsequent incompetency of a witness is not a ground for denial of probate if the execution of the will is otherwise satisfactorily proved. (b) A will is not invalidated because signed by an interested witness; but, unless the will is also signed by two disinterested witnesses, any beneficial provisions of the will for a witness or the witness' spouse are invalid to the extent that such provisions in the aggregate exceed in value what the witness or spouse would have received had the testator died intestate. Valuation is to be made as of testator's death. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
A written will is valid if executed in compliance with this Probate Code or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death of the testator is domiciled. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2,1995)
A will or any part thereof is revoked: (a) By a subsequent valid will, codicil, or other instrument which revokes the prior will in whole or in part expressly or by inconsistency; or (b) By being burned, torn, canceled, obliterated, or destroyed with the intent and for the purpose of revoking it by the testator or by another person in the testator's presence and at the testator's direction. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
If, after executing a will, the testator is divorced or the testator's marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as Executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse, A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third, the first will is revoked in whole or in part unless it is evident from the circumstances and the terms of the revocation of the second or from the testator's contemporary or subsequent declarations that the testator intended the first will to take effect as executed. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficient)y to permit its identification. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
A will may dispose of property by reference to acts and events which have significance apart from their effect upon the disposition made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of a will of another person is such an event. (Added by Ordinance #3-95; Adopted: March 2, 1995; Effective: March 2, 1995)
(a) The intention of a testator as expressed in the testator's will controls the legal effect of the testator's dispositions; (b) The following rules of construction apply unless a contrary intent is clear in the will:
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