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Tribal Law and Order Code 2001 edition with 2002, 2003 and 2004 supplements TITLE 9 - PROPERTY CHAPTER 9-1 MORTGAGES, DEEDS OF TRUST AND REAL ESTATE CONTRACTS CHAPTER 9-2 DONATED PROPERTY CHAPTER 9-3 LANDLORD TENANT RELATIONS CHAPTER 9-4 INTERFERENCE WITH TRIBAL AND INDIAN PROPERTY CHAPTER 9-5 REALTY CHAPTER 9-6 LEASEHOLD MORTGAGES
9-1-1 Purpose It is the legislative intent and purpose of the Colville Tribal Business Council in enacting this Chapter: (a) To exercise its inherent sovereignty over Indian trust lands wherever situated and over all lands in which the Tribes holds a security interest of any sort. (b) To provide a just and proper forum for the foreclosure of real estate mortgages and deeds of trust and forfeiture of real estate contracts in which the Tribes may have an interest or in which the members of the Colville Confederated Tribes 1 may have an interest wherever situated. 1 (note: "Colville Confederated" in original corrected 8/8/01) (c) To provide those holding unapproved and approved contracts, mortgages and deeds of trust on the trust lands or other lands of individual Indian owners a remedy in the event the debtors default under the terms of the contract, mortgage or deed of trust. (d) 25 U.S.C. 483a provides that foreclosure of mortgages and deeds of trust on trust lands of individual Indian owners shall be in conformity with the statutory law of the state in which the lands are located. As a result, the procedures set out in this Chapter utilize state law to the extent applicable.
(Amended 10/7/93, Resolution 1993-530)
FORECLOSURE OF REAL ESTATE MORTGAGES 9-1-30 State Law Adopted as Tribal Law The foreclosure of mortgages securing real property interests and the execution on judgments secured by a mortgage on real property shall be conducted under the procedures set out in Titles 6.17, 6.21, 6.23 and 61.12 of the Revised Code of Washington (RCW) as those sections exist on March 1, 1993, or as they may be thereafter be amended; provided sections 6.17.808, 61.12.061 and 61.12.162 shall not apply and shall not be adopted into this Chapter. The procedures to obtain a lis pendens as set out in RCW 4.28.320 shall also be available. Those provisions of the Revised Code of Washington identified in this chapter shall be incorporated into and shall become a part of this Subchapter.
(Amended 10/7/93, Resolution 1993-530)
In those sections of the RCW incorporated pursuant to section 9-1-30 all references: to the "superior court", "court", or "district court" shall mean the Colville Tribal Court; to the "sheriff" shall mean the Chief of Police of the Colville Tribes; and to the "State of Washington" shall mean the Confederated Tribes of the Colville Reservation.
(Amended 10/7/93, Resolution 1993-530)
DEEDS OF TRUST 9-1-60 Deeds of Trust 25 U.S.C § 483a provides that the foreclosure of mortgages and deeds of trust on the trust lands of the individual Indian owners shall be in conformity with the laws of the state in which the land is located. Therefore, the procedures of Title 61.24 of the Revised Code of Washington are adopted in their entirety and shall be used by the Colville Tribal Court in foreclosing deeds of trust on the lands of Indian owners. The Tribal Court shall not be required to follow state case law in interpreting the statutes, but may use Washington case law as a guide.
In adopting the procedures of RCW 61.24 all references to the "superior court of the county" or "the court" shall mean the Colville Tribal Court. All references to the "sheriff" shall mean the chief of police of the Colville Tribes. All references to the "office of the auditor of each county" shall mean the Bureau of Indian Affairs 2 if the property is in trust or restricted status. 2 (note: "the office of the Bureau of Indian Affairs" in original corrected 8/8/01)
FORFEITURE OF REAL ESTATE CONTRACTS 9-1-90 State Law Adopted as Tribal Law 25 U.S.C § 483 authorizes the Secretary of the Interior to approve conveyances with respect to lands or interests in lands held by individual Indians. The Secretary has adopted regulations which authorize real estate contracts as one possible means of such conveyance. See 25 C.F.R § 152.35. Title 61.30 of the Revised Code of Washington sets forth certain procedures to be used in forfeiting a real estate contract and is adopted in its entirety and shall be used by the Tribal Court of the Colville Tribes of Indians in forfeiting real estate contracts of the lands of Indian owners, or in which the Tribes or an individual may have an interest. The Tribal Court shall not be required to follow Washington case law in interpreting these statutes, but may use state case law as a guide.
In adopting the procedures of RCW 61.30 all references to "court action" or "the court" shall mean the Colville Tribal Court. All references to "recorded in each county in which any of the property is located" shall mean the Bureau of Indian Affairs 3 if the property is in trust or restricted status. 3 (note: "the office of the Bureau of Indian Affairs" in original corrected 8/8/01) 9-1-120 Severability If any provision of this chapter or its application to any person or circumstance is held to be invalid, the remainder of the chapter or the application of the provision to other persons or circumstances is not affected. (Chapter
9-1 Adopted 8/6/87, Resolution 1987-443) 9-2-1 Title This Chapter shall be known as the Colville Tribal Donated Personal Property Chapter.
The Confederated Tribes of the Colville Reservation (Tribes), because of its status as a federally recognized Indian tribal government, is, through all of its arms, agencies, corporations, and instrumentalities of any kind or type, entitled to receive surplus or donated personal property from other governments, governmental and non-governmental agencies, and individuals. This Chapter is intended to govern the acceptance, control and use of such personal property.
Donated personal property shall mean and this Chapter shall be applicable to all personal property, including cash or securities of any type, provided as surplus, excess or donated, or donated in part, to any agency or instrumentality of the Tribes, including tribal corporations, by any government, governmental or non-governmental entity, or person. This Chapter shall apply to all employees of all arms, instrumentalities, or agencies of the Tribes.
Any arm, instrumentality or agency of the Tribes may, through its executive director, superintendent, school superintendent, IHS service unit director, chief executive officer or other corporate senior manager, accept donations of personal property on behalf of the Tribes; provided, that any conditions which may be attached to the donation are found to be acceptable to the Tribes by the executive director of the Tribes.
All donated tangible personal property shall be registered and recorded with the Tribes through the tribal property system administered by the tribal purchasing program. All donated intangible personal property, including but not limited to cash and securities, shall be recorded in the tribal accounting system administered and approved by the financial officer of the Tribes. Bulk donations of food shall be used as provided by the regulations governing the Tribes' food distribution program.
Personal property donated to the Tribes may be used for any tribal governmental purpose which does not conflict with the federal or state statutory conditions, or other conditions, under which the donation was made.
Donated personal property which becomes surplus to the needs of the Tribes may be disposed of under the rules established by the tribal purchasing program for disposal of tangible property surplus to the needs of the Tribes. Revenues obtained from disposal of such surplus donated property shall be distributed to the tribal agency which had the majority of use of the donated property while it was included in the tribal inventory of property after any costs of disposal are reimbursed to the tribal purchasing program.
Any employee or contract employee of any tribal agency, arm or instrumentality, having responsibility for the obtaining, acceptance, or supervision of use of donated personal property, who shall be found to have failed to follow the provisions of this Chapter governing the registration, recording, use or disposal of donated personal property shall be terminated from employment. (Emergency
6/5/92)
9-3-1 Jurisdiction and Scope (a) This Chapter shall govern relationships between all landlords and tenants on the lands of the Colville Indian Reservation and over all property within the Reservation whether private or public real property. Provided that a Tribal Department or the Colville Housing Authority may prescribe a different procedure in which case the more specific procedure shall govern. (b) Any action for rent due or other breach or default of a legal or rental or purchase agreement shall be brought pursuant to this Chapter and applicable sections of this Code.
Commencement of suit shall be pursuant 1 to the provisions of Chapter 2-2 (Civil Actions) of this Code provided that any employee of the Colville Confederated Tribes the Colville Indian Housing Authority may make personal service of the notice of suit Complaint or other documents required to carry out the provisions of this Chapter. 1 (note: "in pursuant" in original corrected 8/8/01)
9-3-3 Defenses In any action under this Chapter it shall not be a defense to such action that the tenant or occupant is unable to pay rent or other monthly payments when due for the right of occupying the premises unless the lease or other agreement in force with reference to the property at issue provides other wise.
In any action under this Chapter, the Tribal Court shall apply this Chapter applicable provisions of this Code and the provisions of any and all leases or agreements rules and regulations etc. in force with regard to the property or tenancy which is the subject matter of the action. In the absence of tribal law on any particular subject the Tribal Court 2 may look to provisions in federal law or the general law of the states for guidance in fashioning a remedy. 2 (note: "Court" in original corrected 8/8/01)
The procedures set out in this Chapter shall apply to any action to terminate a landlord tenant relationship under Chapter 9-3 and to obtain possession of property after foreclosure of a mortgage or deed of trust.
A tenant or other occupier of land shall be guilty of unlawful detainer if such person shall continue to occupy real property under any of the following situations:
(a) Any party may commence an action in Tribal Court for any violation of Subsections 9-3-6 (a) through (d) without any additional notice prior to the commencements of the Tribal Court proceeding. (b) No action may be commenced in Tribal Court for a failure to pay rent when due until after having received thirty (30) days’ notice the tenant or occupier shall remain in possession of the property contrary to the terms of the notice as follows: (1) When such person has received notice:
(3) When such person shall continue to fail to keep or perform any condition or covenant of the lease or agreement under which the property is held after he has been given notice under this section to either perform such condition or covenant or to surrender the property; or (4) When such person continues to commit or to permit waste upon or maintain a nuisance upon the occupied property after having been given notice as required under this section in the alternative either to cease such waste or maintenance of nuisance or to surrender the property. 9-3-8 Procedures for Service of Notice (a) Notice required under Section 9-3-7 shall be given in writing by either:
(b) Proof of service by either of the above methods may be made by affidavit of any adult person stating that he or she has complied fully with the requirements of this section.
The complaint and summons to commence an action for unlawful detainer shall in addition to those procedural requirements imposed by court rule or under the general procedures for the commencement of an action in Tribal Court shall comply with the following:
Notwithstanding any other provision in this Code or court rule, the Tribal Court shall set an unlawful detainer action for hearing expeditiously. The hearing date shall be set no later than thirty (30) days following the date that the defendant must respond to the suit.
(a) The Tribal Court shall enter a writ of restitution if:
(b) Upon the issuance of a writ of restitution the Tribal Court shall have authority to enter against the defendants a judgment for the following: back rent unpaid utilities charges due the Tribe Indian Housing Authority or land owner under any lease or occupancy agreement (not including under a leasehold mortgage) and for damages caused by the defendants to the property other than ordinary wear and tear. The Tribal Court shall have authority to award to the prevailing party his costs and reasonable attorney's fees in bringing suit.
Except by agreement of all parties there shall be no continuance in cases involving the secretary.
Upon the issuance of a writ of restitution by the Tribal Court, tribal law enforcement officers shall enforce the writ of restitution by evicting the defendants and their property from the premises which are unlawful occupied. In cases involving the Secretary the Secretary may request that the writ of restitution be enforced not later than sixty (60) days after the date of service of the summons and complaint.
(a) "Tribes" means the Confederated Tribes of Colville Reservation hereafter Colville Confederated Tribes or Tribe. (b) "Tribal Court" means the Colville Tribal Court as established by the laws of the Tribes or other entity as may now or hereafter be authorized by the laws of the Tribes to exercise the powers and functions of a court of law. (c) "Lessor" menas to the Tribe Indian Housing Authority or such other person or entity who shall have an interest in real property which for a limited time has been leased or rented to another and the term lessor shall include an Indian Housing Authority which has leased real property under a mutual help and occupancy agreement rental lease agreement or other similar arrangement whereby the tenant may on certain conditions obtain ownership of the occupied house at the end of occupancy under the agreement. (d) "Secretary" means the Secretary of the United States Department of Housing and Urban Development (HUD) or the Secretary of the Veterans Administration or their designee attorney or agent or the assignee of the Secretaries. (e) "Tenant" means any person who occupies real property under a lease rental agreement or other agreement with a lessor as defined in this Section. (f) "Unlawful detainer action" means a suit brought in the Tribal Court to terminate a tenant's interest in real property and or to evict any person from occupancy of real property. (g) "Writ of restitution" means an order of the Tribal Court:
(h) "Nuisance" means the maintenance on real property of a condition which:
(i) "Waste" means spoil or destruction by a tenant of land buildings gardens trees or other improvements which result in substantial injury to the lessor's interest in the property. (j) "Gender" (singular or plural). Reference to persons by terms denoting one sex shall be taken as referring to either sex. Reference to persons by a term denoting the singular shall include the plural. (Chapter 9-3 Adopted 11/20/86, Resolution 1986-596)
CHAPTER 9-4 INTERFERENCE WITH TRIBAL AND INDIAN PROPERTY 9-4-1 Definitions (a) "Owner" means the person having title to any property. (b) "Property" or "tribal property" includes any real or personal property owned by the Tribes or members thereof and any property under the care, custody and control of a tribal member which is owned by the Tribes. (c) "Tribal lands" mean any land owned in fee by the Confederated Tribes of the Colville Indian Reservation and land held in trust for the Tribes or individual members of the Tribe by the United States government. (d) "Operator" means an enrolled member of the Colville Confederated Tribes or employee thereof authorized to operate a tobacco outlet or other mercantile establishment by the Tribes whether or not such a person possesses a Trader's License. (e) "Interfere" means to take, possess, seize, impound or otherwise take actual or constructive control of tribal property, without a tribal court order or permission of the owner. (f) "Custodian" means any person having care, custody and control of property as defined herein.
(a) Any person who interferes with tribal property located on tribal lands without a tribal court order shall be guilty of an offense and such interference is hereby prohibited. (b) A violation of this Chapter shall be punishable by a $500.00 fine or six months in the tribal jail or both, or by exclusion from tribal property as provided herein. (c) In addition to the above remedies, duly authorized tribal law enforcement officers may take immediate possession of any property taken, seized, possessed or impounded by any person without proper tribal court order and return same immediately to the owner or custodian thereof. (d) In addition to any other remedies provided herein or in the procedures for exclusion under this Code, any tribal law enforcement officer may immediately exclude and remove from tribal lands any person attempting to possess tribal property without a valid order of the Tribal Court as provided in this Chapter, upon such attempted possession having taken place in the presence of such tribal law enforcement official or such official having reasonable cause to believe that such attempt at possession has taken place. Before any such exclusion shall become final, however, compliance with the exclusion provisions of this Code must be met. Emergency procedures provided for herein may be complied with, anything in the exclusion provisions of this Code not withstanding.
(a) Any person who wishes to take, possess, seize or impound any tribal property may do so only pursuant to duly issued order of the Tribal Court upon application made as provided herein. (b) Any person wishing to possess tribal property shall apply for an order to the Tribal Court stating the reasons and authority for such possession in writing, identifying the property, its location and owner or custodian of the property to the best of applicants knowledge. Such application may be ex parte and the Tribal Court may grant or deny the application or set the matter for hearing as provided by this Chapter.
(a) The tribal court may summarily grant the application and issue an order allowing possession of the property only when the nature of the claim, the amount thereof, the grounds relied upon for issuance of the order, and the need for immediate possession clearly appear from specific facts shown by verified petition or separate affidavit of the petitioner, his counsel or agent. The court in its discretion may require security for the payment of damages to the owner if the order has been wrongfully obtained. (b) In the event that an order is issued, notice thereof shall be given by the petitioner to the owner and custodian of the property within two days from the issuance of such order and the owner and custodian shall have five (5) days exclusive of the day of service to petition the court for dissolution of the order. Upon such a contradictory petition being filed the court shall set the matter for hearing in not less than three (3) days nor more than six (6) days.
If it appears to the court that an immediate order is not necessary without an opportunity for the owner and custodian of the property to be heard, the court shall order a hearing on the matter and the petitioner shall give at least two (2) days' notice thereof to the owner and custodian of the property, such hearing to be held not less than three (3) days nor more than six (6) days after the presentation of the application.
If the application is summarily denied, the applicant may request a hearing at which the facts and reasons for the requested possession may more fully be set forth. Upon such request the tribal court shall set such a hearing for a time not less than three (3) days nor more than six (6) days after such request. The petitioner shall give at least two (2) days' notice of such hearing to the owner or custodian of the property in question.
Any person attempting to possess any tribal property as provided herein shall show the owner or custodian of such property, or any tribal law enforcement officer, the order of the tribal court allowing such action before attempting such possession.
The decision of the Tribal Court as to the issuance of the order permitting taking or possession shall be final, except that further appeal to federal court may be had.
In any hearing set by the Tribal Court in a matter covered by this Chapter, any party may be represented by a spokesman provided such person comply with the applicable provisions of this Code. (Chapter 9-4 Adopted 1/20/75, Resolution 1975-41)
9-5-1 Lease Language The BIA, Branch of Realty, and the tribal fee land purchase officer shall add the following language to all leases involving tribal land:
(Chapter 9-5 Adopted 1/28/80, Resolution 1980-47)
CHAPTER
9-6 LEASEHOLD MORTGAGES
|
| COUNTY | ) |
| STATE | ) |
| I certify that this is a true and correct document | |
| __________________ in the possession of | _______________________ |
| (Title of Document) | (Person or Institution name) |
| this date. | |
| ____________________________ (Signature) |
|
| ____________________________ (Title) |
|
| Given under my hand and seal this ___ day of 20__. | |
| (SEAL) | |
| ____________________________ (Notary Public) |
|
| ____________________________ (Date of Expiration of Commission) |
(g) The recording procedures set forth in this Chapter for leasehold mortgages shall apply to any assignment of a leasehold mortgage.
(h) The Tribal Council may from time to time establish recording fees, copying fees, and fees for the certification of any document recorded under the recording system established under this Chapter.
(Amended
12/4/03, Resolution 2003-779)
(Certified 12/12/03)
(Amended 11/7/02, Resolution 2002-678)
9-6-5 Leasehold Mortgage Foreclosure Proceeding
Upon the default of the mortgagor(s) under a leasehold mortgage, the Secretary, Tribal Credit or a private loan insurer may commence a leasehold mortgage foreclosure proceeding in the Tribal Court by filing:
(a) A verified complaint:
(1) Naming the mortgagor(s) and each person or entity claiming through the mortgagor(s) subsequent to the recording of the leasehold mortgage, including each subordinate lienholder (provided that where the Tribes claims through the mortgager or is a subordinate lienholder the Tribes need not be named);
(2) Describing the property;
(3) Stating the facts concerning the execution of the lease and the leasehold mortgage; the facts concerning the recording of the leasehold mortgage; the facts concerning the alleged default(s) of the mortgagor(s); and such other facts as may be necessary to constitute a cause of action;
(4) Having appended as exhibits true and correct copies of each promissory note, lease, leasehold mortgage, or assignment thereof relating to the property; and
(5) In actions brought by the Secretary, the complaint shall also include an allegation that all relevant requirements and conditions prescribed in:
(A) Section 184 or 248 of the NHA, or such other relevant federal laws under which the leasehold mortgage was given;
(B) The regulations promulgated thereunder by the Secretary where applicable; and
(C) The provisions of the lease; have been complied with by the Secretary.
(b) A standard Tribal Court summons issued as in other cases requiring the mortgagor(s) and each other defendant to appear for a trial upon the complaint on a date and time specified in the summons. The summons must notify the defendant(s) that judgment will be taken against the defendant unless the defendant(s) files an answer with the court.
(Amended 11/7/02, Resolution 2002-678)
9-6-6 Service of Process and Procedure
The laws of the Tribes governing service of process and all other matters relating to the conduct of Tribal Court proceedings shall apply to any leasehold mortgage foreclosure proceeding under this Chapter.
9-6-7 Alternate Service
If it appears by affidavit filed in the Tribal Court, that any party to a leasehold mortgage foreclosure proceeding cannot be located, then service of process may be made upon such party by:
(a) Posting a copy of the summons and complaint in a conspicuous place on the property which is the subject of the lease within five (5) days after the issuance of the summons; and
(b) Mailing a copy of the summons and complaint by certified mail, return receipt requested, to such party at the last known address of such party.
(Amended 11/7/02, Resolution 2002-678)
9-6-8 Certified Mailing to Tribe and Lessor
In any leasehold mortgage foreclosure proceeding where the Tribes or the lessor(s) is not named as a defendant, a copy of the summons and complaint shall be mailed to the Tribes, the Office of Reservation Attorney and to the lessor(s) by certified mail, return receipt requested, within five (5) days after the issuance of the summons. If the location of the lessor(s) cannot be ascertained after reasonable inquiry, a copy of the summons and complaint shall be mailed to the lessor(s) in care of the superintendent of the Colville Agency of the Bureau of Indian Affairs within five (5) days after the issuance of the summons.
(Amended
12/4/03, Resolution 2003-779)
(Certified 12/12/03)
(Amended 11/7/02, Resolution 2002-678)
9-6-9 Intervention
The Tribes or any lessor may petition the Tribal Court to intervene in any leasehold mortgage foreclosure proceeding under this Chapter. Neither the filing of a petition for intervention by the Tribes, nor the granting of such a petition by the Tribal Court shall operate as a waiver of the sovereign immunity of the Tribes, except as may be expressly authorized by the Tribes.
9-6-10 Cure of Default by Subordinate Lienholder
Prior to the entry of the judgment of foreclosure, any mortgagor or any subordinate lienholder may cure the default(s) under the leasehold mortgage. Any subordinate lienholder who has cured a default shall thereafter have included in its lien the amount of all payments made by such subordinate lienholder to cure the default(s), plus interest on such amount at the rate stated in the note for leasehold mortgage.
9-6-11 Power of the Tribal Court
If the alleged default(s) have not been cured, and if the Tribal Court should find for the Secretary, Tribal Credit or private loan insurer, the Tribal Court shall enter judgment:
(a) Foreclosing the interest in the lease of the mortgagor(s) and each other defendant named in the complaint upon whom proper and timely service has been made, including each such subordinate lienholder: and
(b) Assigning such lease to the Secretary, Tribal Credit or private loan insurer or the Secretary's, Tribal Credit's or private loan insurer's assignee.
(c) Provided, that when the underlying debt is satisfied the property subject to the lease shall revert to the owner unless otherwise agreed between lessor and lessee, and in the case of a change in trust status, the Tribes.
(Amended 11/7/02, Resolution 2002-678)
9-6-12 No Redemption
There shall be no right of redemption in any leasehold mortgage foreclosure proceeding.
9-6-13 No Deficiency Judgment
No deficiency judgment shall be entered in any leasehold mortgage foreclosure proceeding except in a leaseholder mortgage foreclosure proceeding initiated by Tribal Credit or a private loan insurer where the loan documents specifically set out the lender's right to seek a deficiency judgment.
(Amended 11/7/02, Resolution 2002-678)
9-6-14 Remedies Exclusive
The remedies provided under this Chapter are exclusive.
9-6-15 No Merger
There shall be no merger of estates by reason of the execution of the leasehold interest, a leasehold mortgage on that interest or the assignment or assumption of same, including an assignment adjudged by the Tribal Court, or by operation of law, except as such merger may arise upon satisfaction of the leasehold mortgage.
(Amended 11/7/02, Resolution 2002-678)
9-6-16 Limited Waiver of Immunity
In any case where the Tribes is a mortgagor under a leasehold mortgage, the Tribes may be sued as a defendant in such capacity and only under this Chapter; provided, that there shall be no award of attorney fees, damages, or costs against the Tribes in any proceeding involving the Tribes except where prior written consent to such an award have been given by the Tribes.
9-6-17 Trust Status of Land
Nothing in this Chapter is intended to affect or eliminate the trust or restricted status of any land subject to a leasehold mortgage, and at the end of any lease term said land shall revert to the lessor without encumbrance or lien that may arise as a result of this Chapter.
(Adopted August 17, 1995, Resolution 1995-544)
(December 2003 version of Chapter 9-6)
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