TITLE
I , CHAPTER
2 - COURTS
Part
1
Establishment and Jurisdiction
1-2-101. Establishment.
The judicial power of the Confederated Salish and Kootenai Tribes (hereinafter
"the Tribes") is vested in the Tribal Court, and such divisions thereof
as the Tribal Council may from time to time authorize by statute, and
the Tribal Court of Appeals.
1-2-102.
Tribal Court.
The Tribal Court may hear and decide cases and controversies as provided
by Tribal law, subject to any restrictions imposed by the Constitution,
treaties, or laws of the United States. Final decisions and orders of
the Tribal Court are subject to review by the Tribal Court of Appeals
as provided in Sections 1-2- 816 and 1-2-817 of this Code. Failure to
legislate in any particular area shall not be deemed a cession of authority
to any other government's jurisdiction.
1-2-103.
Criminal jurisdiction.
The Tribal Court shall have criminal jurisdiction over any Tribal member,
American or Canadian Indian, or Alaskan Native found within the Flathead
Reservation and accused by the Tribes of the commission, within the
Flathead Reservation, of an offense enumerated in Title II, Chapter
1, of this Code.
1-2-104.
Civil Jurisdiction.
(1) The
Tribal Court of the Confederated Salish and Kootenai Tribes of the Flathead
Reservation, Montana, shall have jurisdiction of all suits wherein the
parties are subject to the jurisdiction of this Court, and over all
other suits which are brought before the Court by stipulation of parties
not otherwise subject to Tribal jurisdiction. In suits brought by non-members
against members of the Tribes or other persons subject to the jurisdiction
of this Court, the complainant shall stipulate in his or her complaint
that he or she is subject to the jurisdiction of the Tribal Court for
purposes of any counterclaims which the defendant may have against him
or her.
(2) To the fullest extent possible, not inconsistent with federal law,
the Tribes may exercise their civil, regulatory and adjudicatory powers.
To the fullest extent possible, not inconsistent with federal law, the
Tribal Court may exercise subject matter and personal jurisdiction.
The jurisdiction over all persons of the Tribal Court may extend to
and include, but not by way of limitation, the following:
(a)
All persons found within the Reservation.
(b) All persons subject to the jurisdiction of the Tribal Court
and involved directly or indirectly in:
(i)
The transaction of any business within the Reservation;
(ii)
The ownership, use or possession of any property, or interest
therein, situated within the Reservation;
(iii)
The entering into of any type of contract within the Reservation
or wherein any aspect of any contract is performed
within the Reservation;
(iv)
The injury or damage to property of the Tribes or a Tribal member.
(3) As
used in this section, "person" means an individual, organization, corporation,
governmental subdivision or agency, business trust, estate, trust, partnership,
association, joint venture, or any other legal or commercial activity.
Nothing in this chapter waives any aspect of the Tribes sovereign immunity
or related privileges.
(4) The Confederated Salish and Kootenai Tribes shall adopt appropriate
laws and regulations governing conduct of Tribal members exercising
Treaty rights within the open and unclaimed aboriginal territory outside
the Flathead Reservation.
1-2-105.
Exclusive and concurrent jurisdiction.
The jurisdiction
of the Tribal Court, as set out in Sections 1-2-103 and 1-2-104 is exclusive
except:
(1) as may be provided otherwise by federal statute or the final order
of a federal court, or
(2) where implementation of federal law, by Tribal agreement or otherwise,
requires that Tribal Court jurisdiction be concurrent with that of the
courts of the State of Montana, and where Tribal statute expressly sets
forth such concurrence.
(3) Subject to the conditions and limitations expressed in Section 1-2-104(4),
the laws and jurisdiction of the State of Montana, including the judicial
system of the State, are hereby extended pursuant to, and subject to
the conditions in, the Act of the Montana Legislature of February 27,
1963, Laws of Montana, 1963, Vol. 1, Chap. 81, p. 170, Sections 2-1-301
through 2-1-306, MCA, to Indians within the Flathead Reservation to
the extent such laws and jurisdiction relate to the subjects following:
(a)
compulsory School Attendance;
(b) Public Welfare;
(c) Domestic Relations (except adoptions);
(d) Mental Health, Insanity, Care of the Infirm, Aged and Afflicted,
(e) Juvenile Delinquency and Youth Rehabilitation;
(f) Adoption Proceedings (with consent of the Tribal Court),
(g) Abandoned, Dependent, Neglected, Orphaned or Abused Children;
(h) Operation of Motor Vehicles upon Public Streets, Alleys, Roads
and Highways, and
(i) All Criminal Laws of the State of Montana pertaining to felony
offenses (Class E offenses in this Code).
(4) The
effectiveness of Subsection (3) above is conditioned upon the following:
(a)
Concurrent jurisdiction remains with the Tribal Court and in the
Tribal Government (where applicable with Federal Courts) of all
matters referred to in Subsection (3); and any matter initiated
in either a State or Tribal Court shall be completed and disposed
of in that Court, and shall not be subject to re-examination in
the Courts of the other jurisdiction.
(b)
No person, once convicted of a crime falling within the jurisdiction
of the State or the Tribes pursuant to this Ordinance, shall be
punished for the identical act in the Courts of the other jurisdiction,
but shall be accorded the benefit of the doctrine of former
jeopardy as if the separate jurisdictions were one.
(c)
Ordinance 40-A (Revised) is subject to possible referendum of the
eligible voters of the Confederated Tribes, and if a referendum
is authorized and the Ordinance disapproved by a majority under
the conditions set forth in Article IX, the Ordinance shall
be void and of no effect to transfer jurisdiction to the State of
Montana and its judicial system.
(d)
All jurisdiction of the Confederated Tribes under its Constitution
and Bylaws, and Ordinances enacted pursuant thereto, and of
the Federal Government under the United States Criminal Code, and
to the extent not expressly transferred by Subsection (3)
above, remains in the Confederated Tribes and in the Federal Government
respectively to the same extent as if Ordinance 40-A (Revised)
had not been adopted.
(e)
If any provision of the Act of the Montana Legislature of February
27, 1963, Vol.1, Chap. 81, or of the Ordinance 40-A (Revised)
shall be held invalid, of if the Ordinance be held to extend a jurisdiction
more extensive that set forth therein, or if any condition
herein be not complied with or be invalid or ineffective, then the
entire Ordinance 40-A (Revised) shall be held to be void and of
no effect from the beginning.
(f)
In the event of any alleged violation of the Civil Rights of Tribal
members by operation of this Ordinance 40-A (Revised) the Tribal
member may seek redress in the Tribal Court system and the Tribal
Council reserves the right to conduct an independent investigation
of the occurrence and to review the Ordinance upon validation
of any such alleged act.
(g)
It is further provided that any sentences or convictions, lawfully
inflicted under the provisions of the Ordinance 40-A (Revised) shall
not be affected by subsequent cancellation or voiding of the Ordinance.
Part
2
Tribal
Court Judges
1-2-201.
Number and compensation.
The Tribal
Court shall be presided over by a Chief Judge and by three Associate
Judges whose duties shall be regular and permanent, and by one or more
part-time or temporary Judges who may be employed as required. The regular,
full-time Judges shall be compensated by annual salaries established
by contract with the Tribes and executed by the Chairman. No Tribal
Judge's salary shall be diminished during the term of the Judge's office.
A part-time or temporary Judge may be employed, on a temporary or a
case-by-case-basis, at a reasonable hourly rate, by means of a written
contract with the Tribes and executed by the Chairman.
1-2-202.
Appointment, staggered terms, and advertisement.
(1) Each
full-time Tribal Court Judge shall be appointed by a majority of a quorum
of the Tribal Council for a term of four years and shall be eligible
for reappointment. A vacancy in a full-time judgeship shall be filled
by appointment by a majority of a quorum of the Tribal Council for the
balance of the unexpired term.
(2) A person shall be eligible to serve as a Tribal Court Judge only
if the person (i) is a member of the Confederated Salish and Kootenai
Tribes, and (ii) has never been convicted of a felony, or, within one
year then last past, of a misdemeanor, with the exception of minor traffic
violations.
(3) No Judge shall be qualified to preside in any case where she or
he has any direct, personal interest or where he or she is prejudiced
for or against any of the parties in the action. Nor shall any Judge
be qualified to act in any case where any relative by marriage or blood
in the first or second degree is a party unless all parties to the action
waive this provision.
(4) All Judges shall protect and preserve the high standards of the
Tribal judiciary and shall abide by the Model Canons of Judicial Ethics
of the American Bar Association.
(5) A person
shall be eligible to serve as a Tribal Court Judge only if the person
(i) is a member of the Confederated Salish and Kootenai Tribes, and
(ii) has never been convicted of a felony, or, within one year then
last past, of a misdemeanor, with the exception of minor traffic violations.
(6) No
Judge shall be qualified to preside in any case where she or he has
any direct, personal interest or where he or she is prejudiced for or
against any of the parties in the action. Nor shall any Judge be qualified
to act in any case where any relative by marriage or blood in the first
or second degree is a party unless all parties to the action waive this
provision.
(7) All
Tribal Court Judges shall protect and preserve the high standards of
the Tribal judiciary and shall abide by the Model Code of Judicial Conduct
adopted by the American Bar Association as it now exists and as it may
from time to time be amended.
(8) Qualified
individuals with judicial experience may from time to time be appointed
by the Chief Judge to sit as Tribal Court judges on individual cases
where appointment of an outside judge is called for. Such pro tempore
appointments need not be Tribal members.
1-2-203. Removal of a Judge of the Tribal Court.
A Judge
of the Tribal Court may be suspended, dismissed or removed for cause
by the Tribal Council. Cause shall be defined as malfeasance in office,
corruption, neglect of duty, or conviction of a felony or misdemeanor,
excluding minor traffic violations. A Judge charged by a majority of
a quorum of the Tribal Council with conduct constituting cause for suspension,
dismissal, or removal shall be given personal, written notice of the
basis for the charge and be given adequate time to prepare a defense.
The Judge shall then be given a full hearing before the Tribal Council
with an adequate opportunity to present a defense, including the production
of witnesses and other evidence in the Judge's behalf and an opportunity
to cross-examine witnesses against the charged Judge. An affirmative
vote of seven members of the Tribal Council is necessary to suspend,
dismiss or remove a Judge from office.
1-2-204.
Substitution of Judges.
(1) Each
party to a proceeding is entitled to substitution of a judge without
asserting cause for the substitution, if the motion is made within ten
days of the party receiving notice of the judge's assignment to the
case.
(2) Where cause exists, a party to a proceeding may make a timely and
sufficient affidavit that the assigned Judge has a personal bias or
prejudice either against the party or in favor of any adverse party.
Such Judge shall proceed no further therein. The affidavit shall state
the facts and the reasons for the belief that bias or prejudice exists,
and shall be filed at the earliest opportunity, and not less than ten
days before the proceeding is to be heard, or good cause shall be shown
for failure to file it within such time. It shall be accompanied by
a certificate of counsel of record stating that it is made in good faith.
The Chief Judge shall review the affidavit and upon finding cause shall
assign another Judge to hear such proceeding. (Rev. 1-27-00.)
Part 3
Court
Administration
1-2-301.
Duties of the Chief Judge.
(1) The Chief Judge shall designate one Judge to preside over the Small
Claims division of Tribal Court, one Judge to preside over the Traffic
Court division of Tribal Court, and one Judge to preside over the Youth
Court division of Tribal Court. The same Judge may be designated to
preside over more than one subdivision.
(2) The Chief Judge shall establish and maintain a system of assignment
of cases, other than Small Claims and Youth Court cases, among the Judges.
In the event of disqualification, recusal or other inability of a Judge
assigned to a case to serve, the next Judge who would have been assigned
in the system established by the Chief Judge shall hear and decide the
case. However, if no full-time Judge is qualified or able to hear the
case, the Chief Judge may select a temporary or part-time Judge as replacement
Judge, as provided in Section 1-2-201.
(3) In all criminal proceedings and in civil matters that require assistance,
the Chief Judge shall appoint a bailiff, who, within the context of
the proceeding, shall have the authority of a Tribal law enforcement
officer to keep the peace and shall have such other courtroom duties
as the Chief Judge may prescribe. A bailiff may be an employee of the
Court or of the Law Enforcement Department and may be appointed on a
case-by-case basis or for a regular term.
(4) Except as provided in Section 1-2-302, the Chief Judge oversees
general administration of the Tribal Court, including management of
caseload, expenditures, library, records management, and the presentation
of an annual budget proposal to the Tribal Council. In consultation
with the Clerk of Court, Court administrative and research tasks may
be delegated by the Chief Judge to one or more Court employees and,
within the limits of the Court's budget and with the approval of the
Tribal Council, consultants may be employed by the Chief Judge by written
contract.
(5) The Chief Judge may seek and, with the approval of the Tribal Council,
accept funds made available through gift, grant, or contract to assist,
improve, or enhance Tribal court operations.
1-2-302.
Appointment and duties of Clerk of Court.
(1) There
is established the office of Clerk of Court, which shall be filled by
appointment to a four-year term by a majority of a quorum of the Tribal
Council in accordance with policies, rules, and classifications of the
Tribal Personnel system.
(2) As the budget for administering the Court may permit, the Clerk
of Court may employ, in accordance with the Tribal Personnel System,
such deputies and court reporters as may be required to assist in fulfilling
the duties of the Clerk.
(3) The Clerk shall collect fees and fines paid to the Court and deposit
the same within a week of collection with the Executive Treasurer. The
Clerk shall make a certified accounting of the same annually to the
Tribal Council. The clerk shall be bonded in an amount sufficient to
cover the average annual revenues derived from fees and fines paid to
the Court.
(4) As required by statute or otherwise where appropriate, the Clerk
shall prepare and make available to unrepresented parties forms, approved
by the Chief Judge, for pleadings and service of process.
(5) The Clerk shall prepare all documents and ledgers incidental to
the functions of the Tribal Court and, upon request and payment of a
reasonable fee, shall certify copies of the public record of proceedings
as true and accurate representations of the official Court record.
(6)
The Clerk, or the Clerk's designee, shall attend all proceedings of
the Court and keep a record of the same. Unless a court reporter is
present to record the proceedings, the Clerk, the Clerk's designee,
or the Court shall tape record, maintain, and archive the recordings
of all criminal and civil actions. However, proceedings in the Tribal
traffic and small claims courts shall be tape recorded and maintained
for a period of only 20 days after entry of judgment unless a timely
appeal is filed in the manner provided in this Code.
(7) The Clerk shall keep a current docket numbering system and shall
preserve and protect the original, official records of all Court proceedings.
(8) The Clerk shall keep, compile, and submit records of Court proceedings
to the Bureau of Indian Affairs at such times and in such detail as
may be required by federal law.
(9) The Clerk shall make available for inspection and, for a reasonable
fee, provide copies of all records of Court proceedings not designated
confidential by law.
Part
4
Representation
by Counsel
1-2-401.
Declaration of Policy.
(1) Every
person appearing as a party before Tribal Court, except as otherwise
provided for proceedings associated with Small Claims, has a right to
be represented by an attorney or other person admitted to practice before
the Court at the person's own expense.
(2) An indigent defendant accused of a criminal offense punishable by
imprisonment has a right to representation by the Tribal Defender's
Office.
(3) Other persons are entitled to representation by the Tribal Defenders
Office pursuant to the policies of that Office as approved by the Tribal
Council.
1-2-402.
Indigence Defined.
An individual
accused by the Tribes of a criminal offense shall be determined to be
indigent if he or she presents to the Tribal Defenders Office a statement
documenting that his or her income is less than 200% of the current
standard for poverty contained in the Federal Poverty Income Guidelines.
If the individual's income is between 200% and 300% of that standard,
he or she may elect to have the Tribal Defenders Office represent them
for a fee to be determined by the Tribal Defenders Office and approved
by the Tribal Council, but shall not be entitled to representation by
that Office in the absence of making that election. If the individual's
income is over 300% of the current standard for poverty contained in
the Federal Poverty Income Guidelines then he or she shall be responsible
for retaining and paying their own attorney or advocate, and shall not
be entitled to representation by the Tribal Defenders Office.
Part
5
Admission
to Practice in Tribal Court
1-2-501.
Attorneys.
(1) An
attorney in good standing who is admitted to practice before the Montana
Supreme Court shall be admitted to practice before the Tribal Court
and the Tribal Appellate Court upon submission of an application for
admission to practice and payment of an annual fee set by the Chief
Judge and due by January 1st of each year. Application for admission
to practice will be made on a form provided by the Clerk of Court and
will include the applying attorney's agreement to act as an officer
of the Tribal Court in any action or proceeding in which the attorney
appears, and to conduct legal practice in accord with the Rules of Professional
Conduct as adopted by the Tribal Council.
(2) An attorney not admitted to practice in Montana and not previously
admitted to practice before the Tribal Court, but admitted to practice
and in good standing before the courts of another state, may be admitted
to practice before the Tribal Court, for the purposes of a single case
or controversy, upon:
(a)
association in that case with an attorney who is admitted to practice
before the Tribal Court;
(b)
certification by the admitted attorney of the qualifications of
the attorney from out-of-state and of association for purposes
of the specified case or controversy; and
(c)
submission of an application and fee, as provided in (1) above.
(3) An
attorney employed by the Tribes shall be admitted to practice before
the Tribal Court and Tribal Appellate Court without filing an application
or paying a fee.
(4) All
attorneys admitted to practice before the Tribal Court and Tribal Appellate
Court shall be subject to disciplinary action for violations of the
Rules of Professional Conduct or other professional standards.
1-2-502.
Law Students.
A student
enrolled in an accredited School of Law in the United States may be
admitted to practice before the Tribal Court if an attorney admitted
to practice before the Tribal Court requests the admission in writing
and agrees to supervise and assume responsibility for the student's
practice.
1-2-503.
Admission Required Prior to Filing Papers.
No pleading,
motion, brief, or other paper in any action or proceeding or appeal
will be accepted for filing by the Clerk of Court from an attorney or
law student who has not been first admitted to practice before the Tribal
Court.
1-2-504.
Tribal Court Advocates.
An individual
employed by the Confederated Salish and Kootenai Tribes as a Tribal
Court advocate (hereafter "advocate") shall be admitted to practice
before the Tribal Court upon employment and certification by a Tribal
attorney that the advocate is qualified to represent individuals in
actions and proceedings before the Tribal Court.
1-2-505.
Child Support Investigators.
A Child
Support Investigator for the Tribes or the State of Montana may file
papers and appear in Tribal Court for the limited purposes of seeking
a Child Support Order, having a Foreign Judgment recognized, or applying
for a Writ of Execution or Garnishment.
1-2-506.
Pro Se and Tribal Member Representation.
(1) Any
adult, who has not been adjudged incompetent, and who wishes to commence
an action or who is a named party to an action or proceeding in Tribal
Court, may represent himself or herself in person. A corporation, firm,
association, or other organized entity, except a partnership, may be
represented by its chief executive officer or by an employee who has
been authorized in writing by the chief executive officer to represent
the entity in an action or proceeding. A partnership may be represented
by a general partner or by an employee who has been authorized in writing
by a general partner to represent the partnership. A
person representing a corporation, firm, association, other organized
entity, or a partnership pursuant to this section shall file such written
authorization with the Court along with its first pleading and shall
serve a copy of the same upon the opposing party or such party's counsel
of record.
(2) An adult Tribal member who wishes to commence an action or who is
a named party to an action or proceeding may be represented without
remuneration by another Tribal member who is neither an attorney nor
an advocate and who has not been convicted of a felony nor been adjudged
incompetent. The party enlisting such representation shall so inform
the Court in writing and shall acknowledge sole responsibility for all
pleadings, motions, and other papers submitted on the party's behalf
and for the timeliness thereof and shall acknowledge that all notices
incident to the proceedings will be sent to the party and not to the
Tribal member representative.
Part
6
Juries
and Witnesses
1-2-601.
Composition of venire.
The Tribal Council each year shall prepare a list of eligible jurors.
Such eligible jurors shall be residents of the Flathead Reservation
and enrolled members of the Tribes who are qualified to vote in elections
of the Council.
1-2-602.
Selection of jury panels.
(1) By
October 1st of each year, the Tribal Records Manager shall provide the
Clerk of Court with the names of all Tribal members eligible for jury
duty. The Clerk of Court shall randomly select 1,000 names from the
list. The Clerk shall send juror questionnaires to each one and
this group shall comprise the jury pool for the next calendar year.
The Clerk shall notify each person of his or her selection and of grounds
and methods for the person's excuse from the jury pool. By December
15th, the Clerk of Court shall randomly select 50 names from the pool
to serve as the jury panel for January trials. This procedure shall
be followed in subsequent months. Each month the Clerk of Court shall
make available to counsel involved in jury trials scheduled for that
month the questionnaires of the 50 persons selected for that month's
panel. The Court shall by Rule of Court specify grounds and procedures
for excuse from jury duty.
(2) The Court may summon a panel for purposes of selecting a jury for
a particular case or to provide for the availability of a jury in several
cases to be tried within a specified period of time, not to exceed one
month. (Rev.
1-27-00.)
1-2-603.
Composition of a jury for a civil action.
(1) A jury
shall consist of six persons and an alternate selected from a summoned
panel. The Clerk of Court shall notify parties to a case to be tried
to a jury of the names and addresses of the summoned panel no later
than 10 days prior to the commencement of the trial.
(2) Each party to a case is entitled to three peremptory challenges
and one peremptory challenge in the event that an alternate juror is
selected, unless a lesser number is agreed to by the parties in writing.
(3) Each party shall have unlimited challenges for cause, on the basis
of lack of qualifications, partiality, or otherwise acceptable reasons,
which include the following:
(a)
having a family relationship within the first or second degree to
any party, or to the person allegedly injured;
(b) standing, in relation to a party or person injured, as guardian,
ward, employer, employee, debtor, creditor, attorney, client,
or being a member of the family of either party, person insured,
shareholder, partner, trustor, trustee, or beneficiary;
(c) having been a party adverse to another party in a prior civil
action or having complained against or been accused by a party in
a criminal prosecution;
(d) having served as a juror or been a witness in a previous trial
between the same parties;
(e) having an interest in the event of the action, or in the main
question involved in the action;
(f) having a pre-existing opinion or belief as to the merits of
the action; or
(g) having a state of mind evincing bias against or in favor of
either party or the person injured.
(h) whether or not cause exists shall be determined by the presiding
Judge.
(4) Each
challenge must be tried and determined by the Court at the time the
challenge is made.
1-2-604.
Civil verdicts.
After all
parties have rested their cases, the Judge shall instruct the jury in
the law governing the case and the jury shall bring in a verdict for
the plaintiff or the defendant in a civil case. The jury shall be instructed
by the Judge in all civil cases that they are to find for the party
who has established the position she or he alleges by the burden of
proof established by law. The Judge shall render judgment in accordance
with the verdict and the existing law. If a jury is unable to reach
a unanimous verdict, the Judge may authorize a verdict by a majority
vote.
1-2-605.
Jurors' compensation and reimbursement.
(1) Each
juror and alternate juror selected shall be paid the sum of $50.00 plus
mileage to and from the Court for each day, or part-day, spent in the
business of the Court at the Tribal Complex at Pablo, Montana. Each
panel member summoned and appearing but not selected as a juror or alternate
shall be paid their mileage to and from the Court.
(2) Each panel member summoned for selection as a juror and each juror
and alternate shall be reimbursed for meals and for mileage traveled
within the reservation in connection with the service, unless meals
and transportation are provided by the Court, at its option.
1-2-606.
Juries in civil cases.
(1) In
actions at law or in any civil case where monetary damages are prayed
for and may be awarded by law, except a matter filed as a small claim,
a party may demand a jury trial. Such demand must be made to the presiding
Judge, with notification to the other party or parties, no later than
15 working days prior to the time set for trial.
(2) Costs of a jury trial in a civil matter shall be reimbursed to the
Court by the party demanding the jury trial. Such costs may be a part
of the award if the demanding party prevails. Payment shall be made
upon presentation of a statement by the Clerk setting forth said costs,
including the cost of summoning a panel, the cost of compensation to
panel members, jurors, and alternates, and the costs of meals and mileage
of panel members, jurors, and alternates. Taking into consideration
the resources of the demanding party and whether there is a reasonable
likelihood that the demanding party will prevail, the presiding Judge
may require that the demanding party post a bond guaranteeing payment
to the Court in an amount not to exceed $5,000 in the event that the
demanding party is not the prevailing party.
1-2-607.
Power to subpoena witnesses.
A Judge
of the Tribal Court has the power to issue subpoenas to compel the attendance
of witnesses and the production of documents either on the Court's own
motion or on the request of any party to a case, which shall bear the
signature of the Judge issuing the subpoena.
1-2-608.
Compensation of witnesses.
(1) Each
witness, except an expert witness, answering a subpoena to appear in
a civil trial shall be paid by the party requesting the subpoena, or
by the Court if the subpoena was issued on its own motion, the sum of
$50.00 for each day, or part-day, that his or her presence is required
in Court or at any deposition location and for transportation costs
to and from Court or the deposition location, at the same rate as that
established for jurors in Section 1-2-606, or, if travel by air is necessary,
at the lowest practicable rate then available for airfare.
(2) An expert witness may be paid a reasonable fee by the party calling
the expert. If the Court, on its own motion, finds it necessary in the
interests of justice to call an expert witness, it shall pay the witness
a reasonable fee, not to exceed the expert's regular hourly rate for
such service, and assure that the expert is available for interview
by the parties prior to any testimony by the expert.
(3) If attorney's fees and costs are permitted by statute or by agreement
of the parties to be awarded to the prevailing party, the Court may
also order the award of witness fees and transportation costs to the
prevailing party.
1-2-609.
Service of subpoenas.
Service
of subpoena shall be made by a competent person who is at least 18 years
of age and not a party to the action. Proof of service of subpoena shall
be filed with the Clerk of Court by noting on the subpoena the return
date, time and place that it was served.
1-2-610.
Effect of failure to obey a subpoena.
If a witness
fails to obey a subpoena, an order to show cause why the person should
not be found in contempt of Court shall immediately issue.
1-2-611. Privileged confidentiality in certain relations.
There are
particular relations in which it is the policy of the law to encourage
confidence and to preserve it inviolate; therefore, a person cannot
be examined as a witness in the following enumerated cases:
(1) Spousal
privilege. A husband cannot be examined for or against his wife without
her consent or a wife for or against her husband without his consent;
nor can either, during the marriage or afterward, be, without the consent
of the other, examined as to any communication made by one to the other
during the marriage; but this exception does not apply to a civil action
or proceeding by one against the other or to a criminal action or proceeding
for a crime committed by one against the other.
(2) Attorney-client privilege.
(a)
An attorney or Court advocate cannot, without the consent of his
client, be examined as to any communication made by the client to
him or his advice given to the client in the course of professional
employment.
(b) A client cannot, except voluntarily, be examined as to any communication
made by him to his attorney or Court advocate or the advice given
to him by his attorney or Court advocate in the course of the attorney's
or Court advocate's professional employment.
(3) Confessions
made to member of clergy. A clergyman, priest, or traditional spiritual
advisor, cannot, without the consent of the person making the confession,
be examined as to any confession made to him in his professional character
in the course of discipline enjoined by the church to which he belongs.
(4) Doctor-patient privilege. Except as provided in Rule 35, Federal
Rules of Civil Procedure, a licensed physician, surgeon, or dentist
cannot, without the consent of his patient, be examined in a civil action
as to any information acquired in attending the patient which was necessary
to enable him to prescribe or act for the patient.
(5) Speech-language pathologist, audiologist-client privilege. A speech-language
pathologist or audiologist cannot, without the consent of his client,
be examined in a civil action as to any communication made by the client
to him.
(6) Psychologist-client privilege. The confidential relations and communications
between a psychologist and his client shall be placed on the same basis
as provided by law for those between an attorney and his client. Nothing
in any act of the Tribal Council shall be construed to require such
privileged communications to be disclosed.
(7) Information gathered by psychology teachers and observers. Any person
who is engaged in teaching psychology in any school or who, acting as
such, is engaged in the study and observation of child mentality shall
not, without the consent of the parent or guardian of such child being
so taught or observed, testify in any civil action as to any information
so obtained.
(8) Confidential communications by student to employee of educational
institution. A counselor, psychologist, nurse, or teacher employed by
any educational institution cannot be examined as to communications
made to him in confidence by a duly registered student of such institution.
However, this provision shall not apply where consent has been given
by the student, if not a minor, or, if he is a minor, by the student
and his parent or legal guardian.
(9) Mediator privilege. Except as otherwise provided by law, a person
acting as a mediator in a mediation cannot, without the consent of the
parties to the mediation, be examined in a civil action as to any communication
made by a party to him during the course of the mediation.
(10) Media Confidentiality. Extent of privilege.
(a)
Without his or its consent no person, including any newspaper, magazine,
press association, news agency, news service, radio station, television
station, or community antenna television service or any person
connected with or employed by any of these for the purpose of gathering,
writing, editing, or disseminating news may be examined as to or
may be required to disclose any information obtained or prepared
or the source of that information in any legal proceeding if the
information was gathered, received, or processed in the course of
his employment or its business.
(b) A person described in subsection (a) may not be adjudged in
contempt by a judicial, legislative, administrative, or any other
body having the power to issue subpoenas for refusing to disclose
or produce the source of any information or for refusing to disclose
any information obtained or prepared in gathering, receiving, or
processing information in the course of his or its business.
(11) Licensed
Social Workers. A licensee may not disclose any information acquired
from clients consulting in the licensee's professional capacity except:
(a)
with the written consent of the client or, in the case of the client's
death or mental incapacity, with the written consent of the
client's personal representative or guardian;
(b) that he need not treat as confidential a communication otherwise
confidential that reveals the contemplation of a crime by the client
or any other person or that in his professional opinion reveals
a threat of imminent harm to the client or others;
(c) that if the client is a minor and information acquired by the
licensee indicates that the client was the victim of a crime,
the licensee may be required to testify fully in relation thereto
in any investigation, trial, or other legal proceeding in which
the commission of such crime is the subject of inquiry;
(d) that if the client or his personal representative or guardian
brings an action against a licensee for a claim arising out of the
social worker-client relationship, the client is considered
to have waived any privilege;
(e) to the extent that the privilege is otherwise waived by the
client; and
(f) as may otherwise be required by law.
(12) Public
Accountants.
(a)
Except by permission of the client, person, firm, or corporation
engaging a certified or licensed public accountant or an employee
of the accountant or by permission of the heirs, successors, or
personal representatives of the client, person, firm, or corporation
and except for the expression of opinions on financial statements,
a certified public accountant, licensed public accountant, or employee
thereof may not be required to disclose or divulge or voluntarily
disclose or divulge information that the certified or licensed accountant
or an employee may have relative to and in connection with
any professional services as a public accountant. The information
derived from or as a result of professional services is considered
confidential and privileged.
(b)
The provisions of this section do not apply to the testimony or
documents of a public accountant furnished pursuant to a subpoena
in a court of competent jurisdiction, pursuant to a board proceeding,
or in the process of any board-approved practice review program.
(13) Interpreters.
Any information that an interpreter gathers pertaining to any proceeding
then pending shall at all times remain confidential and privileged,
on an equal basis with the attorney-client privilege, unless such person
desires that such information be communicated to other persons.
1-2-612.
Waiver of privilege.
(1) Except
as provided in subsection (2), dissemination in whole or in part does
not constitute a waiver of provisions of Section 1-2-611.
(2) If the person claiming the privilege testifies, with or without
having been subpoenaed or ordered to testify or produce the source,
before a judicial, legislative, administrative, or other body having
the power to issue subpoenas or judicially enforceable orders, he does
not waive the provisions of Section 1-2-611 unless the person voluntarily
agrees to waive the privilege or voluntarily discloses the source in
the course of his testimony. Except as provided in this subsection,
the provisions of Section 1-2-611 may not be waived.
Part
7
Rules
of Practice in Actions and Proceedings
Before
the Tribal Court
Rule
1. Application.
Except as otherwise provided herein, the following rules apply in all
actions and proceedings before the Tribal Court as follows:
(1)
Rules 1 through 19 apply, according to their terms, in all actions
and proceedings where any party is represented by an attorney or
by a Tribal Court Advocate.
(2) Compliance with Rules 6(1), 7, 11(2), 13(3) and Rules 14 through
19 is not required when all parties represent themselves or are
represented by a Tribal member who is not an attorney or a Tribal
Court Advocate.
Rule
2. Assignment of Judges.
(1) Assignment of Trial Judge. A judge will be assigned to each
docketed case by the Chief Judge of Tribal Court or by the Clerk of
Court, if the Chief Judge so directs. A judge may recuse himself or
herself for good cause. The Chief Judge may excuse a judge from one
or more assignments for reasons of efficient judicial administration.
If the Chief Judge determines, on the basis of the pleadings before
trial, that the interests of justice would best be served by the appointment
of a visiting judge with experience in the legal areas to be litigated,
the Chief Judge may substitute such appointment for any assignment already
made.
(2) Presiding Judge. Once assigned and unless recused, excused,
disqualified, or replaced by a visiting judge, a judge will preside
over all proceedings in a case. Pretrial proceedings will be calendered
by the Clerk of Court for the presiding judge and the cause will be
set for trial as provided by Rule 3.
Rule
3. Trial Scheduling.
(1)
Civil Trial Scheduling. The
Clerk of Court shall keep a trial calendar upon which all civil causes
shall be entered. Within 30 days of the filing of last required responsive
pleading, Plaintiff's counsel or the Plaintiff, if unrepresented, shall
prepare and serve on opposing counsel and any unrepresented parties
and file with the Court a proposed scheduling order. Along with the
proposed scheduling order, Plaintiff's counsel or the Plaintiff, if
unrepresented, shall certify to the Court that reasonable efforts have
been made to consult with all opposing counsel or unrepresented parties
concerning the proposed schedule and shall indicate whether or not opposing
counsel and/or the unrepresented parties, if any, have agreed to the
proposed schedule. Opposing counsel or unrepresented parties shall have
10 days after service of the proposed scheduling order in which to file
objections thereto and to submit a counter proposed scheduling order
stating the reasons why Plaintiff's proposed schedule is unacceptable.
Such objections and counter proposed scheduling order shall be served
upon Plaintiff's counsel or the Plaintiff, if unrepresented. Plaintiff's
counsel or the Plaintiff, if unrepresented, shall have 10 days after
service of the objections and counter proposed schedule in which to
respond to the objections and counter proposed scheduling order setting
forth the reasons why Defendant's counter proposed schedule is unacceptable.
If no objections or counter proposed scheduling order are timely filed,
the presiding judge shall enter a scheduling order adopting the Plaintiff's
proposed schedule. If objections and a counter proposed scheduling order
are timely filed and Plaintiff's counsel or the Plaintiff, if unrepresented,
fails to file a timely response thereto, the presiding judge shall enter
a scheduling order adopting the counter proposed schedule. If Plaintiff's
counsel or the Plaintiff, if unrepresented, files a timely response
to the objections and counter proposed scheduling order, the presiding
judge may enter a scheduling order on its own or may elect to order
a scheduling conference. Any proposed schedule filed pursuant to this
Rule shall set forth dates for joinder of necessary parties and amendments
to the pleadings, for pretrial conferences, if any, for closing discovery,
for exchanging lists of witnesses and exhibits, for filing pretrial
motions, and, if the matter is set for a jury trial, for filing jury
instructions, or, if the matter is set for a bench trial, filing proposed
findings of fact and conclusions of law pursuant to Rule 19 of these
Rules of Practice. In addition, the proposed schedule shall indicate
the estimated length of the trial and shall include a blank date for
commencing the trial to be filled in by the presiding judge. The presiding
judge may modify the scheduling order upon a showing of good cause.
In the event that no counsel or unrepresented party files a proposed
scheduling order within 60 days of the last required responsive pleading,
the presiding judge may issue an order to show cause why the case should
not be dismissed without prejudice. A party submitting a proposed scheduling
order may do so in a form substantially similar to the following form:
The Honorable
_______________________
Judge of Tribal Court
Confederated Salish and Kootenai Tribes
P.O. Box 278
Pablo MT 59855
IN THE TRIBAL COURT OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES
OF THE FLATHEAD RESERVATION, PABLO, MONTANA
| ____________________, |
CAUSE
NO. ____________
|
|
Plaintiff,
|
|
|
-vs-
|
SCHEDULING
ORDER
|
| ____________________,
|
|
|
Defendant.
|
|
CERTIFICATE
OF PARTY PROPOSING SCHEDULE
The Undersigned
hereby certifies to the Court that he/she is the Plaintiff/Defendant
in the above-entitled case or is legal counsel for the Plaintiff/Defendant
and that the Undersigned has made reasonable efforts to contact each
opposing party or their counsel of record regarding the following proposed
schedule. The opposing party or counsel ___ does/ ___ does not agree
with the proposed schedule or ___ the opposing party's position regarding
the proposed schedule is unknown because no contact has been made despite
reasonable efforts to do so. The undersigned further certifies that
a copy of this proposed Scheduling Order has been sent to the opposing
party or counsel by U.S. Mail on the date and to the address specified
below or has been personally served.
DATED
this ____ day of ____________, 200__.
______________________________________
Plaintiff/Defendant or Counsel for __________
SCHEDULING
ORDER
The Court
hereby enters the following Scheduling Order and it is hereby ORDERED
that the schedule set forth below shall govern these proceedings except
upon motion of the parties and for good cause:
_______
All amendments to the pleadings shall be filed and other necessary parties
shall be joined.
_______ Discovery shall close.
_______ The parties shall exchange copies of exhibits and lists of witnesses.
All pretrial motions other than motions in limine shall be filed and
briefing shall take place according to the Rules of Civil Procedure.
Any party desiring a hearing upon any motion shall file a written request
with the Court requesting such hearing no later than the due date for
the reply brief on the motion. Absent such a written request for hearing
all motions will be deemed submitted on the briefs.
________ The Final Pretrial Conference shall be held at _____ o'clock
___.m.
The parties
shall file a Pre-Trial Order with the Court no later than ten (10) days
prior to trial. All motions in limine shall be filed no later than ten
(10) days prior to trial. If the case is set for a jury trial, the parties
shall file jury instructions and serve the same upon all adverse parties
as provided by Tribal Law no later than ten (10) days prior to trial.
If the case is set for a Bench trial, the parties shall file proposed
Findings of Fact and Conclusions of Law with the Court and serve a copy
of the same upon all adverse parties no later than five (5) days prior
to trial.
It is
estimated that the trial of the case will take _____ days.
________ The case is set for trial before the Court ___ with/ ___ without
a jury. Trial shall commence at nine o'clock (9:00) a.m. unless otherwise
ordered by the Court.
ENTERED this _____ day of __________, 200__.
____________________________________
Tribal Court Judge
CERTIFICATE
OF SERVICE
I do hereby certify that on the day of _______________, 200__ a true
and correct copy of the foregoing "SCHEDULING ORDER" was served
upon the following persons by depositing the same in the US Mail, postage
prepaid and addressed as follows, or by hand delivery:
_________________ _________________
_________________ _________________
_________________ _________________
CLERK OF THE TRIBAL COURT
By______________________________
Assistant/Deputy
Clerk of Tribal Court
(2) Criminal Trial Scheduling. The Clerk of Court shall keep
a trial calendar upon which all criminal causes shall be entered. The
Tribal Prosecutor and Defense counsel shall jointly prepare and file
a proposed pretrial memorandum and order for approval and issuance by
the presiding judge.
Rule
4. Court Records.
(1) Definition. Court records consist of all papers and documents
filed with the Clerk of Court in connection with any action or proceeding,
as well as the minutes and transcripts constituting the record of any
trial or hearing. A judge's work papers, including without limitation
notes, drafts, and research done at the judge's request, and papers
or documents relating solely to Court administration are not Court records
within the meaning of this rule.
(2) Public
Records. Except as provided in (3) below, Court records are public
records and are available for inspection and for copying upon payment
of the established copying charge.
(3) Confidential Records. Records and files identified as confidential
may not be opened except by order of the Court.
(4) No Withdrawal of Records. No Court records may be withdrawn
from the custody of the Clerk of Court.
Rule
5. Computation of Time.
Except
with regard to criminal sentencing or unless the context plainly requires
otherwise, whenever time limitations are expressed in days under Tribal
law, the day of service and Saturdays, Sundays, and Tribal legal holidays
are excluded from the computation. If a time for answer falls on a Saturday,
Sunday, or Tribal legal holiday, the time is extended to the next succeeding
Tribal workday. No additional time is allowed for delivery by mail or
otherwise except by permission of the presiding judge.
Rule
6. Copies and Filing Fees.
(1) Provision of Copies to Court. Parties shall furnish to the
Clerk of Court all necessary copies of any pleadings or other papers
constituting or containing a notice to other parties which must, by
law or rule, be given by the Court in the context of an action or proceeding.
(2) Payment of Filing Fee. Except as may be otherwise provided,
no complaint, petition, motion, application, or other legal paper or
document shall be filed by the Clerk of Court without being accompanied
by the appropriate filing fee; provided, however, that the Chief Judge
or acting Chief Judge of Tribal Court may waive the filing fee upon
a well-documented showing of grave need by an applicant. Tribal attorneys
and advocates and other attorneys appearing pro bono need not pay filing
fees.
(3) Filing Fee Schedule. The current filing fee and copying fee
schedule as set by Order of the Chief Judge of Tribal Court is published
separately and is available from the Clerk of Court.
Rule
7. Format of Papers Presented for Filing.
(1) Nonconforming
papers may not be accepted for filing.
(2) "Papers"
means all pleadings, motions, briefs, other documents, and copies, except
exhibits.
(3) All
papers shall be:
(a)
typewritten, printed, or the equivalent in a typeface or letter
size not smaller than pica;
(b) on standard quality unglazed white paper, 8 &1/2 X 11 inches
in size;
(c) printed on only one side;
(d) with lines unnumbered or numbered consecutively from the top;
(e) double spaced;
(f) with pages numbered consecutively at the bottom and bound firmly
at the top.
(4) Matters
such as property descriptions or direct quotes may be single spaced.
(5) Extraneous documents in the above format and not readily conformable
may be filed in their original form and length.
(6) Additions, deletions, or interlineations shall be initialed by the
Clerk of Court or by a judge at the time of filing.
(7) All copies served shall conform to the original as filed.
(8) The first page of all papers shall conform to the following illustration:
*Name of counsel
*Complete mailing address
*Telephone number
IN THE
TRIBAL COURT OF THE CONFEDERATED SALISH AND KOOTENAI
TRIBES
OF THE FLATHEAD RESERVATION, PABLO, MONTANA
_______________________________________________________________________
| ___________________, |
)
|
Cause
No. ________ |
|
Plaintiff,
|
)
|
|
| |
)
|
|
|
vs.
|
)
|
COMPLAINT |
| |
)
|
(or
other pleading or motion, |
| ____________________, |
)
|
completely
titled) |
|
Defendant.
|
)
|
|
| |
)
|
|
________________________________________________________________________
Rule
8. Commencement of Civil Actions.
(1) A civil
action shall be commenced in Tribal Court by the filing of a statement
of claim which shall be in ordinary language and state the grievance
for which relief is requested and the nature of the relief requested.
A complaint shall be signed by the plaintiff or his or her attorney
or Tribal representative.
(2) Upon the filing of a complaint, the Clerk of Court shall issue a
summons, to which shall be attached a copy of the complaint, directing
the defendant to answer the complaint or otherwise appear and defend.
The summons shall notify the defendant that failure to answer or otherwise
appear and defend may cause judgment by default to be rendered against
the defendant for the relief demanded in the complaint.
Rule
9. Service of Process in Civil Actions.
(1) A
plaintiff is responsible for service of the complaint and summons upon
the named defendant(s). A plaintiff is also responsible for filing a
return of service with the Clerk of Court. Whenever possible, the complaint
and summons shall be served on the defendant by personal service. Personal
service may be made by a law enforcement officer or by any adult who
is not a party to the action or counsel.
(2) If, after diligent search and inquiry, the defendant can not be
personally served, process may be served by mail. Service by mail shall
be by registered or certified mail with return receipt requested. All
service by mail shall be confirmed by the Court at the time of trial
or at the time of the entering of a default judgment, and shall be supported
by affidavit from the plaintiff. The affidavit shall include the original
return receipt signed by the defendant, a description of documents served
on the defendant, and a statement that a diligent search and inquiry
was made in an effort to serve the defendant personally.
(3) If, after diligent search and inquiry, the defendant can not be
personally served or served by mail, process may be served by publication
in the following actions: dissolution, child custody, child support,
change of name, eviction, or civil suit brought by the Tribes or a Tribal
organization for the collection of an established debt. In such cases,
the plaintiff shall file an affidavit with the Clerk of Court prior
to any service by publication. The affidavit shall include a statement
that the plaintiff has, after diligent search and inquiry, been unable
to effect service of process on the defendant. After receiving such
an affidavit, the Clerk of Court shall issue a Summons by Publication
authorizing service by publication. The Summons by Publication shall
be valid for 40 days from the date of issuance, and thereafter void.
The other requirements for service by publication are as follows:
(a)
The Summons by Publication shall be published in two consecutive
issues of the Tribal newspaper and in at least one other newspaper
published within the exterior boundaries of the Flathead Reservation
at least once each week for three consecutive weeks. The Summons
by Publication shall: contain the name of the Court and the names
of the parties; be directed to the defendant; state the name
and address of the plaintiff's counsel, if any, otherwise the plaintiff's
address; state that the defendant has 15 days from the last date
of publication in which to answer and defend; inform the defendant
that failure to answer and defend will result in judgment by default;
explain the object of the complaint; and, in an action in which
the title to or any interest in or lien upon real property is involved,
the publication shall also contain a general or legal description
of the property involved.
(b)
Service by publication is complete on the date of the last publication
of the summons. A copy of each publication of service, certified
by the publisher as to date and accuracy of publication, shall be filed
by the plaintiff with the Clerk of Court.
(c)
At the time of trial or entering of default judgment, the plaintiff
shall submit evidence to the Court that the foregoing service by
publication procedures were satisfied.
(4) Where
service upon a defendant can not be made within the Flathead Reservation,
service of process outside the Reservation may be made personally, by
mail, or by publication as described in this section with the same force
and effect as though service was made within the Reservation. (Rev.
1-27-00.) In
such cases, the Summons by Publication shall be published in two consecutive
issues of the Tribal newspaper and in the newspaper published within
the area where the defendant was last known to be found at least once
each week for three consecutive weeks.
Rule
10. Pleading in Civil Actions.
Except
as provided in Section 4-2-601 and following, there shall be a complaint
and an answer, and other pleadings deemed necessary. A defendant shall
file an answer within 15 days of receiving service of the complaint
and summons unless the time is extended in the discretion of the Court.
Upon filing of an answer, the defendant shall serve a copy of the answer
upon the plaintiff by depositing same in the US Mail, postage prepaid,
addressed according to the address contained in the complaint. The same
timing and procedures shall apply to a plaintiff against whom a counterclaim
is asserted and to any party against whom a cross-claim is asserted,
with the time calculated from service upon such plaintiff or defendant
of the answer asserting the counterclaim or cross-claim.
Rule
11. Jurisdictional Allegations and Defenses in Civil Actions.
(1) Complaint.
(a)
Subject to the exception in (b) below, a complaint shall contain
a statement of jurisdictional facts. Such statement shall set
forth, at a minimum, the status of the parties as to Tribal membership
or Indian descent if individuals, or Indian ownership if a business,
the place of residence or principal place of business of each
party, the place where the cause of action accrued, the status and
location of any indispensable parties, and other facts tending to
show a relationship of the cause of action to the interests
of the Tribes or Tribal members. If the plaintiff is not a Tribal
member, the complaint shall also contain plaintiff's consent
to the personal jurisdiction of the Tribal Court for purposes
of any counterclaim or cross-claim that may be asserted in the context
of the filed action.
(b)
A complaint need not include a statement of jurisdictional facts
if all parties are enrolled members of the Confederated Salish
and Kootenai Tribes residing within the external boundaries of the
Flathead Reservation, or are legal entities organized under Tribal
law, and the cause of action arose within the exterior boundaries
of the Flathead Reservation.
(2) Answer
or Other First Responsive Pleading.
(a)
If the defendant wishes to deny jurisdictional facts alleged by
the plaintiff or to allege different or additional facts, such allegations
shall be made by way of an answer or other first responsive pleading.
(b)
A defense of lack of personal jurisdiction must be raised by a defendant
in the answer or other first responsive pleading or it
is waived.
Rule
12. Defenses and Objections in Civil Actions.
The Federal
Rules of Civil Procedure shall apply to the defenses and objections
allowed and the manner of presenting same to the Court; however, the
judges shall not be limited to these defenses and objections if in the
judge's discretion it is deemed that the interests of justice would
be better served by allowing otherwise.
Rule
13. Ex Parte Matters.
(1) Application
for Orders. Extensions of time to further plead, file briefs, continue
a hearing on a motion, and other permissible ex parte matters may be
granted by order of the Court upon written application, stating the
grounds for the extension, proposing an early date certain for filing
or the hearing and certifying the notice to opposing parties as provided
in (2) below.
(2) Certificate of Notice. Prior to the issuance of an ex parte
order, the counsel or unrepresented party seeking such order must file
a written certification with the Court declaring that opposing counsel
and any unrepresented party has been contacted, or that a diligent effort
has been made to contact said counsel or unrepresented party, to give
reasonable notice of:
(a) the time and place of the ex parte conference or meeting, and
(b)
the substance of the order sought.
Such certification
shall also include information as to whether opposing counsel or any
unrepresented adverse party opposes the motion.
(3) Form
of Order. All requests for extension of time or continuance or other
ex parte matters shall be accompanied by an appropriate form of order.
(4) Emergency Orders. Nothing in this Rule limits the equitable
powers of the Court to issue, upon petition, such emergency orders as
may be necessary to preserve the status quo or to maintain law and order
in the context of a civil case or controversy until the earliest time
that the matter may be heard. No emergency or temporary ex parte order
shall relieve the party seeking such order of the burden of proof of
allegations made in the application or pleading except in those matters
where the burden of proof is expressly transferred by Tribal law or
by the general rules of law governing the exercise of a court's equitable
or extra ordinary powers.
(5) Counseling. Nothing in this Rule precludes any judge from
counseling with any Tribal member with respect to individual problems
which are not the subject of a pending action or proceeding in Tribal
Court. If an action or proceeding involving the same subject matter
and persons as those discussed during counseling is later filed, the
judge shall recuse himself or herself from the action or proceeding.
Rule
14. Motions.
(1)
Form and Content. Unless otherwise approved by the presiding
judge, all motions shall be in writing and shall indicate the precise
nature of the relief requested.
(2) Motion to Dismiss a Civil Action for Failure to State a Claim.
If not supported by a brief within 5 days of filing, a motion to dismiss
a civil action for failure to state a claim upon which relief may be
granted shall be summarily denied and an additional 15 days granted
in which to further plead.
(3) Briefs. Upon filing a motion or within 5 days thereafter,
the moving party shall file a supporting brief indicating, at a minimum,
the precise legal points, statutes, and other authorities relied upon,
and citing the specifically relevant portions or pages of the statute
or other authority. The brief may be accompanied by supporting affidavits
or other documents. Within 10 days after the filing of a brief by a
moving party, an adverse party shall file an answering brief, which
may also be accompanied by appropriate supporting affidavits or other
documents. Within 5 days thereafter, the moving party may file a reply
brief which shall be directed only to issues raised in the answering
brief. All motions and briefs shall be served upon all parties to the
action at the time of filing. For the presiding judge's reference, complete
copies of key authority asserted to be dispositive upon an issue shall
be attached to all briefs filed with the court.
(4) Effect of Failure to File Briefs. Failure to file a brief
may subject the motion to summary ruling. Failure to file a brief within
5 days of the filing of a motion shall be deemed an admission that the
motion is without merit. Failure to file an answering brief by the adverse
party within 10 days shall be deemed an admission that the motion is
well taken. Reply briefs by the moving party are optional. In cases
where no reply brief is filed, the moving party shall notify the Clerk
of Court that the matter is submitted and ready for decision or for
argument.
(5) Oral Argument.
(a)
The presiding judge may order oral argument or a hearing on a motion
upon a request by a party or on the Court's own motion. The
judge may limit the amount of time permitted for oral argument.
(b)
All motions shall be deemed submitted on briefs unless, within 10
days from the filing of the last responsive brief, the
motion is noticed for hearing. At least 5 days' notice shall be
given for any hearing on a motion.
(6)
Motions to Alter or Amend, for New Trial, or for Relief From Judgment
or Order. A motion to alter or amend a judgment or order, a motion
for a new trial, or a motion for relief from a judgment or order shall
be deemed denied if the Court fails to rule upon the motion within 40
days from the date the motion is filed.
Rule
15. Pretrial Conference and Pretrial Memorandum And Order.
Unless
otherwise ordered by the presiding judge, a pretrial conference shall
be held in all contested cases. Plaintiff's counsel shall convene a
conference of all counsel, not later than 5 days prior to the pretrial
conference deadline, for the purpose of preparing a pretrial memorandum
and order. If counsel can agree upon and file a pretrial memorandum
and order before the deadline for the pretrial conference, the scheduled
pretrial conference will be vacated. In the event of a dispute as to
the contents of the order, such dispute shall be presented to the judge
for resolution at the pretrial conference.
Rule
16. Discovery in Civil Actions.
(1) Unless
otherwise limited by order of the Court, the parties may obtain discovery
regarding any matter, not privileged, which is relevant to the subject
matter involved in the pending action.
(2) Parties may obtain discovery according to the applicable Federal
Rules of Civil Procedure, except Rule 26(a)(1)-(4), or in whatever manner
and scope the presiding judge deems most appropriate.
(3) Depositions upon oral examinations and interrogatories, requests
for documents, requests for admissions, and answers and responses thereto
will not be routinely filed. If a party or any interested person submits
an ex parte request that any of the named documents be filed, the Court
may order filing of the documents. When any motion is filed making reference
to discovery, the moving party shall submit all relevant unfiled documents
with the motion.
Rule
17. Change of Counsel
(1) Counsel
representing a party in any action or proceeding may be changed at any
time upon:
(a)
the written consent of both the party and counsel filed with the
Clerk of Court and entered in the minutes, or
(b) an order of the Court which may be granted upon written application
by either the party or counsel if the applicant has given notice
of the application.
(2) Timely
written notice of a change of counsel shall be given to the adverse
party.
Rule 18. Jury Instructions and Verdict Forms.
(1)
Submission. All proposed jury instructions and verdict forms
shall be filed and a copy served upon opposing parties at the time set
forth in the pretrial order. Thereafter, additional instructions may
be allowed to prevent manifest injustice.
(2) Citation of Authorities. Each proposed jury instruction shall
be submitted in two forms. One form of each proposed jury instruction
shall contain citation of authority supporting the statement of law
therein and the other form of each shall be presented without any citation.
(3) Form. All proposed jury instructions and verdict forms shall
be on 8 & 1/2 X 11 inch paper and shall indicate the party on whose
behalf it is requested. Each instruction shall be numbered consecutively.
Only the jury instructions containing citation of authority may be firmly
bound.
(4) Request for Special Findings by Jury. Whenever a party requests
special findings by a jury, counsel shall file the requested findings
in proper form for submission to the jury and serve a copy upon opposing
parties.
Rule 19. Findings of Fact and Conclusions of Law.
In civil
cases where the Court is the trier of fact, counsel for the parties
and any unrepresented party shall submit proposed findings of fact and
conclusions of law no later than 5 days prior to trial and shall serve
a copy of the same upon all counsel of record and any unrepresented
party.
Rule
20. Orders, Judgments or Decrees.
(1)
Presentation of Order, Judgment or Decree. It is the duty of
any counsel or unrepresented party seeking an order, judgment, or decree
to file a proposed form of the order, judgment, or decree at the time
of applying for same. A
proposed judgment or decree may be combined with proposed findings of
fact and conclusions of law in cases where the Court shall sit as the
trier of fact.
(2) Filing. Whenever an order, judgment, or decree is signed
by the presiding judge, it shall be delivered to the Clerk of Court
and immediately issued and filed in the records of the Court.
(3) Cancellation and Filing of Instrument. In all cases in which
a judgment is entered upon a written instrument, such as, without limitation,
a promissory note or a contract, the instrument must be presented to
the Clerk of Court at the time judgment is granted. The Clerk shall
note in ink across the face of the instrument the fact of the entry
of judgment and its date. The Clerk shall sign the entry and cancel
and file the instrument. The instrument shall not be removed from Court
records except by order of the Court in writing setting forth the facts
of such removal.
Rule 21. Exceptions Unnecessary.
Formal
exceptions to rulings or orders of the Tribal Court are unnecessary.
It is sufficient that a party, at the time the ruling or order of the
court is made or sought, makes known to the court the action which the
party desires the court to take or the party's objection to the action
of the court and the grounds therefor. If a party has no opportunity
to object to a ruling or order at the time it is made and can satisfy
the Court of Appeals as to this fact, the absence of an objection does
not thereafter prejudice the party.
Part
8
Court
of Appeals
1-2-801. Establishment and Composition.
(1) There
is established a Court of Appeals to hear and decide appeals on the
law taken from judgments, orders, or rulings of the Tribal Court or
original proceedings as provided in Section 1-2-815 of this Code. The
Court of Appeals is comprised of a Chief Justice and four Associate
Justices
(2) Unless a request for a rehearing en banc is made and granted as
provided in Rule 21 of the Rules of Appellate Procedure, an appeal or
an original proceeding in the Court of Appeals will be heard and decided
by a panel of three Justices, two of whom will be attorneys. The panel
members will be chosen by rotation, unless another method of selection
is prescribed by Court rule. A vacancy on a panel will be filled by
appointment by the Chief Justice from among the remaining Justices or
if, for reason of recusement, disqualification, or other unavoidable
absence, no Justice is available, by appointment of a visiting judge
or judges with qualifications corresponding to those of the absent member(s)
of the panel.
1-2-802.
Administration.
(1) The
Chief Justice is responsible for the administrative and fiscal management
of the Court of Appeals and for the presentation of its annual budget
proposal to the Tribal Council. In connection with such management,
the Chief Justice may, on behalf of the Court of Appeals, apply for
grants and contracts to provide supplementary funding. If such applications
require Tribal matching funds for their implementation, prior approval
of the Tribal Council is required.
(2) There is an office of Appellate Administration, comprised of an
Appellate Administrator and such other personnel as may, from time to
time, be approved by the Tribal Council in connection with its approval
of the Court's budget. The Appellate Administrator is appointed by the
Tribal Council, which shall determine whether the position is full-time
or part time on the basis of the workload of the Court and which shall
establish the Administrator's compensation. If the workload is insufficient
to occupy the Administrator's full time, the Council may combine the
Office with another Tribal administrative function and the Administrator
may perform such other function in addition to the duties prescribed
herein or assigned by the Chief Justice. The Administrator is subject
to the direction and supervision of the Chief Justice in the performance
of duties herein assigned and such other responsibilities as may be
delegated or assigned to the Administrator by the Chief Justice.
(3) Permanent records of proceedings and decisions of the Court of Appeals
will be maintained by the Appellate Administrator. Records of proceedings
and decisions of the Court of Appeals will be compiled chronologically,
indexed by subject matter, docket number, and caption, and made available
to the public by the Appellate Administrator. The Chief Justice may
order the periodic publication of the decisions of the Court of Appeals
and provide for the distribution of the same to law libraries, other
appropriate repositories, and subscribers.
1-2-803.
Time and format of decision.
A decision,
order, or judgment of the Court of Appeals shall be rendered in writing
by a majority of the Justices hearing the appeal or special proceeding
and filed with the Appellate Administrator within 60 days of the date
of oral argument or of stipulation by the parties that the matter will
be decided on briefs, without oral argument. A Justice who concurs in
the result of the majority decision, but not in its reasoning, may file
a concurring opinion simultaneously with the majority opinion. A Justice
who dissents from the result of the decision may file a simultaneous
dissenting opinion. Copies of a ruling and opinion by the Court of Appeals
shall be delivered to the parties by the Appella