ORDINANCE
NO. 97-2
TITLE 2 - CIVIL PROCEDURE FOR THE TRIBAL COURT
[Dates on the bottom right side of the pages of this
title refer to October 12, 1997.]
CHAPTER
2-1 RULES OF CIVIL PROCEDURE
2-1-01 RULES
OF CIVIL PROCEDURE
The procedure
to be followed in the Tribal Court in all matters of a civil nature
shall be governed by the rules of civil procedure in the United States
district courts. Whenever such rules conflict with specific provisions
of this Code, the provisions of this Code are determinative.
2-1-02 RULES
OF EVIDENCE IN CIVIL PROCEEDINGS
In trials
of a civil nature in the Tribal Court, the admissibility of evidence
and the competency and privileges of witnesses shall be determined
according to the rules governing evidence in proceedings of the courts
of the United States.
2-1-03 COURT
DECORUM
During
every session of the Tribal Court, all persons present shall conduct
themselves in an orderly manner, respectful of the nature of the proceedings
and of other persons present. The Tribal Court Judge shall have the
power to compel order. The judge may expel unruly persons from the
court or punish such persons for contempt.
2-1-04 VERIFICATION
OF PLEADINGS
The factual
averments of all pleadings filed by a party shall be verified such
party, by oath or declaration under penalty of perjury.
2-1-05 SERVICE
OF PROCESS
(a) Upon
the filing of the complaint, the Tribal Court Administrator/Clerk
shall provide a summons to the plaintiff, who shall be responsible
for service of the summons and complaint.
(b) Process
shall be served by a Tribal Police Officer, or by any person over
eighteen years of age and not a party to the proceeding. Service shall
be made by delivering a copy of the summons and of the complaint to
the party personally, or by leaving copies thereof at such party's
residence with a person of suitable age and discretion then residing
therein. There shall be a fee for service of process by the Tribal
Police for Tribal Court of $10.00, plus other charges as necessary;
and a fee for service by the Tribal Police for service of a summons
and complaint into state court of $20.00, plus other charges as necessary.
(c) Personal
service of summons upon a party outside the Reservation is sufficient
to confer upon the Tribal Court personal jurisdiction of the party
so served, if:
(1) The
service is made by delivering a copy of the summons, together with
a copy of the complaint, to such party in the manner provided by
this section and Rule 4(d) of the rules of civil procedure in the
United States district courts; and
(2) This
party has submitted themselves to the jurisdiction of the Tribal
Court pursuant to section 1-1-01 or section 1-1-03 of this Code.
(d) The
Tribal court Administrator/Clerk is authorized to accept for filing
a summons and complaint from another jurisdiction, either state or
Tribal, for service within the boundaries of the Reservation, but
such service must be accomplished only by the Tribal Police.
2-1-06 FEES;
WAIVER
(a) The
following fees and other charges as the Tribal Court Administrator/Clerk
deems necessary shall be charged and collected by the Tribal Court:
(1) Filing
Complaint for Small Claims, $ 20.00;
(2) Filing
Answer, $25.00;
(3) Filing
Motion to Reconsider, $25.00;
(4) Jury
Fees per day of trial, $25.00;
(5) Petition
for Divorce, $25.00;
(6) Petition
for Name Change, $25.00;
(7) Petition
for any other relief, $20.00;
(8) Filing
Out of Jurisdiction Summons And Complaint for Service of Progress,
$25.00.
(b) Any
person who desires to bring or defend a civil action may file an affidavit
with the court setting forth with particularity facts concerning their
income, property and other resources which establish that they are
unable to prosecute or defend the action because of their inability
to pay the costs involved. The affidavit shall include a description
of the cause of action or defense. If the Tribal Court Judge is satisfied
that the person is unable to pay the costs and may have a meritorious
cause of action or defense, the judge shall order:
(1) The
Tribal Court Administrator/Clerk shall allow the person to commence
or defend the action without costs and to file any necessary pleading,
process, writ or paper without charge; and
(2) A
Tribal Police Officer to make any necessary personal service without
charge.
2-1-07 EX-PARTE
COMMUNICATIONS
The Tribal
Court Judge shall not discuss with any party to a civil action before
the Tribal Court, or the representative of a party, any matter pertaining
to such action, outside of the presence of the opposing party or the
opposing party's representative.
2-1-08 TRIAL
BY JURY
(a) A
party may demand a trial by jury of any factual issue by filing such
demand with the Tribal Court Administrator/Clerk and serving such
upon the other parties, not later than 10 days after the service of
the last pleading directed to such issue. At the time the demand is
filed, the party demanding the trial by jury shall deposit with the
clerk jury fees for the first day of trial, pursuant to subsection
(a)(5) of section 2-1-06.
(b) Jurors
shall be selected and in paneled pursuant to Chapter 1-3 of this Code.
2-1-09 SMALL
CLAIMS
(a) In
all cases for the recovery of money only, where the amount claimed
does not exceed $2,000, the action shall proceed according to this
section. Such actions are commended by plaintiff by filing a complaint
on a form provided by the Tribal Court Administrator/Clerk. Upon the
filing, the clerk shall issue a summons. The complaint shall be served
in accordance with section 2-1-05. Upon issuing the summons, the clerk
shall schedule a hearing, the date and time of which shall be indicated
on the summons and be provided by notice to plaintiff. No formal pleading
other than the complaint is required.
(b) The
provisions of this Code generally and the common law of tort apply
in small claims actions, except as otherwise provided in this section.
(c) The
trials and dispositions of small claims action shall be informal,
with the sole object of dispensing fair and speedy justice between
the parties. The plaintiff and the defendant shall have the right
to offer evidence by witnesses appearing at such trials in the same
manner as other cases of a civil nature arising in the Tribal Court.
(d) The
failure to file a cross-claim or counterclaim by the defendant shall
not bar a future action thereon by a defendant in a small claims action.
(e) A
plaintiff or defendant may move for reconsideration from the judgment
in a small claims action. The motion to reconsider shall be filed
using a form provided by the Tribal Court Administrator/Clerk, and
shall state the basis of the motion. It must be filed no later than
30 days from the entry of the judgment, in open court or otherwise.
No formal Notice of Entry of Judgment is required. There may be a
reconsideration bond of not less than $100. The filing of the reconsideration
bond stays execution of the judgment until the reconsideration is
determined.
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CHAPTER 2-2 PARTIES
TO A CIVIL PROCEEDING
2-2-01 ACTIONS
INVOLVING MARRIED PERSONS, UN-EMANCIPATED MINORS OR WARDS
(a) A
husband and wife may sue jointly on all causes of action belonging
to either or both of them, except:
(1) When
the action is for personal injuries, the spouse having sustained
personal injuries is a necessary party; and
(2) When
the action is for compensation for services rendered, the spouse
having rendered the services is a necessary party.
(b) If
husband and wife are sued together, either or both may defend, and
if either neglects to defend; the other may defend for both.
(c) The
father and mother jointly, or the father or the mother, without preference
to either, may maintain an action for the injury of a minor child
who has not been emancipated, if the injury is caused by the wrongful
act or neglect of another. A guardian may maintain an action for the
injury of their un-emancipated ward, if the injury is caused by the
wrongful act or neglect of another, the action by the guardian to
be prosecuted for the benefit of the ward.
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CHAPTER 2-3 JUDGMENTS
2-3-01 ENFORCEMENT
OF JUDGMENTS; EXECUTION
(a) The
party in whose favor a judgment is given may obtain upon request the
issuance of a writ of execution. The writ of execution shall be subscribed
by the Tribal Court Judge and be directed to a Tribal Police Officer.
It shall include:
(1) Reference
to the judgment and the amount of money therefor;
(2) The
names of the parties;
(3) Direction
to a Tribal Police Officer to satisfy the judgment, with interest,
from the sale of the personal property of the judgment debtor;
(4) If
the judgment is for the delivery of real or personal property, a
description of such property and a direction to a police officer
to deliver the possession thereof to the judgment creditor;
(5) A
description of the property exempt from execution and the procedure
for claiming exempt property, pursuant to section 2-3-02.
(b) The
writ of execution shall be served by the Tribal Police Officer upon
the judgment debtor by regular mail at their last known address. Service
shall take place not later than five working days from the date of
issuance by the Judge.
(c) All
goods, chattels, moneys, personal property of the judgment debtor,
and real property of the judgment debtor not held in trust by the
United States through the Secretary of Interior on their behalf, or
exempt under Section 2-3-02, shall be liable to execution.
2-3-02 PROPERTY
EXEMPT FROM EXECUTION
(a) The
following property is exempt from execution:
(1) All
property belonging to judgment debtor's family;
(2) All
objects utilized in ceremonies and pow-wows and similar ceremonies,
including beadwork, jewelry and feather bustles.
(3) Clothing,
furniture, appliances, one radio and one television, linens, china,
crockery, kitchenware, and personal effects (including wedding rings)
of the consumer and his or her dependents.
(4) Farm
trucks, farm stock, farm tools, farm equipment, supplies and seed,
belonging to the judgment debtor to be selected by her/him;
(5) Professional
libraries, office equipment, office supplies and the tools, instruments
and materials used to carry on the trade of the judgment debtor
for the support of self and family not to exceed $4,500 in value;
(6) One
vehicle if the judgment debtor's equity does not exceed $1,000 or
the creditor is paid an amount equal to any excess above that equity;
(7) Private
libraries not to exceed $1,500 in value, and all family pictures
and keepsakes;
(8) The
dwelling of the judgment debtor occupied as a home for self and
family;
(9) All
money, benefits, privileges or immunities accruing or in any manner
growing out of any life insurance, if the annual premium paid does
not exceed $1,000. If the premium exceeds that amount, a like exemption
exists which bears the same proportion to the money, benefits, privileges
and immunities so accruing or growing out of the insurance that
the $1,000 bears to the whole annual premium paid; and
(b) (1)
In order to claim exemption of any property levied on, the judgment
debtor must, within 20 working days after the writ of execution is
mailed, serve on the sheriff and judgment creditor and file with
the clerk of the court issuing the writ of execution an affidavit
setting out the claim of exemption. The clerk of the court shall
provide the form for the affidavit.
(2) Upon
motion, the judgment creditor and the judgment debtor shall be
entitled to a hearing to determine the issue of exemptions.
2-3-03 SALE
ON EXECUTION
(a) The
Tribal Police Officer shall execute the writ against the property
of the judgment debtor by levying on a sufficient amount of property,
but no more property than is reasonably necessary, and paying to the
plaintiff or their attorneys so much of the proceeds as will satisfy
the judgment;
(b) Before
the sale of property on execution, written notice of the sale must
be posted in the Tribal Office and in a newspaper of local common
circulation, at least 10 days prior to the sale.
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