CHAPTER
2
CIVIL ACTIONS
SECTION 20 - JURISDICTION.
The Oglala
Sioux Tribal Court shall have jurisdiction of all suits wherein the defendant
is a member of the Oglala Sioux Tribe and of all other suits between members
and non-members who consent to the jurisdiction of the tribe.
SECTION
20 (A) AND (B) - IMPLIED CONSENT TO TRIBAL JURISDICTION BY NONMEMBERS
OF THE OGLALA SIOUX TRIBE.
(a) Any
person who is not a member of the Oglala Sioux Tribe shall be deemed
as having consented to the jurisdiction of the Oglala Sioux Tribe,
by doing personally through an employee, through an agent or through
a subsidiary, any of the following acts within the exterior boundaries
of the Pine Ridge Indian Reservation.
1.
The transaction of any business.
2. The commission or omission of any act which results in a tort
action.
3.
The ownership use or possession of any property situated within
the exterior boundaries of the Pine Ridge Indian Reservation.
4.
Engaging in any employer-employee relationship.
5.
Leasing or permitting of any land or property.
6. Residing on the Pine Ridge Indian Reservation.
7.
Commission of any act giving rise to claims for spousal support,
separate maintenance, child support, child custody, divorce or modification
of any decree of divorce or separate maintenance proceeding.
8. Any contractual agreement entered into within the exterior boundaries
of the Pine Ridge Indian Reservation.
(b) Service
of process upon any person subject to implied consent may be made
by service within or without the Pine Ridge Indian Reservation in
the same manner provided for services within the Pine Ridge Indian
Reservation.
Hist: 1937
Code, Ch. 2, Sec. 1. Ordinance 93-12 / 7-15-93. Amended by Ordinance
93-12/7-15-93.
SECTION
20.1 - EXHAUSTION OF ADMINISTRATIVE REMEDIES.
(a) Effect
of Exhaustion of Remedies. The Oglala Sioux Tribal Court shall entertain
no action or suit against the Oglala Sioux Tribe, a Tribal government
agency, or any Tribal official, or employee complaining of official
conduct thereof, unless the plaintiff in such action has first exhausted
Tribal administrative remedies to correct the conduct complained of
by complying with the procedure set out in subsection (b) or (c) below
as appropriate. Any complaint in the Tribal Court against the Oglala
Sioux Tribe, a Tribal government agency, or any Tribal official, or
employee complaining of the official conduct thereof which fails to
demonstrate on its face that the plaintiff has complied with the requirements
of this Section shall be dismissed by the Court without prejudice
to the plaintiff's right to file the suit again when and if those
requirements have been complied with.
(b) General
Exhaustion Requirement. Except as provided in subsection (c) below
for certain police complaints, a complaining party may exhaust Tribal
administrative remedies under this ordinance by filing a written complaint
with the Tribal Executive Committee, provided that if the Executive
Committee has acted adversely on such complaint or has failed to act
on it within thirty (30) days after it was filed, the Oglala Sioux
Tribal Court may entertain an action seeking judicial remedy for the
conduct complained of.
(c) Special
Exhaustion Requirement for Certain Police Complaints. Any party having
a complaint against the Oglala Sioux Public Safety Commission or any
Reservation District Police Commission, or member, official, or employee
of said entities, arising from the official conduct thereof may exhaust
Tribal administrative remedies under this ordinance by filing a written
complaint in accordance with such written complaint procedures as
may from time to time be established by the Oglala Sioux Public Safety
Commission, provided that if the entities designated for reviewing
said complaint in such procedures, have acted adversely on such complaint,
or have failed to act or complete action on it within thirty (30)
days after it was filed, the Oglala Sioux Tribal Court may entertain
an action seeking a judicial remedy for the conduct complained of.
Until such
time as the Oglala Sioux Public Safety Commission adopts written complaint
procedures, written complaints under this subsection may be filed directly
with said Commission, subject to the same thirty (30) day action rules
as set out in preceding paragraph.
Hist: Ord.
#76-03, Amended by Ord. #77-11.
CIVIL
PROCEDURES
SECTION
20.2 - COMPLAINT
A complaint
is a concise written statement of the essential facts constituting the
claim. All civil proceedings shall be commenced by filing a complaint
with the clerk, accompanied by appropriate filing fee. The complaint
shall be verified before a judge, clerk or assistant clerk, or a notary
public.
SECTION
20.3 - SERVICE OF PROCESS
(a) Each
defendant shall be served with a copy of the complaint and a summon.
(b) Service
shall be made in one of the following ways:
1.
to the defendant personally;
2. to a person of not under the age of 15 and discretion at the
defendant's residence or usual place of business who also resides
or works there;
3. to an agent authorized by appointment or by law to receive service
of process;
4.
if personal service is impractical, then by registered or certified
mail, return receipt requested to the defendant's usual residence
or principal place of business. If the court orders, service may
be made by publication of the required papers in the Lakota Times
or any other local newspaper of general circulation on the Reservation
designated by the court at least once per week for four weeks.
(c) Service
of process upon the Tribe or an Officer of the Tribe shall be made
by delivering a copy of the complaint to the Tribal Secretary, the
Tribal attorney and the officer named in the manner prescribed in
subsection (b) above, except that service by publication is not permitted.
(d) Service
in person shall be made by any law enforcement officer or by any tribal
member over the age of 18 years who is not a party to the case.
(e) Where
the court has jurisdiction of the cause of action, service may be
made anywhere with the United States pursuant to the law of that jurisdiction.
(f) The
return postal receipt and affidavit of publication shall institute
proof of service by mail or publication. The affidavit of service
by the person making service, filed in the case record, shall constitute
proof of service.
SECTION
20.4 - PLEADINGS AND TIME LIMITATIONS
Unless
otherwise provided, a defendant shall file his Answer within 30 days
after service of process. The clerk shall schedule a hearing on the
claim as soon as possible after the Answer is filed. The clerk shall
furnish the parties with a copy of the notice showing the time and place
of the hearing and shall affix such notice to the copy of the Answer
to be served on the Plaintiff. If the case is ready for trial, the Judge
may try it immediately or set a subsequent date for trial. If the case
is not ready for trial, the Judge shall set a subsequent date for trial
and order such preparation by the parties as he deems necessary. Motions
in any pending case may be heard separately or may be consolidated at
the discretion of the Court.
SECTION
20.5 - ISSUANCE OF SUBPOENAS
(a) Upon
request of any party or upon the court's own initiative, the Court
shall issue subpoenas to compel the testimony of witnesses, or the
production of books, records, documents or any other physical evidence
relevant to the determination of the case and not an undue burden
on the person possessing the evidence.
(b) A
subpoena, shall bear the signature of the Chief Judge or an Associate
Judge of the court and it shall state the name of the Court, the name
of the person or description of the physical evidence to be subpoenaed,
the title of the proceeding, and the time and place where the witness
is to appear or the evidence is to be produced.
SECTION
20.6 - SERVICE OF SUBPOENAS
A subpoena
may be served in the manner prescribed in Section 20.3 except that service
by publication is not permitted.
SECTION
20.7 - FAILURE TO OBEY SUBPOENA
In the
absence of a justification satisfactory to the Court, a person who fans
to obey a subpoena issued and served in accordance with the provisions
of this Code may be cited and held in contempt of court.
SECTION
20.8 - WITNESS FEE AND EXPENSES
Each witness
answering a subpoena shall be entitled to reimbursement of his expenses
by the party who requests his presence to reasonable witness fees except
that the custodian of public books, records, documents or other physical
evidence subpoenaed shall not be entitled to witness fees.
SECTION
20.9 - TRIAL PROCEDURE
(a) The
time and place of court sessions, the rules of evidence to be followed
by the Court and all other details of judicial procedure may be set
out in Rules of Court or Federal Rules of Civil Procedures in the
absence of Tribal rules.
(b) All
testimony of witnesses shall be given orally under oath in open court
and subject to the right of cross examination. Documentary and tangible
evidence shall also be received in open court.
(c) Civil
cases shall be tried before a Judge and not a jury. A jury trial may
be granted at the discretion of the judge.
(d) The
case of the Plaintiff shall be presented first, followed by the case
of the Defendant. If rebuttal is required, the Plaintiff shall proceed
first, followed by the defendant.
(e) At
the conclusion of the evidence, the plaintiff and the defendant each
in turn may summarize the proof and make final argument.
20.10 -
CONSOLIDATED AND SEPARATE TRIALS.
(a) Consolidation.
The Court may, upon motion of any party or on its own motion, order
some or all of the issues of separate actions tried together when
there is a common issue or fact or law relating to the actions or
if such will tend to avoid unnecessary cost or delay.
SECTION
20.11 - INTERVENTION
A person
may be permitted in the discretion of the Court to intervene as a party
to an action in cases where property in which he claims as interest
may be substantially affected by disposition of the action or where
the applicant for intervention asserts a claim or defense which presents
a question of law or fact common to the main action.
SECTION
20.12 - SUBSTITUTION OF PARTIES
If a party
dies, becomes incompetent or transfers his interest, a substitute or
successor party may be joined or substituted as justice requires.
SECTION
20.13 - JUDGMENTS
A judgment
shall be entered in each civil case. The judgment shall be for money
or other relief or for dismissal. A judgment is complete and shall be
deemed entered when it is signed by the Judge and filed with the clerk.
SECTION
20.14 - JUDGMENT OF DEFAULT
Where any
party, after being served with a copy of the complaint as provided in
Section 20.3 in the case of a defendant fails to appear at the hearing,
at trial, or otherwise to prosecute or defend a case, the court may
enter a default judgment granting the relief sought in the complaint,
upon such showing of proof by the plaintiff as the Court deems appropriate,
or may dismiss the case for failure to prosecute. The court may, for
good cause shown, set aside entry of a default judgment or dismissal
for failure to prosecute.
SECTION
20.15 - PROOF OF SATISFACTION
A judgment
may be satisfied in whole or in part as to any or all of the judgment
debtors by the owner thereof of his attorney of record executing under
oath and filing an acknowledgement of satisfaction specifying the amount
paid and whether it is full or partial satisfaction. The clerk shall
file all satisfactions of judgment and note the amount thereof in the
judgment docket.
SECTION
20.16 - EXECUTION
(a) In
any final judgment for money rendered by the Court is not satisfied
within sixty (60) days of entry, or such other time fixed by the Court,
the judgment creditor may apply to the court for an order directing
the judgment debtor to appear before the court for the purpose of
itemizing his property.
(b) After
giving the judgment debtor an opportunity for hearing, the Court shall
determine what property is available for execution, and shall order
tribal law enforcement officers to seize such property as may be necessary
to satisfy the judgment. In addition, the judgment may be paid out
of any funds on deposit to the credit of the judgment debtor at The
Agency not exempt under Section 20.22 when such payment is authorized
by the Secretary of Interior of his authorized representative, on
such terms and conditions as the Secretary may prescribe.
SECTION
20.17 - JUDGMENT CONSTITUTES A LIEN
A judgment
shall constitute a lien on any nonexempt property of the judgment debtor.
Notice of this lien may be placed by the judgment creditor in the public
records of any country or state where such property is located.
SECTION
20.18 - LIFE OF JUDGMENT
No judgment
of the court for money shall be enforceable after five years from the
date of entry, unless application to renew the judgment shall have been
filed before the date of expiration pursuant to Section 20.19.
SECTION
20.19 - RENEWAL OF JUDGMENT
Upon application
of the judgment creditor prior to the expiration of five years after
the date of the entry of the judgment for money, the court shall order
the judgment renewed and extended for an additional five years.
SECTION
20.20 - STAY OF EXECUTION
Except
as provided herein, no execution or enforcement shall issue in any judgment
in a civil case until the expiration of ten days after its entry. When
a notice of appeal has been filed with the Supreme Court following the
judgment the Supreme Court may stay the judgment, or may stay or grant
an injunction during the pendency of the appeal on such terms as to
bond or otherwise as it considers for the security of the rights of
the adverse party, as more particularly provided in Section 6.0.
SECTION
20.21 - COSTS AND ATTORNEY FEES
In civil
actions, costs shall be awarded the prevailing party as part of the
final judgment unless the Court otherwise orders. No costs shall be
awarded against the Tribe, or against any officer of the tribe or member
of the tribal council sued in his official capacity. Costs shall include
filing fees, reasonable and necessary expenses of involuntary witnesses,
and such other proper and reasonable expenses, exclusive of attorneys'
fees to the prevailing party in a civil suit unless the Court determines
that the case has been prosecuted or defended solely for harassment
and without any reasonable expectation of success.
SECTION
20.22 - PROPERTY EXEMPT FROM JUDGMENTS FOR MONEY
There shall
be exempt from the satisfaction or payment of all judgments for money,
except judgments for the support of a spouse or children, the following
property of the judgment debtor or the debtor's spouse
(a) Provisions
and fuel necessary to supply the debtor and his immediate family for
one year, or their monetary equivalent (including funds in an IIM
account up to this amount).
(b) All
wearing apparel, clothing and personal effect.
(c) All
household furnishings.
(d) One
dwelling place whether it be house, cabin, trailer or other structure.
(e) Except
for a farmer or rancher, one horse, saddle and bridle, one wagon,
two cows and their calves, four hogs and fifty domestic fowls and
feed for such animals for three months.
(f) One
truck or other motor vehicle of reasonable value.
(g) To
a farmer or rancher -- livestock, farm equipment, machinery and seed,
grain or vegetables of reasonable value.
(h) To
a mechanic or artisan -- tools or implements necessary to carry on
his trade.
(i) All
moneys, benefits, privileges or immunities in any manner growing out
of any life insurance on the life of the debtor.
(j) All
retirement allowances, benefits and pensions.
(k) All
family pictures.
(l) Real
property in trust by the United States.
Provided,
however, that such exempt property may be subject to satisfaction and
payment of judgments where the judgment debtor has executed a valid
and lawful mortgage or security agreement with the judgment creditor,
specifically pledging such property as collateral.
SECTION
20.23 - TEMPORARY RESTRAINING ORDERS WITHOUT NOTICE
(a) No
restraining order or other injunction without notice shall be granted
where the Tribe is a defendant or a tribal official is a defendant
in his official capacity. Other wise, except as provided in subsection
(c), no temporary restraining order shall be granted without notice
to the adverse party unless it clearly appears from specific facts
shown by oral testimony, affidavit or by the verified complaint that
immediate and irreparable injury will result to the applicant before
notice can be served and a hearing had thereon.
(b) Except
as provided in subsection (c), in cases where a temporary restraining
order is granted without notice, the motion for a preliminary injunction
shall be set down for hearing at the earliest possible time and takes
precedence of all matter except older matters of the same character.
When the motion comes on for hearing, the party who obtained the temporary
restraining order shall proceed with the application for a preliminary
injunction and, if he does not do so, the court shall dissolve the
temporary restraining order. On three (3) days notice to the party
who obtained the temporary restraining order without notice or on
such shorter notice to that party as the Court may prescribe, the
adverse party may appear and move its dissolution or modification
and in that event the Court shall proceed to hear and determine such
motion as expeditiously as possible.
(c) A
temporary restraining order may be granted without prior notice to
any party where the Judge determines that a serious breach of the
peace will otherwise occur.
(d) Every
temporary restraining order granted without notice shall be enforced
with the date and hour of issuance and shall expire by its terms within
such time after entry, not to exceed ten (10) days, as provided in
that order.
SECTION
20.24 - PRELIMINARY INJUNCTIONS
A preliminary
injunction restrains activities of a defendant until the case can be
determined on the merits. No preliminary injunction shall be issued
without notice to the adverse party and an opportunity to be heard,
and no preliminary injunction shall be issued absent clear and convincing
proof by specific evidence that the applicant will suffer irreparable
harm during the pending the litigation unless a preliminary injunction
is issued, that the applicant has a high likelihood of success on the
merits, and that the balance of equities favors the applicant over the
party sought to be enjoined. The Court may dissolve or modify a preliminary
injunction at any time as the interest of justice require.
SECTION
20.25 - SECURITY
Except
as otherwise provided by law, no temporary restraining order or preliminary
injunction shall issue upon the giving of security by the applicant,
in such sum as the Court deems proper, for the payment of such costs
and damages as may be incurred or suffered by any party who is found
to have been wrongfully enjoined or restrained. No such security shall
be required of the United States, the Tribe, or an officer, or agency,
of either.
SECTION
20.26 - HABEAS CORPUS
Relief
by habeas corpus proceedings shall be granted whenever it appears to
the court that any person is unjustly imprisoned or otherwise unlawfully
deprived of his liberty. Upon the filing of the complaint the Court
shall issue a writ directed to the defendant commanding him to bring
the person alleged to be restrained before the Court at a time and place
therein specified, at which time the Court shall proceed to hear the
matter and render judgment accordingly.
SECTION
20.27 - APPLICABLE LAW
In determining
any case over which it has jurisdiction, the Oglala Sioux Tribal Court
shall give binding effect to:
(a) any
applicable constitutional provision, treaty, law, or any valid regulation
of the United States;
(b) any
applicable provision of the Tribal Constitution or any law of the
Tribe not in conflict with federal law;
(c) any
applicable custom or usage of the Oglala Sioux Tribe not in conflict
with any of the Tribe or United States. Where doubt arises as to such
customs and usages, the Court may request the testimony, as witnesses
of the Court, of personal familiar with such customs and usages;
(d) where
appropriate, the court may in its discretion be guided by the statutes,
common law or rules of decisions of the action took place;
(e) special
codes and enactments of the Oglala Sioux Tribe which provide alternative
remedies and procedures shall not be superseded or affected by this
chapter.
SECTION
20.28 - CIVIL CONTEMPT
A civil
contempt is prosecuted to preserve, protect, enforce or restore the
duly adjudicated rights of the party to a civil action against one under
legal obligation to do or refrain from doing something as a result of
a judicial decree or order. Relief in a civil contempt proceeding may
be coercive or compensatory in nature as to the complaining party and
may include a fine payable to the Court or the complaining party or
imprisonment of the party in contempt to secure compliance, or both.
SECTION
20.29 - LIMITATIONS OF ACTIONS
The Oglala
Sioux Tribe shall have no jurisdiction over any action brought more
than two years after the cause of action arose.
SECTION
21. LAW APPLICABLE TO CIVIL ACTIONS.
In all
civil cases the Oglala Sioux Tribal Court shall apply any laws of the
United States that may be applicable, any authorized regulations of
the Interior Department, and any ordinances of the Tribe, not prohibited
by Federal law.
Hist: 1937
Code, Ch. 2, Sec. 2.
SECTION
21.1 EVICTION LAW - FORCIBLE ENTRY AND DETAINER.
(1) Grounds
for Bringing an Action. An action of detainer or forcible entry and
detainer amounting to eviction and recovery of damages can be brought
when:
(a)
A tenant or lessee who himself or through a subtenant fails to pay
his rent for three (3) days from the date due, the expiration of
his lease period;
(b) A party by force, intimidation, or fraud entered, detained or
occupied the land of another;
(c) A party after entering peaceably upon land turned out the party
in possession using force, threats, or menacing conduct;
(d) A party has illegally held possession of land, whether acquired
peaceably or otherwise, using force, threats or menacing conduct;
(e) A party continues to occupy and possess land after its sale
(under mortgage, execution, order, or judicial process after the
expiration of the time fixed for redemption and after execution
and the delivery of a deed);
(f) A party continues to possess land after a judgment in partition
or after a sale under a Tribal Court Order or Decree;
(g)
A tenant or lessee wastes and damages leased land or fails to perform
any act which under the lease terminates that lease.
(2) Application
of Ordinance. For the purpose of this Section, land shall include
all real property including housing and business premises.
(a)
Notice to Quit. In all arising under subdivisions (a) (e) and (f)
, of Section 1, a formal written notice to quit shall be served
upon the lessee, subtenants or party in possession or posted on
the entrance of the premises at least three (3) days before commencing
an action in Court.
(b) Jurisdiction of Court. The Oglala Sioux Tribal Court shall have
jurisdiction of any such cases within the exterior boundaries of
the pine Ridge Indian Reservation.
(c) Joinder of Actions. An action brought under this Chapter cannot
be brought in connection with any other, except for rents, profits,
and damages, but separate plaintiff actions may be brought.
(d) Death of Plaintiff. The legal representative of a potential
plaintiff may bring an action under this Chapter after his death.
(e) Verified Complaint. The complaint must be in writing and verified
by the plaintiff, his agent, or his attorney and served with a summons
upon the defendant as in other actions in the Tribal Court. If after
making a diligent effort personal service cannot be had, service
can be made by posting a copy of the summons and the complaint in
some conspicuous place upon the premises.
(f) Time for Defendant's Response and Trial. The time allowed for
an answer to the complaint or other responsive pleading shall be
twenty-one (21) days from date of service on defendant or posting
and no adjournment or continuance shall be made for more than five
(5) days.
(g) Trial Notice. Trial for this matter shall be held with a five
(5) day notice.
(h) Judgment. When a judgment is rendered for the plaintiff it may
include delivery of the possession to the plaintiff, and for rents,
profits or damages where same was claimed in the complaint and summons,
and a hearing where all parties are notified and given an opportunity
to be heard.
(i) The Court shall tax court costs to the prevailing party.
(j) Execution. Execution for possession shall be served only from
8:00 a. m. to 8:00 p.m. on any day.
(k) Contempt of Court. The defendant's failure to comply with the
Court's order for eviction may subject him to be found in Contempt
of Court and imprisonment up to six (6) months and a maximum fine
of three hundred and sixty dollars ($360.00).
(3) Repeal.
All prior ordinances or resolution of parts thereof which are inconsistent
with this ordinance are hereby repealed.
Hist: Ord.
#79-01
SECTION
22. JUDGMENT IN CIVIL ACTIONS.
In all
civil cases, judgments may consist of an order of the Court awarding
money damages to be paid to the injured party, or directing the surrender
of certain property to the injured party, or the performance of some
other act for the benefit of the injured party.
Hist: 1937
Code, Ch . 2, Sec. 3 .
SECTION
22.1 DAMAGES.
Where the
injury inflicted was the result of carelessness of the defendant, the
judgment shall fairly compensate the injured party for the loss he has
suffered.
Hist: 1937
Code, Ch. 2, Sec. 3.
SECTION
22.2 PUNITIVE DAMAGES.
Where the
injury was deliberately inflicted, the judgment shall impose an additional
penalty upon the defendant, which additional penalty may run either
in favor of the injured party or in favor of the Tribe.
SECTION
22.3 MITIGATED DAMAGES.
Where the
injury was inflicted as the result of an accident, or where both the
complainant and the defendant were at fault, the judgment shall compensate
the injured party for a reasonable part of the loss he has suffered.
Hist: 1937
Code, Ch. 2, Sec. 3.
SECTION
22.4 VALIDITY OF COURT ORDERS AND JUDGMENTS.
No civil
order or judgment of the Oglala Sioux Tribal Court shall be valid and
effective or enforceable in any manner against any person unless the
order or judgment shall have been issued in a civil case arising out
of the institution of a civil suit in accordance with this Code and
the Rules of Court and unless the defendant has been given an opportunity
to appear at a hearing. In special emergencies, a temporary restraining
order may be issued for a period not exceeding seventy-two (72) hours
without a hearing having been held, provided, that such order contains
the following certification by the Judge:
"After
an examination of the facts alleged by the plaintiff, the Court has
concluded that unless restrained by this Court, defendant will, within
the next seventy-two (72) hours perform the acts referred to in the
complaint, that such action by defendant will result in irreparable
injury, loss, and damage to the plaintiff, and that the issuance of
a temporary restraining order herein will not cause undue inconvenience
or loss to plaintiff but will prevent irreparable injury to the defendant.
"
Any order
issued, except as provided herein, shall not be deemed a lawful order
under Sec. 72 of this Code or for any other purpose. The Oglala Sioux
Tribal Court of Appeals, shall upon written application by any person
aggrieved by any such order or judgment, after a hearing upon notice
to the Judge who issued the order, and after making a finding that the
order was not issued in a civil case arising out of the institution
of a civil suit in accordance with the Code and the Rules of Court or
that the defendant was not given an opportunity to appear at a hearing,
issue an order setting aside the aforesaid order or judgment and restraining
the Oglala Sioux Tribal Court, or any Judge or other officer thereof,
from enforcing the aforesaid order of judgment in any manner. The Court
of Appeals shall limit the hearing hereunder and its consideration of
the matter to the sole question of whether the order is valid under
the provisions of this Section 22.4.
Hist: Res.
#71-02.
SECTION
23. COSTS IN CIVIL ACTIONS.
The Court
may assess the accruing costs of the case against the party or parties
against whom judgment is given.
Hist: 1937
Code, Ch. 2, Sec. 4.
SECTION
24. PAYMENT OF JUDGMENTS FROM INDIVIDUAL INDIAN MONIES.
Whenever
the Oglala Sioux Tribal Court shall have ordered payment of money damages
to an injured party and the losing party refuses to make such payment
within the time set for payment by the Court, and when the losing party
has sufficient funds to his credit at the Agency Office to pay all or
part of such judgment, the Superintendent may certify to the Commissioner
of Indian Affairs the record of the case and the amount of the available
funds. If the Commissioner of Indian Affairs may so direct, the disbursing
agent shall pay over to the injured party the amount of the judgment,
or such lesser amount as may be specified by the Commissioner of Indian
Affairs from the account of the delinquent party.
A judgment
shall be considered a lawful debt in all proceedings to distribute decedents
estate.
Hist: 1937
Code, Ch. 2, Sec. 5.
SECTION
24.1 FORECLOSURE BY TRIBAL CREDIT PROGRAM ON MORTGAGED LAND
(a) Property
Subject to Foreclosure -- Jurisdiction and Venue.
An action
to foreclose on any land either trust or deeded which has been mortgaged
to the Oglala Sioux Tribal Revolving Credit Program may be maintained
by the Oglala Sioux Tribal Revolving Credit Program. The action may
be maintained in the Oglala Sioux Tribal Court.
(b) Accrual
of cause of action for mortgage foreclosure.
A cause
of action for the foreclosure of a mortgage shall be deemed to have
occurred at the last date of the maturity of the debt or other obligation
secured thereby, as stated in, or as ascertainable from the record
of such mortgage, and if no date for any maturity be stated therein
or be ascertainable therefrom then after fifteen years from the date
of said mortgage.
(c) Service
by publication on nonresident, absent or unknown defendants.
If the
defendant be a nonresident of the Pine Ridge Reservation or the State
of South Dakota, or absent or concealed or if he be a resident of
either and after due diligence cannot be found, service may be made
by publication. If the mortgagor or any other proper party defendant
is deceased, service upon unknown heirs, devisees, legatees, administrators,
executors, creditors, and other unknown persons, may be made by publication.
(d) Previous
actions for collection of debt to be disclosed by complaint.
In an
action for the foreclosure or satisfaction of a mortgage, the complaint
shall state whether any proceedings have been had at law or otherwise
for the recovery of the debt secured by such mortgaged property or
any part thereof; and if there has, whether any and what part thereof
has been collected.
(e) Injunction
to restrain injury to property during foreclosure.
The Oglala
Sioux Tribal Court may by injunction, on good cause shown, restrain
the party in possession from doing any act to the injury of real property
during foreclosure on a mortgage.
(f) Dismissal
of complaint on payment into court of installments then due.
Whenever
an action shall be commenced for the foreclosure of a mortgage upon
which there shall be due any interest or any portion or installment
of the principal, and there shall be other portions or installments
to become due subsequently, the complaint shall be dismissed upon
the defendant bringing into court at any time before entry of judgment
the principal and interest due, with costs and disbursements.
(g) Stay
of further proceedings on payment of installments then due -enforcement
of judgment on subsequent default.
If at
any time before entry of judgment, the defendant shall bring into
court the principal and interest due, with costs, the proceedings
in the foreclosure action shall be stayed until a further default,
and in case of a subsequent default in the judgment of any of the
installments, or any part thereof, of such mortgage, the Oglala Sioux
Tribal Court may enforce by order or other process the collection
of such subsequent installment.
(h) Foreclosure
as complete satisfaction of debt.
The foreclosure
by action of mortgage upon real property shall operate as a complete
extinguishment, satisfaction and payment of the debt secured by such
mortgage.
Hist: Ordinance
84-12.
PROCEDURES
FOR SELF-HELP REMEDIES ON FORECLOSURES OF SECURED OBLIGATIONS.
SECTION
1. Self-Help Remedies.
All self-help
remedies for the recovery of real or personal property secured to
insure payment of obligations are hereby declared unavailable. This
section, however, shall not be construed to prevent the voluntary
surrender of secured personal property to a creditor by a debtor pursuant
to an agreement executed by the parties allowing for the surrender
of such property, provided however, that:
(a)
at least five (5) days notice must be given by the creditor to the
debtor before the property is physically taken; and
(b)
a copy of the notice (with agreement attached) is filed with the
Clerk of the Oglala Sioux Tribal Court.
HISTORY:
Ordinance 86-10.
SECTION
24 . 2 APPEALS.
Appeals
from judgments in civil actions may be taken as provided in Section
6 to 6. 3, inclusive, of the Code.
SECTION
24.3 COLLECTION CODE
SECTION
1. Definitions as used in this Ordinance, unless the context clearly
indicates otherwise:
(1)
Affidavit - means a written statement of facts sworn to by the person
signing it ( the "affiant" ) and verified by a notary public.
(2)
Answer - means a written document that a debtor may file in the
tribal court when a creditor has filed a petition against the debtor;
the answer contains the debtor's version of the dispute. This may
also be referred to as a response.
(3)
Attachment - provides a legal procedure before the tribal court
whereby the tribal police are authorized and required to seize certain
personal property belonging to a debtor in order to ensure that
a creditor will be able to collect on a judgment when it is finally
entered by the tribal court.
(4)
Civil Action - pertains to a lawsuit filed in tribal court whereby
one person seeks to resolve a non-criminal dispute against another
by obtaining a judgment from the tribal court; for example, a lawsuit
to recover on a debt that is due.
(5)
Complaint - refers to the first written document that starts the
lawsuit and contains the complaining party's version of the facts
of the cavil dispute; the complaint usually lists what amount of
money or thing of values the complaining party wants from the other
party. The term COMPLAINT shall also refer to the document used
by the creditor to pursue collection remedies.
(6)
Consumer - refers to the borrower, the buyer or purchaser of goods
or other items involved in connection with a consumer transaction.
(7)
Consumer goods - refers to those items bought, borrowed, or purchased
by a consumer in connection with a consumer transaction.
(8)
Consumer Transaction - refers to a sale, loan, lease, assignment
or other disposition of an item of goods, a service or anything
of value to a person for purposes that are primarily personal, family
or household.
(9)
Creditor - refers to a person who is owed a debt, money or anything
of value by another person called the "debtor".
(10)
Cross Complaint - refers to a counterclaim whereby the defending
party who has been sued, brings a legal claim against the other
to :recover money or things of value.
(11)
Debtor - means a person who owes the debt, money or anything of
value to another person called the "creditor".
(12)
Disposable Earnings - means that portion of a debtor's earnings
remaining after the deduction of all amounts required by law to
be withheld.
(13)
Execution - refers to a legal procedure that takes place after the
tribal court has entered a judgment, whereby the tribal police are
authorized and required to enforce the court's judgment by seizing
certain personal property of the judgment debtor, such as personal
furniture, automobile, etc.
(14)
Final Judgment - refers to a tribal court judgment, including any
supporting opinion of the court, that determines the rights of the
parties involved in a civil dispute.
(15)
Comity - refers to acceptance and recognition by the Oglala Sioux
Tribal Court of final judgments entered by the courts of the other
fifty states, the federal courts and of other federally recognized
Indian tribes.
(16)
Garnishment - refers to a legal process through which the earnings
or other personal property of a debtor are required to be withheld
by a third party for payment of a debt which has been reduced to
tribal court judgment.
(17)
Hearing - an opportunity for the parties in dispute to present all
relevant oral testimony and documentary evidence in their favor
in order to allow the tribal judge to evaluate the merits of the
dispute and render a decision. All hearings require that the party
being personally served be given five days notice before the hearing.
In the event personal service is obtained by posting and mailing
the notice, five days will start running the date the notice was
posted.
(18)
Homestead - refers to property utilized as a home for an individual
and/or his or her spouse and dependents.
(19)
Household Goods - refers to clothing, furniture, appliances, linens,
kitchenware, and personal effects of any consumer and his or her
dependents.
(20)
Indian refer to:
a.
any enrolled member of the Oglala Sioux Tribe;
b. any person who is an enrolled member of any other federally
recognized Indian tribe; or
c. any person who possesses Indian blood and who is recognized
as an Indian by the community where such person resides; or
d. any individual who is eligible for enrollment in the Oglala
Sioux Tribe.
(21)
Judgment Creditor - refers to a creditor who has obtained a court
judgment against a debtor.
(22)
Judgment Debtor - refers to a debtor against whom a court judgment
has been obtained by a creditor.
(23)
Jurisdiction means:
a.
the power of a tribal court, such as the Oglala Sioux Tribal Court,
to hear and decide a legal dispute;
b.
the power of a governing body, such as the Oglala Sioux Tribal
Council, to enact laws, ordinances and resolutions.
(24)
Motor Vehicle - any vehicle with two or more wheels that operates
with a combustible engine.
(25)
Personal Property - refers to any property or anything of value
other than:
a.
land;
b. any interest in land; or
c. any dwelling, structures, equipment, or other fixtures which
may be affixed to the land.
Personal
property includes, but is not limited to, a motor vehicle, furniture,
appliances like washer and dryer, TV, stereo, radio, etc.
(26)
Personal Service - refers to the delivery of legal papers which
may be served in either of the two following ways:
1.
personal service on the named party; or
2.
posting civil process in a conspicuous place on the door of the
named party's last known address.
All
personal service must be documented and a copy delivered to the
Tribal Court clerk promptly.
(27)
Repossession - refers to the physical recovery by a creditor of
personal property that has been sold to a debtor or purchaser on
an installment credit basis.
(28)
Security - refers to:
a.
any personal property that a debtor has some legal interest in
which the debtor pledges as collateral to a creditor to secure
the payment of a debt; or
b. any personal property sold on an installment credit basis if
the seller or creditor has expressly retained a secured interest
in the property sold.
(29)
Secured Contract - refers to any contract or agreement in which
security has been pledged by the debtor or by which a secured interest
is retained by the creditor to assure performance of the contract
or agreement.
(30)
Secured Debt - refers to any debt in which the debtor has pledged
security as collateral to the creditor to ensure payment of the
debt.
(31)
Security Interest - refers to the legal interest and any security
which has been pledged by the debtor or retained by the creditor
or seller to assure the performance of a contract or the payment
of a debt.
(32)
Summons - refers to written documents which specifically notifies
a debtor that he or she must appear in tribal court to respond to
a petition filed by a creditor.
(33)
Temporary Restraining Order - refers to an order of the tribal court
directing a person, or agency or other entity to take or refrain
from taking certain actions during a specified and limited period
of time.
(34)
Trust Property - refers to any real personal property which is:
a.
held by the United States in trust for the benefit of any Indian
which is subject to restrictions of alienation or encumbrance
without the consent of the United;
b. acquired by an Indian through a loan from the Oglala Sioux
Tribe, when the funds for such loan are provided by the United
States; or
c. acquired with the use of property described in subparagraph
(a) and (b) or with the proceeds from the sale or lease from such
property.
All
property that does not qualify as trust property under subparagraphs
a, b, or c is described in this code as NON-TRUST PROPERTY.
(35)
Writ - refers to an order of the tribal court directing the seizure
and/or impoundment of certain personal property pursuant to attachment,
execution, or garnishment proceedings.
SECTION
II. PURPOSE.
The purpose
of this collection code is to provide sufficient legal recourse to
enforce and recover on judgments obtained through the tribal court
system and to provide a standardized series of procedures that must
be adhered to by all judges of the tribal court to ensure consistent
and uniform due process.
A.
Procedure.
At
any time within three years of the date a judgment has been entered,
the judgment creditor may file a complaint with the tribal court
requesting the personal appearance of the judgment debtor to appear
at a set date, time and place in the tribal court to answer specific
questions regarding the judgment debtor's personal assets. At the
beginning of the hearing, the tribal judge shall swear the judgment
debtor under oath and the tribal judge and judgment creditor may
ask questions directly related to the judgment debtor's personal
assets and finances. The questions and answers may be transcribed
by a court reporter or recorded by tape recording. At the time the
judgment creditor files the complaint for Examination of Judgment
Debtor, the judgment creditor may subpoena certain documentation
to be provided at the time of the hearing. Said documentation may
include, but not be limited to, the following:
1.
bank records and bank accounts;
2. payroll stubs;
3. information regarding IIM account;
4. tax returns;
5. securities investments; or
6. motor vehicle registration and car plate information.
B.
Notice Requirements.
A complaint
for examination of judgment debtor must be personally served on
the debtor at least five (5) days before the hearing.
C.
Contempt Proceedings.
A court
may issue an order of contempt against the judgment debtor in the
following instances:
1.
in the event the judgment debtor fails to personally appear in
court after being personally served with proof of service on record;
2.
when the debtor fails to disclose certain assets when questioned
by the tribal judge or judgment creditor.
SECTION
III. Garnishment Remedies .
A.
Procedure:
Up
to three years after an Oglala Sioux Tribal Court judgment has been
entered against a judgment debtor, a judgment creditor may proceed
to enforce his judgment by garnishment in Oglala Sioux Tribal Court.
A writ of garnishment may extend to a judgment debtor's payroll
wages as well as a bank account or IIM account. Garnishment of IIM
accounts is subject to the B A rules and regulations that have been
promulgated under 25 CFR 115.10 as they may from time to time be
amended. Application of an Order of Garnishment must be made through
the Oglala Sioux Tribal Court. A judgment creditor must first file
with the Oglala Sioux Tribal Court a complaint for Writ of Garnishment,
which requests the Oglala Sioux Tribal Court to issue an Order of
Garnishment pursuant to a judgment previously obtained. The Order
of Garnishment may allow for an additional fee for attorney's fees.
B.
Notice.
The
complaint for Writ of Garnishment must be personally served upon
the judgment debtor five days before the date set to hear the complaint
for Writ of Garnishment.
C.
Earnings Subject To Garnishment.
The
maximum portion of earnings of a judgment debtor that are subject
to garnishment include the lesser of:
a.
twenty percent (20%) of his disposable earnings (that portion
of the debtor's earnings remaining after the deduction of all
amounts required by law to be withheld) for that pay period, or
b. the amount by which his disposable earnings for that pay period
exceed thirty (30) times the federal minimum hourly wage.
Notwithstanding
the foregoing, the judgment debtor may defeat a garnishment by establishing
by a preponderance of the evidence at a contested hearing that garnishment
of any wages will impose a substantial hardship that will affect
the health and welfare of the judgment debtor and his family or
his dependents. If a. garnishment is defeated by a judgment debtor,
then the financial status of the judgment debtor will be reviewed
every thirty (30) days on request of the judgment creditor, to determine
whether judgment debtor is able to pay the garnishment amount sought.
D.
Hearings.
1.
The hearing on the complaint for Writ of Garnishment must be transcribed
by the court or a recording of the hearing must be recorded by
audio or visual means. If judgment debtor has received the five
day notice of the hearing and fails to appear either in person
or through counsel, the judgment debtor will be deemed to have
waived his right to a hearing and a default order can be issued.
At the hearing the judgment debtor may put on evidence through
testimony and other documentation that a substantial hardship
will be imposed on the judgment debtor and his dependents if any
of his wages should be garnished. The judgment debtor may also
put on evidence that a lesser amount than set forth under Section
II. Garnishment Remedies, subsection C . Earnings Subject to Garnishment
should be garnished. At the conclusion of the hearing the tribal
court shall have the discretion to determine whether or not a
substantial hardship has been demonstrated by the debtor or whether
a smaller portion of the debtor's wages should be subject to garnishment.
2.
The judgment debtor may also establish by a preponderance of the
evidence that the garnishment was wrongful either by showing there
was no personal service or no valid, judgment in effect or that
the judgment debtor has already satisfied the debt for which garnishment
was issued or for any other legal reason. If the judgment debtor
establishes that this was a wrongful garnishment, the judgment
creditor shall be fined $500.00, and all attorney's fees and court
costs incurred by the judgment debtor shall be ordered to be paid
by the judgment creditor.
E.
Dismissal By Employer.
No
employer shall discharge an employee for the reason that a judgment
creditor obtained a garnishment order against the employee. If an
employer does discharge an employee, the employee may commence a
civil action within ninety (90) days of the dismissal date to recover
lost wages and to request reinstatement to the job fired from.
SECTION
IV. Attachment Remedy.
A.
Procedure.
At
the time of the issuance of a summons and complaint in a civil action,
or at any time prior to final judgment, a creditor may file with
the clerk of the tribal court a request for a pre-judgment Order
of Attachment. All requests for pre-judgment:
Order
of Attachment shall be accompanied by an affidavit of the creditor
which shall contain the following facts:
1.
that a debt is owed to the creditor by a debtor and the nature
'and specific amount of the debt; and
2.
that the personal property being attached, which must be specifically
identified as non-trust personal property belonging to the debtor;
and
3.
that the creditor has reasonable cause to believe that the specific
personal property sought to be attached may be lost, damaged,
vandalized or removed off the reservation prior to payment of
a final judgment and such loss, damage, vandalism or removal of
the property would jeopardize the ability of the creditor to collect
on the judgment that may later be obtained.
If
the tribal judge is satisfied after reviewing the complaint and
affidavit, the judge may issue an Order of Attachment of the designated
personal property. The tribal police shall be given the Order of
Attachment and the police shall seize any property identified by
the order. Said property shall be kept in storage under the control
of the tribal police or, in the event that a motor vehicle is seized,
that vehicle shall be located in the parking lot of the tribal police.
Said personal property shall be held by the police pending any further
order of the tribal court. If a judgment creditor prevails on his
complaint against the judgment debtor, the judgment creditor must
follow Section V - Execution in regards to sale of seized property.
B.
Bond.
An
Order of Attachment shall not be issued until the creditor has filed
with the clerk a surety bond or cash bond in the sum of at least
five hundred dollars ($500.00). Said bond shall be necessary in
the event that the order of attachment was wrongfully issued and
the debtor was damaged, or in the event the debtor prevails when
final judgment is rendered.
C.
Service of Attachment Order.
The
debtor shall be served with the Order of Attachment at the time
the tribal police seize the personal property of the debtor. If
the debtor is not available or present at the time the personal
property is seized, said Order of Attachment shall be posted in
a conspicuous place on the door of the debtor's house or mobile
home, and a copy mailed to his last known address. The service shall
be documented for court records.
D.
Wrongful Attachment.
At
any time following the issuance of an Order of Attachment, the debtor
shall be entitled to challenge the validity of the issuance of that
writ. The debtor may contest the Writ of Attachment by filing a
Response to Writ of Attachment. At the time that the Response is
filed with the clerk of the tribal court, the court shall note a
hearing and notice of said hearing shall be served on the creditor
at least five days before that hearing. At the hearing the debtor
must establish by a preponderance of the evidence that, (1) the
specific personal property sought to be attached would not be likely
to be lost, damaged, vandalized or removed off the reservation prior
to final judgment and that said loss, damage, vandalism or removal
of property would not result in hindering the ability of the creditor
to collect on a judgment if one should subsequently be obtained;
or (2) that no debt is owed to the creditor; or (3) that the property
sought to be attached is exempt under Section VII or is trust property.
If the court determines that the pre-judgment writ of attachment
was wrongfully issued, the court may impose a fine up to $500.00
and order payment of the other party's attorney fees and costs.
Section
V. Execution Remedy.
A.
Procedure.
1.
Any judgment creditor who obtains an judgment may pursue a Writ
of Execution in the Oglala Sioux Tribal Court within three (3)
years of the entry of the Oglala Sioux Tribal Court judgment.
A judgment creditor shall file a written complaint with the clerk
of courts containing a concise statement of facts regarding the
judgment obtained and the judgment creditor's interest in seizing
and executing upon any non-exempt non-trust personal property
to satisfy the judgment. The complaint shall be personally served
on the judgment debtor. The tribal judge shall be personally served
on the judgment debtor. The tribal judge shall hear the complaint
for Writ of Execution after the clerk of courts notifies the creditor
and debtor of the date, time and place of the hearing. If the
tribal judge is satisfied that the judgment creditor remains unsatisfied,
and that there exists non-exempt nontrust personal property of
the judgment debtor, the tribal judge shall issue an Order for
Execution. Said Order shall specify the specific non-trust non-exempt
personal property that may be seized by the tribal police. Said
property that is seized by the tribal police shall be held in
storage or in the case of a motor vehicle in the parking lot under
the control and authority of the tribal police and shall not be
removed pending further order of the tribal court. Any property
so seized shall be itemized in a receipt by the tribal police
and a copy of said receipt delivered to the tribal clerk of courts.
2.
Upon the receipt of said personal property seized pursuant to
an Order of Execution, the clerk of the tribal court shall require
that the personal property seized be appraised by three designated
persons who reside within the Pine Ridge Indian Reservation and
who have no interest in the seized property nor have any relationship
to the parties involved. Appraisers must be selected within thirty
(30) days of the date the clerk receives the property. One appraiser
shall be selected by the judgment creditor, one appraiser shall
be selected by the judgment debtor, and one appraiser shall be
selected by the clerk. All three appraisers are required to provide
an impartial appraisal in writing as to the value of each item.
The three appraisals shall be added together, divided by three
and the average shall be the appraisal value used. If, however,
only one appraiser was selected, and agreed upon by creditor,
debtor and clerk then his appraisal shall be the appraisal value.
3.
Within thirty (30) days after the appraisal of the property, the
clerk of the court shall post in three public places on the reservation
a Notice of Sale containing a full description of the property
to be sold together with the appraised market value of each item.
Additionally, the clerk shall publish said notices in a local
newspaper for three weeks prior to the sale.
4.
The clerk shall personally, or through an agent, sell the property
publicly to the highest bidder for cash but not for less then
the appraised value. Out of the proceeds, the clerk shall be authorized
to pay to the tribal court and police all expenses incurred in
the appraisal, sale, storage, and unpaid court costs still owing
by either party. The balance of the proceeds up to the full amount
of the judgment shall be paid by the clerk to the judgment creditor.
Any excess proceeds remaining shall then be paid to the judgment
debtor. If the clerk is unable to sell the property for its appraised
value, the clerk may hold the property for fourteen (14 ) additional
days after the scheduled sale, during which time the clerk may
sell the itemized property to the first person offering the appraised
value in cash. After that fourteen day period has passed, then
upon request of the creditor and payment of all costs, said personal
property may be delivered to the creditor and it shall be credited
against the amount owing on the judgment. If the appraised value
is greater then the judgment amount, the creditor must first pay
the excess value to the clerk. If the property remains unsold
and unclaimed by the creditor, the clerk shall declare the property
back to the debtor by written notice. If said property is not
assumed by the debtor within 30 days, the property may be deemed
abandoned and either destroyed by the clerk or later sold at less
than appraised value after notice to creditor and debtor and all
proceeds retained by the Oglala Sioux Tribe and deposited in the
General Fund.
SECTION
VI. Repossession Remedy.
A.
Procedure:
A creditor
shall repossess personal property when the debtor is in default
on the outstanding balance due on an installment contract only by
initiating legal proceedings through the tribal court which lead
to a court order authorizing repossession. The creditor must file
a complaint for repossession and in said complaint, the creditor
should contain a concise statement of the creditor's claim against
the debtor. The debtor may file an Answer to the creditor's complaint
at any time prior to the hearing. At the hearing both creditor and
debtor may present documentary evidence and witnesses to support
their positions in the debt dispute. At the hearing, if the judge
determines that repossession is in fact justified, the tribal judge
shall issue an order authorizing the creditor to repossess the personal
property involved. Any such order shall direct that a creditor may
repossess the property only when accompanied by a tribal police
officer.
B.
Sanctions.
If
a creditor fails to abide strictly by these rules for repossession
and any other resolutions or ordinances of the Oglala Sioux Tribe
and seeks to seize the personal property of a debtor without a written
Order of Repossession and without the consent of the creditor may
be subject to one or more of the following sanctions:
1.
his business license or permit to transact business on the reservation
shall be suspended for a period of thirty (30) days; or
2.
a fine shall be imposed in the amount of $300.00; or
3.
the personal property unlawfully seized, if still located on the
reservation, shall be returned to the debtor pending a hearing
on repossession; or
4.
if applicable, the Remedies set forth in Article 9 of the Oglala
Lakota Code specifically 9-507.
SECTION
VII. Homestead and Certain Personal Property Exemptions.
A.
Homestead.
The
homestead of every family including a mobile home, designated as
the place of residence by that family is entitled to a full and
absolute exemption from all collection process as set forth herein.
However, the mobile home is subject to legal process of repossession,
if the debtor defaults on payments to the creditor dealer or his
assignee who sold the mobile home. The homestead is automatic and
no filing of any documents shall be necessary to preserve it. All
other real property that the debtor owns a possessory interest in
is also entitled to a full exemption from any collection process.
B.
Personal Property Exemption.
The
following personal property is absolutely exempt from all collection
process:
1.
all wearing apparel and clothing of the debtor and his family
and/ or dependents residing under his household;
2.
the provisions for the debtor and his family and/or dependents
necessary for one year supply and fuel necessary for one yea;
3.
all items pertaining to religious and cultural significance to
the debtor; and
4.
all family pictures.
The
following personal property shall be exempt "from all collection
process, except repossession", up to the full amounts listed:
1.
motor vehicle not to exceed $1000.00 in market value;
2.
tools of the trade not exceeding $1500.00 in value;
3.
all household and/or kitchen furniture and appliances up to a
value of $1500.00 in value; in the case that the debtor owns more
than $1500.00 in value for all household, kitchen and appliances,
the debtor must select those items he desires to retain up to
a value of $1500.00 and all other items then shall be abandoned
for legal process;
4.
all miscellaneous books and musical instruments for the use of
the family that do not exceed a total of $500.00 in value;
5.
two cows, five horses and all poultry that the debtor may select
not to exceed $1500.00 in value;
6.
all items of farm equipment, farm machinery not exceeding $2000.00
per item in value.
SECTION
VIII. Standard of Review.
The Oglala
Sioux Tribe Appellate Court shall not review the decisions of the
Oglala Sioux Tribal Court except in the following instances:
1.
irregularity in the judicial procedure employed;
2.
failure to provide adequate due process to all interested parties;
or
3.
newly discovered evidence that appears reasonably likely to alter
the decision previously rendered.
HISTORY:
Ordinance 87-02.
SECTION
24.4 - DOCTRINE OF COMITY.
SECTION
1. Comity.
The Oglala
Sioux Tribal Courts shall apply the doctrine of comity to the judicial
proceedings of all foreign courts in which a final judgment has been
issued.
SECTION 2 . Definitions.
Unless
the context clearly indicated otherwise the following words and phrases
shall mean:
a.
Comity - the recognition and enforcement by the Oglala Sioux Tribal
Courts, under the review criteria as set forth in Section 5 herein,
of final judgments of all foreign courts.
b.
Foreign Courts - refers to all federal, state and federally recognized
Indian Tribes' Courts in the United States.
c.
Foreign Court Judgments - refers to the judgments issued by the
Courts of the various federal, state and federally recognized Indian
Tribes of the United States.
d.
Petitioner - refers to the person who files a petition in the Oglala
Sioux Tribal Courts requesting that a foreign court's judgment be
recognized by the Oglala Sioux Tribal Courts based upon comity.
e.
Respondent - refers to the person or persons against whom a petition
has been filed in Oglala Sioux Tribal Courts seeking enforcement
of foreign court judgment.
f.
Verified Copy of Foreign Court Judgment - refers to the requirement,
that all copies of foreign court judgments shall be authenticated
and certified, by the clerk of the issuing court, who shall attest
to the fact that the verified copy is an accurate copy of the original
judgment on file with the issuing court.
SECTION
3. Jurisdiction.
Any person
who has obtained a final foreign court judgment shall be entitled
to seek enforcement of a foreign court judgment based upon comity
through the Oglala Sioux Tribal Court.
SECTION
4. Procedure for Requesting Comity of Foreign Court Judgments.
A.
The Petitioner shall file a written petition with the Clerk of the
Oglala Sioux Tribal Court, which shall be accompanied by a verified
copy of the foreign court's judgment sought to be enforced. The
petition shall set forth the following:
(1)
the names of all parties to the foreign court judgment sought
to be recognized and their respective addresses;
(2)
the type of relief granted in the foreign court's judgment;
(3)
if money was awarded in the foreign court's judgments, then the
full judgment amount plus court costs and attorney's fees;
(4)
the date the foreign court's judgment was entered;
(5)
the record of any subsequent entries or court actions affecting
the foreign court's judgment, such as levies or execution or garnishment,
payments in partial satisfaction, etc. ; and
(6)
any additional information the petitioner believes is relevant.
The
petition shall be served upon the Respondent in the same manner
as authorized by the Code of the Oglala Sioux Tribe.
B.
The Respondent may file with the clerk of the Oglala Sioux Tribal
Court a written answer to the petition at any time prior to the
hearing on the petition.
C.
After at least five (5) days notice to the Respondent a hearing
shall be held on the petition seeking comity of the foreign court
judgment. The petitioner shall have the burden of proof in the hearing
on the petition seeking comity. However, in accordance with the
provisions of Section 5 of this Ordinance, the Oglala Sioux Tribal
Court shall inquire into the underlying facts of the foreign court's
judicial proceedings as well as the underlying facts and circumstances
of the incident which formed the basis for such proceedings .
SECTION
5. Review.
At the
hearing upon the petition, the Oglala Sioux Tribal Court shall examine
the underlying facts of the foreign court's judicial proceedings that
are the subject of the petition in order to determine.
(1)
that the foreign court actually had jurisdiction over both the parties
and the subject matter;
(2)
that the foreign court judgment was not obtained fraudulently;
(3)
that the foreign court judgment was rendered by a system of law
reasonably assuring the requisites of an impartial administration
of justice due to notice and hearing were afforded; and
(4)
the foreign court judgment did not contravene the public policy
of the jurisdiction in which it is relied upon.
Comity
shall be given to a foreign court judgment only if the Oglala Sioux
Tribal Court determines that all the requirements listed herein were
met.
SECTION
6. Entry of Judgment.
If the
Oglala Sioux Tribal Court is satisfied that the four (4) elements
listed in Section 5 of this Ordinance have been met, then and only
then shall the foreign court judgment be entitled to be recognized
under the doctrine of comity by the Oglala Sioux Tribal Court. The
Oglala Sioux Tribal Court shall then enter a judgment in favor of
the petitioner, which tribal judgment shall entitle the petitioner
to enforce his ,judgment against the respondent in the Oglala Sioux
Tribal Court.
HISTORY:
Ordinance No. 87.
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