Pawnee Tribe of Oklahoma, Law and Order Code
TITLE III - CIVIL PROCEDURE, CHAPTERS 6-10
CHAPTER SIX - JURORS
Section 601. Meeting for Selection of Jurors
(a) On the first Monday in November, or as soon thereafter as may be, and at any time upon the order of the Chief Justice of the Supreme Court, the Jury Selection Board, composed of the Tribal Secretary or one of his deputies, the Tribal Tax Director or one of his deputies, the Chief of the Tribal Police or one of his deputies, the Chairman of the Board of Commissioners of the Tribal Housing Authority or his designate, the Court Clerk or one of his deputies, and one of the Judges of the Court, shall meet at the office of the Court Clerk and select from a list to be compiled of all qualified jurors, as prescribed in this Chapter, all qualified jurors for service in the Tribal District Court for the ensuing calendar year in the manner hereinafter provided.
(b) For the purpose of ascertaining the named of all persons qualified for jury service, it shall be the duty of the following officers to provide the following lists of qualified prospective jurors to the Court Clerk:
(1) The Tribal Secretary shall supply a list of all enrolled Tribal members of their households over eighteen years of age who are residents of the tribal jurisdiction.
(2) The Tribal Tax Director shall supply a list of all individual taxpayers irrespective of Tribal membership over eighteen years of age who are residents of the tribal jurisdiction. >
(3) The Chairman of the Board of Commissioners of the Tribal Housing Authority shall supply a list of all known tenants of the Housing Authority and members of their households irrespective of tribal membership over eighteen years of age who are residents of the tribal jurisdiction.
(4) The Court Clerk shall supply a list of all persons over eighteen years of age irrespective of tribal membership who have registered upon the Court Clerk's Jury Selection Roll for jury service.
(c) Each such list shall contain, insofar as is known, the date of birth or age, name, and actual place of residence of each person within the category on the list.
(d) Whenever possible, these lists shall be prepared at least thirty days prior to the meeting to allow time for the typing of the names contained therein on cards as hereafter provided, or shall be presented typed upon the cards as hereafter provided.
(e) Whenever such is, or may become reasonably available and efficient, the lists may be printed from computer memory on cards in the manner hereafter provided..
Section 602. Court Clerk's Jury Selection Roll
It shall be the duty of the Court Clerk to maintain at all times a jury selection roll upon which any person who is or may be eligible for jury service may enter their name, date of birth, and place of residence. Such roll shall be provided to the jury selection board in order that all qualified persons who may not be identified in paragraphs (1), (2 ), or (3) of Subsection (b) of Section 601 of this Chapter shall have the opportunity for jury service.
Section 603. Preparation of Jury Wheel
Said officers shall write or cause to be written or typed the names of all persons who are known to be, or may be qualified jurors under the law on separate cards of uniform size and color, writing also on said cards, whenever possible, the post office address of each juror so selected, along with their age or date of birth and place of residence under the direction of the Court Clerk. Whenever such can be avoided, no persons name shall be placed upon more than one card. The expenses of preparation of said cards to be paid from the Court fund. The cards containing said names shall be deposited in a circular hollow wheel, to be provided for such purpose by the Court Clerk after the Jury Selection Board has examined the contents thereof and removed therefrom and destroyed any cards found therein. Said wheel shall be in the form of a drum made of iron, steel, or other substantial materials, and shall be so constructed as to freely revolve on its axle and big enough to freely mix all the cards placed therein, the size thereof in each case to be determined by the number of names placed therein, and shall be locked at all times, except when in use as hereinafter provided, by the use of two separate locks, so arranged that the key to one will not open the other lock; and said wheel and the clasps thereto attached into which the locks shall be fitted, shall be so arranged that said wheel cannot be opened unless both of said locks are unlocked at the time the wheel is opened. The keys to such locks shall be kept, one by the Chief of the Tribal Police, and the other by the Court Clerk. The Chief of the Tribal Police and the Court Clerk shall not open such wheel, nor permit the same to be opened by any person, except at the time and in the manner and by the persons herein specified; but said Chief of the Tribal Police and Court Clerk shall keep such wheel, when not in use, in a safe and secure place where the same cannot be tampered with.
Section 604. Drawing General Jury Panel
(a) The Judges of the Court shall, more than twenty (20) days prior to each jury docket of Court, determine approximately the number of jurors that are reasonably necessary for jury service in the Court during the jury docket, and shall thereupon order the drawing of such number of jurors from the wheel, said jury to be known as the general panel of jurors for service for the respective jury docket for which they are designated to serve. A majority of said judges, or the Chief Judge are authorized to act in carrying out the provisions of this Section.
(b) The Court Clerk or one of his deputies and the Chief of the Tribal Police or one of his deputies in open court and under the directions of the Chief Judge of the District Court, or during his absence or disability, some other Judge of the District Court, shall draw from the wheel containing the names of jurors, after the same has been well turned so that the cards therein are thoroughly mixed, one by one until the number of jurors for jury service as directed by the Court are procured and shall record such names as they are drawn. The officers attending such drawing shall not divulge the name of any person that may be drawn as a juror to any person.
(c) Additional and other drawing of as many names as the Court may order may be had at any such time as the Court or Judge may order for the completion of a jury panel, or for the impaneling of a new jury if, in the judgment of the Court, the same shall be necessary, of if, for any cause, the Court, in its discretion, shall deem other jurors necessary. The Court may excuse or discharge any person drawn and summoned as a juror, whenever, in its discretion, such action shall be deemed expedient.
(d) No person may be required, over his objection, to render service as a juror for more than a total of twenty (20) working days in any one calendar year unless, when this time limit is reached, he is sitting upon a panel engaged in the consideration of a case, in which event he may be excused when such case is terminated; provided, that if the Judge is of the opinion that the jury business of a jury docket fixed by the Court may be concluded within six (6) days, he may require a jury, or a juror, to remain until the termination of said jury service. Persons summoned for jury service need not be required to serve during previously fixed days or weeks or a docket fixed by the Court for jury trials, but they may be recalled from time to time as the trial needs of the District Court may require, without regard to the docket term fixed by the Court for jury trials for which they were originally summoned.
Section 605. Use of Jury Panel
The general panel of jurors shall be used to draw juries in all actions tried during the jury docket for which they were summoned. In the event of a deficiency of said general panel at any given time to meet the requirements of the Court, the presiding judge having control of said general panel shall order such additional jurors to be drawn from the wheel as may be sufficient to meet such emergency, but such jurors shall act only as special jurors and shall be discharged as soon as their services are not further needed. Resort to the wheel shall be had in all cases to fill out the general panel, except when only a single jury is needed or when the Court determines that undue delay will be caused thereby to the prejudice of a party, in which case the Court may issue and open venire to the Chief of the Tribal Police or other suitable person for such number of jurors as may be necessary to be selected from the body of the tribal jurisdiction without resort to the jury wheel, provided, that no person shall be called to service or require to serve under an open venire more often than once each year.
Section 606. Certifying and Sealing Lists
The list of names so drawn for the general panel shall be certified under the hand of the Court Clerk for the deputy doing the drawing and the Judge in whose presence said names were drawn from the wheel to be the list drawn by said Clerk for the said jury docket, and shall be sealed up in envelopes endorsed "jurors for the jury docket of the Tribal District Court scheduled to commence on ____________"(filling in the blank with the appropriate date) and the Clerk doing the drawing shall write his name across the seals of the envelopes.
607. Oath and Delivery of Envelopes
The judge attending the drawing shall deliver such envelopes to the Court Clerk, or one of his deputies, and the Judge shall, at the same time, administer to the Court Clerk and to each of his deputies an oath in substance as follows: "You and each of you do solemnly swear that you will not open the jury lists now delivered to you, nor permit them to be opened, until the time prescribed by law, nor communicate to anyone the name or names of persons appearing on the jury lists until the time a list is opened as prescribed by law at which time it shall be published, that you will not, directly or indirectly, converse or communicate with any one selected as juror concerning any case pending for trial in the Court at the next jury docket, So help you God."
Section 608. Sealing and Retaining Juror Name Cards
When the names are drawn for jury service, the cards containing such names shall be sealed in separate envelopes, endorsed "cards containing the name of jurors for the petit jury for the jury docket of the Tribal District Court commencing on _______________" (filling in the blank for the date properly); and said envelopes shall be retained securely by the Clerk, unopened, until after the jury has been impaneled for such docket, and, after such jurors so impaneled have served one jury docket, the envelopes containing the cards bearing the names of the jurors for that docket shall then be opened by the Court Clerk, or his deputy, and those cards bearing the names of persons who have been impaneled and who have not served on a jury shall be immediately returned to the wheel by the Court Clerk or his deputy; and the cards bearing the names of the persons serving on a jury shall be put in a box provided for that purpose for the use of the officer who shall next select jurors for the wheel, provided, that no person shall serve as a juryman often than once a year, except upon order of the Court for lack of sufficient jurors or as herein provided.
Section 609. Refilling Wheel
If the wheel containing the names of jurors be lost or destroyed, with the contents thereof, or if all the cards in said wheel be drawn out, such wheel shall immediately be refurnished, and cards bearing the names of jurors shall be placed therein immediately in accordance with law.
Section 610. Summoning Jurors
The summons of person for service on the juries in the District Court shall be served by the Court Clerk by mailing a copy of such summons containing the time, place, and the name of the Court upon which said jurors are required to attend, by registered or certified mail, or as directed by the Judge, to the person selected for service not less than ten (10) days before the day said person is to appear as a juror in the Court. The court clerk shall make a return of such service by filing an affidavit stating the date of mailing and type of mail used in sending the summons; provided, that this shall not prevent service of special open venire or talesman by the Chief of the Tribal Police.
Section 611. On-Call System Jurors
(a) When an on-call system is implemented by order of the Chief Judge of the District Court, each juror retained for services subject to call shall be required to contact a center for information as to the time and place of his next assignment.
(b) For purposes of this Section, "on-call" system" means a method whereby the Chief Judge of the District Court estimates the number of jurors required for a jury docket of court, and those jurors not needed during any particular period are released to return to their home or employment subject to call when needed.
(c) Pursuant to summons for service on petit juries in the District Court, each qualified, nonexempt juror is retained for service subject to call and is assigned to a judge or a case.
Section 612. Drawing Trial Jurors From Panel
Prospective jurors for the trial of an action shall be drawn by the Court Clerk, in open Court in the presence of a Judge, by lot either by wheel, by numbering the prospective juror available to be called, or by some similar form of random drawing approved by the Court. The initial six jurors shall be drawn as shortly before the trial of the action as is reasonably practical in the discretion of the Court. As prospective jurors are removed or dismissed by challenge, whether preemptory or for cause, the Clerk shall draw another named from the general pool who shall take the place of the challenged prospective juror and be subject to voir dire to the same extent as the prospective jurors originally chosen.
Section 613. Qualifications and Exemptions of Jurors
(a) All members of the Tribe and other citizens of the United States who are over eighteen years of age and have resided within the Tribal jurisdiction for a period of thirty (30) days, who are of sound mind and discretion and of good moral character are competent to act as jurors, except as herein provided.
(b) The following persons are not qualified to serve as jurors:
(1) Justices of the Supreme Court of the Tribe, or the employees in their office.
(2) Judges or Magistrates of the District Court, or the employees in their office.
(3) The Court Clerk, or the employees in his office.
(4) The Chief of the Tribal Police, his deputies, and the employees in the Police Department.
(5) Jailers having custody of prisoners, or other tribal, state, or federal law enforcement officers.
(6) Licensed Attorneys or Advocates engaged in the practice of law.
(7) Persons who have been convicted of any felony or crime involving moral turpitude, provided that when such conviction has been vacated, overturned upon appeal, or pardoned or when any such person has been fully restored to his civil rights by the jurisdiction wherein such conviction occurred, the person shall be eligible to serve as a juror.
(8)Elected Tribal Officials.
(c) Persons over seventy (70) years of age, ministers, practicing physicians, optometrists, dentists, public school teachers, federal employees, regularly organized full time fire department employees, and women with otherwise unattended minor children not in school may be excused from jury service by the Court, in its discretion, upon request.
(d) Any tribal member, tribal taxpayer, or person employed within the Tribal jurisdiction may serve as a juror notwithstanding that they are not a residence of the Tribal jurisdiction if they volunteer to do so by signing the Jury Selection Roll maintained by the Court Clerk.
Section 614. Substantial Compliance
A substantial compliance with the provisions of this Chapter, shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing, and summoning, or impaneling the same, resulted in depriving a party litigant of some substantial right; provided, however, that such irregularity must be specifically presented to the Court at or before the time the jury is sworn to try the cause.
Section 615. Oath to Jury
After selection of the jury, and prior to the opening statements of the parties, the Court or Clerk shall place the jury under oath or affirmation to well and truly try and determine the action before them exclusively upon the evidence presented in the Court and the law as given by the Court, and to return their true verdict thereon without partiality for any unlawful cause or reason.
Section 616. Discharge of Employee for Jury Service - Penalty
Every person, firm, or corporation who discharges an employee or causes an employee to be discharged because of said employee's absence from his employment by reason of said employee's having been required to serve as a juror on a jury of the Tribal District Court, or any other Court, shall be guilty of an Offense, and, upon conviction thereof, shall be punishable by a fine not to exceed Five Hundred Dollars ($500.00).
Section 617. Civil Liability - Damages
Every person, firm, or corporation who discharges or causes to be discharged an employee because of said employee's absence from his employment by reason of said employee's having been required to serve as a juror on a jury, in the Tribal District Court or any other Court, shall be liable to the person so discharged in a civil action at law for both actual and punitive damages. Damages shall include all pecuniary losses suffered including, but not limited to, lost earnings, both past and future, mental anguish, and all reasonable damages incurred in obtaining other suitable employment, including the cost of relocation and retraining, if any, and a reasonable attorney fee to be determined by the Court.
701. Trial Defined
A trial is a judicial examination of the issues, whether of law or fact, in an action.
Section 702. Trial of Issues
Issues of law must be tried by the Court. Issues of fact arising in actions for which a jury trial is provided by law may be tried by a jury, if a jury trial is demanded, unless a reference be ordered, as hereinafter provided. All other issues of fact shall be tried to the Court.
Section 703. Jury Trial of Right
(a) Right Preserved. The right of trial by jury as declared by the Tribal Constitution or a statute of the Tribe, or the Indian Civil Rights Act of 1968 shall be preserved inviolate. In all actions, except forcible entry and detainer, arising in contract or tort where the amount in controversy, or the value of the property to be recover, as stated in the prayer for relief or an affidavit of a party, or as found the Court where the amount in controversy is questioned by the affidavit of the adverse party, exceeds Ten Thousand Dollars, except as otherwise specifically provided by law, and in all actions for the involuntary removal of children from the custody of their parents or custodian and the involuntary termination of parental rights, the action may be tried to a jury upon demand of any party. All other actions and issues of fact shall be tried to the Court.
(b) Demand. Any party entitled to a jury trial may demand a trial by jury of any issue triable of right by a jury pursuant to any law of the Tribe by serving upon the other parties a demand therefore in writing at any time after the commencement of the action and not later than ten (10) days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party. Such demand shall not be effective unless, at the time of filing or at such later time as the Court shall by rule allow, the party making such demand deposit with the Court Clerk a reasonable jury fee in such amount as the Court shall by rule determine. The amount of such deposit shall be set by the Court in such amount as may be reasonably necessary to offset the costs of juror fees for the impaneling and trying of the action, without being in an amount which may preclude or prevent a party from exercising their right to a jury trial. Such rules shall contain a provision for waiver of the deposit requirement for persons proceeding in forma pauperis.
(c) Same; Specification of Issues. In his demand a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury for all the issues shall triable. If he has demanded trial by jury for only some of the issues, any other party within 10 days after service of the demand or such lesser time as the Court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.
(d) Waiver. The failure of a party to serve a demand as required by this section and to file it as required by Section 231(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. Even though previously demanded, the trial by jury may be waived by the parties, in actions arising on contract, and with the assent of the Court in other actions, in the following manner: By the consent of the party appearing, when the other party fails to appear at the trial by himself for attorney. By written consent, in person or by attorney, filed with the clerk. By oral consent, in open court, entered on the journal.
Section 704. Trial by Jury or by the Court
(a) By Jury. When Trial by jury has been demanded as provided in Section 703, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless:
(1) the parties or their attorneys of record, by written stipulation filed with the Court or by an oral stipulation made in open Court and entered in the record, consent to trial by the Court sitting without a jury;
(2) the Court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution and ordinances of the Tribe, or under the Indian Civil Rights Act.
(b) By the Court. Issues not demanded for trial by jury as provided in Section 703 shall be tried by the Court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the Court in its discretion or upon motion of a party may order a trial by a jury of any or all issues properly friable to a jury.
(c) Advisory Jury and Trial by Consent. In all actions not triable of right by a jury the Court upon motion or its own initiative may try any issue with an advisory jury or, except in actions against the Tribe when a statute of the Tribe provides for trial without a jury, the Court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
Section 705. Assignment of Cases for Trial
The District Court shall provide by rule for the placing of actions upon the trial calendar
(1) without request of the parties or
(2) upon request of a party and notice to the other patties or
(3) in such other manner as the Courts deem expedient. Precedence shall be given to actions entitled thereto by any statute of the Tribe.
Section 706. Consolidation; Separate Trials
(a) Consolidation. When different actions involving a common question of law or fact are pending before the Court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delays.
(b) Separate Trials. The Court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, or third party claims, or issues, always preserving inviolate the right to trial by jury as declared by the Indian Civil Rights Act, the Tribal Constitution or as given by a statute of the Tribe.
SUBCHAPTER A IMPANELING JURY
721. Summoning Jury
The general mode of summoning and impaneling the jury, in cases in which a jury trial may be had, is such as is or may be provided by Chapter 6 of this Act.
Section 722. Causes for Challenging Jurors
If there shall be impaneled, for the trial of any action, any juror, who shall be been convicted of any crime which by law renders him disqualified to serve on a jury; or who has been arbitrator on either, side, relating to the same controversy; or who has an interest in the action; or who has an action pending between him and either party; or who has formerly been a juror on the same claim; or who is the employer, employee, counselor, agent, steward or attorney of either party; or who is subpoenaed as a witness; or who is of kin to either party within the second degree by blood or marriage, he may be challenged for such causes; in either of which cases the same shall be considered as a principal challenge, and the validity thereof be tried by the Court; and any juror who shall be returned upon the trial of any of the causes herein before specified, against who no principal cause of challenge can be alleged, may, nevertheless, be challenged on suspicion of prejudice against, or partiality for either party, or any other cause that may render him, at the time, an unsuitable juror; but a resident or taxpayer of the tribal jurisdiction, or a member of the Tribe or any municipality therein shall not be thereby disqualified in actions in which the Tribe or such municipality is a party. The validity of all principal challenges and challenges for cause shall be determined by the Court.
Section 723. Examination of jurors
The Court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the Court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper.
Section 724. Alternate Jurors
The Court may direct that not more than three jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if alternate jurors are to be impaneled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by law shall not be used against an alternate juror.
Section 725. Order of Challenges
The plaintiff first, and afterward the defendant, shall complete his challenges for cause. They may then, in turn, in the same order, have the right to challenge one juror each, until each shall have peremptorily challenged three jurors, but no more.
Section 726. Challenges to Jurors - Filling Vacancies
After each challenge, the vacancy shall be filled before further challenges are made; and any new juror thus introduced may be challenged for cause as well as peremptorily.
Section 727. Alternate Method of Selecting Jury
Notwithstanding other methods authorized by law, the trial judge may direct in his discretion that a jury in an action be selected by calling and seating twelve prospective jurors in the jury box and then examining them on voir dire; when twelve such prospective jurors have been passed for cause, each side of the lawsuit shall exercise its peremptory challenges out of the hearing of the jury by alternately striking three names each from the list of those so passed for cause, and the remaining six persons shall be sworn to try the case.
If there be more than one defendant in the case, and the trial judge determines on motion that there is a serious conflict of interest between them, he may, in his discretion, allow each defendant to strike three names from the list of jurors seated and passed for cause. In such case he shall appropriately increase the number of jurors initially called and seated in the jury box for voir dire examination.
Section 728. Oath of Jury
The jury shall be sworn to well and truly try the matters submitted to them in the case before them, and to give a true verdict, according to the law and the evidence.
Section 729. Juries of Less Than Six - Majority Verdict
All juries shall be composed of six persons, and a unanimous verdict shall be required, except that the parties may stipulate that the jury shall consist of any number less than six and greater than two, or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict, or finding of the jury. .
SUBCHAPTER B TRIAL PROCEDURE
731. Order of Trial
When the jury has been sworn in an action before a jury, and in trials to the Court, when the Court is ready to proceed, the trial shall proceed in the following order, unless the Court for special reasons otherwise directs:
(a) The party on whom rests the burden of proving the issues may briefly state his case, and the evidence by which he expects to sustain it.
(b) The adverse party may then briefly state his defense and the evidence he expects to offer in support of it, or the adverse party may reserve his opening statement until the beginning of the presentation of his evidence.
(c) The party on whom rests the burden of proving the issues must first produce his evidence; after he has closed his evidence the adverse party may interpose a motion for a directed verdict thereto upon the ground that no claim for relief or defense is proved. If the Court shall sustain the motion, no formal verdict of the jury shall be required, but judgment shall be rendered for the party whose motion for a directed verdict is sustained as the state of the pleadings or the proof shall demand.
(d) If the motion for a directed verdict be overruled, the adverse party may then briefly state his case if he did not do so prior to the beginning of the presentation of the evidence, and, shall then produce his evidence.
(e) The parties will then be confined to rebutting evidence unless the Court, for good reasons in furtherance of justice, shall permit them to offer evidence in the original case.
(f) After the close of the evidence, and when the jury instructions have been finalized by the Court, the parties may then make their closing arguments as to the evidence proved and reasonable inferences to be drawn therefrom. The party having the burden of proving the issue shall first present his argument. Thereafter, the other party shall present his argument, and then, the party having the burden of proof shall have the opportunity for rebuttal argument. The Court may place reasonable limitation upon the time allowed for closing argument, provided, that each side to the action should have the same total time for argument if time restrictions are placed thereon.
(g) After the closing arguments of the parties have been completed, the Court shall instruct the jury as the law of the case, and shall give a copy of the written instructions to the jury for their use during their deliberations.
(h) The Court shall then place the bailiff or some other responsible person under oath to secure the jury against interference, and the jury shall retire to determine its verdict.
Section 732. Taking of Testimony
(a) Form. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an ordinance of the Tribe or by this Act, the Tribal Rules of Evidence, or other rules adopted by the Supreme Court of the Tribe.
(b) Affirmation in Lieu of Oath. Whenever under this Act an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.
(c) Evidence on Motions. When a motion is based on facts not appearing of record the Court my hear the matter on affidavits presented by the respective parties, but the Court may direct that the matter be heard wholly or partly on oral testimony or depositions.
(d) Interpreters. The Court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the Court may direct, and may be taxed ultimately as costs, in the discretion of the Court.
Section 733. Exceptions Unnecessary
Formal exceptions to rulings or orders of the Court are unnecessary; but 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 he desires the Court to take or his objection to the action of the Court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.
Section 734. Instruction to Jury - Objection
(a) At the close of the evidence or at such earlier time during the trial as the Court reasonably directs, any party may file written requests that the Court instruct the jury on the law as set forth in the requests. The Court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the Court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto or proposes the requested instruction before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.
(b) All instructions requested, and modifications thereof, shall be reduced to writing, numbered, and signed by the party or his attorney asking the same and filed in the record of the case.
(c) When either party asks special instructions to be given to the jury, the Court shall either give such instructions as requested, or positively refuse to do so; or give the instructions with modification in such manner that it shall distinctly appear what instructions were given in whole or part, and in like manner those refused, to that either party may except to the instructions as asked for, or as modified, or to the modification, or to the refusal.
(d) All instructions given by the Court must be numbered, signed by the judge and filed together with those asked for by the parties as a part of the record.
Section 735. Uniform Jury Instructions
The Supreme Court, in its discretion, is authorized to promulgate by rule uniform instructions to be given in jury trials of civil or criminal actions, which, if applicable in a civil or criminal action, due regard being given to the facts and prevailing law, shall be used unless the Court determines that the instruction does not accurately state the law.
Section 736. Objections to Instructions - Copies to Parties
A party objecting to the giving of instructions, or the refusal thereof, shall not be required to file a formal bill of exceptions; but it shall be sufficient to make objection thereto by dictating intro the record in open Court, out of the hearing of the jury, before the reading of all instructions, the number of the particular instruction that was requested, refused, and objected to, or the number of the particular instruction given by the Court that is expected to. Provided, further, that the Court shall furnish copies of the instructions to the Plaintiff and Defendant prior to the time said instructions are given by the Court.
Section 737. View by Jury
Whenever, in the opinion of the Court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted, in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the Court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial.
Section 738. Deliberations of the Jury
When the case is finally submitted to the jury, they shall retire for deliberation. When they retire, they must be kept together, in some convenient place, under charge of an officer, until they agree upon a verdict or be discharged by the Court, subject to the discretion of the Court, to permit them to separate temporarily at night, and at their meals. The officer having them under his charge shall not suffer any communication to be made to them, or make any himself, except to ask them if they are agreed upon their verdict, and to communicate a request by the jury to the Court in open Court, unless by order of the Court; and he shall not, before their Court is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon.
Section 739. Admonition of Jury on Separation
If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the Court that it is their duty not to converse with, or suffer themselves 'that be addressed by, any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon, until the case is finally submitted to them.
Section 740 Information After Retirement
After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the Court, where the information on the point of law shall be given in writing, and the Court may give its recollections as to the testimony on the point in dispute, or cause the same to be read by the stenographer or played back on an electronic recording devise by the reporter in the presence of, or after notice to, the parties or their Counsel. Upon motion in appropriate circumstances, the Court may order that other portions of the record relating to the same issue also be read or played back to the jury upon the questioned point.
Section 741. When the Jury may be Discharged
The jury may be discharged by the Court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears to the Court that there is no probability of their agreeing.
Section 742. Re-trial
In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again immediately, or at a future time, as the Court may direct.
Section 743. Proof of Official Record
(1) Domestic. An official record kept within the United States, or any Indian Tribal jurisdiction, state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public office having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.
(2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certification of genuineness of signature and official position related to the attestation or is in a chain of certificate of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign county assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the Court may, for good cause shown, (i) admit an attested copy without final certification or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.
(b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement; authenticated as provided in subdivision (a)(1) of this Section in the case of a domestic record, or complying with the requirements of subdivision (a) (2) of this Section for summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry.
(c) Other Proof. This Section does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law.
Section 744. Determination of Foreign Law
A party who intends to raise an issue concerning the law of a foreign jurisdiction shall give notice in his pleadings or other reasonable written notice. The Court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Tribal Rules of Evidence. The Court's determination shall be treated as a ruling on a question of law. The District Court shall take judicial notice of the law of any foreign jurisdiction within the United States published in an official publication of that jurisdiction upon reasonable notice of the law in question. The term "foreign jurisdiction within the United States" includes every federally recognized Indian Tribe, every state, territory, or possession of the United States, the United States, and their political subdivisions and agencies.
Section 745. Appointment and Duties of Masters
(a) Appointment and Compensation. The District Court with the concurrence of a majority of all the Judges thereof may appoint one or more standing masters, and the trial judge, in an appropriate case, may appoint a special master to act in a particular case. The word "master" includes a referee, an auditor, and an examiner, a commissioner, and an assessor. The compensation to be allowed to a master shall be fixed by the Court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the Court as the Court may direct. The master shall not retain his report as security for his compensation; but when the party ordered to pay the compensation allowed by the Court does not pay it after notice and within the time prescribed by the Court, the master is entitled to a writ of execution against the delinquent party.
(b) Reference. A reference to a master shall be the exception and not the rule. In action to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, savie in matter of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.
(c) Powers. The order of reference to the master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order or reference and has the authority to put witnesses on oath and may himself examine them, and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Section 732(c) for a Court sitting without a jury.
(1) Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within twenty (20) days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the Court for an order requiring the master to speed the proceedings arid to make his report. If a party fails to appear at the time and place appointed, the master may proceed ex parte, or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.
(2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Section 222. If without adequate excuse a witness fails to appear or give evidence, he may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in Section 412(b) and 222(f).
(3) Statement of Accounts. When matters of accounting are in issue before the master, he may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs.
(1) Content and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
(2) In Non-Jury Actions. In an action to be tried without a jury the Court shall accept the master's findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the Court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Section 240 (d). The Court after hearing may adopt the report or may modify it or may reject it in whole or in party or may receive further evidence or may recommit it with instructions.
(3) In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. His findings upon the issues submitted to him are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the Court upon any objections in point of law which may be made to the report.
(4) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.
(5) Draft Report. Before filing his report, a master may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.
SUBCHAPTER C VERDICT
Section 751. Findings by the Court
(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the Court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Section 907; and in granting or refusing interlocutory injunctions the Court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Request for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master, to the extent that the Court adopts them, shall be considered as the findings of the Court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Section 112 (b) or Section 121(b).
(b) Amendment. Upon motion of a party made not later than 10 days after entry of judgment the Court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Section 108. When findings of fact are made in actions tried by the Court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the District Court an objection to such findings or has made a motion to amend them or a motion for judgment.
Section 752. Delivery of Verdict
When the jury have agreed upon their verdict they must be conducted into Court, and their verdict rendered by their foreman. When the verdict is announced, either party may require the jury to be polled, which is done by the Clerk or the court asking each juror if it is his verdict. If any one answers in the negative, the jury must again be sent, for further deliberation.
Section 753. Requisites of Verdicts
The verdict shall be written, signed by the foreman and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury, before they are discharged, be corrected by the Court.
Section 754. General and Special Verdict
The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds facts only. It must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented as that nothing remains to the Court but to draw from them conclusions of law.
Section 755. Special Verdict and Interrogatories
(a) Special Verdicts. The Court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the Court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The Court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the Court omits any issue of fact raised by the pleadings or by the evidence, each party waived his right to a trial by jury of the issue so omitted unless before the jury retires he demand its submission to the jury. As to an issue omitted without such demand the Court may make a finding; or, it fails to do so it shall be deemed to have made a finding in accord with the judgment on the special verdict.
(b) General Verdict Accompanied by Answer to Interrogatories. The Court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary 'to a verdict. The Court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the Court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are consistent with each other, judgment shall be entered thereon, but, when the answers to one or more interrogatories in inconsistent with the general verdict, judgment may be entered pursuant to Section 907 in accordance with the answers, notwithstanding the general verdict, or the Court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the Court shall return the jury for further consideration of its answers and verdict or shall order a new trial.
Section 756. Jury Must Assess Amount of Recovery
When, by the verdict either party is entitled to recover money of the adverse party, the jury, in their verdict, must assess the amount of recovery.
Section 757. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict
for Directed Verdict: When Made; Effect. A party who moves for a directed
verdict at the close of the evidence offered by an opponent may offer
evidence in the event that the motion is not granted, without having
reserved the right so to do and to the same extent as if the motion
had not been made. A motion for a directed verdict which is not granted
is not a waiver of trial by jury even though all parties to the action
have moved for directed verdicts. A motion for directed verdict shall
state the specific grounds therefor. The order of the Court granting
a motion for a directed verdict is effective without any assent of
(b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the Court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the Court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of the judgment as if the requested verdict had been directed. If no verdict was returned the Court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.
(c) Same: Conditional Rulings on Grant of Motion.
(1) If the motion for judgment notwithstanding the verdict, provided for in subsection (b) of this Section, is granted, the Court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the Supreme Court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the Supreme Court.
(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Section 908 not later than 10 days after entry of the judgment notwithstanding the verdict.
(d) Same: Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, on appeal, assert grounds entitling him to a new trial in the event the Supreme Court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the Supreme Court reverses the judgment, nothing in this Section precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.
SUBCHAPTER D MISCELLANEOUS TRIAL PROVISIONS
771. Provisions Applicable to Trials by Court
The provisions of this Chapter respecting trials by jury apply, so far as they are in their nature applicable, to trials by the Court.
Section 772. Trial Docket
A trial docket shall be made out by the Clerk of the Court, at least fifteen days before the first day of each jury or non-jury docket of the Court, and the actions shall be set for particular days in the order prescribed by the Judge of the Court, and so arranged that the cases set for each day shall be considered as nearly as may be on that day. The trial docket shall be promptly mailed by the Clerk to each party or their attorney of record whose action is placed on the trial docket.
Section 773. Trial Docket for Bar
The Clerk shall make out a copy of the trial docket for the use of the bar, before the first day of the docket of the Court and cause the same to be available to the public.
Section 774. Order of Trial of Cases Docketed
The trial of an issue of fact, and the assessment of damages in any case, shall be in the order in which they are placed on the trial docket, unless by the request of the parties with the approval of the Court, or the order of the Court, they are continued or placed at the heel of the docket, unless the Court, in its discretion, shall otherwise direct. The Court may, in its discretion, hear at any time a motion, and may by rule prescribe the time for hearing motions.
Section 775. Time of Trial
shall be triable at the first trial docket of the Court, after or
during which the issues therein, by the time fixed for pleading are,
or shall have been made up and discovery completed. When the issues
are made up and discovery completed, or when the defendant has failed
to plead within the time fixed, the cause shall be placed on the trial
docket, and shall stand for trial at such term twenty (20) days after
the issues are made up and discovery completed, and shall, in case
of default, stand for trial forthwith.
(b) The Court shall arrange its business so that two non-jury trial dockets and two jury trial dockets are completed during each calendar year, unless the majority of the judges of the Court by order determine that additional trial dockets are necessary to promptly, dispose of the cases pending before the Court.
Section 776. Continuances
The trial of an action shall not be continued upon the stipulation of the parties alone, but may be continued upon order of the Court.
Section 777. Trial by Judicial Panel
Supreme Court may provide by rule for the trial of any action in the
District Court by judicial panel in any or all cases when no jury
is allowed by law or demanded by the parties. The judicial panel shall
consist of the presiding judge to~whom the case was assigned, who
shall make all rulings or questions of law during the trial of the
action, and two or more judges, special judges, or magistrates who
shall hear the evidence. The Chief Justice of the Supreme Court, with
the consent of the majority of the active Judges of the Supreme Curt,
is hereby authorized to freely appoint any person licensed to practice
law before the Court as a Special Judge for the purpose of sitting
upon a judicial panel, and may compensate such person out of the Court
fund reasonable compensation for his services, in an amount not exceeding
the daily rate paid to regular Judges of the Court.
(b) The judicial panel shall jointly, by majority vote, determine the facts proved by the evidence and the panel shall enter findings of fact and conclusions of law as in a trial before a single Judge.
(c) In a trial before a judicial panel, the votes of the Judges on the panel shall not be revealed, but the verdict and judgment shall be entered in accordance with the panels findings of fact and conclusions of law.
Section 778. Bifurcated Jury Trials
Supreme Court may provide by rule for the bifurcation of any jury
trial in a civil action sounding in tort so that the jury shall first
hear evidence on, and render its verdict upon the issue of liability,
and thereafter hear evidence on and render its verdict upon the issue
of the amount of damages if liability has been found.
(b) In such bifurcated trials, evidence of insurance coverage or similar agreements by third parties to pay any part or a judgment, and the nature and extent of such coverage or agreement shall be admissible and relevant to the issue of damages.
(c) In any such cases not provided for by Court rule, the case may be determined in bifurcated proceedings as stated in Subsections (a) and (b) of this Section by stipulation of the parties.
801. Seizure of Person or Property
At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the Tribe, existing at the time the remedy is sought.
Section 802. Receivers Appointed by Tribal Courts
An action wherein a receiver has been appointed shall not be dismissed except by order of the Court. The practice in the administration of estates by receivers or by other similar officers appointed by the Court shall be in accordance with Tribal probate law, or, if none, then the practice heretofore followed in the courts of the United States or as provided in rules promulgated by the District Court. In all other respects the action in which the appointment of a receiver is sought or which is brought by or against a receiver is governed by this Act.
Section 803. Deposit in Court
In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of Court, may deposit with the Court all or any part of such sum or thing. Money paid into Court under this Section shall be deposited and withdrawn in accordance with tribal law detailing accounting procedures for the Court Clerk's Office, and if there be none, then in accordance with the Tribal procedure for the administration and accounting of federal grant monies, upon order of the Court.
Section 804. Process in Behalf of and Against Persons no Parties
When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party.
Section 805. Security - Proceedings Against Sureties
Whenever this Act or other Tribal law requires or permits the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the- jurisdiction of the Court and irrevocably appoints the Clerk of the Court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the Court prescribes may be served on the Clerk of the Court, who shall forthwith mail copies to the sureties of their addresses are known.
Any surety authorized to give a bond or stipulation or other undertaking in either the Federal courts or the State courts within the State within which any portion of the tribal jurisdiction lies, and any individual approved by the Court who resides within the jurisdiction of Tribe (except officers of the Court or elected Tribal officials) shall be eligible to give such bond or stipulation, or undertaking in the District Court under this Act of other Tribal law unless otherwise prohibited by tribal law.
Section 806. Execution
General. Process to enforce a judgment for the payment of money shall
a writ of execution, unless the. Court directs otherwise. In aid of
the judgment or execution, the judgment creditor or his successor
in interest when that interest appears of record, may obtain discovery
from any person, including the judgment debtor, in the manner provided
in this Act.
(b) Against Certain Public Officers. When a judgment otherwise authorized has been entered against a collector or other officer of revenue of the Tribe or against an officer, or employee, or agency of the Tribe in their official capacity; or if judgment is entered against an individual in his personal capacity who purported to act as an officer or employee of the Tribe, and the Court has given certificate of probable cause for his act wherein the Court determines that the individual had probable cause to believe that his action was authorized by the Tribe in his official capacity, execution shall not issue against the officer or his property but the final judgment shall be satisfied as may be provided by appropriation of such judgment (or such part thereof as the legislative body of the Tribe deems permissible considering the extent of available tribal resources) from available tribal funds. This section is not intended, nor shall it be construed, as a waiver of sovereign immunity.
SUBCHAPTER A INJUNCTIONS
811. Injunction Defined
The injunction provided for by this Chapter is a command to refrain from or to do a particular act for the benefit of another. It may be the final judgment in an action, or may be allowed as a provisional remedy, and when so allowed, it shall be by order.
Section 812. Cause for Injunction - Temporary Restraining Order
When it appears, by the verified complaint or an affidavit that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or when, during the litigation, it appears that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiffs rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary restraining order and preliminary injunction may be granted to restrain such act. And when, during the pendency of an action, it shall appear, by affidavit or proof, that the defendant threatens or is about to remove or dispose of his property with intent to defraud his creditors, or to render the judgment ineffectual, a temporary restraining order and preliminary injunction may be granted to restrain such removal or disposition. It may, also, be granted in any case where it is specially authorized by statute.
Section 813. Temporary Restraining Order; Notice; Hearing; Duration
A temporary restraining order may be, granted after commencement of the action without written or oral notice to the adverse party or his attorney only if:
clearly appears from specific facts shown by affidavit or by the verified
complaint that immediate and irreparable injury, loss, or damage will
result to the applicant before the adverse party or his attorney can
be heard in opposition, and
(b) the applicant's attorney certifies to the Court in writing the efforts, if any, which have been made to give the notice and the reasons supporting has claim that notice should not be required.
Temporary restraining orders should not be granted except in cases of extreme urgency. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the Court fixes, unless within the time so fixed the order, for good cause shown, is extended for like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case 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 take precedence of all matters except older matters of the same character; and 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 two (2) day's 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 the ends of justice require.
Section 814. Temporary Restraining Order - Service
Temporary restraining orders shall be served in the same manner as provided for service of the summons and complaint.
Section 815. Preliminary Injunction
No preliminary injunction shall be issued without notice to the adverse
party. Notice may be in the form of an order to appear at a designated
time and place and show cause why a proposed preliminary injunction
should not be issued, or in such form as the Court shall direct. The
burden of showing the criteria for issuance of a preliminary injunction
remains with the removing party.
(b) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This Subsection shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
Section 816. Preliminary Injunction Criteria
Unless a statue of the Tribe provides specifically for preliminary injunctive relief upon a showing of particular circumstances, no preliminary injunction shall be granted unless upon hearing the evidence presented by the parties the Court determines that:
(a) There is a substantial likelihood that the moving party will eventually prevail on the merits of their claim for a permanent injunction or other relief, and
(b) The moving party will suffer irreparable injury unless the preliminary injunction issues. Irreparable injury means an injury which cannot be adequately remedied by a judgment for money damages, and
(c) The threatened injury to the moving party outweighs whatever damage or injury the proposed preliminary injunction may cause the opposing party, and
(d) The preliminary injunction, if issued, would not be adverse to the public interest, and would not violate the public policy of the Tribe or the United States.
Section 817. Form and Scope of Injunction or Restraining Order
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, arid upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Section 818. Employer and Employee; Interpleader; Constitutional Cases
This Subchapter does not modify any statute of the Tribe relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee; or relating to preliminary injunctions in actions of interpleader or in the nature of interpleader; or any other case where temporary restraining orders or preliminary injunctions are expressly authorized or prohibited upon certain express terms or conditions.
Section 819. Security
(a) No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the Court deems proper, for the payment of such costs, damages, and a reasonable attorney fee as may be incurred or suffered by any part who is found to have been wrongfully enjoined or restrained. No such security shall be required of the Tribe or of an officer or agency thereof.
(b) The provisions of Section 805 apply to a surety upon a bond or undertaking under this Section.
(c) A party enjoined by a preliminary injunction may, at any time before final judgment, upon reasonable notice to the party who has obtained the preliminary injunction, move the Court for additional security, and if it appear that the surety in the undertaking has removed from the Tribal jurisdiction, or is insufficient, the Court may vacate the preliminary injunction unless sufficient surety be given in a reasonable time upon such terms as may be just and equitable.
Section 820. Use of Affidavits
On the hearing for a restraining order or preliminary injunction, each party may submit affidavits which shall be filed as a part of the record.
Section 821. Injunction by Defendant
A defendant may obtain a temporary restraining order or preliminary injunction upon filing his answer containing an appropriate counterclaim. He shall proceed in the manner herein before prescribed.
Section 822. Injunction is Equitable
Relief by way of a restraining order, preliminary, or permanent injunction is of equitable cognizance and shall be issued or refused in the sound discretion of the Court. Relief by way of injunction shall be denied where the moving party may be adequately compensated for his injuries in money damages. The District Court shall not enjoin the enforcement of the Tribal tax laws or the collection of tribal taxes except to the extent that such relief is specifically provided for in those tax laws. No injunction shall issue to control the discretion or action of a Governmental officer or employee when such officer or employee has been delegated the authority to exercise his discretion in determining how to act upon the subject matter, and is acting or refusing to act in a manner not prohibited by tribal law or the Indian Civil Rights Act.
Section 823. Modification of Preliminary Injunction
If the preliminary injunction be granted, the defendant, at any time before the trial, may apply, upon notice, to the Court to vacate or modify the same. The application may be made upon the complaint and affidavits upon which the injunction is granted, or upon affidavits on the part of the party enjoined, with or without answer. The order of the judge, allowing, dissolving or modifying an injunction, shall be returned to the office of the clerk of the Court and recorded.
Section 824. Modification of Permanent Injunction
A final judgment containing a permanent injunction may be modified or dissolved by separate action upon a showing that the facts and circumstances have changed to the extent that the injunction is no longer just and equitable, or that the injunction is no longer needed to protect the rights of the parties.
Section 825. Injunctions Tried to the Court
All injunctive actions shall be tried to the Court and not to a jury unless the Court orders an advisory jury pursuant to Section 704(c) of this Act.
Section 826. Enforcement of Restraining Orders and Injunctions
A restraining order of injunction granted by a Judge may be enforced as the act of the Court. Disobedience of any injunction may be punished as a contempt, by the Court or any Judge who might have granted it. An attachment may be issued by the Court of Judge, upon being satisfied, by affidavit or testimony, of the breach of the injunction, against the party guilty of the same, who may be required to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply with such requirements, or be otherwise legally discharged, or be punished by fine not exceeding Two Hundred Dollars ($200.00) for each day of, or separate act of, contempt, to be paid into the Court fund, or by confinement in the Tribal jail for not longer than sixty (60) days.
SUBCHAPTER B REPLEVIN
Section 831. Order of Delivery - Procedure
(a) The plaintiff in an action to recover the possession of specific personal property may claim the delivery of the property at the commencement of suit, as provided herein.
(1) The complaint must allege facts which show:
(2) The above allegations are verified by the party or, when the facts are within the personal knowledge of his agent or attorney and this is shown in the verification, by said agent or attorney.
(i) a description of the property claimed,
(ii) that the plaintiff is the owner of the property or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property,
(iii) that the property is wrongfully detained by the defendant,
(iv) the actual value of the property, provided that when several articles are claimed, the value of each shall be stated as nearly as practicable,
(v) that the property was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued under this Act, or any other mesne or final process issued against said plaintiff; or, if taken in execution or on any order or judgment against the plaintiff, that it is exempt by law from being so taken, and,
(3) A notice shall be issued by the Clerk and served on the defendant with the summons which shall notify the defendant that an order of delivery of the property described in the complaint is sought and that the defendant may object to the issuance of such an order by a written objection which is filed with the Clerk and delivered or mailed to the plaintiff s attorney within five (5) days of the service of the summons. I n the event that no written objection is filed within the five-day period, no hearing is necessary and the Court Clerk shall issue the order of delivery. Should a written objection be filed within the five-day period specified, the Court shall, at the request of either party, set the matter for prompt hearing. At such hearing the Court shall proceed to determine whether the order for pre-judgment delivery of the property should issue according to the probable merit of the plaintiff's complaint. Provided, however, that no order of delivery may be issued until an undertaking has been executed pursuant to Section 833 of this Act. (4) Nothing in this Act contained shall prohibit a party from waiving his right to a hearing or from voluntarily delivering the goods to the party seeking them before the commencement of the proceedings at any time after institution thereof.
the notice that is required by subsection (a) of this Section cannot
be served on the defendant but the Judge finds that a reasonable effort
to serve him was made and at the hearing the plaintiff has shown the
probable truth of the allegations in his complaint, the Court may
issue an order for the pre-judgment delivery of the property. If an
order for the pre-judgment delivery of the property is issued without
actual notice being given the defendant, the defendant may move to
have said order dissolved and if he does not have possession of the
property, for a return of the property. Notice of the right to move
for return of said property which shall be served upon the defendant
or left in a conspicuous place where the property was seized, and
the Chief of the Tribal Police shall hold said property in such cases
for three (3) working days prior to delivery to the plaintiff in order
to give the defendant a reasonable opportunity to move for the return
of such property. Notice of said motion with the date of the hearing
shall be served upon the attorney for the plaintiff in the action.
The motion shall be heard promptly, and in any case within ten (10)
days after the date it is filed. The Court must grant the motion unless,
at the hearing on defendant's motion, the plaintiff proves the probable
truth of the allegations contained in his complaint. If said motion
and notice filed before the Chief of the Tribal Police turns the property
over to the plaintiff, the Chief of the Tribal Police shall retain
control of the property pending the hearing on the motion.
(c) The Court may, on request of the plaintiff, order the defendant not to conceal, damage or destroy the property or a part thereof and not to remove the property or a part thereof from the tribal jurisdiction pending the hearing on plaintiff's request for an order for the pre-judgment delivery of the property, and said order may be served with the summons.
Section 832. Penalty for Damage of Property Subject to Order of Delivery
Any person who willfully and knowingly damages property in which there exists a valid right to issuance of an order of delivery, or on which such order has been sought under the provisions of this Act, or who conceals it, with the intent to interfere with enforcement of the order, or who removes it from the jurisdiction of the Court with the intention of defeating enforcement of an order of delivery, or who willfully refuses to disclose its location to an officer charged with executing an order for its delivery, or, if such property is in his possession, willfully interferes with the officer charged with executing such writ, may be held in civil contempt of Court, and shall be guilty of an offense, and if convicted of such offense shall be subject to a fine of not more than five Hundred Dollars ($500.00) and imprisonment for a term of not more than six (6) months, or both; and, in addition to such civil and criminal penalties, shall be liable to the plaintiff for double the amount of damage done to the property together with a reasonable attorney's fee to be fixed by the Court, which damages and fee shall be deemed bases on tortious conduct and enforced accordingly.
Section 833. Undertaking in Replevin
The order shall not be issued until there has been executed by one or more sufficient sureties of the plaintiff, to be approved by the Court, an undertaking in not less than double the value of the property as stated in the complaint to the effect that the plaintiff shall duly prosecute the action, and pay all costs and damages which may be awarded against him, including attorney's fees and, if the property be delivered to him, that he will return the same to the defendant if a return be adjudged; provided, that where the Tribe or its agents or subdivisions is party plaintiff, an undertaking in replevin shall not be required of the plaintiff, but a writ shall issue upon complaint duly filed as provided by law. The undertaking shall be filed with the Clerk of the Court, and shall be subject to the provisions of Section 805 of this Act.
Section 834. Replevin Bond - Value
On application of either party which is made at the time of executing the replevin bond or the re-delivery bond, or at a later date, with notice to the adverse party, the Court may hold a hearing to determine the value of the property which the plaintiff seeks to replevy. If the value as determined by the Court is different from that stated in the complaint, the value as determined by the Court shall control for the purpose of Sections 833 and 838 of this Act.
Section 835 Order of Delivery
The order for the delivery of the property to the plaintiffs shall be addressed and delivered to the Chief of the Tribal Police. It shall state the names of the parties, the Court in which the action is brought, and command the chief of the Tribal Police to take the property, describing it, and deliver it to the plaintiff as prescribed in this Act, and to make return of the order on a day to be named therein.
Section 836. Order Returnable
The return day of the order of delivery, when issued at the commencement of the suit, shall be the same as that of the summons; when issued afterwards, it shall be ten days after it is issued.
Section 837. Execution of Order
The Chief of the Tribal Police shall execute the order by taking the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detainer of the property, or leave such copy at his usual place of residence, or at the place such property was seized.
Section 838. Redelivery on Bond
If, within three working days after service of the copy of the order, there is executed by one or more sufficient sureties of the defendant, to be approved by the Court or the Chief of the Tribal Police, an undertaking to the plaintiff, in not less than double the amount of the value of the property as stated in the affidavit of the plaintiff, to the effect that the defendant will deliver the property to the plaintiff, if such delivery be adjudged, and will pay all costs and damages that may be awarded against him, the Chief of the Tribal Police shall return the property to the defendant. If such undertaking be not given within three working days after service of the order, the Chief of the Tribal Police shall deliver the property to the plaintiff.
Section 839. Exception to Sureties
Any party for whose benefit an undertaking is made may except at any time to the sufficiency of the sureties on such undertaking. Such exception shall be made in writing and filed with the Clerk. Upon hearing, the Court shall make such order as is just to safeguard the rights of the parties.
Section 840. Proceedings on Failure to Prosecute Action
If the property has been delivered to the plaintiff, and judgment rendered against him, or his action be dismissed, or if he otherwise fail to prosecute his action to final judgment, the Court shall, on application of the defendant or his attorney, proceed to inquire into the right of property, and right of possession of the defendant to the property taken.
Section 841. Judgment - Damages - Attorney Fees
In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof in case a delivery cannot be had, and of damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, an damages for taking and withholding the same. The judgment rendered in favor of the prevailing party in such action may include a reasonable attorney fee to be set by the Court, to be taxed and collected as costs.
Section 842. Officer May Break Into Buildings
The Chief of the Tribal Police or other law enforcement officer, in the execution of the order of delivery issued by the Tribal Curt, may break open any building or enclosure in which the property claimed, or any part thereof, is concealed upon probable cause to believe that the property is concealed therein, but not until he has been refused entrance into said building or enclosure and the delivery of the property, after having demanded the same, or if not person having charge thereof is present.
Section 843. Compelling Delivery by Attachment
In an action to recover the possession of specific personal property, the Court may for good cause shown, before or after judgment, compel the delivery of the property to the officer or party entitled thereto by attachment, and may examine either party as to the possession or control of the property. Such authority shall only be exercised in aid of the foregoing provisions of this Subchapter.
Section 844. Improper Issue of Order of Delivery
Any order for the delivery of property issued under this Subchapter without the affidavit and undertaking required, shall be set aside and the plaintiff shall be liable in damages to the party injured.
Section 845. Joinder of Cause of Action for Debt - Stay of ,Judgment
In any action for replevin in the Tribal Court, it shall be permissible for the plaintiff to join with the claim in replevin a claim founded on debt claimed to be owing to the plaintiff if the debt shall be secured by a lien upon the property sought to be recovered in the claim in replevin. In such cases, the execution of the judgment for debt shall be stayed pending the sale of the property and the determination of the amount of debt remaining unpaid after the application of the proceeds of the sale thereto.
SUBCHAPTER C ATTACHMENT
851. Grounds for Attachment
The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon proof of any of the following grounds:
(a) When the defendant, or one of several defendants, is a foreign corporation, or a nonresident of the tribal jurisdiction (but no order of attachment shall be issued on this clause for any claim other than a debt or demand arising upon contract, judgment or decree, unless the claim arose wholly within the tribal jurisdiction), or
(b) When the defendant, or one of several defendants, has absconded with intention to defraud his creditors, or
(c) Has left the tribal jurisdiction to avoid the service of summons, or
(d) So conceals himself that a summons cannot be served upon him, or
(e) Is about to remove his property, or a part thereof, out of the jurisdiction of the Court with the intent to defraud his creditors, or
(f) Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors, or
(g) Has property or rights in action, which he conceals, or
(h) Has assigned, removed or disposed of, or is about to dispose of, his property, or a part thereof, with the intent to defraud, hinder or delay his creditors, or
(i) Fraudulently contracted the debt, or fraudulently incurred the liability or obligations for which the suit has been brought, or
(j) Where the damages for which the action is brought are for injuries arising from the commission of a criminal offense, or
(k) When the debtor has failed to pay the price or value of any article or thing delivered, which by contract he was bound to pay upon delivery, or
(1) When the action is brought by the Tribe, or its officers, agents, or political agencies or subdivisions for the purpose of collection of any Tribal tax, levy, charge, fee, assessment, rental, or debt arising in contract or by statute and owned to the Tribe.
Section 852. Attachment Affidavit
An order of attachment may be issued by the Court when:
(a) There is filed in the office of the court clerk a civil complaint stating a claim for relief and an application that the Court issue an order of attachment which states facts which show:
(1) The nature of the plaintiff's claim,
(2) That is just,
(3) The amount which the affiant believes the plaintiff ought to recover, and,
(4) The existence of some one of the grounds for an attachment enumerated in Section 851 of
(b) The application must be verified by the plaintiff, or, where his agent or attorney has personal knowledge of the facts, by said agent or attorney.
(c) The defendant has been served with a notice, issued by the Clerk, which shall notify the defendant that an order of attachment of property is requested and that he may object to the issuance of such an order by a written objection which is filed with the Court Clerk and mailed or delivered to the plaintiff s application shall be attached to and served with the notice, and the notice and application may be served with the summons in the action.
(d) If no written objection is filed within the five day period, no hearing is necessary and the clerk may issue the order of attachment. If a written objection is filed within the five day period, the Court shall, at the request of either party, set the matter for prompt hearing with notice to the adverse party. If the plaintiff proves the probable merit of his cause and the truth of the matters asserted in his application for an order of attachment, the Court may issue the order of attachment. Provided, however, before an order of attachment is issued by either the Curt or the Clerk, the Plaintiff has executed an undertaking 'pursuant to Section 853 of this Act. The Tribe and its agents shall not be required to execute an undertaking.
(e) If the Court finds that the defendant cannot be given notice as provided herein, although a reasonable effort was made to notify him, but at the hearing the plaintiff proves the probable merit of his claim and the truth of the matters asserted in his application, the Court may issue the order of attachment. The defendant may subsequently move to have the attachment vacated as provided in Section 891.19 of this Act.
Section 853. Attachment Bonds
The attachment bond for the benefit of the party whose property is attached shall be in such form and in such amount, not less than double the amount of the plaintiff s claim, as the Court shall direct, and shall guarantee payment of all damages, costs, and reasonable attorney fee's incurred as a result of a wrongful attachment. No bond shall be required of the Tribe.
Section 854. Order of Attachment
The order of attachment shall be directed and delivered to the Chief of the Tribal Police. It shall require him to attache the lands, tenements, goods, chattels, stocks, rights, credits, moneys and effects of the defendant within the tribal jurisdiction not exempt by law from being applied to the payment of the plaintiff s claim, or so much thereof as will satisfy the plaintiffs claim, to be stated in the order as in the affidavit, and the probable cost of the action not exceeding one hundred dollars ($100.00) .
Section 855. When Returnable
The return day of the order of attachment when issued at the commencement of the action, shall be the same as that of the summons, and otherwise within twenty days of the date of issuance.
Section 856. Order of Execution
Where there are several orders of attachment against the defendant, they shall be executed in the order in which they are received by the Chief of the Tribal Police.
Section 857. Execution of Attachment Order
The order of attachment shall be executed by the Chief of the Tribal Police without delay. He shall go to the place within the tribal jurisdiction where the defendant's property may be found, and declare that, by virtue of said order, he attaches said property at the suit of the plaintiff; and the officer shall make a true inventory and appraisement of all the property attache, which shall be signed by the officer and returned with the order, leaving a copy of said inventory with the person or in the place from which the property was seized.
Section 858. Service of Order
(a) When the property attached is real property, the officer shall leave a copy of the order with the occupant, or, if there be no occupant, then a copy of the order shall be posted in a conspicuous place on the real property. Where it is personal property, and he can get possession, he shall take such into his custody, and hold it subject to the order of the Court.
(b) When the property attached is real property, third parties shall not be affected until a copy of the attachment order and the legal description of the real property attached shall be filed and placed of record in the land tract book maintained by the Court Clerk.
Section 859. Redelivery on Bond
The Chief of the Tribal Police shall re-deliver the property to the person in whose possession it was found, upon the execution by such person, in the presence of the Chief of the Tribal Police, an undertaking to the plaintiff, with one or more sufficient sureties, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the Court in the action.
SUBCHAPTER D GARNISHMENT
RESERVED FOR FUTURE PROVISIONS RELATING TO GARNISHMENT.
SUBCHAPTER E PROVISIONS RELATING TO ATTACHMENT AND GARNISHMENT
RESERVED FOR FUTURE PROVISIONS RELATING TO BOTH ATTACHMENT AND GARNISHMENT
SUBCHAPTER F RECEIVERS
892.1. Appointment of Receiver
A receiver may be appointed by the Supreme Court, the District Court, or any judge of either:
(a) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to
subject any property of fund to his claim, or between partners or others jointly owning or interest in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.
(b) In an action by a mortgage for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgage property * is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt.
(c) After judgment, to carry the judgment into effect.
(d) After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or in proceeding in aid of execution, when an execution has been returned unsatisfied, or when the judgment debtor refuses to apply his property in satisfaction of the judgment.
(e) In the cases provided in this Act, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.
(f) In all other cases where receivers should be appointed to protect the property and rights of the parties thereto in dispute by the usages of the Court in equity.
Section 892.2. Person Ineligible
No party, or attorney, or person so interested in an action, shall be appointed receiver therein except by consent of all parties thereto.
Section 892.3. Oath and Bond
Before entering upon his duties, the receiver must be sworn to perform them faithfully, and with one or more sureties, approved by the Court, execute an undertaking to such person and in such sum as the Court shall direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the Court therein.
Section 892.4. Powers of Receiver
The receiver has, under the control of the Court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, to collect debts, to compound for and compromise the same, to make transfers, and generally to do such act respecting the property as the Courts may authorize.
Section 892.5 Investment of Funds
Funds in the hands of a receiver may be invested upon interest, by order of the Court; but no such order shall be made, except upon the consent of all the parties to the action, or except by order of the Court when the principal and interest earned thereon or guaranteed by the Federal Government and may be withdrawn within a reasonable time.
Section 892.6. Disposition of Property Litigated
(a) When it is admitted, by the pleadings or oral or written examination of a person, that he has in his possession or under his control any non-exempt money or other thing capable of delivery, which, is held by him as trustee for a party, or which belongs or is due to a party, the Court may order the same to be deposited in Court or delivered to such party, with or without security, subject to the further direction of the Court.
(b) Any person abiding by an order of the Court in such cases and paying or delivering the money or other property subject to said order into Court, shall not thereafter be liable to the party for whom he held as trustee, or to whom the money or property belonged or was due, in any civil action for the collection or return of the property or money delivered or paid into Court.
(c) Such order may be made by ordering the party to procure the deposit or payment into Court of the property, which order may be enforced by contempt, or the Court, upon proper application, may order the person holding said property to be served with summons and brought into the action as a special defendant for the sole purpose of determining the nature and amount of property in his possession subject to payment into Court under this Section, and ordering said person to pay or deliver such nonexempt property into Court. After such payment has been made, the person shall be dismissed from the action.
(d) In cases where judgment has been obtained against the party whose property or money is to be paid into Court, it is not necessary to formally appoint a receive for the money or property paid into Court under this Section, but the Court Clerk shall act as receiver as an aid to the enforcement of a judgment, and shall pay such money or deliver such property over to the person entitled thereto in conformity with the order of the Court.
Section 892.7 Punishment for Disobedience of Court
Whenever, in the exercise of its authority, the Court shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the Court, besides punishing the disobedience as for contempt, may make an order requiring the Chief of the Tribal Police to take the money, or thing, and deposit or deliver it, in conformity with the direction of the Court.
Section 892.8. Vacation of Appointment by Supreme Court
In all cases in the Supreme Court in which a receiver has been appointed, or refused, by any Justice of the Supreme Court, the party aggrieved may, within ten (10) days thereafter have the right to file a motion to vacate the order refusing or appointing such receiver, and hearing on such motion may be had before the Supreme Court, if the same to be in session, or before a quorum of the Justices of said Court in vacation, at such time and place as the said Court or the justices thereof may determine, and pending the final determination of the cause, if the order was one of the appointment of a receiver, the moving party shall the right to give bond with good and sufficient sureties, and in such amount as may be fixed by order of the Court or a justice thereof, conditioned for the due prosecution of such case, and the payment of all costs and damages that may accure to the Tribe, or any officer, or person by reason thereof, and the authority of any such receiver shall be suspended pending a final determination of such cause, and if such receiver shall have taken possession of any property in controversy in said action, the same shall be surrendered to the rightful owner thereof, upon the filing and approval of said bond.
SUBCHAPTER G EMINENT DOMAIN
893.1 Who May Exercise Authority
The Tribal Legislative Body, and any officer or Agency of the Tribe specifically authorized to do so by statue may obtain real or, personal property by eminent domain proceedings in conformance with the Tribal Constitution, the Indian Civil Rights Act, and this Subchapter.
Section 893.2 What Property May be Condemned by Eminent Domain
Except property made exempt from eminent domain by the Tribal Constitution and statutes, all property real and personal within the tribal jurisdiction, not owned by the Tribe and its agencies, shall be subject to eminent domain except title to property held in trust by the United States for an Indian or Tribe, or property held by an Indian or Tribe subject to a restriction against alienation imposed by the United States unless the United States has consented to the eminent domain of said property. Any lease or tribally granted assignment, or other non-trust right to use such trust or restricted property conveyed by tribal or federal law shall be subject to eminent domain in conformance with the Tribal Constitution and statutes and the Indian Civil Rights Act.
Section 893.3 Condemnation of Property
(a) Applicability of Other Rules. The Rules of Civil Procedure for the Courts of the Tribe govern the procedure for the condemnation or real and personal property under the power of eminent domain, except as otherwise provided in this subchapter.
(b) Joinder of Properties. The plaintiff may join in the same action one or more separate pieces of property, whether in the same or different ownership and whether or not sought for the same use.
(c) Amount to be Paid. The owner shall be entitled to receive just compensation for all property or rights to property taken from him in eminent domain proceedings.
Section 893.4. Complaint
(a) Caption. The complaint shall contain a caption as provided in Section 110(a), except that the plaintiff shall name as defendants the property, designated generally by kind, quantity, and location, and at least one of the owners of some part of or interest in the property.
(b) Contents. The complaint shall contain a short and plain statement of the authority for the taking, the use for which the property is to be taken, a description of the property sufficient for its identification, the interests to be acquired, and as to each separate piece of property a designation of the defendants who have been joined as owners thereof or of some interest therein. Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the compensation to be paid for a piece of property, the plaintiff shall add as defendants all persons having or claiming an interest in that property whose names can be ascertained by a reasonably diligent search of the records, considering the character and value of the property involved and the interest to be acquired, and also those whose names have otherwise been learned. All others may be made defendants under the designation "Unknown Owners." Process shall be served as provided in Section 893.5 of this Subchapter upon all defendants, whether named as defendants at the time of the commencement of the action or subsequently added, and a defendant may answer as provided in Section 893.6 of this Subchapter. The Court meanwhile may order such distribution of a deposit as the facts warrant.
(c) Filing. In addition to filing the complaint with the Court, the plaintiff shall furnish to the clerk at least one copy thereof for the use of the defendants and additional copies at the request of the clerk or of a defendant.
Section 893.5. Process in Eminent Domain
(a) Notice; Delivery. Upon the filing of the complaint the plaintiff shall forthwith deliver to the clerk joint or several notices directed to the defendants named or designated in the complaint. Additional notices directed to defendants subsequently added shall be so delivered. The delivery of the notice and its service have the same effect as the delivery and service of the summons.
(b) Same; Form. Each notice shall state the Court, the title of the action, the name of the defendant to whom it is directed, that the action is to condemn property, a description of his property sufficient for its identification, the interest to be taken, the authority for the taking, the uses for which the property is to be taken, that the defendant may serve upon the plaintiff's attorney an answer within 20 days after service of the notice, and that the failure so to serve an answer constitutes a consent to the taking and to the authority of the Court to proceed to hear the action and to fix the compensation. The notice shall conclude with the name of the plaintiffs attorney and an address where he may be served. The notice need contain a description of no other property than that to be taken from the defendants to whom it is directed.
(c) Service of Notice.
(1) Personal Service. Personal service of the notice shall be made in accordance with the rules for personal service of summons upon a defendant who resides within the United States or its territories or insular possessions and whose residence in known. A copy of the complaint may, but need not, be served.
(2) Service by Publication. Upon the filing of a certificate of the plaintiffs attorney stating that he believes a defendant cannot be personally served, because after diligent inquiry his place of residence cannot be ascertained by the plaintiff or, if ascertained, that it is beyond the territorial limits of personal service as provided in this Section, service of the notice shall be made on that defendant by located; or if there is no such newspaper, then in a newspaper having a general circulation where the property is located, once a week for not less than three successive weeks. Prior to the last publication, a copy of the notice shall also be mailed to a defendant who cannot be personally served as provided in this Section but whose place of residence is then known. Unknown owners may served by publication in a like manner by a notice addressed to "Unknown Owners."
(3) When Publication Service Complete. Service of publication is complete upon the date of the last publication. Proof of publication and mailing shall be made by certificate of the plaintiff's attorney, to which shall be attached a printed copy of the published notice with the name and dates of the newspaper marked thereon.
(d) Return; Amendment. Proof of service of the notice shall be made and amendment of the notice or proof of its service allowed in the manner provided for the return and amendment of the summons.
Section 893.6. Appearance or Answer
If a defendant has no objection or defense to the taking of his property, he may serve a notice of appearance designating the property in which he claims to be interested. Thereafter he shall receive notice of all proceedings affecting it. If a defendant has any objection or defense to the taking of his property, he shall serve his answer within 20 days after the service of notice upon him. The answer shall identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and state all his objections and defenses to the taking of his property. A defendant waives all defenses and objection not so presented, but at the trial of the issue of just compensation, whether or not he has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. No other pleading or motion asserting any additional defense or objection shall be allowed.
Section 893.7 Amendment of Pleadings
Without leave of Court, the plaintiff may amend the complaint at any time before the trial of the issue of compensation and as many times as desired, but no amendment shall be made which will result in a dismissal forbidden by Section 893.9 of this Subchapter. The plaintiff need not serve a copy of an amendment, but shall serve notice of the filing, as provided in Section 231 (b) of this Act, upon any party affected thereby who has appeared and, in the manner provided in Section 893.9 of this Subchapter, upon any party affected thereby who has not appeared. The plaintiff shall furnish to the clerk of the Court for the use of the defendants at least one copy of each amendment, and he shall furnish additional copies on the request of the clerk or of a defendant. Within the time allowed by Section 893.6 of this subchapter, a defendant may serve his answer to the amended pleading, in the form and manner and with the same effect as there provided.
Section 893.8 Substitution of Parties
If a defendant dies or becomes incompetent or transfers his interest after his , the Court may order substitution of the proper party upon motion and notice of hearing. If the motion and notice of hearing are to be served upon a person not already a party, service shall be made as provided in Section 893.5(c).
Section 893.9 Dismissal of Action
(a) As of Right. If no hearing has begun to determine the compensation to be paid for a piece of property and the plaintiff has not acquired the title or a lesser interest in the property or taken possession thereof, the plaintiff may dismiss the action as to that property, without an order of the Court, by filing a notice of dismissal setting forth a brief description of the property as to which the action is dismissed.
(b) By Stipulation. Before the entry of any judgment vesting the plaintiff with title or a lesser interest in or possession of property, the action may be dismissed or whole or in part, without an order of the Court, as to any property by filing a stipulation of dismissal by the plaintiff and the defendant affected thereby; and, if the parties so stipulate, the Court may vacate any judgment that has been entered.
(c) By Order of the Court. At any time before compensation for a piece of property has been determined and paid and after motion and hearing, the Court may dismiss the action as to that property, except that it shall not dismiss the acting as to any part of the property of which the plaintiff has taken possession or in which the plaintiff has taken title or a lesser interest, without awarding just compensation of the possession, title or lessor interest so taken, or, if the possession, title, or interest in such property is to be returned to the defendant upon dismissal by motion of the plaintiff, the Court may also award reasonable actual damages incurred, not to exceed One Thousand Dollars ($1,000.00) in excess of fair rental value of the premises during the period in which the plaintiff held possession or title against the plaintiff notwithstanding the doctrine of sovereign immunity. The Court at any time may drop a defendant unnecessarily or improperly joined.
(d) Effect. Except as otherwise provided in the notice, or stipulation of dismissal, or order of the Court, any dismissal is without prejudice.
Section 893.10. Deposit and Its Distribution
The plaintiff shall deposit with the Court any money required by law as a condition to the exercise of the power of eminent domain; and, although not so required, may make a deposit when permitted by statute. In such cases the Court and attorneys shall expedite the proceedings for the distribution of the money so deposited and for the ascertainment and payment of just compensation. If the compensation finally awarded to any defendant exceeds the amount which has been paid to him on distribution of the deposit, the Court shall enter judgment against the plaintiff and in favor of that defendant for the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to him, the Court shall enter judgment against him and in favor of the plaintiff for the overpayment.
Section 893.11 Costs
Costs shall normally be paid by the Plaintiff in condemnation actions unless the Court, in its discretion determines that a defendant should pay their own costs, which may include a reasonable portion of plaintiff's costs because of inequitable conduct or other statutory reason.
Section 901. Judgments - Costs
(a) Definition; Form. "Judgment" as used in this Act includes a final determination of the rights of the parties in an action, including those determined by a decree and any order from which an appeal lies. A judgment shall not contain a recital of pleadings, the report of a master, or the record of prior proceedings.
(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or when multiple parties are involved, the Court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims, or rights and liabilities of fewer than all of the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at anytime before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
(c) Demand for Judgment; Default. A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief is his pleadings.
(d) Costs. Except when express provision therefor is made either in a statute of the Tribe or in this Act, costs shall be allowed as of course to the prevailing party unless the Court otherwise directs; but costs, including attorney fees and statutory authorization for collection of damages or requirement for bonds or undertakings, against the Tribe, its officers, and agencies shall be imposed only to the extent specifically permitted by tribal law. A general statement in this Act that such are payable by a party or by the plaintiff or defendant is not authority to impose such costs, damages, or requirements upon the Tribe, its officers, and agencies. Costs may be taxed by the clerk on one day's notice. On motion served within 10 days thereafter, the action of the clerk may be reviewed by the Court
(e) Applied to Probate Proceedings. A judgment shall be considered a lawful debt in all proceedings held by the Department of the Interior or by the Tribal District Court in the distribution of decedent's estates.
Section 902. Default
(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by this Act and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.
(b) Judgment. Judgment by default may be entered as follows:
(1) By the clerk. When the plaintiffs claims against a defendant is for a sum certain or for a sum which can, by computation, be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if he has been defaulted for failure to appear and if he is not an infant or incompetent person.
(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the Court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the Court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the Court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the Tribe.
(c) Setting Aside Default. For good cause shown the Court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Section 909(b).
(d) Plaintiff, Counterclaimants, Cross-Claimants. The provisions of this Section apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Section 901(c).
(e) Judgment Against the Tribe. No judgment by default may be entered against the Tribe, its officers, or agencies unless sixty days written notice has been served upon the Chief Executive Officer and the Tribal Legislative Authority. If during such sixty day period the Tribe is without counsel, and the Tribe has submitted to the Bureau of Indian Affairs an attorney contract for approval, no default may be entered until thirty days after approval of the contract. During such period, the Tribe, its agencies, or officers shall be allowed to cure any default. No judgment by default shall be entered against the Tribe, its agencies, or officers in any case unless the claimant establishes his claim or right to relief, including this authority to bring the suit, and his damages by evidence satisfactory to the Court.
Section 903. Offer of Judgment
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact than an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability, or both, remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.
Section 904. Judgment for Specific Acts - Vesting Title
If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the Court may direct the act to be done at the cost of the disobedient party by some other person appointed by the Court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ at attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The Court may also in proper cases adjudge the party in contempt. If real or personal property is within the tribal jurisdiction, and the interest in said property at issue in the action is not held in trust by the United States as Indian lands, the Court in lieu of directing a conveyance of that interest may enter a judgment divesting the interest from any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application.
Section 905. Summary Judgment
(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any party thereof.
(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be entered on the issue of liability alone although there is a genuine issue as to the amount of damages.
(d) Case Not Fully Adjudicated on Motion. If on motion under this Section judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the Court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The Court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this Section, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this Section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the Court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(g) Affidavits Made in Bad Faith. Should it appeal- to the satisfaction of the Court at any time that any of the affidavits presented pursuant to this Section are presented in bad faith or solely for the purpose of delay, the Court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
Section 906. Declaratory Judgments
The procedure for obtaining a declaratory judgment in actions arising in equity, or through contract, or pursuant to any specific Tribal law authorizing a declaratory judgment, shall be in accordance with this Act, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Sections 703 and 704. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The Court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.
Section 907. Entry of Judgment
(a) Subject to the provisions of Section 901(b), the Court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it:
(1) upon a general verdict of a jury, or upon a decision by the Court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the Court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the Court,
(2) upon a decision by the Court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories.
(b) Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered in the civil docket book. Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the Court.
Section 908. New Trials - Amendments of Judgments
(a) Grounds. A new trial is a re-examination in the same Court, of an issue of fact, or of law, or both and may be granted to all or any of the parties and on all or part of the issues for any of the following reasons:
(1) Irregularity in the proceedings of the Court, jury, referee, or prevailing party, or any order of the Court or referee, or abuse of discretion, by which the party was prevented from having a fair trial, or
(2 ) Misconduct of the jury or prevailing party, or
(3) Accident or surprise, which ordinary prudence could not have guarded against, or
(4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice, or
(5) Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of
(6) That the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law, or
(7) Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, or
(8) Error of law occurring at the trial, and objected to by the party making the application, or
(9) When, without fault of the complaining party, it becomes impossible to make a record sufficient for appeal.
On a motion for a new trial in an action tried without a jury, the Court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions, and direct the entry of a new judgment.
for Motion. A motion for a new trial shall be served not later than
10 days after the entry of the judgment, except that a motion based
upon newly discovered evidence shall be made within one year from
the date of the judgment.
(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the Court for good cause shown or by the parties by written stipulation. The Court may permit reply affidavits.
(d) On Initiative of Court. Not later than 10 days after entry of judgment the Court of its own initiative may order a new trial for any reasons for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the Court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the Court shall specify in the order the grounds therefor.
(e) Motion to Alter or Amend an Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.
Section 909. Relief From Judgment or Order
Mistakes. Clerical mistakes in judgments, orders or other parts of
the record and errors therein arising from oversight or omission may
be corrected by the Court at any time of its own initiative or on
the motion of any party and after such notice, if any, as the Court
orders. During the pendency of an appeal, such mistakes may be so
corrected before the appeal is docketed in the Supreme Court, and
thereafter while the appeal is pending may be so corrected with leave
of the Supreme Court.
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the Court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Section 908(b); (3) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (S) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time, and for reasons (1) , ( 2 ) , and ( 3 ) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This Section does not limit the power of a Court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified of the proceedings, or to set aside a judgment for fraud upon the Court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in this Act or by an independent action.
Section 910. Harmless Error
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the Court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the Court inconsistent with substantial justice. The Court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Section 911. Stay of Proceedings to Enforce a Judgment
Stay; Exceptions-Injunctions, Receiverships, and Patent Accountings.
Except as stated in this Act, no execution shall issue upon a judgment
nor shall proceedings be taken for its enforcement until the expiration
of 10 days after its entry. Unless otherwise ordered by the Court,
an interlocutory or final judgment in an action for an injunction
or in a receivership action, or a judgment or order directing an accounting,
shall not be stayed during the period after its entry and until an
appeal is taken or during the pendency of an appeal. The provisions
of subsection (c) of this Section govern the suspending, modifying,
restoring, or granting of an injunction during the pendency of an
(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the Court may stay the execution of or any proceedings to enforce a judgment pending the deposition of a motion for a new trial or to alter or amend a judgment made pursuant to Section 908, or of a motion or relief from a judgment or order made pursuant to Section 909, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Section 757, or of a motion for amendment to the findings or for additional findings made pursuant to Section 751(b).
(c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the Court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such . terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
(d) Stay Upon Appeal. When an appeal is taken the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subsection (a) of this Section. The bond may be given at or after the time of filing the notice of appeal or of procuring the order allowing the appeal, as the case may be. The stay is effective when the supersedeas bond is approved by the Court.
(e) Stay in Favor of the Tribe or Agency Thereof. When an appeal is taken by the Tribe or an officer or agency thereof or by direction of any department of the Government of the Tribe, the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant.
(f) Power of the Supreme Court Not Limited. The provision in this Section do not limit any power of the Supreme Court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.
(g) Stay of Judgment as to Multiple Claims or Multiple Parties. When the Court has ordered a final judgment under the conditions stated in Section 901(b), the Court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
Section 912. Disability of a Judge
If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the Court under this Act after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the Court in which the action was tried may perform those duties; but if such other judge-is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.
Section 913. Reserved
Section 914. Judgment Against Infant
It shall not be necessary to reserve in a judgment or order the right of a minor to show cause against it after his attaining full age; but in any case in which such reservation would be proper, the minor, within two (2) years after arriving at the age of eighteen (18) years, may show cause against such order or judgment.
Section 915. Judgments as Liens
Judgments of the Tribal Court and the Courts of the United States shall be liens on real estate of the judgment debtor within the tribal jurisdiction from and after the time a certified copy of such judgment has been filed in the Court Clerk's land tract records book. A five dollar ( $5.00) fee shall be collected for each requested filing in the land tract records book. No judgment whether rendered by the Tribal Court or a Court of the United States shall be a lien on the real estate of a judgment debtor until it has been filed in this manner. Execution shall be issued only by the Tribal Court.
Section 916. Discharge of Money Judgment Liens
In the event of an appeal to the Tribal Supreme Court from a money judgment, the lien of such judgment, and any lien by virtue of an attachment issued and levied in the action in which such judgment was rendered, shall cease upon the judgment debtor or debtor's depositing, with the Court Clerk of the Tribal District Court, cash sufficient to cover the whole amount of the judgment, including interest, costs and any attorney fees, together with costs and interest on the appeal, accompanied by a written statement, executed by the judgment debtor or debtors, that such deposit is made to discharge the lien of such judgment and any lien by virtue of an attachment issued and levied in the action, a s provided for herein. It shall be the duty of the Court Clerk, upon receipt of such a cash deposit and written statement, immediately to enter the same and the amount of case received upon the civil appearance docket in the action, upon the judgment docket opposite the entry of such judgment, and upon the land tract records book if the judgment has been filed therein. It shall further be the duty of the Court Clerk to deposit the case so received in any action in a separate interest bearing official depository account and to hold the same pending final determination of the action, and, upon final determination of the action, to pay, or apply the same upon any judgment that might be rendered against the depositor or depositors, and to refund any balance in excess of any such judgment to the depositor or depositors, or, in the event the action be finally determined in favor of the depositor or depositors, to refund the whole amount thereof to the depositor or depositors.
Section 917. Additional Case Deposits
A judgment creditor may, at any time, upon reasonable notice to the judgment debtor or debtors, move the Court for the deposit of additional cash; and if it appears that the case which has been deposited is insufficient to cover the whole amount of the judgment, including interest, costs and any attorney fees, together with costs and interest on the appeal, the Court shall order the deposit of additional cash. If the additional cash is not deposited within a reasonable time, which time shall be set by the Court, the judgment shall be revived and attachment may be issued thereon.
Section 918. Reversal By Supreme Court
In the event of a reversal of the judgment by the Supreme Court, no money deposited to discharge the lien of such judgment shall be refunded by the Court Clerk until final disposition of the action.
Section 919. Interest on Money Judgments
All money judgments of the Tribal District Court shall bear interest at the rate of ten percent (10%) simple interest per annum, except authorized judgments against the Tribe, its political subdivisions, and agents in their official capacity which judgments shall not bear interest unless such is specifically provided for, provided that when a rate of interest is specified in a contract, the rate therein shall apply to the judgment debt and be specified in the judgment if the rate does not exceed the lesser of any limitation imposed by Tribal law, or the law of the jurisdiction in which the contract was made, upon the amount of interest which may be charged.
Section 920. Exempt Property
The following property shall be exempt, except as to enforcement of contractual liens or mortgages, from garnishment, attachment, execution and sale, and other process for the payment of principal and interest, costs, and attorney fees upon any judgment of the Tribal District Court:
(3/4) of the net wages earned per week by the person or an amount
equivalent to forty (40) times the federal minimum hourly wages per
week, whichever is greater, except as may be specifically provided
by law for child support payments.
(b) One automobile of fair market value not exceeding One Thousand Dollars ( $1,000.00).
(c) Tools, equipment, utensils, or books necessary to the conduct of the persons business but not including stock or inventory.
(d) Actual trust or restricted title to any lands held in trust by the United States, or subject to restrictions against alienation imposed by the United States but not
including leasehold and other possessory interests in such property.
(e) Any dwelling used as the actual residence of the judgment debtor, including up to five acres of land upon which such dwelling is located whether such dwelling is own or leased by the judgment debtor.
(f) Household goods, furniture, wearing apparel, personal effects, but not including televisions, radios, phonographs, tape recorders, home computers, (not otherwise exempt) more than two (2) firearms, works of art, and other recreational or luxury items.
(g) One horse, one bridle, and one saddle.
(h) All implements of husbandry used upon the homestead, not more than four cows with their immature offspring, two hogs with their immature offspring, ten chickens, and feed suitable and sufficient to maintain said livestock and fowls for a period of one year.
(i) All ceremonial or religious items.
Section 920.1. Payment of Judgments From Individual Indian Moneys
Whenever the Tribal District court shall have ordered payment of money damages to an injured party and the debtor refuses or neglects to make such payment within the time set for payment by the Court, or when an execution is returned showing no property found, and when the debtor has sufficient funds to his credit at any Bureau of Indian Affairs Agency Office to pay all or part of such judgment, the Clerk of the Tribal District Court, upon request of the judgment creditor, shall certify the record to the superintendent of the agency, who shall certify to the Secretary of the Interior the record of the case and the amount of the available funds. If the Secretary shall so direct, the disbursing agent shall pay over to the judgment creditor the amount of the judgment, or such lessor amount as may be specified by the Secretary from the account of the judgment debtor.
SUBCHAPTER A FOREIGN JUDGMENTS
In this act "foreign judgment" means any judgment, decree, or order of a Court of the United States, any Indian Tribe, or of any other Court which is entitled to comity or full faith and credit in the Tribal Court.
Section 922. Filing and Status of Foreign Judgments
A copy of any foreign judgment authenticated in accordance with the applicable act of Congress or of the statutes of the Tribe may be filed in the office of the Court Clerk. The clerk shall treat the foreign judgment in the same manner as a judgment of the Tribal District Court. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of the Tribal District Court and may be enforced or satisfied in like manner. Provided, however, that no such filed foreign judgment shall be a lien on real estate of the judgment debtor until a certified copy of the judgment so filed is also filed in the office of the Court Clerk as provided by law in the land track record book.
Section 923. Grounds for Non-Recognition
(a) A foreign judgment is not conclusive if
(b) A foreign judgment need not be recognized if
(1) The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
(2) The foreign court did not have personal jurisdiction over the defendant; or
(3) The foreign court did not have jurisdiction over the subject matter.
(1) The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend;
(2) The judgment was obtained by fraud;
(3) The cause of action on which the judgment is based is repugnant to the public policy of the Tribe;
(4) The judgment conflicts with another final and conclusive judgment;
(5) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise then by proceedings in that court; or
(6) In the case of jurisdiction based only on personal service, the foreign court was seriously inconvenient forum for the trial of action.
Section 924. Notice of Filing
(a) At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the clerk of the Court an affidavit setting forth the name and last known post office address of the judgment debtor, and of the judgment creditor.
(b) Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post-office address of the judgment creditor and the judgment creditor's lawyer, if any. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
(c) No execution or other process for enforcement of a foreign judgment filed hereunder shall issue until twenty (20) days after the date the judgment is filed.
Section 925 Stay of Execution of Foreign Judgment
the judgment debtor shows the Tribal District Court that an appeal
from the foreign judgment is pending or will be taken, or that a stay
of execution has been granted, the Court shall stay enforcement of
the foreign judgment until the appeal is concluded, or until the time
for appeal expires, or until the stay of execution expires or is vacated,
upon proof that the judgment debtor has furnished the security for
the satisfaction of the judgment required by the law of the jurisdiction
in which it was rendered.
(b) If the judgment debtor shows the Tribal District Court any ground upon which enforcement of a judgment of the Tribal Court would be stayed, the Court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in the Tribal jurisdiction.
Section 926. Fees
Any person filing a foreign judgment shall pay to the Court Clerk those fees now and hereafter prescribed by the statute or by authorized Court rule for the filing of an action in the Court. Fees for docketing, transcription, or other enforcement proceedings shall be the same as provided for judgments of the Tribal District Court.
Section 927. Optional Procedure
The right of a judgment creditor to bring an action to enforce his judgment instead of proceedings under this subchapter remains unimpaired.
SUBCHAPTER B EXECUTION
931. Executions - Defined
Executions shall be deemed process of the Court, and shall be issued by the clerk, and directed to the Chief of the Tribal Police.
Section 93 2. Kinds of Executions
Executions are of three kinds:
the property of the judgment debtor.
(b) For the delivery of possession of real or personal property, with damages for withholding the same, and costs.
(c) Executions in special cases.
Section 933. Property Subject to Levy
Lands, tenements, goods and chattels, not exempt by law shall be subject to the payment of debts, and shall be liable to be taken on execution and sold, as hereinafter provided.
Section 934. Property Bound After Seizure
All real estate not bound by the lien of the judgment, as well as goods and chattels of the debtor, shall be bound from the time they shall be seized in execution.
Section 935. Execution Must Be Issued Within Five Years
If execution is not issued and filed as provided by this subchapter within five (5) years after the date of any judgment that now is or may hereafter be rendered, in the Tribal Court or if five (5) years have intervened between the date that the last execution on such judgment was filed and the date that writ of execution was filed such judgment shall become unenforceable and of no effect, and shall cease to operate as a lien on the real estate of the judgment debtor. Provided, that this section shall not apply to judgments in favor of the Tribe its subdivisions or agents.
Section 936. Priority Among Property
The writ of execution against the property of the judgment debtor, issuing from the Tribal Court shall command the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same non-trust interest in lands and tenements of the debtor; and the amount of the debt, damages and costs, for which the judgment is entered, shall be endorsed on the execution.
Section 937. Priority Among Executions
When two or more writs of execution against the same debtor shall be sued out and when two or more writs of execution against the same debtor shall be delivered to the officer prior to the date of sale or this property, no preference shall be given to either of such writs; but if a sufficient sum of money be not made to satisfy all such executions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands, provided that nothing herein contained shall be so construed as to affect any preferable lien which one or more of the judgments, on which execution issued, may have on the property of the judgment debtor.
Section 938. Levy By Priority
The officer to whom a writ of execution is delivered, shall proceed immediately to levy the same upon the goods and chattels of the debtor; but if no goods and chattels can be found, the officer shall endorse on the writ of execution, "no goods," and forthwith levy the writ of execution upon any interests in the lands and tenements of the debtor, which may be liable to satisfy the judgment; and if any of the interests in such lands and tenements of the debtor which may be liable shall be encumbered by mortgage or any other lien or liens, such lands and tenements may be levied upon and appraised and sold, subject to such lien or liens, which shall be stated in the appraisement.
Section 939. Who Makes Levy
It shall be unlawful for anyone to levy an attachment or execution within the Tribal jurisdiction who is not a bounded Tribal or Federal Police officer.
Section 940: When Levy Void
Any attachment or execution issued to, or levied by anyone Tribal or Federal Police officer shall be void and of no effect and the Court Clerk or other person issuing same, or officer or other person levying same, as the case may be, together with their bondsmen shall be liable for any damage caused thereby.
Section 941. Penalty for Unlawful Levy
Anyone violating the provisions of Section 939 of this Act shall be punished by a fine not to exceed one hundred dollars ($100.00) or confinement in the Tribal jail not to exceed thirty (30) days or both.
Section 942. Levy on Property Claimed By Third Person
If the officer, by virtue of an execution issued from the Tribal Court, shall levy the same on any goods and chattels claimed by any person other than the defendant, or be requested by the plaintiff to levy on any such goods and chattels, the officer may require the plaintiff to give him an undertaking, with good and sufficient securities to pay all costs and damages that he may sustain by reason of the detention or sale of such property; and until such undertaking shall be given, the officer may refuse to proceed as against such property.
Section 943. Redelivery to Defendant
In all cases where the Tribal Police Chief or other officer shall, by virtue of an execution, levy upon any goods and chattels which shall remain upon his hands unsold, for want of bidders, for the want of time to advertise and sell, or any other reasonable cause, the officer may, of his own security, take of the defendant an undertaking, with security, in such sum as he may deem sufficient, to the effect that the said property shall be delivered to the officer holding an execution for the sale of the same, at the time and place appointed by said officer, either by notice, given in writing, to said defendant in execution, or by advertisement published in a legal newspaper, naming therein the day and place of sale. If the defendant shall fail to deliver the goods and chattels at the time and place mentioned in the notice to him, given, or to pay to the officer holding the execution the full value of said goods and chattels, or the amount of said debt and costs, the undertaking, given as aforesaid, may be proceeded on as in other cases.
Section 944. Notice of Sale of Chattels
The officer who levies upon goods and chattels, but virtue of an execution issued by the Tribal Court, before he proceeds to sell the same shall cause public notice to be given of the time and place of sale, for at least ten days before the day of sale. The notice shall be given by advertisement, published in some newspaper printed, or, in case no legal newspaper be published, by setting up advertisements in five public places in the reservation. Two advertisements shall be put up in the township where the sale is to be held; and where goods and chattels levied upon cannot be sold for want of bidders, the officer making such return shall annex to the execution a true and perfect inventory of such goods and chattels, and the plaintiff in such execution may thereupon sue at another writ of execution, directing the sale of the property levied upon as aforesaid; but such goods and chattels shall not be sold, unless the time and place of sale be advertised, as herein before provided.
Section 945. Further Levy When Property Taken Insufficient
When any writ shall issue, directing the sale of property previously taken in execution, the officer issuing said writ shall, at the request of the person entitled to the benefit thereof, his agent or attorney, add thereto a command to the officer to whom such writ shall be directed, that if the property remaining in his hands not sold shall, in this opinion, be insufficient to satisfy the judgment, he shall levy 'the same upon lands and tenements, goods and chattels, or either, as the law shall permit, being the property of the judgment debtor, sufficient to satisfy the debt.
Section 946. Filing and Indexing of Execution
a general execution is issued and placed in the custody of the Tribal
Police Chief for levy, a certified copy of such execution shall be
filed in the office of the Court Clerk and shall be indexed the same
(b) If a general or special execution is levied upon an interest lands and tenements, the Tribal Police Chief shall endorse on the face of the writ the legal description and shall have three disinterested persons who have taken an oath to impartially appraise the property so levied on, upon actual view; and such disinterested persons shall return to the officer their signed estimate of the real value of said property.
(c) To extend a judgment lien beyond the initial or any subsequent statutory period, prior to the expiration of such period, a certified copy of a general execution thereon shall be filed and indexed in the same manner as judgments in the office of the Court.
Section 947. Waiver of Appraisement
It is against the public policy of the Tribe to allow enforcement of execution upon realty without appraisal, and the words If appraisement waived" or other words of similar import, shall be inserted in any deed, mortgages, bonds, notes, bill or written contract. They shall be of no effect whatsoever and an appraisal shall be ordered notwithstanding any contract to the contract.
Section 948. Return of Appraisement
The officer receiving such return of appraisement pursuant to Section 946(b) of this Act shall forthwith deposit a copy thereof with the Clerk of the Court and advertise and sell such property, agreeably to the provision of this Act.
Section 949. When Lien Restricted
If, upon such return, as aforesaid, it appear, by the inquisition, that two thirds of the appraised value of said non-trust interest in lands and tenements, so levied upon is sufficient to satisfy the execution, with costs, the judgment on which such execution issued shall not operate as a lien on the residue of the debtor's estate, to the prejudice of any other judgment creditor; but no such property shall be sold for less than two-thirds ( 2/3 ) of the value returned in the inquest; and nothing in this section contained shall, in any wise, extend to affect the sale of lands by the Tribe but all lands, the corporation or associations indebted to the Tribe for any debt or taxes, or in any other manner, shall be sold without valuation for the discharge of such debt or taxes, agreeably to any laws in such cases made and provided.
Section 950. Notice of Sale of Realty
Any non-trust interest in lands and tenements taken on execution shall not be sold until the officer causes public notice of the time and place of sale to be given by publication for two (2) successive weeks in a legal newspaper and by putting up an advertisement upon the Court house door or other public bulletin board within a common area of the Court house and in five ( 5 ) other public places in the reservation, two ( 2 ) of which shall be in the township where such lands and tenements lie. Such sale shall not be held less than thirty (30) days after the date of the first publication of the notice herein required.
All sales made without such advertisement shall be set aside on motion by the Court to which the execution is returnable.
Section 951. Confirmation of Sale
If the Court, upon the return of any writ of execution, for the satisfaction of which any lands or tenements have been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity with the provisions of this Act, the Court shall direct the clerk to make an entry on the journal that the Court is satisfied of the legality of such sale, and an order that the officer make to the purchaser a deed for such interest in lands and tenements; and the officer, on making such sale, shall deposit the purchase money with the clerk of the Court where same shall remain until the Court shall have examined his proceedings as aforesaid, when said clerk of the Court shall pay the same of the person entitled thereto, agreeably to the order of the Court.
Section 952. Police Chief's Deed
The Chief of the Tribal Police or other officer who, upon such writ or writs of execution, shall sell the said lands and tenements, or any part thereof, shall make to the purchaser as good and sufficient deed of conveyance of the land sold, as the person or persons against whom such writ or writs of execution were issued could have made of the same, at or any time after they became liable to the judgment. The deed shall be sufficient evidence of the legality of such sale, and the proceedings therein, until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate in the premises therein mentioned as was vested in the party at, or after, the time when such lands and tenements became liable to the satisfaction of the judgment; and such deed of conveyance, to be made by the Chief of the Tribal Police or other officer, shall recite the execution or executions, or the substance thereof, and the names of the parties, the amount and date of rendition of each judgment, but virtue whereof the said lands and tenements were sold as aforesaid, and shall be executed, acknowledged and recorded as is or may be provided by law, to perfect the conveyance of such interests in real estate in other cases.
Section 953. Advance of Printer's Fees
The officer who levies upon goods and chattels, or lands and tenements, or who is charged with the duty of selling the same by virtue of any writ of execution, may refuse to publish a notice of the sale thereof by advertisement in a newspaper until the party for whose benefit such execution issued, his agent or attorney, shall advance to such office so much money as will be sufficient to discharge the fees of the printer for publishing such notice.
Section 954. Demand for Printing Fees
Before any officer shall be excused from giving the notification mentioned in Section 952, he shall demand of the party for whose benefit the execution was issued, his agent or attorney, the fees in said section specified.
Section 955. Place of Sale
All sales of interests in lands or tenements under execution shall be held at the Tribal Court house unless some other place within the reservation is designated by the judge having jurisdiction in the case. No Tribal Policeman or other officer making the sale of property, either personal or real, nor any appraiser of such property, shall either directly or indirectly, purchase the same; and every purchase so made shall be considered fraudulent-and void.
Section 956. Other Executions of Realty Not Sold
If lands or tenements, levied on a aforesaid, are not sold upon one execution, other executions may be issued to sell the property so levied upon.
Section 957. Levy on Realty Under Several Execution
In all cases where two or more executions shall be put into the hands of the Tribal Police or other officer, and it shall be necessary to levy on real estate to satisfy the same, and either of the judgment creditors, in whose favor one or more of said executions are issued, shall require the Tribal Policy or other officer to levy said executions, or so many thereof as may be required, on separate parcels of the real property of the judgment debtor or debtors, it shall be the duty of the officer, when required, to levy the same on separate parcels of the real property of the judgment debtor or debtors, when, in the opinion of the appraisers, the property of said debtors will not be sufficient, at two-thirds of its appraised value, to satisfy all the executions chargeable thereon, such part of the same shall be levied on, to satisfy each execution, as will bear the same proportion in value to the whole, as the amount due to the execution bears to the amount of all the executions chargeable thereon, as near as may be according to the appraised value of each separate parcel of said real property.
Section 958. Deed by Successor of Officer Making Sale
If the term of service of the Tribal Police Chief or other officer who has made, or shall hereafter make sale of any non-trust interest in lands and tenements, shall expire, or if the Tribal Police Chief or other officer shall be absent, or be rendered unable by death or otherwise, to make a deed of conveyance of the same, any succeeding Tribal Police Chief or other officer or the law enforcement officer acting on his behalf, on receiving a certificate from the Court from which the execution issued for the sale of said non-trust interest in lands and tenements, signed by the clerk, by order of said Court, setting forth that sufficient proof has been made to the Court that said sale was fairly and legally made, and on tender of the purchase money, or if the same or any part thereof be paid then on proof of such payment and tender of the balance, if any, may execute to the said purchaser or purchasers, or his or their legal representatives, a deed of conveyance of said lands and tenements so sold. Such deed shall be as good and valid in law and have the same effect as if the Tribal Police Chief or other officer who made the sale had executed the same.
Section 959. Payment to Defendant of Overplus After Sale
If, on any sale made aforesaid, there shall be in the hands of the Tribal Police Chief or other officer more money than is sufficient to satisfy the writ or writs of execution, with interest and costs, the Tribal Police Chief or other officer shall, on demand, pay the balance to the defendant in execution.
Section 960. Reversal of Judgment After Sale of Interest in Land
If any judgment or judgments, in satisfaction of which any on trust interests lands or tenements are sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of the purchaser or purchasers; but in such cases, restitution shall be made, by the judgment creditors, of the money, for which such lands or tenements were sold, with lawful interest from the day of sale.
Section 961. Execution on Judgment in Favor of Tribe
In all civil actions wherein the Tribe as plaintiff, has heretofore or may hereafter recover judgment, and where in any such action an execution has or may be issued, the Tribe through the officer or officers on whose relation the action was brought, may bid at such execution sale, and buy said property offered for sale, for any amount not to exceed the amount of the judgment in such action and such additional amount as may be approved by the Tribal Legislative Body said amount to be credited upon the judgment.
And further, when such property offered for the sale at execution is brought by the Tribe, said property may be sold for the Tribe by the officer of officers upon whose relation the Tribe was party plaintiff, and further provided that at such execution sales the attorney or attorneys representing the Tribe may bid for the Tribe, not to exceed the amount of the judgment and such additional amount as may be approved by the Tribal Legislative Body provided however, that said bid is not more than one hundred dollars ($100.00) higher than the next best bid, and if there be no other bidder, then not to exceed one hundred dollars ($100.00) .
And further provided that in disposing of such property so acquired, if it be personal property the officer or successor of the officer upon whose relation the Tribe was plaintiff may sell said property be executing a good and sufficient Bill of Sale, to be attested by the Secretary of the Tribe. And in disposing of any non-trust interest in real property so acquired or any interest or equity therein, the officer or successor in office on whose relation the Tribe was party plaintiff may execute in the name of the Tribe by said officer a good and sufficient deed, to be attested by the Secretary of the Tribe. Provided, however, that in no event shall any sale be valid under this Act for any amount less than the amount for which said property was originally bid in by the Tribe. The duns obtained upon the sale of any such property shall be placed in the fund for which the judgment was obtained, or if none, then in the Tribal land purchases fund for the purchase of other real property to the Tribe.
Section 962. Reappraisal Where Realty Twice Advertised for Sale
In all cases where a non-trust interest in real estate has been or may hereafter be taken on execution and appraised and twice advertised and offered for sale, and shall remain unsold for the want of bidders it shall be the duty of the Court, on motion of the plaintiff, to set aside such appraisement and order a new one to be made, or to set aside such levy and appraisement and aware a new execution to issue, as the case may require.
Section 963. Return of Execution
The Chief of the Tribal Police or other officer to whom any writ of execution shall be directed, shall return such writ to the Court to which the same is returnable, within ninety days from the date thereof.
Section 964. Principal and Surety
In all cases where judgment is rendered in the Tribal Court upon any instrument of writing in which two or more persons are jointly and severally bound, and it shall be made to appear to the Court, by parole or other testimony, that one or more of said persons so bound, signed the same as surety or bail, for his or their codefendant, it shall be the duty of the clerk of said Court, in recording the judgment thereon to certify which of the defendants is principal debtor, and which are sureties or bail. And the clerk of the Court aforesaid shall issue execution on such judgment, commanding the Chief of the Tribal Police or other officer to cause the money to be made of the goods and chattels, lands and tenements, of the principal debtor; but for want of sufficient property of the principal debtor to make the same that he cause the same to be made of the goods and chattels, lands and tenements, of the surety or bail. In all cases, the property, both personal and real, of the principal debtor, within the jurisdiction of the court, shall be exhausted before any of the property of the surety or bail shall be taken in execution.
Section 965. Hearing on Assets
In addition to other discovery procedures, the Court, at any time after judgment upon motion of the judgment creditor, may order the judgment debtor to appear and answer concerning his property subject to execution to satisfy the judgment. The order to appear shall be served on the judgment debtor as a summons is served and may contain an order prohibiting the conveyance of any nonexempt property, and may order the production of any books, records, documents, or papers relating to the judgment creditors property. Such order may be enforced by contempt proceedings.
SUBCHAPTER C CONTRIBUTION
971. Joint Debtors or Sureties
When property, liable to an execution against several persons, is sold thereon, and more than a due proportion of the judgment is laid upon the property of one of them, or one of them pays, without a sale, more than his proportion, he may regardless of the nature of the demand upon which the judgment was rendered, compel contribution from the others; and when a judgment is against several, and is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal; in such case, the person so paying or contributing, is entitled to the benefit of the judgment, to enforce contribution or repayment, if within ten days after his payment he file with the Clerk of Court notice of his payment and claim to contribution or repayment. Upon a filing of such notice, the clerk shall make an entry thereof in the margin of the docket.
Section 972. Joint Tort-Feasors - Contribution -Indemnity - Exemptions - Release, Covenant Not to Sue, Etc.
(a) When two or more persons become jointly or severally liable in tort for the same injury to person or property for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them except as provided in this section.
(b) The right of contribution exists only in favor of a tort-feasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tort feasor is compelled to make contribution beyond his own pro rata share of the entire liability.
(c) There is no right of contribution in favor of any tort-feasor who has intentionally caused or contributed to the injury or wrongful death.
(d) A tort-feasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort-feasor whose liability for the injury or wrongful death is not extinguished by the settlement nor in respect to any amount paid in a settlement which in excess of what was reasonable.
(e) A liability insurer which by payment has discharged, in full or in part, the liability of a tort-feasor and has thereby discharged in full its obligation as insurer, is subrogated to the tort feasor's right of contribution to the extent of the amount it has paid in excess of the tort-feasor's pro rata share of the common liability. This provision does not limit or impair any right of subrogation arising from any other relationship.
(f) This act does not impair any right of indemnity under existing law. When on tort-feasor is entitled to indemnity from another, right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.
(g) This subchapter shall not apply to breaches of trust or of other fiduciary obligation.
(h) When a release, covenant not to sue or a similar agreement is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death:
(1) It does not discharge any of the other tort-feasors from liability for the injury or wrongful death unless its terms so provide; but it reduces the claim against others to be extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and
(2) It discharges the tort-feasor to whom it is given from all liability for contribution to any other tort-feasor.
SUBCHAPTER D COSTS
981. Affidavit in Forma Pauperis
Any person who cannot afford to pay costs of an action in order to vindicate his rights may be allowed by the Court to proceed without paying costs upon the filing of an affidavit in forma pauperis. The affidavit in forma pauperis shall be in the form following, and attached to the petition, viz.
Name of Tribe, Name of Reservation] in the District Court of [Name of Tribe]: I do solemnly swear that the cause of acting set forth in the petition hereto prefixed is just, and I (or we) do further swear that by reason of my (or our) poverty, I am unable to give security for costs.
Section 982. False Swearing in Such Case
Any person willfully swearing falsely in making the affidavit aforesaid, shall, on conviction, be adjudged guilty of perjury, and punished as the law prescribes.
Section 983. Costs Where Defendant Disclaims
Where defendants disclaim having any title or interest in land or other property, the subject matter of action, they shall recover their costs, unless for special reasons the Court decide otherwise.
Section 984. Certain Costs Taxed at Discretion of Court
Unless otherwise provided by statute, the costs of motions, continuances, amendments and the like, shall be taxed and paid as the Court, in its discretion, may direct.
Section 985. Costs to Successful Party as Matter of Course
Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the party, upon a judgment in his favor, in actions for the recovery of money only, or for the recovery of specific, real or personal property.
Section 986. Costs in Other Cases
In other actions, the Court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable.
Section 987. Several Actions on Joint Instrument
Where several actions are brought on one bill of exchange, promissory note or other obligation, or instrument in writing, against several parties who might have been joined as defendants in the same action, no costs shall be recovered by the plaintiff in more than one of such actions, if the parties proceeded against in the other actions were, at the commencement of the previous action, openly within the Tribal jurisdiction or otherwise subject to suit and service of process in the Tribal District Court and the whereabouts of such persons were known or could have been ascertained with reasonable diligence.
Section 988. Clerk to Tax Costs
The Clerks of the District Court shall tax the costs in each case, and insert the same in their respective judgments, subject to retaxation by the Court, on motion of any person interested.
Section 989. Cost of Notice or Other Legal Publication
Whenever any notice, or other legal publication is required by law to be made in any action or proceeding pending in the Court, the costs of such publication shall be taxes or other costs in said action or proceeding.
Section 990. Attorney Fees Taxable as Costs
(a) In any civil action to recover on an open account, a statement of account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, unless otherwise provided by law or the contract which is the subject of the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the Court, to be taxes and collected as costs.
(b) In any civil action to enforce payment of or to collect upon a check, draft or similar bill of exchange drawn on a bank or otherwise, payment upon which said instrument has been refused because of insufficient funds or no account, the party prevailing on such cause of action shall be awarded a reasonable attorney's fee, such fee to be assessed by the Court as costs against the losing party; provided, that said fee shall not be allowed unless the plaintiff offers proof during the trial of said action that prior to the filing of the petition in the action demand for payment of the check, draft or similar bill of exchange had been made upon the defendant by registered or certified mail not less than ten (10) days prior to the filing of such suit.
(c) In any civil action or proceeding to recover for the overpayment of any charge for water, sanitary sewer, garbage, electric or natural gas service from any person, firm or corporation, or to determine the right of any person, firm or corporation to receive any such service, the prevailing party shall be allowed a reasonable attorney fee to be set by the Court, to be taxes and collected as costs.
(d) In any civil action brought to recover damages for breach of an express warranty or to enforce the terms of an express warranty against the seller, retailer, manufacturer, manufacturer's representative or distributor, the prevailing party shall be allowed a reasonable attorney fee to be set by the Court, which shall be taxes and collected as costs.
(e) In any civil action to recover damages for the negligent or willful injury to property and any other incidental costs related to such action, the prevailing party shall be allowed reasonable attorney's fees, Court costs and interest to be set by the Court and to be taxes and collected as other costs of the action, except that a plaintiff who is required to pay costs pursuant to Section 903 of this Act may not recover his attorney's fees as provided by this subsection.
Section 991. Costs Defined
Costs include, in addition to items of expense specifically recoverable as costs pursuant to any statute of the Tribe, fees required to be paid by law for the filing of any paper in an action expense for service of process as provided by law, costs of transcripts, Tribal Police Fees for service of papers and mileage, costs of publication of any notice required to be published, printing of briefs or other documents required by the Court to be printed, and any other items made recoverable as costs by Court rule.
Section 992. Authority of Court to Fix* Cost Rates
The Court by rule may set the fees and costs of any service performed by the Court Clerk or Tribal Police Chief on behalf of the parties when such fees and costs are not provided for by Tribal statute. Such fees and costs shall be maintained at the minimum level possible considering the needs of the Court Fund.
1001. Limitations Applicable
Civil actions can only be commenced within the periods prescribed in this Chapter after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation. There shall be no statute of limitations applicable against civil actions brought by the Tribe on its own behalf except to the extent that a statute of limitation is expressly stated to be applicable to the Tribe by this Code or some Tribal statute.
Section 1002. Limitation of Real Actions
Actions for the recovery of real property or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the claim shall have accrued, and at no other time thereafter.
(a) An action for the recovery of non-trust interest in real property sold on execution, or for the recovery of real estate partitioned by judgment in kind, or sold, or conveyed pursuant to partition proceedings, or other judicial sale, or an action for the recovery of real estate distributed under decree of the Court, in administration or probate proceedings, when brought by or on behalf of the execution debtor or former owner, or his or their heirs, or any person claiming under him or them by title acquired after the date of the judgment or by any person claiming to be an heir or devisee of the decedent in whose estate such decree was rendered; or claiming under, as successor in interest, any such heir or devisee, within five (5) years after the date of the recording of the deed made in pursuance of the sale or proceeding, or within five (5) years after the date of the entry of the final judgment of partition in kind where no sale is had in the partition proceedings; or within five (5) years after the recording of the decree of distribution rendered by the Court in an administration or probate proceedings; provided, however, that where any such action pertains to real estate distributed under decree of the Court in administration or probate proceedings and would at the passage of this act be barred by the terms hereof, such action may be brought within five (5) years after the passage of this Act.
(b) An action for the recovery of real property sold by executors, administrators, or guardians, upon an order or judgment of a Court directing such sale, brought by the heirs or devisees of the deceased person, or the ward of his guardian, or any person claiming under any or either of them, by the title acquired after the date of judgment or order, within five (5) years after the date of recording of the deed made in pursuance of the sale.
(c) An action for the recovery of real property sold for taxes, within five (5) years after the date of the recording of the tax deed.
(d) An action for the recovery of real property not herein before provided for, within twenty (20) years.
(e) An action for the forcible entry and detention or forcible detention only if real property, within three (3) years.
(f) Paragraphs a, b, and c shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not be applied so as to bar causes of action which have heretofore accrued, until the expiration of five (5) years from and after its effective date.
(g) Nothing in this Section should be construed to impose any statute of limitation upon the enforcement of a right to possession of real property held by the United States in trust for any Indian or Indian Tribe under any law of the United States or restricted against alienation by any law of the United States in informity to the laws of the United States relating to such real property.
Section 1003. Persons Under Disability - In Real Property Actions
Any person entitled to bring an action for the recovery of real property, who may be under legal disability when the cause of action accrues, may bring his action within two years after the disability is removed.
Section 1004. Limitation of Other Actions
Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
seven (7) years: An action upon any contract, agreement or promise
(b) Within five (5) years: An action upon a contract express or implied not in writing; an action upon a liability created by statute including a forfeiture or penalty except where the statute imposes a different limitation and an action on a foreign judgment.
(c) Within three (3) years: An action for trespass upon real property; an action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract except as otherwise provided in building construction tort claims, and not hereinafter enumerated; an action for relief on the ground of fraud - the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.
(d) Within one (1) year: An action for libel, slander, assault, battery, malicious prosecution, or false imprisonment.
(e) An action upon the official bond or undertaking of an executor, administrator, guardian, Tribal Police officer, or any other officer, or upon the bond or undertaking given in attachment, injunction, arrest or in any case whatever required by the statute, can only be- brought within five (5) years after the cause of action shall have accrued.
(f) An action for relief, not herein before provided for, can only be brought within five ( S) years after the cause of action shall have accrued.
Section 1005. Persons Under Disability in Actions Other Than Real Property Action
If a person entitled to bring an action other than for the recovery of real property be, at the time the cause of action accrued, under any legal disability, every such person shall be entitled to bring such action within one year after such disability shall be removed.
Section 1006. Absence or Flight of Defendant
When a cause of action accrues against a person and that person is out of the Tribal jurisdiction or has concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the Tribal jurisdiction, or while he is concealed. If, after a cause of action accrues against a person and that person leaves the Tribal jurisdiction or conceals himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought. Provided, however, that if any statute which extends the exercise of personal jurisdiction of the Court over a person or corporation based upon service outside the Tribal jurisdiction, state, or nation, or based upon service by publication permits the Court of this Tribe to acquire personal jurisdiction over the person, the period of his absence or concealment shall be computed as part of the period within which the action must be brought.
Section 1007. Limitation of New Action After Failure
If any action is commenced within due time, and a judgment thereon for the plaintiff is reversed, or if the plaintiff fail in such action otherwise than upon the merits, the plaintiff, or, if he should die, and the cause of action survive, his representatives may commence. a new action within two years after the reversal or failure although the time limit for commencing the action shall have expired before the new action is filed. An appeal of any judgment or order against the plaintiff other than on the merits as above stated shall toll the two year period during the pendency of the appeal.
Section 1008. Extension of Limitation
In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.
Section 1009. Statutory Bar Absolute
When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense, except as otherwise provided with reference to a counterclaim, setoff, or cross-claim.
Section 1010. Law Governing Foreign Claims
The period of limitation applicable to a claim accruing outside of the Tribal jurisdiction shall be that prescribed either by the law of the place where the claim accrued or by the law of this Tribe whichever last bars the claim.
Section 1011. Limitation of Building Construction Tort Claims
No action in tort to recover damages
any deficiency in the design, planning, supervision or observation
of construction or construction of an improvement to real property,
(b) For injury to property, real or personal, arising out of any such deficiency, or
(c) For injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction of such an improvement more than ten (10) years after substantial completion of such an improvement.