Law and Order Code of the Rosebud Sioux Tribe
Additions to code received: 2004
TITLE ONE - PROBATE AND GUARDIANSHIP
TRIBAL PROBATE CODE
1-1-1 JURISDICTION-- The Rosebud Sioux Tribal Court shall have the
authority to appoint Executors and Administrators, determine heirs,
determine the validity of Wills, and to probate and distribute the estates
and Wills of any member of the Rosebud Sioux Tribe with respect to property
located on the reservation which is out side the jurisdiction of the
Bureau 6f Indian Affairs. The Tribal Court shall also exercise such
functions over restricted or trust lands in the jurisdiction of the
Bureau of Indian Affairs to the greatest extent allowed by law.
1-1-2 APPLICABILITY OF OTHER LAWS-- It is recognized by this
Code that the Department of the Interior is obligated by current federal
law to distribute trust real estate pursuant to the laws of descent
and distribution of the State of South Dakota. So that consistency can
be maintained for the benefit of the Rosebud Sioux Tribe, the Rosebud
Tribal Court will admit for probate any Will which is valid as a Last
Will and Testament under the appropriate provisions of the Code of Federal
Regulations for trust real estate upon the Rosebud Reservation, or,
which would be valid under the laws of the State of South Dakota. For
decedent's estates where no Will is admitted to probate, the Tribal
Court shall apply the rules of descent and distribution then in effect
for the State of South Dakota and as applied by the Department of the
Interior for trust real estate.
1-1-3 EVIDENCE OF DEATH-- A certified or authenticated copy of
a death certificate purporting to be Issued by an official or agency
of the jurisdiction where a death purportedly occurred Is prima facia
evidence of the fact, place, date and time of death and the identity
of the decedent.
A person who is absent for a continuous period of seven years during which time he has not been heard from and whose absence cannot be satisfactorily explained after diligent search and inquiry into his whereabouts Is presumed to be dead. His death is presumed to have occurred at the end of the seven year period unless there is sufficient evidence for determining that deal occurred at some other time.
1-1-4 RECORDS-- The Clerk of the Tribal Court shall keep a file
for each decedent's estate of all the documents filed with the Court
pursuant to this chapter.
1-1-5 OATHS-- Except as otherwise provided in this Code, every
document filed with the Clerk pursuant to this probate chapter shall
be deemed to include an oath to the effect that the representations
are true to the best knowledge, information and belief of the person
subscribing and signing the document. The penalties for perjury shall
follow deliberate falsifications of such documents.
1-1-6 NOTICES-- Whenever notice of a hearing on any petition
or other probate document or matter is required and except for specific
notice requirements other wise provided, proper notice of the time and
place of any hearing to be given to any interested person or his attorney
shall be given as follow:
(1) By mailing a true copy of said notice together with the supporting documents at least 10 days prior to the time fixed for hearing by first class mail addressed to the person to be notified or his attorney at the last known post office address given for either or at his last known office or place of residence, or
(2) By delivering a true copy thereof to the person to be notified at least 10 days prior to the date fixed for hearing.
(3) If the address or identity of any such person is not known and cannot by the exercise of reasonable diligence be ascertained, notice shall be given by posting a copy of such notice in at least three conspicuous public places on the reservation for at least 10 days prior to the time fixed for hearing. Such three conspicuous places shall be fixed by the Tribal Council for the purpose of posting probate notices.
Proof of the giving of such notice shall be made by affidavit by the person accomplishing the posting or mailing or personal service and shall be filed with the Court at or prior to the time fixed for hearing.
1-1-7 RENUNCIATION OF INHERITANCE-- Any person who is an heir; devisee,
legatee, or beneficiary under a testamentary instrument or under the
laws of intestate succession may renounce in whole or in part his inheritance
or interest by filing with the Court a written instrument verified under
oath at any time prior to the entry of a decree of distribution. Upon
such proper renouncement, the interest renounced passes as if the person
renouncing it predeceased the decedent.
1-1-8 EFFECT OF DIVORCE, ANNULMENT OR DECREE OF SEPARATION--
Any person who is divorced from a decedent or whose marriage to the
decedent has been annulled is not a surviving spouse unless by virtue
of a subsequent remarriage he is married to the decedent at the time
of death. A decree of separation which does not terminate the marital
status of husband and wife shall not be considered a divorce for inheritance
purposes.
1-1-9 DISQUALIFICATION OF WILLFUL SLAYER-- Any surviving spouse,
heir, devisee, surviving joint tenant, beneficiary of a bond, life insurance
policy, or other testamentary device who criminally and intentionally
kills the decedent is not entitled to any benefit under a Will or under
this probate code or any other law of the Rosebud Sioux Tribe regarding
decedent's estate, and the estate of such decedent will pass as if the
killer had predeceased the decedent.
A final judgment of conviction of an offense containing the elements of criminal or intentional killing is conclusive for the purpose of this section. In the absence of a conviction, the Court may determine by a preponderance of the evidence whether the killing was criminal and intentional for purposes of this section.
1-1-10 PETITION FOR APPOINTMENT OF ADMINISTRATOR OR EXECUTOR--
Whenever any member of the Rosebud Sioux Tribe dies with or without
a Will leaving property on the Reservation which is subject to the jurisdiction
of the Rosebud Sioux Tribal Court, any person claiming to be an heir
of the decedent or a creditor of the decedent may petition the Court
for appointment of an Administrator or Executor of the decedent's estate
and for admission to probate of any instrument purporting to be the
Last Will and Testament of the decedent and for distribution of the
property. The Petition shall state the names and last known addresses
of all persons known to the Petitioner who may be heirs, devisees, or
legatees of the decedent; shall request that a hearing date be fixed
on the question of appointment of an Administrator or Executor of the
estate; shall request that notice to creditors be given; shall establish
the interest of the petitioner in the estate; shall submit with the
petition the purported instrument alleged to be the Last Will and Testament
of the deceased, and shall request that notice of hearing be given.
Upon receipt of such petition, the Court shall fix a time and place for hearing and shall order that all persons named in the petition be given notice as provided by this chapter.
1-1-11 PRIORITIES OF APPOINTMENT-- The following persons, legally
competent, shall be afforded priority in order of their listing for
appointment as Administrator or Executor.
(1) Any person nominated in the Last Will and Testament of the deceased.
(2) The surviving spouse.
(3) Children in descending order of age.
(4) Other blood relatives in the order of their closeness of relationship.
(5) Any other adult Tribal member who is a creditor of the deceased.
(6) Any other adult Tribal member.
1-1-12 DUTIES OF ADMINISTRATOR OR EXECUTOR-- The duties of the
Administrator or Executor shall be to take possession of all property
of the deceased subject to this chapter and within one month after his
appointment make an inventory and appraisal of such property and file
the original with the Court and mail copies thereof to all persons named
in the petition.
Such Administrator or Executor shall within 60 days investigate and attempt to determine and file with the Court a report listing all of the known relatives of the decedent and heirs and devisees who, in the opinion of the Executor or Administrator, are entitled to distribution of the decedent's estate.
The Executor or Administrator shall give notice to creditors as provided elsewhere in this chapter, and upon completion of the notice to creditors, shall report to the Court on the amount and nature of each creditor's claim and recommend to the Court with reference to each claim whether or not the same should be allowed and paid.
The Executor or Administrator shall prosecute and defend all actions by and against the estate and shall have the authority to institute actions for the purpose of recovering assets of the decedent's estate. In addition, the Executor or Administrator shall submit accountings to the Court in accordance with this chapter, and upon the completion of his duties, shall distribute the estate in accordance with any Order of the Court.
The Administrator or Executor shall file a bond in an amount set by the Court to insure his faithful and honest performance of his duties as Administrator with such sureties as the Court may require. Said bond may be waived by the Court with the consent of the persons entitled to distribution of the decedent's estate or if waived by the decedent's Will.
1-1-13 OATH AND LETTERS OF APPOINTMENT-- Upon his appointment as Administrator or Executor, the person appointed shall take an oath subscribed in open Court to the effect that he will faithfully and honestly perform the duties of the Administrator or Executor. Upon the taking of such oath and filing of the bond, if any, the Administrator or Executor shall be granted Letters of Administration or Letters Testamentary as proof of his appointment.
1-1-14 NOTICE TO CREDITORS-- The Administrator or Executor of
the estate shall cause notice to creditors to be posted in at least
three conspicuous places on the Reservation at the places designated
by the Tribal Court. Said notice shall state that an Administrator or
Executor has been appointed for the estate of the decedent and that
any person claiming to be a creditor of the decedent shall have 90 days
from the date of the first posting of said notice to present their claim
to the Clerk of the Tribal Court and that only those claims which are
timely presented shall be paid by the estate. Notice by mailing as otherwise
provided by this chapter shall also be given to any creditor actually
known to be such by the Administrator or Executor. No creditor who holds
a security interest in any asset of the decedent's estate shall be required
to file a claim in order to be paid.
1-1-15 PRIORITY OF PAYMENT OF DEMANDS AGAINST THE ESTATE-- Where
any lien for any demand or claim exists by virtue of a mortgage, pledge,
attachment, judgment or execution levy, such lien shall have preference
according to its priority to the extent of such demand on any specific
property upon which such lien shall have attached.
Otherwise, all demands against the estate of any deceased person must be paid in the following order:
(1) The expenses of administration;
(2) Funeral expenses including the reasonable cost of a burial lot and a reasonable sum for the marker on the grave;
(3) The expenses of last illness;
(4) Any debt that may be due by the decedent personally to servants and employees for services rendered within 60 days preceding the decedent's death;
(5) Debts having preference by the laws of the United States;
(6) All other claims.
If the estate is insufficient to pay all of the debts of any one class, each creditor must be paid prorata in proportion to his claim, and no creditor of any class shall receive any payment until all of those of the preceding class are paid in full.
If the Executor or Administrator disputes the amount or validity of any claim filed against the estate, he shall report the same to the Court who shall fix a time and place for hearing on the validity of such claim, and notice as provided by this chapter shall be given to the creditor or claimant. At the time and place fixed for such hearing, the Court shall determine the extent and validity of the claim and shall enter an appropriate Order, either allowing or discarding said claim.
1-1-16 ACCOUNTING-- After the time for filing claims has expired
and the Administrator or Executor has resolved all of the pending claims
and after the Administrator or Executor has marshaled all of the assets
of the estate and has performed such other duties as may have been required
of him by this code or by any Order of the Court, and in any event,
within one year after his appointment and annually thereafter, such
Administrator or executor shall render an accounting to the Court for
its approval of all receipts and disbursements from the estate showing
the present status of the estate and whether or not the same is ready
for distribution and also showing the computation of any attorney's
or Administrator's or Executor's fees involved for which approval for
payment is requested. True copies of the accounting shall be sent to
all interested persons named in the petition or otherwise by Order of
the Court. If any interested person requests a hearing on said accounting,
the Court shall fix a time and place for hearing the same, and the Administrator
shall cause notice to be given as required by this chapter. If the accounting
is for a final accounting and the Administrator or Executor claims that
the estate is available for distribution, such notice and hearing shall
be given automatically. In the event the accounting is approved, the
Court shall thereupon enter a decree of distribution directing the Executor
or Administrator to distribute the property to the persons entitled
thereto, spelling out in said decree the details of such distribution.
Upon completion of the distribution and compliance with the decree,
the Executor or Administrator shall present evidence to the Court of
the completion of his duties and shall thereupon be discharged by Order
of the Court and his bond released.
1-1-17 DISTRIBUTION OF PROPERTY IF NO TAKER-- If there is no
person available to take all or any portion of the decedent's estate,
then the property shall pass to the Rosebud Sioux Tribe.
1-1-18 STATUS OF HEIRS-- No person is disqualified to take as
an heir because he or any person through whom he claims is not a member
of the Rosebud Sioux Tribe or because he does not live on the Reservation.
1-1-19 DEBTS OWED TO THE DECEDENT-- No debt owed to decedent
is charged against the share of any person except the debtor.
1-1-20 ATTORNEY'S FEES AND FEES FOR EXECUTOR OR ADMINISTRATOR--
An Administrator or Executor may upon approval of the Court receive
a fee of not more than 3% of the value of the gross estate or the sum
of $100 whichever is greater, to be paid from the estate prior to the
final distribution, which fees are only paid once.
An attorney who represents the Administrator or Executor of an estate for such purpose may, with the approval of the Court, be paid the same fee as the Administrator or Executor.
1-1-21 REOPENING OF ESTATES-- Any estate may be reopened whenever
necessary to dispose of decedent's property discovered after the estate
has been closed or to make other necessary corrections.
1-1-22 RULE OF INTERPRETATION-- In any question arising under the
provisions of this probate code, the Tribal Court shall apply the general
principles of probate as enunciated in the statutory rules of the State
of South Dakota except where such rules conflict with specific enactments
of this code or other enactments of the Tribal Code.
GUARDIANSHIP
1-2-1 GUARDIAN DEFINED-- A guardian is a person appointed to
take care of the person or property of another.
The person over whom or over whose property a guardian is appointed is called a ward.
A general guardian is the guardian of the person or of all property of the ward within this state or of both. Every-other is a special guardian. A guardian ad litem is a person appointed to represent the interests of any minor or incompetent in any lawsuit or matter pending before any Court. Guardians ad litem shall be appointed pursuant to Rule 17(c) of the Rules of Civil Procedure. All other guardians shall be appointed as provided by this chapter.
1-2-2 AUTHORITY TO APPOINT GUARDIAN-- The Rosebud Sioux Tribal
Court shall have authority in its discretion to appoint guardians for
persons or for property of persons who are minors or incompetent by
reason of physical or mental illness or deficiency, advanced age, or
chronic use of drugs or alcohol, 9r for recipient of public assistance
where it is found that such recipient is wasteful and unable to manage
the receipt and disbursement of assistance payments so as to substantially
accomplish the purpose for which such assistance is given.
The Tribal Court's authority may be exercised only over Tribal members or children of Tribal members or property of Tribal members or property of children of Tribal members which property is within the jurisdiction of the Tribal Court. These powers may be exercised either by the adult or juvenile divisions of the Tribal Court.
1-2-3 PETITION FOR GUARDIANSHIP-- Guardianship proceedings shall
be initiated by the filing of a petition by any interested person on
behalf of a minor alleged incompetent or by the minor himself if over
the age of 14 years or by the court upon its own motion.
The Petition shall set forth the name of the Petitioner and the Petitioner's relationship to the minor or alleged incompetent. It shall list all known immediate relatives of the minor or incompetent and their last known address, relationships, and ages and shall list all property of the minor or incompetent, both real and personal, known to the Petitioner. The Petition shall list in detail the pre sent conditions and circumstances which demonstrate the need for appointment of a guardian and shall request that letters of guardianship be issued to the Petitioner or some other suitable person. The Petition shall state whether a Will exists which nominates any person as guardian. The Petition shall be verified.
1-2-4 NOTICE AND HEARING-- Upon receipt of a verified Petition,
the Tribal Court shall fix a time and place for the hearing. The Clerk
of Courts shall cause notice of said hearing to be given to all the
interested persons listed in the Petition by mailing to said persons
at their last known post office addresses by first class mail a true
and correct copy of the Court's order fixing the hearing together with
a copy of the Petition on file, which mailing shall be accomplished
not less than seven days prior to the date fixed for hearing.
At the time fixed for the hearing, the Court shall examine the Petition and Petitioner and hear all evidence relative to whether or not a guardian shall be appointed; determine if any person nominated by a Will is available and consents to act; determine if the proposed ward is of sufficient age or mental capacity to make an intelligent decision regarding a preference and given due consideration to the proposed ward's preference of a guardian, setting forth the scope of the guardian's authority whether or not security for his performance will be required, and the duration of such appointment.
If the Petition for guardianship is for an incompetent, the Court shall make the same inquiries as noted above, and in addition, shall attempt to secure the best evidence available including medical reports so that the Court is satisfied by clear and convincing evidence that the person allegedly incompetent is not presently able to handle his property or affairs.
1-2-5 QUALIFICATIONS OF GUARDIANSHIP-- Any adult person of the
age of 21 years or older and subject to the jurisdiction of the Tribal
Court may serve as a guardian. In appointment of the guardian, the first
preference shall be given to those persons named in a Will of a deceased
parent. Next preference shall be, to relatives of the ward in the order
of closeness of the relationship with due consideration being given
to any person with whom a minor shall have been living at the time of
the guardianship hearing. Due consideration should also be given to
any person preferred by a minor if he is old enough to make an intelligent
decision in that regard. In all cases the Court shall be finally guided
by the best interests of the minor or incompetent in selecting a guardian.
1-2-6 SECURITY OF GUARDIAN-- The Court shall, unless the Court finds
that no need exists therefore, require a guardian to provide security
in the form of a bond or otherwise to assure the faithful performance
of the guardian's duties. Any surety of any such security will be deemed
to have consented to the jurisdiction of the Rosebud Sioux Tribal Court
for the purpose of action against such surety.
1-2-7 LETTERS OF GUARDIANSHIP-- Any guardian appointed by the
Court shall be required to take an oath to the effect that he will faithfully
perform his duties as guardian. Upon taking the oath and filing with
the Court such security as may have been required, the guardian shall
be issued Letters of Guardianship under the seal of the Tribal Court.
Any limitation of the guardian's authority shall be set forth on the
Letters 6f Guardianship.
1-2-8 INVENTORY AND APPRAISAL-- Within 45 days after the appointment
of a general guardian or guardian of property, the guardian shall prepare
and submit to the Court an inventory and appraisal of the assets of
the estate. The appraisal shall be made by at least one disinterested
person who shall certify under oath to the appraisal and may be awarded
reasonable compensation for his services upon application to the Court
by the guardian and approval of the same by the Court.
1-2-9 ANNUAL ACCOUNTING-- Any guardian of an estate shall submit
an annual accounting of the receipts and disbursements of estate funds
and estate assets on the first anniversary date of his appointment as
guardian and annually thereafter, which account shall be verified under
oath by the guardian and shall contain an accounting of all additions
to and withdrawals of the estate assets, and upon request of the Court
shall be accompanied by supporting canceled checks, vouchers, receipts,
statements, or books of record.
1-2-10 COMPENSATION OF GUARDIAN-- No guardian shall receive any
compensation for acting as such without prior approval of the Court.
The Court shall approve for payment unto a guardian reasonable fees
which fees should not annually exceed 10% of estates of $1,000 or less,
5% of estates of more than $1,000 but not more than $ 5,000 and 2½%
of estates in excess of $5,000.
1-2-11 POWERS OF GUARDIANS-- Every guardian appointed for the
person and estate of a minor or incompetent shall have the care and
management of said estate until the guardian is legally discharged.
The relationship of guardian and ward is a confidential one requiring the fidelity and obligation arising from trusts as is prescribed by the law generally on that subject.
1-2-12 SALE OF PROPERTY-- No guardian has the authority to sell
assets of the guardianship estate without prior permission of the Court
unless such property is ordinarily traded on a day to day basis in a
recognized market, for example, grain and livestock. The Court shall
grant approval for sale of guardianship assets when the Court finds
that such sale is in the best interests of the estate and when the Court
also finds that the method of sale is reasonably likely to obtain the
best price for the estate.
1-2-13 ACTIONS AGAINST THE GUARDIAN-- A guardian shall derive
no personal benefit except as authorized by this chapter from the management
of the estate of his ward and shall be civilly liable to the ward for
any losses to the estate attributable to a breach of the guardian's
duties. Any action to enforce such liability shall be brought by the
ward or by a subsequently appointed guardian on behalf of the ward within
two years after the appointment of a new guardian or the removal of
the incompetency or the arriving at the age of the majority of the ward.
1-2-14 DISCHARGE OF GUARDIAN-- Every guardian appointed by this
chapter shall serve until discharged by the Court.
A guardian of a minor not otherwise incompetent or the minor himself may petition the Court within one year after the date the minor reaches the age of majority to have the guardian discharged and the estate turned over to the minor. The Court may grant such discharge ex parte upon the receipt of sufficient competent evidence that the minor has reached the age of majority unless it appears to the Court that the minor is otherwise incompetent, in which case the Court will order a hearing with notice to make a determination of competency.
Any person who has had a guardian appointed for reasons of incompetency or such guardian or a relative of such incompetent person may petition the Court for a determination of his restoration to competency and for discharge of the guardian. Upon receipt of such petition, the Court shall order notice of hearing to be given by mailing or otherwise, and after such notice, the Court shall receive evidence as to the current status of the ward's competency. If it be found that the ward is of sound mind and capable of taking care of himself and his property, the guardianship shall be terminated. If it be found that the ward is of sound mind and capable of taking care of himself and his property, the guardianship shall be terminated. If the Court finds otherwise, the guardianship shall be continued.
1-2-15 GUARDIANSHIP RECORDS-- The Clerk of the Tribal Court shall
keep a separate permanent file for each guardianship proceeding and
shall file all papers relevant thereto.
1-2-16 GUARDIANSHIP AND TRUST PROPERTY-- The Tribal Court is
hereby authorized to appoint guardians pursuant to this chapter for
minors or incompetents for the purpose of dealing in trust property.
In addition to abiding by the procedures of this chapter, such guardian
shall also be required to abide by the appropriate federal rules and
regulations regarding the sale and handling of trust property.
1-2-17 TEMPORARY GUARDIANSHIP AND CUSTODY-- The Tribal Court shall
have the authority to grant emergency orders for guardianship and custody
when the Court is satisfied that a true emergency exists by virtue of
a sworn affidavit establishing the facts to the satisfaction of the
Court. Such Orders will be good for not more than 10 days. Within such
10 days, the Court shall order and fix a date for hearing upon the question
of whether a more permanent type guardianship or custody arrangement
should be invoked.
1-2-18 REMOVAL OF GUARDIANS-- Any guardian may be removed by
the Tribal Court for any of the following reasons:
(1) For breach of his trust;
(2) For continued failure to perform his duties,
(3) For incapacity to perform his duties;
(4) For gross immortality;
(5) For having an interest adverse to the faithful performance of his duties;
(6) For removal from the jurisdiction of this Court;
(7) In the case of a guardian of property, for insolvency; or,
(8) When it is no longer proper that the ward should be under guardianship.
A guardian may also resign with the permission of the Court.
1-2-19 NOTICE FOR REMOVAL OF GUARDIAN-- Whenever it is called
to the attention of the Court by a Petition from an interested person
or upon the Court's own motion that grounds for removal of a guardian
exists, or in the event that the guardian has failed to render an accounting
or perform other duties as ordered by the Court, the Tribal Court may,
upon such notice to the guardian as the Court may require, remove the
guardian and compel him to surrender the estate of the ward to the persons
found to be lawfully entitled thereto.