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ORDINANCE
NUMBER 84-01
DATE ADOPTED 01/15/84
DATE AMENDED 03/15/86
AMENDED PER RES. N0. 86-138
SUBJECT Tribal Court Rules and Procedures |
TRIBAL COURT RULES AND PROCEDURES
PART ONE - APPEALS FROM COUNCIL ACTION
SECTION
1: RIGHT TO APPEAL
Any person who alleges sufficient facts to show that his or her rights,
under the Constitution of the Confederated Tribes of Siletz Indians
of Oregon or the Indian Civil Rights Act, 25 U.S.C. †1302 et
seq., have been violated by an action or actions of the Tribal Council,
may request a review before the Tribal Court.
SECTION 2: TIME FOR FILING REVIEW PETITION
Requests for review of Council actions shall be presented to the Clerk
of the Court in writing not more than sixty (60) days after an action
is alleged to have violated the Petitioner's right or rights or not
more than sixty (60) days after the alleged harm first manifested itself
if such harm was not apparent on the date of the Council action.
SECTION 3: DUTY TO MITIGATE DAMAGES
Any person who alleges that his or her rights have been violated as
set forth in the previous section has the duty to take steps to reduce
any harm resulting from Council actions if the steps are reasonable
and will not cause unreasonable financial harm or great inconvenience.
SECTION 4: PROCEDURE FOR FILING REVIEW PETITION
Petitions shall be filed by mail to the Clerk of Court or in person
at a tribal area office. The area office supervisor must forward the
Petition to the Clerk of the Court by the next working day.
SECTION 5: CONTENTS OF PETITIONS
Requests for review shall set forth briefly but specifically and in
plain language all of the facts surrounding the Council action in question,
how the action violated the petitioner's rights under the Tribal Constitution
or the Indian Civil Rights Act, the precise nature of the alleged harm
resulting from such action and the remedy sought by the Petitioner.
The Clerk of the Court, with the permission of the Chief judge, may
assist the Petitioner in the preparation of the Petition if assistance
is requested. Notice of the filing of the Petition shall be sent to
the Tribal Chairman by the Clerk.
SECTION 6: CLASS ACTIONS
If the allegations in the Petition indicate that several persons were
affected similarly by the alleged actions of the Council, the review
shall be treated as a class action and the Clerk shall notify all potential
parties of the pending review. The relief, if any, awarded by the Court
shall apply to all parties not expressing to the Court, in writing,
prior to the rendering of a decision, a desire not to participate in
the proceeding. Persons electing not to participate in the proceeding
are bound by the judgment therein but they can request alternative relief
which may be considered by the Court.
SECTION 7: ACTIONS BY MINORS
The parent or parents or guardian of any minor child who has a right
of action under this ordinance, may bring an action on behalf of such
minor and shall be deemed the Petitioner for purposes of the procedures
established by this ordinance.
SECTION 8: AMENDMENTS
The Court may, in its discretion, grant a Petitioner reasonable time,
not to exceed ten (10) days, to amend a Petition if justice will be
better served.
SECTION 9: ANSWER
The Tribal Council shall have 15 days from the date the petition is
served on the Tribal Chairman to file an answer to the allegations in
the petition.
SECTION 10: PRELIMINARY REVIEW
The Chief Judge shall review the petition and answer to determine if
sufficient facts have been alleged to create a triable issue. If no
triable issue is alleged, the petition shall be dismissed.
SECTION 11: HEARING ON THE MERITS
Within three (3) working days of a determination by the Chief Judge
that a triable issue is alleged, the Clerk shall notify the Petitioner
and the Tribal Chairman when a hearing will be held. Unless an expedited
hearing is granted under Part Two, or other good cause is shown by a
party, a hearing must be held not less than ten (10) days or more than
thirty (30) days from the date of such notice. The parties shall be
notified of the date, time and place of the hearing, the right to present
oral or physical evidence they deem relevant, the right to be represented
by Counsel at their own expense and the right to utilize the Court's
authority to compel the appearance of witnesses.
SECTION 12: PRESIDING JUDGE
Ordinarily, hearings will be held before the Chief Judge and two associate
judges chosen by the Chief Judge. If the Chief Judge has a conflict
of interest or cannot hear the case for good cause, the Acting Chief
Judge shall hear the case. If the Acting Chief Judge has a conflict
or cannot hear the case for good cause, an associate judge may be appointed
by the Chief judge to hear the case. The judge hearing the case shall
be termed the presiding judge and he or she shall exercise all duties
of the Chief Judge, including selection of the two associate judges,
to hear the case. A party may challenge any judge for cause and, upon
a showing of bias or prejudice by the challenging party, the judge shall
not hear the case.
SECTION 13: CONDUCT OF THE HEARING ON THE MERITS
The cases for each party shall be presented in three phases: opening
statements, evidence and closing arguments. The Petitioner shall be
first to present each phase of the case. Unless additional time is granted
by the presiding judge, each party shall have 20 minutes to present
the opening statement and 20 minutes to present the closing argument.
The Petitioner may reserve a portion of time for closing argument to
present rebuttal to the closing argument of the Council.
SECTION 14: BURDEN OF PROOF
Unless otherwise provided by tribal law, the Petitioner shall have the
burden of proving his or her case by a preponderance of the evidence.
SECTION 15: RULES OF EVIDENCE
Evidence presented must be relevant to the issue in dispute. A witness,
including a party, may testify as to a statement made by a person not
before the Court if the witness hear the statement when it was uttered
by the person alleged to have made the statement. The Court may inquire
into the circumstances surrounding the failure of the party offering
the statement to present the actual speaker and such circumstances may
be considered in determining the credibility of the evidence. Whenever
practical, documents presented as evidence shall be the originals. All
issues regarding the admissibility of evidence shall be decided by the
Presiding Judge, who shall have discretion to exclude any evidence for
good cause.
SECTION 16: REMEDIES
If the Petitioner meets the burden of proof, and whenever it is just
and practical, the Court shall award the remedy sought. To the extent
possible, the Court shall prescribe remedies that place the parties
in the same position they would have occupied absent the wrongful act
or acts of the Council. If such remedy is not practical or does not
fully compensate the prevailing Petitioner, the Court shall award a
monetary judgment in an amount calculated to be fair compensation, but
not to exceed actual monetary loss to the Petitioner, and in no case
more than $1,000.00. In appropriate cases, the Court may remand the
case back to the Council for further action if the Council can avoid
monetary loss to the Petitioner.
SECTION 17: CONTINUANCES
At any stage of the proceeding, the Court may grant a reasonable continuance
upon its own motion or the request of a party after a showing of good
cause. The Court shall consider the objections of any party to a continuance.
SECTION 18: DECISIONS OF THE COURT
The Court shall decide the issue upon appropriate consideration at the
close of the case or may take the matter under advisement for a period
not to exceed 20 days. The Court also may decide the issue but defer
determination of a remedy for a period not to exceed twenty (20) days.
In any case, the Court shall issue a written opinion setting forth its
decision and the reasons therefore within twenty-five (25) days of the
close of the hearing on the merits.
SECTION 19: OPEN PROCEEDINGS
All proceedings shall be open to the public and press unless the Presiding
Judge determines that, due to the highly sensitive nature of the testimony
of young children or circumstances which could cause extreme embarrassment
to witnesses or parties, the proceeding should be closed.
SECTION 20: EXCLUSION OF WITNESSES
Upon motion of either party, the Presiding judge shall exclude witnesses
not actually testifying from the room where proceedings are being held.
SECTION 21: FINALITY OF DECISION
Every decision of the Chief Judge or, in his absence, the presiding
judge, and every decision of a three-judge panel is final and not be
subject to review in any forum.
PART TWO - EXPEDITED HEARINGS
SECTION
22: REQUEST FOR EXPEDITED HEARING
Any party may request that a hearing be held within ten days of the
filing of a Review Petition in cases where the alleged harm can be prevented
and the damage will be irreparable. Requests for expedited hearings
must be made in person to the Clerk of the Court.
SECTION 23: DECISIONS TO INVOKE EXPEDITED HEARING PROCEDURES
The Chief Judge shall decide whether good cause exists to hold an expedited
hearing. Decisions normally shall be based solely on the allegations
in the Petition. In extraordinary circumstances, the Chief Judge may
discuss the case with the Petitioner or members of the Council before
granting an expedited hearing. A decision to grant or deny a request
for an expedited hearing must be made within 48 hours of the request
being submitted to the Clerk.
SECTION 24: EXPEDITED HEARING
Hearings under these provisions shall be held at the earliest possible
time, not to exceed five (5) days from the filing of the request and
shall be conducted in the same manner as hearings under the procedures
established in Part 1 of this ordinance.
SECTION 25: REMEDIES
In any case where the Court determines that the Petitioner has met the
burden of proof, the Court shall grant a remedy which will prevent the
alleged harm from occurring or place the parties in the same position
they would have occupied absent the alleged violation. In appropriate
cases, the Court may enjoin the Council from taking action which would
create the alleged harm.
PART THREE - APPEALS FROM COMMITTEE ACTION
SECTION
26: LOWER COURT
When taking action which limits or deprives a person of any right or
privileged granted under tribal law, a Committee shall, upon request,
provide an opportunity to present evidence, confront witnesses and be
heard. When such a hearing is held, the Committee shall be deemed a
"lower court" for purposes of this ordinance.
SECTION 27: RIGHT TO APPEAL
Any member of the Confederated Tribes of Siletz Indians of Oregon, or
any person subject to the jurisdiction of the Siletz Family Court as
a result of a child custody issue, may file an appeal from a decision
of a lower court alleged to deprive that person unlawfully of any right
or privilege under tribal law, provided they previously have requested
a hearing before the lower court and have been deprived of the opportunity
to be heard or believe the lower court's decision is contrary to law.
The parents or parent of any minor child who has a right to appeal hereunder
may bring such action on behalf of the child.
SECTION 28: COURT OF APPEALS
Appeals from decisions of a lower court shall be heard by a panel of
three judges consisting of the Chief Judge, who shall preside, and two
associate judges selected by the Chief Judge. The Chief judge shall
ensure that associate judges selected are free from prejudice or bias
toward any party to an appeal.
SECTION 29: NOTICES OF APPEAL
A party must be informed of the right to appeal by the lower court.
A party must notify the Chief Judge of an intention to appeal within
ten X10) days of being informed of the right. A Notice of Appeal must
be filed with the Chief Judge. Such notice must include the names and
addresses of the parties and the issue to be decided.
SECTION 30: TIME FOR ARGUMENT
Upon receipt of a Notice of Appeal, the Chief Judge shall set a date,
time and place for a hearing or argument on the appeal, whichever is
appropriate, and shall notify all parties whose rights or privileges
could or will be affected by the appeal, including the lower court.
Argument before the Court of Appeals shall be held not less than ten
(10) days nor more than thirty (30) days from the date notice is sent
to the parties. The notice of the hearing also shall include notice
of the right to present written briefs and to be represented by counsel
at the appellant's own expense.
SECTION 31: EXTENSIONS OF TIME
For good cause shown, the Chief judge may alter the initial date set
for the hearing so long as such alteration does not create undue hardship
for any party.
SECTION 32: WRITTEN ARGUMENTS
Parties may submit written arguments regarding the issues on appeal.
They must provide each party with a copy of the argument, including
the lower court, at least three days prior to the date set for argument.
SECTION 33: ORAL ARGUMENTS
Each party to an appeal from a lower court decision may present oral
arguments at the hearing in person, or through counsel of the party's
choosing, at his or her expense. Arguments shall be limited to 30 minutes
for each party unless additional time is granted by the Chief Judge.
SECTION 34: RECORD FROM LOWER COURT
Prior to the argument, the lower court shall present to the Court of
Appeals a summary of the proceedings by the lower court, a copy of the
opinion in the case, if any, and all evidence presented.
SECTION 35: NEW EVIDENCE
Parties appealing from a lower court ruling shall not be allowed to
call witnesses or present evidence not previously presented at the lower
court hearing, absent a denial of a hearing or a showing of extraordinary
circumstances. Requests to call witnesses or to present evidence in
cases where a lower court hearing was granted shall be made at least
five (5) days prior to the argument and shall be ruled upon the Chief
Judge at least three (3) days prior thereto. The rules of evidence set
forth in Section 13 shall apply to the submission of evidence.
SECTION 36: DECISIONS OF THE COURT
The Court shall present a written decision to the parties within 15
days of the close of argument, setting forth the decision, the reasons
therefore and the remedy, if any, granted. The Court of Appeals may
not grant a monetary judgment.
PART FOUR - COURT PERSONNEL
SECTION
37: CHIEF JUDGE
The Chief Judge shall be appointed by the Tribal Council for a period
of not less than four years. He or she must be a graduate of an accredited
law school or satisfactorily complete a training program and all other
criteria established by the Council. Nothing herein shall prevent the
Chief Judge from carrying out the administrative duties of the office
prior to completion of the training program.
SECTION 38: COMPETITIVE EXAMINATION
To be certified as an associate judge, an applicant must be successful
in a competitive examination program. Those associate judges certified
on the effective date of this section shall be eligible to take the
initial examination. The examination shall be developed by the Chief
Judge and approved by the Tribal Council and shall test knowledge of
tribal law, the Indian Civil Rights Act, legal reasoning and writing
skills. Candidates receiving the top five (5) scores shall be certified
as associate judges. After the initial examination, any tribal member
meeting the qualifications set forth in Section 39 shall be eligible
to take the examination and compete for any vacancy or vacancies on
the panel. The person or persons receiving the highest scores shall
be certified.
SECTION 39: ASSOCIATE JUDGES
Any tribal member 18 years of age or older who is of good moral character
and never having been convicted of a felony, may be certified for two
years as an associate tribal judge. Prior to certification, an associate
judge must complete the competitive testing program set forth in Section
38. No more than five associate judges may be certified by the Council.
Associate judges must apply for recertification at the end of their
terms and such certificates shall be granted only under the deadlines
established by the Tribal Council, provided that associate judges shall
not be required to take the competitive examination for recertification
and can only be dismissed for cause.
SECTION 40: ACTING CHIEF JUDGE
The Chief Judge shall designate from the certified associate judges
an Acting Chief Judge who, when the Chief Judge is unavailable, shall
have all the powers, duties and obligations of the Chief Judge.
SECTION 41: COURT CLERK
The Court Clerk shall be hired by the Chief Judge with advice and consent
of the Tribal Council. He or she shall be responsible for the routine
administration of the court. The Clerk must be qualified to accomplish
the writing and administrative tasks of the position as well as possess
the secretarial skills necessary to fulfill the responsibilities of
the position.
SECTION 42: REPRESENTATION BEFORE THE COURT
Any party maybe represented at his or her expense by an attorney admitted
to practice before the Siletz Tribal Court at any stage of a proceeding.
The Council is authorized to utilize the tribal attorney to represent
it in any matter before the Court. Any member of the Confederated Tribes
of Siletz Indians of Oregon is deemed admitted to practice before the
Court. Non-members shall be admitted upon their oath that they are familiar
with the laws and customs of the Tribe and upon payment of an appearance
fee of twenty-five dollars ($25.00). Upon taking the oath and paying
the fee, non-members shall be eligible to practice before the Court
for one year.
PART FIVE - MISCELLANEOUS
SECTION
43: WAIVER OF SOVEREIGN IMMUNITY
Nothing in this ordinance shall be construed as authorization to sue
any member of the Tribal Council or Committee member individually or
to waive the sovereign immunity of the Confederated Tribes of Siletz
except as specifically set forth herein.
SECTION 44: EXPULSION OF COUNCIL MEMBER
Tribal Council members expelled under Article VII, Section 4 of the
Tribal Constitution may bring an action within ten (10) days of expulsion
and shall be heard pursuant to the rules governing hearings on the merits
of a cause within thirty (30) days of the filing of the action.
CERTIFICATION
The forgoing
ordinance was amended by the Siletz Tribal Council at a Regular Council
meeting held on March 15, 1986 at which a quorum was present, and the
ordinance was amended by a vote of 9 FOR, 0 AGAINST and
0 ABSTAINING.
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SILETZ
TRIBAL COUNCIL
By /s/
Delores Pigsley
Tribal Chairman
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ATTEST:
/s/
Mary Alice Muncey
Tribal Council Secretary |
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/s/
Nelsen Witt
B.I.A. Superintendent |
TRIBAL
COURT RULES & PROCEDURES, Ordinance Number 84-01
Amended 03/15/86 per Resolution Number 86-138
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