SISSETON-WAHPETON SIOUX TRIBE
CHAPTER 47
CONDEMNATION OF TRUST OR RESTRICTED LAND UNDER
POWER OF EMINENT DOMAIN
47-01-01 SCOPE OR POWER OF EMINENT DOMAIN
The Sisseton-Wahpeton Sioux Tribe shall have authority pursuant to this Chapter
and in accordance with Section 8 of the Act of October 19, 1984, 98 Stat, 2411
(P.L. 98-513), to condemn trust or restricted land within the original exterior
boundaries of the Lake Traverse Reservation, as described in Article III of the
Treaty of February 19, 1867, 15 Stat. 505, for public uses, including the
elimination of fractional heirship interests in such land, the consolidation of
tribal interests in land and the development of tribal agriculture.
47-02-01 PETITION FOR ASCERTAINMENT OF COMPENSATION BY JURY
In all cases where the Sisseton-Wahpeton Sioux Tribe shall determine to condemn
trust or restricted land, it shall file a petition in the Tribal court praying
that the just compensation to be made for such property may be ascertained by a
jury.
17-03-01 CONTENTS OF PETITION FOR ASCERTAINMENT OF COMPENSATION
A petition filed pursuant to Section 47-02-01 shall name the Sisseton-Wahpeton
Sioux Tribe as plaintiff, and all persons having interest in or liens upon the
property affected by the proceedings as defendants, so far as they shall be
known at the time of filing the same. It shall contain a description of the
property to be taken or damaged shall be clearly set forth in the petition. It
shall not be necessary to specify the interests or claims of the several
defendants in the land or property affected by the proceedings.
47-04-01 AMENDMENT OF PETITION AND NOTICE
If any person is a proper party defendant to a proceedings under this Chapter,
or any property affected thereby, shall have been omitted from said petition or
notice, the plaintiff may file amendments to the same, which amendments from the
filing thereof shall have the same effect as though contained in said petition
and notice.
47-05-01 VERIFICATION OF PETITION - STATEMENT OF GOOD FAITH
Said petition shall be signed or verified in the manner provided by law for the
signing or verification of complaints in actions in the Tribal Court, and the
affidavit of verification shall contain the further statement that the
proceeding is in good faith for the purpose specified in the petition.
47-06-01 ATTACHMENT OF DOCUMENT AUTHORIZING CONDEMNATION
In all cases, the petition shall have attached to it a copy of a resolution of
the Tribal Council authorizing the taking of the trust or restricted land
described in the petition.
47-07-01 ADDITIONAL PLEADING NOT REQUIRED
No pleading other than the petition shall be required in a proceeding under this
Chapter, unless ordered by the Court.
47-08-01 INTERPLEADER OF ADVERSE CLAIMANTS TO COMPENSATION
If there be adverse claimants for the compensation, the court may require such
adverse claimants to interplead, so as to determine fully the rights and
interest in such compensation.
47-09-01 UNITED STATES NOT AN INDISPENSABLE PARTY - UNITED STATES RIGHT OF
INTERVENTION
The United States shall not be an indispensable party in any proceeding under
this Chapter. The United States, upon timely application, shall have a right to
intervene in any proceeding under this Chapter.
47-10-01 NOTICE OF PENDENCY OF ACTION FILED WITH CLERK OF COURT AND COUNTY
REGISTER OF DEEDS - EFFECT OF RECORDING
At any time after the filing of the petition, the plaintiff may file for record
in the office of the Clerk of Court and in the of f ice of the register of Deeds
for the county in which the land described in the petition is situated a notice
of the pendency of the proceeding, containing the names of the parties plaintiff
and defendant, a statement of the purpose of the proceeding, and a description
of the property to be condemned, which notice shall be recorded and indexed in
the same manner as for the recording and indexing of notices of pendency of
actions in the Tribal or State Circuit Court, as the case may be, and from the
date of the filing thereof shall be notice to all subsequent purchasers or encumbrances
of the property therein described.
47-11-01 SUMMONS TO DEFENDANTS - CONTENTS
At any time after the filing of the petition, the plaintiff may issue a summons
to the defendants, which shall be entitled in the action or proceeding, and
state the time and place of filing the petition, the nature of the proceeding,
and contain a notice to the effect that if the defendants do not appear in said
proceeding within thirty days from the service thereof, exclusive of the day of
service, the plaintiff will apply to the court for an order to impanel a jury
and ascertain the just compensation for the property proposed to be taken or
damaged in such proceeding. The summons may be served as in civil actions unless
otherwise provided in this Chapter.
47-12-01 PUBLICATION OF SUMMONS TO UNKNOWN OR NONRESIDENT OWNERS -PERSONAL
SERVICE OUTSIDE RESERVATION
If there are unknown owners or persons interested in the property to be taken or
damaged, or if any of the defendants are not residents of the Lake Traverse
Indian Reservation, the plaintiff may apply to the court upon affidavit setting
forth the nature of the proceeding, and the facts in relation to such unknown
persons or nonresident defendants, for an order of publication of such summons,
whereupon the court shall grant such order. The summons as published shall have
annexed thereto a notice that if the defendants as to whom publication has been
ordered do not appear in said proceeding within thirty days from the first
publication thereof, the plaintiff will make application to the court for the
order mentioned in the body of the summons. Such summons shall be published for
thirty days at least once in each week in some newspaper published and of
general circulation within the Lake Traverse Indian Reservation, and each
publication of the same shall show at the top thereof the date of the first
publication. Personal service on any defendant outside of the Lake Traverse
Indian Reservation shall be of the same effect as service within the Reservation
and shall dispense with necessity of publication as to such defendant.
47-13-01 NOTICE OF PROCEEDING TO UNITED STATES - CONTENTS
Within ten days after the filing of the petition, the plaintiff shall serve upon
the Superintendent of the Sisseton Agency of the United States Bureau of Indian
Affairs and upon the United States Attorney for the district within which the
land to be condemned is situated a notice of the pendency of the condemnation
proceedings, which shall be entitled in the action or proceeding, and state the
time and place of filing the petition, the nature of the proceeding, and the
right of the United States to intervene in such proceeding. In all cases, the
notice shall have attached to it a copy of the petition and a copy of the Tribal
Council Resolution required by section 47-06-01 of this Chapter. Unless within
thirty days from the service of the notice the United States enters an
appearance in the proceeding, the parties shall not be required to make service
upon the United States of papers filed in the proceeding.
47-14-01 HEARING ON RIGHT TO TARE - TIME FOR DEMAND - WAIVER OF RIGHT TO
QUESTION NECESSITY - FINDING OF NECESSITY AS BINDING
Within thirty days from the date, the summons described in section 47-11-01 is
served, the defendant may demand a hearing in Tribal Court on the tribe's right
to take. Failure to make such a demand or to consent in writing to the taking,
within the thirty day period, shall constitute a waiver of the right to question
the necessity of the taking. The finding of necessity by the plaintiff, unless
based upon fraud, bad faith or/and abuse of discretion, shall be binding on all
persons.
47-15-01 OFFER TO DEPOSIT COMPENSATION WITH CLERK - EVIDENCE OF OFFER NOT
ADMISSIBLE
When the remedy is exercised under the provisions of this chapter, the plaintiff
may at the time of service of the summons on any defendant serve upon his an
offer in writing to the effect that the plaintiff will deposit with the Bureau
of Indian Affairs a sum of money specified to be paid to defendant or other
parties entitled thereto as compensation for all of the property taken or
damaged. If the defendant fails to accept the offer by filing notice of
acceptance with the Clerk of Court within ten days after service of the offer
upon him, it is deemed to be withdrawn, and cannot be given in evidence.
47-16-01 ORDER TO SUMMON JURY ON DEFAULT
If no appearance be made by any defendant within the time specified in the
summons, the plaintiff, upon affidavit of the default, may apply to the court
for an order directing the clerk of courts to draw and summon nine jurors to
attend at the courthouse or place of holding the Tribal Court, at a time to be
specified in such order. Said jurors shall be drawn and summoned for other
proceedings before the Tribal Court.
47-17-01 JURY TRIAL - CHALLENGE OF JURORS - CONDUCT OF TRIAL DEFAULT BY
PLAINTIFF
At the time and place specified in the order made pursuant to section 47-16-01 a
session of the Tribal Court shall be held, at which the proceedings in
impaneling the jury, trial and rendering of the verdict or verdicts shall be
conducted in the same manner as in civil actions except that every defendant
shall have the same rights and privileges, upon such trial, to challenge jurors
and examine and cross-examine witnesses and participate there in, by himself or
attorney, as a defendant in a civil action who has appeared and answered. As to
all the defendants who appear within the time specified in the summons, the
proceeding shall be conducted in like manner except that three days' notice of
the time and place of trial may be given by either party and the case brought on
for trial at any session of the court called for such purpose, and on the
failure of the plaintiff, after such notice, to proceed with the trial, said
petition shall be dismissed as to such defendant, and any lis pendens involving
the title of property of such defendant shall be discharged and no other
proceeding for the same purpose shall be brought by the plaintiff against such
defendant until after the expiration of one year, and then only upon the
condition that the plaintiff will, in good faith prosecute such proceeding
against such defendant with reasonable diligence.
47-18-01 JURY COMPOSITION - VERDICT - DISAGREEMENT
Proceedings under this Chapter shall be held before a jury composed of-six
jurors and one alternate. A verdict may be rendered by not less than five-sixths
of the jurors constituting a jury. Where five-sixths of the jurors constituting
a jury cannot agree after being kept together for as long as is deemed
reasonable by the Court, the. Court shall discharge the jury and direct a new
trial before another jury.
47-19-01 CONTINUANCE OF PROCEEDINGS AS TO DEFENDANTS NOT SERVED
As to all defendants not served before the trial said proceedings shall be
continued as the court may direct, for the purpose of serving the summons on
such defendants.
47-20-01 ISSUE TRIED BY JURY
The only issue that shall be tried by the jury upon the petition shall be the
amount of compensation to be paid for the property taken or damaged.
47-21-01 VIEW OF PREMISES BY JURY
Upon the demand of any party to the proceeding, if the court deem it necessary,
the jury may view the premises under such rules as the court may prescribe for
such viewing.
47-22-01 COMPENSATION DETERMINED FOR EACH PARCEL OR FRACTIONAL INTEREST
If the compensation for all the property taken or damaged in ascertained by the
jury upon one trial, they shall ascertain and return in their verdict the
compensation to be paid for each distinct lot or parcel of land or property
taken or damaged or for each fractional interest in any allotment or part
thereof taken or damaged. Upon request, the court may provide the jury with
technical assistance in computing the compensation determined.
47-23-01 RECORDING OR VERDICT - JUDGEMENT ON VERDICT
Upon the return of the verdict, the court shall order the same to be recorded,
and shall enter such judgement thereon as the nature of the case may require,
and that the plaintiff pay to the persons entitled thereto the amount of
compensation ascertained by the verdict.
47-24-01 EFFECT OF JUDGEMENT
Subject to the right of a defendant to seek review of any Tribal Court judgement
in the United States District Court-, pursuant to Section 8 (c) of the Act of
October 19, 1984, 98 Stat. 2411; and Section 47-25-01 of this Chapter, a final
judgement in favor of the Tribe is conclusive as to the title of the Tribe, in
and to the interest in the trust or restricted land described in said judgement,
against any and all, parties in said action, including unknown defendants, and
against any and all persons claiming from, through or under such a party by
title accruing after the filing of the judgement by the clerk of the Tribal
Court or after the filing of a notice of pendency of the action pursuant to
Section 47-10-01 of this Chapter.
47-25-02 JUDICIAL REVIEW - INTERTRIBAL COURT OF APPEALS AND/OR UNITED
STATES DISTRICT COURT
In all case provided for this Chapter, appeals shall be allowed to the
Intertribal Court of Appeals or such other appellate tribunal as may be provided
by the Tribe, the same as in other civil actions. Any appeal to the Intertribal
Court of Appeals shall be taken in accordance with the Uniform Code and Rules of
said Court. In accordance with Section 8 (c) of the Act of October 19, 1984, 98
Stat. 2411, a final judgement of the Intertribal Court of Appeals or such other
appellate tribunal as may be provided by the Tribe may be reviewed by the United
States District Court for the district within which the affected interest in
land is located. In order to obtain such federal court review, a notice of
appeal shall be filed with the clerk of the Tribal Court and with the clerk of
the federal court within thirty days of the date of entry of the judgement or
order of condemnation from which an appeal is taken. If a timely notice of
appeal is filed by a party, and other party may file a notice of appeal in the
same manner within fourteen days of the date on which the first notice of appeal
was filed. Any judicial review under this section, either by the Intertribal
Court of Appeals or the United States District Court, shall not delay or prevent
the plaintiff from proceeding with the work or improvement for which the
plaintiff sought condemnation; provided that the plaintiff shall deposit with
the clerk of court, for the use and benefit of the defendant seeking Intertribal
Court of Appeals or federal court review such sum as shall be awarded by the
verdict and shall give to such defendant a bond in such sum as the court shall
direct, to secure the payment of any additional sum which may be awarded to the
appellant in the future proceedings therein.
47-26-01 SEVERABILITY
If any clause, sentence, paragraph, section, or part of this code shall, for any
reason be adjudicated by any court of competent jurisdiction, to be invalid or
unconstitutional, such judgement shall not affect, impair, or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, section, or part thereof directly involved in the
controversy in which the judgement shall have been rendered.