CHAPTER
33
CIVIL
MATTERS
33-01-01
APPLICABLE LAW
Civil matters shall be governed by the laws, customs, and usages
of the Tribe not prohibited by the laws of the United States. The laws
of the State of South Dakota may be employed as .a guide. Where doubt
arises as to the customs and usages of the Tribe, the Court shall request
the advice of Tribal Elders/Advisors familiar with Tribal customs and
usages. Where appropriate, the laws of the State of South Dakota may
be employed to determine civil matters. The laws of the State of South
Dakota shall not be used as a substitute for existing Tribal laws.
33-02-01 TRIBE
IMMUNE FROM SUIT
The Court shall have no jurisdiction over any suit brought against
the Tribe without the consent of the Tribe, unless by specific legislation
the Tribe has restricted its sovereign immunity under certain circumstances.
Nothing in this Code shall be construed as consent by the Tribe to be
sued.
33-03-01 LIMITATION
OF ACTIONS FOR DEBT OR DAMAGES
The Court shall have no jurisdiction over any action for debt or
damages brought more than two (2) years after the cause of action arose.
Provided That, whenever the Tribe (as Plaintiff) maintains a civil
cause of action in Tribal Court, no statute of limitations shall apply
to bar such action.
33-04-01 COSTS
In civil actions, costs shall be awarded to the prevailing party as
part of the final judgment unless the Court otherwise orders. No costs
shall be awarded against the Tribe, or against any officer of the Tribe
or members of the Tribal Council sued in his official capacity. Costs
shall include filing fees, reasonable and necessary expenses of the
involuntary witnesses, compensation to jurors, and such other proper
and reasonable expenses, exclusive of attorneys' fees, as the Court
may allow.
33-05-01 JUDGMENTS
A judgment shall be entered in each civil case. The judgment
shall be for money or other relief.
33-05-02 Judgement
by Default
Upon failure of any party duly served to appear at the hearing,
the Court shall enter the appropriate default judgment granting relief
or dismissing the case. Where the relief sought is other than for a
liquidated amount, no default judgment for claimant shall be entered
except upon proof.
33-O5-03 Life
of Judgement
No judgment of the Court for money shall be enforceable after five
(5) years from the date of entry, unless the judgment shall have been
renewed before the date of expiration by an institution of appropriate
proceedings in the Court under 33 Provided That, whenever the Tribe
(as Plaintiff) is seeking relief, no statute of limitations shall apply
to bar such judgment.
33-05-04 Renewal
of Judgment
Upon application of the judgment creditor prior to the expiration
of five (5 years after the date of entry of a judgment for money, the
Court shall order the judgment renewed and extended -not to exceed five
(5) years, unless in the discretion of the Court, the judgment should
be further extended.
33-06-01 PROCEDURES
IN CIVIL SUITS
Commencement of Civil Proceedings Except as otherwise provided in
this code, with the Clerk, accompanied by a filing _fee of twenty dollars
($20.00) and the cost of service under 33-06-02. Tribal Civil Form
No. 1, or its equivalent, may be used.
33-06-03 Time
of Hearing
Hearing on the claim shall be scheduled for the first available
date, at least fifteen (15) days after the claim is filed, if service
is by mail, and at least ten (10) days after the claim is filed, if
service is by personal delivery.
33-06-04 Service
The Clerk shall furnish the plaintiff with a copy of the notice
showing the time and place of hearing. Each defendant shall be served
with a copy of the statement of claim and a notice of the time and place
of hearing on the claim. Service by mail shall be made by the Clerk
by registered or certified mail, return receipt requested. Service in
person shall be made by any adult not a party to the case.
33-06-05 Proof
of Service
The return postal receipt, filed in the case record, shall constitute
proof of service by mail. The affidavit of service by the person making
personal service, filed in the case record, shall constitute proof of
service.
33-07-01 SMALL
CLAIMS PROCEDURE
Sections 33-07-02 through 33-07-26 shall be known as small claims
procedures, and is the procedure for the determination according to
the rules of substantive law, of claims in the nature of contract or
tort, other than slander and libel, in which the plaintiff does not
claim as debt or damages more than one hundred dollars ($100.00); and,
for review of judgments upon such claims when justice so requires.
33-07-02 Entry
Fee. Summons Not Required. Statement to Clerk or Justice in Lieu of
Pleading
The procedure shall include the beginning of actions with an entry fee
of two dollars ($2.00), but without summons, and without requirements,
except by special order of the Court, of other pleading than a statement
to the Clerk of Court, who shall reduce the same to concise written
form in a docket kept for the purpose.
33-07-03 Procedure. Attorneys
Barred. Presentation of Evidence Proof of items of Account. Investigation
by Judge. Judgment and Orders. Actions by Assignees
1. Actions by assignees. No Attorney at Law or other person than
the plaintiff and defendant shall take part in the filing or the prosecution
or defense of such litigation in the small claims court.
2. The
plaintiff and defendant shall have the right to offer evidence in their
behalf by witnesses appearing at such hearing, or at any other time.
The presence of the plaintiff or defendant, whether individual or corporate,
at the hearing shall not be required to permit the proof of the items
of an account. The Judge or Justice may also informally make any investigation
of the controversy between the parties, either in or out of Court and
give judgment and make such orders as to time of payment or otherwise
as may, by him, be deemed to be right and just.
3. No claim
shall be filed or prosecuted in small claims court by the assignee of
such claim, unless such assignment is bona fide and for a valuable consideration.
Any assignment made for collection purposes only, shall not be considered
to be bona fide within the meaning of Sections 33-07-02 through 33-07-26
of this Chapter.
33-07-04 Plaintiff's
Statement of Claim to Clerk Entry in Docket Signature. List of items
in Claim
The plaintiff shall state the nature and amount of his claim to
the Clerk who, after due inquiry, shall cause the claim to be reduced
to writing in the docket in concise, untechnical form, and to be signed
by the plaintiff. The signature shall be deemed the beginning of the
action. If the claim involved more than three items, the plaintiff shall
deliver to the Clerk, a fair list of such items, numbered consecutively.
33-07-05
Addresses of Parties Stated to Clerk. Notation in Docket.
The plaintiff shall also state to the Clerk the plaintiff's and
defendant's place of residence, usual place of business, and the place
of employment, or such thereof as the Clerk may deem necessary, including
the street and number, if any; and, the Clerk shall note the same in
the docket.
33-07-06 Determination
of Sufficiency of Plaintiff's Statement to make Prima Facie Case.
If the Clerk deems the statement of claim insufficient to make a
prima facie case, the Court at the request of the plaintiff shall decide
whether such-claim shall be received. `-'
33-07-07
Time of Hearing on Claim. Memorandum to Plaintiff.
The Clerk shall fix the time set for the hearing which shall not
be less than ten (10) days from the beginning of the 'action. The time
fixed should be sufficient to able registered or certified mail. by
regular course to each defendant and to enable defendant to appear in
person before the Court on the day fixed for the hearing. The Clerk
shall give to the person signing the claim, a memorandum of the time
and place set for the hearing.
33-07-08
Notice by Mail to Defendant. Form of Notice.
The Clerk shall mail to the defendant, at one or more of the addresses
supplied by the plaintiff, as the Clerk may deem necessary or proper,
by registered or certified mail, return receipt requested, the expense
being prepared by the plaintiff, a notice signed by the Clerk, bearing
the seal of the Court and bearing the like a writ which, after setting
forth the name of the Court, shall read substantially as follows:
"To_____________"
(HERE INSERT NAME OF DEFENDANT).
"To_____________"
(HERE INSERT NAME OF PLAINTIFF) ASKS
JUDGMENT
IN THIS COURT AGAINST YOU FOR (HERE INSERT THE
AMOUNT CLAIMED IN DOLLARS AND CENTS) UPON THE FOLLOWING CLAIM: ____________
(HERE INSERT THE NATURE OF CLAIM AS IT APPEARS ON THE DOCKET; BUT NO
LIST OF ITEMS NEED BE INCLUDED).
THE COURT WILL GIVE A HEARING UPON THIS CLAIM AT _____________________
(HERE INSERT THE LOCATION OF THE COURTHOUSE AND THE ROOM THEREIN, OR
THE OFFICE OF THE JUSTICE, AS MAY BE NECESSARY) AT A.M./ P.M. (HERE
INSERT THE TIME AND CIRCLE A.M./ P.M. AS THE CASE MAY BE)_________________(HERE
INSERT THE DATE, INCLUDING THE DAY OF THE WEEK AS MAY BE PRESCRIBED
BY GENERAL OR SPECIAL ORDER OF THE COURT.
IF YOU DENY THE CLAIM, IN WHOLE, OR IN PART, YOU MUST, NOT LATER THAN
__________ (HERE INSERT THE DATE, INCLUDING THE DAY OF THE WEEK, OF
THE DATE SET FOR THE HEARING), PERSONALLY STATE TO THE CLERK, ORALLY
OR IN WRITING, YOUR FULL AND SPECIFIC DEFENSE TO SAID CLAIM, AND YOU
MUST ALSO APPEAR AT THE HEARING. UNLESS YOU DO BOTH, THE JUDGMENT MAY
BE ENTERED AGAINST YOU BY DEFAULT. IF YOUR DEFENSE IS SUPPORTED BY WITNESSES,
ACCOUNT BOOKS, RECEIPTS, OR OTHER DOCUMENTS, YOU SHOULD PRODUCE THEM
AT THE HEARING. SUBPOENAS FOR WITNESSES, IF REQUESTED, WILL BE ISSUED
BY THE CLERK, WITHOUT FEE.
IF YOU
ADMIT THE CLAIM, BUT DESIRE TIME TO PAY, YOU MUST, NOT LATER THAN _________
(HERE INSERT THE DATE, INCLUDING THE DAY OF THE WEEK OF THE DATE SET
FOR HEARING), PERSONALLY STATE TO THE CLERK, ORALLY OR IN WRITING, THAT
YOU DESIRE TIME TO PAY, AND YOU MUST ALSO APPEAR AT THE HEARING AND
SHOW YOUR REASONS FOR DESIRING TIME TO PAY.
33-07-09 Docket
entries on Notice to Defendant
The Clerk shall note in the docket the mailing date and address, the
date of delivery shown by the return receipt and the name of the addressee
or agent, signing, the receipt.
33-07-10 Notice
Valid though Refused by Defendant. Further Notice on Failure of Delivery.
If the notice is returned undelivered, without refusal by the defendant,
or if-in any other way it appears that the notice has not reached the
defendant, the Clerk shall issue, at the expense of the plaintiff, such
other or further notice as the Court may order.
33-07-11 Jury
Trial and Appeal Waived by Plaintiff
A plaintiff beginning an action under the procedure shall be deemed
to have waived a trial by jury.
33-07-12 Court
Order Required for Attachment or Garnishment. Form of Process.
No process of attachment or garnishment shall issue under this procedure,
except upon the order of the Court. Such order shall state the amount
of the attachment or garnishment and the property or credits to be attached.
The form of the process shall be substantially that required for supplementary
process in ordinary civil action.
33-07-13 Docket
Entry as to Defense - Contents of Entry
The Clerk shall enter the substance of the defendant's defense in
the docket, and the docket entry shall be deemed the answer. The answer
shall state fully and specifically, but in concise and untechnical form,
what parts of the claim are contested, and the grounds of such contest.
Demurrers, dilatory pleas, and the answer of general denial are prohibited.
33-07-14 Setoff
or Counterclaim Stated by Defendant. Notice to Plaintiff and Postponement
of Hearing. Answer by Plaintiff.
The defendant, within the time for answer, may in the manner provided
in 33-07-04, claim any setoff or counterclaim within the jurisdiction
of the Court in civil cases. Upon the making of such claim by the defendant,
the Clerk shall give notice to the plaintiff, at the expense of the
defendant, similar to that provided in 33-07-08 and shall postpone the
hearing of the original claim until the time set for hearing the defendant's
claim, and shall notify the parties accordingly. The defendant's claim
shall be answered in the manner provided by 33-07-06. The original claim
and the claim of setoff or counterclaim shall be deemed one case.
33-07-15 Amendments
of Claim or Answer.
The Court may at any time allow any claim or answer to be amended.
33-07-16 Cases
not Ready for Judgment Until Time for Hearing.
No case shall be deemed ready for judgment before the time set for
the hearing.
33-07-17 Disposition
of Claim on Failure of Plaintiff to Appear for Hearing.
If the plaintiff does not appear at any time set for hearing, the
court may dismiss the claim for want of prosecution, or enter a finding
on the merits for the defendant or make such other disposition as may
be proper.
33-07-18 Subpoenas
for Witnesses.
Subpoenas for witnesses, if required, will be issued by the Clerk,
without fee, which may be served by either party.
33-07-19 Witnesses
and Evidence Received on Hearing.
Witnesses shall be sworn; but the Court shall conduct the hearing
in such order and form and with such methods of proof as it deems best
suited to discover the facts and to determine the justice of the case.
33-07-20 Signature
of Docket on Determination of Action.
After the determination of the action, the Judge shall affix his
signature to the docket card.
33-07-21 Items
Allowable as Costs. Costs Assessed for Delay or Vexation Claim or Defense.
Judgment and Execution for Costs
The actual cash disbursement of the prevailing party for entry fee,
mailing fees, witness fees, and officer's fees shall be allowed as costs.
No other costs shall be allowed either party, except by special order
of the Court. The Court shall have the power in its discretion to award
costs, in a sum fixed by the Court, not exceeding twenty-five dollars
($25.00), (exclusive of such cash disbursements, or in addition thereto)
against any party, whether the prevailing party or not, who has set
up a frivolous or vexatious claim or defense, or has made an unfair,
insufficient, or misleading answer, or has otherwise sought to hamper
a party or the Court in securing a speedy determination of the claim
upon its merits; and to enter judgment and issue execution therefor,
or set off such costs against damages or costs, as justice may require.
33-07-22 Court
Order as to Method of Payment of Judgment. Stay of Execution During
Compliance.
The Court may order that the judgment shall be paid to the prevailing
party or, if it so orders, into Court for the use of the prevailing
party, at a certain date or by specified installments, and may stay
the issue of execution and other supplementary process during compliance
with such order. Such stay shall, at all times, be subject to being
modified or vacated.
33-07-23 Grounds
for Vacation of Judgment and Stay of Execution Repayment Order.
The Court may, at any time, within six (6) months after entry of
judgment, upon motion, and after such notice, by mail or otherwise,
as it may order, for cause shown, vacate any judgment entered under
this procedure, for want of actual notice to a party, for error, or
for any other cause that the Court may deem sufficient and may stay
or supersede the execution. The Court may also order the repayment of
anything collected. under such judgment, and may enter judgment and
issue execution therefor; but no order shall affect the title of any
bona fide holder for value under said judgment.
33-07-24 Costs
Awarded on Motion to Vacate Judgment.
Costs in an amount fixed by the Court not exceeding twenty-five
dollars ($25.00) may be awarded in the discretion of the Court, for
or against either party, to a motion to vacate judgment, and judgment
may be entered and execution may be issued therefor, and any action
by the Court may be made conditional upon the payment of such costs
or the performance of any other proper conditions.
33-07-25 Form
and Contents of Docket. Preservation of Other Papers not Required.
1. The
docket shall consist of cards, envelopes, or folders, and such other
documents as may be incorporated therein by reference. Nothing shall
be deemed part of the record except the docket entries.
2. Any
written papers delivered to the Clerk shall merely be authority for
the Clerk to enter the substance thereof on the docket, and such papers
need not be filed or preserved.
33-07-26
Forms for use in Small Claims Procedures.
The following forms are prescribed for use in small claims procedures,
but failure to use or fill out completely or accurately any of the same
shall not void any acts done pursuant to this Chapter, provided compliance
with the preceding section is made and the information required by such
sections or the following forms is substantially and accurately recorded
and furnished in writing as required by this Chapter. (Above mentioned
forms on following pages.)
33-08-O1
ADJUDICATION
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 judgment 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 judgment shall have been rendered.
Small Claims
Form #1
MEMORANDUM
TO PLAINTIFF:
To:________________________________________________
The case
of, yourself v. _______________________________
will be
heard on _________________, 19________, at ______
o'clock
__________m., at _____________________________
If your
claim is supported by witnesses, books, of account, or documents, they
should be produced at the hearing.
If your
claim is an unliquidated claim, the amount of damages must be proven
at the hearing, whether the defendant defends or not.
________________________________________
CLERK (or
Justice of the Peace)
SMALL CLAIMS
PROCEDURE
CLAIM:
_____________________________________________________
_____________________________________________________
PLAINTIFF
ANSWER:
____________________________________________________
____________________________________________________
DEFENDANT
LAKE TRAVERSE RESERVATION
OLD AGENCY BOX 509
AGENCY VILLAGE, SOUTH DAKOTA 57262-O509
PHONE: (605) 698-3911 TRIBAL
COUNCIL RESOLUTION NO. SWST-98-074
Tribal
Court Fee Schedule
WHEREAS, The Sisseton-Wahpeton Sioux Tribe is organized under
a Constitution and By-Laws adopted by the members of the Tribe on August
1-2, 1966, and approved by the Commissioner of Indian Affairs on August
25, 1966; and,
WHEREAS, The
Constitution and By-laws ARTICLE VII, Section 1, that the Tribe shall
be governed by the Tribal Council, and that the Tribal Council shall
have the power to: (a) represent the Tribe in all negotiations with
federal, state, and local governments; (c) to engage in any business
that will further the economic development of the Tribe and its members
and to use tribal funds or other resources for such purposes; (d) to
make rules- governing the relationship of the members of the Tribe,
to Tribal. properly, and to one another as members of the Tribe; (g)
to take actions by ordinance, resolution or otherwise which are reasonably
necessary, through committees, boards, agents, or otherwise, to carry
into effect the foregoing purposes; (h) to promote public health, education,
charity and other services as may contribute to the social advancement
of the members of the Sisseton-Wahpeton Sioux Tribe; and, (i) to adopt
resolutions regulating the procedures of the Tribal Council, its officials
and committees in the conduct of the Tribal Affairs; and,
WHEREAS, The
Constitution and By-laws governing the Tribe authorize the Tribal Council
to enact criminal and civil laws governing the conduct of tribal members
and other persons within the jurisdiction of the Tribe; and,
WHEREAS, The
Tribal Council has previously, through the enactment of Chapter 21 of
the Sisseton-Wahepton Sioux Tribe Code, created a Tribal Court of Law
in accordance with Article III, Section S(d) of the Tribe's Constitution
to make available a forum for the resolution of disputes that arise
within the Tribe's jurisdiction; and, The Tribe Council; through the
enactment of Rule 2(f) of Chapter 21 and Chapter 33-O6-02 of the SWST
Code, has set the filing fees for civil cases in the amount of twenty
five dollars ($25.00) and has also the fee for attorneys to be admitted
to practice before the Tribal Court as five dollars ($5.00) as provided
for at Chapter 32-02-01 of the Tribe Code; and,
WHEREAS, The
Tribal Court, through its Chief Judge, has proposed a fee schedule to
the Council for the collection of fees for the processing of civil and
criminal cases in the Tribal Court as has also proposed an annual fee
for attorneys and lay advocates to practice before the Tribal Court;
and,
WHEREAS, The
fees proposed by the Court will assist the Court in dealing with the,
increased caseloads that it faces as the results of the increasing numbers
of cases that are filed with the Court and will also permit the Court
to get reimbursed for the service of process expenses it incurs for
serving notice for private parties in civil cases, and,
WHEREAS, The
fee for membership in the Tribal bar, five dollars ($5.00) is very low
compared to other tribal courts and that a more reasonable fee is called
for in light of the benefits attorneys gain from being able to practice
law before the Tribal court; and,
WHEREAS, The
proposed fee schedule has been reviewed by the Tribal Judicial Committee
which said Committee supports the adoption of the fee schedule to be
implemented upon passage of this resolution.
NOW,
THEREFORE, BE IT RESOLVED, That the Tribal Council of the Sisseton-Wahpeton
Sioux Tribe hereby does amend Chapter 32-02-01 of the Sisseton-Wahpeton
Sioux Tribal Code as follows:
32-02-01
Filing Fee: A filing fee of one hundred dollars ($100.00) for licensed
attorneys and twenty dollars ($20) for non-attorney tribal members shall
accompany each application for admission to the Bar. Upon an attorney's
admission to the Bar, he shall be required to pay as an annual practice
fee the amount of $100.00 to the Tribal Court on or before the 1st day
of January of each year commencing 1999.
FURTHER
BE IT RESOLVED, That the Tribal Council of the Sisseton-Wahpeton
Sioux Tribe does hereby repeal Chapter 33-06-02 of the Tribal Code dealing
with filing fees and does further amend Rule 2(f) of the Rules of Civil
Procedure containing in Chapter 21-14-02 of the Sisseton-Wahpeton Sioux
Tribe Code as follows:
21-14-02
Rule 2(f): An action shall be commenced by filing a complaint or
petition with the Clerk of Courts. The Clerk shall collect a filing
fee of twenty-five dollars ($25.00) and a service fee of five dollars
($5.00) for filing any complaint or petition which commences an action.
No filing fee shall be charged a tribal entity nor shall a fee be charged
for amendments to a previously filed complaint, or the filing of other
pleadings or documents contemplated by the Rules except the Tribal Court
may charge reasonable fees under a fee schedule approved by the Tribal
Court, for the issuance of orders or the performance of other duties
for the public. Filings may be accomplished in person or by mailing
to Clerk, Sisseton-Wahpeton Sioux Tribal Court, P.O. Box SGI~, Agency
Village, South Dakota 57262; and,
FINALLY,
BE IT RESOLVED, That the attached fees submitted by the Tribal Court
and approved by the Judicial Committee are hereby approved and can be
implemented by the Tribal Court.
CERTIFICATION
We, the
undersigned duly elected Chairman and Secretary of the Sisseton-Wahpeton
Sioux Tribal Council, do hereby certify that the above resolution was
duly adopted by the Sisseton-Wahpeton Sioux Tribal Council, which is
composed of 10 members, (representing a total of I S Tribal Council
weighted votes) of whom 10 constituting a quorum, were present at a
Tribal Council meeting, duly noticed, called, convened and held at the
TiWakan Tio Tipi, Agency Village, South Dakota, June 10, 1998 by a vote
of for, 0 opposed, 0 abstained, 0 absent from vote, I not voting, and
that said Resolution has not been rescinded or amended in any way.
Dated this
10th of June, 1998
ATTEST:
Darrell
Quinn, Sr., Tribal Secretary
Sisseton-Wahpeton Sioux Tribe
Andrew
J. Grey Sr., Tribal Chairman
Sisseton-Wahpeton Sioux Tribe
Original
Copy to Tribal Court
CC: Judicial
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