Yankton Sioux Tribal Code
Last Revised: 1995
TITLE VII - YANKTON SIOUX TRIBAL DOMESTIC RELATIONS CODE
CHAPTER I. MARRIAGE
Sec. 7-1-1 Marriage License
A. No marriage shall be performed under authority of this Code unless the parties have first obtained a marriage license from the Clerk of the Yankton Sioux Tribal Court.
B. Upon payment of a $3.00 fee, the Clerk shall issue a marriage license to persons who appear entitled to be married as provided in this Domestic Relations Code.
C. The Clerk shall keep a record of all marriage licenses and certificates issued.
D. The marriage license, properly endorsed by the person performing the marriage, shall be returned to the Clerk who shall issue a marriage certificate to the parties.
Sec. 7-1-2 Existing Marriages
A. All marriages performed other than as provided for in this Domestic Relations Code, which are valid under the laws of the jurisdiction where and when performed, are valid within the jurisdiction of the Yankton Sioux Tribe.
B. All marriages performed on the Yankton Sioux Tribe Indian Reservation prior to the effective date of this Code, including those perfected according to any Tribal custom, are declared valid for all purposes under this Code. Parties to such marriages may obtain a marriage certificate upon proof to the Clerk by affidavit or otherwise of the validity of their marriage, and payment of a $10.00 fee.
Sec. 7-1-3 Persons Who May Marry
A. No marriage license shall be issued or marriage performed unless the persons to be married meet the following qualifications:
1. They are at least 14 years old and, if over 14 years of age but less than 18 years of age, have the written consent of their parents or guardians, properly notarized, to marry;
2. At least one of the persons to be married is an enrolled member of the Yankton Sioux Tribe;
3. Both parties to the marriage have obtained a blood test to detect venereal disease within 30 days prior to the marriage and such test results were negative. A certificate of the test results shall be presented to the clerk before any license is issued.
Sec. 7-1-4 Who May Perform Marriages
A. A marriage may be solemnized on the Reservation by any of the following:
1. Recognized clergymen or persons recognized by their religions as having authority to marry;
2. A judge of the Yankton Sioux Tribe;
3. The Chairman of the Yankton Sioux Tribe;
4. Any person recognized by South Dakota Law as having authority to marry.
B. No marriage solemnized before any person professing to have authority to marry shall be invalid for want of such authority, if consummated in the belief of the parties or either of them that such person had such authority and that they have been lawfully married.
Sec. 7-1-5 Marriage Ceremony
No particular form of marriage ceremony is required, provided, however, that the persons to be married must declare in the presence of the person performing the ceremony, that they take each other as husband and wife, and he thereafter declares them to be husband and wife.
Sec. 7-1-6 Void and Voidable Marriages
A. Marriages between ancestors and their descendants, between brothers and sisters, of half as well as the whole blood, between an uncle and his niece or an aunt and her nephew, or between first cousins are void from the beginning, whether or not the degree of relationship is legitimate or illegitimate.
B. Marriages between a person who is at the time of the marriage, married to another person still living are void; provided, however, that such marriages will be considered valid until ruled otherwise by a Court of Competent jurisdiction if the party previously married:
1. Actually believed in good faith that the prior marriage had been dissolved as a result of divorce or annulment; or
2. Actually believed, in good faith, that his or her prior spouse is dead.
3. When a marriage is contracted in good faith and in the belief that it is a valid marriage, the issue of such marriage born or conceived prior to the voiding or receiving notice of the invalidity of the marriage for any reason shall be the legitimate issue of both parents.
4. If either party to a marriage is incapable as a result of some physical cause to enter into the marital state and such cause appears to be permanent, or if the consent of either party to marry was obtained by force or coercion the marriage is voidable.
CHAPTER II. ANNULMENT
Sec. 7-2-l Grounds for Annulment
A marriage maybe annulled for any of the following causes existing at the time of marriage:
A. That the party in whose behalf it is sought to have the marriage annulled, was under the age of 18 years, and such marriage was contracted without the consent of his or her parents or guardian, or persons having charge of him or her, unless, after attaining the age of consent, such party freely cohabits with the other as husband and wife;
B. That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force;
C. That either party was of unsound mind, unless such party, after coming into reason, freely cohabited with the other as husband or wife;
D. That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud; freely cohabited with the other as husband or wife;
E. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife;
F. Impotence which continues and appears to be incurable.
Sec. 7-2-2 Action to Annul - Parties and Limitations
An action to obtain a decree of annulment of a marriage for causes mentioned in the preceding section, must be commenced within the periods and by the parties as follows:
A. For causes mentioned in Subsection 1, by the party to marriage who was married under the age of legal consent, within two years after arriving at the age of consent, or by a parent, guardian or other person having charge of such minor, at any time before such married minor has attained the age of legal consent.
B. For causes mentioned in Subsection 2 by either party during the life of the other or by the former husband or wife;
C. For causes mentioned in Subsection 3 by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party;
D. For causes mentioned in Subsection 4 by the party injured, within two years after the discovery of the facts constituting a fraud;
E. For causes mentioned in Subsection 5 by the injured party within four years after the marriage;
F. For causes mentioned in Subsection 6 by the injured party within two years after the marriage.
Sec. 7-2-3 Legitimacy of Children
When a marriage is annulled for any reason, other than for fraud in that the wife is pregnant with a child from a man other than the husband, children begotten before judgment are legitimate and succeed to the estate of both parents. The Court may at the time of granting the annulment or at any future time, make necessary orders for the custody and support of said child or children as the circumstances of the parents may require.
Sec. 7-2-4 Conclusiveness of Judgment of Annulment
A judgment of annulment of a marriage is conclusive only as against the parties to the action and those claiming under them.
CHAPTER III. DIVORCE
Sec. 7-3-1 Divorce and Annulment Procedure
Proceedings in divorce and annulment shall be commenced and conducted in the manner provided by law for civil cases, except as otherwise specifically provided. A final decree of divorce shall restore the parties to the status of unmarried persons.
Sec. 7-3-2 Residence Requirements for Divorce, Annulment, or Separate Maintenance
The plaintiff in an action for divorce, annulment or separate maintenance must, at the time the action is commenced, be a resident of the Yankton Sioux Tribe Indian Reservation, and in order that each party be entitled to the entry of a decree or judgment of divorce, annulment or separate maintenance, that residence must be maintained until the decree is entered.
Sec. 7-3-3 Waiting Period Before Trial of Divorce, Annulment or Separate Maintenance
An action for divorce, annulment or separate maintenance shall not be heard, tried, or determined by the tribal court until at least sixty days have elapsed from the completed service of the plaintiff's summons and complaint therein. During said waiting period the court may issue all orders required in respect to temporary alimony, support and child custody or to protect any of the parties of the action during the pendency thereof.
Sec. 7-3-4 Grounds For Divorce
A divorce may be granted for any of the following causes:
A. Irretrievable breakdown of the marriage;
B. Impotency of the defendant from the time of the marriage where such impotency continues to the time of the commencement of the action;
C. Adultery committed by the defendant subsequent to marriage;
D. Willful desertion of the plaintiff by the defendant for more than one year;
E. Willful neglect of the defendant to provide for the plaintiff the common necessities of life for a period of six months;
F. Habitual drunkenness or drug incapacitation of the defendant for a period of at least one year;
G. Conviction of the defendant of a Class A offense under the Yankton Sioux Tribal Law and Order Code, or of a felony in any other court;
H. Cruel treatment of the plaintiff by the defendant to the extent of causing bodily injury or great mental distress to the plaintiff;
I. When the parties have lived apart without cohabitation for a period of three consecutive years either voluntarily or under a decree of separate maintenance;
J. Permanent insanity of the defendant; provided, however, that no divorce shall be granted on this ground unless the defendant has been duly and regularly adjudicated insane by court of competent jurisdiction and such insanity reasonably appears to be permanent; further no divorce shall be granted unless a guardian ad litem has been appointed to represent the defendant in the divorce proceedings.
Sec. 7-3-5 Limitations
A divorce must be denied:
A. When the cause is adultery and the action is not commenced within one year after its discovery by the injured party;
B. When the cause is conviction of an offense and the action is not commenced before the expiration of one year after a pardon or the termination of the period of sentence; or
C. In all cases when there is unreasonable lapse of time before the commencement of the action, or two years have passed since the grounds became or should have become known to the complaining party.
Sec. 7-3-6 Right of Husband to Divorce
The husband may in all cases obtain a divorce from his wife for the same causes and in the same manner the wife may obtain a divorce from her husband.
Sec. 7-3-7 Temporary Alimony and Suit Money; Restraint
The court may after notice and hearing:
A. Order either party to pay to the clerk for the benefit of the other party a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute and defend the action;
B. Restrain either party from doing certain acts harmful to the other or to the children, or to the property of either, during the pendency of the divorce proceedings.
Sec. 7-3-8 Pleadings; Findings; Decree
The complaint shall be in writing and signed by the plaintiff. No decree of divorce shall be granted upon default or otherwise, except upon legal evidence taken in the cause by the Court who shall make and file its findings and decree upon the evidence.
Sec. 7-3-9 Disposition of Property and Children
When a decree of divorce is made the court shall make such orders in relation to the children, property and parties, and the maintenance of the parties and children by alimony and child support as may be equitable. Subsequent changes or new orders may be made by the court with respect to the custody of the children or the distribution of property as shall be reasonable and proper upon notice of hearing.
Sec. 7-3-10 Custody of Children in Case of Separation
In any case of separation of husband and wife having minor children, or whenever a marriage is declared void or dissolved, the court shall make such order for the future care and custody of the minor children as it may deem just and proper. In determining custody, the court shall consider the best interest of the child and the past conduct and demonstrated predictions of each of the parties and the natural presumption that the mother is best suited to care for young children. The court may inquire of the children and take into consideration the children's desires regarding the future custody; however such expressed desires shall not be controlling and the court may nevertheless determine the children's custody otherwise.
CHAPTER IV. SEPARATE MAINTENANCE AND PROPERTY RIGHTS
Sec. 7-4-l Separate Maintenance
A. A person living on the Reservation, who through no fault of his or her own or by agreement with his or her spouse, is living separate and apart from such spouse where such spouse has failed to support him or her when otherwise able to so, may maintain an action for a decree of separate maintenance.
B. During the pendency of the action, the Court may order the spouse to pay temporary alimony and suit money as in an action for divorce upon notice and hearing.
C. If it appears that the person is entitled to such, the Court shall grant a decree of separate maintenance awarding custody of children, alimony, child support and expenses of suit as may be equitable under the circumstances.
Sec. 7-4-2 Property Rights of Married Persons
A. Either a wife or a husband can obtain, own, hold, give, sell or otherwise deal with real property as if they were unmarried.
B. Both wives and husbands can enter into contracts and sue or be sued to the same extent and in the same manner as if unmarried.
C. Neither a wife nor a husband nor the property of either in which their spouse has no interest is liable for the debts or obligations of the other spouse solely by reason of marriage to the other spouse.
D. A conveyance, transfer, or lien executed by either husband or wife in favor of the other shall be valid to the same extent as between other persons.
Sec. 7-4-3 Family Expenses
The expenses of the family and the education of the children are chargeable upon the property of both husband and wife or either of them, and they may be enforced jointly or separately.
CHAPTER V. GUARDIANSHIP
Sec. 7-5-l Jurisdiction
A. The Yankton Sioux Tribal Court shall have authority, whenever it appears necessary or convenient, to appoint guardians for the persons and/or estates, or for the purpose of actual or contemplated litigation (guardian ad litem) of either minors or persons incompetent by reason of physical or mental sickness or deficiency, advanced age, or chronic use of drugs or alcohol.
B. The Yankton Sioux Tribal Court shall have authority to appoint guardians when the person for whom the guardianship is sought is a member of the Tribe or the child of a member of the Tribe, whether or not he lives on the Reservation.
C. The Tribal Court may, in its discretion, refer matters concerning the guardianship of a minor to the Tribal Juvenile Court.
Sec. 7-5-2 Appointment of Guardian in Connection With Probating an Estate
A. The Court may, in the process of administering an estate for which there is a valid will containing a designation of a guardian for minor children if orphaned by the deceased's death, appoint the person therein designated as guardian of the minors involved without the necessity of a separate guardianship hearing.
B. If the person so designated is unable or unwilling to serve, or if such person's appointment is objected to by any child over 14 years of age, or if the Court deems such to be in the minor's best interest, a separate guardianship hearing shall be held as provided herein.
Sec. 7-5-3 Petition
A. Except as provided in the preceding section, guardianship proceedings shall be initiated by the filing of a petition by a relative or other person on behalf of the minor or incompetent, or by a minor himself if over 14 years of age. The Court may initiate proceedings to appoint a guardian if such appointment reasonably appears necessary and no other person has initiated such proceedings.
B. The petition shall set forth the name of the petitioner; the petitioner's relationship to the minor or incompetent; shall list all known relatives of the minor or incompetent and their addresses, relationships and ages insofar as is known to petitioners; shall list all property of the minor or incompetent, real and personal, known to petitioner; shall list in detail the present conditions and circumstances which warrant the appointment of a guardian; shall pray that Letters of Guardianship be issued to himself or some other suitable person to act as guardian of the minor or incompetent.
Sec. 7-5-4 Notice; Hearing
A. The petitioner, or the Clerk of the Court, if a minor or the Court itself initiates the proceeding, shall cause notice of the hearing to be given by mail or personal service to all known interested persons listed on the petition not less than five (5) days before scheduled hearing. Such notice need not be given in the case of a minor whose parents appear and consent to waive such notice prior to the hearing or in the case of an adult where the spouse and children living on the Reservation appear and waive such notice. An appearance and waiver may be made personally or by affidavit to the Court.
B. Hearing for Minor. At a hearing conducted to appoint a guardian for a minor, the Court shall: examine the petition; determine the need to have a guardian appointed; examine the minor (if over 14 years of age) to determine who he would prefer to have as his guardian; determine which person, either the petitioner or some other person, is most suitable to act as guardian, and that person's willingness to act as such; and make an order appointing a guardian setting forth the scope of the guardian's authority, whether or not security for his performance is to be required, and the duration of such appointment.
C. Hearing for Incompetent. At a hearing conducted to appoint a guardian for an incompetent, the Court shall: examine the petition; determine the need to have a guardian appointed by taking such testimony as any interested party wishes to present, but including not less than two doctors' reports, written or oral, under oath, to the effect that the incompetent is not presently able to handle his property or affairs, the anticipated duration of the incapacity, and that the best interests of the incompetent will be served by having a guardian appointed; determine which person, either the petitioner or some other person, is most suitable to act as guardian and that person's willingness to act as such; and make an order appointing a guardian, setting forth the authority of the guardian, whether or not security for his performance is to be required, and the duration of such appointment.
Sec. 7-5-5 Who May Serve As Guardian
Any adult person 21 years of age or older and subject to the jurisdiction of the Yankton Sioux Tribal Court, may serve as a guardian. Preference shall be given to relatives of the minor or incompetent in order of their closeness of relationship and some preference shall also be given to a person with whom a person with whom the minor or incompetent is living at the time of guardianship hearing. Preference shall be given to the person preferred to act as his guardian by a minor or incompetent over 14 years of age, but in all cases, the Court shall determine the best interests of the minor or incompetent in selecting a guardian.
Sec. 7-5-6 Security for Faithful Performance of Duties
The Court may, but need not, 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 Yankton Sioux Tribal Court for the purposes of action against such security.
Sec. 7-5-7 Oath; Letters of Guardianship
A. The guardian appointed by the Court shall be required to take an oath, the form of which to be prescribed by the Court, to the effect that he will faithfully perform his duties as guardian.
B. Upon taking the oath and filing with the Court such security, if any, as may have been required, the guardian shall be issued letters of Guardianship, issued by the Clerk under the seal of the Court, as evidence of his appointment. Any limitations in the authority of the guardian shall be set forth on the Letters so issued.
Sec. 7-5-8 Inventory and Appointment
A. Within 45 days after the appointment of a general guardian or a guardian of property or estate of a minor or incompetent, the guardian shall prepare and submit to the Court an inventory and appointment of the estate.
B. The appraisement shall be made by three disinterested persons who shall certify under oath to their appraisement and may receive reasonable compensation for their services.
C. No appraisement shall be required of items of obvious, readily ascertainable value; e.g. bank account assets, or where the value of the estate is reasonably believed by the guardian to be less than $1,000.00. If no appraisement is required, the guardian shall certify under oath to the obvious or estimated value of the assets not appraised.
Sec. 7-5-9 Annual Accounting
A. The guardian of every estate in value over $1,000.00 shall submit an annual account of the estate to the Court for approval, on such notice as the Court may direct, in each year in which the value of the estate is or is reasonably believed to be in excess of $1,000.00.
B. Such account shall be verified on the oath of the guardian and shall contain an accounting of all additions to and withdrawals from the estate, and shall be accompanied by supporting canceled checks, vouchers, receipts, statements, etc.
Sec. 7-5-10 Guardian's Compensation
A. No guardian shall receive any compensation for acting as such without the prior approval of the Court.
B. The guardian of an estate in excess of $1,000.00 in value may receive annual compensation for acting as such in amount not less than $25.00 nor greater than 10% of the gross income of the estate.
C. The guardian of an estate less than $1,000.00 in value shall receive no compensation unless specifically ordered by the Court for extraordinary service to the estate.
D. The right to receive compensation as guardian of an estate shall be deemed waived for all year in which such is not requested and received.
Sec. 7-5-11 Powers and Responsibilities of Guardian
A. Except as otherwise specifically ordered or limited by the Court:
1. A general guardian or guardian of the person of a minor or incompetent shall have the right to take or provide for the custody of the person of the minor or incompetent and shall be required to care for the health, safety and welfare of such minor or incompetent and provide for their education and medical care as needed or appropriate.
2. A general guardian or guardian of the estate or property of a minor or incompetent shall have authority to invest, manage and dispose of the property of the minor or incompetent in a prudent and reasonable manner and expend such portions of the estate, income and then principle, as he shall deem reasonably necessary for the support, care, including medical care, and education of the minor or incompetent given the size and nature of the estate and the station in life and needs of the minor or incompetent.
3. A guardian ad litem shall have power and authority to represent a minor or incompetent's best interests in actual, threatened or contemplated litigation or other proceedings of a legal nature (other than of a criminal nature and/or under the Juvenile Code), and to employ counsel, and settle or compromise suit or claims, subject to the approval of the Court.
B. A guardian of any kind may petition the Court for authority to do any act about which he is uncertain, and the Court may grant such authority, after such notice and hearing, if any, as the Court may direct if such appears to be consistent with the best interests of the minor or incompetent.
C. A guardian or any kind shall stand in a fiduciary relationship to the minor or incompetent ward; shall exercise a high degree of care in managing the estate of his ward; shall derive no personal benefit of any kind from his management of his estate of his ward; and shall be civilly liable to said ward for any losses to the estate attributable to a breach of these duties. Action to enforce such liability may be brought by the ward or 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 majority.
Sec. 7-5-12 Discharge of Guardian
A. Every guardian appointed as provided herein shall serve until discharge by the Court.
B. A guardian of a minor, not otherwise incompetent, or the minor himself, may petition the Court on or 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 shall grant such discharge with or without notice and hearing, upon the receipt of sufficient, competent evidence that the minor has reached the age of majority unless the minor appears to be otherwise incompetent, in which case a hearing with notice, shall be held to determine such fact.
C. A person, other than a minor, who has had a guardian appointed for reasons of incompetency, or the guardian or a relative of such incompetent may petition the Court for a determination of his restoration to capacity and for the discharge of the guardian. The Court shall hold a hearing, after such notice to known interested parties as the Court shall direct, and receive evidence, both of a medical nature and otherwise, 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, his restoration to capacity shall be adjudged and his guardianship and guardian discharged.
Sec. 7-5-13 Guardianship Records
The Clerk shall keep a separate, permanent file for each guardianship proceeding and shall file all papers relevant thereto, including petitions, notices, orders for hearings, etc. Any guardian duly appointed shall be entitled to receive, without charge, three certified copies of the Letters of Guardianship. Certified copies of filed papers shall be otherwise available at a fee per copy to be established by the Clerk of Courts.
Sec. 7-5-14 Guardianship of Trust Property
The Court is hereby authorized to appoint a Guardian of the trust estate of minors or incompetents using the procedures and safeguards outlined herein for the purpose of conveying or consenting to the conveyance of an interest in trust property owned by such minor or incompetent if it appears that the price to be paid is reasonable and adequate and that such sale is in the best interests of said minor or incompetent. All actions taken by such guardian consenting to or conveying trust property shall be subject to the approval of the Superintendent.
Sec. 7-5-15 Temporary Guardianship and Custody
The Court shall have the power to entertain and grant or deny petitions for temporary guardianship and custody when it determines it to be in the best interest of the child, incompetent or non-competent person involved; provided, that full notice and opportunity to be heard be given to all parties with ten (10) days thereafter, and further provided that no guardian so appointed sell, dispose of, convey or otherwise alienate title to or interest in the ward's property during such temporary period.