Yankton Sioux Tribal Code
Last Revised: 1995
TITLE IX - YANKTON SIOUX TRIBAL CODE OF CREDITORS' RIGHTS AND RESPONSIBILITIES
I. FORECLOSURES OF SECURED OBLIGATIONS
Sec. 9-1-1 Self-Help Remedies Eliminated
A. All self-help remedies for the recovery of real or personal property secured to insure payment of obligations are hereby declared unavailable except as otherwise specifically provided herein.
B. This section shall not be construed to prevent the voluntary surrender of secured property to a creditor by a debtor; provided, however, that such voluntary surrender occurs at the time the property is taken. All contractual provisions for such executed in advance of the need therefore shall be of no effect.
Sec. 9-1-2 One Action to Foreclose Security Interest
A. There can be one action in the Tribal Court to recover any debt or enforce or foreclose any right secured by a mortgage or other security interest on non-trust real or nontrust personal property situated or located on the Reservation, which action must be in accordance with the procedures outlined herein.
B. Notwithstanding the provisions next above, if the debt for which the encumbrance is held is not all due, but is payable in installments, whether such debt is evidenced by one or more principal notes or otherwise, such encumbrance may be foreclosed, at the election of the holder thereof, for the installment or installments due or other charges which are to be paid by the mortgagor, and the Court may by its judgment direct the sales of the encumbered property or of the equity of the defendants therein, or so much thereof as may be necessary to satisfy the amount due, and such encumbrance shall otherwise remain in full force and effect and the holder thereof shall have the right to foreclose on the balance or any part thereof.
Sec. 9-1-3 Action to Foreclose Interest in Personal Property
A. An action to foreclose a security interest in nontrust personal property shall be commenced by filing a complaint in the Tribal Court.
B. The Tribal Court shall determine the issues presented and may, by its judgment, direct the sale of the encumbered property, or so much thereof as is necessary, and direct the proceeds of the sale to the payment of the costs of court, the expenses of such sale and to the amount due the plaintiff. If it appears from the police officer's return on the sale that the proceeds thereof are insufficient and that an amount still remains due, the Court shall direct entry of a judgment for such balance against the defendant or defendants.
C. If it is reasonably made to appear after the complaint is filed that the collateral is in imminent danger of being concealed, removed from the Reservation, or otherwise disposed of in a manner inconsistent with the security interest, the Court may order the person having possession or control over such property to appear and show cause why such property should not be taken into the custody of the Court or other security provided to prevent the improper disposal of the collateral.
D. Sale of property under the Court's judgment shall be conducted in the manner provided for execution sales under Rule 36 of the Yankton Sioux Rules of Civil Procedure.
Sec. 9-1-4 Action to Foreclose Mortgage
A. An action to foreclose a mortgage or other security interest in nontrust real property shall be commenced by filing a complaint in the Tribal Court.
B. A complaint to foreclose a security interest in real property shall name as parties all persons who claim an interest in said property as a result of a proper recordation of such interest in either the Tribal or County records, or both, as applicable. No interest of the Yankton Sioux Tribe, whether recorded or not, may be affected in any action in which the Tribe is not a party by its own affirmative action or consent. Interests in the secured property which are not recorded may be affected as if recorded and the owner thereof made a party.
C. The Tribal Court shall determine the issues presented and may by its own judgment, direct the sale of the encumbered property or so much thereof as is necessary, and direct the application of the proceeds to the costs of Court, the expenses of sale, and to the amount due the plaintiff. If it appears from the police officer's return on the sale that the proceeds thereof are insufficient and that an amount still remains due, the Court shall direct the entry of judgment for such balance against the defendant or defendants as provided below.
Sec. 9-1-5 Sale of Property, Notice
A. Before the sale of real property subject to a decree of foreclosure and order of sale, notice thereof must be given as follows: by posting written notice of the time and place of the sale giving a specific legal and general description of the property for 20 days in at least four public places on the Reservation, including one copy posted at the Tribal Headquarters, one copy posted in the post office nearest the property to be sold, one copy posted on the property to be sold, and one copy posted at the Tribal Courthouse.
B. If ever there is a sale of property conducted without at least good faith and substantial compliance with the notice requirements as set forth herein, said sale may be declared void and of no effect by the Tribal Court.
Sec. 9-1-6 Conduct of Sale
A. All sales of property under decrees of foreclosure and orders for sale must be made at auction, conducted at the Tribal Courthouse, to the highest bidder, between the hours of 9:00 a.m. and 5:00 p.m. on any business day.
B. Once sufficient property has been sold to satisfy the judgment plus the costs of court and of the sale, no more property shall be sold.
C. The person conducting the sale may not be a purchaser or be interested in any purchase at such sale.
D. If the property being sold consists of several known lots or parcels, they must be sold separately. The judgment debtor, if present at the sale, may direct the order in which the properly shall be sold when such property consists of several known lots or parcels. If a third person claims all interest in part of the property to be sold, he may require that such part be sold separately.
E. If a purchaser refuses to pay the amount bid by him for property sold to him at sale, the officer conducting the sale may again sell the property to the highest and any loss be occasioned thereby, the officer may recover the amount of such loss, plus costs, from the bidder so refusing, in the Tribal Court. When a purchaser refuses to pay, the officer may, in his discretion, thereafter reject any subsequent bid of such person.
Sec. 9-1-7 Return on Sale
A. The Tribal police officer conducting the sale shall make a return thereon to the Tribal Court reciting all of the details of the sale.
B. A certified copy of such return together with a certified copy of the Court's order directing said sale shall be filed by the purchaser in the appropriate county record's office.
Sec. 9-1-8 Title to Real Property
A. On a sale of real property, the purchaser is substituted for, and acquires all of the right, title, interest and claim of the judgment debtors thereto.
B. The property so acquired is subject to redemption as provided herein.
C. At the time payment for the sale is made, the officer conducting such must give to the purchaser a Certificate of Sale containing: a) the name of the purchaser, b) the name of the judgment debtor, c) the particular legal description of property sold, d) the price bid for each particular lot or parcel (if applicable), e) the total price paid, and f) notice that the sale is subject to redemption.
D. The officer conducting the sale shall provide the purchaser with sufficient certified copies of the Certificate of sale that the purchaser may file one copy with the office of the Recorder in each county where the property is located. The purchaser shall be provided with one certified copy for his own records and one copy shall be filed with the officer's return on the sale in the Tribal Court.
E. If the purchaser of real property sold pursuant to an order an order of sale, or any successor in interest, should be evicted therefrom in consequence of irregularities in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid plus interest at the rate of 8% per annum from the judgment creditor.
F. If the purchaser of real property sold pursuant to an order of sale, or any successor in interest, fails to obtain possession of the property as a consequence of irregularity in the proceedings related to the sale, or because the property sold was not subject to execution and sale, the Court having jurisdiction thereof must, after notice and on motion of such party in interest, revive the original judgment in the name of the petitioner, for the amount paid by such purchaser, with interest thereon at the rate of 8% per annum, and the judgment so revived has the same force and effect as would the original judgment as of the date of revival.
Sec. 9-1-9 Redemption
A. All real property sold as provided herein is subject to redemption, in the manner hereinafter provided, by the judgment debtor or any successor in interest in the whole or any part of the property.
B. The judgment debtor or redemptioner may redeem real property from the purchaser within six (6) months after the sale by paying the purchaser the purchase price together with interest thereon at the rate of 8% per annum from the date of sale to the date of redemption together with the amount of any assessments or additional costs which the purchaser may have paid thereon after the date of the purchase.
C. Written notice of redemption must be given to the Tribal Court and a duplicate filed with the office of the County Recorder in each county in which the property is situated.
D. If the debtor redeems, the effect of the sale is terminated.
E. Upon redemption by the debtor, the person to whom the sale is made must execute and deliver to him sufficient copies of a Certificate of Redemption acknowledged and proved before an officer authorized to take acknowledgments of conveyances of real property. Copies of such certificates shall be filed at the appropriate county recorder's office.
F. If no redemption is made within six months, the purchaser or his assignee is entitled to a conveyance by means of a Tribal Police Officer's Deed at the expiration of such time. Such deeds shall be recorded at the appropriate county recorder's office.
G. Redemption payment must be made in U.S. currency or by certified or Cashier's check and be made to the purchaser or for him to the officer who made the sale or his successor in office.
H. A judgment debtor or successor in interest desiring to redeem property must present to the person from whom he seeks to redeem or the officer: a) a certified copy of the judgment and order of sale under which he claims a right to redeem, and b) his own affidavit that he is the person entitled to redeem and showing the amount due to effect the redemption.
I. Until expiration of the time for redemption, the Court may restrain the commission of waste or changing the character of the property, but it shall not be waste for the person entitled to possession of the property to continue to use it in the manner it had been previously used or use it in the ordinary course of husbandry or to make necessary repairs thereon, or to have reasonable enjoyment of the property.
J. The purchaser, from the time of sale until redemption, is entitled to receive from the tenants in possession the rents of the property sold or the value of the use and occupation thereof. However, any rents or profits have been received by the purchaser or his assigns from the property thus sold, prior to redemption, the amount of such rents and profits shall be a credit on the redemption money to be paid. The judgment debtor or person entitled to redeem has the right, prior to the expiration of the time for redemption, to demand of the purchaser or his assigns a written and verified statement of the amount of such rents and profits received and/or assessments or costs paid by the purchaser during the period of redemption. If such purchaser or his assign fails or refuses for a period of one month to give such statement, the redemption may, within 60 days of such demand, bring an action in the Tribal Court to compel an accounting and disclosure of such rents and profits, and until fifteen (15) days after the final determination of such action, the right of redemption is extended to such redemptioner.
Sec. 9-1-10 Surpluses and Deficiencies From Sales
A. If there is surplus money remaining after payment of the costs of court and of the sale and payment of the judgment creditor, such funds shall be distributed by the Court to the judgment debtor or other person entitled thereto.
B. A deficiency judgment may be entered by the Court in a case involving the foreclosure and sale of real property whenever the amount due under the secured indebtedness plus costs of the court and of the sale exceed the reasonable value of the property at the time of sale. The Court is not bound by the price for the property received at the sale but may take evidence to determine the actual reasonable value.
II. ACTIONS TO RECOVER POSSESSION OF REAL PROPERTY
Sec. 9-2-1 Self-help Remedies Forbidden
Except in the case where a person in possession voluntarily surrenders such possession to another claiming a paramount right, self-help remedies to secure possession of real property are forbidden except as otherwise provided herein.
Sec. 9-2-2 "Forcible Entry" Defined
A person commits a forcible entry whenever he either:
A. Unlawfully breaks open or by any other type of unauthorized opening of the doors, windows, or other parts of a house or other residential dwelling or by fraud, intimidation or stealth, or by any kind of unlawful violence or circumstances of terror, enters upon or into any real property; or
B. After entering peacefully upon real property, unlawfully turns out by force, threats, or menacing conduct the party in actual possession.
Sec. 9-2-3 "Forcible Detainer" Defined
A person commits a forcible detainer whenever:
A. By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise: or
B. In the night time or in the absence of the occupants of any real property, unlawfully enters thereon, and, after demand made for the surrender thereof, refuses for a period of three days to surrender the same to the former occupant. The occupant of real property within the meaning of this subsection is one who within five days preceding such unlawful entry was in the peaceable and undisturbed possession of such property.
Sec. 9-2-4 "Unlawful Detainer" Defined
A person commits an unlawful detainer if, being a tenant of real property with a term of less than his life, he either:
A. Continues in possession, in person or by subtenant, of the property or any part thereof, after the expiration of the term for which it is let to him. In all cases where real property is leased or rented for a specified term or period, or by express or implied contract, whether written or parole, the tenancy shall be terminated without notice at the expiration of such specified term or period; or
B. Having leased or rented property for an indefinite time with monthly or other periodic rent reserved, he continues in possession thereof in person or by subtenant after the end of such monthly or period after having been served with notice requiring him to quit the premises at the end of such month or period, such notice having been served upon him fifteen (15) or more days prior to the end of such month or period, or in cases of tenancies at will, where he remains in possession of such premises after the expiration of a notice of not less than five (5) days; or
C. When he continues in possession, either in person or by subtenant, after default in the payment of any rent and after a notice in writing requiring in the alternative the payment of the rent or the surrender of the detained premises shall have remained uncomplied with for a period of three days; or
D. When he assigns or sublets the leased or rented property contrary to the covenants in the lease or contract, or commits or permits waste thereon, or when he sets up or carries on thereon any unlawful business, or when he suffers, permits or maintains on or about said premises any nuisance, and remains in possession after service upon him of a notice to surrender the premises within three (3) days; or
E. Continues in possession in person or by subtenant, after a neglect or failure to perform any material condition or covenant of the lease or rental agreement under which the property is held, other than those hereinbefore mentioned, and after notice in writing requiring in the alternative the performance of such conditions or covenants or the surrender of the property served upon him, and, if there is a subtenant in actual occupation of the premises, also upon such subtenant, shall remain uncomplied with for five days after service thereof. Within the five-day period, any subtenant, or mortgagee of the term, or other person interested in the continuance of the term may perform such condition or covenant and thereby save the lease or agreement from forfeiture, unless such condition or covenant cannot then be performed or cannot be performed by anyone except the original tenant. If the broken covenant or condition is not capable of remedial performance after its breach, the required notice need not list such performance as an alternative.
Sec. 9-2-5 Notice, How Served
The notices required by the preceding section may be served either:
A. By delivering a copy to the tenant personally; or
B. If he is absent from his place of residence, or from his usual place of business, by leaving a copy with some person of suitable age and discretion at either place and sending a copy thereof through the mail addressed to the tenant at his place of residence or place of business; or
C. If such place of residence or business cannot be ascertained or a person of suitable age or discretion cannot be found there, then by fixing a copy in a conspicuous place on the property and also delivering a copy to a person there residing, if such person can be found, and also sending a copy through the mail addressed to the tenant at the place where the leased property is situated.
D. Service on a subtenant may be made in the same manner.
Sec. 9-2-6 Action to Regain Possession
A. The Tribal Court shall have jurisdiction to hear and decide actions to recover possession of both trust and nontrust property as a result of an alleged forcible entry, forcible detainer or unlawful detainer in an accelerated manner as provided herein. Any other action to regain possession of property may at the discretion of the judge, but need not be handled in an accelerated manner as provided herein.
B. In an accelerated proceeding allowed herein, the Court shall endorse on the summons the number of days within which the defendant has to answer, which shall not be less than three (3) nor more than thirty (30) days from the date of service. The time for reply to a counterclaim, if any, shall be deemed likewise shortened.
C. At the close of the pleadings, the Court may advance hearing the matter on its trial calendar.
D. The plaintiff's complaint, in addition to setting forth the facts and allegations on which he seeks to recover, may also set forth any circumstances of fraud, force or violence which may have accompanied the alleged forcible entry or forcible or unlawful detainer and claim damages therefor or compensation for the occupation of the premises, or both. When unlawful detainer is charged after default in the payment of rent, the complaint must state the amount of such rent.
E. At the trial of any proceedings for forcible entry or forcible detainer, the plaintiff shall only be required to show, in addition to the forcible entry or detainer complained of, that he was peaceably in the actual possession of the premises in question or was entitled to the possession at the time of the forcible detainer.
F. In cases of tenancy of agricultural land where the tenant has held over and retained possession for more than sixty (60) days after the expiration of his term without any demand of possession or notice to quit by the landlord or his successor in interest, the tenant shall be deemed to have the permission of the landlord or his successor to hold over for a full year under the same terms and conditions as the original tenancy, and such tenant shall not be guilty of an unlawful detainer for such period by reason of his holding over.
G. The remedies available herein shall be available to a tenant to regain possession from a subtenant in appropriate cases.
H. No person other than the tenant of the premises and subtenant if there is one in actual occupation of the premiss at the time the action is commenced need be made a party defendant. Any person entering into possession with the consent of the tenant after an action is commenced for forcible entry or forcible or unlawful detainer shall be bound by such action, whether made a party or not.
I. Residential leases and rental agreements shall be construed as contracts, and general principles of real property law shall not apply.
J. No action under this Code may be maintained by one spouse against the other.
Sec. 9-2-7 Judgment
A. If at trial, whether with or without a jury, the finding is in favor of the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises to the plaintiff.
B. In a proceeding for unlawful detainer for neglect or failure to perform any condition or covenant under a lease or agreement under which property is held, or after default of the payment of rent, the judgment shall declare the forfeiture of such lease or agreement.
C. At trial, the finder of fact, whether the jury or the judge without a jury, shall also assess damages caused to the plaintiff by the forcible entry or forcible or unlawful detainer, including damage for waste by the defendant during the tenancy, if proved, and shall also find the amount of rent due if such is in issue.
D. When the action is for unlawful detainer after defaulting in the payment of rent and the lease or agreement under which the rent is payable has not by its terms expired, execution upon the judgment shall not issue until five (5) days after the entry of judgment, within which time the tenant or any subtenant, or other party interested in the continuance of the term, may pay into the court for the landlord the amount of the judgment and costs and thereupon that portion of the judgment shall be satisfied and the tenant's estate shall be restored. However, if such payment is not made within five (5) days, the judgment may be enforced in its full amount and for the possession of the premises. In all other cases, the judgment may be enforced immediately.
Sec. 9-2-8 Time for Appeal
A. The time in which an appeal, if any, may be taken from an action for forcible entry or forcible or unlawful detainer shall be ten (10) days and the appellate court may, but need not, allow expedited handling of such appeal.
B. Appeals in other actions to recover possession of real property shall be handled in the usual manner.
III. CANCELLATION OF ASSIGNMENTS OR OTHER PRIVILEGES GRANTED BY THE TRIBE
Sec. 9-3-1 Tribal Power to Cancel Assignments and Other Privileges Granted by the Tribe
The Yankton Sioux Tribe retains the absolute power to cancel any assignments and other privileges granted by the Tribe to any party. This power can be exercised upon the filing of a complaint or petition, with appropriate notice, against the party with the Tribal Court.
Sec. 9-3-2 Right to a Hearing
A. The affected party shall have the right to a hearing on the matter before the Tribal Court.
B. At the time set for the hearing, the judge shall examine the complaint or petition and any response thereto and shall determine whether proper notice to all parties has been provided.
C. The Court sitting without a jury shall then hear such evidence as the parties wish to present and render its decision thereon.
D. The person or persons whose assignment or other privilege may be affected shall have the following rights:
1. To be represented by a professional attorney admitted to practice before the Tribal Courts or by a lay counselor; provided, however, that such attorney or counselor is hired by the person or persons affected at their own expense;
2. To confront, examine and cross-examine all evidence presented against him;
3. To present evidence in his own behalf;
4. To receive written notice of any decision of the Tribal Court affecting any assignment or other privilege granted by the Tribe. Such notice may be personally served or may be mailed to such person at his last known address and a copy thereof posted in a conspicuous place on the property affected, if an interest in the use of real property is involved.
Sec. 9-3-3 Grounds for Canceling, Suspending, or Modifying Any Assignment or Other Privilege Granted by the Tribe
A. The Tribal Court shall cancel any assignment or other privilege granted by the Tribe if, after receiving a petition or complaint from the Tribe and conducting a hearing thereon, it reasonable appears that the person or persons to whom the assignment or privilege has been granted has sold, leased, assigned or otherwise transferred the assignment or privilege or the right to use or take advantage of the assignment or privilege to any other person or persons or entity contrary to the terms, conditions, or covenants contained in the grant of the assignment or privilege and that by so doing they have derived a pecuniary or other benefit therefrom.
B. The Tribal Court may cancel, suspend or modify any assignment or other privilege granted by the Tribe, if, after receiving a petition or complaint and conducting a hearing thereon, it reasonably appears that the person or persons to whom the assignment or privilege has been granted has done any act contrary to the terms, conditions or covenants contained in the grant of the assignment or privilege.
C. The Tribal Court may cancel, suspend or modify any assignment or other privilege granted by the Tribe if, after receiving a petition or complaint and conducting a hearing thereon, it reasonably appears that such cancellation, suspension or modification is reasonably necessary to promote, implement, or preserve some governmental or proprietary interest of the Tribe. When ordering the cancellation, suspension or modification of an assignment or other privilege by the Tribe for the reasons set forth in this subsection, the Court shall condition its order upon such terms for the harvesting of crops, removal of livestock, relocation of persons or things, or winding up of business as appears just under the circumstances .
Sec. 9-3-4 Imposition of Penalties or Damages
Whenever the Tribal Court finds grounds for the cancellation, suspension or modification of an assignment or other privilege granted by the Tribe, it may order the party or parties affected thereby to pay or repay to the Tribe any fees or charges past due, any money or the value of any benefits received by such party as a result of his violation any of the terms, conditions, or covenants contained in the grant of the assignment or privilege, and may assess damages for damage done to any Tribal property or interest as a result of the wrongful or improper acts of the party involved. Said charges may be enforced as civil judgments.
Sec. 9-3-5 Privilege Defined
As used herein, the term "privilege" shall include business licenses, range unit leases and/or permits, and any benefit, right or advantage granted to or enjoyed by a particular entity, person or group of persons by reason of any official action of the Yankton Sioux Tribe.
Sec. 9-3-6 Exceptions to Procedures
The procedures contained herein shall not apply to the cancellation of fishing, hunting, or driver's licenses or in any other case where some other procedure is set forth in this Law and Order Code or other Tribal Ordinance.