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Yomba Shoshone Tribe Law and Order Code

Approved: 2001

TITLE TWO - CIVIL PROCEDURE


A. JURISDICTION


Sec. 1
Subject Matter Jurisdiction

The Tribal Court has unlimited subject matter jurisdiction over all civil matters, not to be limited by the amount of controversy. Except there shall be no subject matter jurisdiction in cases brought against the Tribe or Tribal Council.


Sec. 2
Jurisdiction Over Persons And Things

a. The court may exercise jurisdiction on any basis not inconsistent with the Constitution of the Tribe, or any applicable federal law. Examples of cases where the Court may assert jurisdiction include, but are not limited to:

(1) Actions involving the status of property on the Reservation.

(2) Actions where the defendant is served on the Reservation or consents to the Court's jurisdiction. The act of entry upon the Reservation shall be considered consent to the jurisdiction of the Court with respect to any civil action arising out of such entry. The act of filing a pleading with the Court shall be considered consent to the jurisdiction of the Court unless the pleading is filed solely for the purpose of contesting the Court's jurisdiction. A person who comes onto the Reservation solely for the purpose of making a Court appearance to contest the Court's jurisdiction and is served while on the Reservation shall not be subject to the Court's jurisdiction unless he would have been subject to it had the service taken place off the Reservation.

(3) Actions arising out of a contract signed on the Reservation.

(4) Actions arising out of a contract to insure any person, property or risk located on the Reservation at the time of contracting.

(5) Actions arising out of the transaction of any business on the Reservation, including any business involving any telephonic, telegraphic, or postal contacts with any person on the Reservation.

(6) Actions arising out of the commission of a tortuous act within the Reservation, including the commission of an act on the Reservation which causes an injury off the Reservation, and the commission of an act off the Reservation which causes an injury on the Reservation.

(7) Actions arising out of the ownership, use, or possession of any real property (real estate) situated on the Reservation.

b. Nothing contained in this Law and Order Code shall be construed as a waiver of Tribal Sovereign Immunity.


B. APPLICABLE LAW


Sec. 1 Choice of Law

The law applied by the Tribal Court, shall ordinarily be chosen as set out in this Code. The judge may determine, either on his own initiative or on the motion of any party, that there's another jurisdiction whose law might more appropriately be applied to the case. The judge shall then consider whether the Tribe has an interest in having Tribal law applied. If the Tribe does have such an interest, the judge shall apply Tribal law. If the application of Tribal law wouldn't advance any policy of the Tribe, and there's another jurisdiction that would have an interest in having its law applied, the judge may apply the law of that jurisdiction. If the Tribe has no interest and there's more than one other jurisdiction with an interest, the judge should dismiss the case. Otherwise the judge may apply the law of whichever jurisdiction is interested, depending on which law seems better, or which law seems more like the law of the Tribe.


Sec .2
Non-Convenient Forum

If the judge, acting on his own initiative or on the motion of a party, finds that in the interest of justice, an action should be heard in a forum other than the Tribal Court, the judge shall stay or dismiss the action in whole or in part on any conditions that may be just, including but not limited to the condition that the action may be brought in the other forum.


C. CIVIL PROCESS


Sec. 1 Beginning an Action: Complaint or Petition

A civil action is begun by filing a Complaint or Petition with the Court. There's no difference between a Complaint and a Petition other than the name; no action shall be dismissed or held up, in any way, because of a Complaint being erroneously labeled a Petition or vice versa. Any language in this Title Two, which applies to a Complaint shall also apply equally to a Petition.


Sec. 2
Summons

When the plaintiff files the Complaint, the Clerk shall sign a Summons and give it to the plaintiff for him to serve on the defendant. The Summons may be prepared either by the Clerk or by the plaintiff. It shall contain the name of the Court, the names of the parties, the name and address of the plaintiff's representative if he has one, or otherwise the address of the plaintiff. It shall notify the defendant that he's required to file an Answer to the Complaint within 20 days, unless he has good cause for an extension of that time in which case he must make a motion to the Court asking for such extension. The Summons shall also state that in case of defendants failure to answer within the time allowed, judgment by default will be entered against him for the relief asked for in the Complaint.


Sec. 3
Service of Process

a. When any paper is required to be served, it may be served either by delivery or by mailing, unless this Code specifically provides otherwise. The Summons and Complaint shall be served together.

(1) Delivery Service by delivery may be made by delivering the required papers to the party in person or to some person of suitable age and discretion over 14 years old at the party's home or principal place of business. If a person to be served refuses to accept accept delivery, service shall be considered performed if the person is informed of the purpose of the service and offered copies of the papers to be served. Service by delivery may be made by any citizen of the United States over 18 years of age who is not a party to the action.

(a) If the party to be served is a minor, service must be made on the party and also on his parent, guardian, or custodian, or if they aren't living on the Reservation, to any other person living on the Reservation who has the care or control of the minor, or with whom the minor is living.

(b) In all cases except for service with the initial Complaint and Summons, if the party has a representative, service may be made upon the representative rather than on the party.

(c) If the Court has placed the party under a guardianship, service must be made on the party and also on the guardian.

(d) If the party is a corporation, service may be made by delivery to the president or any other officer of the corporation, or to any director of the corporation.

b. The person who has delivered the papers shall return a statement that he served the papers, stating the name of the person served, the place, date, and time of service, and his signature, under penalty of perjury. This statement shall be filed with the Clerk and shall be proof of service.

(1) Mailing - The party may be served by registered or certified mail, and the return receipt will be proof of service. If the party refuses to accept the letter, service shall be considered performed. A party may be served by regular mail if some confirmation, either by mail or oral communication, is later made. Service by mail is complete on mailing, but the time allowed for response doesn't begin until confirmation is given, If regular mail is used, proof of service shall be a statement by the person who mailed the letter, together With a statement of the confirmation.

(2) Mailing and Publication - If the person to be served isn't living on the Reservation, or has departed from the Reservation after efforts have been made to find him, the party trying to serve process may file a statement with the Court to that effect. The judge may then allow that service be made by mail together with publication or posting. The mailing shall be to the persons last known address. Publication shall be in a newspaper or other publication of general circulation in the area of the persons last known address, for a period of at least four (4) weeks, being published at least once a week during the period. Posting shall be by posting a notice at a place designated by the judge; it should be seen by as large a number of people as possible. When service of the Summons is by publication or by posting, the Summons shall contain a brief statement of the object of the action. For example: "This is an action for the dissolution of the marriage between you and the plaintiff", or "This action is brought to collect the money owed on a washing machine bought at Smiths store", or as the case may be. When service is by mailing and publication or posting, proof of service shall be a statement by the person that he mailed the letter, giving the date and place of mailing, along with a statement that the notice was published in accordance with the requirements of this paragraph.


Sec. 4
Subpoena

a. Defined - A subpoena is a form issued by the Clerk or the Judge, requiring the person it's served on to appear for a trial, hearing or other proceeding. It may also specify documents or other things that the person must bring with him when he appears.

b. How Issued - The Clerk shall issue a subpoena, signed but otherwise blank, to the party requesting it, who shall fill it in before service.

c. Service - Except by order of the Court, no subpoena shall be served between the hours of 9 P.M. and 7 A.M. A subpoena shall be served at least 48 hours before the appearance is required, unless the Court specifically authorizes later service.

d. Failure to Obey a Subpoena - A person who has been properly served with a subpoena and falls to produce the things named in the subpoena may be found in Contempt of Court and fined.

e. Objection to the Subpoena - A person who has been served with a subpoena may make a motion to the Court to invalidate the subpoena. If the person gives a good reason, the judge shall send a notice to the party trying to subpoena the person, informing him of his opportunity to contest the invalidation of the subpoena. The party who served the subpoena may then present evidence to the judge contradicting the reasons given by the person being subpoenaed, and the judge shall decide whether or not to invalidate the subpoena. The party being subpoenaed need not be present at this hearing, but shall be bound by the result of it.

f. Return of Service - The person who serves a subpoena shall give the Clerk a Return of Service, which is a statement that he served the subpoena, stating the name of the person served, the place, the date, the time of service: and his signature under penalty of perjury for intentionally making a false return. No steps may he taken against a person under Subsection "d", of this Section, for failure to obey a subpoena unless a Return of Service for the subpoena has been filed with the Clerk.


D. PLEADING AND MOTIONS


Sec. 1 Pleading

a. Pleadings are the formal allegations of the parties of their claims and defenses. The first pleading in a case is ordinarily the Complaint, although there are some cases that are initiated by a Petition to the Court, which has the same effect and falls under the same rules as the Complaint. The pleading filed by the defendant in response to the Complaint is called the Answer. The Complaint and Answer are always allowed. In addition, a responsive pleading is allowed whenever, by cross-claim, counterclaim, or otherwise, a party is first claimed against, unless the Court orders otherwise. The Court may grant permission to file additional pleadings in the interest of narrowing and defining issues or as justice may require.

b. A pleading which sets forth a claim for affirmative relief shall contain:

(1) A short, plain statement of the reason the Court has personal jurisdiction over the defendants on subject matter jurisdiction over the case. For instance: "the defendant lives on the Reservation," or, "the defendant sold a car to the plaintiff, knowing that the plaintiff lived on the Reservation, and does business knowing that a significant part of what he sells is used on the Reservation by people living on the Reservation."

(2) A short, plain statement of the claim showing that the pleader is entitled to relief. For instance: "plaintiff delivered hay to defendant on (date) for which defendant agreed to pay $400, and defendant has paid only $300."

(3) A demand for judgments for the relief to which the pleader considers himself entitled. Such a claim for relief may be in the alternative or for several types of relief.

c. All pleading shall be filed with the Clerk, and a copy shall be served on the opposing party or his representative in accordance with this Code. The time limit for filing a responsive pleading to Answer a Complaint shall be 20 days after the service of the Complaint pleading to which the Answer pleading to be filed is responding, unless the judge grants an extension of time for good reason

d. If the action is brought under the Small Claims provisions, the defendant isn't required to file an Answer to the Complaint. However, whenever an Answer or other responsive pleading is filed, it must state in short and plain terms the defenses to each claim asserted and shall admit or deny the statements upon which the opposing party relies. If the party doesn't have sufficient knowledge or information to form a belief as to the truth of a statement, he shall so state, and this has the effect of a denial.


Sec. 2
Affirmative Defenses

a. Defenses which require the statement of such further facts, rather than just a denial of the statements in the pleading being answered, are called Affirmative Defenses. If the party filing a responsive pleading feels that there are further facts not stated by the opposing party which would defeat the claim for relief, he must state these further facts in the responsive pleading, so that the opposing party may have notice of what the issues will be at trial, what facts are in dispute, and how he should prepare his case. Some examples of Affirmative Defenses are:

(1) Accord and Satisfaction Payment or Release - The parties agreed on a certain amount to settle the case, and this amount was paid.

(2) Arbitration and Award - The parties agreed to have the matter settled by the decision of some other person or persons, and that person or those persons reached a decision on the matter.

(3) Assumption of the Risk - The first party knowingly and voluntarily exposed himself to the risk of the damage that is the basis of the relief that he now claims.

(4) Contributory Negligence - The first party was wholly or partly to blame for the damage that is the basis of that relief that he now claims.

(5) Discharge in Bankruptcy - The debt that forms the basis of the relief claimed has been the subject of a bankruptcy proceeding.

(6) Duress, Estoppel, Fraud, or Illegality - The first party acted in such a way that his claim should now be barred.

(7) Statute of Limitations - More time has gone by since the claim arose than is allowed to bring an action in Tribal Court.

(8) Waiver - The first party has consented that the claim for relief that he's now asserting will not be asserted.

(9) Res Judicata - The question presented in the claim for relief has already been decided in court and should not be tried again.

b. If an affirmative defense should have been pleaded but is not, the judge may allow a continuance in order that the pleading may be amended if this seems necessary for the achievement of a just result. For instance, if the party filing the defective pleading wasn't represented and didn't understand that the defense was one that had to be affirmative pled.


Sec. 3 Effect of Failure to Deny

Statements in a pleading to which responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading. Statements in a pleading to which no responsive pleading is required or made shall be taken as denied or avoided.


Sec. 4 Pleading to be Concise and Direct

Each statement in a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.


Sec. 5
Consistency

A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one Count or defense or in separate counts or defenses. It isn't improper for two of these statements to be contradictory to each other. The party filing the pleading may not have enough information at the time of filing the pleading to know which of the two inconsistent claims or defenses is actually in conformity with the facts, and may decide later which claim or defense to try to prove in court.


Sec. 6 Signing of Pleading

A party shall sign his pleading and state his address, unless he has a representative and the representative signs the pleading and states his address. The signature constitutes a certificate that the signer has read the pleadings; that to the best of his knowledge, information and belief, there's good ground to support it; and that it isn't filed just for the purpose of delaying the action. If a pleading isn't signed or is signed with intent to defeat the purpose of this Section, it may be rejected by the judge as false and the action may proceed as though the pleading had not been served. For a willful violation of this Section a representative or party may be subjected to appropriate disciplinary action, such as being ordered by the judge to pay the costs and representative's fees of the other party. Similar action may be taken if scandalous matter is included in a pleading That is, matter that doesn't contribute to an understanding of what the claim is, but serves only as an attack on a person or a source of embarrassment to a person.


Sec. 7 Changing or Adding Pleading

A party may amend his pleading once at any time before a responsive pleading is served. The pleading may also be amended with permission of the judge, at any time up to 20 days before the date of trial.


Sec. 8
Counterclaims and Cross-claims

a. A counterclaim is a claim presented by a defendant against the plaintiff. A cross-claim is a claim presented by a defendant against a codefendant or third party, including a combination of several people. If the defendant has a counterclaim or cross-claim, and the decision of his claim won't require the presence of third parties who are outside the court's jurisdiction, the defendant may state the claim in an Answer to the Complaint.

b. If a defendant doesn't raise a counterclaim or cross-claim when the action is brought under the Small Claims provisions, he isn't barred from raising it in a separate action. However, in any other action, the defendant is barred from raising a claim against the plaintiff or any party to the original action if the claim arose out of the same facts that were in dispute in that action, unless the judge grants permission for good cause shown. For instance, if the defendant had no knowledge at the time of the original action of the fact giving rise to his claim.


Sec. 9. Motions

a. A motion is an oral or written request to the judge for an order, stating the grounds upon which it is made and setting forth the relief or order sought.

b. The judge may allow any motions by either party but should fact with the primary purpose of achieving justice. The judge should also keep in mind, in cases under the Small Claims provisions, that those procedures are designated to allow the facts to be presented with a minimum of formality and complication, and to be open and usable for people who are not familiar with legal technicalities.


E. OTHER PRE-TRIAL PROCEDURES


Sec. 1. Pre-Trial Conference

a. In any action, the judge may in his discretion direct the parties or their representatives to appear before him for a conference to consider:

(1) The simplification of the issues.

(2) The necessity or desirability of amendments to the pleading.

(3) The possibility of obtaining admissions of fact and agreements on the admissibility of evidence, so as to avoid unnecessary proof at trial.

(4) Any other matters that may aid in the disposition of the action.

*(5) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

I. The court has no jurisdiction over the subject matter of the action

II . The action is frivolous or vexatious or is otherwise an abuse of the process of the court, and the judge may make an order or grant judgment accordingly; the judgment may be an order of costs.

*Adopted by the Tribal council through Resolution No. YT-10-00

b. In an action under the Small Claims provisions, there will ordinarily not be any need for pre-trial procedures since the informality of the trial procedures should allow any issues to be raised there, and the judge will be liberal in granting continuances in case any issues arise which a party is not prepared to offer proof on.


Sec. 2. Inspecting Real Or Personal Property

On the motion of either party or on his own initiative, the judge may inspect, and in a jury trial, have the jury inspect, any property involved in a case. All parties should be given an opportunity to be present when the property is inspected.


Sec. 3. Continuances (Postponements)

The judge should grant a continuance when it appears that the interest of justice will be served, unless it appears that another party may be so inconvenienced by a continuance that it would be unfair to grant it. Continuances are especially appropriate under the Small Claims provisions, where they may serve the same purpose as some of the pre-trial procedures set out in this Title.


Sec. 4. Depositions And Discovery: Written Questions (Interrogatories)

A party may utilize any of the provisions and or procedures relating to depositions and discovery contained in the Nevada Rules of Civil Procedures, as they are now written and any future amendments as may occur. Chapter M, of this Title, incorporates those provisions and procedures, written as of 1999. Other provisions, of this Title, supersede any provision or procedure of the Nevada Rules of Civil Procedure, if a conflict exists.


Sec. 5 Settlement

Nothing in this Code shall prohibit the agreement of the parties to any action to decide the issues according to any other means they agree to, such as mediation or arbitration, or to reach a mutual agreement which they may have entered as a settlement judgment by the judge.


F. PARTIES


Sec. 1 Party Filing the Suit

Every suit shall be filed in the name of the real party in interest (the party who's actually interested in the subject matter). A person cannot ordinarily bring suit on behalf of a friend or relative. A minor or a person who has been declared incompetent by a Court shall be represented by a guardian and the guardian may file suit on such a persons behalf. If no guardian has been appointed, the judge shall appoint a guardian for the purpose of the case.


Sec. 2 Substitution of Parties

If a party dies or becomes incompetent or transfers his interest or separates from some official capacity, the judge may substitute another appropriate party in his place.


Sec. 3
Joinder of Parties

a. In General - If there's another person whose interests would be affected by the outcome of the case, or who should be involved in the case because some issue involving him involves the same, or nearly the same law or facts as the case in question, that party may be joined as an additional plaintiff or defendant, at the discretion of the judge.

b. Indispensable Parties - If the persons rights would be directly affected by the granting of the relief asked for in the suit, that person is called an indispensable party. He must be joined, or else the Court has no jurisdiction and must dismiss the case. For example, if two people own land as joint tenants, and someone sues one of them on a claim concerning the land, the other must be joined as a codefendant; otherwise his rights would be endangered without his being there to defend them.

c. Conditionally Necessary Parties - There may be persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those who are already parties. These persons are called conditionally necessary parties. For example, a plaintiff might be seeking to set aside a will on the grounds that the testator had already given her the property in the estate. If the plaintiff sued some of the beneficiaries of the will, but not all of them, the other beneficiaries would be conditionally necessary parties.

(1) If there are conditionally necessary parties who are subject to the jurisdiction of the Court, the judge shall order them summoned to appear in the action. If the judge can't make such persons parties, the judgment in the case won't violate their rights or liabilities.

d. Common Claims - The judge may, at his discretion, join any other parties over whom the Court has jurisdiction, if the claim affecting those parties arise out of the same set of transactions or occurrences as the claims of the original parties.


G. TRIALS


Sec. 1 General Matters at Commencement of Trial

a. Disqualification of Judge - If any party feels that the judge would have a tendency to favor one of the parties or would be unlikely to judge fairly or impartially, he may move that the judge disqualify himself. The motion may be in writing, or the party may speak up before the trial starts. If the judge grants the motion, he shall request the Chairman of the Tribal Council to appoint another judge to hear the case.

b. Judge's Verification of Formalities - Before the trial begins, the judge shall check to see that, as far as can be determined at the time, there's jurisdiction of the Tribal Court over the parties, over the subject matter of the case, that the matter qualifies to be heard under the Small Claims provisions if it has been brought in accordance with them, that there has been proper notice to all parties, and that the time limits and other provisions of this Code have been complied with, in so far as can be determined at that stage of the proceedings.


Sec. 2 Failure of Party to Appear

When a party has filed a pleading claiming some affirmative relief and the other party doesn't appear for the hearing, or fails to file a responsive pleading if one is required, the judge may grant a default judgment. The judge may conduct a hearing to determine that there's justification for the amount and kind of relief requested. If there's good cause for doing so, the judge may set aside a default judgment within six (6) months of the date of service of the notice of entry of judgment.


Sec. 3
Record of the Trial

All trials shall be recorded on tape. The tape shall be kept for 60 days after the trial and then erased and reused unless an appeal has been filed. If an appeal is filed, the tape shall be submitted as part of the record to be considered by the Appeals Court. The Clerk shall keep the trial tapes and be responsible for their condition.


Sec. 4 Interpreters

The judge, on his own initiative or on the motion of any party, may provide interpreters in order to insure that all parties understand the proceedings.


Sec. 5 Oaths of Witnesses

The judge may, as part of the Rules of Court, prescribe an oath to be taken by witnesses. If no oath is prescribed, the judge shall inform each witness of the importance of giving accurate testimony and penalties for perjury, before the witness begins his testimony.


Sec. 6
Continuance (Postponements)

If one party shows a good reason why it would be unfair to make him continue with the trial without a postponement, the judge may grant such a postponement. However, if this would cause inconvenience to any other party, the judge may order that the party asking for the postponement pay a reasonable amount to the other party to compensate that party for the inconvenience caused by the delay, or may decide against granting a postponement.


Sec. 7 Bonds

If the judge has granted a temporary order, ordering that someone take some action, or refrain from doing something, the judge may require that the person so ordered to deposit a certain amount of money with the Court. This money is called a bond, and if the person violates the Order of the Court, the Court may keep the bond to penalize the person. This doesn't prevent the Court from taking other action against the person, such as citing him for Contempt of Court.


H. JURY TRIALS


Sec. 1 Right to a Jury Trial

All cases shall be tried by a Tribal Judge unless a party files a written request for a jury trial and deposits a jury fee of $215.00 at least 10 days before the date set for the trial. The nonprevailing party shall be responsible for payment of all jury fees. Any jury fees advanced by the prevailing party shall be reimbursed as cost by the nonprevailing party.


Sec. 2 Composition of Jury

A jury shall consist of six residents of the Reservation selected at random from a list of eligible jurors prepared each year by the Tribal Council. If the judge believes that the trial will be a long one, he may also impanel one or more alternate jurors to replace any incapacitated jurors, as needed.


Sec. 3 Eligibility to Serve as Juror

An eligible juror is a resident of the Reservation who has reached the age of 18 years, and hasn't been convicted of a felony, and who isn't rendered incapable by reason of physical or mental infirmity.


Sec. 4 Exemption From Service

a. Upon satisfactory proof, made by affidavit or otherwise, any judge, court employee, police officer or member of the Tribal Council, are exempt from jury duty.

b. All persons 80 years of age or older, are exempt from jury duty if they so desire.

c. When it appears to the satisfaction of the Court, by affidavit or otherwise, that a person is over the age of 65, that person may be excused from jury duty, if they so desire.

d. There are no other exemptions from jury duty, if the person meets the requirements of Section Three (3), of this Chapter.


Sec. 5 Grounds for Temporarily, Permanently Excusing Jurors

a. The Court may, at any time, temporarily excuse any juror on account of:

(1) Sickness or physical disability.

(2) Serious illness or death of a member of his immediate family.

(3) Undue hardship or extreme inconvenience.

(4) Public necessity.

b. The Court shall permanently excuse any person from service as a juror if he's incapable, by reason of a permanent physical or mental disability, of rendering satisfactory service as a juror. The Court may require the prospective juror to submit a physician's certificate concerning the nature and extent of the disability and the certifying physician may be required to testify concerning the disability of the Court so directs.


Sec. 6 Penalty for Failing to Attend and Serve as a Juror

Any person summoned as provided in this Title to serve as a juror who fails to attend and serve as a juror, shall, unless excused by the Court, be ordered by the Court to appear and show cause for his failure to attend and serve as a juror. If he fails to show cause, he is contempt and shall be fined not more than $500.00.


Sec. 7 Questioning of Jurors

The judge may permit the parties or their representatives to conduct the questioning of prospective jurors or may conduct the questioning, himself. If the judge conducts the questioning, he shall permit the parties or their representatives to supplement the questioning by such further inquiry as he deems proper or shall, himself, submit to the prospective jurors such additional questions of the parties or their representatives as he deems proper.


Sec. 8 Challenges to Jurors

a. Challenges for Cause - Before the jury is sworn in, each party has the right to challenge an unlimited number of prospective jurors for cause, if it's shown through their answers to the questions or otherwise that they aren't eligible or that they wouldn't be able to fulfill the duties of a juror with understanding, impartiality, and fairness, or that they might be influenced by an opinion already formed about the case, or a previously formed attitude toward one of the parties. The judge shall decide whether a prospective juror should be excused for cause.

b. Peremptory Challenges - In addition to the challenges for cause, each party has the right to a maximum of two peremptory challenges of jurors. That is, challenges for which no reason need be given and which the judge may not refuse to grant. If alternate jurors are chosen, each party has the right to one peremptory challenge of a prospective alternate juror. None of the two regular peremptory challenges may be used to excuse a prospective alternate juror.


Sec. 9 Instruction to the Jury

Any party may file written requests that the judge instruct the jury on the law as set forth in the requests. These requests may be filed at the close of the presentation of evidence, or at such earlier time during the trial as the judge reasonably directs. The judge shall inform each party or his representative of this proposed action on the requests prior to the final argument to the jury. The judge shall instruct the jury after the arguments are completed, unless either of the parties requests that the instructions be given before final argument to the jury. No party may appeal on the basis of the giving or the failure to give an instruction unless he objects before the jury retires to consider the verdict, stating precisely the matter to which he objects and the ground of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.


Sec. 10 Verdicts

The jury shall decide all questions of fact on the basis of the law as instructed by the judge. The jury shall deliberate in secret and return a verdict. The verdict shall include the amount of damages to be awarded, if any. A majority of the jury must agree with the verdict for it to be valid. If any party has any question as to the verdict, he may request the judge to poll the jurors. The judge shall then ask each juror whether he agrees with the verdict, and shall report to the parties that there were or were not a majority of the jury in agreement with the verdict.


Sec. 11
Hung Jury

If the jury can't arrive at a verdict that is agreed on by the majority of its members, the judge may instruct them to try to come to a verdict on some of the issues tried, if possible. For instance, they might come to a decision on who is liable in a certain case, and then only the issue of damages would have to be tried again. Any issues on which the jury can't agree may be tried again if the initiating party desires a new trial.


Sec. 12
Admonishment of Jury

Any time prior to their verdict when the jurors are allowed to leave the courtroom, the judge shall admonish them not to converse with or listen to any other person on the subject of the retrial and further admonish them not to form or express an opinion on the case until the case is submitted to the jury for their decision.


Sec. 13
Deliberation

Once the case is submitted to them, the jury shall go to some private place to deliberate under the charge of an officer of the Court who will refrain from communicating with them except as authorized by the judge to relay messages between them and the judge, and who shall prevent others from improperly communicating with the jury.


Sec. 14 Things Taken by the Jury

The jury may take with them when deliberating any of the Court's instructions, papers or thing received in evidence as exhibits, or notes taken by the jurors themselves, but not notes taken by a non-juror.


Sec. 15 Additional Instruction

If, after the jury begins deliberations, there is some question on an instruction or other point of law or disagreement regarding the testimony, the jury may request additional instructions or clarification after notice to the parties or their representatives. The judge may also have portions of the testimony played back or read back to the jury, if they request it.


I. JUDGMENTS


Sec. 1 Defined

A judgment is any final order from which an appeal may be taken.


Sec. 2
Default

When a party against whom a judgment for affirmative relief is sought has failed to file an answer or otherwise defend or appear as provided by this Code, his default may be entered by the Clerk. Once the default is entered, notice of entry of the default shall be served upon the defaulting party by the Clerk, by mail to him at his last known address.


Sec. 3
Judgement on a Default

Once a default is entered, if a party's claim against the defaulting party is for a sum of money which is certain or can be made certain by computation, and if the defaulting party has been personally served or otherwise appeared, judgement may be entered without the necessity of a hearing. Otherwise, judgement may be entered only after evidence has been presented to the Court showing that the relief is justified.


Sec. 4 Costs

Ordinarily the Court shall order costs to be paid by the party not prevailing, unless there's good reason to have them paid in some other way. Costs may include court fees and other expenses necessarily incurred in the preparation and conduct of trial. Unless there's good reason, such as the appearance that one party was prolonging the case solely for the purposes of delay and harassment, the Court will ordinarily not award attorney's fees or any fee to be paid to the representative of the prevailing party other than reimbursement for expenses as outlined above.


Sec. 5 Summary Judgement

At any time at least 20 days after commencement of an action, any party may make a motion for summary judgement as to any or all of the issues presented in the case. The motion shall be granted if the judge finds that there's no genuine issue as to any material fact and that the party making the motion is entitled to the judgement as a matter of law. Such motions must be served on the opposing party not less than 20 days prior to the hearing. They may be supported by affidavits, discovery, or memoranda, all of which must be made available to opposing parties at least two days prior to the hearing.


Sec. 6 Effectiveness

A judgement shall be valid for 10 years after it's entered. It may be renewed for five years at a time by refiling it with the Court Clerk.


Sec. 7 Satisfaction

A judgement may be satisfied in whole or in part. When the party to whom the judgement is owed signs a statement that the judgement has been satisfied in whole or in part, such a statement may be filed with the Court. When the judgement is satisfied in whole, it shall no longer have any effect.


Sec. 8 Amendment

a. A motion to alter or amend a judgement may be made within 30 days after entry of the judgement, for any of the following reasons:

(1) Error or irregularity which prevented any party from receiving a fair trial.

(2) Misconduct of the jury or jury members.

(3) Accident or surprise, or newly discovered evidence which ordinary prudence could not have guarded against or produced at trial.

(4) Damages so excessive or inadequate that they appear to have been given under the influence of passion or prejudice.

(5) Insufficiency of the evidence to justify the verdict or other decision, or that is contrary to law.

(6) Error in law.


Sec. 9
Relief From Judgment or Order

If a judgment was obtained through fraud or other improper means, the party who is damaged may sue to recover the amount of his damages


Sec. 10 Execution

a. Time - If within 90 days after entry of a judgment awarding money damages and/or costs against a party, or within 60 days after final resolution of an appeal to the Appellate Court from such a judgment, the judgment debtor hasn't paid the judgment amount in full or commenced making installment payments in a manner agreed to by the parties or found reasonable under the circumstances by the judge, or if the judgment debtor is found by the judge to not be current in such payments without a reasonable excuse, the judge shall, upon a motion of the judgment creditor order the Tribal Police to execute on the personal property of the judgment debtor as provided in this Section. The judgment debtor shall be sent notice of the hearing at least five (5) days in advance of the hearing.

b. Procedure - The Court shall order the judgment debtor to appear before the Court and answer regarding all his personal property. The Court shall then determine what property of the judgment debtor is available for execution and order the Tribal Police to seize as much of such property as reasonably appears necessary to pay the judgment amount. If the judgment debtor fails to appear, the Court may proceed without his appearance. Sale of the seized property shall be at public auction conducted by the Tribal Police after giving at least 10 days public notice posted in at least three (3) conspicuous public places on the Reservation. Property shall be sold to the highest bidder who shall make payment for the property at the time of the sale. The person conducting the auction may postpone it, at his discretion, if there is inadequate response to the auction or the bidding, and may reschedule it after giving the required notice. The person conducting the sale shall give a certificate of sale to the buyer and shall file a paper with the Court listing the items sold and the amount received for each item.

c. Property Exempt From Execution - The following property is exempt from execution:

(1) All property belonging to the judgment debtor's family.

(2) All property for which the loss would cause a substantial hardship on the judgment debtor or family.

(3) All objects used in ceremonies and/or pow-wows.

(4) Clothing, furniture, appliances, one (1) radio and one (1) television, china, crockery, kitchenware and personal affects (including wedding rings other jewelry, family heirlooms, etc.), of the judgment debtor and/or his family.

(5) Farm trucks, farm stock, farm tools, farm equipment, supplies and seed, belonging to the judgment debtor.

(6) Professional libraries, office equipment, office supplies, and the tools, instruments and material used to carry on the trade of the judgment debtor for the support of himself and his family, not to exceed $4,500.00 in value.

(7) One vehicle if the judgment debtor's equity doesn't exceed $1,000.00, or the creditor is paid an amount equal to any excess above that equity.

(8) Private libraries not to exceed $1 ,500.00 in value and all family pictures and keepsakes.

(9) The dwelling of the judgment debtor occupied as a home for self and family.

(10) All money, benefits, privileges or immunities accruing or in any manner growing out of any life insurance, if the annual premium paid doesn't exceed $1,000.00. If the premium exceeds $1,000.00, a like exemption exists which bears the same proportion to the money, benefits, privileges, and immunities so accruing or growing out of the insurance that the $1,000.00 bears to the whole annual premium paid.


Sec. 11 Payment From Individual Indian Moneys

Whenever the requirements for execution have been satisfied, and the losing party has funds to his credit at the agency office, the judge may, upon the motion of the judgment creditor, request the superintendent to certify to the Secretary of the Interior the record of the case and the amount of the available funds. If the Secretary shall so direct, the disbursing agent shall pay over to the judgment creditor the amount of the judgment, or such lesser amount as may be specified by the Secretary, from the account of the judgment debtor.


Sec. 12 Judgments Against Deceased Parties

A judgment shall be considered a lawful debt in all proceedings held to distribute decedent's estates.


Sec. 13 Execution of Judgments Issued by Courts of Different Jurisdictions

If a person has a judgment from a court of another jurisdiction against somebody within the jurisdiction of the Tribal Court, he may file a motion for a judgment with the Tribal Court, specifying the date, number, and amount of the judgment that hasn't been satisfied. He shall serve a copy of the motion on the defendant, who shall have 20 days to answer. The Tribal Court shall then hold a hearing to determine whether the judgment is valid or whether there's any defense to its validity or enforceability. If it is valid, the Tribal Court shall issue a judgment for the amount owing on the original judgment.


J. APPEALS


Sec. 1 In General

Any party who doesn't agree with the verdict or judgment in any case may, within 30 days after the judgment is entered, file a Notice of Appeal with the Clerk. The Notice of Appeal shall be a statement of the reason why the party appealing (called the appellant) disagrees with the verdict or judgment, together with any supporting documents that party wishes to submit. Appeals shall be handled in accordance with the provisions of Title One of this Code.


Sec. 2
Service

The appellant shall serve copies of all the documents he files for the appeal on the other party, against whom the appeal is taken (called the appellee), in accordance with the provisions of this Title. The appellee may then file any answering documents, such as a brief or memorandum of law in support of his position, within 20 days after service of the appellant's papers on him. The appellee must serve copies of any such answering papers on the appellant.


Sec. 3 Stay of Execution of Judgment Pending Appeal

The appellant may file a motion with the Tribal Court requesting a stay of the Order of Judgment pending the outcome of the appeal. The appellant shall serve the motion and any supporting documents on the appellee in accordance with the provisions of this Title. The appellee may respond with any written arguments within 20 days after he is served to the Tribal Court and to the appellant. A stay shall be granted in all cases in which it's requested unless injustice would result from it. If the Tribal Court finds it appropriate, it may order the appellant to deposit a bond with the Court as a guarantee for the appellant's future compliance with the Court's orders as a condition to granting the stay. This bond may be used to pay the judgment or may be forfeited to the Court or to the appellee if the appellant loses the appeal and doesn't thereafter comply with the order or judgment within a reasonable time.


K. SMALL CLAIMS


Sec. 1 In General

a. In any action which the only thing asked for in the Complaint is a money award of $1,000.00 or less, the Court shall apply the Small Claims provisions of this Chapter.

b. The difference in procedure under the Small Claims provisions are as follows:

(1) The failure to file a cross-claim or counterclaim doesn't bar a future action by the defendant.

(2) The judge shall not ordinarily allow pretrial procedures, but he should be liberal in granting continuances to serve the same purpose.

c. No attorneys shall be permitted to appear in Small Claims Court unless the attorney is a party to the action.


L. FEES


Sec. 1 The Following Fees Shall be Charged and Collected by the Tribal Court

a. Filing Complaint for Small Claims $20.00

b. Filing Complaint other than Small Claims $50.00

c. Filing Answer or Appearance and Waiver $25.00

d. Filing Appeal $50.00

e. Jury Fees (per day of trial) $215.00

f. Petition for any other relief $50.00

g. Any person who desires to bring or defend a civil action, may file an affidavit with the Court setting forth facts concerning their income, property, and other resources which establish that they are unable to bring or defend the action because of their inability to pay the Court fees involved. The affidavit shall include a description of the cause of action or defense. If the Tribal Court Judge is satisfied that the person is unable to pay the costs, and may have a meritorious cause of action or defense, the Judge shall order:

(1) The Tribal Court Clerk to allow the person to commence or defend the action without fees and to file any necessary pleading, process, write or paper without charge.

(2) A Tribal officer to make any necessary personal service without charge.


M. NEVADA RULES OF CIVIL PROCEDURE (NRCP)


Sec. 1 General Information

Pages 18 through 42 are exact reproductions of the Rules of the NRCP as they apply to depositions and discovery referred to on Page 7, Chapter E, Section 4, of this Title. To avoid possible confusion, only the addition of page numbers that correspond with the pages, of this Title, have been added.

[Digitizer's Note: The code includes copies of certain rules from the Nevada Rules of Civil Procedure (NRCP):

  • Rule 16.1. Mandatory pretrial discovery requirements.
  • Rule 26. General provisions governing discovery.
  • Rule 27. Depositions before action or pending appeal.
  • Rule 28. Persons before whom depositions may be taken.
  • Rule 29. Stipulations regarding discovery procedure.
  • Rule 30. Depositions upon oral examination.
  • Rule 31. Depositions upon written questions.
  • Rule 32. Use of depositions in court proceedings.
  • Rule 33. Interrogatories to parties.
  • Rule 34. Production of documents and things and entry upon land for inspection and other purposes.
  • Rule 35. Physical and mental examination of persons.
  • Rule 36. Request for admission.
  • Rule 37. Refusal to make discovery: sanctions.
  • Rule 68. Offers of judgment.

These rules can be accessed at the State of Nevada website - http://www.leg.state.nv.us/CourtRules/NRCP.html ]

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