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APPELLATE PROCEDURE
TABLE OF CONTENTS
1 Scope and
Applicability of Rules
2 Suspension and
Revision of Rules
3 Discretionary
Authority
CHAPTER ONE
APPEALS FROM JUDGMENTS AND ORDERS OF THE TRIBAL COURT
101 Appeal As Of
Right - How Taken
102 Appeal As Of
Right - When Taken
103
Interlocutory Appeals in Civil Actions
104
Interlocutory Appeals In Criminal Actions
105 Appeals by
the Tribe in Criminal Actions
106 Bond For
Costs On Appeal In Civil Cases
107 Stay Or
Injunction Pending Appeal
108 Release in
Criminal Cases
109 The Record
on Appeal
110 Transmission
of Record
111 Docketing
The Appeal; Filing The Record
CHAPTER TWO
EXTRAORDINARY WRITS
201 Mandamus or
Prohibition Directed To a Judge or Judges
202 Denial Or
Order Directing Answer
203 Other
Extraordinary Writs
204 Form of
Papers, Number of Copies
CHAPTER THREE
HABEAUS CORPUS; PROCEEDINGS IN FORMA PAUPERIS
SUBCHAPTER A
HABEAS CORPUS
301 Habeas
Corpus Proceedings
302 Transfer Of
Custody Pending Review
303 Detention Or
Release Pending Review Of Decision Failing To Release
304 Detention Or
Release Pending Review Of Decision Ordering Release
305 Modification
of Initial Order Respecting Custody
SUBCHAPTER B
PROCEEDINGS IN FORMA PAUPERIS
311 Leave From
Tribal District Court to Proceed to Supreme Court
312 Special Rule
For Parties Previously Granted Permission To Proceed In Forma Pauperis
313 Remedy For
Denial Of Motion By Tribal District Court
CHAPTER FOUR
GENERAL PROVISIONS
401 Filing and
Service
402 Service of
All Papers Required
403 Manner Of
Service
404 Proof Of
Service
405 Computation
of Time
406 Enlargement
Of Time
407 Additional
Time after Service By Mail
SUBCHAPTER A
MOTIONS AND BRIEFS
411 Content,
Response, and Reply to Motions
412
Determination of Motions for Procedural Orders
413 Power of a
Single Judge to Entertain Motions
414 Form of
Papers; Number of Copies
415 Brief of
Appellant
416 Brief of
Appellee
417 Reply Brief
418 References
in Briefs to Parties
419 References
in Briefs to the Record and Statutes
420 Length of
Briefs
421 Briefs in
Cases Involving Cross Appeals
422 Briefs in
Cases Involving Multiple Appellants or Appellees
423 Citation of
Supplemental Authorities
424 Brief of an
Amicus Curiae
425 Appendix to
the Briefs
426 Time for
Filing and Service of Briefs
427 Number of
Copies to Be Filed and Served
428 Consequence
of Failure to File Briefs
429 Form of
Briefs, the Appendix and Other Papers
430 Form of
Other Papers
SUBCHAPTER B
ARGUMENT
441 Prehearing
Conference
442 Oral
Argument in General
443 Notice of
Argument; Postponement
444 Order and
Content of Argument
445 Cross and
Separate Appeals
446
Non-Appearance of Parties
447 Submission
on the Briefs
448 Use of
Physical Exhibits at Argument; Removal
449 When Hearing
or Rehearing in Banc Will Be Ordered
450 Suggestion
of a Party for Hearing or Rehearing In Banc
451 Time for
Suggestion of a Party for Hearing or Rehearing in Banc; Suggestion does not Stay
Mandate
SUBCHAPTER C
JUDGMENT
461 Entry of
Judgment
462 Interest on
Judgments
463 Damages for
Delay
464 To Whom
Costs Allowed
465 Costs For Or
Against the Tribe
466 Costs of
Briefs, Appendices, and Copies of Records
467 Bill Of
Costs; Objections; Costs Inserted In Mandate Or Added Later
468 Costs On
Appeal Taxable in the Tribal District Court
469 Petition For
Rehearing
470 Issuance of
Mandate
471 Voluntary
Dismissal
472 Substitution
of Parties
473 Cases
Involving Constitutional or Indian Civil Rights Act Questions Where the Tribe Is
Not A Party
APPENDIX:
ATTORNEY AND LAW ADVOCATE RULES
Section 1. Scope and Applicability of Rules
(a) Scope. This
Title governs the procedure in appeals to the Supreme Court from the Tribal
District Court, and in applications for writs or other relief which the Supreme
Court or a Justice thereof is competent to give. When this Title provides for
the making of a motion or application in the Tribal District Court, the
procedure for making such motion or application shall be in accordance with the
practice of that Court.
(b) "Tribal
Court" Defined. Unless otherwise specifically stated or required by the
context, the term "Tribal Court" as used in this Title shall be deemed
to refer to both the Tribal District Court and any Division, Judge, or
Magistrate thereof.
(c) Jurisdiction Not
Affected. This Title shall not be construed to extend or limit the
jurisdiction of the Supreme Court as may be established by other Tribal laws,
and all provisions of this Title shall be subject to the Constitution, of the
Tribe.
Section 2. Suspension and Revision of Rules
(a) In the interest of
expediting decision(s), the furtherance of the administration of justice, or for
other good cause shown, the Supreme Court may, except as provided in Section
406, suspend the requirements or provisions of any of Section of this Title in a
particular case on application of a party or on its own motion, and may order
proceedings in accordance with its direction.
(b) In the interest of
expediting decisions(s), the furtherence of the administration of justice, and
the efficient functioning of the Court, the Supreme Court is authorized to amend
any provision of this Title by Court Rule duly adopted and filed in the Supreme
Court Clerk's Office and the Tribal Secretary's Office. Any Rule of the Court
which would have the effect of amending this Title shall so state in its title,
and shall not be effective until it has been filed in the Tribal Secretary's
Office for a period of sixty days, within which time the Tribal Legislative
Authority may veto said Rule. If not vetoed, such Rules shall be placed in the
Court's law library and shall take effect of the sixty-first day after filing or
on such later date as may be provided by the Court.
Section 3. Discretionary Authority
Where no procedure is
provided in this Title, other statutes of the Tribe, or the Supreme Court rules,
the Supreme Court may proceed to exercise its functions in any lawful manner.
CHAPTER ONE
APPEALS FROM JUDGMENTS AND ORDERS OF THE TRIBAL COURT
Section 101. Appeal As Of Right - How Taken
(a) Filing The Notice
Of Appeal. An appeal permitted by the laws of the Tribe as of right from the
Tribal District Court to the Supreme Court of the Tribe shall be taken by filing
a notice of appeal with the Clerk of the Tribal District Court within the time
allowed by Section 102, or by the statute applicable in the specific case.
Failure of an appellant to take any step other than the timely filing of a
notice of appeal does not affect the validity of the appeal, but is grounds only
for such action as the Supreme Court deems appropriate, which may include
dismissal of the appeal.
(b) Joint or
Consolidated Appeals. If two or more persons are entitled to appeal from a
judgment or order of Tribal District Court, and their interests are such as to
make joinder practicable, they may file a joint notice of appeal, or may join in
appeal after filing separate timely notices of appeal, and they may thereafter
proceed on appeal as a single appellant. Appeals may be consolidated by order of
the Supreme Court upon its own motion or upon motion of a party, or by
stipulation of the parties to the several appeals.
(c) Content of the
Notice of Appeal. The notice of appeal shall specify the parties to the
appeal; shall designate the order, commitment, or judgment appealed from, the
docket, civil, criminal, juvenile, or small claims of the Tribal District Court
from which the appeal is taken, and a short statement of the reason or grounds
for the appeal. An appeal shall not be dismissed for informality of form or
title of the notice of appeal.
(d) Service of the
Notice of Appeal. The Clerk of the Tribal District Court shall serve notice
of the filing of an appeal by mailing a copy of the notice of appeal, which copy
shall be provided by the appealing party, to counsel of record of each party
other than the appellant, and to the party at his last known address; and shall
forthwith certify and deliver to the Clerk of the Supreme Court, for filing in
the Supreme Court, a certified copy of the notice of appeal. The Clerk of the
Supreme Court shall enter such filing upon the docket of the Supreme Court. When
an appeal is taken by a defendant in a criminal case, the Clerk of the Tribal
District Court shall also serve a copy of the notice of appeal upon the
appellant, either by personal service or by mail addressed to him. The Clerk of
the Tribal District Court shall note on each copy served the date on which the
notice of appeal was filed. Failure of the Clerk to serve notice shall not
affect the validity of the appeal. Service shall be sufficient notwithstanding
the death of a party or his counsel. The Clerk shall note in the docket the
names of the parties to whom he mails copies, with the date of mailing.
(e) Payment of Fees. Upon
the filing of any separate or joint notice of appeal from the Tribal District
Court, the appellant shall pay to the Clerk of the Tribal District Court, for
deposit in the Court Fund, the filing fee which shall be in such amount as may
be determined by rule of the Supreme Court, except that payment of a filing fee
shall not be required for an appeal by the Tribe, its officers, or agents when
acting in their official capacity. If a private party joins in an appeal by the
Tribe, tribal officers, or tribal agents, the private party shall pay the
required filing fee. The Supreme Court, or a Justice thereof, may waive payment
of the filing fee in criminal cases when the defendant, by affidavit or
otherwise, establishes that he is without sufficient funds or resources with
which to pay the required fees.
Section 102. Appeal As Of RiRht - When Taken
(a) Appeals In Civil
Cases.
(1) In a civil case in
which an appeal is permitted by law as of right from the Tribal District Court
to the Supreme Court, the notice of appeal required by Section 101 shall be
filed with the Clerk of the Tribal District Court within the following time
periods after entry of the judgment or order appealed from, if a time certain
is not otherwise provided by statute:
(i) From an order or
judgment in an action for forcible entry or forcible or unlawful detainer.
Ten (10) Days;
(ii) From an order,
decree, or judgment of the Juvenile Division of the District Court, (except
an order, decree, or judgment which terminates parental rights). Thirty (30)
Days.
(iii) From an order,
decree, or judgment of the Juvenile Division of the District Court which
terminates parental rights. Ninety (90) days.
(iv) From A finAl
nretesttest, commitment, judgment or other appealable
order in any civil case not hereinabove provided for. Twenty (20) Days.
(2) Except as provided
in subsection (a)(4) of this Section, a notice of appeal filed after the
announcement of a decision or order but before the formal entry of the
judgment or order shall be treated as filed after such entry and on the day
thereof.
(3) If a timely notice
of appeal is filed by a party, any other party may file a notice of appeal
within 14 days after the date on which the first notice of appeal was filed,
or within the time otherwise prescribed by this Section, whichever period last
expires.
(4) If a timely motion
under the Civil Procedure Act is filed in the Tribal District Court by any
party.
(i) for judgment
notwithstanding the verdict, or
(ii) to amend or make
additional findings of fact, whether or not an alteration of the judgment
would be required if the motion is granted, or
(iii) to alter or
amend the judgment or for a new trial,
then, and in that event, the time for appeal for all parties shall run from
the entry of the order denying a new trial or granting or denying any other
such motion. A notice of appeal filed before the disposition of any of the
above motions shall have no effect. A new notice of appeal must be filed
within the prescribed time measured from the entry of the order disposing of
the motion as provided above. No additional fees shall be required for
such filing.
(5) The Tribal
District Court, upon a showing of excusable neglect or good cause, may
extend the time for filing a notice of appeal in a civil action upon motion
filed not later than 30 days after the expiration of the time prescribed by
this Section. Any such motion which is filed before expiration of the
prescribed time for the filing of a notice of appeal may be ex parte unless
the Tribal District Court otherwise requires. Notice of any such motion
which is filed after expiration of the prescribed time shall be given to the
other parties in accordance with the Civil Procedure Act. No such extension
shall exceed 30 days past such prescribed time or 10 days from the date of
entry of the order granting the motion, whichever occurs later.
(6) A judgment or
order is entered within the meaning of this Section when it is entered in
compliance with the Civil Procedure Act.
(b) Appeals In
Criminal Cases. In a criminal case, the notice of appeal by a defendant
shall be filed in the Tribal District Court within 10 days after the entry of
the final judgment and sentence or other order appealed from. A notice of
appeal filed after the announcement of a decision, sentence, or order, but
before formal entry of the judgment or order shall be treated as filed after
such entry and on the day thereof. If a timely motion in arrest of judgment,
or a motion for a new trial on any ground other than newly discovered evidence
has been made, an appeal from a judgment of conviction may be taken within 10
days after the entry of an order denying the motion. A motion for a new trial
based on the ground of newly discovered evidence will similarly extend the
time for appeal from a judgment of conviction if the motion Is made before or
within 10 days after entry of the judgment. When an appeal by the Tribe is
authorized by statute, the notice of appeal shall be filed by the Tribe In the
Tribal District Court within 10 days after the entry of the judgment or order
appealed from unless a different time Is specifically set by the statute
authorizing the appeal. A judgment or order is entered within the meaning of
this subdivision when it is entered in the criminal docket pursuant to the
Criminal Procedure Act. Upon a showing of excusable neglect Tribal District
Court may, before or after the time has expired, with or without motion and
notice, extend the time for filing a notice of appeal for a period not to
exceed 30 days from the expiration of the time otherwise prescribed by this
subdivision of this Section.
Section 103. Interlocutory Appeals in Civil Actions
(a) Interlocutory
Appeals as of Right. A person may appeal to the Supreme Court by right any
order make appealable by law, and the following judgments or orders of the
Tribal District Court:
(1) An order that
grants or refuses a new trial or vacates or refuses to vacate a judgment on
any grounds including that of newly discovered evidence or the impossibility
of making a record.
(2) An order that
discharges, vacates, or modifies or refuses to discharge, vacate, or modify an
attachment.
(3) An order that
denies, grants, or modifies a temporary injunction, discharges, vacates, or
modifies, or refuses to discharge, vacate, or modify a temporary injunction.
(4) An order that
discharges, vacates, or modifies, or refuses to discharge, vacate, or modify a
provisional remedy which affects the substantial rights of the parties.
(5) An order that
appoints a receiver, except where the receiver was appointed at an ex parte
hearing where a full hearing will be held upon application therefore, refuses
to appoint a receiver, or vacates or refuses to vacate the appointment of a
receiver, or refuses or grants orders to wind up receiverships or to take
steps to accomplish the purposes thereof, such a directing sales or other
disposals of property.
(6) An order that
directs the payment of money pendente lite, except where granted at an ex
parte hearing where a full hearing will be held upon application therefore,
refuses to direct the payment of money pendente lite, or vacates or refuses to
vacate an order directing the payment of money pendente lite.
(7) An order that
certifies of refuses to certify an action to be maintained as a class action.
(8) An order with
regard to probate matters:
(i) granting, or
refusing, or revoking letters testamentary or of administration, or of
guardianship, or conservatorship, or
(ii) admitting, or
refusing to admit, a will to probate, or
(iii) against or in
favor of the validity of a will or revoking the probate thereof, or
(iv) against or in
favor of setting apart property, or making an allowance for a widow or
child, or
(v) against or in
favor of directing the partition, sale or conveyance of any interest in real
property, or
(vi) settling an
account of an executor, or administrator or guardian, or
(vii) refusing,
allowing or directing the distribution or partition of an estate, or any
part thereof or the payment of a debt, claim, legacy or distributive share,
or
(viii) refusing or
allowing the release of any tax liability, or
(ix) from any other
judgment, decree, or order of the Court in a probate case, or of the Judge
thereof, affecting a substantial right.
(9) Any interlocutory
order or decree made immediately appealable by Tribal statute.
(b) Time for Piling Interlocutory Appeals as of Right and Special Rules.
(1) The party aggrieved
thereby may appeal the order to the Supreme Court without awaiting the final
determination of the action, by filing the notice of appeal with the District
Court Clerk within twenty (20) days after the order is issued.
(2) If the order
discharges or modifies an attachment or preliminary injunction and it becomes
operative, the undertaking given upon the allowance of an attachment or
preliminary injunction shall stay the enforcement of said order and said order
shall remain in full force and effect until final order of discharge after
appeal shall take effect.
(3) If the order grants
a preliminary injunction, the party seeking to appeal, if he desires to stay
said order, shall give within ten (10) days after the order is rendered, an
undertaking, with sufficient surety, in such sum as the Court deems proper, to
secure the party procuring the injunction the damages he may sustain,
including reasonable attorneys fees, if it is finally decided that the
preliminary injunction was properly granted. The undertaking shall stay the
effect of the preliminary injunction pending appeal.
(4) Where a receiver
shall be or has been appointed, upon the appellant filing an appeal bond, with
sufficient sureties, in such sum as may have been required of the receiver by
the Court or a Judge thereof, conditioned for the due prosecution of the
appeal and the payment of all costs, or damages that may accrue to the Tribe
or any officer or person by reason thereof, the authority of the receiver
shall be suspended until the final determination of the appeal, and if the
receiver has taken possession of any property, real or personal, it shall be
returned and surrendered to the appellant upon the filing and approval of the
bonds.
(c) Interlocutory
Appeals by Permitestion. When a Judge, in making an order or decree in a
civil action not otherwise appealable under this Section or another Tribal
statute, shall be of the opinion that such order Involves a controlling question
of law as to which there is substantial grounds for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such order. The
Supreme Court may thereupon, in its discretion, permit an appeal to be taken
from such order, if application is made within ten days after the entry of the
order, provided1 test that application for an
appeal hereunder shall not stay proceedings in the Tribal District Court, unless
the Judge or the Supreme Court, or a Justice of the Supreme Court shall so
order.
(d) Petition for
Permission to Appeal. An appeal from an interlocutory order containing the
statement prescribed by Section 103(c) may be sought by filing a petition for
permission to appeal with the Clerk of the Supreme Court within 10 days after
the entry of such order in the District Court with proof of service on all other
parties to the action in the District Court. An order may be amended to include
the prescribed statement at any time, and permission to appeal may be sought
within 10 days after entry of the order as amended.
(1) The petition shall
contain a statement of the facts necessary to an understanding of the
controlling question of law determined by the order of the District Court; a
statement of the question itself; and a statement of the reasons why a
substantial basis exists for a difference of opinion on the question and why
an immediate appeal may materially advance the termination of the litigation.
The petition shall include or have annexed thereto a copy of the order from
which the appeal is sought and any findings of fact, conclusions of law and
opinion relating thereto. Within 7 days after service of the petition, an
adverse party may file an answer in opposition. The application and answer
shall be submitted without oral argument unless otherwise ordered.
(2) All papers may be
typewritten. Ten copies shall be filed with the original, but the Court may
require that additional copies be furnished.
(3) Within 10 days
after the entry of an order granting permission to appeal, the appellant
shall:
(i) pay to the Clerk
of the District Court the fees established by rule of the Supreme Court for
the filing of appeals by permission.
(ii) file a bond for
costs if required by the Supreme Court.
The Clerk of the Tribal
District Court shall notify the Clerk of the Supreme Court of the payment of
the fees. Upon receipt of such notice the Clerk of the Supreme Court shall
enter the appeal upon the docket. The record shall be transmitted and filed as
in cases of direct appeal by right. A notice of appeal need not be filed.
Section 104. Interlocutory Appeals In Criminal Actions
(a) Appeal by the
Defendant. An interlocutory appeal to the Supreme Court may not be taken by the
defendant except by leave of the Court in the same manner as the taking of
interlocutory appeals by permission in civil actions.
(b) Appeal by the Tribe.
An appeal by the Tribe to the Supreme Court may be taken from a decision or
orderof the Tribal Court prior to the beginning of trial suppressing or
excluding evidence, or requiring the return of seized property in a criminal
proceeding, or dismissing the criminal complaint, and, after the verdict is
returned, upon an order granting a new trial, or an order refusing to revoke
probation or parole, or an order reducing a valid sentence previously imposed.
Section 105. Appeals by the Tribe in Criminal Actions
(a) An appeal to the
Supreme Court may be taken by the Tribe from the final judgment In a criminal
action in the following cases:
(1) Upon judgment for
the defendant quashing or setting aside the criminal complaint prior to trial.
(2) Upon an order of
the Court arresting the judgment.
(3) Upon a question of
law reserved by the Tribe,
provided, that the criminal complaint shall be reinstated and the case shall
proceed if the Tribe' appeal is upheld under subsection (a)(1) of this
Section, the judgment and sentence arrested shall be entered and enforced if
the Tribe' appeal is upheld under subsection (a)(2) of this Section, and a
defendant may not be tried again for the same offense if the Tribe' appeal is
upheld under subsection (a)(3) of this Section.
(b) Pending the
prosecution and determination of the appeal in the foregoing instances, the
defendant shall be released in accordance with Section 108 of this Act.
Section 106. Bond For Costs On Appeal In Civil Cases
The Tribal District Court
may require an appellant to file a bond or provide other security in such form
and amount as it finds necessary to ensure payment of costs on appeal in a civil
case. The provisions of Section 107(b) of this Act applies to a surety upon a
bond given pursuant to this Section.
Section 107. Stay Or Injunction Pending Appeal
(a) Procedure. Application
for a stay of the judgment or order of Tribal District Court pending appeal, or
for approval of a supersedeas bond, or for an order suspending, modifying,
restoring or granting an injunction during the pendency of an appeal must
ordinarily be made in the first Instance in the Tribal District Court. A motion
for such relief may be made to the Supreme Court, or to a Justice thereof, but
the motion shall show that application to the Tribal District Court for the
relief sought is not practicable, or that the Tribal District Court has denied
an application, or has failed to afford the relief which the applicant
requested, with the reasons given by the Tribal District Court for its action.
The motion shall also show the reasons for the relief requested and the facts
relied upon, and if the facts are subject to dispute the motion shall be
supported by affidavits or other sworn statements or copies thereof. With the
motion shall be filed such parts of the record as are relevant to the motion.
Reasonable notice of the motion shall be given to all parties. The motion shall
be filed with the Clerk of the Supreme Court, and normally will be considered by
the entire Court, but in exceptional cases where such procedure would be
impracticable due to the requirements of time, the application may be made to
and considered by a single Justice of the Court pending review by the entire
Court. In cases where relief has not been previously requested in the Tribal
District Court, the Supreme Court may, if it determines such action to be
appropriate under the circumstances, remand the motion to the Tribal District
Court for its initial determination.
(b) Bond, Proceedings
Against Sureties. Relief available in the Supreme Court under this Section
may be conditioned upon the filing of a bond or other appropriate security in
the Tribal District Court. If security is given in the form of a bond or
stipulation or other undertaking with one or more sureties, each surety submits
himself to the jurisdiction of the Tribal District Court and irrevocably
appoints the Clerk of the Tribal District Court as his agent upon whom any
papers affecting his liability on the bond or undertaking may be served. It is
the responsibility of the surety to provide the Clerk of the Tribal District
Court with his proper and current address, and a supply of stamped,
self-addressed envelopes, if he wishes copies of any papers served upon the
Clerk as his agent to be mailed to him. His liability may be enforced on motion
in the Tribal District Court without the necessity of an independent action. The
motion and such notice of the motion as the Tribal District Court shall
prescribe may be served on the Clerk of the Tribal District Court who shall
forthwith mail copies to the sureties if their addresses are known.
(c) Criminal Cases. Stays
in criminal cases shall be had in accordance with the provisions of Criminal
Procedure Act.
Section 108. Release In Criminal Cases
(a) Appeal Of Order
Denying Release Pending Appeal. An appeal authorized by law from an order
refusing or imposing conditions of release pending appeal of the underlying
judgment of conviction and sentence shall be determined promptly. Upon entry of
an order refusing or imposing conditions of release pending appeal of the
underlying judgment of conviction and sentence, the Tribal District Court shall
state in writing the reasons for the action taken. The appeal in such matters
shall be heard without the necessity of briefs after reasonable notice to the
appellee upon such papers, affidavits, and portions of the record as the parties
shall present. The Supreme Court, or a Justice thereof pending action by the
entire Court may order the release of the appellant pending the appeal.
(b) Procedure.
Application for release after a judgment of conviction shall be made in the
first instance In the Tribal District Court. If the Tribal District Court
refuses release pending appeal, or imposes conditions of release, the Court
shall state in writing the reasons for the action taken. Thereafter, if an
appeal is pending, a motion for release, or for modification of the conditions
of release, pending review may be made to the Supreme Court or to a designated
Justice thereof. The motion shall be determined promptly upon such papers,
affidavits, and portions of the record as the parties shall present and after
reasonable notice to the appellee. The Supreme Court or a Justice thereof
pending action by the entire Court may order the release of the appellant
pending disposition of the motion.
(c) Criteria For
Release. The decision as to release pending appeal shall be made in
accordance with the criteria for bail established by tribal law in the Criminal
Procedure Act or otherwise. The burden of establishing that the defendant will
not flee or pose a danger to any other person or to the community rests with the
defendant.
Section 109. The Record on Appeal
(a) Composition Of The
Record On Appeal. The original papers and exhibits filed in the Tribal
District Court, the transcript or tape recording of the proceedings, if any, and
a certified copy of the docket entries prepared by the Clerk of the Tribal
District Court shall constitute the record on appeal in all cases.
(b) Transcript, Duty
of Appellant To Order, Notice Of Partial Transcript.
(1) Within 10 days
after filing the notice of appeal the appellant shall order from the Clerk or
reporter a transcript of such parts of the proceedings not already on file as
he deems necessary. The order shall be in writing and within the same period a
copy shall be filed with the Clerk of the Tribal District Court. If no such
parts of the proceedings are to be ordered, within the same period the
appellant shall file a certificate to that effect.
(2) If the appellant
intends to urge on appeal that a finding or conclusion is unsupported by the
evidence or is contrary to the evidence, he shall include in the record a
transcript of all evidence relevant to such finding or conclusion.
(3) Unless the entire
transcript to be included, the appellant shall, within the 10 days time
provided in subsection (b)(1) of this Section, file a statement of the issues
he intends to present on the appeal and shall serve on the appellee a copy of
the order or certificate and of the statement. If the appellee deems a
transcript of other parts of the proceedings to be necessary, he shall, within
10 days after the service of the order or certificate and the statement of the
appellant, file and serve on the appellant a designation. of additional parts
to be included. Unless within 10 days after service of such designation the
appellant has ordered such parts, and has so notified the appellee, the
appellee may within the following 10 days order the parts or move In the
Tribal District Court for an order requiring the appellant to do so.
(4) At the time of
ordering, a party must make satisfactory arrangements with the reporter for
payment of the cost of the transcript. If a typewritten transcript is ordered,
the Clerk or Reporter shall charge a fee to be set by the Court for each
original page and an additional fee for each copy of an original page. If a
copy of a tape recording of the proceedings is ordered, the Clerk or Reporter
shall charge a fee to be set by the Court for each tape copy ordered. All such
fees paid on behalf of a Clerk or reporter who is employed by the Tribe and
paid a salary from tribal monies shall be deposited in the Court fund, unless
specific statutory authority for other disposition of such monies is provided.
All such fees paid on behalf of an independent reporter appointed or
authorized by the Tribal District Court to record its proceedings, but not
paid from tribal funds shall be paid over to such reporter.
(c) Procedure When No
Transcript Available. If no report of the evidence or proceedings at a
hearing or trial was made, or if a transcript is unavailable, the appellant may
prepare a statement of the evidence or proceedings from the best available
means, including his recollection. The statement shall be served on the appellee,
who may serve objections or propose amendments thereto within 10 days after
service. Thereupon the statement and any objections or proposed amendments shall
be submitted to the Tribal District Court for settlement and approval and as
settled and approved shall be included by the Clerk of the Tribal District Court
in the record on appeal.
(d) Agreed Statement
As The Record On Appeal. In lieu of the record on appeal as defined in
subsection (a) of this section, the parties may prepare and sign a statement of
the case showing how the issues presented by the appeal arose and were decided
in the Tribal District Court and setting forth only so many of the facts averred
and proved or sought to be proved as are essential to a decision of the issues
presented. If the statement conforms to the truth, the statement together with
such additions as the Court may consider necessary fully to present the issues
raised by the appeal, shall be approved by the Tribal District Court, and shall
then be certified to the Supreme Court as the record on Appeal and transmitted
to the Supreme Court Clerk's records.
(e) Correction Or
Modification Of The Record. If any difference arises as to whether the
record truly discloses what occurred in the Tribal District Court, the
difference shall be submitted to and settled by the Judge of that Court. and the
record made to conform to the truth. If anything material to either party is
omitted from the record by error or accident or is misstated therein, the
parties by stipulation, or the Tribal District Court, either before or after the
record is transmitted to the Supreme Court, on proper suggestion or of its own
initiative, may direct that the omission or misstatement be corrected, and if
necessary that a supplemental record be certified and transmitted. All other
questions as to the form and content of the record shall be presented to the
Supreme Court.
Section 110. Transmission of Record
(a) Chief Clerk To
Serve As Clerk of the Supreme Court. The Chief Clerk of the Tribal District
Court may also. serve as the Clerk of the Supreme Court whenever the position of
Clerk of the Supreme Court is vacant, or, in the opinion of the Supreme Court
such service shall be deemed expedient.
(b) Transmission And
Filing Of Record. In all cases, including juvenile and criminal actions, the
Clerk in charge of the papers in that case shall, within 15 working days after a
Notice of Appeal is filed, prepare, certify, and deliver to the Clerk of the
Supreme Court, for filing with the Supreme Court, all papers comprising the
record of the case except the transcript. Such compilation shall be indexed with
page numbers. All parties to the appeal shall be notified of the filing of the
record with the Supreme Court, and a copy of the index to the record shall be
attached to the notice for the benefit of the parties. Copies of any documents
contained in the record shall be available to the parties at a cost per page to
be set by rule of the Supreme Court.
(c) Completion of
Record. Upon receipt of an order for a transcript or additional tape
recording, the Clerk or reporter shall acknowledge at the foot of the order the
fact that he has received it and the date on which he expects to have the
transcript or copy of the tape recording completed and shall transmit the order,
so endorsed, to the Clerk of the Supreme Court. If the transcript cannot be
completed within 30 days of receipt of the order the Clerk or reporter shall
request an extension of time from the Clerk of the Supreme Court, and the action
of the Clerk of the Supreme Court shall be entered on the docket and the parties
notified. In the event of the failure to file the transcript or complete making
copies of the tapes within the time allowed, the Clerk of the Supreme Court
shall notify the Chief Justice and take such steps as may be directed by the
Chief Justice of the Supreme Court. Upon completion of the transcript the Clerk
or reporter shall file it with the Clerk of the Tribal District Court and shall
notify the Clerk of the Supreme Court that he has done so.
(d) Transmission of
Transcript. Upon receipt of the Transcript, or notification that requested
copies of tape recordings of the proceedings are completed, or the filing of a
statement as provided in Section 109(c) or (d) of this Act, the Clerk of the
Tribal District Court shall forthwith notify the parties that the transcript,
tapes, or statement is completed and ready for transmittal to the Supreme Court,
shall state in the notice the date upon which the notice was given, and the date
the final record will be delivered to the Supreme Court. The parties may receive
their copies (if ordered) of such transcript, tapes, or statement as soon as
they become available whether before or after formal notice of such availability
is mailed to the parties. Fifteen days after the mailing of the notice of
completion of the transcript, tapes, or statement, the Clerk of the Tribal
Distrkt~1lCourt shall deliver the original thereof to the Clerk of the Supreme
Court for filing. Upon filing by the Clerk of the Supreme Court, the record
shall be deemed received and completed for the purposes of the appeal.
Section 111. Docketing The Appeal; Filing The Record
(a) Docketing The
Appeal. Upon receipt of the Notice of Appeal and of the docket entries and
papers transmitted by the Clerk of the Tribal District Court pursuant to Section
110(b). the Clerk of the Supreme Court shall thereupon enter the appeal upon the
docket. An appeal shall be docketed under the title given to the action in the
Tribal District Court, with the appellant identified as such, but if such title
does not contain the name of the appellant, his name, identified as appellant,
shall be added to the title. In appeals from the Juvenile Division of the Court,
the docket books shall contain the correct names of the parties, however, all
opinions or other papers of the Court which may become public information shall
contain only initials or other similar designations and not the names of the
parties.
(b) Upon receipt of the
completed record on appeal as provided in Section 110(d), the Clerk of the
Supreme Court shall file it and shall immediately give notice to all parties of
the date on which it was filed.
CHAPTER TWO
EXTRAORDINARY WRITS
Section 201. Mandamus or Prohibition Directed To a Judge
or Judges
Application for a writ of
mandamus or of prohibition directed to a judge or Magistrate of the Tribal
District Court, or to any other subordinate agency or officer against whom an
original action In mandamus or prohibition may be filed by law in the Supreme
Court, shall be made by filing a petition therefore with the Clerk of the
Supreme Court with proof of service on the respondent and on all parties in
interest to the action in the Tribal District Court. The petition shall contain
a statement of the facts necessary to an understanding of the issues presented
by the application; a statement of the issues presented and the relief sought; a
statement of the reasons why the writ should issue; and copies of any order or
opinion or parts of the record which may be essential to an understanding of the
matters set forth in the petition. The Clerk shall docket the petition and
submit it to the Court upon payment of a docketing fee set by Court rule. In
vacation, the alternative Writ may be issued by a single Justice but a
preemptory writ should be issued only by a quorum of the Court. The Supreme
Court may, in its discretion, remand the writ to the Tribal District Court for
initial determination.
Section 202. Denial Or Order Directing Answer
If the Court is of the
opinion that the writ should not be granted in any case on the facts and law
stated in the petition, it shall deny the petition. Otherwise, it shall order
that an answer to the petition be filed by the respondents within the time fixed
by the order. The order shall be served by the Clerk on the named respondents
and on all other parties to the action in the Tribal District. All parties below
other than the petitioner shall also be deemed respondents for all purposes. Two
or more respondents may answer jointly. If the named respondents do not desire
to appear in the proceeding, they may so advise the Clerk and all parties by
letter, but the petition shall not thereby be taken as admitted. The Clerk shall
advise the parties of the dates on which briefs are to be filed, if briefs are
required, and of the date of oral argument, if any. The proceeding shall be
given preference over ordinary civil cases. These writs may be used to compel a
respondent to perform a required action or to refrain from exceeding his
jurisdiction, but may not be used to control the discretionary actions of
judges, agencies, or other tribal officials.
Section 203. Other Extraordinary Writs
Application for
extraordinary writs other than those provided, for in Section 201 of this
Chapter shall be made by petition filed with the Clerk of the Supreme Court with
proof of service on the parties named as respondents. Proceedings on such
applications shall conform, so far as is practicable, to the procedure
prescribed in Sections 201 and 202 of this Chapter.
Section 204. Form of Papers, Number of Copies
All papers may be
typewritten. Ten copies and the original shall be filed, but the Court may
direct that additional copies be furnished.
CHAPTER THREE
HABEAS CORPUS; PROCEEDINGS IN FORMA PAUPERIS
SUBCHAPTER A
HABEAS CORPUS
Section 301. Habeas Corpus Proceedings
An application for a writ
of habeas corpus shall originally be made to the Tribal District Court. If
application is made to the Supreme Court, or a Justice thereof individually, the
application will ordinarily be transferred to the District Court for
determination. The Supreme Court, or a Justice thereof, will accept original
jurisdiction in such matters only upon a showing of compelling necessity and
urgency. If an application is made to or transferred to the Tribal District
Court and denied, renewal of the application before the Supreme Court, or a
Justice thereof is not favored; the proper remedy is by appeal to the Supreme
Court from the order of the Tribal District Court denying the writ.
Section 302. Transfer Of Custody Pending Review
Pending review of a
decision in a habeas corpus proceeding commenced before the Court, or a Justice
or Judge for the release of a prisoner, a person having custody of the prisoner
shall not transfer custody to another unless such transfer is directed in
accordance with the provisions of this Section and the Court rules. Upon
application of a custodian showing a need therefore, the Court, Justice or Judge
rendering a decision may make an order authorizing transfer and providing for
the substitution of the successor custodian as a party.
Section 303. Detention Or Release Pending Review Of
Decision Failing To Release.
Pending review of a
decision failing or refusing to release a prisoner in such a proceeding, the
prisoner may be detained in the custody from which release is sought, or in
other appropriate custody, or may be enlarged upon his recognizance or admitted
to bail, with or without surety, as may appear fitting to the Court or Justice
or Judge rendering the decision, or to the Supreme Court en banc.
Section 304. Detention Or Release Pending Review Of
Decision Ordering Release
Pending review of a
decision ordering the release of a prisoner in such a proceeding, the prisoner
shall be enlarged upon his recognizance, with or without surety, unless the
Court or Justice or Judge rendering the decision, or the Supreme Court shall
otherwise order.
Section 305. Modification of Initial Order Respecting
Custody
An initial order
respecting the custody or enlargement of the prisoner and any recognizance or
surety taken, shall govern during review in the Supreme Court unless for special
reasons shown to the Supreme Court the order shall be modified, or an
independent order respecting custody, enlargement or surety shall be made.
SUBCHAPTER B
PROCEEDINGS IN FORMA PAUPERIS
Section 311. Leave From Tribal District Court to Proceed
to Supreme Court
A party to an action in
the Tribal District Court who desires to proceed on appeal in forma pauperis
shall file in the Tribal District Court a motion for leave so to proceed,
together with an affidavit showing, in explicit detail, his inability to pay
fees and costs or to give security therefor, his belief that he is entitled to
redress, and a statement of the issues which he intends to present on appeal. If
the motion is granted, the party may proceed without further application to the
Supreme Court, and without prepayment of fees or costs in either Court or the
giving of security therefor. If the motion is denied, the Tribal District Court
shall state in writing the reasons for the denial.
Section 312. Special Rule For Parties Previously Granted
Permission To Proceed In Forma Pauperis
Notwithstanding the
provisions of the preceding Section, a party who has been permitted to proceed
in an action in the Tribal District Court in form a pauperis, or who has been
permitted to proceed there as one who is financially unable to obtain an
adequate defense in a criminal case, or a case involving the termination of
parental rights, may proceed on appeal in forma pauperis without further
authorization unless, before or after the notice of appeal is filed, the Tribal
District Court shall certify that the appeal is not taken in good faith or shall
find that the party is otherwise not entitled so to proceed, in which event the
Tribal District Court shall state in writing the reasons for such certification
or finding.
Section 313. Remedy For Denial Of Motion By Tribal
District Court
If a motion for leave to
proceed on appeal in forma pauperis is denied by the Tribal District Court, or
if the Tribal District Court shall certify that the appeal is not taken in good
faith or shall find that the party is otherwise not entitled to proceed in forma
pauperis, the Clerk shall forthwith serve notice of such action. A motion for
leave so to proceed may then be filed in the Supreme Court within 30 days after
service of notice of the action of the Tribal District Court. The motion shall
be accompanied by a copy of the affidavit filed in the Tribal District Court, or
by the affidavit prescribed by Section 311 of this Subchapter if no affidavit
has been filed in the Tribal District Court, and by a copy of the statement of
reasons given by the Tribal District Court for its action.
CHAPTER FOUR
GENERAL PROVISIONS
Section 401. Filing and Service
(a) Filing. Papers
required or permitted to be filed in the Supreme Court shall be filed with the
Clerk. Filing may be accomplished by mail addressed to the Clerk, but filing
shall not be timely unless the papers are received by the Clerk within the time
fixed for filing, except that briefs and appendices shall be deemed filed on the
day of mailing if first class mail or any more expeditious form of delivery by
mail, excepting special delivery or overnight mail, is utilized. If a motion
requests relief which may be granted by a single Justice, the Justice may permit
the motion to be filed with him, in which event he shall note thereon the date
of filing and shall thereafter transmit it to the Clerk.
Section 402. Service of All Papers Required
Copies of all papers
filed by any party and not required by this Title to be served by the Clerk
shall, at or before the time of filing, be served by that party or person acting
for him on all other parties to the appeal or review. Service on a party
represented by counsel or lay advocate shall be made on the counsel or lay
advocate.
Section 403. Manner Of Service
Service may be personal
or by mail in any manner allowed by the Civil Procedure Act for service of
motions or briefs. Personal service includes delivery of the copy to a Clerk,
secretary, or other responsible person at the office of counsel or lay advocate.
Service by mail is complete upon mailing.
Section 404. Proof Of Service
Papers presented for
filing shall contain an acknowledgment of service by the person served or proof
of service in the form of a statement of the date and manner of service and of
the name of the person served, certified by the person who made service. Proof
of service may appear on or be affixed to the papers filed. The Clerk may permit
papers to be filed without acknowledgment or proof of service but shall require
such to be filed promptly thereafter.
Section 405. Computation of Time
In computing any period
of time prescribed by this Title, by an order of the Court, or by any applicable
statute, the day of the act, event, or default from which the designated period
of time begins to run shall not be included. The last day of the period shall be
included, unless it is a Saturday, a Sunday, or a legal holiday, in which event
the period extends until the end of the next day which is not a Saturday, a
Sunday, or a legal holiday. When the period of time prescribed or allowed is
equal to or less than 7 days, intermediate Saturdays, Sundays, and legal
holidays shall be excluded in the computation. As used in this Section,
"legal holiday" includes New Year's Day, Washington's Birthday,
Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the
President or the Congress of the United States or the Legislative Authority of
the Tribe.
Section 406. Enlargement Of Time
The Court for good cause
shown may upon motion enlarge the time prescribed by this Title or Court rule or
by its order for doing any act, or may permit an act to be done after the
expiration of such time; but the Supreme Court may not enlarge the time for
filing a notice of appeal.
Section 407. Additional Time after Service By Mall
Whenever a party is
required or permitted to do an act within a prescribed period after service of a
paper upon him and that paper is served by mail, 3 days shall be added to the
prescribed period.
SUBCHAPTER A
MOTIONS AND BRIEFS
SectIon 411. Content, Response, and Reply to Motions
Unless another form is
elsewhere prescribed by this Title, an application for an order or other relief
shall be made by filing a motion for such order or relief with proof of service
on all other parties. The motion shall contain or be accompanied by any matter
required by a specific provision of this Title governing such a motion, shall
state with particularity the grounds on which it Is based, and shall set forth
the order or relief sought. If a motion Is supported by briefs, affidavits, or
other papers, they shall be served and filed with the motion. Any party may file
a response in opposition to a motion other than one for a procedural order
within 7 days after service of the motion, but motions authorized by Section
107, 108, and 469 may be acted upon after reasonable notice, and the Court may
shorten or extend the time for responding to any motion.
Section 412. Determination of Motions for Procedural
Orders
Notwithstanding the
provisions of Section 411 of this Title as to motions generally, motions for
procedural orders, including any motion under Section 406, may be acted upon at
any time, without awaiting a response thereto, and pursuant to rule or order of
the Court, motions for specified types of procedural orders may be disposed of
by the Clerk. Any party adversely affected by such action may by application to
the Court request consideration, vacation or modification of such action.
Section 413. Power of a Single Judge to Entertain
Motions
In addition to the
authority expressly conferred by this Title or by other Tribal law, a single
Justice of the Supreme Court may entertain and may grant or deny any request for
relief which under this Title may properly be sought by motion, except that a
single Justice may not dismiss or otherwise determine an appeal or other
proceeding, and except that the Supreme Court may provide by order or rule that
any motion or class of motions must be acted upon by the Court. The action of a
single Justice may be reviewed by the Court.
Section 414. Form of Papers; Number of Copies
All papers relating to
motions may be typewritten. Ten copies shall be filed with the original, but the
Court may require that additional copies be furnished.
Section 415. Brief of Appellant
The brief of the
appellant shall contain under appropriate headings and in the order here
indicated:
(a) A cover page as
described in Section 429.
(b) A table of contents,
with page references, and a table of cases (alphabetically arranged), statutes
and other authorities cited, with reference to the pages of the brief where they
are cited.
(c) A statement of the
issues presented for review.
(d) A statement of the
case. The statement shall first indicate briefly-the nature of the case, the
course of proceedings, and its disposition in the Court below. There shall
follow a statement of the facts relevant to the issues presented for review,
with appropriate references to the record (see Section 419).
(e) An argument. The
argument maybe preceded by a summary. The argument shall contain the contentions
of the appellant with respect to the issues presented, and the reasons therefor,
with citations to the authorities, statutes and parts of the record relied on.
(f) A short conclusion
stating the precise relief sought.
Section 416. Brief of Appellee
The brief of the appellee
shall conform to the requirements of Section 415, except that a statement of the
issues or of the case need not be made unless the appellee is dissatisfied with
the statement of the appellant.
Section 417. Reply Brief
The appellant may file a
brief in reply to the brief of the appellee, and if the appellee has
cross-appealed, the appellee may file a brief in reply to the response of the
appellant to the issues presented by the cross appeal. No further briefs may be
filed except with leave of Court.
Section 418. References in Briefs to Parties
Counsel will be expected
in their briefs and oral arguments to keep to a minimum references to parties by
such designations as "appellant" and "appellee". It promotes
clarity to use the designations used in the lower Court or the actual names of
the parties, or descriptive terms such as "the employee," "the
injured person," "the taxpayer," "the car," or the
names of the parties.
Section 419. References In Briefs to the Record and
Statutes
(a) References in the
briefs to parts of the record reproduced in any appendix filed with the brief of
the appellant shall be to the pages of the appendix at which those parts appear
and to the pages In the original record. If an appendix is prepared after the
briefs are filed, references in the briefs motion. Any party may file a response
in opposition to a motion other than one for a procedural order within 7 days
after service of the motion, but motions authorized by Section 107, 108, and 469
may be acted upon after reasonable notice, and the Court may shorten or extend
the time for responding to any motion.
Section 420. Length of Briefs
Except by permission of
the Court, principal briefs shall not exceed 50 pages, and reply briefs shall
not exceed 25 pages, exclusive of pages containing the table of contents, tables
of citations and any addendum containing statutes, rules, regulations, and
similar material.
Section 421. Briefs in Cases Involving Cross Appeals
If a cross appeal is
filed, the plaintiff in the Court below shall be deemed the appellant for the
purposes of this Chapter and Sections 426, 427, and 428, unless the parties
otherwise agree or the Court otherwise orders. The brief of the appellee shall
contain the issues and argument involved in his appeal as well as the answer to
the brief of the appellant.
SectIon 422. Briefs in Cases Involving Multiple
Appellants or Appellees
In cases involving more
than one appellant or appellee, including cases consolidated for purposes of the
appeal, any number of either may join in a single brief, and any appellant or
appellee may adopt by reference any part of the brief of another. Parties may
similarly join in reply briefs.
Section 423. Citation of Supplemental Authorities
When pertinent and
significant authorities come to the attention of a party after his brief has
been filed, or after oral argument but before decision, a party may promptly
advise the Clerk of the Court, by letter, with a copy to all counsel, setting
forth the citations. There shall be a reference either to the page of the brief
or to a point argued orally to which the citations pertain, but the letter shall
without argument state the reasons for the supplemental citations. Any response
shall be made promptly and shall be similarly limited.
Section 424. Brief of an Amicus Curiae
A brief of an amicus
curiae may be filed only if accompanied by written consent of all parties, or by
leave of Court granted on motion or at the request of the Court,except that
consent or leave shall not be required when the brief is presented by the Tribe,
the United States or an officer or agency thereof, or by another Tribe or a
State, Territory or Commonwealth. The brief may be conditionally filed with the
motion for leave. A motion for leave shall identify the interest of the
applicant and shall state the reasons why a brief of an amicus curiae is
desirable. Save as all parties otherwise consent, any amicus curiae shall file
its brief within the time allowed the party whose position as to affirmance or
reversal the amicus brief will support unless the Court for cause shown shall
grant leave for later filing, in which event it shall specify within what period
an opposing party may answer. A motion of an amicus curiae other than the Tribe
to participate in the oral argument will be granted only for extraordinary
reasons, or on the Court's own motion. A motion of the Tribe to present oral
argument as amicus curiae shall be granted unless extraordinary reasons appear
for refusing to grant such a motion.
Section 425. Appendix to the Briefs
Whenever the record on
appeal, or the transcript is particularly voluminous, the Court may order the
appellant to prepare, with notice and consultation by the appellee, an appendix
to the briefs which shall contain the papers, documents, and portions of the
transcript necessary to the determination of the issues presented on appeal. The
preparation of an appendix does not prevent further referrals to the original
record by any party or the Court. A party may append pertinent parts of the
record to his brief when such is necessary for a clear presentation of the
issues raised on appeal.
Section 426. Time for Filing and Service of Briefs
The appellant shall serve
and file his brief within 20 days after the date on . The appellant shall serve
and file his brief within 20 days after the date which the completed record is
received and filed in the Supreme Court. The appellee shall serve and file his
brief within 20 days after service of the brief of the appellant. The appellant
may serve and file a reply brief within 14 days after service of the brief of
the appellee, but, except for good cause shown, a reply brief must be filed at
least 3 days before argument.
Section 427. Number of Copies to Be Filed and Served.
Ten copies of each brief
shall be filed with the Clerk In addition to the original, unless the Court by
order shall, direct a lesser or greater number, and two copies shall be served
on counsel for each party separately represented. If a party is allowed to file
typewritten ribbon and carbon copies of the brief, the original and three
legible copies shall be filed with the Clerk, and one copy shall be served on
counsel for each party separately represented.
Section 428. Consequence of Failure to File Briefs
If an appellant fails to
file his brief within the time provided by this Title, or within the time as
extended, an appellee may move for dismissal of the appeal. If an appellee fails
to file his brief, he will not be heard at oral argument except by permission of
the Court.
Section 429. Form of Briefs, the Appendix and Other
Papers
(a) Briefs and appendices
may be produced by standard typographic printing or by any duplicating or
copying process which produces a clear black image on white paper, including
legible photocopies. Carbon copies of briefs and appendices may not be submitted
without permission of the Court, except in behalf of parties allowed to proceed
in forma pauperis. All printed matter must appear in at least 11 point (pica)
type on opaque, unglazed paper. Briefs and appendices produced by the standard
typographic process shall be bound in volumes having pages 6 1/8 by 9 1/4 inches
and type matter 4 1/6 by 7 1/6 inches. Those produced by any other process shall
be bound in volumes having pages not exceeding 8 1/2 by 11 inches and type
matter not exceeding 6 1/2 by 9 1/2 inches, with double spacing between each
line of text, except that quoted matter may be single spaced. Copies of the
reporter's transcript and other papers reproduced in a manner authorized by this
Section may be inserted in the appendix; such pages may be informally renumbered
if necessary.
(b) If briefs are
produced by commercial printing or duplicating firms, or, if produced otherwise
and the covers to be described are available, the cover of the brief of the
appellant should be blue; that of the appellee, red; that of an intervenor or
amicus curiae, green; that of any reply brief, gray. The cover of the appendix,
if separately printed, should be white. The front covers of the briefs and of
appendices shall contain:
(1) the name of the
Court and the number of the case;
(2) the title of the
case;
(3) the nature of the
proceedings in the Court (e.g., Appeal; Petition for Review) and the name of
the Court below;
(4) the title of the
document (e.g. Brief for Appellant, Appendix); and
(5) the names,
addresses, and telephone number of counsel representing the party on whose
behalf the document is filed.
Section 430. Form of Other Papers
(a) Petitions for
rehearing shall be produced in a manner prescribed by Section 429.
(b) Motions and other
papers may be produced in a like manner, or they may be typewritten upon opaque,
unglazed paper 8 1/2 by 11 inches in size. Lines of typewritten text shall be
double spaced. Consecutive sheets shall be attached at the left margin. Carbon
copies may be used for filing and service if they are legible.
(c) A motion or other
paper addressed to the Court shall contain a caption setting forth the name of
the Court, the title of the case, the file number, and a brief descriptive title
indicating the purpose of the paper.
SUBCHAPTER B
ARGUMENT
Section 441. Prehearing Conference
The Court may direct the
attorneys for the parties to appear before the Court or a Justice thereof for a
prehearing conference to consider the simplification of the issues and such
other matters as may aid in the disposition of the proceeding by the Court. The
Court or Justice shall make an order which recites the action taken at the
conference and the agreements made by the parties as to any of the matters
considered and which limits the issues to those not disposed of by admissions or
agreements of counsel, and such order when entered controls the subsequent
course of the proceeding, unless modified to prevent manifest injustice.
Section 442. Oral Argument in General
Oral argument shall be
allowed in . all cases unless the Court, after examination of the briefs and
record, shall be unanimously of the opinion that oral argument is not needed. In
such cases the Court shall notify the parties of its intention to proceed
without oral argument, and shall provide any party with an opportunity to file a
statement setting forth the reasons why, In his opinion, oral argument should be
heard. Oral argument will be allowed upon request unless the Court unanimously
determines:
(a) the appeal is
frivolous; or
(b) the dispositive issue
or set of.issues has been recently authoritatively decided; or
(c) the facts and legal
arguments are adequately presented in the briefs and record and the decisional
process would not be significantly aided by oral argument.
Section 443. Notice of Argument; Postponement
The Clerk shall advise
all parties whether oral argument is to be heard, and if so, of the time and
place therefor, and the time to be allowed each side. A request for postponement
of the argument or for allowance of additional time must be made by motion filed
reasonably in advance of the date fixed for hearing.
Section 444. Order and Content of Argument
The appellant is entitled
to open and conclude the argument. The opening argument shall include a fair
statement of the case. Counsel will not be permitted to read at length from
briefs, records or authorities.
Section 445. Cross and Separate Appeals
A cross or separate
appeal shall be argued with the initial appeal at a single argument, unless the
Court otherwise directs. If a case involves a cross- appeal, the plaintiff in
the action below shall be deemed the appellant for the purpose of this
Subchapter unless the parties otherwise agree or the Court otherwise directs. If
separate appellants support the same argument, care shall be taken to avoid
duplication of argument.
Section 446. Non-Appearance of Parties
If the appellee fails to
appear to present argument, the Court will hear argument on behalf of the
appellant, if present. If the appellant fails to appear, the Court may hear
argument on behalf of the appellee, If his counsel is present. If neither party
appears, the case will be decided on the briefs unless the Court shall otherwise
order.
Section 447. Submission on the Briefs
By agreement of the
parties, a case may be submitted for decision on the briefs, but the Court may
direct that the case be argued.
Section 448. Use of Physical Exhibits at Argument;
Removal
If physical exhibits
other than documents are to be used at the argument, counsel shall arrange to
have them placed in the courtroom before the Court convenes on the date of the
argument. After the argument counsel shall cause the exhibits to be removed from
the courtroom unless the Court otherwise directs. If exhibits are not reclaimed
by counsel within a reasonable time after notice is given by the Clerk, they
shall be destroyed or otherwise disposed of as the Clerk shall think best.
Section 449. When Hearing or Rehearing En Banc Will Be
Ordered
A majority of the
Justices of the Court who are in regular active service may order that any
motion or other proceeding be heard or reheard by the Supreme Court en banc.
Such hearing or rehearing is not favored and ordinarily will not be ordered
except:
(a) when consideration by
the full Court is necessary to secure or maintain uniformity of its decisions,
or
(b) when the proceedings
involves a question of exceptional importance.
Section 450. Suggestion of a Party for Hearing or
Rehearing En Banc
A party may suggest the
appropriateness of a hearing or rehearing en banc. No response shall be filed
unless the Court shall so order. The clerk shall transmit any such suggestion to
the Justices of the Court who are in regular active service but a vote need not
be taken to determine whether the cause shall be heard or reheard in banc unless
a Justice in regular active service or the Justice who rendered a decision
sought to be reheard requests a vote on such a suggestion made by a party.
Section 451. Time for Suggestion of a Parity for Hearing
or Rehearing En Banc; Suggestion does not Stay Mandate
If a party desires to
suggest that a motion or proceeding be heard initially en banc, the suggestion
must be made by the date on which the appellee's brief is filed. A suggestion
for rehearing a motion en banc must be made within ten days after notice of the
decision of the Justice initially hearing the motion. The pendency of such a
suggestion whether or not included In a petition for rehearing shall not affect
the finality of the judgment of the Supreme Court or stay the Issuance of the
mandate.
SUBCHAPTER C
JUDGMENT
Section 461. Entry of Judgment
The notation of a
judgment in the docket constitutes entry of the judgment. The Clerk shall
prepare, sign and enter the judgment following receipt of the opinion of the
Court unless the opinion directs settlement of the form of the judgment, in
which event the Clerk shall prepare, sign and enter the judgment following final
settlement by the Court. If a judgment is rendered without an opinion, the Clerk
shall prepare, sign and enter the judgment following instruction from the Court.
The Clerk shall, on the date judgment is entered, mail to all parties a copy of
the opinion, if any, or of the judgment if no opinion was written, and notice of
the date of entry of the judgment.
Section 462. Interest on Judgments
Unless otherwise provided
by law, if a judgment for money in a civil case is affirmed, whatever interest
is allowed by law shall be payable from the date the judgment was entered in the
Tribal District Court. If a judgment is modified or reversed with a direction
that a judgment for money be entered in the Tribal District Court the mandate
shall contain instructions with respect to allowance of interest.
Section 463. Damages for Delay
If the Supreme Court
shall determine that an appeal is frivolous, it may award just damages and
single or double costs to the appellee.
Section 464. To Whom Costs Allowed
(a) Except as otherwise
provided by law, If an appeal Is dismissed, costs shall be taxed against the
appellant unless otherwise agreed by the parties or ordered by the Court; If a
judgment is affirmed, costs shall be taxed against the appellant unless
otherwise ordered; if a judgment is reversed, costs shall be taxed against the
appellee unless otherwise ordered; if a judgment is affirmed or reversed in
part, or is vacated, costs shall be allowed only as ordered by the Court.
Section 465. Costs For Or Against the Tribe
In cases involving the
Tribe or an agency or officer thereof, if an award-of costs against or for the
Tribe is authorized by tribal statute, costs shall be awarded in accordance with
the provisions of Section 464, otherwise, costs shall not be awarded against the
Tribe or its agencies or officers in their official capacity, provided that cost
shall be awarded as a matter of course against a criminal defendant when the
conviction is affirmed.
Section 466. Costs of Briefs, Appendices, and Copies of
Records
Unless otherwise provided
by tribal statute or Court rule, the cost of printing, or otherwise producing
necessary copies of briefs, appendices, and copies of records shall be taxable
in the Supreme Court at rates not higher than those generally charged for such
work within the jurisdiction of the Tribe.
Section 467. Bill Of Costs; Objections; Costs Inserted
In Mandate Or Added Later
A party who desires such
costs to be taxed shall state them in an itemized and verified bill of costs
which he shall file with the Clerk, with proof of service, within 14 days after
the entry of judgment. Objections to the bill of costs must be filed within 10
days of service on the party against whom costs are to be taxed unless the time
is extended by the Court. The Clerk shall prepare and certify an itemized
statement of costs taxed in the Supreme Court for insertion in the mandate, but
the issuance of the mandate shall not be delayed for taxation of costs and if
the mandate has been issued before final determination of costs, the statement,
or any amendment thereof, shall be added to the mandate upon request by the
Clerk of the Supreme Court to the Clerk of the Tribal District Court.
Section 468. Costs On Appeal Taxable in the Tribal
District Court
Costs incurred in
preparation and transmission of the record, the cost of the reporter's
transcript, If necessary for the determination of the appeal, the premiums paid
for cost of supersedeas bonds or other bonds to preserve rights pending appeal,
and the fee for filing the notice of appeal shall be taxed in the Tribal
District Court as costs of the appeal In favor of the party entitled to costs
under this Title.
Section 469. Petition For Rehearing
(a) Time For Filing,
Content, Answer, Action By Court. A petition for rehearing may be filed
within 14 days after entry of judgment unless the time is shortened or enlarged
by order or the Court. The petition shall state with particularity the points of
law or fact which in the opinion of the petitioner the Court has overlooked or
misapprehended and shall contain such argument in support of the petition as the
petitioner desires to present. Oral argument in support of the petition will not
be permitted except upon the Court's own motion. No answer to a petition for
rehearing will be received unless requested by the Court, but a petition for
rehearing will ordinarily not be granted in the absence of such a request. If a
petition for rehearing is granted the Court may make a final disposition of the
cause without reargument or may restore it to the calendar for reargument or
resubmission or may make such other orders as are deemed appropriate under the
circumstances of the particular case.
(b) Form Of Petition;
Length. The petition shall be in a form prescribed by Section 429, and
copies shall be served and filed as prescribed by Section 427 for the service
and filing of briefs. Except by permission of the Court, a petition for
rehearing shall not exceed 15 pages.
Section 470. Issuance of Mandate
The mandate of the Court
shall issued 21 days after the entry of judgment unless the time is shortened or
enlarged by order. A certified copy of the judgment and a copy of the opinion of
the Court, if any, and any direction as to costs shall constitute the mandate,
unless the Court directs that a formal mandate issue. The timely filing of a
petition for rehearing will stay the mandate until disposition of the petition
unless otherwise ordered by the Court. If the petition is denied, the mandate
shall issue 7 days after entry of the order denying the petition unless the time
is shortened or enlarged by order.
Section 471. Voluntary Dismissal
(a) Dismissal In The
Tribal District Court. If an appeal has not been docketed, the appeal may be
dismissed by the Tribal District Court upon the filing in that Court of a
stipulation for dismissal signed by all the parties, or upon motion and notice
by the appellant.
(b) Dismissal In The
Supreme Court. If the parties to an appeal or other proceeding shall sign
and file with the Clerk of the Supreme Court an agreement that the proceeding be
dismissed, specifying the terms as to payment of costs, and shall pay whatever
fees are due, the Clerk shall enter the case dismissed, but no mandate or other
process shall issue without an order of the Court. An appeal may be dismissed on
motion of the appellant upon such terms as may be agreed upon by the parties or
fixed by the Court.
Section 472. SubstItution of Parties
(a) Death of a Party.
If a party dies after a nocice of appeal is filed or while a proceeding is
otherwise pending in the Supreme Court, the personal representative of the
deceased party may be substituted as a party on motion filed by the
representative or by any party with the Clerk of the Court. The motion of a
party shall be served upon the representative in accordance with the provisions
of Sections 402, 403, and 404. If the deceased party has no representative, any
party may suggest the death on the record and proceedings shall then be had as
the Supreme Court may direct. lf a party against whom an appeal may be taken
dies after entry of a judgment or order In the Tribal District Court but before
a notice of appeal is filed, an appellant may proceed as if death had not
occurred. After the notice of appeal is filed substitution shall be effected in
the Supreme Court in accordance with this Section. If a party entitled to appeal
shall die before filing a notice of appeal, the notice of appeal may be filed by
his attorney of record within the time prescribed by this Title. After the
notice of appeal Is filed substitution shall be effected in the Supreme Court in
accordance with this Section.
(b) Substitution For
Other Causes. If substitution of a party in the Supreme Court is necessary
for any reason other than death, substitution shall be effected in accordance
with the procedure prescribed in subsection (a).
(c) Public Officers;
Death or Separation From Office.
(1) When a public
officer is a party to an appeal or other. proceeding in the Supreme Court in
his official capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the action does not abate and his successor is
automatically substituted as a party. Proceedings following the substitution
shall be in the name of the substituted party, but any misnomer not affecting
the substantial rights of the parties shall be disregarded. An order of
substitution may be entered at any time, but the omission to enter such an
order shall not affect the substitution.
(2) When a public
officer is a party to an appeal or other proceeding in his official capacity
he may be described as a party by his official title rather than by name; but
the Court may require that his name be added.
Section 473. Cases Involving Constitutional or Indian
Civil Rights Act Questions Where the Tribe Are Not A Party
It shall be the duty of a
party who draws in question the constitutionality (or unlawfulness under the
Indian Civil Rights Act of 1968) of any statutes, ordinance, or other action of
the Tribal Legislative Authority In any proceeding in the Supreme Court to which
the Tribe, or any agency, officer, or employee thereof in their official
capacity is not a party, upon the filing of the record, or as soon thereafter as
the question Is raised In the Supreme Court, to give immediate notice in writing
. to the Court of the existence of said question. The Clerk shall thereupon
certify such fact to the Attorney General and/or Tribal Prosecutor who may
intervene upon such question upon motion.
ATTORNEY AND LAY ADVOCATE RULES
Rule 101. Admission to the Bar
(a) Roll of Attorney
and Lay Advocates. The Bar of this Court shall consist of those attorneys
and lay advocates heretofore and those hereafter admitted to practice before
this Court, who have taken the oath prescribed by the rules in force at the time
they were admitted or the oath prescribed by this rule, and have signed the roll
of attorneys of this Court.
(b) Procedure for Admission.
There is hereby constituted a Committee on Admissions and Grievances, consisting
of three members of the Bar of this Court, to be appointed by the Court. Every
applicant for admission shall file with the Clerk, on a form prescribed by the
Court, a written petition for admission, which shall be referred immediately to
the Committee on Admissions and Grievances for investigation into the
qualifications of the applicant and his fitness to be admitted to the Bar of
this Court. The Committee shall report its recommendations in writing to the
Clerk of this Court. Upon a favorable report of the Committee, filed with the
Clerk, the applicant, if an attorney, may be admitted. Lay Advocates shall be
admitted upon examination as described below. An applicant for admission, who
has qualified for admission, may, upon request, be admitted upon order of the
Court after having filed his oath of attorney without appearing in Court. Any
applicant for admission, who has qualified for admission, may appear at any
session of Court during its term and be admitted by taking the oath of attorney
in open Court upon motion of any member of the Bar of this Court.
It is desired that the
procedure for admission by the Committee include a Tribal practice program which
is designed to acquaint the applicants with pertinent aspects of practice in
this Court, emphasizing the Tribal law and Tribal Court Rules. It is anticipated
that this program would be held in the ceremonial courtroom, and would, if
possible, include presentations by Court officials and judicial officers. The
Court will endeavor to set aside a portion of one day at the beginning of each
term for a Tribal practice program which should be attended by those expecting
to be admitted during that term unless such attendance would create a hardship
for the prospective admittee.
Individual Justices may,
from time to time, in emergent situations upon special request admit individual
lawyers who have been approved by the Committee. Before being admitted as a
member of the Bar of this Court each applicant shall take and subscribe to the
oath shown in Exhibit I to these rules.
(c) Eligibility.
Any member in good standing of the Bar of the Supreme Court of the United
States, or of any United States Court of Appeals, or of any District Court of
the United States, or any person appointed as Tribal Justice, Judge, or
magistrate, or a member in good standing of the Bar of the highest court of any
Indian Tribe or State of the United States, is eligible for admission to the Bar
of this Court.
Any member of a federally
recognized Indian Tribe shall be eligible for admission as a lay advocate upon
successfully taking a comprehensive examination on the laws and rules applicable
in the Tribal Court, which examination shall be promulgated by the Admissions
Committee with the approval of the Court, and administered by the Admissions
Committee at least once each year or at such other intervals as may be ordered
by the Court. Upon receiving a passing score on the examination and showing
their moral fitness to practice law, such persons should receive a favorable
report from the Admissions Committee and be admitted to the practice of law in
this Court and all inferior Tribal Courts. Thereafter, such lay advocates shall
be held to the same standards, be entitled to the same rights, privileges,
obligations, and duties, and be accorded all the honors to the same extent as
any attorney admitted to practice before the Court of the Tribe within this
reservation.
(d) Reciprocity.
Any attorney who shall have been admitted to practice in any Federal Court
within this State may be admitted to practice in this Court upon the motion of a
member of the Bar, in open Court, and the filing of a written application
without the necessity of appearing before the Admissions Committee.
(e) Attorneys for the
United States. Attorneys who are employed or retained by the United States
or its agencies may practice in this Court in all cases or proceedings in which
they represent the United States or such agencies.
(f) Admission of
Non-Resident Attorney for Limited Practice. Any member of the Bar of the
Supreme Court of the United States, or of any United States Court of Appeals, or
of any District Court of the United States, or of the highest Court of any
Indian Tribe or State of the United States, who is a non-resident of the State
may be admitted to the Bar of this Court for limited practice upon oral
application and without compliance with subsection (b) hereof. Limited practice
shall be restricted to appearance and practice in a case or proceeding then on
file in the court.
(g) Temporary
Admission. Any attorney who appears eligible for admission to the Bar of
this Court may in the discretion of a Judge of the District Court or Justice of
this Court be granted temporary admission to practice in a pending case.
(h) Withdrawal from
Case. In any action, wherein appearance is made through counsel, there shall
be no withdrawal by counsel except by leave of Court upon reasonable notice to
the client and all other parties who have appeared in the case. Withdrawal of
counsel may be granted subject to the condition that subsequent papers may
continue to be served upon the counsel for forwarding purposes or upon the Clerk
of the Court, as the Court may direct, unless and until the client appears by
other counsel or in ro na persona, and any notice to the client shall so
state and any filed consent o the client shall so acknowledge.
(i) Discipline.
Any member of the Bar of this Court guilty of a violation of the prescribed oath
of office, or of a violation of the disciplinary rules set forth in the Code of
Professional Responsibility of the American Bar Association, or of any conduct
unbecoming a member of the Bar of this Court, shall be subject to reprimand,
suspension, disbarment, or such other disciplinary action as the Court deems
appropriate.
(j) Summary
Discipline. For misconduct in the presence of the Court, an order may issue
forthwith administering such discipline as the Court deems appropriate,
including a fine of not to exceed $500.00 or confinement of not to exceed ten
(10) days, but summary discipline shall not include the right of the Court to
suspend or disbar the offending lawyer from practicing in this Court. An
attorney summarily disciplined as herein provided may appeal any punishment
imposed hereunder to the Supreme Court, or if summary discipline is administered
by a Justice, to the remaining Justices of the Court sitting en banc. The
Justice or Judge administering the discipline shall not sit in the hearing of
such an appeal. In order to allow such an appeal the discipline imposed will,
upon request of the attorney, and by his posting a supersedeas bond in a
reasonable amount to be fixed by the Court, be stayed for seven (7) days to
allow such attorney to perfect an appeal. If no written appeal be filed within
said seven (7) days, the punishment so imposed shall be forthwith administered
unless in the interim the Judge or Justice imposing same has rescinded or
modified his original action. Nothing herein provided is intended to preclude
the right to the disciplined attorney to appeal direct to the Supreme Court.
(k) Conviction;
Discipline in Other Courts. Any member of the Bar of this Court convicted in
either federal, state, or tribal court of a felony or other crime punishable by
banishment or involving moral turpitude, and any member disbarred or suspended
from practice in any Court of competent jurisdiction, shall be suspended
automatically from practice in this Court and may be reinstated only on written
application showing cause why he should be reinstated, excepting however that in
the event the discipline imposed in the other jurisdiction has been stayed there
the discipline imposed in this Court shall likewise be deferred until such stay
expires in the other jurisdiction. And provided further however that in the
event a member of the Bar of this Court is disciplined in some other
jurisdiction and this Court determines upon the face of the record upon which
the discipline in another jurisdiction is predicated it clearly appears:
1. That the procedure
was so lacking in notice or opportunity to be heard as to constitute a
deprivation of due process; or
2. that there was such
a infirmity of proof establishing the misconduct as to give rise to the clear
conviction that the Court could not, consistent with its duty, accept as final
the conclusion on that subject; or
3. that the imposition
of the same discipline by the Court would result in grave injustice; or
4. that the misconduct
established is deemed by the Court to warrant substantially different
discipline,
then and in either of such events said attorney shall not be automatically
similarly disciplined in this Court.
An attorney of this Bar
who is under investigation for misconduct, or who is facing disbarment
proceedings in any Court of competent jurisdiction, who resigns from the Bar of
the investigating jurisdiction, or who voluntarily permits his license to
practice therein to terminate, shall be, by this Court, deemed to have been
disbarred in the other jurisdiction and shall forthwith be disbarred from
practicing in this Court.
(l) Disciplinary
Procedures. Proceedings to discipline a member of the Bar of this Court,
except as set forth in paragraphs (j) and (k) hereof, shall be upon an order to
show cause issued by the Court, reciting the charges and fixing notice of the
date of hearing (which shall not be less than thirty (30) days from the date of
the notice), and reciting the place of the hearing and such hearing procedures
as may be reasonable and consistent with due process. Notice to the attorney
shall be made by personal service or by registered or certified mail, addressed
to the respondent-attorney at his last known address. The Court may, in its
discretion, refer any Bar disciplinary matter to its Committee on Admissions and
Grievances for proper investigation and recommendation to the Court, either
before or after issuance of an order to show cause. The recommendation of the
Committee on Admissions and Grievances, if same suggests disbarment or
suspension, shall not be adopted until the procedure set forth above has been
followed. Any attorney disbarred or suspended pursuant to these rules may apply
to the Court for leave to petition for reinstatement.
Rule 102: Appearance of Counsel and Withdrawal of Counsel
(a) Appearance.
Any attorney appearing for a defendant in a civil or criminal case shall enter
his appearance by signing and filing a pleading or by entry of appearance on a
form prescribed by the Clerk of this Court. In the event a plaintiff should
change counsel or add additional counsel, the new or additional counsel for such
plaintiff shall enter his appearance on a form to be provided by the Clerk for
that purpose. Counsel of record in any case shall be permitted to withdraw
conformably to Rule 101(h) only by order of the judge to whom the case is
assigned.
(b) Certificate of
Familiarity With Local Court Rules. Every person, upon entering an
appearance in any case of proceeding in this Court, or upon first tendering for
filing any pleading or paper therein, shall be required to certify that such
person has received, read and is familiar with the current Rules of this Court,
specifically including all of the most recent published amendments to them.
Such certification shall
be required before any such entry of appearance, pleading or paper shall be
filed by the clerk, provided however, for good cause shown, the Clerk may in his
discretion receive and file any such matter on condition that the required
certificate be filed within ten (10) days thereafter, failing in which the
matter so filed shall be stricken.
The same certification
shall also be required. of every other person thereafter participating in such
cause or proceeding.
The Clerk shall keep a
master file of all such certificates. Once a person has so certified his
familiarity, he shall not be required to do so in subsequent cases unless
required by order of the Court. A Judge of this Court may authorize the Clerk to
waive the requirement as to certain persons or categories of persons when such
will best serve the administration of justice.
Rule 103: Courtroom Decorum
(a) The Canon of
Professional Ethics were adopted by the American Bar Association and this Court
as a general guide, because as stated in the preamble of the American Bar
Association Canons, "No code or set of rules can be framed, which will
particularize all the duties of the lawyer in the varying phases of litigation
or in all the relations of professional life." The preamble further
admonishes that "the enumeration of particular duties should not be
construed as a denial of the existence of others equally imperative, though not
specifically mentioned." In that spirit, all lawyers should become familiar
with their duties and obligations as defined and classified generally in the
Canons, the common law decisions, the statutes and the usages, customs, and
practice of the bar of this Court. These Canons, and the statutes and common law
of the Tribe relating to attorney conduct, are applicable to all attorneys and
lay advocates who practice before this Court.
(b) The purpose of this
rule is to emphasize, not to supplant, certain portions of those ethical
principles applicable to the lawyer's conduct in the courtroom. In addition to
all other requirements, therefore, lawyers appearing in this Court shall:
1. Be punctual in
attendance at Court.
2. Refrain from
addressing one another in Court by their first names.
3. Refrain from leaving
the courtroom while Court is in session, unless it is absolutely necessary,
and then only if the Court's permission has been first obtained.
4. See that only one of
them is on his feet at a time unless an objection is being made.
5. Refrain from
approaching jurors who have completed a case unless authorized by the Court.
6. Avoid approaching
the bench as much as possible. In this connection, counsel should try to
anticipate questions which will arise during the trial, and take them up with
the Court and opposing counsel in chambers. If however, it becomes necessary
for an attorney to confer with the Court at the bench, the Court's permission
should be obtained, and opposing counsel should be openly invited to accompany
him.
7. Refrain from
employing dilatory tactics.
8. Deliver jury
arguments from the lectern placed in a proper position facing the jury. If it
is necessary to argue from an exhibit, the Court will, upon request, grant
permission to do so.
9. Hand all papers
intended for the Court to see to the Clerk, who, in turn will pass them up to
the judge.
10. Hand to the Clerk,
rather than the Court Reporter, any exhibits to be marked which have not
previously been identified.
11. Advise clients,
witnesses, and other interested persons concerning rules of decorum to be
observed in Court.
12. Stand and use the
lectern when interrogating witnesses, unless otherwise instructed by the
Court. However, when interrogating a witness concerning an exhibit the Court
may, upon request, grant permission to approach the witness stand or the
exhibit, as the case may be, for that purpose.
13. Never conduct or
engage in experiments involving any use of their own persons or bodies except
to illustrate in argument which has been previously admitted in evidence.
14. Not conduct a trial
when they know, prior thereto, that they will be necessary witnesses, other
than as to merely formal matters such as identification or custody of a
document or the like. If, during the trial, they discover that the ends of
justice require their testimony, they should from that point on, if feasible
and not prejudicial to their client's case, leave further conduct of the trial
to other counsel. If circumstances do not permit withdrawal from the conduct
of the trial, lawyers should not argue the credibility of their own testimony.
15. Avoid disparaging
personal remarks or acrimony toward opposing counsel and remain wholly
uninfluenced by any ill-feeling between the respective clients. They should
abstain from any allusion to personal peculiarities and idiosyncrasies of
opposing counsel.
16. Rise when
addressing, or being addressed by the Court.
17. Refrain from
assuming an undignified posture. They should always be attired in a proper and
dignified manner as befits an officer of the Judicial Branch of the Government
and should abstain from any apparel or ornament calculated to attract
attention to themselves.
18. Comply, along with
all other persons in the courtroom, with the following:
(i) No tobacco in any
form will be permitted at any time.
(ii) No propping of
feet on tables or chairs will be permitted at any time.
(iii) No bottles,
beverage containers, paper cups or edibles should be brought into the
courtroom, except with permission of the bailiff.
(iv) No gum chewing
or reading of newspapers or magazines (except as a part of the evidence in a
case) will be permitted while Court is in session.
(v) No talking or
other unnecessary noises will be permitted while Court is in session.
(vi) Everyone must
rise when instructed to do so, upon opening, closing, or declaring recesses
of Court.
(vii) All male
lawyers and male Court personnel must wear both coats and ties, women
lawyers and women Court personnel must be suitably attired.
(viii) Any attorney
who appears in Court intoxicated or under the influence of intoxicants,
drugs or narcotics may be summarily held in contempt.
Rule 104: Attorney Conference With Respect To Discovery Motions
With respect to all
motions or objections relating to discovery, the Tribal District Court shall
refuse to hear any such motion or objection unless counsel for the movant shall
first advise the Court in writing that he has conferred in good faith with
opposing counsel, but that, after a sincere attempt to resolve differences has
been made, the attorneys have been unable to reach an accord.
Rule 105: Free Press - Fair Trial
(a) It is the duty of the
lawyer or law firm not to release or authorize the release of information or
opinion which a reasonable person would expect to be disseminated by any means
of public communication, in connection with pending or imminent criminal
litigation with which a lawyer or a law firm is associated, if there is a
reasonable likelihood that such dissemination will interfere with a fair trial
or otherwise prejudice the due administration of justice.
(b) With respect to a
pending investigation of any criminal matter, a lawyer participating in or
associated with the investigation shall refrain from making any extrajudicial
statement which a reasonable person would expect to be disseminated, by any
means of public communication, that goes beyond the public record or that is not
necessary to inform the public that the investigation is underway, to describe
the general scope of the investigation, to obtain assistance in the apprehension
of a suspect, to warn the public of any dangers, or otherwise to aid in the
investigation.
(c) From the time of
arrest, issuance of an arrest warrant or the filing of a criminal complaint in
any criminal matter until the commencement of trial or disposition without
trial, a lawyer or law firm associated with the prosecution or defense shall not
release or authorize the release of any extrajudicial statement which a
reasonable person would expect to be disseminated by any means of public
communication, relating to that matter and concerning:
(1) The prior criminal
record (including arrests, indictments, or other charges of crime), or the
character or reputation of the accused, except that the lawyer or law firm may
make a factual statement of the accused's name, age, residence, occupation,
and family status and, if the accused has not been apprehended, a lawyer
associated with the prosecution may release any information necessary to aid
in his apprehension or to warn the public of any dangers he may present;
(2) The existence or
contents of any confession, admission, or statement given by the accused, or
the refusal or failure of the accused to make any statement;
(3) The performance of
any examinations or tests or the accused's refusal or failure to submit to an
examination or test;
(4) The identity,
testimony, or credibility of prospective witnesses, except that the lawyer or
law firm may announce the identity of the victim if the announcement is not
otherwise prohibited by law;
(5) The possibility of
a plea of guilty to the offense charged or a lesser offense;
(6) Any opinion as to
the accused's guilt or innocence or as to the merits of the case or the
evidence in the case.
(d) The foregoing shall
not be construe to preclude the lawyer or law firm during this period, in the
proper dtse*large of his or its official or professional obligations, from
announcing the fact and circumstances of arrest (including time and place of
arrest, resistance, pursuit, and use of weapons), the identity of the
investigating and arresting officer or agency, and the length of the
investigation; from making an announcement, at the time of seizure of any
physical evidence other than a confession, admission or statement, which is
limited to a description of the evidence seized; from disclosing the nature,
substance, or text of the charge, including a brief description of the offense
charged; from quoting or referring without comment to public records of the
Court in the case; from announcing the scheduling or result of any stage in the
judicial process; from requesting assistance in obtaining evidence; or from
announcing without further comment that the accused denies the charges made
against him.
(e) During a jury trial
on any criminal matter, including the period of selection of the jury, no lawyer
or law firm associated with the prosecution or defense shall give or authorize
any extrajudicial statement or interview relating to the trial or the parties or
issues in the trial, which a reasonable person would expect to be disseminated
by means of public communication if there is a reasonable likelihood that such
dissemination will interfere with a fair trial, except that the lawyer or law
firm may quote from or refer without comment to public records of the Court in
the case.
(f) Nothing in this Rule
is intended to preclude the formulation or application of more restrictive rules
relating to the release of information about juvenile or other offenders, to
preclude the holding of hearings or the lawful issuance of reports by
legislative, administrative, or investigative bodies, or to preclude any lawyer
from replying to charges of misconduct that are publicly made against him.
(g) All Court supporting
personnel, including among others, Tribal and Bureau of Indian Affairs Police
and their deputies, marshals, deputy marshals, court clerks, deputy court
clerks, bailiffs, court reporters and employees or subcontractors retained by
the court-appointed official reporters, are hereby prohibited from disclosing to
any person, without authorization by the Court, information relating to a
pending criminal case that is not a part of the public records of the Court.
Such personnel are also forbidden from divulging information concerning in
camera arguments and hearings held in chambers or otherwise outside the presence
of the public.
(h) In a widely
publicized or sensational civil or criminal case, the Court, on motion of either
party or on its own motion, may issue a special order governing such matters as
extrajudicial statements by parties and witnesses likely to interfere with the
rights of the accused to a fair trial by an impartial jury, the seating and
conduct in the courtroom of spectators and news media representatives, the
management and sequestration of jurors and witnesses, and any other matters
which the Court may deem appropriate for inclusion in such an order.
Such a special order may
be addressed to some or all of the following subjects:
(1) A proscription of
extrajudicial statements by participants in the trial (including lawyers,
parties, witnesses, jurors and court officials) which might divulge
prejudicial matter not of public record in the case.
(2) Specific directives
regarding the clearing of entrances to and hallways in the courthouse and
respecting the management of the jury and witnesses during the course of the
trial, to avoid their mingling with or being in the proximity of reporters,
photographers, parties, lawyers and others, both in entering and leaving the
courtroom or courthouse and during recesses in the trial.
(3) A specific
direction that the jurors refrain from reading, listening to, or watching news
reports concerning the case, and that they similarly refrain from discussing
the case with anyone during the trial and from communicating with others in
any manne