The Tribal Court shall
have jurisdiction to try all actions for the forcible entry and detention, or
detention only, of real property, and claims for the collection of rent or
damages to the premises may be included in the same action, but other claims may
not be included in the same action. A judgment in an action brought under this
ordinance shall be conclusive as to any issues adjudicated therein, but it shall
not be a bar to any other action brought by either party.
Section 102. Powers of Tribal Court
The Tribal Court shall
have power to inquire, in the manner hereinafter directed, as well against those
who make unlawful and forcible entry into lands and tenements, and detain the
same, as against those who, having a lawful and peaceable entry into land or
tenements, unlawfully and by force hold the same, and if it be found, upon such
inquiry, that an unlawful and forcible entry has been made, or that the same
lands and tenements are held unlawfully, then the court shall cause the party
complaining to have restitution thereof.
Section 103. Extent of Jurisdiction
Proceedings under this
ordinance may be had in all cases against tenants holding over their terms and,
incident thereto, to determine whether or not tenants are holding over their
terms; in sales of real estate on executions, orders or other judicial process,
when the judgment debtor was in possession at the time of the rendition of the
judgment or decree, by virtue of which such sale was made; in sales by
executors, administrators, guardians and on partition, where any of the parties
to the partition were in possession at the commencement of the suit, after such
sales, so made, on execution or otherwise, shall have been examined by the
Tribal Court, and the same adjudged valid; and in the cases where the defendant
is a settler or occupier of lands and tenements without color of title, and to
which the complainant has the right of possession. This section is not to be
construed as limiting the provisions of the preceding section.
Section 104. Issuance and Return of Summons
The summons shall be
issued and returned as in other cases, except that it shall command the Chief of
the Tribal Police or other person serving it, to summon the defendant to appear
for, trial at the time and place specified therein, which time shall be not less
than five (5) days nor more than fifteen (15) days from the date that the
summons is issued. The summons shall apprise the defendant of the nature of the
claim that is being asserted against him; and there shall be endorsed upon the
summons the relief sought and the amount for which the plaintiff will take
judgment if the defendant fails to appear. In all cases, pleadings may be
amended to conform to the evidence.
Section 105. Service of Summons
The summons may be served
as in other cases except that such service shall be at least three (3) days
before the day of trial, and the return day shall not be later than the day of
trial, and it may also be served by leaving a copy thereof with some person over
fifteen (15) years of age, residing on the premises, at least three (3) days
before the day of trial; or, if service cannot be made by the exercise of
reasonable diligence on the tenant or on any person over the age of fifteen (15)
years residing on the premises, the same may be served by registered mail, with
return receipt, postmarked at least three (3) days before the date of trial.
Section 106. Constructive Service of Summons
If, in the exercise of
reasonable diligence, service cannot be made upon the defendant personally nor
upon any person residing upon the premises over fifteen (15) years of age, then
in lieu of service by registered mail, service may be obtained for the sole
purpose of adjudicating the right to restitution of the premises by the Tribal
Police's posting said summons conspicuously on the building on the premises,
and, if there by no building on said premises, then by posting the same at some
conspicuous place on the premises sought to be recovered at least five (5) days
prior to the date of trial, and by the claimant's mailing a copy of said summons
to the defendant at his last known address by registered or certified mail at
least seven (7) days prior to said date of trial. Such service shall confer no
jurisdiction upon the Tribal Court to render any judgment against the defendant
for the payment of money nor for any relief other than the restoration of
possession of the premises to the claimant. Such service shall not be rendered
ineffectual by the failure of the defendant to actually receive or sign a return
receipt for such mailed process.
Section 107. Answer or Affidavit by Defendant
(a) In all cases in which
the defendant wishes to assert title to the land or that the boundaries of the
land are in dispute, he shall, before the time for the trial of the cause, file
a verified answer or an affidavit which contains a full and specific statement
or the facts constituting his defense of affidavit, the action shall proceed as.
one in ejectment .before the Tribal Court.
If the defendant files an affidavit he shall file answer within ten (10) days
after the date the affidavit is filed.
(b) In all cases in which
the cause of action is based on an asserted breach of a lease by the defendant,
or the termination or expiration of a lease under which the defendant claims an
interest in the property in a verified answer or affidavit, the plaintiff may
proceed with the forcible entry and detainer action instead of an ejectment
action.
(c) No answer by the
defendant shall be required before the time for trial of the cause.
Section 108. Trial by Tribal Court
All cases for forcible
entry and detainer or detainer only shall be tried by the Tribal Court without a
jury unless the rent and damages prayed for exceeds ten thousand (10,000)
dollars. Any or all cases under this ordinance may be referred to a Court
Referee by the Tribal Court.
Section 109. Procedure Where No Jury Available
If a jury be properly
demanded by either party, and no jury is available from the general panel, the
judge shall immediately direct that an open venire be issued to the Chief of the
Tribal Police or one of his deputies, for such number of jurors as may be deemed
necessary, to be selected without resorting to the jury wheel. The persons
selected shall have the qualifications of jurors.
Section 110. Attorney Fee
A reasonable attorney fee
shall be allowed by the Tribal Court to the prevailing party.
Section 111. Writ of Execution - Form - New Trial
If judgment be for
plaintiff, the Tribal Court shall, at the request of the plaintiff, his agent or
attorney, issue a writ of execution thereon, which shall be in substantially the
following form:
[HEADING]
The Absentee Shawnee Tribe of Oklahoma to:
The Chief of the Tribal
Police:
Whereas, in a certain
action for the forcible entry and detention (or for the forcible detention as
the case may be) of the following described premises, to wit:________________
tried before me, wherein, _______________________________________ was
plaintiff, and ______________________________________ was defendant, judgment
was rendered on the _________ day of _________, 19_____, that the plaintiff
have restitution of said premises; and also that he recover rent, attorney
fees and costs in the sum of ___________; you, therefore, are hereby commanded
to cause the defendant to be forthwith removed from said premises and the said
plaintiff to have restitution of the same; also that you levy on the goods and
chattels of the said defendant, and make the cost aforesaid, and all accruing
costs, and of this writ, make legal service and due return.
Witness my hand this
___________ day of _____________________, 19______
_______________________________
A. B. Judge
A motion for a new trial
may be filed only within three (3) days of judgment but shall not operate to
stay execution.
Section 112. Stay of Execution
If no supersedeas bond be
posted within the time provided herein, the officer shall forthwith restore the
plaintiff to possession of the premises by executing the writ prescribed in the
preceding section and shall make levy to collect the amount of the judgment and
all accruing costs. The officer's return shall be as upon other executions.
The defendant shall have
three (3) days after the date of judgment to post supersedeas bond conditioned
as provided by law. This time limit may be enlarged by a trial judge's order to
not more than ten (10) days after the date of judgment. The posting of a
supersedeas bond shall not be construed to relieve the defendant of his duty to
pay current rent as it becomes due while the appeal is pending. The rent shall
be paid into the Tribal Court Clerk's office together with poundage. If there be
controversy as to the amount of rent, the judge shall determine by order how
much shall be paid in what time intervals. Withdrawal by the plaintiff of rent
deposited in the Tribal Court Clerk's office pending appeal shall not operate to
estop him from' urging on appeal his right to the possession of the premises.
Failure to pay current rentals while the appeal is pending shall be considered
as abandonment of the appeal.
Section 113. Forcible Entry and Detainer Action on Small Cairns Docket
An action for forcible
entry and detainer brought pursuant to procedures prescribed otherwise in this
ordinance standing alone and when joined with a claim for recovery of rent,
damages to the premises, where the total recovery sought, exclusive of
attorney's fees and other court costs, does not exceed the jurisdictional amount
for the 'small claims court, shall be placed on the small claims docket of the
Tribal Court. The Tribal Court Clerk may in connection with such actions prepare
the affidavit, by which the action is commenced, and the summons and generally
assist the unrepresented plaintiffs to the same extent that he is now required
so to do under the Small Claims Procedure Ordinance.
Section 114. Affidavit Form
The actions for unlawful
entry and detainer standing alone or when joined with a claim for collection of
rent or damages to the premises, or both, shall be commenced by filing an
affidavit in substantially the following form with the Clerk of the Tribal
Court:
IN THE TRIBAL COURT
ABSENTEE SHAWNEE TRIBE OF OKLAHOMA
_____________________________
Plaintiff,
vs.
_____________________________
Defendant.
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Case No. CIV-
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FORCIBLE ENTRY AND DETAINER
AFFIDAVIT
Absentee Shawnee Tribe ) ss.
______________________________, being duly sworn, deposes and says:
The defendant resides at
__________, and defendant's mailing address is
_______________________________________________________________.
The defendant is indebted
to the plaintiff in the sum of $_____________ for rent and for the further sum
of $________________________________ for damages to the premises rented by the
defendant; the plaintiff has demanded payment of said sum(s) but the defendant
refused to pay the same and no part of the amount sued for herein has been paid,
and/or
The defendant is
wrongfully in possession of certain real property within the Tribal jurisdiction
described as _______________________________________ ; the plaintiff is entitled
to possession thereof and has made demand on the defendant to vacate the
premises, but the defendant refused to do so.
____________________________
Plaintiff
Subscribed and sworn to
before me this ______________________________ day of
______________________________, 19_____________
_____________________________
Notary Public (Clerk or Judge)
Section 115. Summons - Form
The summons to be issued
in an action for forcible entry and detainer shall be in the following form:
SUMMONS
The [Name of Tribes]:
To the within named defendant:
You are hereby directed
to relinquish immediately to the plaintiff herein total possession of the real
property described as _________________________ or to appear and show cause why
you should be permitted to retain control and possession thereof.
This matter shall be
heard at ______________________________________ [Name or address of Tribal
Courthouse], in ________________________, [Town], [Name of Tribe], at the hour
of __________________________ o'clock on the __________ day of ________________
(month), 19 __________ , or at the same time and place three (3) days after
service hereof, whichever is the latter. (This date shall be not less than five
(5) days from the date summons is issued.) You are further notified that if you
do not appear on the date shown, judgment will be given against you as follows:
For the amount of the
claim for deficient rent and/or damages to the premises, as it is stated in the
affidavit of the plaintiff and for possession of the real property described in
said affidavit, whereupon a writ of execution shall issue directing the Tribal
Police to remove you from said premises and take possession thereof.
In addition, a judgment
for costs of the action, including attorney's fees and other costs, may also be
given.
Dated this _______ day of ___________________________, 19 ___________.
___________________________________
Clerk of the Tribal Court (of Judge)
___________________________________
Plaintiff or Attorney
___________________________________
Address
___________________________________
Telephone Number