Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians Tribal Code

TITLE 2 - RULES OF PROCEDURE

Chapter 2-1 Reserved for Expansion
Chapter 2-2 Civil Actions, Limitations and Liability
Chapter 2-3 Reserved for Expansion
Chapter 2-4 Enforcement of Certain Judgements of Courts Other Than the Tribal Court of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians
Chapter 2-5 Civil Judgements
Chapter 2-6 Reserved for Expansion
Chapter 2-7 Tort Claims
Chapter 2-8 Sale of Tribal Bonds
Chapter 2-9 Evidence
Chapter 2-10 Reserved for Expansion
Chapter 2-11 Reserved for Expansion
Chapter 2-12 Small Claims Court
Chapter 2-14 Peacegiving Court
Chapter 2-15 Juveniles - Purpose and Construction

CHAPTER 2-2 CIVIL ACTIONS, LIMITATIONS AND LIABILITY

2-2-0 CIVIL ACTIONS

2-2-1 No Merger of Civil and Criminal Actions

Actions are of two kinds, civil and criminal. A civil action is prosecuted by one party against another for the enforcement or protection of a right or the redress or prevention of a wrong. When the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other.

2-2-2 Availability of Civil Actions

(a) Civil actions are those causes, within the jurisdiction of the Tribal Court, originating in:

(1) Tribal law, including Tribal custom or tradition as defined by statute or by Tribal Court rule or decision,

(2) common law or equity, if not inconsistent with Tribal law, and

(3) Federal or Oregon statute, if the Tribal Court has the power to effectuate the statutory remedies, Provided that

(A) if the cause is one accepted by the United States for litigation in Federal court under the Federal Tort Claims Act, it may not be brought in Tribal Court;

(B) if State court or Federal court jurisdiction over the cause is concurrent with that of the Tribal Court and

(i) the cause is pending in the courts of the foreign jurisdiction, the Tribal Court shall stay any complaint with the same parties and raising the same issues as the foreign pending cause until jurisdiction issues are resolved between the Tribal and other courts; or

(ii) the cause was filed first or solely with the Tribal Court, but the interests of justice, of the parties, of judicial economy, and of comity are, in the judgment of the Court, paramount, the Tribal Court may stay or dismiss the action in deference to the more appropriate or convenient court of the foreign jurisdiction.

(b) If the cause arising under a Federal or Oregon statute replaces a common law or equitable cause in the law of such jurisdiction, the statutory rights and remedies will govern.

2-2-3 Bases for Civil Actions

A civil action arises out of:

(a) an obligation, which is a legal duty by which one person is bound to do nor not to do a certain thing and arises from contract or operation of law; or

(b) an injury, which may be to a person or to property. An injury to property consists in depriving its owner of the benefit of it, which is done by taking, withholding, deteriorating, or destroying it. Every other injury is an injury to the person.

2-2-4 Laws Applicable in Civil Actions

(a) In all civil actions, the Tribal Court shall first apply the applicable laws, Ordinances, customs and usages of the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians (Tribes) and then shall apply any applicable laws of the United States and authorized regulations of the Department of the Interior. Where doubt arises as to customs and usages of the Tribes, the Tribal Court may request the advice of the appropriate committee which is recognized in the community as being familiar with such customs and usages. Any matter not covered by Ordinances, customs and usages of the Tribes or by applicable federal laws and regulations may be decided by the Court according to the laws of the State of Oregon.

(b) Pursuant to 25 U.S.C.A. 483a(a), foreclosure or sale pursuant to terms of a mortgage or deed of trust to land shall be in accordance with the laws of Oregon, with the exception that under Tribal law a three hundred and sixty (360) day-period to redeem shall be available to debtors in foreclosure actions.

2-2-5 When Action Accrues and Commences

For the purposes of statutes relating to the time within which an action must be commenced:

(a) a claim or cause of action accrues when all elements of the claim or cause exist or have occurred and the right to maintain an action on the claim is complete; and

(b) an action is commenced when the complaint is filed.

2-2-6 Survival of Cause of Action and Action for Wrongful Death

(a) An action, cause of action, or defense does not abate because of the death or disability of a party or transfer of any interest therein, but whenever the cause of action or defense arose in favor of such party prior to his or her death or disability or transfer of interest, it survives and may be maintained by his or her successors in interest. If the action has not been begun or defense interposed, it may be commenced in the name of his or her successors in interest.

(b) When injuries to and the death of one person are caused by the wrongful act or neglect of another, the personal representative of the decedent's estate may maintain an action for damages against the person causing the death or, if such person be employed by another person who is responsible for his or her conduct, then also against such person.

(c) Actions brought under this section must be combined in one legal action, and any element of damages may be recovered only once.

2-2-7 Action by Parent or Guardian for Injury to Child or Ward

Either parent may maintain an action for an injury to a minor child and a guardian for injury to a ward when such injury is caused by the wrongful act or neglect of another. Such action may be maintained against the person causing the injury or, if such person is employed by another person who is responsible for his conduct, also against such other person. If a parent or guardian brings such an action on behalf of a child, the statute of limitations set out in section 2-2-22(a) is not tolled during the child's minority.

2-2-20 STATUTES OF LIMITATION

2-2-21 Period of Limitation on Civil Actions

(a) Except as otherwise provided by law, a civil action must be commenced within two (2) calendar years of the time the cause of action accrued.

(b) Failure to commence an action within the time provided is a defense that may be waived by a party if not raised in the party's first pleading.

(c) Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues. Lack of knowledge of the claim or cause of action, or of its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation.

(d) Where a right exists but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the demand is made, except that where the right grows out of the receipt or detention of money or property by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time when the person having the right to make the demand has actual knowledge of the facts upon which that right depends.

(e) The period of limitation does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party if:

(1) the facts constituting the claim are by their nature concealed or self-concealing; or

(2) before, during, or after the act causing the injury, the defendant has taken action which prevents the injured party from discovering the injury or its cause.

2-2-22 Circumstances which Extend Period of Limitation

The period of limitation is extended in the following circumstances:

(a) If a person entitled to bring an action is, at the time the cause of action accrues, a minor, seriously mentally ill, or imprisoned on a criminal charge or under a sentence for a term less than for life, the time of such disability is not a part of the time limited for commencing the action. However, the time so limited cannot be extended more than 6 years by any such disability except minority. No person may avail himself of a disability unless it existed when his or her right of action accrued.

(b) When a cause of action accrues against a person who is subject to the jurisdiction of the Tribal Court but who is not found within the jurisdiction of the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians of Oregon and cannot be served with process, the action may be commenced within three (3) years after the defendant's return to the tribal jurisdiction. But if, after the cause of action accrues a defendant departs from the tribal jurisdiction and cannot be served with process, the time of his absence is not part of the time limited for the commencement of the action.

(c) If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced by the personal representative after the expiration of that time and within one year from the person's death. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof and the cause of action survives, an action may be commenced against the personal representative after the expiration of that time and within one year after the appointment of the personal representative.

(d) When the commencement of an action is stayed by injunction or other order of the court or judge or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.

(e) A written acknowledgment, signed by the party to be charged thereby, or a witnessed oral acknowledgment, or the part payment of a debt is sufficient evidence to cause the statute of limitations to begin running anew. Part payment is any payment of principal or interest.

2-2-30 LIABILITY

2-2-31 Liability for Negligence as well as Willful Acts

Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself or herself.

2-2-32 Comparative Negligence

Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property if such negligence was not greater than the negligence of the person or the combined negligence of all persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence of the person recovering.

2-2-33 Products Liability

(a) A person (including a manufacturer, wholesaler, or retailer) who sells a product in a defective condition unreasonably dangerous to a user or consumer or to the property of a user or consumer is liable for physical harm caused by the product to the ultimate user or consumer or to his property if:

(1) the manufacturer, wholesaler, or retailer, hereafter identified as "the seller", is engaged in the business of selling such a product; and

(2) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold, except that this subsection does not apply to a claim for relief based upon improper product design.

(b) The provisions of subsection (a) apply even if:

(1) the seller exercised all possible care in the preparation and sale of the product; and

(2) the user or consumer did not buy the product from or enter into any contractual relation with the seller.

(c) Except as provided in this subsection, contributory negligence is not a defense to the liability of a seller, based on strict liability in tort, for personal injury or property damage caused by a defectively manufactured or defectively designed product. A seller named as defendant in an action based on strict liability in tort for damages to person or property caused by a defectively designed or defectively manufactured product may assert the following affirmative defenses against the user or consumer, the legal representative of the user or consumer, or any person claiming damages by reason of injury to the user or consumer:

(1) the user or consumer of the product discovered the defect or the defect was open and obvious and the user or consumer unreasonably made use of the product and was injured by it; or

(2) the product was unreasonably misused by the user or consumer and such misuse caused or contributed to the injury.

(d) The affirmative defenses referred to in subsection (c) of this Section mitigate or bar recovery and must be applied in accordance with the principles of comparative negligence.

2-2-40 TRIBAL GOVERNMENT IMMUNITY

2-2-41 Immunity from Suit

The Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians of Oregon, as a sovereign government and landowner, and its elected Tribal Council in either their official or personal capacity, as well as Tribal officers, agents and employees acting within the scope of their authority, share sovereign immunity from suit and may not be made parties defendant to a lawsuit without the express, written action of the Tribal Council.

2-2-42 Limited Waivers of Immunity

(a) The Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians of Oregon, the Tribal Council, as well as its officers, agents and employees may be made a party defendant in a lawsuit in Tribal Court in the following circumstances:

(1) when a claim for injunctive, declaratory or mandamus relief is properly alleged for an abridgment or infringement by an action of Tribal government of any civil or constitutional right of an individual arising under the Tribal Constitution and Bylaws or the Indian Civil Rights Act (25 U.S.C. § 1302); or

(2) when the Tribal Council enacts a Resolution or Ordinance providing a waiver of sovereign immunity for the purposes described therein or for judicial review of governmental implementation of the Resolution or Ordinance; or

(3) when the Tribal Council authorizes intervention as a party in a lawsuit between other parties, but such authorization does not waive immunity to a counter-claim; or

(4) when the Tribal Council enters into a written agreement with the United States pursuant to a federal law that requires the Tribes to purchase liability insurance, and thereby consents to a waiver of immunity to the policy limits; or

(5) when the Tribal Council enters into a written agreement:

(A) expressly waiving immunity,

(B) setting out procedures to be followed and remedies available in the event of default or breach by a party, or

(C) identifying Tribal Court as the forum for any dispute arising under the contract, or

(6) when the Tribal Council has entered into a contract of insurance providing coverage for the alleged civil claim and providing for a waiver of immunity in the policy to the limits of the policy.

(n) Corporations owned, in whole or in part, by the Tribes are authorized to sue and be sued according to the term of their enabling acts, articles of incorporation or charter.

2-2-50 DEFENSE AND INDEMNIFICATION OF TRIBAL OFFICERS, AGENTS AND EMPLOYEES

2-2-51 Purpose

The purpose of this Part is to provide for the defense and indemnification of Tribal Council members, Tribal officers, agents, and employees civilly sued for their actions taken within the course and scope of their employment or official duties. As used hereafter in this Part, "employee" means Tribal Council members, Tribal officers, agents, and employees, but shall not mean a person or other legal entity while acting in the capacity of an independent contractor under contract to the Tribes.

2-2-52 Scope

In a noncriminal action brought against any employee for a negligent act, error, or omission, including alleged violations of any civil or constitutional right arising under the Tribal Constitution and Bylaws or the Indian Civil Rights Act, 25 U.S.C. § 1302, or other actionable conduct committed while acting within the course and scope of the employee's office or employment, the Tribes, except as provided in 2-2-56, shall defend the action on behalf of the employee and indemnify employee.

2-2-53 Procedure

Upon receiving service of a summons and complaint in a noncriminal action against him or her, the employee shall give prompt written notice to the supervisor, or to the Tribal Council in the case of elected or appointed employees, requesting a defense to the action. Except as provided in 2-2-56, the Tribes shall offer a defense to the action on behalf of the employee. The defense may consist of a defense provided directly by the Tribes. Within ten (10) days after receipt of notice, the Tribes shall notify the employee as to whether they will provide a direct defense. If the Tribes refuse or are unable to provide a direct defense, the defendant employee may retain other legal counsel. Except as provided in 2-2-56, the Tribes shall pay all reasonable expenses relating to the retained defense and pay any judgment for damages entered in the action that may be otherwise payable hereunder.

2-2-54 Indemnification

In any noncriminal action in which a Tribal government employee is a party defendant, the Tribes shall indemnify the employee for any money judgments or legal expenses, including attorney fees, either incurred by the employee or awarded to the claimant or both, to which the employee may be subject as a result of the suit, unless the employee's conduct falls within the exclusions provided in 2-2-56.

2-2-55 Bar to Other Actions on Same Subject

Recovery from the Tribes under the provisions of this Title constitutes a complete bar to any action or recovery of damages by the claimant, by reason of the same subject matter, against the employee whose negligence or wrongful act, error or omission or other actionable conduct gave rise to the claim. In any such action against the Tribes, the employee whose conduct gave rise to the suit in whole or in part is immune from liability for the same subject matter if the Tribes acknowledge or are bound by a judicial determination that the conduct upon which the claim is brought arises out of the course and scope of the employee's employment, unless the claim constitutes an exclusion provided in (b) through (d) of 2-2-56.

2-2-56 Conduct Not Indemnified

In a noncriminal action in which a Tribal employee is a party defendant, the Tribes shall neither defend nor indemnify the employee for any money judgment or legal expenses, including attorney fees, to which the employee may be subject as a result of the suit if a judicial determination is made that:

(a) the conduct upon which the claim is based constitutes oppression, fraud, or malice, or for any other reason does not arise out of the course and scope of the employee's employment;

(b) the conduct of the employee constitutes a criminal offense;

(c) the employee compromised or settled the claim without the consent of the Tribes; or

(d) the employee did not cooperate in the defense of the case.

2-2-57 Disputed Exclusions

If no judicial determination has been made applying the exclusions described in 2-2-56, the Tribes may determine whether those exclusions apply. If there is a dispute as to whether the exclusions should apply and the Tribes decide they must clarify their obligation to the employee arising under this section by commencing declaratory judgment action or other legal action, the Tribes shall provide a defense or assume the cost of the defense of the employee until a final judgment is rendered in such action holding that the Tribes had no obligation to defend the employee.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

CIVIL ACTIONS

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians enacted the "Civil Actions" Code, Resolution No. 01-075, Ordinance No. 028, at a special Tribal Council meeting on September 24, 2001. Vote was 6 (for), 0 (against) and 0 (abstaining).

This Code was attached with the "Tribal Court" Code (1-1-20) and passed with the same Resolution No. 01-075 and Ordinance No. 028.

 

CHAPTER 2-4 ENFORCEMENT OF CERTAIN JUDGMENTS OF COURTS OTHER THAN THE TRIBAL COURT OF THE CONFEDERATED TRIBES OF COOS, LOWER UMPQUA AND SIUSLAW INDIANS

2-4-0 FOREIGN JUDGMENTS

2-4-1 Recognition, Implement and Enforcement of Orders, Judgments and/or Decrees Other than the Tribal Court

Recognition, implementation and enforcement of orders, judgments and/or decrees from courts other than the Tribal Court of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (Tribal Court) shall be allowed in accordance with this Code if it has been registered with the Tribal Court by filing a certified copy of the order, judgment and/or decree with the Tribal Court Clerk, paying any necessary filing fee established by the Clerk and obtaining service on the judgment debtor or nonprevailing party in accordance with the provisions of this Code.

2-4-2 Procedure

Any party to such a foreign order, judgment and/or decree registered with the Tribal Court may, within thirty (30) days of the service of such order, judgment and/or decree upon the other party, apply for hearing on the order, judgment and/or decree before the Tribal Court. Upon such application, the Tribal Court shall hold a hearing to determine the validity of such order, judgment and/or decree and shall consider issues raising by the other party including, but not limited to, the jurisdiction of the foreign court and whether such order, judgment and/or decree is contrary to laws, both written and customary, of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (Tribes).

2-4-3 Sovereign Immunity

The provisions of this Code shall not be construed to waive the immunity of the Tribes, its Tribal Council, its agencies, enterprises, chartered organizations, corporations, or entities of any kind, and its officers, employees, agents, contractors and attorneys, in the performance of their duties, shall be immune from suit; except where the immunity of the Tribes or its officers and employees is expressly, specifically and unequivocally, waived by and in a Tribes' tribal or federal statute, a duly executed contract approved by the Tribal Council, or a duly enacted ordinance or resolution of the Tribal Council.

2-4-4 Enforcement

Enforcement of foreign orders, judgments and/or decrees when so ordered by the Tribal Court shall only be permitted using enforcement and execution processes of the Tribes.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

ENFORCEMENT OF CERTAIN JUDGMENTS OF COURTS OTHER THAN THE TRIBAL COURT OF THE CONFEDERATED TRIBES OF COOS, LOWER UMPQUA AND SIUSLAW INDIANS

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians enacted the "Enforcement of Certain Judgments of Courts other than the Tribal Court of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians" Code, Resolution No. 02-008, Ordinance No. 035, in a regular Tribal Council meeting on January 13, 2002. Vote was 7 (for), 0 (against) and 0 (abstaining).

 

CHAPTER 2-5 CIVIL JUDGMENTS

2-5-0 CIVIL JUDGMENTS AND RECORDS

2-5-1 Definition

Judgment - includes a final trial court ruling on the merits, a decree and any order from which an appeal lies. Every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings.

2-5-2 Whose Rights Determined

Subject to the provisions of Rule 54(b), Federal Rules of Civil Procedure, judgment may be given for or against one or more of several plaintiffs and for or against one or more of several defendants, and the court may, when the justice of the case requires, determine the ultimate rights of the parties on each side as between themselves.

2-5-3 Judgment On Findings by the Court

In all actions tried on the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered. In granting or refusing interlocutory injunctions, the court shall similarly set forth findings of fact and conclusions of law which constitute the grounds of its action. Findings of fact and conclusions of law are unnecessary in decisions on motions.

2-5-4 Validity and Effect of Judgment

(a) The requisites of a valid judgment are -

(1) adequate notice and an opportunity to be heard by persons whose interests are to be adjudicated,

(2) the court must have territorial jurisdiction, and

(3) the court must have subject matter jurisdiction.

(b) An objection of lack of adequate notice or opportunity to be heard may, in the absence of default, be waived by not raising the objection in the trial court.

(c) A trial court determination of territorial jurisdiction is conclusive if raised and adjudicated.

(d) A defense of lack of subject matter jurisdiction may be raised by any party or by the court at any time and cannot be waived.

(e) In considering the effect of a former adjudication in Tribal Court, the rules of res judicata are applicable to domestic and foreign judgments, including but not necessarily limited to, the concepts of barring relitigation and issue preclusion.

2-5-5 Default

(a) When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, the party entitled to a judgment by default shall apply to the court.

(b) A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.

(c) No default of any party shall be entered, and no default judgment shall be entered against any party, except upon application of the opposing party. No judgment by default shall be entered when service has been by publication, through a showing of evidence deemed satisfactory to the court, the moving party demonstrates that other available methods of service were reasonably attempted and failed. No judgment by default shall be entered against a minor or incompetent person unless represented by a guardian, conservator, or other such representative who has appeared in the proceeding. If the party against whom the judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application.

(d) If, upon receipt of an application for a default judgment, the court finds that in order for it to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as it deems necessary and proper.

(e) The provisions of this section apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim.

(f) No judgment by default shall be entered against the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (Tribes) of Oregon or an official or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court.

2-5-6 Setting Aside Default

For good cause shown, the court may set aside a judgment of default.

2-5-7 Offer of Judgment

At any time, more than ten (10) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against the defending party for the money or property or to the effect specified in the offer, with costs then accrued. If within ten (10) days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the Clerk shall enter the judgment. An offer not accepted is deemed withdrawn and evidence thereof is not admissible.

2-5-8 Records of Judgments

(a) The Clerk of Court shall keep with the records of the court a "judgment book" in which judgments must be entered.

(b) The Clerk shall also keep a docket. A docket is a book with each page divided into eight columns and headed as follows: judgment debtors; judgment creditors; time of entry of judgment; where entered in judgment book; date of taking appeal; judgment of appellate court; and time of entry of satisfaction of judgment. If the judgment is for relief other than money damages, the general character of the relief granted must be stated in the docket.

(c) The judgment book and the docket are open for public inspection during office hours of the Clerk of Court at no charge.

2-5-9 Entry of Judgment

Upon a verdict by a jury or a decision by the court granting any relief or denying all relief, the Clerk shall prepare a form of judgment for the prompt approval and signature of the court. Each judgment shall be set forth on a separate document. Upon approval, the Clerk shall enter the judgment by placing it in its chronological order in the judgment book. Parties or their attorneys or representatives shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.

2-5-10 Docketing of Judgment--Period of Lien

(a) Immediately after the entry of the judgment in the judgment book, the Clerk must make the proper entries of the judgment under the appropriate heads in the docket.

(b) From the time the judgment is docketed, it becomes a lien upon the non-exempt property of the judgment debtor owned by him or her at the time of the judgment or which may be afterward acquired. The lien continues until the judgment is satisfied or for a period of six (6) years, whichever first occurs.

2-5-11 Entry of Satisfaction of Judgment in Docket

Satisfaction of a judgment shall be entered in the Clerk's docket upon an execution returned satisfied or upon an acknowledgment of satisfaction filed with the Clerk. An acknowledgment of satisfaction is made by endorsement of the judgment creditor or his or her attorney on the face or the margin of the record of the judgment. Whenever a judgment is satisfied in fact otherwise than by execution, the creditor or his or her attorney must give such endorsement. Upon motion, the court may compel the endorsement or may order the entry of satisfaction to be made without it.

2-5-20 ENFORCEMENT OF FOREIGN JUDGMENTS

2-5-21 Definition

Foreign Judgment - means a judgment, decree or order of a court of the United States, of a State or of a federally recognized Indian tribe.

2-5-22 Filing and Status of Federal Court Judgment

A copy of a federal court judgment, authenticated by the court of its origin, may be filed with the Clerk of Court. The Clerk shall treat the federal foreign judgment in the same manner as a judgment of the Tribal Court. A judgment so filed is subject to the same procedures of reopening, vacating or staying as a judgment of the Tribal Court and may be enforced in like manner.

2-5-23 Notice of Filing of Federal Judgment

(a) At the time of the filing of the federal court judgment, the judgment creditor or the creditor's attorney shall file with the Clerk of Court an affidavit setting forth the name and last-known post office address of the judgment debtor and judgment creditor. The affidavit must include a statement that the federal judgment is valid, enforceable and not appealable, and the extent to which it has been satisfied.

(b) Promptly upon filing the federal judgment and affidavit, the judgment creditor or someone on his or her behalf shall mail notice of the filing of the judgment and affidavit, attaching a copy of each to the notice, to the judgment debtor and to the debtor's attorney of record, if any, each at his last-known address, by certified mail, return receipt requested. The notice must include the name and post office address of the judgment creditor and the judgment creditor's attorney, if any, within the Reservation. The judgment creditor shall file with the Clerk an affidavit setting forth the date upon which the notice was mailed.

(c) The federal judgment may not be executed upon by the judgment creditor earlier than thirty (30) days after the date of mailing the notice of filing.

(d) If, during the thirty- (30) day period, the judgment debtor shows the Tribal Court any ground upon which a similar Tribal Court judgment would be stayed, the court will stay enforcement of the federal court judgment for an appropriate period.

2-5-24 Filing and Status of State Court Judgments and the Judgments of Other Tribal Courts

In the interests of comity, a party in whose favor a state court judgment or the judgment of another tribal court was entered may bring an action for enforcement of the judgment in Tribal Court. Such action shall be commenced by the filing of a verified complaint, to which the authenticated foreign judgment and a copy of the entire record of the state court or tribal proceeding shall be attached. The complaint shall include

(a) jurisdictional facts sufficient for the court to determine that the state or tribal court had subject matter jurisdiction over the cause and personal jurisdiction over the defendant during the proceedings, and

(b) the information required in section 2-5-23(a) to be supplied by affidavit.

2-5-25 Grounds for Declination of Enforcement of State Court Judgment

(a) A defendant in an action to enforce a state court judgment or the judgment of another tribal court may collaterally attack the judgment in a first responsive pleading on grounds of jurisdictional defects or infringement of the rights of the defendant under the federal Indian Civil Rights Act.

(b) If a defendant fails to file a responsive pleading, the court will subject the foreign judgment and record to strict scrutiny for jurisdictional or constitutional deficiencies. Such scrutiny may include an evidentiary hearing on any jurisdictional or constitutional issues raised on the face of the foreign judgment or record of proceedings.

(c) If the court finds jurisdictional or constitutional defects in the judgment or the record of the state or tribal court proceedings, it will decline to enforce the judgment.

2-5-26 Decision and Enforcement

A ruling accepting or declining a state or tribal court judgment for enforcement shall be based upon findings of fact and conclusions of law. The court's ruling shall be filed with the Clerk of Court for entry in the judgment book and docket. If enforcement of the judgment is declined by the court, the Clerk shall transmit the findings and conclusions to the court issuing the judgment.

2-5-27 Authentication of Foreign Judgment and Court Records

An official record kept within the United States, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of that record, or by the officer's deputy, and accompanied by a certificate that such officer has the custody.

2-5-28 Fees

Any person filing a foreign judgment or a complaint seeking to enforce a foreign judgment shall pay to the Clerk of Court a fee of $75.

2-5-40 EXECUTION ON JUDGMENT

2-5-41 Time Limit for Issuing Execution

The party in whose favor judgment is given may, at any time within six (6) years after the entry thereof, have a writ of execution issued for its enforcement.

2-5-42 Renewal After Six (6) Years

A judgment may be renewed after the lapse of six (6) years from its date of entry by motion or by a new judgment founded on supplementary pleadings. It may not be renewed a second (2nd) time.

2-5-43 Execution After Death of a Party

Notwithstanding the death of a party after the judgment, execution may be issued or it may be enforced as follows:

(a) In case of the death of the judgment creditor, the judgment may be enforced upon application of the creditor's personal representative or successor in interest.

(b) In case of the death of the judgment debtor, if the judgment is for the recovery of nonexempt property or for the enforcement of a lien, execution may be issued with the same effect as if the judgment debtor were living.

2-5-44 Compelling Contribution or Repayment

(a) When property liable to an execution against several persons is sold and more than a due proportion is satisfied out of the proceeds of the sale of property of one or them, or one of them pays, without a sale, more than his share, he or she may compel contribution from the others. When a judgment is against several persons and is upon an obligation of one of them as surety for another and the surety pays the amount or any part of the judgment, the surety may compel repayment from the principal.

(b) The person so paying or contributing is entitled to enforce contribution or repayment if, within ten (10) days after the payment, he or she files with the Clerk of Court notice of the payment and claim to contribution or repayment. The Clerk shall make an entry of the notice in the margin of the docket.

2-5-45 Methods of Enforcement

(a) When the judgment is for money or the possession of nonexempt real or personal property, it may be enforced by a writ of execution.

(b) When the judgment requires the sale of property, it may be enforced by a writ reciting the judgment or its material parts and directing the Chief Tribal Law Enforcement Official to execute the judgment and apply the proceeds as the judgment directs.

(c) When the judgment requires the performance of any other act than those designated in subsections (a) and (b) of this Section, a certified copy of the judgment may be served upon the party against whom the same is rendered or upon the person or officer required to obey the judgment, and obedience may be enforced by the court.

2-5-46 Application for Writ of Execution

A person in whose favor a judgment is rendered may apply to the court for a writ of execution. An application for a writ shall be directed to a judge of the Tribal Court. The application for the writ shall contain

(a) the name, address and telephone number(s) of the applicant,

(b) the name and address of the person against whom the judgment is to be enforced, and, if the person is a Tribal member, the member's enrollment number,

(c) the date of the judgment, a description of the property to be executed upon and its location, the principal amount owed if the judgment is for the payment of money, and any accumulated post judgment interest,

(d) if personal property subject to a security interest is to be taken on execution, evidence that a deposit in the amount of the secured debt and interest, payable to the secured party, has been made with the filing officer with whom, pursuant to law, the financing statement has been filed,

(e) a copy of the judgment,

(f) a form of the writ, and

(g) evidence of payment of a fee of $75 to the Clerk of Tribal Court upon the filing of the application.

2-5-47 Duty of Secured Party

(a) A secured party under any security agreement of record shall, upon fifteen (15) days' notice in writing served upon him in person by any judgment creditor of a judgment debtor seeking to satisfy a judgment, is required to file in the office where the financing statement covering the security agreement is filed an affidavit showing the amount of the indebtedness then actually due and owing to the secured party. Such affidavit shall state the amount of the original obligation for which the security agreement was given as security, all additional advancement of money or property on the principal obligation since the date of the execution of the security agreement, all payments of whatever kind, whether on principal or interest, made by the debtor to the date of the execution of the affidavit, and the balance then remaining due and unpaid to the secured party. If the secured party fails, refuses or neglects within fifteen (15) days from the service of any demand in writing to file the required affidavit, the security agreement shall be of no force or effect against such creditor upon the seizure on execution of any property subject to the security agreement.

(b) If the amount shown to be due is paid to the filing officer or to the secured party in satisfaction of the security agreement by any execution creditor against the debtor, the secured party is required to surrender to the filing officer the security agreement and any note or other evidence of indebtedness secured thereby, which security agreement or other evidence of indebtedness shall be delivered by the secured party or filing officer to the execution creditor.

2-5-48 Contents of Writ

The writ of execution must -

(a) be issued in the name of the Tribes, sealed with the seal of the Tribal Court and subscribed by a judge;

(b) be directed to the Chief Tribal Law Enforcement Official, the Tribal Records Manager, or the employer of the judgment debtor, as prescribed in section 2-5-51;

(c) describe the judgment, stating the name and address of the applicant for the writ and of the person against whom the judgment is to be enforced, the date when the judgment was entered, and, if it is for money, the amount of the judgment and the amount actually due thereon, or if not for money, the amount of the execution stated in dollars and cents;

(d) describe in detail the property to be executed upon;

(e) require the Chief Tribal Law Enforcement Official, the Tribal Records Manager or the employer of the judgment debtor, as appropriate, to act substantially as provided in Sections 2-5-50 and 2-5-52, and

(f) contain directions to the levying officer as provided in Sections 2-5-56 and 2-5-57, or as may be required to complete the execution pursuant to law.

2-5-49 Issuance of Writ

(a) Not less than five (5) nor more than ten (10) days after the filing of an application for a writ of execution, the court will approve the application and issue the writ unless it finds, in writing, that incomplete or inaccurate information is contained in the application or the form of writ, that exempt property is proposed to executed upon, or that the execution would be in contravention of the rights of a secured creditor.

(b) Upon subscription of the writ by the judge, the Clerk of Court shall docket the writ and transmit it or a certified copy of the same, with the application, to the levying officer.

2-5-50 Execution in Particular Circumstances

(a) A judgment rendered against debtors and sureties shall so state, and an execution shall direct the levying officer to make the amount due out of the nonexempt goods, lands, wages or assets of the debtors, and only if the judgment cannot be so satisfied, to make the balance out of the nonexempt property, personal or real, of the sureties.

(b) If the writ of execution is against the property of a judgment debtor, it shall require the levying officer to satisfy the judgment, with interest, out of the nonexempt personal property of the debtor and, if sufficient personal property cannot be found, out of his nonexempt real property.

(c) If the writ of execution be against nonexempt real or personal property in the hands of personal representatives, heirs, devisees, legatees or trustees, it shall require the levying officer to satisfy the judgment, with interest, out of such property.

(d) If the writ of execution be for the delivery of the possession of nonexempt real or personal property, it must require the levying officer to deliver the possession of the property, particularly describing it, to the party entitled to possession.

2-5-51 To Whom Execution Issued

(a) In the circumstances where execution upon a Tribal member's per capita payment is permitted as provided in Section 2-5-56, the writ shall be issued to the Tribal Records Manager.

(b) Where the writ is against the nonexempt property of a judgment debtor or where it requires the delivery of nonexempt real or personal property, it must be issued to the Chief Tribal Law Enforcement Official.

(c) Where the writ is against earnings or wages of a judgment debtor it may be called a writ of garnishment, and it must be issued to the debtor's employer in compliance with the requirements of Section 2-5-52(c).

2-5-52 How Writ Executed

(a) If the Chief Tribal Law Enforcement Officer is the levying officer, he or she must execute the writ against the property of the judgment debtor no later than sixty (60) days after receipt of the writ by levying on a sufficient amount of nonexempt property, and paying to the plaintiff or his attorney so much of the proceeds as will satisfy the judgment. Any excess in the proceeds over the judgment and accruing costs must be returned to the judgment debtor unless otherwise directed by the judgment or order of the court. When there is more property of the judgment debtor than necessary to satisfy the judgment and accruing costs, the Chief Tribal Law Enforcement Official must levy only on such part of the property as the judgment debtor may select if the property selected is sufficient to satisfy the judgment and costs.

(b) If the levying officer is the Tribal Records Manager, where the writ is issued at least twenty-one (21) days prior to a date certain established by the Tribal Council for a distribution of per capita payments, the writ shall be executed upon the per capita payment made upon the date certain, and upon each succeeding such payment until the judgment, with interest, is satisfied or expires. If the writ is issued to the Tribal Records Manager after the twenty-first (21st) day prior to the date certain established by the Tribal Council for a distribution of per capita payments, the Manager will execute upon the writ commencing with the next future per capita payment, if any, after the payment made upon the date certain, and upon such successive payments as may be sufficient to satisfy the judgment with interest or until such time as the judgment expires.

(c) If the levying officer is an employer of the judgment debtor, the sum to be levied for each pay period is to be calculated as follows:

(1) Except as provided in subsections (2) and (3), the maximum part of the aggregate disposable earnings of a judgment debtor for any workweek that is subjected to garnishment may not exceed the lesser of:

(A) the amount by which his or her disposable earnings for the week exceed thirty (30) times the federal minimum hourly wage in effect at the time the earnings are payable; or

(B) 25% of his or her disposable earnings for that week.

(2) The restrictions of subsection (1) of this Section do not apply in the case of an order or judgment for the maintenance or support of any person issued by a court of competent jurisdiction.

(3) The maximum part of the aggregate disposable earnings of a judgment debtor for any workweek that is subject to garnishment to enforce a maintenance or support order described in subsection (2) of this Section may not exceed:

(A) 50% of the judgment debtor's disposable earnings for that week if he or she is supporting a spouse or dependent child (other than a spouse or child for whom the order is issued); or

(B) 60% of the judgment debtor's disposable earnings for that week if he is not supporting a spouse or dependent child.

(4) For purposes of this subsection, the definitions of earnings, disposable earnings and garnishment are as set for in 15 U.S.C. Section 1672.

2-5-53 Security for Costs When Property Seized

If the Chief Tribal Law Enforcement Officer will incur substantial costs in transporting, keeping or storing the property seized, the party requesting service of a writ of execution shall provide a bond or other security to pay for all costs which may be incurred as a result of the service of such writ.

2-5-54 Return of the Execution

(a) A writ of execution issued to the Chief Tribal Law Enforcement Officer shall be made returnable to the Clerk of Court not more than sixty (60) days after imposition of the levy as provided in Section 2-5-52(a).

(b) A writ of execution issued to the Tribal Records Manager shall be made returnable to the Clerk of Court not more than thirty (30) days after the judgment is satisfied or within six (6) years from the date of its issuance, whichever shall earlier occur.

(c) A writ of execution issued to an employer for the garnishment of the wages of a judgment debtor shall be made returnable to the Clerk of Court not more than thirty (30) days after the judgment is satisfied or within two (2) years from the date of its issuance, whichever shall earlier occur.

2-5-55 Clerk to Record Returned Execution

If property is levied upon, the Clerk of Court must record the execution and the return of the writ and certify the same as true copies in a book to be called the "execution book", which must be indexed with the names of the plaintiffs and defendants in execution alphabetically arranged, and kept open at all times during office hours for the inspection of the public, without charge.

2-5-56 Property Subject to Execution -- Limitations and Exemptions

(a) All goods, chattels, moneys and other property, both real and personal, or any interest of the judgment debtor in such property, except exempt property as provided in section 2-5-57, are liable to execution subject to the limitations set out in subsections (b) and (c) of this subsection.

(b) Although per capita payments distributed by the Tribes are not the property of Tribal members until distributed, upon the Tribal Council's declaration of intended distribution in a sum certain on a date certain, a member's payment is subject to

(1) assignment by the member, if the payment is otherwise unencumbered, for purposes of child support or to pay a debt owed to Tribes, and

(2) execution and levy by the Tribal Records Manager in the following circumstances:

(A) on a judgment for delinquent child support;

(B) on a judgment rendered in favor of the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians of Oregon or any agency thereof; or

(C) for court-ordered restitution imposed as a sentence or a component of a sentence for a criminal offense or as a penalty ordered in connection with an adjudication of juvenile delinquency.

(c) Only those earnings of a judgment debtor subject to garnishment as provided in Section 2-5-52 are liable to execution.

2-5-57 Property Exempt from Execution

A judgment debtor is entitled to exemption from execution on the following:

(a) any property, real or personal, within the jurisdiction of the Tribes, to which the legal title is held by the United States of America for the benefit of the Tribes or any individual Indian;

(b) all lands, buildings and grounds with the fixtures, equipment, furniture, books, papers, computers and appurtenances pertaining to the public offices or for the use of Tribes or the public use of its members, and such property as may be necessary to carry out the governmental functions of any governmental entity with property located within the jurisdiction of the Tribes;

(c) professionally prescribed health aids for the judgment debtor or a dependent of the judgment debtor;

(d) personal property recognized by the Tribal Court or the Tribal Council as having significant spiritual, religious, or traditional value;

(e) benefits the judgment debtor has received or is entitled to receive under -

(1) federal social security

(2) federal, state or Tribal public assistance,

(3) veterans' disability programs

(4) unemployment compensation or workers' compensation programs,

(f) a home,

(g) maintenance and child support

(h) the judgment debtor's interest, not exceeding a value of $2,000 in any item or $6,000 in the aggregate, in household furnishings and goods, appliances, jewelry, wearing apparel, books, firearms and other sporting goods, animals, feed, crops and musical instruments,

(i) the judgment debtor's interest, not to exceed $4,000 in one motor vehicle, and

(j) the judgment debtor's interest, not to exceed $4,000 in aggregate value, in any implements, professional books and tools, of the trade of the judgment debtor or a dependent of the judgment debtor.

2-5-58 Effective Date and Application to Pending Proceedings

Chapters 2-5-0 through 2-5-40 of this Title apply to all civil actions filed on or after April 14, 2002, to judgments in proceedings pending on that date, and to post judgment procedures and limitations, and enforcements on judgments outstanding on that date.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

CIVIL JUDGMENTS

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians enacted the "Civil Judgments" Ordinance, Resolution No. 02-036, Ordinance No. 43, in a regular Tribal Council meeting on April 14, 2002. Vote was 7 (for), 0 (against) and 0 (abstained).

 

CHAPTER 2-7 TORT CLAIMS

2-7-1 Findings and Purpose

(a) The Tribal Council finds that the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians of Oregon (Tribes) provides governmental services which promote health, safety, welfare and economic security for residents of and visitors to the lands of the Tribes.

(b) The Tribal Council recognizes that the Tribes are immune from suit, except to the extent such immunity is expressly waived, and that Tribal sovereign immunity serves an important function in preserving limited Tribal resources so that the Tribes can continue to provide governmental services which promote health, safety, welfare and economic security for the residents of and visitors to the lands of the Tribes.

(c) The Tribal Council declares that the purpose of this Code is to establish a limited waiver of Tribal sovereign immunity consistent with the ability of the Tribes to continue (i) to provide governmental services which promote health, safety and economic security for the residents of and visitors to the lands of the Tribes and (ii) to provide a remedy to private persons who are injured by negligent or wrongful acts or omissions of the Tribes or its agents, employees or officers.

2-7-2 Definitions

(a) Agent - any person, whether paid or unpaid, acting on behalf of the Tribes;

(b) Employee - any person who is an employee, whether full-time or part-time, permanent or temporary, of the Tribes;

(c) Injury - injury to a person, death, damage to or loss of property of whatever kind, which, if caused by the negligent or wrongful act or omission of a private person would be a tort under Tribal law, applicable federal law, and, to the extent consistent with Tribal law, laws of the State of Oregon in effect as of the date of this Code, regardless of the type or form of action or form of relief sought by the claimant;

(d) Office of Tribal Attorney shall mean the department of the Tribes by the same name;

(e) Officer or Official - an officer, whether elected or appointed, whether paid or unpaid, acting on behalf of the Tribes;

(f) Tribal Court - the Tribal Court established pursuant to the Constitution of the Tribes;

(g) Tribal Law - the Constitution of the Tribes, initiatives or referendums adopted by members of the Tribe in accord with the Tribe's Constitution, ordinances and other legislative enactments adopted by the Tribal Council, and common law of the Tribal Court;

(h) Tribes - the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians, including but not limited to any branch, office, department, agency, commission, utility, authority, instrumentality, enterprise, corporation (whether chartered under Tribal or federal law, but excluding for purposes of this Code corporations chartered under the law of any State), or other entity of the Tribes.

2-7-3 Limited Waiver of Tribal Sovereign Immunity

(a) An action for monetary damages may be brought in Tribal Court under this Code against the Tribes by any person for any injury to that person caused (i) by an act or omission by the Tribes or (ii) by an act or omission by any agent, employee or officer acting on behalf of the Tribes and within the scope of authority of that agent, employee or officer provided that this waiver of sovereign immunity shall be limited as follows: No monetary damages shall be awarded under this section in excess of the limits of insurance maintained by the Tribes to compensate for injury claimed hereunder as set out in Section 2-7-5.

(b) An action may be brought in Tribal Court under this Code against the Tribes or an agent, employee or officer of the Tribes for declaratory, mandamus, injunctive or other extraordinary relief to compel the Tribes or any agent, employee or officer of the Tribes to perform prospectively, any responsibility of the Tribes or any agent, employee or officer of the Tribes to avoid an tortious injury. No judgment, order or award of declaratory, mandamus, injunctive or other extraordinary relief shall be entered under this Code against the Tribes or any officer of the Tribes without actual notice to the Tribes through the Secretary of the Tribal Council and the Office of Tribal Attorney, and to any agent, employee or officer of the Tribes against whom any such relief applies. The Tribal Court shall give due weight to the sovereign, governmental and public interests of the Tribes in determining whether to grant and in fashioning any declaratory, mandamus, injunctive or other prospective relief against the Tribes or any agent, employee or officer of the Tribes.

2-7-4 Procedure for Giving Notice of Claims and Filing Actions

(a) No action may be brought in Tribal Court for monetary damages under this Code and no claim shall be valid for monetary damages under this Code unless the person who claims to have suffered an injury shall send a written notice of the claim for monetary damages as provided in Section 2-7-4(b) below by certified mail return receipt requested to the Secretary of the Tribal Council and the Office of Tribal Attorney. In the case of any claim wherein it is alleged an injury was caused by the act or omission of any Tribal commission, authority, corporation or enterprise or any agent, employee or officer of such Tribal commission, authority, corporation or enterprise, the written notice required by this section also shall be given to the chief executive officer of such Tribal commission, authority, corporation or enterprise.

(b) The written notice required by Section 2-7-4(a) shall include the following:

(1) The name and current address and telephone number of the claimant and the name and current address and telephone number of the claimant's attorney, if any; and

(2) A concise statement describing the conduct, circumstances or other facts which brought about the injury; describing the injury; stating the time and place of injury; stating the name of any Tribal employee involved, if known, and the name, address and telephone number, if known, of any other person involved or who has knowledge of the conduct, circumstances, facts or injury; and stating that amount of damages claimed.

(c) To be valid under this Code, the written notice of claim for monetary damages required by Section 2-7-4(a) shall have been given no later than one-hundred-eighty (180) days after the act or omission occurred giving rise to the injury. The written notice of claim for monetary damages shall be deemed given and effective as of the date of the last postmark of any written notice required by Section 2-7-4(a) above.

(d) No action for monetary damages may be brought under this Code until the expiration of sixty (60) days after the last notice required by Section 2-7-4(a) is given. Any action for monetary damages under this Code must be filed with the Tribal Court within two-hundred-seventy (270) days of the act or omission occurred which gave rise to the injury. No action against the Tribes under the Code shall be accepted for filing by the Tribal Court unless the claimant files proof of compliance with Section 2-7-4(a)-(c) above. No action for monetary damages shall be instituted under this Code for a sum in excess of the amount set forth in the written notice of claim required by Section 2-7-4(a), except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time notice required by Section 2-7-4(a) is deemed given in accordance with Section 2-7-4(c) or upon allegation and proof of intervening facts relating to the amount of the claim.

(e) Any person filing an action for money damages against the Tribes under this Code shall cause a copy of the complaint and summons to be served upon the Secretary of the Tribal Council, Office of Tribal Attorney, and, in the case of a claim involving an act or omission of any Tribal commission, authority, corporation or enterprise, or any agent employee or office of any Tribal commission, authority, corporation or enterprise, then also upon the chairman or chief executive officer of such Tribal commission, authority, corporation or enterprise. Service of the complaint and summons as required by this subsection shall be completed within the time for commencing an action in Tribal Court under this Code or the time for service of a complaint and summons under rules generally applicable to actions filed in Tribal Court, whichever is less.

(f) In any action against the Tribes under this Code, whether for monetary damages or prospective declaratory, mandamus, injunctive or other extraordinary relief, the Tribes shall have not less than sixty (60) days after receipt of the complaint and summons, and such other time as the Tribal Court may allow, to file an answer or other responsive pleading or motion. No default judgment may be entered against the Tribes under this Code.

(g) The time periods for filing a notice of claim for monetary damages and for commencing an action for monetary damages under this Code do not apply in a suit for prospective declaratory, mandamus, injunctive or other extraordinary relief against the Tribes or any agent, officer or employee of the Tribes.

2-7-5 Limitations on Waiver of Sovereign Immunity

(a) No judgment, order or award pertaining to any claim for monetary damages permitted by the Code shall be for more than

(1) the limits of valid and collectible liability insurance policy or policies carried by the Tribe covering each such claim and in force at the time of such judgment order or award, including deductible amounts, to the extent appropriated or budgeted by the Tribal Council or any Tribal commission, utility, authority, corporation or enterprise, and

(2) the limits of any coverage provided for each such claim under established claim reserves

(A) appropriated or budgeted by the Tribal Council or any Tribal commission, utility, authority, corporation or enterprise, or

(B) otherwise established pursuant to any self-insured liability and/or other Tribal government claims program, approved and adopted pursuant to Tribal law. In the case of any claim wherein it is alleged an injury was caused by the act or omission of any Tribal commission, utility, authority or corporation or any agent employee or officer of such Tribal commission, utility, authority or corporation, but not otherwise the act or omission of the Tribes or defined in this Code, any judgment, order or award otherwise allowed by this Code may be entered only against such Tribal commission, utility, authority or corporation.

(b) Any such judgment order or award of monetary damages may only be satisfied pursuant to the express terms of the policy or policies of liability insurance or established self-insurance or Tribal government claims program which is or are in effect at the time of such judgment, order or award.

(c) Notwithstanding any other provision of this Code, there shall be no waiver of sovereign immunity as to any claim of injury which is defended by the United States because such claim is deemed a claim against the United States under the Indian Self-Determination and Education Assistance Act, the Federal Tort Claims Act, or any other federal law. Upon certification by the Office of Tribal Attorney that defense of any claim of injury has been tendered to the United States, any action or proceeding on such claim shall be stayed by order of the Tribal Court without bond. The action or proceeding in Tribal Court shall be dismissed, after notice to the parties and opportunity for a hearing, upon receipt of notice satisfactory to the Tribal Court that the United States has assumed defense of the claim of injury. The stay shall be dissolved and an order directing further proceedings in the action or proceeding on the claim of injury shall be entered by the Tribal Court, after notice and hearing thereon, upon receipt of notice satisfactory to the Tribal Court that the United States has declined to assume defense of the claim of injury.

(d) Notwithstanding any other provision of this Code, there shall be no exception to or waiver of sovereign immunity for any claim of monetary damages for any injury alleged to have resulted from any:

(1) Exercise or performance or the failure to exercise or perform a discretionary function or duty or the implementation or failure to implement decisions by the Tribes or any agent employee or officer of the Tribes whether or not the discretion be abused in any such matter;

(2) Action taken or decision made in good faith and without gross negligence in carrying out the law;

(3) Any intentional tort, including but not limited to assault battery, false imprisonment, malicious prosecution, abuse of process, libel, slander, defamation, misrepresentation, deceit, interference with contract rights, or interference with prospective economic advantage, except that this provision does not immunize the Tribes for any acts or omissions of investigative or law enforcement officers giving rise to claims for assault battery, false arrest, false imprisonment or malicious prosecution, provided that for purposes of this subsection "investigative or law enforcement officer" means any agent, employee or officer of the Tribes who is empowered to execute searches, to seize evidence, or to make arrests under Tribal law;

(4) Legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature, such as but not limited to adopting or failing to adopt a law;

(5) Issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval or other authorization;

(6) Termination or reduction of benefits under a Tribal assistance program if the Tribes or any agent, employee or officer of the Tribes is authorized by law, rule or regulation to determine whether or not such authorization or benefits should be issued, denied, suspended, or revoked;

(7) Probation, parole, furlough or release from confinement of a prisoner or other detainee or from the terms and conditions or the revocation thereof except upon a showing of gross negligence;

(8) Any injury or damage caused by an escaping or escaped person or prisoner, a person resisting arrest or by a prisoner to himself or herself, except upon a showing of gross negligence;

(9) Any decision made by the Tribes or any agent, employee or officer of the Tribes in the implementation of the Indian Child Welfare Act or other laws respecting the placement or supervision of minors or incompetent persons;

(10) Any claim based upon an act or omission of any agent, employee or officer of the Tribes exercising due care, in the execution of any statute, rule or regulation, whether or not such statute, rule or regulation be valid;

(11) Any claim based on the assessment or collection of any tax or the detention of any goods or merchandise by any law enforcement officer; and

(12) The enumeration of the above immunities shall not be construed to waive any other immunities nor to assume any liabilities except as explicitly provided by the Code.

(e) The procedures and standards for giving notice of claims and commencing actions in Tribal Court provided in Section 2-7-5 of this Code are integral parts of the limited waiver of sovereign immunity provided by this Code and shall be strictly and narrowly construed. A tort claim for monetary damages against the Tribes shall be forever barred unless written notice of the claim is presented to the Tribes and an action for monetary damages relating to any such claim is commenced in Tribal Court in compliance with Section 2-7-4 of this Code.

(f) Notwithstanding any other provision of this Code, there shall be no waiver of sovereign immunity under this Code for claims relating to worker's compensation, unemployment compensation, or claims or actions relating to employment decisions.

2-7-6 Trial of Actions

All actions commenced under this Code shall be tried by Judges of the Tribal Court without a jury.

2-7-7 Extinguishment and Preservation of Certain Claims, Actions and Defenses

(a) Any liability for monetary damages assumed by the Tribes for the acts or omissions of any agent, employee or officer of the Tribes under this Code shall be the exclusive remedy available to any person who suffers an injury caused by an agent, employee or officer of the Tribes. Any claim for monetary damages assumed by the Tribes which otherwise would lie against an agent, employee or officer of the Tribes, except for this Code is forever extinguished in favor of the remedy established and limited by this Code, whether or not the person in whose favor such remedy is created exercises the right to timely present written notice of any claim and commence an action for an injury in Tribal Court under this Code.

(b) This Code expressly preserves defenses of qualified or absolute immunity to actions for monetary damages against agents, employees or officers of the Tribes in their individual capacities. By way of illustration rather than limitation, the defenses preserved by this Code include absolute legislative and judicial immunities, qualified and absolute executive immunities, and their derivatives, which were recognized in the common law and elaborated by federal courts in cases alleging violations of federal law. Except for the foregoing, this Code does not extinguish individual liability for monetary damages of or immunize any agent, employee or officer of the Tribes for an injury if it is established that liability for the act or omission of such agent, employee or officer is not assumed by the Tribes under this Code and that such act or omission was outside the scope of authority of the agent, employee or officer. Notwithstanding the foregoing, any action for individual liability of any agent, employee or officer of the Tribes which is founded on an act or omission in excess of the authority of such agent, employee or officer shall be heard only in Tribal Court.

(c) A person who suffers an injury as a result of an act or omission of the Tribes or an agent, employee or officer acting on behalf of the Tribes may not use procedures other than those established in this Code to seek monetary damages, even if another remedy may be provided by another provision of Tribal law of general application. Notwithstanding the foregoing, this Code shall not bar any person from pursuing remedies in accordance with otherwise applicable law for claims relating to

(1) worker's compensation,

(2) unemployment compensation, or

(3) employment decisions.

(d) Volunteers duly authorized by the Tribes or an agent, employee or officer of the Tribes shall have the same immunities under this Code as agents, employees and officers of the Tribes.

2-7-8 Limitation on Awards, Judgments or Orders of Monetary Damages

No award, judgment or order shall be made under this Code: (i) based on strict or absolute liability; (ii) for punitive or exemplary damages; (iii) for prejudgment interest; or (iv) attorneys' fees. No award, judgment or order shall be made under this Code for pain and suffering or mental anguish and suffering or like claims in an amount greater than one hundred thousand dollars ($100,000) for each injury.

2-7-9 Severability

If any part of this Code is declared to be invalid by the Tribal Court, all parts of this Code shall be invalid unless, within ninety (90) days of the judgment of the Tribal Court so declaring, the Tribal Council shall approve a resolution ratifying adoption of this Code without the part declared invalid. If application of this Code to any person is declared to be invalid by the Tribal Court, such invalidity shall not affect application of this Code to any other person, which may be given without such invalid application. To these ends, and consistent with this Section, the provisions of this Code are declared to be severable

2-7-10 Applicable Law

Tribal law, applicable federal law, and, to the extent adopted by 2-7-2(c), Oregon law shall apply and shall govern all claims and actions brought under this Code.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

TORT CLAIMS

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians enacted the "Tort Claims" Code, Resolution No. 02-012, Ordinance No. 039, in a regular Tribal Council Meeting on January 13, 2002. Vote was 7 (for), 0 (against) and 0 (abstaining).

 

CHAPTER 2-8 SALE OF TRIBAL BONDS

2-8-1 Authority and Purpose

(a) The authority for this Code found in the Tribes' Constitution of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (Tribes) under Article I - Section 1 and Article VI - Section 2.

(b) The purpose of this Code is to establish procedures to enable the Tribal Council, as the governing body of the Tribes, to issue bonds or incur other obligations from federal and nonfederal sources under Article VI - Section 2, of the Constitution of the Tribes for public purposes (Tribal Projects).

2-8-2 Definitions

Unless defined elsewhere in this Code or the context clearly requires otherwise, the definitions in this Section apply through this Code.

(a) Bond - a Full-Faith and Credit Bond, a Revenue Bond or other Obligations.

(b) Credit Enhancement Devise - a letter of credit, bond insurance policy, surety bond or other device or facility used to enhance the creditworthiness or marketability of any Bonds.

(c) Full-Faith and Credit Bond - an obligation, including without limitation, a bond, a lease-purchase obligation, a line of credit or a bond anticipation Note, which is (i) incurred or issued to finance a Tribal Project and (ii) specifically designated by the Tribal Council as a Full-Faith and Credit obligation payable from taxes, if any, which may be levied or from the general revenues of the Tribes.

(d) Note - a note Obligation issued in anticipation of bonds, Revenues, taxes, grants or other sources of repayment.

(e) Obligation - an agreement that evidences an indebtedness of the Tribes, other than a Full-Faith and Credit Bond or a Revenue Bond, and includes, but is not limited to, conditional sales contracts, loan agreements, letters or line of credit, lease obligations and Notes.

(f) Revenues - with respect to the issuance of Revenue Bonds, all fees, tolls, excise taxes, assessments, property taxes and all other taxes of whatever kind or nature, rates, charges, loan agreements, rentals and all other income and receipts of whatever kind or character derived by or to which a tribal body is entitled from the operation, sale or use of facilities, projects, utilities or systems owned or operated by or on behalf of the Tribes or a tribal enterprise and other revenues legally available to be pledged to secure Revenue Bonds.

(g) Revenue Bonds - Bonds or revenue anticipation Notes issued for any public purpose, which are secured by Revenues pledged for such public purposes.

(h) Tribal Enterprise - an enterprise of the Tribes duly established pursuant to the Constitution of the Tribes.

(i) Tribal Project - any project or projects of the Tribes or any Tribal Enterprise to be financed in whole or in part with the proceeds of bonds issued for a public purpose. Tribal Project shall also include the financing of any cash-flow needs or deficits of the Tribes or a Tribal Enterprise.

2-8-3 Interpretation of Constitution

The Tribal Court, for purposes of this Code only, is the ultimate arbiter of the meaning of the constitution and the tribal laws, and any meaning that the Tribal Court may assign to a constitutional provision or to a tribal law by written opinion shall be final and binding on the Tribes. When any party in entering into a contract or other transaction pertaining to the issuance of Bonds shall have relied on such meaning as expressed by ordinance or resolution of the Tribal Council, such meaning becomes a part of such contract or transaction and shall not thereafter be revoked or modified to the prejudice of such party.

2-8-4 Authority to Issue Waiver of Sovereign Immunity for Certain Purposes

The Tribal Council of the Tribes, on behalf of the Tribes, is hereby authorized to waive the sovereign immunity of the Tribes, its officers, members and staff, for the limited purpose of providing for the sale, issuance and security for the Bonds, but any such waiver may only be made by a duly authorized resolution of the Tribal Council.

2-8-5 Authority to Issue Bonds

(a) The Tribal Council shall provide by resolution for the issuance of bonds for payment of all or any portion of the cost and expense of any Tribal Project at Tribal Council's discretion. Said resolution will state the maximum aggregate principal amount of the Bond issue.

(b) The resolution shall describe the Tribal Project for which Bonds are to be issued. The Tribal Council or its authorized officer may determine certain particular terms and conditions of any borrowing or issuance of Bonds for an approved Tribal Project pursuant to Section 2-8-2(h) of this Code, subject to any restrictions contained in such resolution.

2-8-6 Authority to Establish Letters or Lines of Credit

The Tribal Council, on behalf of the Tribes, may establish letters or lines of credit with any national bank, association or state chartered bank to be drawn upon in exchange for its Bonds, to delegate to its Chairperson or other officer specified by resolution the authority to determine the amount of credit extended and to pay interest and other finance or service charges. The interest rates on such Bonds may be a fixed rate or rates set periodically, or a variable rate or flexible rates determined by agreement of the parties.

2-8-7 Authority to Secure Interim Financing

(a) Bonds or Notes authorized under this Code which are issued in anticipation of taxes or other Revenues, and any Bonds or Notes which are issued to refund such Bonds or Notes, shall not be issued prior to the beginning of, and shall mature not later than, the end of the fiscal year in which the taxes or other Revenues are expected to be received. Bonds or Notes issued in anticipation of taxes or other Revenues shall not be issued in an amount greater than one hundred percent (100%) of the amount budgeted to be received in the fiscal year in which the Bonds or Notes are issued.

(b) Bonds which are issued in anticipation of a grant will mature not later than one (1) year after the date the grant is estimated to be received. Bonds issued to provide interim financing for capital assets shall mature not later than one (1) year from the estimated date of completion or acquisition of the capital assets. Bonds issued to provide permanent or long-term financing for capital assets or a Tribal Project are not subject to the maturity limitations stated in this Section.

(c) Except as provided in this Section, bonds authorized pursuant to this Code may be in any form and contain any terms, including provisions for redemption at the option of the owner and provisions for the varying of interest rates in accordance with any index, banker's loan rate or other standard.

2-8-8 Security

Absent a resolution requiring otherwise, the Tribal Council may pledge as security for bonds or Credit Enhancement Devices authorized pursuant to this Code, the Tribes' powers to take the following actions:

(a) Cause appropriations or pledges from anticipated taxes, grants, other revenues, loan repayments, the proceeds of any Bonds or other permanent financing or any combination thereof;

(b) Segregate any pledged funds into separate accounts which may be held by the Tribes or any third party trustee designated by resolution of the Tribal Council;

(c) Enter into contracts to obtain Credit Enhancement Devices or other financial commitments designated to provide additional security for Bonds authorized for Tribal Projects;

(d) Establish any reserves deemed necessary for the payment of the Bonds;

(e) Adopt resolutions and enter into agreements containing covenants and provisions for protection and security of the owners of Bonds, which shall constitute enforceable contracts with such owners;

(f) For Full-Faith and Credit Bonds and any Credit Enhancement Devices securing such Full-Faith and Credit Bonds, pledge, restrict and encumber the general revenues of the Tribes, including the Tribes' general revenue-raising and taxing powers, if any, to produce sufficient funds to pay debt service on the Full-Faith and Credit Bonds and on any reimbursement obligation on the Credit Enhancement Devices all in accordance with their terms; and

(g) The Tribal Council may obtain a Credit Enhancement Device for Bonds.

2-8-9 Amount, Terms, Conditions, Interest, Etc., of Bonds

The Tribal Council may by resolution delegate to the Chairperson or other officer of the Tribal Council, its authority to determine the interest rate or rates applicable to any Bonds issued to finance a Tribal Project. The Tribal Council may also delegate to the Chairperson or other officer of the Tribal Council its authority to determine an amortization schedule for the Bonds, provided that the maximum term does not exceed forty (40) years. Except as provided in this Code, the Chairperson or the Delegates of the Tribal Council may act on behalf of the Tribal Council to perform any and all other necessary acts pertaining to the issuance of the bonds, including, without limitation, the determination of any conditions of the Bond issue, Bond denominations, redemption rights, registration privileges, manner of execution, price, manner of sale, covenants and form, including registration of principal and interest, registration of principal only, or bearer.

2-8-10 Registration System and Appointment of Financial Institutions

(a) The Tribal Council may establish a system of registering the ownership of its Bonds as to principal and interest or principal only. Registration may include, without limitation:

(1) a book-entry system of recording the ownership of a Bond whether or not a physical instrument is issued or

(2) recording the ownership of a Bond together with the requirement that the transfer of ownership may only be effected by the surrender of the old Bond and either the reissuance of the old Bond or the issuance of a new Bond to the new owner.

(b) The system of registration shall define the method or methods by which transfer of the registered Bonds shall be effective, and by which payment of principal and any interest or redemption premium shall be made. The system of registration may permit the issuance of Bonds in any denomination to represent several registered Bonds of smaller denominations. The system of registration may also provide for any writing relating to a Bond that is not issued as a physical instrument, for identifying numbers or other designations, for a sufficient supply of certificates, for subsequent transfers, for record and payment dates, for varying denominations, for communications to the owners of Bonds, for accounting, canceled certificate destruction, registration and release of securing interests and for such other incidental matters pertaining to the registration of Bonds as the issuer may deem to be necessary or appropriate.

(c) The Tribal Council or its designee may appoint a national banking association or state chartered bank, maintaining a minimum capital surplus of fifty million dollars ($50,000,000) together with its bank holding company or other affiliate banks (collectively the "Bank"), to act with respect to an issue of its Bonds as authenticating trustee, transfer agent, registrar and paying or other agent, and specify the rights and duties and means of compensation for the Bank. The Tribal Council or its designee may also enter into agreements with any such Bank in connection with the establishment and maintenance by the Bank of a nationally recognized central depository system for the transfer or pledge of Bonds.

(d) The Tribal Council may by resolution appoint the Treasurer of the Tribes, or any other fiscal agency, to serve as the fiscal agency. If the Tribal Council decides to use the services of a fiscal agency other than the Treasurer of the Tribes, the Tribal Council shall so notify the Treasurer of the Tribes at the time the decision is made. The authority granted by this Section 2-8-10(d) shall be in addition to, not in lieu of, the authority granted in Section 2-8-10(c) of this Code.

(e) Nothing in this Section 2-8-10 precludes the Tribes, the Tribal Council or a trustee appointed by the Tribal Council, pursuant to any other provision of law, from itself performing, either alone or jointly with other issuers, fiscal agencies or trustees, any transfer, registration, authentication, payment or other function described in this Section.

2-8-11 Form and Content of Bonds

(a) Bonds shall be in such denominations as may be provided in the resolution authorizing their issue and shall be numbered in the manner provided by such resolution. Each Bond shall

(1) be signed by the Chairperson of the Tribal Council or his or her duly authorized designee,

(2) refer to the Tribal Project for which it is issued and the resolution ordering it,

(3) provide that the principal sum therein named and the interest thereon shall be, unless otherwise provided by the resolution authorizing the Tribal Project, payable out of the general revenues of the Tribes, or out of a source of security designated for the Bonds in the resolution of the Tribal Council authorizing such Bonds and

(4) be in any form, including bearer bonds or registered bonds as provided by the resolution authorizing the issuance of such Bonds.

(b) Any Bonds may be signed by the Chairperson of the Tribal Council or his or her duly authorized designee, or in lieu thereof, may have printed thereon a facsimile of his or her signature.

2-8-12 Reproduction of Physical Instrument

When the Tribal Council issues Bonds as physical instruments, the Bonds shall be printed, engraved, lithographed, photocopied, typed or reproduced and the manual or facsimile signatures of the Chairperson of the Tribal Council or his or her duly authorized designee shall be included on each Bond.

2-8-13 Payment of Costs of Issuance and Sale

The proceeds of any Bonds issued may be used to pay incidental costs and costs related to the sale and issuance of the Bonds. Such costs may include, but are not limited to, payments for fiscal agent, paying agent, trustee, escrow agent, registrar fees, legal and accounting expenses, bond rating, printing, engraving, advertising, credit enhancement fees, bond insurance premiums, underwriting costs and out-of-pocket expenditures of the Tribes relating to issuance of the Bonds. These costs shall also include the establishment and funding of reserve accounts and other accounts, any amount required for working capital, capitalized interest, necessary and related engineering, architectural, planning and inspection costs and other similar activities or purposes.

2-8-14 Personal Liability

Neither the holder nor owner of any Bond shall have any claim (other than a writ of mandamus, injunction or other similar writ or proceeding) against any member of the Tribal Council or any officer, employee or agent of the Tribes, for personal, contractual or monetary liability on the Bond.

2-8-15 Revenue Bonds

(a) The Tribal Council shall provide by resolution for the issuance of Revenue Bonds for the payment of the whole or any portion of the cost and expense of any Tribal Project at the discretion of Tribal Council. Said resolution will determine the maximum amount of the Revenue Bond issue, which amount may equal, but may not exceed, the total amount specified in the tribal resolution authorizing the issuance of Revenue Bonds for the Tribal Project.

(b) The Tribal Council may pledge for the payment of Revenue Bonds issued in connection with a Tribal Project all or any portion of:

(1) the Revenues of any revenue producing facility providing services related to the services financed by the Revenue Bonds,

(2) the Revenues of a public utility or system or an addition or extension thereto,

(3) all of any portion of the Revenues of the Tribes or

(4) any other legally available moneys.

(c) If the Tribal Council determines that it is necessary to provide additional security for the Revenue Bonds, the Tribal Council may, to the extent permitted by law, mortgage, grant security interests in or otherwise encumber facilities, projects, utilities or systems owned or operated by the Tribes. Such security may be given in favor of the holders of the Revenue Bonds, a trustee, therefore, or as security for its obligations arising under any Credit Enhancement Device. The Tribal Council may obtain a Credit Enhancement Device for Revenue Bonds provided that such Credit Enhancement Device is payable solely from Revenues. The Tribal Council may loan the proceeds of any Revenue Bonds to any enterprise of the Tribes or to any member of the Tribes on the terms and conditions specified in a resolution of the Tribal Council.

(d) The substance of the limitations included in this subsection shall be plainly printed, written, engraved or reproduced on:

(1) each Revenue Bond that is a physical instrument and

(2) each official statement associated with the Revenue Bonds.

2-8-16 Dispute Resolution

(a) Unless otherwise provided by the terms of the specific Bond issue or Credit Enhancement Device, a party with a claim arising from the issuance of Bonds or Credit Enhancement Device under this Code shall first file a written petition with the Tribal Court for a hearing on the claim, which hearing shall be granted within ninety (90) days of the filing of the petition. The hearing will be on the record and shall be transcribed verbatim. The petitioner shall pay the costs of transcription.

If the Tribal Council so provides in a duly authorized resolution, a party may seek arbitration of the dispute under Tribal law. For purposes of arbitration, the Tribal Council shall not raise a sovereign immunity defense in the Tribal Court, provided that agreement to arbitrate, shall be strictly construed and shall not be construed as an agreement not to assert any such immunity in any action brought or maintained in the courts of a State or in the federal courts.

(b) In connection with authorizing a specific Bond issue, the Tribal Council (by authorization of the terms and agreements pertaining to the Bond issue or otherwise) may provide for a dispute resolution system differing from that provided in subparagraph (a) above. Such other dispute resolution system may provide, among other things, for waiving the necessity of any proceedings before the Tribal Council or Tribal Courts, for other or greater waivers of sovereign immunity, for lesser or greater powers of the arbitrators than those stated for Tribal law and for federal court jurisdiction.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

SALE OF TRIBAL BONDS

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians enacted the "Sale of Tribal Bonds" Code, Resolution No. 02-011, Ordinance No. 038, in a regular Tribal Council meeting on January 13, 2002. Vote was 7 (for), 0 (against) and 0 (abstaining).

CHAPTER 2-9 EVIDENCE

2-9-1 Purpose

The purpose of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians Evidence Code is to secure fairness in administration, eliminate unjustifiable expense and delay, and to promote the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

2-9-2 Short Title

2-9-1 to 2-9-13 shall be known and may be cited as the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (Tribes) Evidence Code (EC).

2-9-3 Definitions

(a) " Common Law" - law which originated in custom and use over a long period of time and which has gained its authority and acceptance by its continued use year after year.

(b) "Competent" - evidence that is reliable and relevant to the issues that are before the Tribal Court.

(c) "Cross-Examination" - the examination of a witness by the opposing party.

(d) "Direct Examination" - the examination of a witness by the party who has called that witness in support of their case.

(e) "Evidence" - anything that a party offers in Court to help prove his side of the case. It can be oral testimony or material things such as exhibits.

(f) "Hearsay" - the presentation of oral evidence that is not within the personal knowledge of the witnesses at trial. Most often, it is merely the restatement of what a witness has heard others say.

(g) "Judicial Notice" - the acceptance by the Tribal Court of certain facts that do not have to be proved by expert testimony because they are generally accepted and regarded as established by common knowledge.

(h) "Material" - evidence that is important and necessary and tending to prove or disprove an issue in question before the Tribal Court.

(i) "Oath" - the affirming of the truth of a statement.

(j) "Preponderance of Evidence" - evidence that leads the trier of fact to be convinced that the fact in issue is more probable than not.

(k) "Set-Over" - the rescheduling of a trial or hearing for a later time. It may be granted for good cause upon request of either or both parties.

(l) "Sustained" - to support or approve.

(m) "Testimony" - oral evidence which is given by a competent witness under oath.

2-9-4 Scope

The Tribal Court is not bound by common law rules of evidence or the rules of evidence applied in state or federal courts.

2-9-5 Burden of Presentation

(a) All cases before the tribal Court will be decided upon the evidence. Mere argument will not be sufficient to carry the required burden of presentation of evidence.

(b) Conviction in a criminal case requires that the Tribes prove the guilt of the defendant beyond a reasonable doubt.

(c) In a civil action, the plaintiff or petitioner will not prevail unless they have presented a preponderance of the evidence is support of their claim.

2-9-6 Admissibility

(a) Appearance by self-representation, by Tribal Court Advocates, or Child Support Investigators dictates that the Tribal Court must be liberal in the admission of evidence.

(b) All evidence may be admitted that can be shown to be relevant and material to the case.

(c) Fairness will dictate the decision of the Judge on challenges to admissibility of evidence. The Tribal Court may avail itself of any recognized and authoritative materials, books, or documents as guidance in reaching a decision on the admissibility of evidence.

(d) Relevant evidence of customs and traditions of the Tribes shall be freely admitted.

2-9-7 Hearsay

Hearsay evidence will be admitted if the Court determines that it is credible.

2-9-8 Exclusion of Evidence

(a) At the discretion of the Judge, evidence may be excluded if its value as proof is outweighed by the risk its admission will do the following:

(1) Create a substantial risk of undue prejudice; confuse the issues; or mislead the jury; or

(2) Unfairly surprise the opposing party.

2-9-9 Judicial Notice

(a) Upon request of a party, the Tribal Court may take judicial notice of specific facts that are so certain as not to be subject to reasonable dispute.

(b) Specific facts are propositions which are common, everyday knowledge on the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians tribal territory and which the average person is presumed to realize, understand and know.

(c) Specific facts that are entitled to judicial notice need not be pleaded or proved. The Tribal Court Judge will direct the jury to find that such facts are true.

2-9-10 Expert Opinion

The Tribal Court will deny the admission of testimony offered as expert opinion where that opinion could reasonably be drawn by a person lacking expert qualifications and which would not normally be considered the subject of expert's testimony.

2-9-11 Testimonial Evidence and Examination

(a) Testimony offered by a witness is admissible only if offered under a sworn oath. If for any reason, a cross-examination cannot be made of a witness who testified on direct examination, the testimony of that witness will be stricken from the record.

(b) A party may use leading questions against an adverse party or hostile witness or whenever such appears reasonably necessary to elicit testimony from witnesses of tender years or poor ability to communicate.

(c) A party may call any person to be a witness and examine any witness so called on any matter relevant to the action unless a privilege applies. A party may impeach his own witness.

(d) Cross examination shall be limited to the general scope of direct examination provided, however, that full examination of all witnesses shall be allowed on direct or cross examination to assure complete development of all relevant facts.

(e) A defendant in a criminal trial may not be compelled to testify. Where a defendant elects not to testify, it shall not be taken as evidence or an indication of guilt. Where a criminal defendant does voluntarily testify, however, he is then subject to direct, cross, redirect and recross examination in the same manner as any other witness.

2-9-12 Depositions in Lieu of Testimony

(a) Whenever a witness is unable, for good cause shown, to be present at a scheduled court proceeding, the testimony of that person may be taken and preserved by deposition.

(b) Depositions may be scheduled by agreement between the parties or by order of the Tribal Court. Where the need for a deposition is challenged, the party seeking the deposition has the burden to show that the testimony would be material and necessary and that the witness would be otherwise unavailable.

(c) All depositions must be taken under oath and each party or representative must be present. A defendant in a criminal case must be present personally unless he has waived that right in writing. In no instance will a deposition be taken from a criminal defendant without his consent.

(d) Objections will be made where appropriate during the taking of a deposition. The tribal Court will rule upon the objections as soon as possible after receiving a transcript or recorded tape, but in no instance, later than the time of trial. Where an objection is sustained, it will be stricken from the record.

(e) At a scheduled trial or hearing, all or any part of a deposition may be entered into evidence in the same way as if it were live testimony being offered. If only a part of a deposition is to be entered during the proceeding, the opposing party may move that all the material be offered and admitted at the same time.

(f) In a jury trial, the Tribal Court Judge shall fully explain the procedure and necessity for a deposition.

2-9-13 Investigations

The production of evidence is the responsibility of the parties. Requests for set-over of a trial date pending outcome of an investigation will be granted by the Court only for a reasonable period of time.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

EVIDENCE

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians enacts the "Evidence" Ordinance, Resolution No. 04-064, Ordinance No. 058, at a business Tribal Council meeting on August 30, 2004. Vote was 7 (for), 0 (against), and 0 (abstaining).

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians approved the "Evidence" Ordinance, Resolution No. 04-033, Ordinance No. 058, at a regular Tribal Council meeting on May 16, 2004. Vote was 7 (for), 0 (against), and 0 (abstaining).

 

CHAPTER 2-12 SMALL CLAIMS COURT

2-12-1 Authority and Purpose

The purpose of this Code is to grant authority to the Tribal Court to adjudicate over matters involving small claims.

2-12-2 Definitions

For purposes of this Code, the following definitions shall apply:

(a) "Court Clerk" or "Clerk" shall mean the Clerk of the Tribal Court.

(b) "Judge" or "Tribal Judge" shall mean any Judge of the Tribal Court.

(c) "Reservation" shall mean all lands held in trust for the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (Tribes) or its members by the United States.

(d) "Small Claims" shall mean claims of $5,000 or less.

(e) "Tribal Court" or "Court" shall mean the Tribal Court of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians of Oregon.

(f) "Tribal Council" or "Council" shall mean the Tribal Council of the Tribes.

(g) "Plaintiff" shall mean the person or persons filing the claim.

(h) "Defendant" shall mean the person or persons that the Plaintiff has filed suit against.

2-12-3 Requirements for a Claim

A claim may be filed with the Tribal Court only when the following conditions are met.

(a) The claim is for the recovery of money and/or specific personal property; or performance of a contract;

(b) The total amount of the claim, including goods or services, is Five Thousand Dollars ($5,000) or less;

(c) One (1) party must be a Tribal Member or a resident of the reservation. Any plaintiff that is not a Tribal Member or a resident of this reservation must waive the right to contest jurisdiction.

(d) The loan or injury must have been within the service area, or for a contract claim, the contract must have been executed or to be performed within the service area.

(e) A good faith effort was made to collect the claim.

2-12-4 Time Limit on Actions

No claim may be filed more than one (1) year after the date that the plaintiff knew or should have known of the damage or injury that the claim is based on.

2-12-5 Statement of What Can be Recovered

(a) The plaintiff may only recover one of the following, after a final judgment has been entered:

(1) Money for the value of the claim;

(2) The objects in controversy and the value of any loss/damage to the objects;

(3) Work to be performed under a contract in dispute;

(4) In kind payment, either in goods or services.

(b) Interest can also be recovered on the value of the claim.

2-12-6 Filing a Claim With the Court Clerk; Content and Form

A case shall begin upon filing with the Court Clerk a verified claim in the form that the Court has prescribed. The plaintiff shall sign the claim and verify under oath that as of the date of its filing each requirement in 2-12-3 has been met. The claim shall contain the name and mailing address of the plaintiff and of the defendant, followed by a simple statement of the claim. This statement shall include the amount of the claim and the date the actions allegedly occurred. With the claim the plaintiff shall include their affidavit stating that they meet all of the requirements in 2-12-3 of this Code, including the date that the damage or injury the claim is based on occurred.

2-12-7 Notice; Content; Service

Upon the filing of a claim, the Court Clerk shall issue a notice in the form prescribed by the court, directed at the defendant, and shall contain a copy of the claim. The Court shall serve the notice and claim upon the defendant by certified mail at the defendant's last known address. The envelope shall be marked "Deliver to Addressee Only" and "Return Receipt Requested", and the date on the return slip will serve as the date upon which the notice and claim were served on the defendant.

2-12-8 Defendant's Rights and Liabilities

Within twenty-one (21) days after the defendant was served with the notice and the claim the defendant must either admit or deny the claim.

(a) If the defendant admits the claim, the defendant may settle by paying the plaintiff the amount of the filing fees and service expenses paid by the plaintiff, plus:

(1) Paying the amount of the claim, and mailing or providing proof of such payment to the court;

(2) Delivering the property in dispute to the plaintiff, and if applicable an amount of money equaling the value of the loss or damage to the property, and mailing or providing proof of delivery to the Court; or

(3) Completing performance of the promised service(s) and mailing or providing proof of performance to the Court.

(b) If the defendant denies the claim, the matter may be settled by:

(1) filing a written request, in the form prescribed by the court, demanding a hearing in the Tribal Court, or

(2) filing a counterclaim along with a demand for a hearing.

2-12-9 Counterclaims

A defendant may make a counterclaim, on any claim that the defendant may have against the plaintiff and that arises out of the same transaction or occurrence that is the subject matter of the claim filed by the plaintiff. The counterclaim must be filed with the Tribal Court Clerk within twenty-one (21) days after receiving the claim filed by the plaintiff. The Court Clerk will then serve the plaintiff with the counterclaim by certified mail at the plaintiff's last known address. The defendant is limited to recovery of the same amount, goods and services, as in 2-12-5.

2-12-10 Hearing

If a defendant demands a hearing, the Court Clerk shall mail to the parties notice of the hearing. In the notice of the hearing, the Court Clerk shall instruct the parties that they need to bring witnesses, documents and other evidence pertinent to the controversy. If a counterclaim was filed by the defendant, the notice of hearing shall be accompanied by such counterclaim. No formal pleading other than the claim shall be necessary. The hearing will be informal and only the parties and their witnesses, and spokespersons who appear at no charge and are immediate family members of a party, will be allowed to address the court.

2-12-11 No Attorneys

Notwithstanding any provision of tribal law to the contrary, attorneys are not permitted to represent or advise a party in a small claims court case.

2-12-12 Time Extension

If one of the two parties wishes to extend the time, in order to make formal appearances to the Court, the party must file a written request with the court. The requested extension can be no longer than thirty (30) days. The Court may only grant one extension per party.

2-12-13 Default

If the defendant fails to pay the claim, demand a hearing, or show up for the hearing, upon written request from the plaintiff, the Clerk shall enter a judgment against the defendant for the relief claimed, plus the amount of the small claims filing fees and service expenses paid by the plaintiff. If the plaintiff fails to show up for the hearing, upon written request from the defendant, the Clerk shall dismiss the case, or if a counterclaim has been filed, enter a judgment for the amount of the claim plus fees and service expenses paid by the defendant. A default judgment may not be entered for failure to appear at the hearing through no fault of the party who failed to appear.

2-12-14 Final Judgment as Final Decree

When entered, the final judgment shall document a final decree of the rights and obligations of both parties regarding the claims and counterclaims made by the plaintiff and the defendant. The judgment will remain valid for seven (7) years.

2-12-15 Action/Petition to Set Aside Final Judgment

(a) A final judgment entered shall not influence nor bar the rights of either party to petition the Court to set aside or amend the final judgment for fraud, duress, accident, mistake, or other grounds recognized as reasonable under Tribal Law.

(b) The Court may retain jurisdiction of a case for one (I) year following the entry of final judgment in all matters.

2-12-16 Applicable Law

The Court in resolving claims under this Code will use the substantive law of the State of Oregon unless that law conflicts with the law of the Tribes. In the event of conflict, Tribal law will govern.

2-12-17 Brochure Describing Proceedings; Content, Form and Distribution

The Court shall develop and print a brochure describing the requirements, nature and effect of the proceedings. The brochure shall be distributed by the Court and shall state in clear English the following:

(a) A short summary of the provisions and procedures established by this Code.

(b) A statement in boldface type that with the entry of a final judgment, all rights and obligations of both parties including property and monetary gains will be permanently ended without right of appeal, except that either person may petition the Court to set aside the final judgment for fraud, duress, accident, mistake or other grounds recognized under tribal law.

(c) A list of the items or services that a party can receive if the judge rules in favor of that party.

2-12-18 Fees

The Court shall collect a fee from the plaintiff for filing a claim, a fee from the defendant if a counterclaim is filed, and also from the defendant a fee for requesting a hearing with the Tribal Court. This fee will cover the cost of the court's time and the distribution of the brochure, and other costs the Court may incur in processing the case. The amount of the fees shall be set by the Judge and approved by a resolution of the Tribal Council.

2-12-19 Sovereign Immunity

This Code shall not waive the sovereign immunity of the Tribes except as to counterclaims against the Tribes when the Tribes are a plaintiff in a case brought under this Code.

2-12-20 Fiscal Office Authority

This Code shall not be construed to reduce the authority of the Tribes' Fiscal Office to deduct sums owed to the Tribes from paychecks and other payments.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

SMALL CLAIMS COURT

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians enacted the "Small Claims Court" Code, Resolution No. 03-057, Ordinance No. 053, in a business Tribal Council meeting on October 27, 2003. Vote was 7 (for), 0 (against) and 0 (abstaining).

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians adopted the "Small Claims Court" Code, Resolution No. 03-043, Ordinance No. 053, in a regular Tribal Council meeting on September 14, 2003. Vote was 7 (for), 0 (against) and 0 (abstaining).

 

SMALL CLAIMS FEES - CIT 2-12-18 (. . . fees shall be set by the Judge and approved by a resolution of the Tribal Council.)

Fees Required at time of filing (payable to CTCLUSI Tribal Court)

Plaintiff:
Filing Fee:

$40 for claims of $1500 or less
$75 for claims of $1501-$5000

Service Fee (CIT 2-12-7) for delivery of notice and claim to Defendant by Court Clerk via Cert Mail/Ret Receipt Requested/Deliver to Addressee Only

$7.55 (subject to USPO change)

If service by Cert Mail/Ret Receipt Requested/Deliver to Addressee Only through the U.S. Postal Service fails, personal service by other means will be the financial responsibility of Plaintiff.

Defendant:
Appearance Fee:

$40 for counterclaims of $1500 or less
$75 for counterclaims of $1501-$5000

CHAPTER 2-14 PEACEGIVING COURT

2-14-1 Purpose

(a) The purpose of this Ordinance is to establish procedures for Tribal Peacegiving. This Ordinance is adopted to protect the health, and welfare of the members by utilizing tribal customs and tradition to resolve conflicts and assist youth in need of services.

(b) The Peacegiving Court will provide a voluntary dispute resolution alternative, grounded in the tribal traditions of peace and healing.

2-14-2 Definitions:

(a) "Child" - an unemancipated and unmarried person under eighteen (18) years of age.

(b) "Child Abuse" and "Child Neglect" - have the same meaning as defined under CTCLUSIT Chapter 4-4, as it is amended from time to time.

(c) "Peacegiver" - a person appointed by the Tribal Court who meets the qualifications of Peacegivers described below.

(d) "Immediate Family" - parents, grandparents, siblings, spouses, parents-in-law, siblings-in-law, children-in-law, children, grandchildren.

2-14-3 Establishment of Peacegiving Court

There is hereby established the Peacegiving Court as a division of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians' (Tribes) Tribal Court, subject to the supervision and control of the Chief Judge of the Tribal Court.

2-14-4 Powers of the Peacegiving Court

(a) Peacegivers shall have the authority to conduct Peacegiving sessions in any matter referred to the Peacegiving Court by the Tribal Court.

(b) Peacegivers may resolve disputes and supervise Children in need of Supervision matters, using restorative justice principles and traditional Tribal dispute resolution and community integration values and practices and mentoring.

(c) Peacegivers do not have the authority to violate any applicable Tribal or Federal law or to jeopardize the health and welfare of any party to a case or of the Tribes or its members. Peacegivers also do not have the authority expressly, impliedly or otherwise through their status or activities to contractually bind the Tribes.

(d) After transfer of a case by the Tribal Court, as provided below, Peacegivers may convene Peacegiving sessions at reasonable times and places under the procedures outlined in this Ordinance. The Peacegiver, in his or her judgment, may involve all or some participants in each session. However, Peacegivers shall not meet alone with children without a parent, grandparent, guardian, Tribal Court judge or Tribal Court clerk present, unless express written permission has been obtained by the child's parent or guardian.

(e) Peacegivers may refuse to serve, or discontinue their service in any case at any time. If an assigned Peacegiver discontinues service, the Tribal Court will review whether to assign a new Peacegiver or remove the case from Peacegiving Court.

2-14-5 Duties of Peacegivers

Peacegivers shall schedule Peacegiving sessions at times and places that are reasonably convenient to all participants. At the outset of any participant's initial session, Peacegivers shall clearly state that they are not judges and have no authority to make a decision for parties or to force them to do anything, except as authorized by Tribal law. During Peacegiving, Peacegivers must at all times maintain an atmosphere that honors Tribal values and promotes peace and healing among the parties and the community. Unless the Tribal Court and the parties consent otherwise, Peacegivers must not accept any case in which they or their immediate family have any personal or financial interest in the outcome of the Peacegiving proceeding. Peacegivers must also disclose to the assigning Tribal Court judge and to the parties any such interest and any family relationship between themselves and any party to a Peacegiving case.

2-14-6 Qualifications of Peacegivers

Peacegivers shall be persons who:

(a) Have the respect of the Tribal community and a reputation for honesty, integrity, humanity and a demonstrated practice of resolving local problems by means that honor the tribal values of peace and healing;

(b) Satisfactorily complete a background investigation, including a determination by the Tribal Court that they have minimum standards of character at least as stringent as that described in the Tribes' Background Investigation Code for individuals working with children.

(c) Are able and willing to sign an oath of office and abide by Tribal laws and any applicable ethical rules;

(d) Can, with or without reasonable accommodation, perform the duties and powers of Peacegivers;

(e) Are appointed by the Tribal Court;

(f) Must at all times conduct himself or herself as a positive role model for the community; and

(g) Must be Tribal members or spouses of Tribal members.

2-14-7 Transfer of Case to Peacegiving

(a) With the consent of the all parties or the child in a Child in Need of Supervision or Juvenile Offender matter, the Tribal Court may transfer any case or dispute to the Peacegiving Court.

(b) At the time of transfer, the Tribal Court shall assign one or more Peacegivers to participate in the case. An assignment order may include a timeline for Peacegivers to provide reports, to meet certain deadlines or to complete Peacegiving.

(c) If the matter assigned involves a Child in Need of Supervision or a Juvenile Offender, the Tribal Court shall include in the referral, any reports, evaluations or other documents that the court believes would be useful to the Peacegiver in understanding the needs of the child.


2-14-8 Peacegiving Court Coordinator

The Tribal Court may employ a coordinator to facilitate the review of Peacegiving cases and to assist the court with Peacegiving administration.

2-14-9 Confidentiality and Privilege

Communications made during Peacegiving shall be treated as confidential by all parties and participants. Such communications shall be privileged as settlement negotiations and may not be admitted to Tribal Court as evidence unless otherwise agreed to in writing by the parties, or as otherwise provided by Tribal law, including this Ordinance. This privilege will not apply to communications originally made for purposes other than Peacegiving, or made before Peacegiving begins. Notwithstanding any other provision of this paragraph, a Peacegiver must make a formal report to the appropriate government agency if he/she learns of any alleged abuse or neglect of a child during Peacegiving or otherwise. Subject to the other provisions of Tribal law, including this Ordinance, the Tribal Court may hold a party or a Peacegiver to be in contempt of court upon a finding that a person violated the confidentiality of Peacegiving. With the permission of all Peacegiving parties and the consent of the Tribal Court, a Peacegiver may testify at a hearing regarding Peacegiving proceedings.

2-14-10 Records and Files

The Peacegiving Court shall maintain a file for each matter referred to it. The files of the Peacegiving Court shall be maintained separate and apart from the files of the Tribal Court on the same matter. Only such reports and documents as are specifically requested by the Tribal Court Judge or as are deemed necessary by the Peacegiver shall be transmitted from the Peacegiving Court file to the Tribal Court file.

2-14-11 Removal of Peacegiver

The Chief Judge of the Tribal Court may remove a Peacegiver if the Court, in its sole discretion, finds that the Peacegiver is no longer qualified under Section 2-14-6.

2-14-12 Compensation of Peacegiver

Peacegivers are Tribal volunteers and shall receive no direct remuneration for their services. At the conclusion of Peacegiving proceedings, Peacegivers may accept gifts of nominal value in the tradition of potlatch, from parties in recognition of their services. Peacegivers shall not solicit gifts and shall not accept gifts until after jurisdiction of the Peacegiving Court is terminated.

2-14-13 Immunity of Peacegivers

Peacegivers shall be officers of the Tribal Court. Subject to the provisions of this Ordinance, Peacegivers shall be immune from suit for good faith actions and omissions made in the scope of their authority, in the same manner as judges of the Tribal Court.

2-14-14 Peacegiving-Related Motions

(a) Any party may file a Motion in Tribal Court to Terminate Peacegiving. A Motion to Terminate Peacegiving must be based on one or more of the following grounds:

(b) Any party may file a Motion in Tribal Court to Change Peacegiver based on a conflict of interest or other good cause;

(c) Any non-party participant may file a Motion to be Excused from Peacegiving. Such motion must state the good cause grounds why such person should not be involved in Peacegiving. Prior to filing a motion in Tribal Court to be excused from Peacegiving, the participant shall make a written request to the Peacegiver stating good cause to be excused.

(d) Except in cases of harassment, a party having a complaint against a Peacegiver or the Peacegiving process should first seek to resolve the matter with the Peacegiver. If this effort does not resolve the matter, the party may make a motion to the Tribal Court for a protective order ending or limiting Peacegiving. The grounds for any such motion and order will include, without limitation:

(e) On its own motion, and after making all necessary findings of fact and conclusions of law, the court may take any action described in this section.

2-14-15 Conduct of Peacegiving

(a) Facilitation by Peacegiver.

Peacegiving shall be facilitated by Peacegivers in accordance with Tribal traditions and values. Peacegivers will establish and explain the basic Peacegiving rules and procedures to participants.

(b) Participants

Peacegiving may include non-parties suggested by the parties, or believed to be useful and appropriate to the issues presented by the case. If a child is involved, a Peacegiver will encourage participation by that child's parent o legal guardian. The Peacegiver shall prepare a list of proposed nonparty participants and consult with each party regarding the list prior to or at the first Peacegiving session. The list of nonparty participants may be changed during Peacegiving, as need arises. The Peacegiver may apply to the Court Clerk for a subpoena for any person who will not voluntarily participate. This subpoena may be in a letter format and used only to require attendance at Peacegiving. Peacegivers may caucus with individual or subgroups of participants.

(c) Authority to Settle

Except for the Tribes, every party participating in Peacegiving must have the authority to settle the matter as to that party's interests. In the event that the Tribes are a party, the Tribes' representative must be able to make a recommendation to Tribal Council. Violations of this requirement are subject to the contempt powers of the Tribal Court and the Peacegiver or any party may file a motion for an order to show cause why a person who violates such obligation should not be held in contempt.

(d) Good Faith

Any person who participates in Peacegiving without acting in good faith to resolve their differences may be excluded or have their participation restricted by the Peacegiver.

(e) Lawyers or Spokespersons

Lawyers and Spokespersons may participate in Peacegiving only with the advance unanimous consent of the Peacegiver and all parties.

(f) Peacegiving may include community and Tribal activities that do not reasonably threaten the welfare of participants. Any such activities involving a child must be pre-approved in writing by that child's parent or legal guardian.

2-14-16 Peacegiver Report to Tribal Court

Peacegiver will submit a status report to the Tribal Court in any of the following circumstances:

(a) When Peacegiving has been successfully completed;

(b) When the Peacegiver feels that no further Peacegiving will occur,

(c) When requested by the Tribal Court pursuant to tribal law.

The status report may either be in writing or a verbal statement made on the record, will detail what additional Peacegiving sessions are needed and the degree to which the original dispute has been resolved. The report shall identify any unresolved issues and the parties involved in those issues. The report shall not include the substance of communications made in the course of Peacegiving that would be considered confidential communications for settlement purposes unless those communications are necessary to satisfy the requirements of this Chapter, including this section, or other Tribal laws.

2-14-17 Agreements Made During Peacegiving

All agreements involving at least one party made during Peacegiving must be in writing and fully executed before the Peacegiver makes a final status report to the Tribal Court. No agreement made during Peacegiving shall have legal force and effect until approved by the Tribal Court.

2-14-18 Sovereign Immunity

Nothing in this Ordinance waives, expressly or impliedly, the sovereign immunity of the Tribes or any of its officers, employees or representatives.

2-14-19 Severability

If a court of competent jurisdiction finds any provision of this ordinance to be invalid or illegal under applicable tribal and or federal law, such provision shall be severed from this ordinance and the remainder of this ordinance shall remain in full force and effect.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

PEACEGIVING COURT

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians enacted the "Peacegiving Court" Ordinance, Resolution No. 05-111, Ordinance No. 072, at a regular Tribal Council meeting on November 13, 2005. Vote was 6 (for), 0 (against) and 0 (abstaining).

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians approved the "Peacegiving Court" Ordinance, Resolution No. 05-097, Ordinance No. 072, at a regular Tribal Council meeting on October 9, 2005. Vote was 7 (for), 0 (against) and 0 (abstaining).

CODE 2-15 JUVENILES - PURPOSE AND CONSTRUCTION

2-15-1 Purpose and Construction

It is the purpose of this Code to secure for each child coming before the Tribal Juvenile Court such care, guidance and control, preferably in his own home, as will serve his welfare and the best interests of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (Tribes); to preserve and strengthen family ties whenever possible; to preserve and strengthen the child's cultural and ethnic identity wherever possible; to secure for any child removed from his home that care, guidance and control as nearly equivalent as that which he should have been given by his parents to help him develop into a responsible, well-adjusted adult; to improve any conditions or home environment which may be contributing to his delinquency; and at the same time, to protect the peace and security of the community and its individual residents from juvenile violence or law-breaking. To this end, this Code shall be liberally construed.

2-15-2 Definitions

(a) "Adult"

A person eighteen (18) years of age or older or a person otherwise emancipated.

(b) "Child"

An individual who is less than eighteen (18) years old and has not been emancipated.

(c) "Child in Need of Supervision" - means a child who:

(1) Being subject to compulsory school attendance, is habitually absent from school; or

(2) Habitually disobeys the reasonable and lawful demands of his or her parents, guardian or custodian and is beyond such control; or

(3) Has committed an offense applicable only to children; and

(4) In any of the above situations is in need of care, cultural education, or rehabilitation.

(d) "Custodian"

One who has physical custody of a child and who is providing food, shelter and supervision to him.

(e) "Dependent Child"
A child is considered dependent if:

(1) the child is beyond the control of the parents or custodian, and the child's behavior is such as to endanger the welfare of himself or herself due to a mental health condition; or

(2) the child's condition or circumstances are such as to endanger the welfare of the child or of others, including but not limited to;

(A) any case where a parent or custodian is incapable of meeting his/her duties due to death, incarceration, hospitalization or other physical or mental incapacity without planning for the care and custody of the child; or

(B) any case where a child has been placed for care or adoption in violation of federal, state or tribal law; or

(C) any case were a child is neglected or abused as those terms are defined in this chapter; or

(D) any case where a child is abandoned

(f) "Detention"

The placement of a child in a physically restrictive facility

(g) "Guardian"

A person other than the child's parent who is by law responsible for that child.

(h) "Juvenile Court"

The Tribes' Tribal Court when exercising jurisdiction under this Code.

(i) "Juvenile Court Judge"

Any judge of the Tribes' Tribal Court when exercising jurisdiction under this Code.

(j) "Juvenile Offender"

A person who commits a juvenile offense prior to his eighteenth (18th) birthday.

(k) "Juvenile Offense"

An act, which, if committed by an adult, is designated a violation under the Tribes' Violations Code; or an act which, if committed by an adult would be considered a crime under state or federal law.

(l) "Least Restrictive Alternative"

This term in the Code directs the Court to select the least drastic method of achieving its goal; the restrictions placed on the child must be reasonably related to the Court's objectives and must be the least restrictive way of achieving that objective.

(m) "Minor"

A "child" as defined in section 2-15-2(c).

(n) "Shelter Care"

Extended family member placement or foster care placement licensed or approved by an applicable agency.

(o) "Tape"

The record of a court proceeding, whether digital or analog, and whether stored on magnetic tape, computer disk, memory stick or any other electronic storage device, shall be referred to as a "tape".

2-15-3 The Court System

(a) Establishment

There is hereby established for the Tribes a Court to be known as the Confederated Tribes of Coos Lower Umpqua and Siuslaw Indians Juvenile Court.

(b) Judges

The Tribes' Juvenile Court shall consist of judges who shall be appointed by the Chief Judge from among all the judges of the Tribal Court.

(c) Powers and Duties

The Juvenile Court shall be vested with all of the powers of the Tribal Court in law and equity. However, no adjudication upon the status of any child in the jurisdiction of the Juvenile Court shall be deemed criminal or be deemed a conviction of crime, unless the Juvenile Court refers the matter to the adult Tribal Court, when established. Therefore, the disposition of a child or of evidence given shall not be admissible as evidence against the child in any proceedings in another court.

(d) Authority of Court

The Juvenile Court is authorized to cooperate fully with any federal, state, tribal, public or private agency to participate in any diversion, rehabilitation or training programs and to receive grants-in-aid to carry out the purposes of this Code.

(e) Juvenile Court Scheduling

The Clerk of the Court shall keep a juvenile calendar upon which all juvenile cases shall be entered. The Juvenile Court shall act as soon as possible on any Petition or other filing involving an emergency.

(f) Computation of Time

Whenever time limitations are expressed in days under Tribal law, the day of service and Saturdays, Sundays and Tribal legal holidays are excluded from the computation. If a time for answer falls on a Saturday, Sunday or Tribal legal holiday, the time is extended to the next succeeding weekday. No additional time is allowed for delivery by mail or otherwise except by permission of the Judge.

(g) Tribal Officer

Any tribal police or law enforcement officer may carry out the duties of "officer" under this Code. An officer may be present at Juvenile Court proceedings at the discretion of the Juvenile Court Judge.

(h) Guardian Ad Litem

The Juvenile Court, under the proceeding authorized by this Code shall appoint, for the purposes of that proceeding, a guardian ad litem for a child where the Court finds that the minor does not have a natural or adoptive parent, guardian or custodian willing and able to provide effective assistance in understanding and participating in the proceedings of the Juvenile Court respecting the child. For purposes of Juvenile Court proceedings, the role of Guardian ad litem shall be filled by a Tribal Court Advocate, as defined in Section 1-1-64

(i) [Digitizer's note: Not used / reserved].

(j) Juvenile Recording Tape Retention

(1) All proceedings before the Juvenile Court shall be electronically recorded by a digital or analog recording device. Tapes used in the recording of juvenile matters shall be retained by the Tribes' Tribal Court until termination of Juvenile Court jurisdiction or when the juvenile(s) reaches the age of eighteen (18), whichever is later, except for adoption proceedings. If a juvenile file involves more than one (1) minor, the related tape shall be retained until the youngest minor involved reaches the age of eighteen (18) or termination of Juvenile Court jurisdiction, whichever is later.

(2) Tapes used in the recording of adoption proceedings shall be retained indefinitely. Upon the sealing of an adoption file, the related tape(s) shall be sealed with the contents of the adoption file and shall be available only upon an order issued by a duly qualified judge of the Tribes' Tribal Court as set forth in 4-8-11.

2-15-3[Digitizer's note: Not used / reserved].

2-15-4 Reserved for Expansion

2-15-5 Jurisdiction

(a) The juvenile court has exclusive original jurisdiction over all proceedings established in this Code in which a child who is a member of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians, or is the biological child of a member of the Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indians, or is eligible for enrollment as a result of acts which are alleged to have occurred within the Territories of the Tribes:

(1) is alleged or adjudicated to be a Juvenile Offender;

(2) is alleged or adjudicated to be a dependent child;

(3) is alleged or adjudicated to be a child in need of supervision;

(4) termination of parental rights; or

(5) adoption proceedings.

(b) Transfer from State Court

The Juvenile Court shall have jurisdiction over any matter transferred to it by any state court pursuant to the Indian Child Welfare Act, 25 U.S.C. Sec. 1901, et seq. It shall not be necessary for a new petition or complaint to be filed if the pleadings filed in the state court action are sufficient to give notice of the matter.

2-15-6 Evidence

Unless otherwise specifically provided by the provisions of Title 4, all contested matters in the Juvenile Court shall be conducted in accord with the Rules of Evidence of the Tribal Court of CTCLUSI as set forth in Chapter 2-9.

2-15-7 Juvenile Offender and Child in Need of Supervision Procedures

Proceedings in the Juvenile Court regarding a minor alleged to be a Juvenile Offender shall be conducted in accordance with Sections 4-2-8 through 4-2-16. Procedures regarding a minor alleged to be a "child in need of supervision" shall be conducted in accordance with Section 4-2-17 through 4-2-20.

(a) Petition

Proceedings under the Juvenile Code alleging that a child is a juvenile offender or a child in need of supervision shall be instituted by a petition filed by the juvenile presenter on behalf of the Tribes and in the interest of the minor. The petition shall state:

(1) The name, birthdate and residence of the minor;

(2) The name and residence of the minor's parent, guardian or custodian;

(3) A brief summary of the facts that bring the child within the jurisdiction of the court, including a citation to the Tribal Code provision or other law which the minor is alleged to have violated; and

(4) If the minor is in detention or shelter care, the place of detention or shelter care and the time he/she was taken into custody.

(b) Setting of Hearing

Upon receipt of a petition alleging that a child is a juvenile offender or a child in need of supervision, the Juvenile Court shall set a date for the hearing which shall not be more than ten (10) days after the Juvenile Court receives the petition from the prosecuting attorney, if the minor is in custody or shelter care, or not more than thirty (30) days if the minor is not in custody or shelter care.

(c) Summons

At least five (5) days prior to the adjudicatory hearing, the Juvenile Court shall issue summons to:

(1) The minor; and

(2) The minor's parent, guardian or custodian

The summons shall contain the name of the Court, the title of the proceedings, and the date, time and place of the hearing. A copy the petition shall be attached to the summons. The summons shall be delivered personally by a tribal law enforcement officer or appointee of the Juvenile Court. If the summons cannot be delivered personally, the Court may deliver the summons by certified mail. If a person who has been issued a summons fails to appear at the hearing, that person may be held in contempt of Court.

2-15-8 Dependent Child

Proceedings in the Juvenile Court regarding a minor alleged to be a Dependent child care shall be conducted in accordance with Chapter 4-4, Juvenile Dependency, of this code.

2-15-9 Termination of Parental Rights

(a) Purpose

Parental rights to a child may be terminated by the Juvenile Court according to the procedures in Chapter 4-9.

(b) Petition

Proceedings to terminate parental rights shall be instituted by a petition filed by a Child Welfare officer on behalf of the Tribes or by the parents or guardian of the child. The petition shall state:

(1) The name, birthdate and residence of the minor;

(2) The name and residence of the minor's parent, guardian or custodian;

(3) If the child is in detention or shelter care, the place of detention or shelter care and the time he/she was taken into custody;

(4) Reasons for requesting termination.

(c) Setting of Hearing

Upon receipt of the petition, the Juvenile Court shall set a date for the termination hearing which shall be not more than twenty (20) days after the Juvenile Court receives the petition from the officer. The hearing may be continued upon motion of the officer by reason of the unavailability of material evidence or witnesses and if the Juvenile Court finds the officer has exercised due diligence to obtain the material or evidence and reasonable grounds exist to believe that the material or evidence will become available.

2-15-10 Confidentiality of Records

(a) All records held by the court or the legal custodian in cases under the jurisdiction of the Juvenile Court shall be maintained in a confidential manner. Inspection of the records shall be permitted by the following persons:

(1) a party to the proceeding,

(2) an auditor duly appointed by the Federal Government for compliance with conditions on the receipt of funds.

(b) Any other person may file a request with the court for inspection of the record. The request shall be made on a form provided by the court and shall include:

(1) the name and professional affiliation of the person requesting access,

(2) the purpose of the request

(3) the proposed use of the records, including any proposed distribution or publication of the records or information contained therein.

(c) The court shall provide notice of a request for inspection of records to all parties or their attorneys or spokespersons by telephone. If a party cannot be reached by telephone and does not have a designated attorney or spokesperson, the court shall send notice of the request by first class mail to the party at the last known mailing address. The court shall not issue an order regarding the request until two (2) days after completion of telephone notification or five (5) days after mailing of notice, whichever is later.

(d) Any party objecting to the request may file a written objection with the court prior to the expiration of the time for ruling, as set forth above.

(e) At the expiration of the time period set forth in subsection (c) above, the court may rule based on any written submissions, or may set a hearing on the matter.

(f) In ruling on a request for inspection of the record, the court shall balance the right of privacy of the child, the parents and all other parties against the need of the requesting party to inspect the record.

(g) Any order for inspection of the Juvenile Court record may:

(1) limit the record to be viewed,

(2) redact names or other information from specific documents to be viewed;

(3) include a protective order delineating the right to copy, and the extent to which the records may be distributed or published.

(h) A violation of this section or any other section of the Juvenile Code related to confidentiality of tribal Juvenile records is punishable by contempt.

2-15-11 Law Enforcement Records.

(a) Law enforcement records and files concerning a child shall be kept separate from the records and files of adults.

(b) All law enforcement records and files shall be confidential and shall not be open to inspection to any but the following:

(1) the child;

(2) any parent, guardian, or custodian of the child;

(3) the Tribal Judge and Juvenile Court staff;

(4) any counsel who has appeared in the case;

(5) any person involved in a peacegiving session involving the case; or

(6) the Juvenile Court Coordinator.

2-15-12 Rule 14 Sealing of Juvenile Court Records and Law Enforcement Records.

When a child who has been the subject of any proceeding before the Juvenile Court attains his or her eighteenth (18) birthday, and all matters in the court have been terminated, or the child has died, the Juvenile Court Judge shall order the Clerk of the Court of the Juvenile Court to seal both the court records and the law enforcement records.

APPENDIX A - LEGISLATIVE HISTORY AND EDITORIAL CHANGES

JUVENILES - PURPOSE AND CONSTRUCTION

LEGISLATIVE HISTORY AND EDITORIAL CHANGES

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians enacted the Juveniles - Purpose and Construction Ordinance, Resolution No. 05-094, Ordinance No. 065, in a regular Tribal Council meeting on October 9, 2005. Vote was 7 (for), 0 (against) and 0 (abstaining).

The Tribal Council of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians approved the Juveniles - Purpose and Construction Ordinance, Resolution No. 05-037, Ordinance No. 065, in a regular Tribal Council meeting on May 15, 2005. Vote was 5 (for), 0 (against) and 0 (abstaining).

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