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Revised: April 15, 2003
4-3-102. 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.
4-3-104. Validity and effect of judgment. (1) The requisites of a
valid judgment are
(a) adequate notice and an opportunity to be heard by persons whose interests are to be adjudicated,
(b) the court must have territorial jurisdiction, and
(c) the court must have subject matter jurisdiction.
(2) 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.
(3) A trial court determination of territorial jurisdiction is conclusive if raised and adjudicated.
(4) 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.
(5) 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) A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.
(3) 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, unless 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 3 days prior to the hearing on such application.
(4) 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.
(5) 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.
(6) No judgment by default shall be entered against the Confederated Salish and Kootenai Tribes or an official or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court.
4-3-107. Offer of judgment. At any time more than 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 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) 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.
(3) The judgment book and the docket are open for public inspection during office hours of the Clerk of Court at no charge.
4-3-110. Docketing of judgment--period of lien. (1) 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.
(2) 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 10 years, whichever first occurs. The judgments and court-ordered restitution referenced in Section 4-3-316(2)(b) of this Code are exempt from such time limitation.
4-3-202. 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) 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.
(3) The federal judgment may not be executed upon by the judgment creditor earlier than 30 days after the date of mailing the notice of filing.
(4) If, during the 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.
(1) 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
(2) have attached an affidavit attesting to the existence of:
(a) adequate notice and an opportunity to be heard by persons whose interests were adjudicated, and
(b) proper jurisdiction over the parties and the subject matter in the court issuing the judgment.
(2) 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.
(3) 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.
4-3-207. 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.
4-3-301. Time limit for issuing execution.
(1) The party in whose favor judgment is given may, at any time within 10 years after the entry thereof, have a writ of execution issued for its enforcement.
(2) When the judgment is for the payment of child support, the party in whose favor the judgment is given may, at any time within 10 years after the termination of the support obligation or within 10 years from entry of a lump-sum judgment or order for support arrears, whichever is later, have a writ of execution issued for its enforcement.
4-3-303. 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:
(1) 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.
(2) 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) The person so paying or contributing is entitled to enforce contribution or repayment if, within 10 days after the payment, he or she files with the Clerk of the 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.
4-3-305. Methods of enforcement. (1) When the judgment is for money
or the possession of nonexempt real or personal property, it may be enforced
by a writ of execution.
(2) 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 of the Tribal Police to execute the judgment and apply the proceeds as the judgment directs.
(3) When the judgment requires the performance of any other act than those designated in subsections (1) and (2) 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.
(1) the name, address, and telephone number(s) of the applicant,
(2) 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,
(3) 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,
(4) 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,
(5) a copy of the judgment,
(6) a form of the writ, and
(7) evidence of payment of a fee of $75 to the Clerk of the Tribal Court upon the filing of the application.
4-3-307.
Execution Upon Property Subject to a Security Interest
(1) Notice to Secured Party. A judgment creditor may execute upon personal property of the judgment debtor that is subject to a security interest but before any such property may be taken on execution the judgment creditor must serve written notice upon the secured party under any security agreement of record of the judgment creditor's intent to satisfy a judgment of said creditor against property of the debtor. The notice may be served by U.S. Mail directed to the secured party's last known address appearing of record or by personal service. Such notice must state the address and telephone number of the judgment creditor or its counsel of record and request that the secured party file or serve an affidavit within 15 days showing the amount of indebtedness then actually due and owing to the secured party; the amount of the original obligation for which the security agreement was given as security; all advancements 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 files an affidavit as requested in the office of the filing officer with whom the financing statement covering the security agreement is filed or serves such affidavit directly upon the judgment creditor or its counsel of record by US Mail directed to the address contained in the notice received from the judgment creditor, before the judgment creditor may execute upon the personal property subject to the security interest, the officer levying the writ must pay or tender to the secured party the amount of the security agreement debt then remaining due and unpaid or must deposit such amount with the filing officer with whom the financing statement covering the security agreement is filed payable to the order of the secured party.
(2) Duty of Secured Party. The secured party under any security agreement of record shall, upon 15 days' notice in writing served upon him in the manner as described in paragraph (1) above by any judgment creditor seeking to satisfy a judgment, is required to file an affidavit in the office where the financing statement covering the security agreement is filed showing the amount of the indebtedness then actually due and owing to the secured party; the amount of the original obligation for which the security agreement was given as security; all additional advancements 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 15 days from the service of any notice in writing to file or serve the required affidavit in the manner as described in paragraph (1) above, the security agreement shall be of no force or effect against such judgment creditor upon the taking on execution of any property subject to the security agreement.
(3) 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.
(1) be issued in the name of the Confederated Salish and Kootenai Tribes, sealed with the seal of the Tribal Court and subscribed by a judge;
(2) be directed to the Chief of the Tribal Police, the Tribal Records Manager, or the employer of the judgment debtor, as prescribed in section 4-3-311;
(3) 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;
(4) describe in detail the property to be executed upon;
(5) require the Chief of the Tribal Police, the Tribal Records Manager or the employer of the judgment debtor, as appropriate, to act substantially as provided in Sections 4-3-310 and 4-3-312;
(6) contain directions to the levying officer as provided in Sections 4-3-316 and 4-3-317, or as may be required to complete the execution pursuant to law; and
(7) have copies of Sections 4-3-316 and 4-3-317 attached for presentation to the judgment debtor at the time of levying.
(2) 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) 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.
(3) 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.
(4) 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) 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 of the Tribal Police.
(3) 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 4-3-312(3) of the CSKT Laws Codified and 15 USC Sec. 1673.
(2) If the levying officer is the Tribal Records Manager, where the writ is issued at least 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 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. In the event of multiple competing writs, the Tribal Records Manager shall prioritize and execute against the Tribal member's per capita payments according to Section 4-3-316(2) below. The Tribal Records Manager shall retain all writs issued against per capita payments until they are paid in full or until the Tribal member is no longer entitled to receive per capita payments.
(3) 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:
(a) Except as provided in subsections (b) and (c), 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:
(i) the amount by which his or her disposable earnings for the week exceed 30 times the federal minimum hourly wage in effect at the time the earnings are payable; or
(ii) 25% of his or her disposable earnings for that week.
(b) The restrictions of subsection (a) 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.
(c)
(i) 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 (b) of this Section may not exceed:
(ii) 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
(iii) 60% of the judgment debtor's disposable earnings for that week if he is not supporting a spouse or dependent child.
(d) For purposes of this subsection, the definitions of earnings, disposable earnings, and garnishment are as set for in 15 U.S.C. Section 1672.
4-3-313. Security for costs when property seized. If the Chief of
Police 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) A writ of execution issued to the Tribal Records Manager shall be made returnable to the Clerk of the Court not more than 30 days after the judgment is satisfied or within 6 years from the date of its issuance, whichever shall earlier occur.
(3) 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 the Court not more than 30 days after the judgment is satisfied or within two years from the date of its issuance, whichever shall earlier occur.
4-3-316. Property subject to execution -- limitations and exemptions.
(1) 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 4-3-317, are liable to execution subject to the limitations
set out in subsections (2) and (3) of this subsection.
(2) 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 assignment by the member unless the payment is subject to execution and levy by the Tribal Records Manager in the following priority of circumstances:
(a) on a judgment and order for child support;(b) on a judgment rendered in favor of the Confederated Salish and Kootenai Tribes or any Tribal entity;
(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; or
(d) on a valid judgment predating August 11, 1995, with a writ of execution issued as provided in Sections 4-3-308 and 4-3-309, or with a prior writ of execution and creditor's accounting as provided in the Resolution of the Tribal Council 95-200, dated August 11, 1995, which Resolution is superseded and repealed by this Ordinance.
(3) Only those earnings of a judgment debtor subject to garnishment as provided in Section 4-3-312 are liable to execution.
(1) any assets or property, real or personal, within the Flathead Indian Reservation, to which the legal title is held by the United States of America for the benefit of the Confederated Salish and Kootenai Tribes or any individual Indian;
(2) 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 the Confederated Salish and Kootenai 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 Reservation;
(3) professionally prescribed health aids for the judgment debtor or a dependent of the judgment debtor;
(4) personal property recognized by the Tribal Court or the Tribal Council as having significant spiritual, religious, or traditional value;
(5) benefits the judgment debtor has received or is entitled to receive under
(a) federal social security
(b) federal, state or Tribal public assistance,
(c) veterans' disability programs
(d) unemployment compensation or workers' compensation programs,
(6) a home,
(7) maintenance and child support
(8) the portion of a wage remaining after once being garnished;
(9) the judgment debtor's interest, not exceeding a value of $1,000 in any item or $5,000 in the aggregate, in household furnishings and goods, appliances, jewelry, wearing apparel, books, firearms and other sporting goods, animals, feed, crops, and musical instruments,
(10) the judgment debtor's interest, not to exceed $2,500 in one motor vehicle, and
(11) the judgment debtor's interest, not to exceed $3,000 in aggregate value, in any implements, professional books, and tools, of the trade of the judgment debtor or a dependent of the judgment debtor.
Chapters 1 through 3 of this Title apply to all civil actions filed on or after June 3, 1996, to judgments in proceedings pending on that date, and to post judgment procedures and limitations, and enforcements on judgments outstanding on that date.
CSKT Laws Codified January 1, 2000
(Rev. 4-15-03)