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2004
Chapter 1 – Establishment and Authority
Sec.
3-01.010 Authority
3-01.020 DefinitionsSubchapter I - Tribal Court
3-01.030 Power Vested
3-01.040 Scope
3-01.050 Jurisdiction
3-01.060 Rules of Court - ProceduresSubchapter II - Judges
3-01.070 Composition of Tribal Court
3-01.080 Composition of Court of Appeals
3-01.090 Appointment, Compensation, and Term
3-01.100 Eligibility
3-01.110 Sessions of Court
3-01.120 Acting Chief Judge
3-01.130 Conflict of Interest
3-01.140 Disqualification of Judge
3-01.150 Judicial Cooperation
3-01.160 Removal of JudgesSubchapter III - Juries|
3-01.170 Eligibility of Jurors
3-01.180 Selection of Jurors
3-01.190 Excuse From Service
3-01.200 Impaneling Jurors
3-01.210 FeesSubchapter IV - Witnesses
3-01.220 Compelling Witnesses to Appear; Subpoenas
3-01.230 Swearing in WitnessesSubchapter V - Spokespersons
3-01.240 Spokespersons Appearing in Tribal Court
3-01.250 Tribal Court Bar - Admissions
3-01.260 Spokesperson's Oath
3-01.270 Tribal Court Bar Roster
3-01.280 Tribal Court Bar - Disbarment
3-01.290 Contempt of Court
3-01.300 AppealSubchapter VI - General Rules of Court
3-01.310 Conduct
3-01.320 Time
3-01.330 No Discussion With Jurors
3-01.340 No Discussion With JudgeSubchapter VII - Clerk and Records
3-01.350 Clerk
3-01.360 Records
3-01.370 Copies of LawsSubchapter VIII - Repealer & Severability
3-01.380 Repealer
3-01.390 Severability
Legislative History
Enacted:
Repealed and Superseded:
[Ed. Note. Ordinance 1 is undated, and adopts the Law and Order Regulations approved by the Secretary of the Interior November 27, 1935 as part of the fundamental law governing the Swinomish Reservation. The referenced “regulations” are not located in Tribal records.]
[Ed. Note. The Swinomish Indian Senate requested the exercise of limited criminal and civil jurisdiction by the State of Washington over the Swinomish Indian Reservation pursuant to Congressional Public Law 280, in Swinomish Indian Senate Resolution 125 (6/5/62); the request was revised by Swinomish Indian Senate Resolution 130 (8/21/62). Retrocession of criminal jurisdiction was completed by Swinomish Indian Resolution 88-3-13 (3/17/88).]
3-01.010 Authority.
This Chapter is enacted pursuant to authority provided by Article VI, Section 1(b), (i), (k), (l), (o), (p), (r) and (s), and Article VI, Section 3 of the Swinomish Constitution.
[History] Ord. 198 (11/10/03).
3-01.020 Definitions.
Unless specifically stated elsewhere in this Chapter, the meaning of the terms used in this Chapter shall be as follows:
(A) “Person” means any natural person, corporation, trust, unincorporated association, partnership, and federal, state or local governments, agencies or subdivisions thereof.
(B) “Police,” “tribal police” and “officer” means qualified tribal police personnel or police officers of the Bureau of Indian Affairs as established in Title 2, Chapter 8 of the Swinomish Tribal Code.
(C) “Reservation” means all the lands and waters within exterior boundaries of the Swinomish Indian Reservation.
(D) “Senate” means the Swinomish Indian Senate, the governing body of the Swinomish Indian Tribal Community.
(E) “Tribe” or “Tribal Community” means the Swinomish Indian Tribal Community, a federally recognized Indian Tribe organized pursuant to Section Sixteen of the Indian Reorganization Act of 1934.
(F) “Tribal Court” or “Court” means the Swinomish Tribal Court.
[History] Ord. 198 (11/10/03).
Subchapter I - Tribal Court
3-01.030 Power Vested.
The judicial power of the people of the Swinomish Reservation shall be vested in the Swinomish Tribal Court. When jurisdiction is vested in the courts, all the means necessary to exercise judicial power is also given. In the exercise of this jurisdiction, if the course of proceeding is not specified in this Title, any suitable process may be adopted which may appear most in keeping with the spirit of tribal law.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.040 Scope.
The Judicial powers shall extend to all cases and controversies in law and equity arising under the laws of the Tribe.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.050 Jurisdiction.
Except as limited or defined elsewhere by the Swinomish Constitution or the Swinomish Tribal Code, the jurisdiction of the Tribal Court shall be as follows:
(A) Subject Matter Jurisdiction.
(1) Generally. Subject to the territorial limits set forth below, the Court’s subject matter jurisdiction shall be limited only by express restrictions in the Constitution and Bylaws of the Swinomish Indians of the Swinomish Reservation and Federal law applicable to the Tribe.
(2) Territorial Limits.
(a) Civil Matters. The Court’s subject matter jurisdiction shall be limited to civil matters that arise within the exterior boundaries of the Reservation or lands outside the boundaries of the Reservation held in trust by the United States for the Tribe or tribal members.
(b) Criminal Matters. The Court’s subject matter jurisdiction shall be limited to criminal matters that arise within the exterior boundaries of
the Reservation.(c) Fishing/Hunting Matters. Notwithstanding subsections (a) and (b) above, the Court’s subject matter jurisdiction in criminal and civil matters that involve or are related to fishing, hunting and gathering activities, shall be limited to all usual and accustomed fishing grounds and stations of the Tribe, all open and unclaimed lands reserved by treaty for hunting or gathering and on such other lands and waters as is necessary for access to such fishing, hunting and gathering sites.
(B) Personal Jurisdiction.
(1) The Court’s personal jurisdiction shall be limited only by express restrictions in the Constitution and Bylaws of the Swinomish Indians, the Swinomish Tribal Code, and Federal laws applicable to the Tribe.
(2) The Tribal Court shall have criminal jurisdiction on the Reservation over:
(a) All tribal members; and
(b) All other Indians in accordance with applicable Federal law.
(3) Implied Consent to Jurisdiction. Entrance by any person or his or her property into the Reservation or Tribal Court jurisdiction as defined in this Code, shall be deemed equivalent to and construed to be a consent to the civil jurisdiction of the Tribe and the Tribal Court, and shall further be deemed a consent to service of summons or process by registered mail with return receipt requested at his or her last known address; provided, however, that criminal jurisdiction of the Tribal Court shall not extend to non-Indians.
(4) Acts Submitting Person to Jurisdiction of Tribal Court. Subject to any express limitations of jurisdiction stated in the Swinomish Constitution or Swinomish Tribal Code, the Court shall have jurisdiction over:
(a) Any person residing or present within the Reservation or lands outside the boundaries of the Reservation held in trust by the United States for
the Tribe or tribal members;(b) Any person who transacts, conducts, or performs any business or activity within the Reservation by being present on the Reservation or
by mail, phone, broadcast, or cable either in person or by an agent or representative;(c) Any person who owns, uses, leases or possesses any real or personal property situated within the Reservation, for any civil cause of action
arising from such ownership, use or possession;(d) Any person who commits a tortious act or engages in tortious conduct within the Reservation;
(e) Any person who damages a natural resource of the Tribe or any individual member of the Tribe; and
(f) Any person who commits a civil infraction as currently defined in the Swinomish Tribal Code, or as may otherwise be adopted by the Tribe.
(C) Jurisdiction of Appellate Court. The Court of Appeals shall have jurisdiction to hear and determine appeals from final judgments, rulings that substantially alter the course of trial court proceedings, sentencing and disposition orders of the Tribal Court.
[History] Ord. 198 (11/10/03); Ord. 154 (6/4/02); Ord 94 (5/5/92); Ord. 87 (1/7/92).
3-01.060 Rules of Court - Procedures.
The time and place of court sessions and all other details of judicial procedure not prescribed by this Title shall be governed by Rules of Court promulgated as herein provided. It shall be the duty of the judges of the Tribal Court to make recommendations to the Senate for enactment or amendment of such Rules of Court as they believe to be in the interests of improved judicial procedures. In cases of failure of the Senate to establish or approve Rules of Court, the judges shall have authority to establish such rules. Rules of Court, enacted or amended in the above manner, will be made a part of this Title.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
Subchapter II - Judges.
3-01.070 Composition of Tribal Court.
The Tribal Court shall consist of one Chief Judge and associate judges as appointed by the Senate.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.080 Composition of Court of Appeals.
The Tribal Court of Appeals shall consist of a panel of three (3) qualified judges. The judge whose decision is being appealed shall not select or be a member of the panel.
[History] Ord. 198 (11/10/03); Ord. 94 (5/5/92).
3-01.090 Appointment, Compensation, and Term.
Each judge shall be appointed by the Senate and shall be compensated on a basis determined by the Senate. Each judge appointed by the Senate shall hold office for a period of four (4) years unless sooner removed for cause as provided in this Chapter, or by reason of the abolition of the office, but shall be eligible for re-appointment.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.100 Eligibility.
To be eligible to serve as a judge of the Swinomish Tribal Court, a person must:
(A) Be twenty-five (25) years or older;
(B) Have never been convicted of a felony or within one (1) year past of a misdemeanor; and
(C) Be of high moral character.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.110 Sessions of Court.
Sessions of the Tribal Court for the trial of cases shall be held by the chief judge, or in case of his disability, absence, or unavailability, by an associate judge, Provided, however, that an associate judge may be called in to hear cases at any time for any reasonable cause by the chief judge or by the Chair of the Senate.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.120 Acting Chief Judge
The chief judge of the Tribal Court shall designate, in writing, one associate judge to act as chief judge whenever the chief judge is absent from the Reservation, is on vacation, is ill, or is otherwise unable to perform the duties of the office. The acting chief judge may exercise all the powers of the chief judge. The duly appointed chief judge may at any time change the designation of acting chief judge. In the event that the chief judge fails to designate a judge to act in his or her absence, the Senate shall designate an associate judge as acting chief judge.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.130 Conflict of Interest.
No judge shall be qualified to act as such in any case wherein he or she has
any direct interest. Should it be found that all judges of the Court have a
direct interest in any case, the Senate or a person(s) designated by the Senate
shall exercise judicial power. Such designation shall be
formalized by resolution.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.140 Disqualification of Judge.
A defendant, or other party, to any legal proceeding may change the assignment of his or her case from one judge to another upon filing an affidavit of prejudice with the Court, giving satisfactory reason for such change. Such affidavit shall be in writing and must be filed with the Court before the judge has made any discretionary ruling and before trial is commenced. The initial judge shall pass on the adequacy of the affidavit of prejudice and enter the appropriate order, either hearing the case or reassigning it to another judge. Such an order may be appealed immediately under Chapter 4 of this Title, and all further actions in such a case, except requests for emergency restraining orders, will be stayed pending the outcome of that appeal. Only one such change shall be allowed.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.150 Judicial Cooperation.
All judges and personnel of the Court shall cooperate with all Federal, state, county and municipal agencies when such cooperation is consistent with tribal law, but shall ever bear in mind that their primary responsibility is to the Tribe.
[History] Ord. 198 (11/10/03); Res. 78-8-540 (8/4/78); Ord. 32 (3/4/75).
3-01.160 Removal of Judges.
Judges may be suspended, dismissed or removed for cause by the Senate. Copies of a written statement setting forth the facts and the reasons for such proposed action must be delivered to the judge and to members of the Senate at least ten (10) days before the meeting of the Senate before which the judge is to appear. A public hearing shall then be held by the Senate wherein the accused judge shall be given an adequate opportunity to answer any and all charges. Causes judged sufficient for removal shall involve, by way of example and not limitation: excessive use of intoxicants; immoral behavior; conviction of any offense other than minor traffic violations; use of official position for personal gain; desertion of office; or failure to perform duties. The decision of the Senate shall be final.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
Subchapter III - Juries.
3-01.170 Eligibility of Jurors.
(A) A person shall be eligible to serve as a juror in Tribal Court if he or she:
(1) Is eighteen (18) years of age or older;
(2) Has never have been convicted of a felony or having once been convicted of a felony has had his or her civil rights restored;
(3) Is not holding the office of tribal judge, tribal police officer or Swinomish Indian Senator at the time the jury list is prepared or at the time of trial; and
(4) Is either;
(a) A member of the Swinomish Tribe residing in Skagit County; or
(b) A non-member Indian residing within the exterior boundaries of the Reservation.
(B) The Tribal Court judge may excuse eligible jurors from jury duty only upon good cause shown.
[History] Ord. 198 (11/10/03); Ord. 149 (10/2/01); Res. 95-2-17(2/7/95); Ord. 94 (5/5/92); Ord. 89 (2/6/92).
3-01.180 Selection of Jurors.
(A) The Clerk of the Court shall prepare a list of eligible jurors to be approved by the Senate each year.
(B) It shall be the duty of the Chief Judge to ensure a fair and random selection of jurors from the list of eligible jurors. The judge shall review the process from time to time and shall cause to be kept on file with the court clerk a description of the jury selection process. Any person who desires may inspect this description in said office.
(C) Pursuant to the selection process established by the Court, the Clerk of the Court shall issue and cause to be served a jury summons upon each eligible juror selected. Jury summons shall be delivered to the witness by a tribal law enforcement officer or by a person of the age of eighteen (18) or more years who has no stake in the case.
(D) The jury summons shall notify the person being summoned to appear in court on the date set for the beginning of the trial, one (1) hour before the time set for the trial. Failure of a person served with a jury summons to appear shall constitute contempt of court and the summons shall contain a warning to that effect. Any person to whom jury service would be a severe hardship may be excused from service by a judge, but such excuse from jury duty shall be disfavored.
(E) On the day of the trial, the clerk shall deposit in a ballot box ballots containing the names of each of the summoned potential jurors who have appeared. Those persons whose names are in the ballot box shall be known as the jury panel. After the judge calls the court to order, he or she shall draw from the jury panel ballot box, at random, the names of fourteen (14) members of the jury panel, who shall then be seated in the jury area. If the ballots are exhausted before the jury is completed, the court shall order to be drawn immediately, in the manner provided for other drawings of jurors, but without notice and without the attendance of officers other than the clerk, as many qualified persons as necessary to complete the jury. The clerk shall make a list of the names in the order in which they were called.
[History] Ord. 198 (11/10/03); Ord. 149 (10/2/01); Res. 95-2-17(2/7/95); Ord. 94 (5/5/92); Ord. 89 (2/6/92).
3-01.190 Excuse From Service.
(A) It shall be the duty of the Court to excuse from further jury service any juror who, in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.
(B) Any person who is closely related by blood or marriage to any of the parties, counsel or witnesses appearing in the particular matter, or has knowledge of the facts of the particular case, shall be excused from further jury service. For purposes of this section, “closely related” shall mean sibling, parent, child, grandparent and spouse. The court may presume sufficient bias exists to excuse a juror because of a relationship as a first degree cousin, aunt or uncle.
[History] Ord. 198 (11/10/03); Ord. 149 (10/2/01); Res. 95-2-17(2/7/95); Ord. 94 (5/5/92); Ord. 89 (2/6/92).
3-01.200 Impaneling Jurors.
Jurors shall be impaneled as set forth in FTC 3.02.220, Rules of Civil Procedure, and 3.03.380, Rules of Criminal Procedure, or by Rule of Court.
[History] Ord. 198 (11/10/03); Ord. 149 (10/2/01); Res. 95-2-17(2/7/95); Ord. 94 (5/5/92); Ord. 89 (2/6/92).
3-01.210 Fees.
Every person required to attend court for selection or service as a juror shall be entitled to a fee of twenty-five dollars ($ 25.00) a day for each day his or her services are required in court, ten dollars ($10.00) if the juror is called but his or her services are not required, plus mileage at a rate not to exceed that set by the United States Treasury Department for traveling to and from the court.
[History] Ord. 198 (11/10/03); Ord. 149 (10/2/01); Res. 95-2-17(2/7/95); Ord. 94 (5/5/92); Ord. 89 (2/6/92).
Subchapter IV - Witnesses
3-01.220 Compelling Witnesses to Appear; Subpoenas.
(A) Any party to a lawsuit or other proceedings in Tribal Court shall have the right to compel witnesses to appear in court and testify concerning the matter.
(B) Upon request of a party, or on the Court’s own motion, the Court may issue a subpoena commanding a named person to appear in court and/or to bring certain evidence or documents to court.
(C) All subpoenas shall be signed by a judge, except as otherwise provided by a Rule of Court.
(D) Every subpoena shall be in writing and shall include the name of the Court, the Court's seal, the names of all parties, the time and place that the witness must appear, and a clear and detailed description of any documents or evidence that the witness is required to bring.
(E) Subpoenas shall be delivered to the witness by a tribal law enforcement officer or by a person of the age of eighteen (18) or more years who has no stake in the case. The subpoena must be delivered by giving it to the witness directly.
(F) A person who delivers a subpoena shall promptly file with the clerk a copy of the subpoena as proof of service.
(G) Failure of a witness to obey a subpoena shall be grounds for holding the witness in contempt of court.
(H) A witness who responds to a civil subpoena shall be entitled to a fee of twenty-five dollars ($25) for each day or partial day that he or she must appear in court. The judge may, in addition, order that the party calling the witness pay the witness reasonable and necessary travel and living expenses incurred in responding to the subpoena. Witnesses shall be offered full payment of their fees for one day's service at the time they are served with the subpoena. The party requesting the issuance of a subpoena shall tender the fees to the witness upon service of the subpoena. When the subpoena is issued on behalf of the Tribe or an officer or agency thereof, fees and mileage need not be tendered.
[History] Ord. 198 (11/10/03); Ord. 74 (5/5/88).
3-01.230 Swearing in Witnesses.
All witnesses shall be administered an oath by the Court as follows: "Do you swear (or affirm) to tell the truth in the matter now before you?"
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
Subchapter V - Spokespersons
3-01.240 Spokespersons Appearing in Tribal Court.
Any person appearing in Tribal Court shall have the right to a spokesperson at his or her own expense to assist in presenting the case, provided that such spokesperson shall first have been admitted to the Tribal Court Bar. The Court may appoint a spokesperson to assist any person if, in the discretion of the court, it appears necessary to protect such person's rights. A spokesperson need not be an attorney.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.250 Tribal Court Bar - Admissions.
To be admitted to the Tribal Court Bar, a person must:
(A) Be of good moral character; and
(B) Sign and take the Spokesperson's Oath.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.260 Spokesperson's Oath.
The oath that all persons desiring to appear as spokesperson in Tribal Court shall take is as follows:
"Spokesperson's Oath"
Swinomish Indian Reservation, ss.
I, _______________ do solemnly swear:
(1) I have read the applicable provisions of the Swinomish Tribal Code and am familiar with their contents.
(2) I will support the Constitution of the Swinomish Tribe in all respects.
(3) I will abide by the rules established by the Senate and the Swinomish Tribal Court.
(4) I will at all times maintain the respect due the Tribal Court and its officers.
(5) I will not counsel or speak for any suit or proceeding that shall appear to me to be unjust, or any defense except such as I believe to be honestly debatable under the law of the Swinomish Tribe unless it be in defense of a person charged with a public offense.
(6) I will employ such means only as are consistent with truth and honor and will never seek to mislead a judge or jury by any false statements.
(7) I will abstain from all offensive conduct in Tribal Court.
Subscribed and sworn to before me this ____ day of ______________ , 20___
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.270 Tribal Court Bar Roster.
The Clerk of the Court will maintain a roster of all spokespersons admitted to practice before the Tribal Court. The clerk will also keep on file the signed oaths of all such persons.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.280 Tribal Court Bar - Disbarment.
Any spokesperson violating the Spokesperson's Oath shall be subject to disbarment. The Tribal Court judge shall prepare in writing a complaint against such spokesperson stating reasons for disbarment. Within ten (10) days of receipt of such complaint, the Court of Appeals shall hold a hearing at which time the spokesperson involved may present witnesses and a defense of his or her actions. The decision of the Court of Appeals shall be final.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.290 Contempt of Court.
Any spokesperson failing to maintain the respect due the Tribal Court or engaging in offensive conduct in the courtroom shall be deemed guilty of civil contempt of court and subject to immediate sanction by the Tribal Court judge.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.300 Appeal.
Any person denied admission to the Tribal Court Bar or any spokesperson found guilty of contempt of court by the Tribal Court judge may appeal to the Court of Appeals. Such person or spokesperson shall have the right to a hearing before such panel within ten (10) days of his denial or conviction and shall have the right to present a defense. The decision of a majority of the Court of Appeals shall be final.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
Subchapter VI - General Rules of Court
3-01.310 Conduct.
All court proceedings shall be conducted in a dignified and respectful manner. All persons addressing the court shall rise and shall speak in a clear and courteous manner.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.320 Time.
All trials shall be commenced at a designated time determined by the court with reasonable notice of such time being given to the parties.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.330 No Discussion With Jurors.
No person, including members of the court's staff, any of the parties or witnesses, or any other person shall discuss with any known juror any case pending before such juror, or which may come before such juror, either before or during the trial, and any juror who has any personal knowledge about the case or who has discussed it with any of the parties, witnesses, or court officials shall be excused by the judge.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.340 No Discussion With Judge.
No witness or party to any case shall under any circumstances either before or during trial attempt to discuss any case pending before the court with any of the judges except in open court and with either the clerk of the court or one of the other judges present and then shall under no circumstances attempt to influence the court's decision unless in the course of regular court proceedings.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
Subchapter VII - Clerk and Records
3-01.350 Clerk.
The Chief Judge, with the concurrence of the Senate, shall appoint a Clerk of the Court. The Clerk of the Court shall be under the supervision of the Chief Judge. The clerk shall render assistance to the trial court, to the Appellate Court, and to the police force of the Reservation. The clerk, serving in a neutral capacity and refraining from offering legal advice, may assist individual members of the Tribe in the drafting of complaints, answers, subpoenas, warrants, and any other documents incidental to the lawful function of the court. It shall be the further duty of the clerk to attend and to keep a record of all proceedings of the court, to administer oaths to witnesses, and to perform such other duties as the Chief Judge shall designate. The clerk, before entering upon his or her duties, shall, at tribal expense, post bond in an amount determined by the Senate, or shall be covered by the blanket bond provided for all tribal employees.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.360 Records.
The Tribal Court shall keep a record of all proceedings of the court. Such record shall reflect the title of the case, the names of the parties, the substance of the complaint, the names and addresses of all witnesses, the date of the hearing or trial, by whom conducted, the findings of the court or jury, and the judgment, together with any other facts or circumstances deemed of importance to the case.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
3-01.370 Copies of Laws.
The Tribal Court shall be provided with copies of the Swinomish Tribal Code, all Ordinances of the Senate, and such regulations as may be applicable to the conduct of the business of the court.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
Subchapter VIII - Repealer & Severability
3-01.380 Repealer.
This Chapter repeals and supersedes Ordinance 1, Ordinance 2, Ordinance 7, Ordinance 32, Ordinance 87 and Ordinance 154 and any inconsistent provisions of any prior ordinance or resolution.
[History] Ord. 198 (11/10/03).
3-01.390 Severability.
If any provision of this Ordinance or its application to any person or circumstance is held invalid, the remainder of this Title, or the application of the provision to other persons or circumstances shall remain in effect.
[History] Ord. 198 (11/10/03); Ord. 32 (3/4/75).
Chapter 2 - Rules of Civil Procedure
Sec.
3-02.010 Title
3-02.020 Authority
3-02.030 Definitions
3-02.040 Purpose and ScopeSubchapter I – General Rules of Civil Procedure
3-02.050 Limitations of Actions
3-02.060 Commencement of a Lawsuit; Complaints; Proof of Service; Filing Fee; Summons
3-02.070 Process
3-02.080 Computation and Extension of Time
3-02.090 Form of Pleading
3-02.100 Intervention
3-02.110 Disability of a Judge
3-02.120 Application of Formal and Informal Rules of Civil ProcedureSubchapter II – Informal Rules of Civil Procedure
3-02.130 Filing and Form of Court Papers
3-02.140 Oral Procedures
3-02.150 Amendment, Withdrawal, Dismissal of the Complaint
3-02.160 Defenses, Answers, Counterclaims
3-02.170 Preliminary Injunctions and Temporary Restraining Orders
3-02.180 Default Judgment
3-02.190 Discovery
3-02.200 Pretrial Conference
3-02.210 Motions
3-02.220 Jury Trials
3-02.230 Order of Trial
3-02.240 Burden and Standard of Proof; Jury Verdicts
3-02.250 Informal Rules of Evidence Governing Trials
3-02.260 Judgments
3-02.270 Proceedings after Judgment
3-02.280 CostsSubchapter III – Formal Rules of Civil Procedure
Subchapter III A – Pleadings and Motions
3-02.290 Service and Filing of Pleadings and Other Papers
3-02.300 Pleadings Allowed and Form of Motions
3-02.310 General Rules of Pleading
3-02.320 Pleading Special Matters
3-02.330 Signing of Pleadings
3-02.340 Defenses and Objections; When and How Presented; By Pleading or Motion; Motion for Judgment on Pleadings
3-02.350 Counterclaim and Cross-Claim
3-02.360 Third-Party Practice
3-02.370 Amended and Supplemental Pleadings
3-02.380 Pretrial Procedure; Formulating IssuesSubchapter III B – Parties
3-02.390 Parties Plaintiff and Defendant; Capacity
3-02.400 Joinder of Claims and Remedies
3-02.410 Joinder of Persons Needed for Just Adjudication
3-02.420 Permissive Joinder of Parties
3-02.430 Misjoinder and Nonjoinder of Parties
3-02.440 Interpleader
3-02.450 Class Actions
3-02.460 Derivative Actions by Shareholders
3-02.470 Actions Relating to Unincorporated Associations
3-02.480 Substitution of PartiesSubchapter III C – Discovery
3-02.490 General Provisions Governing Discovery
3-02.500 Supplementation of Responses
3-02.510 Signing of Discovery Requests Responses and Objections
3-02.520 Depositions before Action or Pending Appeal
3-02.530 Persons Before Whom Depositions May Be Taken
3-02.540 Stipulations Regarding Discovery Procedure
3-02.550 Depositions Upon Oral Examinations
3-02.560 Depositions Upon Written Questions
3-02.570 Use of Depositions in Court Proceedings
3-02.580 Interrogatories to Parties
3-02.590 Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes
3-02.600 Physical and Mental Examination of Persons
3-02.610 Requests for Admission
3-02.620 Failure to Make Discovery: SanctionsSubchapter III D – Trials
3-02.630 Jury Trial of Right
3-02.640 Trial By Jury Or By the Court
3-02.650 Assignment of Cases for Trial
3-02.660 Dismissal of Action
3-02.670 Consolidation; Separate Trials; Postponements
3-02.680 Witnesses; Evidence
3-02.690 Proof of Records
3-02.700 Determination of Foreign Law
3-02.710 Subpoena
3-02.720 Exceptions Unnecessary
3-02.730 Impaneling Jurors
3-02.740 Instructions to Jury; Objections; Arguments
3-02.750 Jury Verdicts; Special and General Verdicts and Interrogatories
3-02.760 Motion for a Directed Verdict
3-02.770 Findings By the Court
3-02.780 MastersSubchapter III E – Judgments
3-02.790 Judgments; Costs
3-02.800 Default
3-02.810 Summary Judgment
3-02.820 Declaratory Judgments
3-02.830 Entry of Judgment
3-02.840 New Trial; Amendment of Judgment
3-02.850 Relief from Judgment or Order
3-02.860 Harmless Error
3-02.870 Stay of Proceedings to Enforce a JudgmentSubchapter III F – Provisional and Final Remedies
3-02.880 Seizure of Person or Property
3-02.890 Injunctions
3-02.900 Security; Proceedings Against Sureties
3-02.910 Receivers
3-02.920 Deposits in Court; Security for Costs
3-02.930 Offer of Judgment
3-02.940 Execution
3-02.950 Judgment for Specific Acts; Vesting Title
3-02.960 Process in Behalf of and Against Persons Not PartiesSubchapter IV – Repealer and Severability
3-02.970 Repealer
3-02.980 Severability
Legislative History
Enacted:
Repealed or Superseded:
[Ed. Note. Ordinance 1, undated, adopts the Law and Order Regulations approved by the Secretary of the Interior on November 27, 1935 as part of the fundamental law governing the Swinomish Reservation. The referenced “regulations” are not located in tribal records.]
3-02.010 Title.
This Chapter shall be known and may be cited as the “Swinomish Rules of Civil Procedure.”
[History] Ord. 199 (11/12/03).
3-02.020 Authority.
This Chapter is enacted pursuant to authority provided by Article VI, Section 1(b), (i), (k), (l), (o), (p), (r) and (s), and Article VI, Section 3 of the Swinomish Constitution.
[History] Ord. 199 (11/12/03).
3-02.030 Definitions.
Unless specifically stated elsewhere in this Chapter, the meaning of the terms used in this Chapter shall be as follows:
(A) “Person” means any natural person, corporation, trust, unincorporated association, partnership, and federal, state or local governments, agencies or subsections thereof.
(B) “Police,” “tribal police” and “officer” means qualified tribal police personnel or police officers of the Bureau of Indian Affairs as established in Title 2, Chapter 8 of the Swinomish Tribal Code.
(C) “Reservation” means all the lands and waters within the exterior boundaries of the Swinomish Indian Reservation.
(D) “Senate” means the Swinomish Indian Senate, the governing body of the Swinomish Indian Tribal Community.
(E) “Tribe” or “Tribal Community” means the Swinomish Indian Tribal Community, a federally recognized Indian Tribe organized pursuant to Section Sixteen of the Indian Reorganization Act of 1934.
(F) “Tribal Court” or “Court” means the Swinomish Tribal Court.
[History] Ord. 199 (11/12/03).
3-02.040 Purpose and Scope.
(A) The Swinomish Rules of Civil Procedure shall consist of General Rules of Civil Procedure that apply to all civil matters filed in the Swinomish Tribal Courts, and the Informal Rules of Civil Procedure and Formal Rules of Civil Procedure that will be utilized as further directed by this Chapter. These rules shall govern all aspects of procedure in civil matters in the Swinomish Tribal Court, except as otherwise provided by tribal Law.
(B) The procedural provisions of the Swinomish Natural Resources Title shall govern all civil actions prosecuted under that Title. In the event of a conflict between particular provisions of the Natural Resources Title and these Rules of Civil Procedure, the Natural Resources Title shall apply, any conflicting provisions of this Chapter notwithstanding. To the extent that a procedural question is not answered by the Natural Resources Title, the relevant provisions of these Rules of Civil procedure shall be applied.
(C) The procedural provisions of the Eviction Procedures Code shall govern all civil actions prosecuted under that Chapter. In the event of a conflict between particular provisions of the Eviction Procedures Chapter and these Rules of Civil Procedure, the Eviction Procedures Chapter shall apply, any conflicting provisions of this Chapter notwithstanding. To the extent that a procedural question is not answered by the Eviction Procedures Chapter, the relevant provisions of these Rules of Civil Procedure shall be applied.
(D) In those situations where a specific Title or Chapter of the Laws of the Swinomish Indian Tribal Community provides specific procedural provisions, those provisions shall govern all civil actions prosecuted under that Title or Chapter. In the event of a conflict between the particular provisions of the specific Title or Chapter and these Rules of Civil Procedure, the specific rules of procedure shall apply, any conflicting provisions of this Chapter notwithstanding. To the extent that the procedural question is not answered by the specific Title or Chapter, the relevant provisions of these Rules of Civil Procedure shall be applied.
[History] Ord. 199 (11/12/03); Ord. 84 (11/5/91); Ord. 74 (5/5/88).
Subchapter I – General Rules of Civil Procedure
3-02.050 Limitations of Actions.
(A) A civil action in Tribal Court must be started:
(1) In the case of torts and oral contracts, and actions not otherwise provided for herein, within three (3) years;
(2) In the case of a cause of action based upon statute, within one (1) year;
(3) In the case of written contracts, six (6) years.
(4) In the case of actions or claims arising from a Title or Chapter of the Swinomish Tribal Code, any specific limitation period stated therein shall apply, any conflicting provisions of this Section notwithstanding.
(B) The time within which a civil lawsuit must be filed shall be counted from the date on which the injury or breach was first known to the injured party or should have been known to a reasonably aware person in the position of the injured party.
(C) For the purpose of meeting the deadline set in this Rule, a civil suit is started when the complaint is filed with the clerk of the court.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.060 Commencement of a Lawsuit; Complaints; Proof of Service; Filing
Fee; Summons.
(A) A civil action is commenced by filing a complaint with the Court.
(B) Every person who files a civil lawsuit shall pay a filing fee to be established by the Court.
(C) After the plaintiff has filed the complaint, the clerk shall issue a summons directing the defendant to answer the complaint within twenty (20) days of the time the defendant receives the complaint and summons. The summons shall be on the official form provided for that purpose by the Court, and shall inform the defendant of the consequences of default. A copy of the summons and complaint shall be prepared for each defendant. If a summons is returned without being served, or if it has been lost, the clerk shall issue a duplicate summons in the same form and it shall be issued and served within the same time as the original.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.070 Process.
(A) Within ninety (90) days after the plaintiff files a civil complaint, the plaintiff shall cause a copy of the complaint, together with the summons to be served upon (delivered to) each defendant named in the complaint.
(B) Process; By Whom Served. Service of all process shall be made by a tribal law enforcement officer or any other person at least eighteen (18) years of age who has no stake in the outcome of the lawsuit or who is not legal counsel in the action.
(C) Primary Method of Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
(1) Upon an individual other than those specified in paragraphs (2), (3), (4), and (5) of this Subsection, by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies of the documents at the individual’s residence with some person of suitable age and discretion who lives there or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process.
(2) Upon a minor under the age of sixteen (16) years, by service in the manner set forth in paragraph (1) of this Subsection upon the minor and upon the minor’s father, mother or guardian, within the Reservation, or if none is found therein, then upon any person having the care or control of such minor or with whom the minor resides.
(3) Upon a minor for whom a guardian of the minor’s estate has been appointed by the Tribal Court, by service in the manner set forth in paragraph (1) of this Subsection, upon such guardian and the minor.
(4) Upon a person who has been judicially declared to be insane or mentally incompetent to manage his or her property and for whom a guardian has been appointed by the Tribal Court, by service in the manner set forth in paragraph (1) of this Subsection, upon such person and also upon the guardian, or if no guardian has been appointed, upon such person as the court designates.
(5) Upon a corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, by delivering a copy of the summons and complaint to a partner, an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process.
(6) Upon the Swinomish Tribe, by delivering a copy of the summons and complaint to the tribal attorney; provided however, that this Section shall not be construed as a waiver of the sovereign immunity of the Swinomish Tribe, its Subsections, agents, agencies, enterprises, or officers.
(D) Alternative Methods of Service.
(1) When a defendant is a non-resident of the Reservation, or is absent from the Reservation, or is a transient, or is one whose residence is unknown to the plaintiff, or is a corporation incorporated under the laws of any state or foreign country that has no legally appointed and constituted agent on the Reservation, or is concealing himself or herself to avoid service, a summons shall be issued as in other cases and service shall be made in accordance with Subsections (2) or (3) of this subsection. The methods of service herein provided shall be applicable for the assertion of any claim by way of cross-claim, third-party claim or other appropriate pleading against any party who has not appeared in the action and shall be in addition to and not exclusive of any other means of service that may be provided by tribal law.
(2) Personal Service Off the Reservation. When the defendant is not a resident of the Reservation, or is a corporation doing business on the Reservation, or is a person, partnership, corporation or unincorporated association subject to suit in a common name that has caused an event to occur on the Reservation out of which the claim that is the subject of the complaint arose, service may be made as herein provided, and when so made shall be of the same effect as personal service within the Reservation. In case of a corporation or unincorporated association, service under this rule shall be made on one of the persons specified in Section 3-02.070(C)(5).
(a) Registered Mail. When the whereabouts of a defendant outside the Reservation are known, the serving party may deposit a copy of the summons and complaint in the post office, registering it with a return receipt requested. Upon return through the post office of the registry receipt, the serving party shall file an affidavit with the court showing the circumstances warranting the utilization of the procedure authorized under Section 3-02.070(D)(1), and:
(1) That a copy of the summons and complaint was dispatched to the party being served;
(2) That it was in fact received by the party as evidenced by the attached registry receipt;
(3) That the genuine receipt thereof is attached; and
(4) The date of the return thereof to the sender.
(5) This affidavit shall be prima facie evidence of personal service of the summons and complaint and service shall be deemed complete and time shall begin to run for the purposes of Section 3-02.070(D)(4) of this Rule thirty (30) days after filing the affidavit of receipt.
(b) Direct Service. Service off the Reservation may also be made in the same manner provided in Section 3-02.070(C) of this Rule by a person
authorized to serve process under the law of the state or Reservation where such service is made. Service shall be complete when made and time for purposes of Rule 3-02.070(D)(4) shall begin to run at that time, provided that before any default may be had on such service, there shall be filed an affidavit of service showing the circumstances warranting the utilization of the procedure under section 3-02.070(D)(1) and attaching an affidavit of the process server showing the fact of the service.(3) Service by Publication. Where personal service is not required, and a person is subject to service under Section 3-02.070(D)(1), such service may be made by either method set forth in Section 3-02.070(D)(2) or by publication. Service by publication shall be made by publication of the summons in a local newspaper of suitable size and general circulation at least once a week for four (4) successive weeks and the service shall be complete thirty (30) days after the first publication. When the residence of the defendant is known, the serving party shall on or before the date of the first publication mail a copy of the summons and complaint, postage prepaid, directed to the defendant at the defendant’s residence. The plaintiff shall file an affidavit showing the publication and mailing and the circumstances warranting the utilization of the procedure under Section 3-02.070(D)(1), which shall be prima facie evidence of compliance herewith. When the residence is unknown, the affidavit shall so state.
(4) Time for Appearance After Service Under 3-02.070(D)(1), (D)(2), (D)(3) or (D)(5). Where service of the summons and complaint is made off of the Reservation or pursuant to Subsections 3-02.070(D)(1), (D)(2), (D)(3), or (D)(5) of this Rule, the defendant shall appear and answer within thirty (30) days after completion thereof in the same manner and under the same penalties as if the defendant had been personally served with a summons on the Reservation.
(5) Alternative Provisions for Service in a Foreign Country.
(a) Manner. When this Rule authorizes service upon a party not an inhabitant of or found within the Reservation, and service is to be effected upon the party in a foreign country, it is also sufficient if service of the summons and complaint is made:
(1) In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or
(2) As directed by the foreign authority in response to a letter interrogatory, when service in either case is reasonably calculated to give actual notice; or
(3) Upon an individual, by delivery to the individual personally, and upon a corporation or partnership or association, by delivery to an officer, a managing or general agent; or
(4) By any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or
(5) As directed by order of the court. Service under Section 3-02.070(D)(5)(a)(3) above may be made by any person who does not have a stake in the outcome and is not less than eighteen (18) years of age or who is designated by order of the court or by the foreign court. On request, the clerk shall deliver the summons to the plaintiff for transmission to the person or the foreign court or officer who will make the service.
(b) Return. Proof of service may be made as prescribed by Section 3-02.070(G) of this Rule, or by the law of the foreign country, or by order of the court. When service is made pursuant to subparagraph 3-02.070(D)(5)(a)(4) of this Rule, proof of service shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court.
(E) Territorial Limits of Effective Service. All on-Reservation process may be served anywhere within the exterior boundaries of the Reservation.
(F) Return. When the process is served by a tribal law enforcement officer, the return shall be officially endorsed on or attached thereto and returned to the court promptly. If served by any other person, return and proof of such service shall be made promptly by affidavit thereof. In either event such return shall be made within the time during which the person served may respond to process. Failure to make proof of service does not affect the validity thereof.
(G) Return of Service by Publication. When the summons is served by publication, the return of the officer serving the summons shall be endorsed upon or attached to the summons stating when and how it was served and the dates for the publication, and the return shall be accompanied by a printed copy of the publication. Service by publication and the return thereof may also be made by the plaintiff or by plaintiff’s legal counsel in the same manner as though made by an officer.
(H) Amendment. At any time in its discretion and upon such terms as it deems just, the court may allow any process or proof of service thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
(I) Summons and Service; Termination of Action. An action may terminate automatically, after notice to all parties of record, if the summons is not issued and served, or the service by publication commenced within one (1) year from the filing of the complaint.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.080 Computation and Extension of Time.
(A) Whenever a rule, tribal law, or an order of the court requires that an action be taken within a certain number of days, the day of the event from which the time limit runs shall not be counted; but the last day shall be counted unless it is a Saturday, Sunday, or tribal holiday. When the last day is a Saturday, Sunday, or tribal holiday, the deadline shall be the first work day following the day that is not counted. Where the time limit is less than seven (7) days, Saturdays, Sundays, and tribal holidays shall not be counted at all.
(B) When a time limit is counted from or to the time that notice is delivered to a person and the notice is delivered by mail rather than given directly to the person, it shall be presumed that delivery takes place three (3) days after the notice is placed in a United States Postal Service mailbox unless delivery is otherwise confirmed.
(C) On request of a party, and if good cause exists, the judge may allow an extension of any time limit prescribed by a Rule of Civil Procedure or Rule of Court.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88)
3-02.090 Form of Pleading.
(A) All written materials submitted to the court must be clear and legible and shall contain the name of the court, the names of all parties, the court file number for the case, the signature of the party filing it or of the party's counsel, and any other information required by these Rules. For convenience, the court may develop standard forms for pleading, motions, notices, and orders.
(B) Caption; Names of Parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation of the type of pleading it is. In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.
(C) Paragraphs; Separate Statements. All claims or defenses shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances, and a paragraph may be referred to by number in all subsequent pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
(D) Adoption by Reference; Exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in a motion. A copy of a written instrument that is an exhibit to a pleading is a part thereof for all purposes.
(E) Method of Preparation and Filing.
(1) All pleadings and other papers filed in any action or proceeding shall be on white, opaque, unglazed paper measuring 8 ½ inches x 11 inches, with a margin at the top of each page of not less than 1 ½ inches and a left hand margin of not less than 1 inch. Notwithstanding the foregoing, exhibits or attachments to pleadings may be folded and fastened to pages of the specified size. An exhibit or attachment not in compliance with the foregoing provision may be filed only if it appears that compliance is not reasonably practicable.
(2) All pleadings filed shall be endorsed with the number of the action, the title of the court and action, the nature of the pleading filed, and the name and address of the party and counsel, if any, and shall be written clearly in handwriting or typewritten on one side of a sheet only, double-spaced, except in the case of quotations, and the pages numbered. Originals only shall be filed, except that where it is necessary to file more than one copy of a pleading the additional copies may be carbons or photocopies.
(F) Erasures and Interlineations. All erasures and interlineations shall be called to the attention of the clerk and noted by the clerk on the margin with the clerk’s initials, but no erasures or interlineations will be allowed in any order, finding, or judgment signed by the court.
(G) Designation of Defendant. When the name of the defendant is unknown to the plaintiff, the defendant may be designated in the pleadings or proceedings by any name. When the defendant’s true name is discovered, the pleading or proceeding may be amended accordingly.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.100 Intervention.
(A) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action: (1) when a tribal law confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest.
(B) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when tribal law confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any ordinance, resolution, code, or regulation of the Tribe, the Tribe, upon timely application, may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
(C) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided for initial service in Rule 3-02.070. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when an ordinance or these rules gives the Tribe a right to intervene. When the constitutionality and/or validity of any actions and/or enactments of the Senate affecting the public interest is drawn in to question in any matter in which the Tribe or an officer, agency, or employee thereof is not a party, the court shall notify the Office of the Tribal Attorney. A party challenging the constitutionality and/or validity of a law should call the attention of the court to its duty to notify, but failure to do so is not a waiver of any constitutional right otherwise timely asserted.
(D) Time to Answer. If the motion to intervene is granted, the plaintiff and defendant shall be allowed a reasonable time, not exceeding twenty (20) days, in which to answer the pleading of the intervener.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.110 Disability of a Judge.
If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties. In a hearing or trial without a jury, the successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness.
[History] Ord. 199 (11/12/03).
3-02.120 Application of Formal and Informal Rules of Civil Procedure.
(A) Except as otherwise provided by these Rules or other tribal laws, procedure in civil matters in Tribal Court shall be governed by the Informal Rules of Civil Procedure.
(B) The parties to any civil case may agree to use the Formal Rules of Civil Procedure throughout the entire case or for any part of the case, and if there is such agreement, they shall file a joint written motion to that effect, explaining the reasons for the motion. The court shall freely grant such joint motions when to do so would be in the interest of justice, and would not result in unnecessary complexity, expense, or delay.
(C) At any point after a complaint has been filed, any party to a civil case may make a motion to invoke the Formal Rules of Civil Procedure for the rest of the case, or for the determination of a particular question of procedure. The other party may agree to the change or may object to the use of the Formal Rules, specifying the reasons for the objection. If there is an objection, the judge shall hear argument on the issue. The judge shall grant the motion to change to the formal rules if the judge determines that changing to the Formal Rules would:
(1) be in the interest of justice;
(2) provide the basis for determining an issue about which there is or could be disagreement between the parties;
(3) provide the basis for determining an issue that, under the circumstances, is not adequately dealt with by the Informal Rules;
(4) not result in unnecessary complexity, expense, or delay; and
(5) not result in unfair advantage to either party.
(D) At any point in a civil case in which the Formal Rules are being used, either party may make a motion to return to the Informal Rules for a part of the case or the rest of the case. The other party may agree or object, specifying the reasons for the objection. If there is an objection, the judge shall hear argument on the issue. The judge shall grant the motion to change to the Informal Rules if the judge determines that changing to the
Informal Rules would:(1) be in the interest of justice; and
(2) not result in unfair advantage to either party.
(E) The judge, on his or her own motion, may order that a change be made from one set of rules to the other, based on the same criteria established in sections (C) and (D) above. Before any such change shall be made on the judge’s own motion, the judge shall announce his or her intention to do so and provide the parties an opportunity to be heard on the matter.
(F) Whenever the judge orders that the rules governing procedure in a case shall be changed from formal to informal, or vice versa, he or she shall explain the order and the reasons for its issuance. The Clerk of the Court shall note such change and the judge’s reasons on the record.
(G) If the Informal Rules of Civil Procedure are in use, and a matter arises during the proceedings that is addressed only in the Formal Rules of Procedure, the parties shall be allowed to follow the Formal Rules for that purpose without being required to change to the Formal Rules for all other issues.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
Subchapter II – Informal Rules of Civil Procedure
3-02.130 Filing and Form of Court Papers.
(A) A person who wishes to commence a civil action in Tribal Court shall first file a written complaint with the court clerk. The person who has filed the complaint shall be known as the plaintiff. The complaint shall describe the injury or breach the plaintiff is complaining of, name or describe the person responsible for such injury or breach, who shall be known as the defendant, and state the relief requested. The plaintiff shall sign the complaint. If a person is unable to prepare a written complaint, the clerk may help that person to complete a complaint form provided by Rule of Court.
(B) The original of every written complaint, answer, summons, motion, argument, agreement, order, or other document served upon a party during a case in Tribal Court shall be filed with the clerk.
(C) A party who files any document with the court clerk in a lawsuit shall give a copy of the same document to every other party in the case. If a party is represented by counsel, all documents except the summons and complaint shall be given to counsel, instead of the party. Delivery of a copy as required by this Rule may be made either by giving it to the party or counsel in person or by mailing it first class, postage paid, to the party’s or counsel’s correct address.
(D) Every decision and order of the court shall be written down by the judge or clerk, and signed by the judge. The clerk shall file a copy and give or send a copy of each such ruling to each party and counsel in the case.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.140 Oral Procedures.
(A) Unless otherwise specified by these rules, or ordered by a judge pursuant to a Rule of Court, motions, arguments, discovery requests, and other actions taken by the parties during the course of the lawsuit may be oral or written. Oral actions taken by the parties, in order to be enforceable by the court, shall take place in open court in the presence of the judge and all parties.
(B) Notice. All oral actions taken by the parties in open court shall be subject to the notice requirements of Rule 3-02.210. The Notice of Motion form provided for by that rule may be used to satisfy the notice requirements for all oral actions.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.150 Amendment, Withdrawal, Dismissal of the Complaint.
(A) A plaintiff may change the complaint without court permission at any time before the defendant answers it, as long as a copy of the changed complaint is delivered to all parties according to the rules for complaint. After the defendant has answered the complaint, the judge may still allow the plaintiff to change the complaint as long as allowing the change would not be unfair to the defendant.
(B) The judge shall allow the plaintiff to withdraw the complaint and shall dismiss the case any time the plaintiff so requests unless the defendant has counterclaimed against the plaintiff or dismissal of the case would otherwise be unfair to the defendant. The judge may order a plaintiff who withdraws a complaint to pay all costs of the suit to the defendant.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.160 Defenses, Answers, Counterclaims.
(A) Except as provided by Rule 3-02.160(B), within twenty (20) days after the defendant receives a copy of a civil summons and complaint, the defendant must answer the complaint in writing. The defendant must sign the answer, file it with the clerk, and mail it to the plaintiff or plaintiff’s counsel at the address given in the complaint, all within the twenty (20) day answering period. The defendant shall file a proof of mailing of the answer. If a defendant is not able to prepare a written answer, he or she shall explain to the clerk the nature of his or her defense, and the clerk shall help the defendant to put the answer in writing, on the form provided for that purpose by Rule of Court.
(B) If the defendant was served with the summons and complaint by mail or publication as allowed by Rule 3-02.070(D) then the defendant’s answering period shall be thirty (30) days.
(C) In addition to answering the complaint, or as a way of raising a defense to the complaint, a defendant may file a counterclaim against the plaintiff, following the same rules which apply to complaints.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.170 Preliminary Injunctions and Temporary Restraining Orders.
(A) A party to a civil suit may ask the judge for a preliminary order (injunction) prohibiting or requiring particular action by another party to keep things as they are until the Court has a chance to reach a final decision in the case. The Court shall grant the order if the person requesting it shows that there is a good chance that he or she will win the suit and that he or she will suffer irreparable loss or injury if the injunction is not issued.
(B) Unless otherwise stated in the injunction, a preliminary injunction shall remain in effect until final judgment in the case.
(C) Except as provided in Section (D) of this Rule, no preliminary injunction shall be issued unless the party to be enjoined first has notice and an opportunity to be heard in court.
(D) A judge may issue a temporary restraining order prohibiting or requiring particular action by a party to keep things as they are pending the court's final decision in the case without prior notice to the party to be restrained, when the party who requests such an order shows by sworn statement or oral testimony that he or she will suffer permanent loss or injury if the order is not issued before the opposing party can be notified and heard, and that he or she made a reasonable attempt to notify the opposing party of the time when the request would be made.
(E) A temporary restraining order shall be effective only for the time period specified in the order, and in no case for longer than ten (10) days. Subject to the requirements of Section 3-02.170(D), a temporary restraining order may be renewed once for good cause.
(F) The judge may require a party who requests a temporary restraining order or preliminary injunction to provide security for any loss or injury that may be suffered by a party who is wrongfully enjoined or restrained; provided, however, that the judge shall not require such security from the Tribe or any of its branches.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.180 Default Judgment.
(A) Failure of a defendant to file and serve an answer upon the plaintiff within the applicable twenty (20) or thirty (30) day answering period after the complaint was served shall be a default and shall provide grounds for judgment against the defendant as asked for in the complaint. No judgment of default shall be made, however, unless the plaintiff makes a written motion for a default judgment and serves a copy of the motion on each defendant in the same manner as a complaint. The motion for default judgment shall state a time, no sooner than three (3) days after service of the motion, when the plaintiff will argue the motion to the judge. If the defendant files an answer to the complaint at or before the time that the motion is to be argued to the judge, no default judgment shall be granted, and the matter shall proceed as though answered on time. If the defendant does not answer by that time, a default judgment shall be entered.
(B) In granting a default judgment, the judge may refuse to grant the relief requested by the plaintiff if granting the relief would be contrary to tribal law or would be unjust. The judge may not grant the plaintiff greater relief on default than was requested in the complaint.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.190 Discovery.
(A) It is the policy of the Tribal Court that the truth will be revealed more readily if all parties in a civil case have access to all information and evidence related to the case. In preparation for trial, therefore, the parties may ask each other and/or shall make available to each other all information in each other’s possession or control that will be used as evidence in the case, or that can reasonably be expected to lead to evidence.
(B) Methods of discovering and exchanging information may include but need not be limited to written questions, oral examination, requests for witnesses' names, requests for admissions, physical inspection of property, requests to perform scientific or physical tests, and requests for documents. The party who makes a request under this rule shall be as clear and specific as possible in describing what he or she wants.
(C) A party may refuse to make available the information requested pursuant to this Rule if its release would cause the responding party or a third person undue hardship, annoyance, or embarrassment, or would violate a confidence that it is tribal custom or official tribal policy to protect. If the parties disagree about whether the responding party is required to release the information, the judge shall decide the dispute. The judge may place conditions on the release of information in order to protect confidential material, prevent unreasonable burden or expense to one party, or otherwise ensure fairness to all parties.
(D) A party who receives a request for information under this Rule shall, within ten (10) days of receiving the request, respond either with the information, with an indication where and when the information will be available, or with an objection and refusal to comply with the request. Failure to respond within ten (10) days is grounds for a court order requiring a response.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.200 Pretrial Conference.
(A) In the interest of saving time, simplifying issues, and avoiding unnecessary litigation, the judge may, on his or her own motion, or on the motion of any party, schedule one (1) or more pretrial conferences with all parties to a case. In any case determined by the judge to be complex, at least one pretrial conference shall be held after the completion of discovery, and early enough to aid the parties in planning for trial.
(B) The pretrial conference shall be conducted without formal procedures unless in the court’s discretion it adopts such procedures for a particular case. The parties and the judge shall discuss areas where they are in agreement and areas where they disagree. The purposes of the discussion shall include the following:
(1) To identify and dispose of issues that may be resolved without trial;
(2) To narrow and focus issues of law that remain to be decided and to identify central facts that are still in dispute;
(3) To limit the number of witnesses and the evidence that will be presented so that testimony and other evidence is not repetitious or irrelevant; and
(4) To avoid surprise at trial.
(C) To accomplish the above purposes, all parties to a lawsuit shall, at the pretrial conference after discovery, fully disclose:
(1) The names and addresses of all witnesses they expect to present at trial, and the basic information to which they expect the witness to testify;
(2) All documents they expect to introduce as evidence, and the basic information they intend to prove with the documents; and
(3) All objects they intend to introduce as evidence and the basic information they intend to prove with those objects.
(D) No party shall be permitted to use the testimony of any witness or introduce as evidence any document or object unless they disclosed the witness, document, or object at the pretrial conference as provided in (C) above, unless the party proves that at the time of the pretrial conference they were unaware of the existence or nature of the witness, document or object and could not, with reasonable effort, have discovered it in time to disclose it. Such evidence must, in any case, be disclosed to the judge and opposing party before it is offered in the trial.
(E) No offer of settlement or other statement that is made by a party during a pretrial conference may be used as evidence against that party if settlement is not then achieved. Agreements reached as a result of a pretrial conference shall be put in writing and signed by all parties. Such agreement shall be made part of the final judgment.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.210 Motions.
(A) Any questions regarding procedure or the rights of the parties that arise during a lawsuit and that cannot be settled by agreement of the parties may be presented to the judge in a motion, which is a request for an order.
(B) Motions may be made in writing or orally. If the motion is not made during and as a consequence of events at a trial or other hearing, the moving party shall notify other parties of the nature and basis of the motion and the hearing time at least five (5) days before the motion is presented in court, so the responding party has a chance to plan a response. The notice required by this Rule shall be called a Notice of Motion, shall be in writing, and shall be served upon all parties, or, if a party is represented by counsel, upon the party’s counsel, according to Rule 3-02.130(C). Persons who are unable to prepare their own written Notice of Motion may be assisted by the clerk in filling out a Notice of Motion form, provided for that purpose by Rule of Court.
(C) Motions to dismiss the lawsuit because the court lacks jurisdiction or because the plaintiff has not stated a basis for relief may be made at any time. All other pretrial motions that would determine the procedures used at trial must be made at least five (5) days before trial. The judge may deny a motion that could and should have been made earlier in the case if it appears that the moving party knew or should have known earlier about the basis for the motion and has raised it late because of negligence or an intent to harass the other party.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.220 Jury Trials.
(A) Jury Request; Fee. A jury trial shall be held if requested by either party to the case at least ten (10) days before the trial. The party who requests a jury trial shall pay to the court a jury fee established by Rule of Court. Payment of the jury fee may be waived by the Chief Judge upon the request of a party if payment of the fee would result in severe hardship to the party. The party who requests a jury trial or a visiting judge, who fails to provide at least five (5) days notice by a written motion to continue, shall be liable for the payment of jury fees and fees payable to the visiting judge at the discretion of the judge presiding over the trial.
(B) Jury Selection. On the day of the trial, the jury shall be selected as provided in Chapter 3-01 of this Title or as otherwise provided by Rule of Court.
(C) Impaneling the Jury.
(1) Removal for Cause; Examination by Court, Parties. After the court has selected the initial jury panel, the judge shall examine each of the potential jurors as to their qualifications and excuse any who appear to him or her to be biased, prejudiced, unable to fairly and effectively perform the duties of a juror, or otherwise not qualified to serve as a juror. The judge shall permit the parties or their counsel to similarly examine and ask for the removal of jurors for cause, without any limit to the number of jurors so challenged or removed, except that all such challenges must be made in good faith. The judge shall excuse any juror he or she believes to be unqualified, directing him or her to leave the jury area.
(2) After all disqualified jurors have been excused from the jury area, enough additional ballots shall be drawn by the judge to replace the disqualified persons with members of the jury panel. The Clerk shall add their names to the list in the order in which they were called. The procedure for challenge for cause shall continue until fourteen (14) qualified persons are seated in the jury area.
(D) Peremptory Challenges. After the fourteen (14) qualified persons have been seated in the jury area, each party shall have the right to remove any three (3) persons from the jury without stating any reason. The parties shall alternately remove jurors, or waive their turn to do so, until they have exhausted their peremptory challenges.
(E) Trial jury; Alternate. The Clerk of the Court shall then read aloud the first six (6) names on the list and those persons shall be jurors for the trial. The Clerk shall also read aloud the seventh name on the list, and that person shall be an alternate juror for the trial. The alternate juror shall act in all respects as a juror, except that he or she shall not vote during jury deliberations unless one of the other jurors has been excused by the judge during the course of the trial.
(F) Oath of Jurors. The jury shall be sworn or affirmed well and truly to try the issue between the parties according to the evidence and instructions of the court.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.230 Order of Trial.
(A) In all civil trials, presentations shall be made in the following order unless otherwise agreed by the parties or determined at the pretrial conference:
(1) Motions by either party regarding procedure at trial, evidence to be presented, jurisdiction of the court, or the sufficiency of a claim;
(2) Evidence and statements presented by the party (the plaintiff) who filed the original complaint;
(3) Evidence, statements, or motions presented by the person complained against (the defendant);
(4) Motions of either party that are based on events at trial; and
(5) Final arguments by both parties.
(B) The judge may announce a final decision at the close of trial or may take the matter under advisement and issue a written decision at a later time. All decisions shall be announced within thirty (30) days after the end of the trial.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.240 Burden and Standard of Proof; Jury Verdicts.
(A) Unless otherwise provided by tribal law, the burden of proving a civil claim shall be on the party who makes the claim.
(B) Unless otherwise provided by tribal law, a party to a civil case shall be considered to have met the burden of proof if a reasonable person, after considering all of the evidence presented, is persuaded that the party’s claim is more probably true than not true.
(C) A civil jury verdict must be based upon the agreement of at least five (5) of the six (6) jurors.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.250 Informal Rules of Evidence Governing Trials.
(A) Purpose. The purpose of these Informal Rules of Evidence is to ensure that the Tribal Court is able to determine the truth of a matter with a minimum of delay, confusion, and uncertainty for the parties.
(B) Scope. Unless the Formal Rules of Civil Procedure have been invoked, these Informal Rules of Evidence shall govern the admissibility and use of evidence in civil matters.
(C) General Rules.
(1) Where there is more than one kind of evidence about the same subject, the judge shall give each item of evidence the importance (weight) that, according to the judge's common sense and sense of fairness it deserves. For example, in oral testimony, the testimony of persons who testify from their personal knowledge, such as first-hand observation of, or participation in, the event described shall be given more weight than the testimony of persons who only have knowledge of the event they gained from other persons.
(2) Evidence admitted in the Tribal Court must be related either to the issues before the court or to the weight and credibility that should be given to other evidence. When questioned by the judge or another party as to why certain evidence should be allowed, the party who wishes to present the evidence shall:
(a) State the issue that he or she will use the evidence to resolve; and
(b) Explain how the evidence is relevant to the issue.
(3) When the relevance or reliability of evidence is challenged, the judge shall decide whether or not to use the evidence, and explain the decision.
(D) Oaths. Before testifying in the Tribal Court, every witness shall first state before the judge, parties and spectators that he or she will testify truthfully. The court may prescribe an oath for this purpose by Rule of Court.
(E) Questioning Witnesses.
(1) When questioning a witness, the judge and parties or their counsel shall not ask questions in such a way as to suggest the answer, unless the witness is one who was called by the opposing party, or is clearly hostile to the person asking questions.
(2) The judge shall determine the order in which parties or their counsel shall be allowed to question witnesses. The judge shall protect the witnesses from harassment or unnecessarily repetitious or irrelevant questioning.
(3) During the questioning of a witness, the judge may exclude from the courtroom any witnesses who have not yet testified, if this seems to be necessary to ensure that all witnesses will give truthful testimony. At the request of any party, such witnesses shall be excluded.
(4) The judge may call and/or question any witnesses on his or her own initiative.
(F) Sworn Written Testimony.
(1) Subject to the provisions of Rule 3-02.250(C)(3), testimony of a witness may be presented in sworn written form if and only if it is clearly shown who gave the testimony, when it was given, and:
(a) The witness is unable to appear in person to testify;
(b) The evidence presented in writing is not contradicted by other parties;
(c) The testimony is offered to support a motion or an uncontested request for relief; or
(d) The testimony contradicts oral testimony already given by the same witness.
(2) Copies of written records, photographs, and other documentary evidence may be presented as long as there is a reasonably reliable method to identify the items and the manner in which they were prepared.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.260 Judgments.
(A) A judgment is a final order of the Court that disposes of a claim in whole or in part. The judge may announce a judgment orally at a hearing in open court before the parties, or in writing, at the time of hearing or after the hearing, but in no case more than thirty (30) days after the end of the trial.
(B) Finality. A judgment becomes final when it has been filed by the court clerk. The court shall establish, by Rule of Court, the length of time after issuance of an order within which the clerk must file the order.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.270 Proceedings after Judgment.
(A) No later than fifteen (15) days after judgment is final, a party may ask the judge for a rehearing, reconsideration, correction, vacation, or modification of the judgment.
(B) The judge may grant a new hearing or reconsider any change in the judgment if he or she finds at least one of the following:
(1) The original judgment was based on or reached as a result of fraud or mistake of law;
(2) There is newly discovered evidence that probably would have affected the outcome of the case and that could not, with reasonable effort, have been discovered in time for the hearing of the case; or
(3) The court did not have jurisdiction over a party or over the subject matter.
(C) No later than fifteen (15) days after judgment is final or after a motion made pursuant to Section 3-02.270(A) of this Rule is denied, a party may appeal an adverse judgment as provided in the Rules of Appellate Procedure.
(D) No civil judgment shall be enforced sooner than fifteen (15) days after judgment is entered on the docket. A party appealing a judgment against him or her, or filing a motion pursuant to Section 3-02.270(A), may make a motion requesting that the court delay (stay) enforcement of the judgment until after the Section 3-02.270(A) motion or appeal has been decided. The party who won the original judgment may oppose the motion for a stay and/or may request that the court require that the party asking for a stay post a bond to protect the winning party from further damage, to cover costs, or to guarantee that sufficient assets are within the control of the court to satisfy the judgment if the original winning party wins the motion or the appeal. Stays shall be granted only under the terms of this Section and the Rules of Appellate Procedure, and no stays shall be granted automatically.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.280 Costs.
(A) Upon judgment, the judge shall order the losing party to pay to the winning party the costs of the lawsuit, unless the applicable law provides otherwise or the judge determines that such an order would be unjust. Costs shall not be imposed on the Tribe or any branch of the Tribe unless specifically permitted by an applicable tribal law or agreement.
(B) Costs shall include civil filing fees, any costs for delivering documents required by these rules to be delivered, postage for court notice sent to the parties, and fees and expenses paid to witnesses and jurors, but shall not include counsel fees, unless tribal law so provides in a particular type of case.
(C) No person shall be jailed because he or she is unable to pay costs.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
Subchapter III – Formal Rules of Civil Procedure
Subchapter III (A) – Pleadings and Motions.
[Ed. Note. The following formal rules of Civil Procedure were adapted primarily from the Federal Rules of Procedure.]
3-02.290 Service and Filing of Pleadings and Other Papers.
(A) When Service is Required. Except as otherwise provided in these Rules, every order required by its terms to be served, every pleading after the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one that may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 3-02.070.
(B) Parties Served; Continuance. When there are several defendants, and some are served with summons and others are not, the plaintiff may proceed against those served or continue the action. The court may order the plaintiff to proceed against those served.
(C) Service After Appearance; Service After Judgment; How Made.
(1) Whenever under these Rules service is required or permitted to be made upon a party represented by counsel, the service shall be made upon counsel unless service upon the party is ordered by the court. Service upon counsel or upon a party shall be made by delivering or mailing a copy to the party’s last known address or if no address is known, by leaving it with the Clerk of the Court. Delivery of a copy within this Rule means: handing to the party; or to counsel; or leaving at the counsel's office with his or her clerk or other person in charge thereof; or if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person served has no office, leaving it at the person’s dwelling with some person of suitable age and discretion who lives there. Service by mail is complete upon mailing.
(2) After the time for appeal from a judgment has expired or a judgment has become final after appeal, the service of a motion, petition, complaint or other pleading required to be served and requesting modification, vacation or enforcement of that judgment, shall be served pursuant to Rule 3-02.070 as if serving a summons and complaint.
(D) Service; Numerous Defendants. In any action in which there is an unusually large number of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendant and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
(E) Service; Acceptance or Waiver; Voluntary Appearance. The defendant may accept service of any process or waive issuance or service thereof, in writing, signed by the defendant or by the defendant’s authorized agent or counsel and the acceptance or waiver shall be filed in the action. The defendant may, in person or by counsel or by authorized agent, enter an appearance in open court, and the appearance shall be
noted by the clerk upon the docket and entered in the minutes. Such waiver, acceptance or appearance shall have the same force and effect as if summons had been issued and served. The filing of an answer shall constitute an appearance.(F) Service; Unknown Heirs in Real Property Actions. When in an action involving rights to real property, if it is necessary for a complete determination of the action that the unknown heirs of a deceased person be made parties, they may be sued as the unknown heirs of the decedent, and service of summons may be made on them by publication as provided in Rule 3-02.070(D)(3).
(G) Filing. Except for offers of judgment under Rule 3-02.930, all papers after the complaint required to be served upon a party or to be filed with the court within a specified time shall be both filed with the court and served upon the party within the specified time.
(H) Filing With the Court Defined. The filing of pleadings and other papers with the court as required by these Rules shall be made by filing them with the Clerk of the Court, except that the judge may permit the papers to be filed with the judge and in that event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.300 Pleadings Allowed and Form of Motions.
(A) Pleadings Allowed. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Section 3-02.360; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
(B) Motions, Petitions and Other Papers.
(1) An application to the court for an order shall be by petition or motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(2) The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by these Rules.
(C) Motions and Affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five (5) days before the time specified for the hearing, unless a different period is fixed by these Rules or by Order of the Court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion, and, except as otherwise provided in Sections 3-02.810 and 3-02.840(E), opposing affidavits may be served not later than one (1) day before the hearing, unless the court permits them to be served at some other time.
(D) Orders to Show Cause. A judge of the Tribal Court, upon application supported by affidavit showing cause therefor, may issue an order requiring a party to show cause why the party applying for the order should not have the relief therein specified, and may make the order returnable at such time as the judge designates.
(E) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served by mail, three (3) days shall be added to the prescribed period. This Rule has no application to mailing of notice of entry of judgment.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.310 General Rules of Pleading.
(A) Claims for Relief. A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain:
(1) A short and plain statement of the grounds upon which the court’s jurisdiction depends;
(2) A short and plain statement of the claim and grounds for relief; and
(3) A demand for relief. Relief in the alternative or of several different types may be demanded.
(B) Defenses; Form of Denials. A party shall state in short and plain terms that party’s defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If the party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make the denials as specific denials of designated averments or paragraphs, or general denials of all the averments except such designated averments or paragraphs as the pleader expressly admits, but when the pleader does so intend to controvert all the averments, including averments of the grounds upon which the court’s jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Section 3-02.330(A).
(C) Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.
(D) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading. An averment in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
(E) Pleading to be Concise and Direct; Consistency.
(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.
(2) A party may set forth two (2) or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two (2) or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds or both. All statements shall be made subject to the obligations set forth in Section 3-02.330(A).
(F) Construction of Pleading. All pleadings shall be so construed as to do substantial justice.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.320 Pleading Special Matters.
(A) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party raising the issue shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.
(B) Fraud, Mistake, Condition of the Mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
(C) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
(D) Official Document or Act. In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with the law.
(E) Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial, tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matters showing jurisdiction to render it.
(F) Time and Place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.
(G) Special Damage. When items of special damage are claimed, they shall be specifically stated.
(H) Complaint in Action for Libel or Slander. In an action for libel or slander, the complaint need not state the extrinsic facts applying to the plaintiff the defamatory matter out of which the claim arose, but may allege generally that the libel or slander was published or spoken concerning the plaintiff, and if the allegation is controverted the plaintiff shall establish on the trial that it was so published or spoken.
(I) Verification of Answer. Any responsive pleading setting up any of the following matters, unless the truth of the pleading appears of record, shall be verified by affidavit:
(1) That the plaintiff does not have legal capacity to sue.
(2) That the plaintiff is not entitled to recover in the capacity in which the plaintiff sues.
(3) That there is another action pending in Tribal Court between the same parties for the same claim.
(4) That there is a defect of parties, plaintiff or defendant.
(5) A denial of partnership, or of incorporation, of the plaintiff or defendant.
(6) A denial of the execution by the defendant or by the defendant’s authority of any instrument in writing upon which any pleading is based, in whole or in part, and alleged to have been executed by the defendant or by the defendant’s authority, and not alleged to be lost or destroyed. When the instrument is alleged to have been executed by a person then deceased, the affidavit may state that the affiant has reason to believe, and does believe, that such instrument was not executed by the decedent or by the decedent’s authority.
(7) A denial of the genuineness of the endorsement or assignment of a written instrument.
(8) That a written instrument upon which the pleading is based is without consideration, or that the consideration therefor has failed in whole or in part.
(9) That an account which is the basis of plaintiff's action, and supported by an affidavit, is not just, and in such case the answer shall set forth the items and particulars which are unjust.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.330 Signing of Pleadings.
(A) Signing of Pleadings. Every pleading, written motion, and other paper shall be signed by at least one attorney of record, whose address shall be stated. A party that is not represented by counsel shall sign the pleading and state his or her address. By signing the pleading, a person certifies that he or she has read the pleading, that to the best of the person’s knowledge, information, and belief there is good ground to support it, and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this Rule, it may be stricken as sham and farce and the action may proceed as though the pleading had not been served. For a willful violation of this Rule, counsel may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted.
(B) Verification of Pleading Generally. Except as otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. When in a civil action a pleading is required to be verified by the affidavit of the party, or when in a civil action an affidavit is required or permitted to be filed, the pleading may be verified, or the affidavit made, by the party or by a person acquainted with the facts, for and on behalf of such party.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.340 Defenses and Objections; When and How Presented; By Pleading or
Motion; Motion for Judgment on Pleadings.
(A) When Presented. A defendant shall serve and file the defendant’s answer within twenty (20) days after receiving the service of the summons and complaint, except when service of process is made pursuant to Rule 3-02.070(D)(1), (2), (3) or (5). A party served with a pleading stating a cross-claim against that party shall serve and file an answer thereto within twenty (20) days after being served. The plaintiff shall serve and file the plaintiff’s reply to a counterclaim in the answer within twenty (20) days after service of the answer or, if a reply is ordered by the court, within twenty (20) days after service of the order, unless the order otherwise directs. The service of a motion permitted under this Rule alters these periods of time as follows, unless a different time is fixed by order of the court:
(1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten (10) days after notice of the court's action.
(2) If the court grants a motion for a more definite statement the responsive pleading shall be served within ten (10) days after the service of the more definite statement.
(B) How Presented; Motion to Dismiss. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion:
(1) Lack of jurisdiction over the subject matter;
(2) Lack of jurisdiction over the person;
(3) Insufficiency of process;
(4) Insufficiency of service of process;
(5) Failure to state a claim upon which relief can be granted; or
(6) Failure to join a party under Rule 3-02.410.
A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 3-02.810, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.
(C) Motion for Judgment on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 3-02.810, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion.
(D) Preliminary Hearings. The defenses specifically enumerated as (1) through (6) in Subsection 3-02.340(B) of this Rule, whether made in a pleading or by motion, and the motion for judgment mentioned in Subsection 3-02.340(C) of this Rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.
(E) Motion for More Definite Statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before filing the party’s responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the
court is not obeyed within ten (10) days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.(F) Items of Account; Demand. The party pleading need not state the items of an account alleged in the pleading, but if demand is made in writing for the items of account, the adverse party shall file and serve a copy of the account within ten (10) days after demand, or be precluded from giving evidence thereof. The court may order a further account when the account delivered is too general or is defective.
(G) Motion to Strike. Upon motion made by a party before responding to a pleading, or if responsive pleading is permitted by these rules, upon motion made by a party within twenty (20) days after service of the pleading or upon the court's own initiative at any time, the court may order stricken from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.
(H) Consolidation of Defense in Motion. A party that makes a motion under this Rule may join with it any other motions herein provided for and then available to the party. If a party makes a motion under this Rule, but omits therefrom any defense or objection then available to the party which this Rule permits to be raised by motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in Subsection 3-02.340(I)(2) hereof on any of the grounds there stated.
(I) Waiver or Preservation of Certain Defenses. A party waives all defenses and objections that the party does not present either by motion as provided herein, or, if the party has made no motion, in the party’s answer or reply, except:
(1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived if: (a) it is omitted from a motion in the circumstances described in Subsection 3-02.340(H), or (b) it is neither made by motion under this Rule nor included in a responsive pleading or an amendment thereof permitted by Rule 3-02.370(A) to be made as a matter of course.
(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 3-02.410, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 3-02.300(A), or by motion for judgment on the pleadings, or at the trial on the merits.
(3) Whenever it appears to the court by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.
[History] Ord. 199 (11/12/03); Ord. 74 (5/5/88).
3-02.350 Counterclaim and Cross-Claim.
(A) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim that, at the time of serving the pleading the pleader has against any opposing party, if it arises out of the same transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if: (1) at the time the action was commenced the claim was the subject of another pending action; or (2) the opposing party brought suit upon the opposing party’s claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim, and the pleader is not stating any counter-claim under this Rule.
(B) Permissive Counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the same transaction or occurrence that is the subject matter of the opposing party's claim.