Lake Court of Indian Offenses
Code – “Revisions July 25, 2001”
There shall be one form of action to be known as a "Civil Action". The Red Lake Court of Indian Offenses shall have original jurisdiction over all civil actions arising under this Code, the Constitution, and at common law, by ordinance of the Red Lake Band of Chippewa Indians and wherein the cause of action arose within the boundaries of Red Lake Indian Reservation and in which all parties to the action are real parties in interest.
The party complaining in a civil action shall be called the plaintiff and the party against whom the complaint is made shall be called the defendant. A civil action is commenced against each defendant by filing a complaint with the Clerk of the Red Lake Court of Indian Offenses. Such commencement of the action shall be ineffectual unless within 45 days after the filing of the complaint the summons is actually served on each defendant.
A copy of the complaint shall be served with the summons.
The summons shall contain the following:
a) The name of the court; and
b) The names of the parties; and
c) It shall bear the signature of a judge of the Red Lake Court of Indian Offenses; and
d) It shall state that the defendant shall serve a copy of his/her answer to the complaint on the plaintiff within 20 days after the service of the summons upon him/her; and
e) It shall notify the defendant that if s/he fails to answer the complaint and serve his/her answer within the required time period, a judgment by default will be rendered against him/her for the relief demanded in the complaint.
The original answer of the defendant shall be filed with the Clerk of the Red Lake Court of Indian Offenses.
Any person, 18 years or older, may serve notice on any party or witness and shall provide proof of service. If the party served refuses or is unable to sign, the process server may sign in lieu of the party. If the non-responsive party fails to appear at the scheduled hearing and fails to offer a reasonable excuse, then the judge may enter a default judgment in favor of the party who appears.
(Section 200.06 revised to the Tribal Code by Tribal Resolution 292-93, dated September 14, 1993)
(Section 200.06 revised to the Tribal Code by Tribal Resolution No. 167-95 dated August 8, 1995),
An officer of the Red Lake Police Department may make service of the summons and other process on any enrolled adult Indian member of the Red Lake Band of Chippewa Indians. In addition, any person who is not a party to the action may make service of a summons.
The officer or person causing the service to be made shall attach to the summons and file with the Clerk of Court a return of service which shall state the place, date, time and person on whom the service was made. If service was caused by Certified Mail, the return receipt shall be filed with the Clerk of Court.
All pleadings, affidavits and other papers in connection with a civil action shall be filed with the Clerk of Court unless otherwise provided by this Code or by order of the Court.
A complaint shall contain the following information:
a) The name of the Court; and
b) The names of the parties; and
c) A short and plain statement of the claim showing that the pleader is entitled to relief; and
d) A demand for judgment for the relief to which the pleader deems himself entitled and if the demand is for property, a definite description of the property shall be made and if the demand is for money, the amount demanded shall be stated.
Subdivision 1. Generally. A party shall state in short and plain terms his defenses to each claim asserted by the adverse party. A copy of the answer shall be mailed by the defendant to the plaintiff, and the original thereof filed with the Clerk of Court within the time period allowed for answering the complaint as provided herein.
Subdivision 2. Types of Defenses. The answer may contain the following types of defenses to the claim asserted by the adverse party:
a) Admission of the entire claim or any part of the claim.
b) Denial of the entire claim or any part or portion of the claim.
c) A statement that the pleader is without knowledge or information sufficient to form a belief as to the truth of the claim or any portion of the claim. This statement has the same effect as a denial of the claim.
d) A statement that the Court lacks jurisdiction over the subject matter of the action or over the parties.
e) A statement that the facts stated by the adverse party do not constitute a cause of action for which relief can be granted.
f) A statement that the action is barred by the statute of limitations.
g) Any and all other matters constituting an avoidance of the claim shall also be stated.
The defendant may assert in his/her answer a counterclaim against the adverse party and in the event the plaintiff shall have ten (10) days from the date of service of the counterclaim upon him/her to serve a copy of his/her reply to the counterclaim upon the defendant and file the original thereof with the Clerk of Court. The original reply to the counterclaim shall be filed with the Clerk of Court. The counterclaim shall set forth any claim that the defendant shall have against the plaintiff.
Within fifteen (15) days after the answer has been filed with the Clerk of Court, the Clerk of Court shall schedule a pre-trial conference and shall notify the plaintiff and defendant of the time, date and place of said conference. At the pre-trial conference, the presiding judge shall ascertain the following:
a) Whether or not a jury trial is requested by any of the parties;
b) Whether or not some or all of the issues in the dispute can be settled without a formal adjudication;
c) Whether or not justice requires any party to answer written interrogatories, produce any documents or other evidence, or otherwise engage in any pre-trial discovery considered proper by the judge. If the judge determines that pre-trial discovery is proper, s/he shall set forth the nature, extent and time scheduled for completion of pre-trial discovery;
d) Whether or not the claim is ready for trial:
1. If the claim is ready for trial, the judge shall set a date for trial as soon as practical.
2. If the claim is not ready for trial, the judge shall set a subsequent date for trial.
Subdivision 1. Upon request of any party or upon the Court's own initiative, the Court shall issue subpoenas to compel the testimony of witnesses, or the production of books, records, documents or any other physical evidence relevant to the determination of the case and not an undue burden on the person possessing the evidence. An employee of the Court may act on behalf of the Court and issue subpoenas which have been signed by a judge and which are to be served within the confines of the Reservation.
Subdivision 2. A subpoena shall bear the signature of the Chief Judge or an Associate Judge of the Court and it shall state the name of the Court, the name of the person or description of the physical evidence to be subpoenaed, the title of the proceeding, and the time and place where the witness is to appear or the evidence is to be produced.
A subpoena may be served in the manner prescribed in Section 200.06 and 200.07.
In the absence of a jurisdiction satisfactory to the Court, a person who fails to obey a subpoena issued and served in accordance with the provisions of this Code may be cited and held in contempt of court.
Subdivision 1. Right to Jury Trial. The right to a trial by jury shall extend to all cases without regard to the amount in controversy. A jury trial may be waived by the parties in all cases.
Subdivision 2. Impaneling of Jurors. The jury shall be impaneled in the same manner as in criminal trials.
Subdivision 3. Challenges. Either party may challenge the panel or individual jurors thereon for the same causes and in the same manner as in criminal trials, except that the number of peremptory challenges to be allowed shall be as provided in this section. A sufficient number of jurors shall be impaneled so that six (6) shall remain after the exercise of the peremptory challenges as provided in this section. Before challenging a juror, each party may examine him/her in reference to his/her qualifications to sit as a juror in the cause. Each party shall be entitled to two (2) peremptory challenges, which shall be made alternately beginning with the defendant. When the peremptory challenges have been exhausted or declined, the first six of the remaining jurors shall constitute the jury.
In a civil case when the jury is completed and sworn, the trial shall proceed in the following order:
a) The plaintiff shall orally state his/her case and then shall produce the evidence on his/her part.
b) The defendant may then state his/her case and produce his/her evidence in support of his case.
c) The parties may then respectively offer rebuttable evidence only.
d) When the evidence has been concluded, the parties may present closing arguments with the defendant proceeding first and the plaintiff proceeding last.
e) When the arguments are closed, the Court shall instruct the jury.
All testimony of witnesses shall be given orally under oath in open Court and subject to the right of cross examination. Documentary and tangible evidence shall also be received in open court.
The verdict of the jury shall be unanimous among its members, except, that after two hours of deliberation without unanimous agreement among the members of the jury, an agreement by five-sixths of the members of the jury may be sufficient to return a verdict.
(Section 200.20, Verdict, amended to Tribal Code by Resolution No. 98-98, dated June 9, 1998)
Subdivision 1. An Indian is criminally liable for a crime committed by another person if the Indian intentionally aids, advises, hires, counsels, assists or conspires with another person for that person to violate the law, rules or regulations of the Red Lake Band of Chippewa Indians. An Indian convicted under this Section may be imprisoned or fined or both in the same manner as if the Indian had directly committed the crime.
Subdivision 2. An Indian criminally liable under Subdivision 1 hereof may be charged with or convicted of the crime committed by the other person even if the person who directly committed the crime has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.
Subdivision 3. Any Indian who intentionally aids, advised, hires, counsels, assists or conspires with another person for that person to commit a crime and thereafter the Indian abandons that purpose and makes a reasonable attempt to prevent the commission of the crime prior to its commission is not criminally liable if the crime is thereafter committed.
Subdivision 4. The provisions of Section 1000.08 and 1000.09 of the Red Lake Tribal Code relating to seizure and confiscation of personal property used in the commission of a crime are applicable to charges and convictions under Section 200.21 of the Red Lake Tribal Code.
(Section 200.21 added to the Tribal Code by Resolution 276-91, dated October 8, 1991)
A judgment shall be entered in each civil case. The judgment shall be for money or other relief or for dismissal. A judgment is complete and is entered when it is signed by the judge and filed with the Clerk of Court.
When a party against whom a judgment for relief is sought has failed to defend or otherwise answer the claim within the time allowed by this Code, and that fact is made to appear by an affidavit, judgment by default shall be entered by the presiding Judge against the non-answering party for the relief to which the party in whose favor the judgment is rendered, sought in his/her pleading. The judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.
A judgment may be satisfied in whole or in part as to any or all of the judgment debtors by the owner of the judgment executing under oath and filing with the Clerk of Court an acknowledgment of satisfaction specifying the amount paid and whether it is full or partial satisfaction.
A judgment shall constitute a lien on any non-exempt property owned by the judgment debtor. Notice of this lien may be placed by the judgment creditor in the public records of any county or state where the judgment debtor owns such property.
No judgment of the Court for money shall be enforced after ten (10) years from the date of filing with the Clerk of Court, unless application to renew the judgment shall have been filed before the date of expiration pursuant to Section 201.06.
Upon application of the judgment creditor prior to the expiration of ten years after the date of the filing of a judgment for the payment of money, the Clerk of Court shall renew the judgment and extend it for an additional ten (10) years.
If any final judgment for money rendered by the Court is not satisfied within thirty (30) days of its filing by the Clerk of Court, it may be enforced by any manner allowed by law; including, but not limited to execution against any non-exempt property of the judgment debtor. If the judgment requires the performance of any act, or the forbearance from acting, a certified copy of the judgment may be served upon the party to whom it is directed and if that party shall refuse to obey such judgment s/he may be punished by the Court as provided in contempt proceedings.
Except as provided in
section, no execution or enforcement of a judgment shall issue on any
in a civil case until the expiration of thirty (30) days after its
filing. When an appeal has been taken from
judgment, the Court may stay the enforcement of its judgment or it may
grant an injunction during the pendency of the appeal on such terms as
considers just for the security of the rights of the adverse party to
COSTS AND FEES AND DISBURSEMENTS
At the time of filing his/her complaint with the Clerk of Court, the plaintiff shall pay to the Clerk of Court a filing fee in the amount of $15.00.
Subdivision 1. Definition. Costs are certain sums of money that may be allowed to the prevailing party for expenses in the action and added to the judgment.
Subdivision 2. Allowable Costs. The following costs shall be allowed in all actions:
a) To the plaintiff, if a judgment is rendered in his favor $15.00.
b) To the defendant, if the case is dismissed or if a judgment is rendered in his/her favor on the merits, $15.00.
Subdivision 1. Definition. Disbursements are expenses necessarily paid or incurred in an action by the prevailing party and which may be added to the judgment. Disbursements may include service of process fees and mileage of the process server, witness fees, discovery fees and other fees and costs associated with the maintenance of the action.
Subdivision 2. Taxation of Disbursements. Within five (5) days after a judgment has been rendered and before the filing of the same with the Clerk of Court, the prevailing party may apply to the Court for taxation of disbursements. A copy of the application shall be served upon the opposing party by mail at the party's last known address. The application shall contain relevant information which proves that the disbursement was necessarily paid or incurred. The opposing party shall file a response to the application with five (5) days of receipt thereof and shall file within ten (10) days after the judgment is rendered, the Clerk of Court shall tax the disbursements pursuant to the prevailing party's application. If a response is filed within the time limit set forth herein, the matter shall be set on for hearing before the Court at the earliest practical time. If the Court shall find that the expenses of the prevailing party were necessarily paid or incurred in the maintenance of the action, it may order that the same be taxed in favor of the prevailing party and included within the judgment.
There shall be exempt from the satisfaction or payment of all judgments for money, the following property of the judgment debtor or the debtor's spouse:
Subdivision 1. All wearing apparel, clothing, personal effects, household furniture and household appliances, of the debtor and his/her family, not exceeding $1,500.00 in value.
Subdivision 2. Farm machines and implements used in farming operations by a debtor principally engaged in the business of farming and livestock, farm produce and standing crops.
Subdivision 3. The tools, implements, machines, including trucks or other motor vehicles, instruments, office furniture, stock in trade and library normally necessary in the trade, business or profession of the debtor.
Subdivision 4. All money arising from any claim on account of the destruction of or damage to, exempt property.
Subdivision 5. All money received by or payable to a surviving spouse or child from insurance payable at the death of a spouse or parent, not exceeding $20,000.00.
Subdivision 6. All retirement allowances, benefits and pensions.
Subdivision 7. A pew or other settings in any house of worship and Indian, cultural or religious regalia.
Subdivision 8. A lot or lots in any burial ground.
Subdivision 9. One Bible, all schoolbooks and all other books not exceeding $500.00 in value.
Subdivision 10. One rifle, one shotgun or one hand gun.
Subdivision 11. Real property held in trust by the United States Government.
Subdivision 12. 85% of net wages earned from a persons employment.
Subdivision 13. All relief based on need and the wages or salary of a person who is a recipient of relief based on need. For the purposes of this Subdivision, relief based on need includes AFDC, general assistance, medical care, supplemental security income, medical assistance and general assistance.
Subdivision 14. The house owned and occupied by a debtor as his/her dwelling place, together with the land upon which it is situated.
(Section 203.01 modified, added or amended by Resolution No. 308-92, dated September 15, 1992.)
The exemptions provided for in Section 203.01 may be subject to the satisfaction and payment of judgments where the judgment debtor has executed in writing a valid and lawful mortgage or security agreement with the judgment creditor specifically pledging such property as collateral and waiving the exemptions granted in Section 203.01.
If the judgment debtor has funds to his/her credit in the Red Lake Agency Office or expects to receive funds through said office, the Red Lake Agency Office may pay such funds to the judgment creditors, pursuant to law, to the extent that said funds are not exempt by Section 203.01 or said payment is prohibited by Congress.
The party in whose favor a judgment is given or the assignee of such judgment, may proceed to enforce or collect the same at any time within 10 years after the entry thereof, in the manner provided by law.
When a judgment requires the payment of money, or the delivery of real or personal property, it may be enforced in those respects by execution. Where the judgment requires the performance of any other act, a certified copy of the judgment may be served upon the party against whom it is given or the person or officer who is required thereby or by law to obey it and if s/he refuses to obey the judgment s/he may be punished by the Court as a contempt and his/her obedience thereto enforced.
Upon application to the Court by a judgment creditor, the Court shall issue a Writ of Execution. The Writ of Execution shall refer to the judgment, the names of the parties to the judgment, the amount of the judgment, and the time and date the judgment was entered. The Writ of Execution shall be directed to the Red Lake Police Department and shall require the Police Department to do the following:
a) To satisfy the judgment, with interest, out of the non-exempt personal property of the judgment debtor that can be found and if sufficient personal property cannot be found to satisfy the judgment then to satisfy the same out of the non-exempt real property of the judgment debtor which can be found;
b) If the judgment requires the delivery of possession of real or personal property, the Writ of Execution shall require the Police Department to deliver possession of the same to the party entitled thereto.
The Red Lake Police Department shall enforce a Writ of Execution against personal property capable of manual delivery of the judgment debtor by seizing the same and taking it into custody. After the seizure has been completed, the property shall be sold by the Red Lake Police Department and the proceeds of such sale, after deducting costs and expenses, shall be paid to the judgment creditor to the extent as will satisfy the execution.
Subdivision 1. Notice of Sale. Before the sale shall take place, the Red Lake Police Department shall post in its office and in the office of the Tribal Council of the Red Lake Band of Chippewa Indians for ten (10) consecutive days a printed notice of the sale stating the time and place of the sale and a description of the items of property to be sold.
Subdivision 2. Conducting Sale. The sale shall be by public auction to the highest cash bidder. Only so much of the property shall be sold as is sufficient to satisfy the execution and the costs of holding the sale. The Red Lake Police Department nor its officers, agents or employees may purchase at the sale.
Subdivision 3. Certification of Sale. The Red Lake Police Department shall execute to the purchaser at said sale a Certificate of Sale which shall transfer to the purchaser all the right, title and interest of the judgment debtor in and to said property. The Certification of Sale shall be subject to any valid liens or security agreements affecting the property sold.
Wages, salaries, contract fees, and other monies due and owing are subject to garnishment if the garnishee is subject to the jurisdiction of the Red Lake Nation and under the requirements of the following provisions.
(a) Garnishee means the person who employs the debtor or who holds monies due or expected to be due and owing to the debtor.
(b) Debtor, or Judgment Debtor, means the person against whom a judgment has been issued from a court of competent jurisdiction.
(c) Creditor, or Judgment Creditor, means the person to whom money is owed according to a judgment entered in a court of competent jurisdiction.
(d) Net earnings means the remainder after the following deductions have been withheld from the gross earnings: federal withholding tax, social security deductions, mandatory pension deductions, union dues, check-off and mandatory health insurance deductions.
Subdivision 2. Limits of Garnishment. After service of the Garnishment Summons as provided herein,
(a) The Garnishee shall withhold the earnings, salary, wages, or other monies due and owing at the time of service and thereafter until otherwise ordered by the Court.
(b) The Garnishee shall retain an amount no more than Six Hundred Dollars ($600.00) per month, but in no event shall the Garnishee retain from the Debtor an amount that would reduce the Debtor's remaining take-home earnings to less than net earnings minimum wage.
(c) The Garnishment shall pertain to monies only and shall not subject personal property to garnishment.
(d) The total amount withheld from the Debtor by the Garnishee shall not exceed the total amount of the Judgment filed with the Clerk of Court for the Court file.
Subdivision 3. Continued Employment. No employer may discharge any employee by reason of the garnishment or prejudice his/her employability therefore during the period of withholding or thereafter.
Subdivision 4. Assignments. Any assignment of earnings, wages or salary, funds, or negotiable instruments made within ten (10) days prior to the receipt of the first garnishment on a debt is void by operation of law and not enforceable against a garnishment action, and may not be used as a defense to a garnishment action.
Subdivision 5. Termination of Judgment Debt. Discharge of the debt in the cause brought pursuant to this Section shall satisfy in full the debt owed subject to the Judgment upon which the action is based. Discharge may be accomplished by written agreement of the judgment parties, signed by the judgment parties, and filed with the Court, or by a statement from the Garnishee that the payments have been made in full and the debt is satisfied.
Subdivision 6. Initiation of Garnishment Action. A Garnishment Complaint filed with the Court must contain two attachments: (A) a certified copy of the Judgment evidencing the Debt for which the garnishment is being requested, and (B) a sworn Affidavit by the complainant must be attached to the Complaint, stating that to the best of his/her information and belief, the Garnishee holds funds due and owing to the Judgment Debtor.
An original and two (2) copies of the Complaint and attachments shall be filed with the Clerk of Court. If the Garnishment Complaint and the two (2) required attachments are not filed properly, the Clerk of Court shall not accept the documents for filing with the Court. The fee for filing shall be Sixty Dollars ($60.00), which may, in the Judge's discretion, be waived on the basis of financial hardship.
Subdivision 7. Judgment. Judgment may be entered against a Garnishee for the amount of the judgment. Such judgment shall acquit and discharge the Garnishee from all claims of all the parties named in the Garnishment Cause from all further claims of the parties named in the process.
Subdivision 8. Notice, Summons. When the Clerk of Court receives the filing of a garnishment complaint and s/he has determined that the proper attachments accompany the complaint, i.e. the certified copy of the Judgment and the Affidavit, then the Clerk shall cause the Debtor and the Garnishee to be served with a copy of the Complaint together with the attachments thereto and the Garnishment Summons.
The Clerk of the Court shall prepare the Garnishment Summons which shall contain the following:
RED LAKE NATION COURT
Name and Address
Name and Address
Name and Address
TO THE ABOVE NAMED GARNISHEE:
YOU ARE HEREBY SUMMONED AND REQUIRED TO SERVE UPON THE JUDGMENT CREDITOR, NAMED ABOVE, WITHIN 30 DAYS AFTER THE DATE SERVICE OF THIS SUMMONS IS MADE UPON YOU, WRITTEN INFORMATION, MADE UNDER OATH, SETTING FORTH YOUR INDEBTNESS TO THE JUDGMENT DEBTOR, NAMED ABOVE, INCLUDING ANY MONIES DUE AND OWING AT THE TIME SERVICE IS MADE UPON YOU, AND INCLUDING THE AMOUNT OF ANY AND ALL REGULAR MONIES HELD BY YOU FOR THE BENEFIT OF THE JUDGMENT DEBTOR HEREIN, OR PAID BY YOU TO THE JUDGMENT DEBTOR HEREIN.
YOU ARE HEREBY REQUIRED BY LAW TO RETAIN AND WITHHOLD FUNDS DUE AND OWING TO THE JUDGMENT DEBTOR, , AND HOLD THE SAME IN YOUR POSSESSION, IN THE AMOUNT OF NOT MORE THAN SIX HUNDRED DOLLARS ($600.00) PER MONTH. IN ADDITION, IF YOU ARE THE DEBTOR'S EMPLOYEE, IN NO EVENT SHALL YOU RETAIN FROM THE DEBTOR AN AMOUNT THAT WOULD REDUCE THE DEBTOR'S REMAINING TAKE-HOME EARNINGS TO LESS THAN NET EARNINGS AT MINIMUM WAGE.
YOU SHALL RETAIN SAID FUNDS IN YOUR POSSESSION UNTIL SUCH TIME AS: (1) THE COURT SERVES A WRIT OF EXECUTION UPON YOU, (2) THE JUDGMENT DEBTOR AUTHORIZES RELEASE TO THE JUDGMENT CREDITOR, OR (3) THE EXPIRATION OF NINETY (90) DAYS FROM THE DATE OF SERVICE UPON YOU WITHIN WHICH TIME, NO FURTHER ACTION OR NOTICE HAS BEEN SERVED UPON YOU, WHEN YOU SHALL RETURN SAID FUNDS TO THE JUDGMENT DEBTOR NAMED HEREIN ABOVE.
ANY ASSIGNMENT OF EARNINGS, WAGES OR SALARY, FUNDS, OR NEGOTIABLE INSTRUMENTS MADE WITHIN TEN (10) DAYS PRIOR TO THE RECEIPT OF THE FIRST GARNISHMENT ON A DEBT IS VOID AND SHOULD BE DISREGARDED.
YOU ARE PROHIBITED BY LAW FROM DISCHARGING THE JUDGMENT DEBTOR NAMED HEREIN ABOVE BECAUSE THE JUDGMENT DEBTOR'S EARNINGS HAVE BEEN SUBJECTED TO GARNISHMENT.
THIS SUMMONS IS ISSUED THIS , DAY OF , 20 .
` CLERK OF THE TRIBAL COURT
204.06, previously authorized by Resolution No. 33-93, amended
by Resolution No. 16-94, dated January 11, 1994)
No person shall make entry onto land permits, dwellings, or rented tenements except in cases where his/her entry is allowed by law, and in such cases s/he shall not enter by force, but only in a peaceable manner.
(Section 205.01 amended to Tribal Code by Resolution No. 16-94 dated January 11, 1994)
When any person has made unlawful or forcible entry into lands or tenements and detains the same, or, having peacefully entered, unlawfully detains the same, the person entitled to possession may recover possession thereof in the manner hereinafter provided.
When a person holds over land permits, dwellings, or rented tenements in violation of a mortgage foreclosure, judgment, lease agreement, or writ issued by the Tribal Court the person entitled to the land permit, dwelling, or rented tenement, may recover possession thereof in the manner herein provided.
(Section 205.03 amended to Tribal Code by Resolution No. 16-94, dated January 11, 1994)
The person complaining shall file a complaint with the Clerk of Court stating in the complaint the premises to which possession is claimed, the facts which authorize the recovery of the premises and demanding a return of the premises. The Clerk of Court shall issue a summons, commanding the person against whom the complaint is made to appear before the Court on the date and at the place stated in the summons. The appearance shall be not less than twenty (20) business days nor more than forty (40) business days from the date the summons is issued. A copy of the complaint shall be attached to the summons.
(Section 205.04 amended to Tribal Code by Resolution No. 16-94, dated January 11, 1994)
The summons shall be served at least fifteen (15) business days before the hearing date scheduled in the summons and it shall be served in the manner provided for service of summons in a civil action.
(Section 205.05 amended to Tribal Code by Resolution No. 16-94, dated January 11, 1994)
At the time and place scheduled for the hearing, if the defendant appears, s/he may answer the complaint and allege all matters in excuse, justification or avoidance of the allegations in the complaint. Thereupon, the Court shall hear and determine the action, without a jury, or it may adjourn the trial as provided in Section 205.07. The proceedings in such action shall be the same as in other civil actions, except as this chapter provides.
The Court, in its discretion, may adjourn the trial, but not beyond twenty-one (21) business days after the time scheduled in the summons as the hearing date.
(Section 205.07 amended to Tribal Code by Resolution No. 16-94, dated January 11, 1994)
If the Court finds for the plaintiff, it shall immediately enter judgment that the premises be returned to the plaintiff and it shall tax costs and disbursements for the plaintiff. The judgment shall contain a direction to the Red Lake Police Department requiring it to restore possession of the premises to the plaintiff. If the defendant shall show that an immediate restoration of the premises to the plaintiff would cause a substantial hardship to the defendant or his/her family, the Court, in its discretion, may stay the enforcement or the judgment for a reasonable period of time, but in no event shall the stay exceed thirty (30) business days from the date of judgment. If the Court finds for the defendant, the Court shall enter judgment for the defendant and tax costs and disbursements against the plaintiff.
(Section 205.08 amended to Tribal Code by Resolution No. 16-94, dated January 11, 1994)
If the party against whom the judgment is rendered states to the Court that s/he intends to take an appeal, the enforcement of the judgment may be stayed pending the appeal upon the condition that such party shall post with the Clerk of Court sufficient security, as determined by the Court, to pay all costs and damages in the case on the appeal if the appealing party shall lose the appeal.
The form of the judgment rendered by the Court in favor of the plaintiff in an action under this chapter shall be substantially in the following terms:
At the above named Court held at on the _____ day of ____________________, 20____, before , a judge in and for said Court in an action between , as plaintiff, and , as defendant, the Court finds that the facts alleged in the complaint are true and that the said plaintiff shall have restitution of the premises therein described without any further delay;
NOW THEREFORE, the Red Lake Police Department, is directed as follows:
1. You are commanded to cause the said to be immediately removed from the following premises: , and to turn over possession of said premises to ; and further,
2. You are commanded to remove the personal property of said from said premises and to levy upon said personal property as well as any other personal property belonging to said the sum of $ , being the costs and disbursements taxed against the said , together with $15.00 for the execution of this judgement; and further,
3. You are to make due return of this judgment to the Court within 30 days from the date hereof.
Dated at _________________________________________, this _____ day of ______________________, 20____.
Judge of Red Lake Court of Indian Offenses
If the Court shall find for the defendant, its judgment shall be sufficient if it finds that the facts alleged in the complaint are not true.
Subdivision 1. Removal of Defendant. The Red Lake Police Department shall execute the judgment of restitution by making a demand upon the defendant, or other person in charge thereof, for the possession of the premises described in the judgment of restitution and that the defendant remove himself/herself, his/her family and all of his/her personal property from the premises within seven (7) business days after such demand. If the defendant shall fail to comply with the demand, then the police officer shall take with him/her only which is required and as much assistance as may be required to assist the defendant to remove his/her family and their possession(s) from the premises and restore the complainant to possession of the dwelling.
Subdivision 2. Defendant Not Found. If the defendant cannot be found and there is no person in charge of the premises, then the police officer shall enter the premises, breaking in if necessary, and remove all property of the defendant and restore possession of the premises to the plaintiff.
Subdivision 3. Lien for Storage. If the Red Lake Police Department is required pursuant to Subdivision 1 and 2 hereof to remove the property of the defendant it shall cause the same to be properly cared and stored. The police department shall have a lien upon all of said property except personal clothing and toiletries for the reasonable costs and expenses incurred in removing and transporting the property and for the proper caring and storing of the same. The police department shall forfeit their rights to cost and expenses if the property is damaged as a result of negligence by the police. If the police have exercised due care in transporting and removing such property and belongings of the defendant, then the police department shall have the right to enforce said lien by detaining the property unit the costs described herein are paid. In case of non-payments of reasonable costs and expenses incurred in removing and transporting the property and for proper caring and storing, within ninety (90) business days after the property has been removed to a storage place, the police department shall have a further right to enforce its lien by foreclosing of the same and public sale as provided in Section 204. 04 and 204.05.
205.05, 205.07, 205.08 and 205.11 amended by Resolution No. 16-94,
January 11, 1994)
A plaintiff may seek to recover possession of personal property through a lawsuit against the defendant, in the manner prescribed in this chapter.
Subdivision 1. Complaint. A plaintiff seeking to remove possession of personal property shall serve a summons and complaint as prescribed by law; except, the complaint shall be verified under oath and shall state the following:
a) A description of the personal property sought to be recovered by the plaintiff;
b) The facts giving rise to the plaintiff's right to possession, attaching to the complaint a copy of the documents, if any, evidencing the plaintiff's right to possession;
c) The facts showing that defendant is wrongfully detaining the property from plaintiff;
d) If the property being claimed is security for an obligation, then the date and the amount of the original obligation shall be stated plus the amount which has been paid to the plaintiff and the amount currently owing to the plaintiff;
e) A good faith approximation of the current market value of each item of property being claimed by the plaintiff.
Subdivision 2. Summons. Upon filing a proper complaint with the Clerk of Court of the Red Lake Court of Indian Offenses, the Clerk shall issue a summons in the usual form with the following changes:
a) A date, time and place for a hearing which shall be held within fourteen (14) days of the service of the summons and complaint;
b) A statement that the defendant has a right to appear at the hearing and present defense to plaintiff's claim and to state other reasons why plaintiff is not entitled to the property;
c) A statement that if the defendant does not appear at the hearing, the Court has authority to issue a judgment directing that the property described in the complaint be taken from the possession of the defendant.
At the time and date scheduled for the hearing, for good cause shown, the Court may grant a continuance for an additional 10 days. If either party shall request a jury trial, a continuance shall be granted for an additional 10 days in order to provide for the jury trial.
After the hearing, a judgment ordering the seizure of the property described in the complaint from the defendant and a delivery of the same to the plaintiff shall be entered if the plaintiff has shown by a preponderance of the evidence that s/he is entitled to the possession of the property.
Subdivision 1. The judgment for seizure shall be in the form of an order which shall contain the following:
a) Identification of the property to be seized;
b) A direction of the Red Lake Police Department to seize the property.
Subdivision 2. The judgment for seizure may contain the following:
a) Description of the place or places which may be entered by force by the Red Lake Police Department;
defendant, his/her agents or employees to deliver the property to the
or disclose its location and if delivery is not made or the location is
disclosed, that the defendant must appear in Court at a specified time
place to give testimony as to the location of the property and to show
why an order should not be entered finding defendant in contempt of
failure to deliver the property or to disclose its location.
If a default has occurred in the terms and conditions of a loan in which an Indian has executed a valid waiver of collateral as defined in Section 100.031 of the Red Lake Tribal Code, the creditor may enter upon the lands of the Red Lake Indian Reservation to take possession of the collateral which secures the loan.
The creditor, in taking possession of collateral as provided in Section 206A.01 hereof, may proceed without judicial process if the repossession of the collateral can be accomplished without a breach of the peace and on the condition that the debtor executes a written statement that he/she has voluntarily relinquished possession of the collateral to the creditor.
206A.01 and 206A.02 added by Resolution
dated Tuesday, February 11, 1992)
Every mortgage of a house or interest therein signed which contains a power of sale upon default being made in any condition thereof may be foreclosed in accordance with the provisions of this chapter within ten (10) years after the maturing of such mortgage or the debt secured thereby.
(Section 207.01 amended to Tribal Code by Resolution No. 16-94, dated January 11, 1994)
To entitle any party to make a mortgage foreclosure, it is a pre-requisite:
a) That some default in a condition of such mortgage has accrued by which the power to sell has become operative;
b) That no other action or proceeding has been instituted at law to recover the debt then remaining secured by such mortgage, or any part thereof, or if the action or proceeding has been instituted, that the same has been discontinued or that an execution upon the judgment rendered therein has been returned unsatisfied, in whole or in part.
c) That an application be made to the Red Lake Court of Indian Offenses for an Order requiring the sale of said premises in accordance with the provisions of this chapter.
Upon an application being filed with the Court requesting an Order of foreclosures, a hearing on said application shall be set within ten (10) days after the filing of an application. A copy of the Notice of the hearing shall be served on the defendant and other person in possession of the premises at least five (5) days prior to the date of the hearing. Service of the Notice shall be made in accordance with service of process in civil actions. If the party seeking foreclosure shall establish at the hearing, by a preponderance of the evidence, that a default has occurred in the conditions or terms of such mortgage and that such default causes the power of sale to become operative, the Court shall enter an Order requiring the property to be sold in accordance with the provisions of this Chapter.
A copy of a notice of sale that such mortgage will be foreclosed by a sale of the mortgaged premises shall be served just like a summons in a civil action upon the mortgagors and the persons in possession of the mortgaged premises. Service shall be made upon such persons at least two (2) weeks before the date of the sale. In addition, such notice of the sale shall be posted for at least four (4) weeks prior to the sale at three (3) public locations within the Red Lake Indian Reservation.
The Notice of Sale shall specify the following:
a) The name of the mortgagor and of the mortgagee;
b) The date of the mortgage and when and where recorded;
c) The amount claimed to be due on the mortgage as of the date of the notice:
d) A legal description of the mortgage premises and street address if possible;
e) The time and place of the sale; and
f) The time allowed for redemption by the mortgagor from the sale.
The sale shall be made by the Red Lake Police Department at public auction to the highest bidder between 9:00 a.m. and 4:30 p.m. exclusive of Saturdays, Sundays and legal holidays.
The sale may be postponed from time to time by posting a new notice and continuing the new posting for the time required by law and serving the mortgagors and persons in possession of the premises with such notice as required by law.
The mortgagee, its assigns and legal representatives, may fairly and in good faith purchase the premises at such sale.
When any sale of a house or interest therein is made pursuant to this chapter, the Red Lake Police Department shall make and deliver to the purchaser a certificate of sale which shall contain the following:
a) A description of the mortgage;
b) A description of the house sold;
c) The price paid for the house;
d) The time and place of the sale and the name of the purchaser;
e) The time allowed by law for redemption.
Upon expiration of the time for redemption, the Certificate of Sale shall automatically operate as a conveyance to the purchaser or his/her assigns of all the right, title and interest of the mortgagor in and to the premises named in the certificate at the date of such mortgage.
(Section 207.09 amended to the Tribal Code by Resolution No. 16-94, dated January 11, 1994)
Filing of the following documents with the Secretary of the Red Lake Band of Chippewa Indians shall be his/her authority to transfer upon the expiration of the period of redemption:
a) Copy of Court Order;
b) Certificate of Sale;
c) The notice of sale with proof attached thereto that the same was served and posted according to the provisions of law;
d) An affidavit by the Red Lake Police Department that the lands have not been redeemed from the sale pursuant to law.
Upon filing of such documents with the Secretary of the Red Lake Band of Chippewa Indians, the same shall be prima facie evidence of the facts contained in said documents.
(Section 207.10 amended to Tribal Code by Resolution No. 16-94, dated January 11, 1994)
Within ten (10) days after the sale, the foreclosing party shall make and file with the Police Department of the Red Lake Band of Chippewa Indians an affidavit of the costs and disbursements of the foreclosure, including any counsel fees, and stating therein that the same have been paid or incurred in connection with the foreclosure.
Subdivision 1. When the house or any interest therein has been sold in accordance with this chapter, the mortgagor, his/her personal representative or assigns, within sixty (60) days after such sale may redeem such lands from the sale as hereinafter provided by paying the following sums of money to the Red Lake Police Department on behalf of the person who holds the rights acquired under such sale:
a) The sum of money for which the house was sold, and;
b) Interest from the time of the sale at the rate provided in the mortgage debt, and;
c) The costs and disbursements stated in the affidavit required pursuant to Section 207.11.
amended to the
Tribal Code by Resolution No. 16-94, dated January 11, 1994)
JUDICIAL PROOF AND EVIDENCE IN CIVIL CASES
208.01 Standard of Proof
The party asserting a claim in a civil matter has the burden of proving the claim so asserted. In order for the claim to be proven it must be proven by a fair preponderance of all of the evidence.
208.02 Evidence in Civil Cases
A judge conducting a hearing in a civil case is not bound by the common law or technical or formal rules of evidence but is bound by Indian tradition, custom and usage. The hearing shall be conducted in a manner so as to ascertain the substantial right of the parties. Findings shall be based upon competent evidence only.
Red Lake Band of
Indians consists of and possesses jurisdiction over the territory
the boundaries of the Red Lake Indian Reservation together with those
of land added to the Reservation of the Red Lake Band of Chippewa
Indians. The Red Lake Band of Chippewa
be immune from lawsuits of any nature without having first given its
Actions can only be commenced with the periods prescribed in this chapter after the cause of action accrues. Except as otherwise prescribed, the following actions shall be commenced within, three (3) years:
a) Upon a contract or other obligation, expressed or implied; and
b) Upon a liability created by this Code; and
c) Trespass upon real estate; and
d) For taking, detaining, or injuring personal property, including actions for the specific recovery thereof; and
e) For criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated; and
f) For libel, slander, assault, battery, false imprisonment or other tort resulting in personal injury.
Any of the following grounds of disability, existing at the time when a cause of action occurred or arising anytime during the period of limitation shall suspend the running of the period of limitation is removed:
a) That the Plaintiff has not obtained the age eighteen (18) years; and
b) Plaintiff's insanity; and
c) Plaintiff or Defendant is not a resident of the Red Lake Indian Reservation.
so-exist, the suspension shall continue until all are removed.
A temporary restraining order may be granted by the Red Lake Court of Indian Offenses without notice to the adverse party if it clearly appears from specific facts shown by an affidavit attached to the complaint that immediate and irreparable injury, loss or damage will result to the Plaintiff before the Court can schedule a hearing. In the event the Court grants a temporary restraining order, the order, complaint and affidavit shall be served on the opposing party(s). When the Court grants a temporary restraining order, the hearing for the permanent injunction thereon shall be set for hearing at the earliest practicable time and shall take precedence over all other matters. If the party in whose favor a temporary restraining order was granted shall refuse to proceed toward obtaining a permanent injunction, the Court shall dissolve the temporary restraining order.
trial of the
action on the
merits of the lawsuit shall be consolidated with the hearing on the
212.01 Civil Defamation. Any person who commits act(s) of Defamation against any other person within the jurisdiction of the Red Lake Band of Chippewa Indians shall be strictly liable for damages therefor and/or restitution as the Court directs. Intent, whether general or special, shall not be an element of the offense.
Subdivision 1. Jurisdiction. The Red Lake Tribal Court shall have jurisdiction over all cases and causes of action arising hereunder.
Subdivision 2. Definitions.
A. Act of Defamation. For purposes of this statute, an "act of defamation" shall include any defamation, libel or slander, issued or caused to be issued, orally or by distribution or sale, within the jurisdiction of the Red Lake Band of Chippewa Indians.
B. Defamation. For purposes of this statute, the term "defamation" shall mean an untruthful communication or anything that exposes a person or a group, class of persons, a business or other association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to a person's ability to work, conduct business or conduct his/her/their occupation.
C. Libel. For purposes of this statute, the term "libel" shall mean any written matter which exposes a person, group of persons, business, or other association to hatred, contempt , ridicule, degradation or disgrace in society, or injury to a person's ability to work, conduct business or conduct his/her/their occupation.
D. Slander. For purposes of this statute, the term "slander" shall mean any spoken matter which exposes a person, group of persons, business, or other association to hatred, contempt, ridicule, degradation or disgrace in society, or injury to a person's ability to work, conduct business or conduct his/her/their occupation.
E. Person. For purposes of this statute, the term "person" shall mean any individual, business, group of individuals, association of individuals, including minors and adults.
Subdivision 3. Retraction. If the Court has determined that a defamation has occurred and that a retraction is advisable, the court may order the Defendant to print, advertise, or otherwise publish a retraction of the defamatory matter. If a retraction is Ordered by the court, the words ''RETRACTION" shall appear in bold capital letter above. The Court may order a retraction in addition to and not in lieu of any other consequences for criminal or civil defamation.
Subdivision 4. Proof Required. The proof required shall be as follows: That the Defendant communicated in writing, orally, or by other means information which the Defendant knew or had reason to know was defamatory to a third person without the consent of the person defamed.
A. Proof of Damages not required. No proof that the person defamed was damaged monetarily or otherwise shall be an element of proof.
B. Intent. Intent is not an element of proof required to establish that the offense has occurred. Defamation shall be a strict liability tort.
C. Oral Communication Witnesses. No person shall be awarded damages for slander (oral defamation) except on the testimony or sworn affidavit of a witness.
A. Damages. Civil damages shall be determined by the Court by the weight of the evidence and the amount shall be determined within the discretion of the Court in consideration of the evidence and the following factors: (1) the degree of willfulness or malice involved in the Defamation, (2) the degree of disregard to the truth of the Defamation, (3) the likelihood that the defamatory act(s) will be repeated, (4) the intent involved. In addition to or in lieu of a damages, the Court may Order that restitution and/or, in the Court's discretion, retraction, public apology, and otherwise as the Court directs.
Subdivision 6. Defenses. Defenses to a cause of action under this statute shall be justified and not subject to further action if:
A. Truth with good motives. The defamatory matter is true and is communicated with good motives, in good faith, and for justifiable ends;
B. Privilege. The communication is absolutely privileged;
C. Public Debate. The communication consists of a fair comment made in good faith with respect to persons participating in matters of public concern;
communication is a fair
and true report
of a public judicial, legislative or other public or official
E. Duty. The communication is between persons each having an interest or duty with respect to the subject matter of the communication and is made with intent to further such interest or duty.
(Section 212, Civil Defamation, added to Tribal Code by Resolution No. 16-94, dated January 11, 1994)
Subdivision 1. The Parent or parents with custody of a minor child, in any circumstances where he, she or they may not be liable under any law are liable for damages to property or for personal property or for personal injury attributable to a wilful, malicious or wanton act of the child.
Subdivision 2. The maximum recovery from any parent or parents shall be the actual amount of damages resulting from any one act of a child in addition to actual costs and disbursements and reasonable attorney fees, as determined by the court. If two or more children in the custody of the same parent or parents commit the same act the total recovery may not exceed the actual costs, in addition to taxable costs and disbursements.
Subdivision 3. (a) In this section, "custody" means either legal custody of a child under a court order or actual physical custody of child. "Custody" does not include legal custody by an agency or a person other than that a child's birth or adoptive parent.
(b) In determining which parent has custody of a child for purposes of this section, the court shall consider which parent has responsibility for caring for and supervising the child at the time the act caused the injury, damage or loss occurred.
Subdivision 4. Any recovery under this section shall be reduced by the amount recovered as court ordered restitution for the same act.
Subdivision 5. This section shall apply to any child under the age of eighteen (18) who has committed such acts while under the age of eighteen (18), regardless if child is referenced for adult prosecution.
(Section 212.00 added to Tribal Code by Resolution No. 219-91, dated August 13, 1991)
(Section 212.00 Subd. 5 added to Tribal Code by Resolution No. 162-95, dated July 20, 1995)