Cheyenne-Arapaho Tribes of Oklahoma [Law and Order Code]
Last amended: 1988
[TITLE II - LAW AND ORDER CODE - SUBPART B] - CIVIL PROCEDURE - CH. 5-8
CHAPTER FIVE - WITNESSES
Section 501. Issue and Service of Service for Witnesses
The clerk of the Court shall, on application of any party having a cause or any matter pending in the Court, issue a subpoena for a witness, under the seal of the Court. The clerk may issue separate subpoenas for each person, issue one subpoena carrying the names of all persons subpoenaed, or may at the request of any party, issue subpoenas in blank. A subpoena may be served by the Tribal or Bureau of Indian Affairs Police, or by the party, or any other person in the manner provided in Section 217. When a subpoena is not served by the Tribal or Bureau of Indian Affairs Police, proof of service shall be shown by affidavit; but no costs of service of the same shall be allowed, except when served by The Tribal Police, a licensed process server, Bureau of Indian Affairs Police, or a person serving by special appointment.
Section 502. Subpoenas - Contents
The subpoena shall be directed to the person therein named, requiring him to attend at a particular time and place to testify as a witness; and it may contain a clause directing the witness to bring with him any book, writing or other thing, under his control, which he is bound by law to produce as evidence.
Section 503. Subpoena for Deposition
When the attendance of the witness before any officer authorized to take depositions, is required, the subpoena may be issued by such officer.
Section 504. Subpoena for Agency Hearings
When the attendance of the witness is required before any Tribal Agency authorized to issue a subpoena, the subpoena may be issued by any officer of the agency or by such person as may be authorized to issue subpoena by Agency rule.
Section 505. Witness May Demand Fees - Exception
A witness may demand his traveling fees and fee for one days attendance as shall be set by Court rule, when the subpoena is served upon him; and if the same be not paid, the witness shall not be obliged to obey the subpoena. The fact of such demand and non-payment shall be stated in the return, Provided, however, that witnesses subpoenaed by any Tribal department, board, commission or legislative committee authorized to issue subpoenas shall be paid their attendance and necessary travel, as provided by law for witnesses in other cases, at the time their testimony is concluded out of funds appropriated to such department, board, commission or legislative committee. In the case of subpoena issued by such Tribal agencies, the witness may not refuse to attend because fees and travel expenses were not paid in advance.
Section 506. Disobedience of Subpoena
Disobedience of a subpoena, or refusal to be sworn or to answer as a witness, when lawfully ordered, may be punished as a contempt of the Court or officer by whom his attendance or testimony is required.
Section 507. Attachment of Witness
When a witness fails to attend in obedience to a subpoena (except in case of a demand and failure to pay his fees), the Court or officer before whom his attendance is required may issue an attachment to the Chief of the Tribal Police or the Bureau of Indian Affairs Police or their deputy, commanding him to arrest and bring the person therein named before the Court or officer, at a time and place to be fixed in the attachment, to give his testimony and answer for the contempt. If the attachment be not for immediately bringing the witness before the Court or officer, a sum may be fixed not to exceed One Hundred Dollars ($100.00) in which the witness may give an undertaking, with surety, for his appearance; such sum shall be endorsed on the back of the attachment; and if no sum is so fixed and endorsed, it shall be one hundred dollars ($100.00). If the witness be not personally served, the Court may, by a rule, order him to show cause why an attachment should not issue against him.
Section 508. Punishment for Contempt
(a) The punishment for the contempt provided in Section 507 of this Title shall be as follows: When the witness fails to attend, in obedience to the subpoena, except in case of a demand and failure to pay his fees, the Court or officer may fine the witness in a sum not exceeding Fifty Dollars ($50.00). In case the witness attends but refuses to be sworn or to testify, the Court or officer may fine the witness in a sum not exceeding Fifty Dollars ($50.00), or may imprison him in the Tribal jail, there to remain until he shall submit to be sworn, testify, or give his deposition. The fine imposed by the Court or Tribal Agency shall be paid into the Tribal treasury, and that imposed by the officer at a deposition shall be for the use of the party for whom the witness was subpoenaed. The witness shall, also, be liable to the party injured for any damages occasioned by his failure to attend, or his refusal to be sworn, testify, or give his deposition.
(b) The punishment provided in this section shall not apply where the witness refuses to subscribe a deposition. The punishment provided in this section is civil in nature, and shall not be interpreted in any way as a criminal punishment, nor shall the punished person be deemed convicted of any criminal offense.
(c) When the witness purges his contempt, the Court, officer, or agency may suspend any punishment imposed.
Section 5.9. Discharge When Imprisonment Illegal
A witness so imprisoned by an officer before whom his deposition is being taken, or by a Tribal Agency Officer, may apply to a judge of the Tribal Court who shall have power to discharge him, if it appears that his imprisonment is illegal.
Section 510. Requisites of Attachment - Order of Commitment
Every attachment for the arrest, or order of commitment to jail of a witness by the Court or an officer, pursuant to this Chapter, must be under the seal of the Court or officer, if he have an official seal, and must specify, particularly, the cause of arrest or commitment; and if the commitment be for refusing to answer a question, such question must be stated in the order. Such order of commitment may be directed to the Tribal or Bureau of Indian Affairs Police, and shall be executed by committing him to the Tribal jail, and delivering a copy of the order to the jailor.
Section 511. Examination of Prisoner
A person confined in the Tribal jail may by order of the Tribal Court, be required to be produced for oral examination at a hearing, but in all other cases his examination must be by deposition.
Section 512. Prisoner's Custody During Examination
While a prisoner's deposition is being taken, he shall remain in the custody of the officer having him in charge who shall afford reasonable facilities for the taking of the deposition.
Section 513. Witness Privileged
A witness shall not be liable to be sued in the Tribal Court if he does not reside within the tribal jurisdiction by being served with a summons while going, returning, or attending in obedience to a subpoena.
Section 514. Witness May Demand Fees Each Day - Exception
At the commencement of each day after the first day, a witness may demand his fees for that days attendance in obedience to a subpoena; and if the same be not paid, he shall not be required to remain, except witnesses subpoenaed by any Tribal department, board, commission, or legislative committee or body authorized by law to issue subpoenas shall be paid for their attendance and necessary travel from that agencies approved budget as provided by law in other cases at the time their testimony is completed.
Section 515. Special Provisions for Tribal Agencies
(a) No Tribal agent or employee may be required to attend and testify in their official capacity for any private party absent the consent of their Department head or higher ranking superior.
(b) No Tribal agent or employee may be paid a witness fee in addition to their regular salary or other compensation, if they are on duty at the time they are required to attend and testify, and shall be deemed to have elected to receive their regular salary or other compensation unless they request leave without pay prior to the time they appear in response to the subpoena, provided, that when such agents or employees appear and testify while being paid the regular salary or other compensation, the normal witness fee shall be charged as costs in the case for the benefit of the Tribes and paid into the Tribal Treasury for the benefit of the Tribes, and the agent or employee's supervisor may require prepayment of said fees as a condition precedent of his approval for their appearance. Such witnesses shall be entitled to receive their travel costs, if any, from the party in advance as in other cases.
SUBCHAPTER A - TESTIMONY UNDER PRIVILEGE AGAINST PROSECUTION
Section 550. Privilege For Committee Testimony
No testimony given by a witness before the Business Committee, or any agency established by Tribal law having power to issue a subpoena, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony if such person is granted immunity as provided in Section 551. An official paper or record produced by him is not within the privilege.
Section 551. Procedure for Claiming Privilege
In the case of proceedings before a committee or agency, when two- thirds (2/3) of the members of the full committee or agency shall by affirmative vote have authorized such witness to be granted immunity under this Chapter with respect to the transactions, matters, or things, concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence by direction of the presiding officer, and, when an Order of the Tribal District Court has been entered into the record requiring said person to testify or produce evidence, such person shall be privileged as stated in Section 550 of this Chapter. Such an Order may be issued by a Tribal District Court Judge upon application by a duly authorized representative of the committee or agency concerned, accompanied by the written approval of the Business Committee. The Court shall not grant immunity to any witness without first having notified the Attorney General of such action. The Attorney General shall be notified of the time of each proposed application to the District Court and shall be given an opportunity to be heard with respect thereto prior to the entrance into the record of the Order of the District Court. No witness shall be exempt from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion as provided in this Section.
Section 552. Oaths
The members of the Business Committee, a Chairman or equivalent officer of any committee or agency authorized to issue subpoenas, and any officer or employee of the commission or agency authorized by agency or commission rule, is empowered to administer oaths to witnesses in any case under their examination.
Section 553. Penalties
(a) Every person who having been summoned as a witness, by authority of the Business Committee or other tribal agency authorized to take testimony and compel attendance of witnesses by subpoena, to give testimony or produce papers under a grant of immunity as provided by Section 551 upon any matter under inquiry before that body, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be punishable by a civil fine of not more than Five Hundred Dollars ($500.00) to be imposed by that body, and to an attachment and commitment to be imposed by that body to the Tribal jail until such testimony be given.
(b) In addition to, or in the alternative to civil punishment, the agency may proceed in the Tribal Court for an order requiring such witness to testify, and if such order is issued and disobeyed by the witness, the witness shall be guilty of an offense, and may be fined not more than Five Hundred Dollars ($500.00), or imprisoned in the Tribal jail for a term not exceeding six months, or both.
Section 554. Disgrace as Ground for Refusal to Testify
No witness is privileged to refuse to testify to any fact, or produce any paper, respecting which he shall be examined by the Business Committee, or by any subordinate committee or agency thereof authorized to issue subpoenas, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace or otherwise render him infamous, provided that such fact or paper is reasonably related to the purpose of the hearing and the purpose of the hearing is reasonably related to the exercise by the body, agency, or committee of authority delegated to it by law.
Section 555. Prosecution
Whenever an body before whom a witness granted immunity pursuant to this Subchapter believes that a criminal prosecution pursuant to Section 553(b) should be instituted, it shall certify such fact to the Attorney General, whose duty it shall be to bring the matter in the Court by information or complaint for prosecution if the person has not purged his contempt within 48 hours.
Section 556. Fees and Mileage
(a) Witnesses before legislative and administrative bodies compelled to attend by subpoena shall be paid the same fees and mileage as are paid in civil cases in the Tribal District Court from the approved budget of said body.
(b) Witness fees and allowances for mileage shall be set by rule of the court. Witness fees shall not exceed the amount set for witness fees by Part 11 of Title 25 of the Code of Federal Regulations. Mileage fees shall not exceed the Federal mileage rate.
CHAPTER SIX - JURORS
Section 601. Meeting for selection of Jurors
(a) On the first Monday in November, or as soon thereafter as may be, and, at any time upon the order of the Chief Justice of the Supreme Court, the Jury Selection Board, composed of the Tribal Secretary or one of his deputies, the Tribal Tax Director or one of his deputies, the Chief of the Tribal Police or one of his deputies, the Chairman of the Board of Commissioners of the Tribal Housing Authority or his designate, the Court Clerk or one of his deputies, and one of the Judges of the Court, shall meet at the office of the Court Clerk and select from a list to be compiled of all qualified jurors, as prescribed in this Chapter, all qualified jurors for service in the Tribal District Court for the ensuing calendar year in the manner hereinafter provided.
(b) For the purpose of ascertaining the names of all persons qualified for jury service, it shall be the duty of the following officers to provide the following lists of qualified prospective jurors to the Court Clerk:
(1) The Tribal Secretary shall supply a list of all enrolled Tribal members of their households over eighteen years of age who are residents of the tribal jurisdiction.
(2) The Tribal Tax Director shall supply a list of all individual taxpayers irrespective of Tribal membership over eighteen years of age who are residents of the tribal jurisdiction.
(3) The Chairman of the Board of Commissioners of the Tribal Housing Authority shall supply a list of all known tenants of the Housing Authority and members of their households irrespective of tribal membership over eighteen years of age who are residents of the tribal jurisdiction.
(4) The Court Clerk shall supply a list of all persons over eighteen years of age irrespective of tribal membership who have registered upon the Court Clerk's Jury Selection Roll for jury service.
(c) Each such list shall contain, insofar as is known, the date of birth or age, name, and actual place of residence of each person within the category on the list.
(d) Whenever possible, these lists shall be prepared at least thirty days prior to the meeting to allow time for the typing of the names contained therein on cards as hereafter provided, or shall be presented typed upon the cards as hereafter provided.
(e) Whenever such is, or may become reasonably available and efficient, the lists may be printed from computer memory on cards in the manner hereafter provided.
Section 602. Court Clerk's Jury Selection Roll
It shall be the duty of the Court Clerk to maintain at all times a jury selection roll upon which any person who is or may be eligible for jury service may enter their name, date of birth, and place of residence. Such roll shall be provided to the jury selection board in order that all qualified persons who may not be identified in paragraphs (1), (2), or (3) of Subsection (b) of Section 601 of this Chapter shall have the opportunity for jury service.
Section 603. Preparation of Jury Wheel
Said officers shall write or cause to be written or typed the names of all persons who are known to be, or may be qualified jurors under the law on separate cards of uniform size and color, writing also on said cards, whenever possible, the post office address of each juror so selected, along with their age or date of birth and place of residence under the direction of the Court Clerk. Whenever such can be avoided, no persons name shall be placed upon more than one card. The expenses of preparation of said cards to be paid from the Court fund. The cards containing said names shall be deposited in a circular hollow wheel, to be provided for such purpose by the Court Clerk after the Jury Selection Board has examined the contents thereof and removed therefrom and destroyed any cards found therein. Said wheel shall be in the form of a drum made of iron, steel, or other substantial material, and shall be so constructed as to freely revolve on its axle and big enough to freely mix all the cards placed therein, the size thereof in each case to be determined by the number of names placed therein, and shall be locked at all times, except when in use as hereinafter provided, by the use of two separate locks, so arranged that the key to one will not open the other lock; and said wheel and the clasps thereto attached into which the locks shall be fitted, shall be so arranged that said wheel cannot be opened unless both of said locks are unlocked at the time the wheel is opened. The keys to such locks shall be kept, one by the Chief of the Tribal Police, and the other by the Court Clerk. The Chief of the Tribal Police and the Court Clerk shall not open such wheel, nor permit the same to be opened by any person, except at the time and in the manner and by the persons herein specified; but said Chief of the Tribal Police and Court Clerk shall keep such wheel, when not in use, in a safe and secure place where the same cannot be tampered with.
Section 604. Drawing General Jury Panel
(a) The Judges of the Court shall, more than twenty (20) days prior to each jury docket of Court, determine approximately the number of jurors that are reasonably necessary for jury service in the Court during the jury docket, and shall thereupon order the drawing of such number of jurors from the wheel, said jury to be known as the general panel of jurors for service for the respective jury docket for which they are designated to serve. A majority of said judges, or the Chief Judge, are authorized to act in carrying out the provisions of this Section.
(b) The Court Clerk or one of his deputies and the Chief of the Tribal Police or one of his deputies in open court and under the directions of the Chief Judge of the District Court, or during his absence or disability, some other Judge of the District Court, shall draw from the wheel containing the names of jurors, after the same has been well turned so that the cards therein are thoroughly mixed, one by one until the number of jurors for jury service as directed by the Court are procured and shall record such names as they are drawn. The officers attending such drawing shall not divulge the name of any person that may be drawn as a juror to any person.
(c) Additional and other drawing of as many names as the Court may order may be had at any such time as the Court or Judge may order for the completion of a jury panel, or for the impaneling of a new jury if, in the judgment of the Court, the same shall be necessary, of if, for any cause, the Court, in its discretion, shall deem other jurors necessary. The Court may excuse or discharge any person drawn and summoned as a juror, whenever, in its discretion, such action shall be deemed expedient.
(d) No person may be required, over his objection, to render service as a juror for more than a total of twenty (20) working days in any one calendar year unless, when this time limit is reached, he is sitting upon a panel engaged in the consideration of a case, in which event he may be excused when such case is terminated; provided, that if the Judge is of the opinion that the jury business of a jury docket fixed by the Court may be concluded within six (6) days, he may require a jury, or a juror, to remain until the termination of said jury service. Persons summoned for jury service need not be required to serve during previously fixed days or weeks or a docket fixed by the Court for jury trials, but they may be recalled from time to time as the trial needs of the District Court may require, without regard to the docket term fixed by the Court for jury trials for which they were originally summoned.
Section 605. Use of Jury Panel
The general panel of jurors shall be used to draw juries in all actions tried during the jury docket for which they were summoned. In the event of a deficiency of said general panel at any given time to meet the requirements of the Court, the presiding Judge having control of said general panel shall order such additional jurors to be drawn from the wheel as may be sufficient to meet such emergency, but such jurors shall act only as special jurors and shall be discharged as soon as their services are not further needed. Resort to the wheel shall be had in all cases to fill out the general panel, except when only a single jury is needed or when the Court determines that undue delay will be caused thereby to the prejudice of a party, in which case the Court may issue an open venire to the Chief of the Tribal Police or other suitable person for such number of jurors as may be necessary to be selected from the body of the tribal jurisdiction without resort to the jury wheel, provided, that no person shall be called to service or required to serve under an open venire more often than once each year.
Section 606. Certifying and Sealing Lists
The list of names so drawn for the general panel shall be certified under the hand of the Court Clerk or the deputy doing the drawing and the Judge in whose presence said names were drawn from the wheel to be the list drawn by the said Clerk for the said jury docket, and shall be sealed up in envelopes endorsed "jurors for the jury docket of the Tribal District Court scheduled to commence on ____________" (filling in the blank with the appropriate date) and the Clerk doing the drawing shall write his name across the seals of the envelopes.
Section 607. Oath and Delivery of Envelopes
The judge attending the drawing shall deliver such envelopes to the Court Clerk, or one of his deputies, and the Judge shall, at the same time, administer to the Court Clerk and to each of his deputies an oath in substance as follows: "You and each of you do solemnly swear that you will not open the jury lists now delivered to you, nor permit them to be opened, until the time prescribed by law, nor communicate to anyone the name or names of persons appearing on the jury lists until the time a list is opened as prescribed by law at which time it shall be published, that you will not, directly or indirectly, converse or communicate with any one selected as juror concerning any case pending for trial in the Court at the next jury docket, So help you God."
Section 608. Sealing and Retaining Juror Name Cards
When the names are drawn for jury service, the cards containing such names shall be sealed in separate envelopes, endorsed "cards containing the name of jurors for the petit jury for the jury docket of the Tribal District Court commencing on ____" (filling in the blank for the date properly); and said envelopes shall be retained securely by the Clerk, unopened, until after the jury has been impaneled for such docket, and, after such jurors so impaneled have served one jury docket, the envelopes containing the cards bearing the names of the jurors for that docket shall then be opened by the Court Clerk, or his deputy, and those cards bearing the names of persons who have not been impaneled and who have not served on a jury shall be immediately returned to the wheel by the Court Clerk or his deputy; and the cards bearing the names of the persons serving on a jury shall be put in a box provided for that purpose for the use of the officer who shall next select jurors for the wheel, provided, that no person shall serve as a juryman more often than once a year, except upon order of the Court for lack of sufficient jurors or as herein provided.
Section 609. Refilling Wheel
If the wheel containing the names of jurors be lost or destroyed, with the contents thereof, or if all the cards in said wheel be drawn out, such wheel shall immediately be refurnished, and cards bearing the names of jurors shall be placed therein immediately in accordance with law.
Section 610. Summoning Jurors
The summons of persons for service on the juries in the District Court shall be served by the Court Clerk by mailing a copy of such summons containing the time, place, and the name of the Court upon which said jurors are required to attend, by registered or certified mail, or as directed by the Judge, to the person selected for service not less than ten (10) days before the day said person is to appear as a juror in the Court. The court Clerk shall make a return of such service by filing an affidavit stating the date of mailing and type of mall used in sending the summons; provided, that this shall not prevent service of special open venire or talesman by the Chief of the Tribal Police.
Section 611. On-Call System Jurors
(a) When an on-call system is implemented by order of the Chief Judge of the District Court, each juror retained for services subject to call shall be required to contact a center for information as to the time and place of his next assignment.
(b) For purposes of this Section, "on-call system" means a method whereby the Chief Judge of the District Court estimates the number of jurors required for a jury docket of court, and those jurors not needed during any particular period are released to return to their home or employment subject to call when needed.
(c) Pursuant to summons for service on petit juries in the District Court, each qualified, nonexempt juror is retained for service subject to call and is assigned to a judge or a case.
Section 612. Drawing Trial Jurors From Panel
Prospective jurors for the trial of an action shall be drawn by the Court Clerk, in open Court in the presence of a Judge, by lot either by wheel, by numbering the prospective jurors cards and then drawing numbers from a pool containing a numbered marker for each prospective juror available to be called, or by some similar form of random drawing approved by the Court. The initial six jurors shall be drawn as shortly before the trial of the action as is reasonably practical in the discretion of the Court. As prospective jurors are removed or dismissed by challenge, whether preemptory or for cause, the Clerk shall draw another name from the general pool who shall take the place of the challenged prospective juror and be subject to voir dire to the same extent as the prospective jurors originally chosen.
Section 613. Qualifications and Exemptions of Jurors
(a) All members of the Tribes and other citizens of the United States who are over eighteen years of age and have resided within the Tribal jurisdiction for a period of thirty (30) days, who are of sound mind and discretion and of good moral character are competent to act as jurors, except as herein provided.
(b) The following persons are not qualified to serve as jurors:
(1) Justices of the Supreme Court of the Tribes, or the employees in their office.
(2) Judges or Magistrates of the District Court, or the employees in their office.
(3) The Court Clerk, or the employees in his office.
(4) The Chief of the Tribal Police, his deputies, and the employees in the Police Department.
(5) Jailers having custody of prisoners, or other tribal, state, or federal law enforcement officers.
(6) Licensed Attorneys or Advocates engaged in the practice of law.
(7) Persons who have been convicted of any felony or crime involving moral turpitude, provided that when such conviction has been vacated, overturned upon appeal, or pardoned or when any such person has been fully restored to his civil rights by the jurisdiction wherein such conviction occurred, the person shall be eligible to serve as a juror.
(8) Elected Tribal Officials.
(c) Persons over seventy (70) years of age, ministers, practicing physicians, optometrists, dentists, public school teachers, federal employees, regularly organized full time fire department employees, and women with otherwise unattended minor children not in school may be excused from jury service by the Court, in its discretion, upon request.
(d) Any tribal member, tribal taxpayer, or person employed within the Tribal jurisdiction may serve as a juror notwithstanding that they are not a resident of the Tribal jurisdiction if they volunteer to do so by signing the Jury Selection Roll maintained by the Court Clerk.
Section 614. Substantial Compliance
A substantial compliance with the provisions of this Chapter, shall be sufficient to prevent the setting aside of any verdict rendered by a jury chosen hereunder, unless the irregularity in drawing, and summoning, or impaneling the same, resulted in depriving a party litigant of some substantial right; provided, however, that such irregularity must be specifically presented to the Court at or before the time the jury is sworn to try the cause.
Section 615. Oath to Jury
After selection of the jury, and prior to the opening statements of the parties, the Court or Clerk shall place the jury under oath or affirmation to well and truly try and determine the action before them exclusively upon the evidence presented in the Court and the law as given by the Court, and to return their true verdict thereon without partiality for any unlawful cause or reason.
[Sections 616 - 620. Reserved]
Section 621. Discharge of Employee for Jury Service - Penalty
Every person, firm, or corporation who discharges an employee or causes an employee to be discharged because of said employee's absence from his employment by reason of said employee's having been required to serve as a juror on a jury of the Tribal District Court, or any other Court, shall be guilty of an Offense, and, upon conviction thereof, shall be punishable by a fine not to exceed Five Hundred Dollars ($500.00).
Section 622. Civil Liability - Damages
Every person, firm, or corporation who discharges or causes to be discharged an employee because of said employee's absence from his employment by reason of said employee having been required to serve as a juror on a jury, in the Tribal District Court or any other Court, shall be liable to the person so discharged in a civil action at law for both actual and punitive damages. Damages shall include all pecuniary losses suffered including, but not limited to, lost earnings, both past and future, mental anguish, and all reasonable damages incurred in obtaining other suitable employment, including the cost of relocation and retraining, if any, and a reasonable attorney fee to be determined by the Court.
CHAPTER SEVEN - TRIALS
Section 701. Trial Defined
A trial is a judicial examination of the issues, whether of law or fact, in an action.
Section 702. Trial of Issues
Issues of law must be tried by the Court. Issues of fact arising in actions for which a jury trial is provided by law may be tried by a jury, if a jury trial is demanded, unless a reference be ordered, as hereinafter provided. All other issues of fact shall be tried to the Court.
Section 703. Jury Trial of Right
(a) Right Preserved. The right of trial by jury as declared by the Tribal Constitution or a statute of the Tribes, or the Indian Civil Rights Act of 1968 shall be preserved inviolate. In all actions, except forcible entry and detainer, arising in contract or tort where the amount in controversy, or the value of the property to be recovered, as stated in the prayer for relief or an affidavit of a party, or as found by the Court where the amount in controversy is questioned by the affidavit of the adverse party, exceeds Ten Thousand Dollars ($10,000.00), except as otherwise specifically provided by law and in tax cases, and in all actions for the involuntary removal 6f children from the custody of their parents or custodian and the involuntary termination of parental rights, the action may be tried to a jury upon demand of any party. All other actions and issues of fact shall be tried to the Court.
(b) Demand. Any party entitled to a jury trial may demand a trial by jury of any issue triable of right by a jury pursuant to any law of the Tribes by serving upon the other parties a demand therefore in writing at any time after the commencement of the action and not later than ten (10) days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party. Such demand shall not be effective unless, at the time of filing or at such later time as the Court shall by rule allow, the party making such demand deposit with the Court Clerk a reasonable jury fee in such amount as the Court shall by rule determine. The amount of such deposit shall be set by the Court in such amount as may be reasonably necessary to offset the costs of juror fees for the impaneling and trying of the action, without being in an amount which may preclude or prevent a party from exercising their right to a jury trial. Such rules shall contain a provision for waiver of the deposit requirement for persons proceeding in forma pauperis.
(c) Same; Specification of Issues. In his demand a party may specify the issues which he wishes so tried; otherwise he shall be deemed to have demanded trial by jury for all the issues so triable. If he has demanded trial by jury for only some of the issues, any other party within ten 10 days after service of the demand or such lesser time as the Court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.
(d) Waiver. The failure of a party to serve a demand as required by this section and to file it as required by Section 231(d) constitutes a waiver by him of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. Even though previously demanded, the trial by jury may be waived by the parties, in actions arising on contract, and with the assent of the Court in other actions, in the following manner: By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney. By written consent, in person or by attorney, filed with the clerk. By oral consent, in open court, entered on the journal.
Section 704. Trial by Jury or by the Court
(a) By Jury. When Trial by jury has been demanded as provided in Section 703, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless:
(1) the parties or their attorneys of record, by written stipulation filed with the Court or by an oral stipulation made in open Court and entered in the record, consent to trial by the Court sitting without a jury;
(2) the Court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution and laws of the Tribes, or under the Indian Civil Rights Act.
(b) By the Court. Issues not demanded for trial by jury as provided in Section 703 shall be tried by the Court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the Court in its discretion or upon motion of a party may order a trial by a jury of any or all issues properly triable to a jury.
(c) Advisory Jury and Trial by Consent. In all actions not triable of right by a jury the Court upon motion or its own initiative may try any issue with an advisory jury or, except in actions against the Tribes when a statute of the Tribes provides for trial without a jury, the Court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
Section 705. Assignment of Cases for Trial
The District Court shall provide by rule for the placing of actions upon the trial calendar
(1) without request of the parties or
(2) upon request of a party and notice to the other parties or
(3) in such other manner as the Courts deem expedient. Precedence shall be given to actions entitled thereto by any statute of the Tribes.
Section 706. Consolidation; Separate Trials
(a) Consolidation. When different actions involving a common question of law or fact are pending before the Court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delays.
(b) Separate Trials. The Court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, or third-party claims, or issues, always preserving inviolate the right to trial by jury as declared by the Indian Civil Rights Act, the Tribal Constitution or as given by a statute of the Tribes.
SUBCHAPTER A - IMPANELING JURY
Section 721. Summoning Jury
The general mode of summoning and impaneling the jury, in cases in which a jury trial may be had, is such as is or may be provided by Chapter 8 of this Title.
Section 722. Causes for Challenging Jurors
If there shall be impaneled, for the trial of any action, any juror, who shall have been convicted of any crime which by law renders him disqualified to serve oil a jury; or who has been arbitrator on either side, relating to the same controversy; or who has an interest in the action; or who has an action pending between him and either party; or who has formerly been a juror on the same claim; or who is the employer, employee, counselor, agent, steward or attorney of either party; or who is subpoenaed as a witness; or who is of kin to either party within the second degree by blood or marriage, he may be challenged for such causes; in either of which cases the same shall be considered as a principal challenge, and the validity thereof be tried by the Court; and any juror who shall be returned upon the trial of any of the causes hereinbefore specified, against whom no principal cause of challenge can be alleged, may, nevertheless, be challenged on suspicion of prejudice against, or partiality for either party, or any other cause that may render him, at the time, an unsuitable juror; but a resident or taxpayer of the tribal jurisdiction, or a member of the Tribes or any municipality therein shall not be thereby disqualified in actions in which the Tribes or such municipality is a party. The validity of all principal challenges and challenges for cause shall be determined by the Court.
Section 723. Examination of Jurors
The Court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the Court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper.
Section 724. Alternate Jurors
The Court may direct that not more than three jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if alternate jurors are to be impaneled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by law shall not be used against an alternate juror.
Section 725. Order of Challenges
The plaintiff first, and afterward the defendant, shall complete his challenges for cause. They may then, in turn, in the same order, have the right to challenge one juror each, until each shall have peremptorily challenged three jurors, but no more.
Section 726. Challenges to Jurors - Filling Vacancies
After each challenge, the vacancy shall be filled before further challenges are made; and any new juror thus introduced may be challenged for cause as well as peremptorily.
Section 727. Alternate Method of selecting Jury
Notwithstanding other methods authorized by law, the trial judge may direct in his discretion that a jury in an action be selected by calling and seating twelve prospective jurors in the jury box and then examining them on voir dire; when twelve such prospective jurors have been passed for cause, each side of the lawsuit shall exercise its peremptory challenges out of the hearing of the jury by alternately striking three names each from the list of those so passed for cause, and the remaining six persons shall be sworn to try the case.
If there be more than one defendant in the case, and the trial judge determines on motion that there is a serious conflict of interest between them, he may, in his discretion, allow each defendant to strike three names from the list of jurors seated and passed for cause. In such case he shall appropriately increase the number of jurors initially called and seated in the jury box for voir dire examination.
Section 728. Oath of Jury
The jury shall be sworn to well and truly try the matters submitted to them in the case before them, and to give a true verdict, according to the law and the evidence.
Section 729. Juries of Less Than Six - Majority Verdict
All juries shall be composed of six persons, and a unanimous verdict shall be required, except that the parties may stipulate that the jury shall consist of any number less than six and greater than two, or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.
SUBCHAPTER B - TRIAL PROCEDURE
Section 731. Order of Trial
When the jury has been sworn in an action before a jury, and in trials to the Court, when the Court is ready to proceed, the trial shall proceed in the following order, unless the Court for special reasons otherwise directs:
(a) The party on whom rests the burden of proving the issues may briefly state his case, and the evidence by which he expects to sustain it.
(b) The adverse party may then briefly state his defense and the evidence he expects to offer in support of it, or the adverse party may reserve his opening statement until the beginning of the presentation of his evidence.
(c) The party on whom rests the burden of proving the issues must first produce his evidence,; after he has closed his evidence the adverse party may interpose a motion for a directed verdict thereto upon the ground that no claim for relief or defense is proved. If the Court shall sustain the motion, no formal verdict of the jury shall be required, but judgment shall be rendered for the party whose motion for a directed verdict is sustained as the state of the pleadings or the proof shall demand.
(d) If the motion for a directed verdict be overruled, the adverse party may then briefly state his case if he did not do so prior to the beginning of the presentation of the evidence, and, shall then produce his evidence.
(e) The parties will then be confined to rebutting evidence unless the Court, for good reasons in furtherance of justice, shall permit them to offer evidence in the original case.
(f) After the close of the evidence, and when the jury instructions have been finalized by the Court, the parties may then make their closing arguments as to the evidence proved and reasonable inferences to be drawn therefrom. The party having the burden of proving the issue shall first present his argument. Thereafter, the other party shall present his argument, and then, the party having the burden of proof shall have the opportunity for rebuttal argument. The Court may place reasonable limitation upon the time allowed for closing argument, provided, that each side to the action should have the same total time for argument if time restrictions are placed thereon.
(g) After the closing arguments of the parties have been completed, the Court shall instruct the jury as to the law of the case, and shall give a copy of the written instructions to the jury for their use during their deliberations.
(h) The Court shall then place the bailiff or some other responsible person under oath to secure the jury against interference, and the jury shall retire to determine its verdict.
Section 732. Taking of Testimony
(a) Form. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by a law of the Tribes or by this Title, the Tribal Rules of Evidence, or other rules adopted by the Supreme Court of the Tribes.
(b) Affirmation in Lieu of Oath. Whenever under this Title an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.
(c) Evidence on Motion. When a motion is based on facts not appearing of record the Court may hear the matter on affidavits presented by the respective parties, but the Court may direct that the matter be heard wholly or partly on oral testimony or depositions.
(d) Interpreters. The Court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the Court may direct, and may be taxed ultimately as costs, in the discretion of the Court.
Section 733. Exceptions Unnecessary
Formal exceptions to rulings or orders of the Court are unnecessary; but it is sufficient that a party, at the time the ruling or order of the Court is made or sought, makes known to the Court the action which he desires the Court to take or his objection to the action of the Court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.
Section 734. Instruction to Jury - Objection
(a) At the close of the evidence or at such earlier time during the trial as the Court reasonably directs, any party may file written requests that the Court instruct the jury on the law as set forth in the requests. The Court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the Court shall instruct the jury after the arguments are completed. No party may assign as error the giving or the failure to give an instruction unless he objects thereto or proposes the requested instruction before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.
(b) All instructions requested, and modifications thereof, shall be reduced to writing, numbered, and signed by the party or his attorney asking the same and filed in the record of the case.
(c) When either party asks special instructions to be given to the jury, the Court shall either give such instructions as requested, or positively refuse to do so; or give the instructions with modification in such manner that it shall distinctly appear what instructions were given in whole or part, and in like manner those refused, to that either party may except to the instructions as asked for, or as modified, or to the modification, or to the refusal.
(d) All instructions given by the Court must be numbered; signed by the judgment; and filed together with those asked for by the parties as a part of the record.
Section 735. Uniform Jury Instructions
The Supreme Court, in its discretion, is authorized to promulgate by rule uniform instructions to be given in jury trials of civil or criminal actions, which, if applicable in a civil or criminal action, due regard being given to the facts and prevailing law, shall be used unless the Court determines that the instruction does not accurately state the law.
Section 736. Objections to Instructions - Copies to Parties
A party objecting to the giving of instructions, or the refusal thereof, shall not be required to file a formal bill of exceptions; but it shall be sufficient to make objection thereto by dictating into the record in open Court, out of the hearing of the jury, before the reading of all instructions, the number of the particular instruction that was requested, refused, and objected to, or the number of the particular instruction given by the Court that is excepted to. Provided, further, that the Court shall furnish copies of the instructions to the Plaintiff and Defendant prior to the time said instructions are given by the Court.
Section 737. View by Jury
Whenever, in the opinion of the Court, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted, in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the Court for that purpose. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial.
Section 738. Deliberations of the Jury
When the case is finally submitted to the jury, they shall retire for deliberation. When they retire, they must be kept together, in some convenient place, under charge of an officer, until they agree upon a verdict or be discharged by the Court, subject to the discretion of the Court, to permit them to separate temporarily at night, and at their meals. The officer having them under his charge shall not suffer any communication to be made to them, or make any himself, except to ask them if they are agreed upon their verdict, and to communicate a request by the jury to the Court in open Court, unless by order of the Court; and he shall not, before their verdict is rendered, communicate to any person the state of their deliberations, or the verdict agreed upon.
Section 739. Admonition of Jury on Separation
If the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the Court that it is their duty not to converse with, or suffer themselves to be addressed by, any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon, until the case is finally submitted to them.
Section 740. Information After Retirement
After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the Court, where the information on the point of law shall be given in writing, and the Court may give its recollections as to the testimony on the point in dispute, or cause the same to be read by the stenographer or played back on an electronic recording devise by the reporter in the presence of, or after notice to, the parties or their Counsel. Upon motion in appropriate circumstances, the Court may order that other portions of the record relating to the same issue also be read or played back to the jury upon the questioned point.
Section 741. When the Jury may be Discharged
The jury may be discharged by the Court on account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears to the Court that there is no probability of their agreeing.
Section 742. Re-trial
In all cases where the jury are discharged during the trial, or after the cause is submitted to them, it may be tried again immediately, or at a future time, as the Court may direct.
Section 743. Proof of Official Record
(1) Domestic. An official record kept within the United States, or any Indian Tribal jurisdiction, state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public office having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.
(2) Foreign. A foreign official record, or an entry therein, when admissible or any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position related to the attestation or is in a chain of certificate of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign county assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the Court may, for good cause shown, (i) admit an attested copy without final certification or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.
(b) Lack of Record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a) (1) of this Section in the case of a domestic record, or complying with the requirements of subdivision (a) (2) of this Section for summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry.
(c) Other Proof. This Section does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law.
Section 744. Determination of Foreign Law
A party who intends to raise an issue concerning the law of a foreign jurisdiction shall give notice in his pleadings or other reasonable written notice. The Court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Tribal Rules of Evidence. The Court's determination shall be treated as a ruling on a question of law. The District Court shall take judicial notice of the law of any foreign jurisdiction within the United States published in an official publication of that jurisdiction upon reasonable notice of the law in question. The term "foreign jurisdiction within the United States" includes every federally recognized Indian Tribe, every state, territory, or possession of the United States, the United States, and their political subdivisions and agencies.
Section 745. Appointment and Duties of Masters
(a) Appointment and Compensation. The District Court With the concurrence of a majority of all the Judges thereof may appoint one or more standing masters, and the trial judge, in an appropriate case, may appoint a special master to act in a particular case. The word "master" includes a referee, an auditor, and an examiner, a commissioner, and an assessor. The compensation to be allowed to a master shall be fixed by the Court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the Court as the Court may direct. The master shall not retain his report as security for his compensation; but when the party ordered to pay the compensation allowed by the Court does not pay it after notice and within the time prescribed by the Court, the master is entitled to a writ of execution against the delinquent party.
(b) Reference. A reference to a master shall be the exception and not the rule. In action to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matter of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.
(c) Powers. The order of reference to the master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order or reference and has the authority to put witnesses on oath and may himself examine them, and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Section 732(c) for a Court sitting without a jury.
(1) Meetings. When a reference is made, the clerk shall forthwith furnish the master with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the master shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within twenty (20) days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the master to proceed with all reasonable diligence. Either party on notice to the parties and master, may apply to the Court for an order requiring the master to speed the proceedings and to make his report. If a party fails to appear at the time and place appointed, the master may proceed ex parte, or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.
(2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Section 222. If without adequate excuse a witness fails to appear or give evidence, he may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in Section 412(b) and 222(f).
(3) Statement of Accounts. When matters of accounting are in issue before the master, he may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs.
(1) Content and Filing. The master shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.
(2) In Non-jury Actions. In an action to be tried without a jury the Court shall accept the master's findings of fact unless clearly erroneous. Within ten (10) days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the Court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in Section 240 (d). The Court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions
(3) In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. His findings upon the issues submitted to him are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the Court upon any objections in point of law which may be made to the report.
(4) Stipulation as to Findings. The effect of a master's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.
(5) Draft Report. Before filing his report a master, may submit a draft thereof to counsel or all parties for the purpose of receiving their suggestions.
SUBCHAPTER C - VERDICT
Section 751. Findings by the Court
(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the Court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Section 907; and in granting or refusing interlocutory injunctions the Court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Request for findings are not necessary for purposes of review. Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master, to the extent that the Court adopts them, shall be considered as the findings of the Court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on decisions of motions under Section 112(b) or Section 121(b).
(b) Amendment. Upon motion of a party made not later than 10 days after entry of judgment the Court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Section 108. When findings of fact are made in actions tried by the Court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the District Court an objection to such findings or has made a motion to amend them or a motion for judgment.
Section 752. Delivery of Verdict
When the jury have agreed upon their verdict they must be conducted into Court, and their verdict rendered by their foreman. When the verdict is announced, either party may require the jury to be polled, which is done by the Clerk or the court asking each juror if it is his verdict. If any one answers in the negative, the jury must again be sent out, for further deliberation.
Section 753. Requisites of Verdicts
The verdict shall be written, signed by the foreman and read by the clerk to the jury, and the inquiry made whether it is their verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If, however, the verdict be defective in form only, the same may, with the assent of the jury, before they are discharged, be corrected by the Court.
Section 754. General and Special Verdict
The verdict of a jury is either general or special. A general verdict is that by which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury finds facts only. It must present the facts as established by the evidence, and not the evidence to prove them; and they must be so presented as that nothing remains to the Court but to draw from them conclusions of law.
Section 755. Special Verdict and Interrogatories
(a) Special Verdict:. The Court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the Court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The Court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the Court omits any issue of fact raised by the pleadings or by the evidence, each party waived his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the Court may make a finding; or, if it fails to do so it shall be deemed to have made a finding in accord with the judgment on the special verdict.
(b) General Verdict Accompanied by Answer to Interrogatories. The Court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The Court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the Court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are consistent with each other, judgment shall be entered thereon, but, when the answers to one or more interrogatories is inconsistent with the general verdict, judgment may be entered pursuant to Section 907 in accordance with the answers, notwithstanding the general verdict, or the Court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the Court shall return the jury for further consideration of its answers and verdict or shall order a new trial.
Section 756. Jury Must Assess Amount of Recovery
When, by the verdict either party is entitled to recover money of the adverse party, the jury, in their verdict, must assess the amount of recovery.
Section 757. Motion for a Directed Verdict and for Judgment Notwithstanding the Verdict
(a) Motion for Directed Verdict: when Made; Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for directed verdict shall state the specific grounds therefor. The order of the Court granting a motion for a directed verdict is effective without any assent of the jury.
(b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the Court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the Court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of the judgment as if the requested verdict had been directed. If no verdict was returned the Court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.
(c) Same: Conditional Rulings on Grant of Motion.
(1) If the motion for judgment notwithstanding the verdict, provided for in subsection (b) of this Section, is granted, the Court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the Supreme Court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the Supreme Court.
(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Section 908 not later than ten (10) days after entry of the judgment notwithstanding the verdict.
(d) Same: Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, on appeal, assert grounds entitling him to a new trial in the event the Supreme Court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the Supreme Court reverses the judgment, nothing in this Section precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.
SUBCHAPTER D - MISCELLANEOUS TRIAL PROVISIONS
Section 771. Provisions Applicable to Trials by Court
The provisions of this Chapter respecting trials by jury apply, so far as they are in their nature applicable, to trials by the Court.
Section 772. Trial Docket
A trial docket shall be made out by the Clerk of the Court, at least fifteen days before the first day of each jury or nonjury docket of the Court, and the actions shall be set for particular days in the order prescribed by the Judge of the Court, and so arranged that the cases set for each day shall be considered as nearly as may be on that day. The trial docket shall be promptly mailed by the Clerk to each party or their attorney of record whose action is placed on the trial docket.
Section 773. Trial Docket for Bar
The Clerk shall make out a copy of the trial docket for the use of the bar, before the first day of the docket of the Court and cause the same to be available to the public.
Section 774. Order of Trial of Cases Docketed
The trial of an issue of fact, and the assessment of damages in any case, shall be in the order in which they are placed on the trial docket, unless by the request of the parties with the approval of the Court, or the order of the Court, they are continued or placed at the heel of the docket, unless the Court, in its discretion, shall otherwise direct. The Court may, in its discretion, hear at any time a motion, and may by rule prescribe the time for hearing motions.
Section 775. Time of Trial
(a) Actions shall be triable at the first trial docket of the Court, after or during which the issues therein, by the time fixed for pleading are, or shall have been made up and discovery completed. When the issues are made up and discovery completed, or when the defendant has failed to plead within the time fixed, the cause shall be placed on the trial docket, and shall stand for trial at such term twenty (20) days after the issues are made up and discovery completed, and shall, in case of default, stand for trial forthwith.
(b) The Court shall arrange its business so that two nonjury trial dockets and two jury trial dockets are completed during each calendar year, unless the majority of the judges of the Court by order determine that additional trial dockets are necessary to promptly dispose of the eases pending before the Court.
Section 776. Continuance
The trial of an action shall not be continued upon the stipulation of the parties alone, but may be continued upon order of the Court.
Section 777. Trial by Judicial Panel
(a) The Supreme Court may provide by rule for the trial of any action in the District Court by judicial panel in any or all cases when no jury is allowed by law or demanded by the parties. The judicial panel shall consist of the presiding judge to whom the ease was assigned, who shall make all rulings on questions of law during the trial of the action, and two or more judges, special judges, or magistrates who shall hear the evidence. The Chief Justice of the Supreme Court, with the consent of the majority of the active Judges of the Supreme Court, is hereby authorized to freely appoint any person licensed to practice law before the Court as a Special Judge for the purpose of sitting upon a judicial panel, and may compensate such person out of the Court fund reasonable compensation for his services, in an amount not exceeding the daily rate paid to regular Judges of the Court.
(b) The judicial panel shall jointly, by majority vote, determine the facts proved by the evidence and the panel shall enter findings of fact and conclusions of law as in a trial before a single Judge.
(c) In a trial before a judicial panel, the votes of the Judges on the panel shall not be revealed, but the verdict and judgment shall be entered in accordance with the panels findings of fact and conclusions of law.
Section 778. Bifurcated Jury Trials
(a) The Supreme Court may provide by rule for the bifurcation of any jury trial in a civil action sounding in tort so that the jury shall first hear evidence on, and render its verdict upon the issue of liability, and thereafter hear evidence on and render its verdict upon the issue of the amount of damages if liability has been found.
(b) In such bifurcated trials, evidence of insurance coverage or similar agreements by third parties to pay any part or a judgment, and the nature and extent of such coverage or agreement shall be admissible and relevant to the issue of damages.
(c) In any such cases not provided for by Court rule, the case may be determined in bifurcated proceedings as stated in Subsections (a) and (b) of this Section by stipulation of the parties.
CHAPTER EIGHT - PROVISIONAL AND FINAL REMEDIES AND SPECIAL PROCEEDINGS
Section 801. Seizure of Person or Property
At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the Tribes, existing at the time the remedy is sought.
Section 802. Receivers Appointed by Tribal Courts
An action wherein a receiver has been appointed shall not be dismissed except by order of the Court. The practice in the administration of estates by receivers or by other similar officers appointed by the Court shall be in accordance with Tribal probate law, or, if none, then the practice heretofore followed in the courts of the United States or as provided in rules promulgated by the District Court. In all other respects the action in which the appointment of a receiver is sought or which is brought by or against a receiver is governed by this Title.
Section 803. Deposit in Court
In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of Court, may deposit with the Court all or any part of such sum or thing. Money paid into Court under this Section shall be deposited and withdrawn in accordance with Tribal law detailing accounting procedures for the Court Clerk's Office, and if there be none, then in accordance with the Tribal procedure for the administration and accounting of federal grant monies, upon order of the Court.
Section 804. Process in Behalf of and Against Persons not Parties
When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party; and, when obedience to an order may be lawfully enforced against a parson who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party.
Section 805. Security - Proceedings Against Sureties
Whenever this Title or other Tribal law requires or permits the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the Court and irrevocably appoints the Clerk of the Court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the Court prescribes may be served on the Clerk of the Court, who shall forthwith mail copies to the sureties if their addresses are known.
Any surety authorized to give a bond or stipulation or other undertaking in either the Federal courts or the State courts within the State within which any portion of the Tribal jurisdiction lies, and any individual approved by the Court who resides within the jurisdiction of the Tribes (except officers of the Court or elected Tribal officials) shall be eligible to give such bond or stipulation, or undertaking in the District Court under this Title of other Tribal law unless otherwise prohibited by Tribal law.
Section 806. Execution
(a) In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the Court directs otherwise. In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in this Title.
(b) Against Certain Public Officers. When a judgment otherwise authorized has been entered against a collector or other officer of revenue of the Tribes or against an officer, or employee, or agency of the Tribes in their official capacity; or if judgment is entered against an individual in his personal capacity who purported to act as an officer or employee of the Tribes, and the Court has given certificate of probable cause for his act wherein the Court determines that the individual had probable cause to believe that his action was authorized by the Tribes in his official capacity, execution shall not issue against the officer or his property but the final judgment shall be satisfied as may be provided by appropriation of such judgment (or such part thereof as the Legislative Body of the Tribes deems permissible considering the extent of available Tribal resources) from available Tribal funds. This section is not intended, nor shall it be construed, as a waiver of sovereign immunity.
SUBCHAPTER A - INJUNCTIONS
Section 811. Injunction Defined
The injunction provided for by this Chapter is a command to refrain from or to do a particular act for the benefit of another. It may be the final judgment in an action, or may be allowed as a provisional remedy, and when so allowed, it shall be by order.
Section 812. Cause for Injunction - Temporary Restraining Order
When it appears, by the verified complaint or an affidavit that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or when, during the litigation, it appears that the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary restraining order and preliminary injunction may be granted to restrain such act. And when, during the pendency of an action, it shall appear, by affidavit or proof, that the defendant threatens or is about to remove or dispose of his property with intent to defraud his creditors, or to render the judgment ineffectual, a temporary restraining order and preliminary injunction may be granted to restrain such removal or disposition. It may, also, be granted in any case where it is specially authorized by statute.
Section 813. Temporary Restraining Order; Notice; Hearing; Duration
A temporary restraining order may be granted after commencement of the action without written or oral notice to the adverse party or his attorney only if:
(a) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and
(b) the applicant's attorney certifies to the Court in writing the efforts, if any, which have been made to give the notice and the reasons supporting has claim that notice should not be required.
Temporary restraining orders should not be granted except in cases of extreme urgency. Every temporary restraining order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed ten (10) days, as the Court fixes, unless within the time so fixed the order, for good cause shown, is extended for like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and take precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the Court shall dissolve the temporary restraining order. On two (2) days notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the Court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the Court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
Section 814. Temporary Restraining Order - Service
Temporary restraining orders shall be served in the same manner as provided for service of the summons and complaint.
Section 815. Preliminary Injunction
(a) Notice. No preliminary injunction shall be issued without notice to the adverse party. Notice may be in the form of an order to appear at a designated time and place and show cause why a proposed preliminary injunction should not be issued, or in such form as the Court shall direct. The burden of showing the criteria for issuance of a preliminary injunction remains with the moving party.
(b) Consolidation of Hearing With Trial on Merits. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This Subsection shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
Section 816. Preliminary Injunction - Criteria
Unless a statute of the Tribes provides specifically for preliminary injunctive relief upon a showing of particular circumstances, no preliminary injunction shall be granted unless upon hearing the evidence presented by the parties the Court determines that:
(a) There is a substantial likelihood that the moving party will eventually prevail on the merits of their claim for a permanent injunction or other relief, and
(b) The moving party will suffer irreparable injury unless the preliminary injunction issues. Irreparable injury means an injury which cannot be adequately remedied by a judgment for money damages, and
(c) The threatened injury to the moving party outweighs whatever damage or injury the proposed preliminary injunction may cause the opposing party, and
(d) The preliminary injunction, if issued, would not be adverse to the public interest, and would not violate the public policy of the Tribes or the United States.
Section 817. Form and Scope of Injunction or Restraining Order
Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
Section 818. Employer and Employee; Interpleader; Constitutional Cases
This Subchapter does not modify any statute of the Tribes relating to temporary restraining orders and preliminary injunctions in actions affecting employer and employee; or relating to preliminary injunctions in actions of interpleader or in the nature of interpleader; or any other case where temporary restraining orders or preliminary injunctions are expressly authorized or prohibited upon certain express terms or conditions.
Section 818. Security
(a) No restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the Court deems proper, for the payment of such costs, damages, and a reasonable attorney fee as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the Tribes or of an officer or agency thereof.
(b) The provisions of Section 805 apply to a surety upon a bond or undertaking under this Section.
(c) A party enjoined by a preliminary injunction may, at any time before final judgment, upon reasonable notice to the party who has obtained the preliminary injunction, move the Court for additional security, and if it appears that the surety in the undertaking has removed from the Tribal jurisdiction, or is insufficient, the Court may vacate the preliminary injunction unless sufficient surety be given in a reasonable time upon such terms as may be just and equitable.
Section 820. Use of Affidavits
On the hearing for a restraining order or preliminary injunction, each party may submit affidavits which shall be filed as a part of the record.
Section 821. Injunction by Defendant
A defendant may obtain a temporary restraining order or preliminary injunction upon filing his answer containing an appropriate counterclaim. He shall proceed in the manner hereinbefore prescribed.
Section 822. Injunction is Equitable
Relief by way of a restraining order, preliminary, or permanent injunction is of equitable cognizance and shall be issued or refused in the sound discretion of the Court. Relief by way of injunction shall be denied where the moving party may be adequately compensated for his injuries in money damages. The District Court shall not enjoin the enforcement of the Tribal tax laws or the collection of Tribal taxes except to the extent that such relief is specifically provided for in those tax laws. No injunction shall issue to control the discretion or action of a Governmental officer or employee when such officer or employee has been delegated the authority to exercise his discretion in determining how to act upon the subject matter, and is acting or refusing to act in a manner not prohibited by Tribal law or the Indian Civil Rights Act.
Section 823. Modification of Preliminary Injunction
If the preliminary injunction be granted, the defendant, at any time before the trial, may apply, upon notice, to the Court to vacate or modify the same. The application may be made upon the complaint and affidavits upon which the injunction is granted, or upon affidavits on the part of the party enjoined, with or without answer. The order of the judge, allowing, dissolving or modifying an injunction, shall be returned to the office of the Clerk of the Court and recorded.
Section 824. Modification of Permanent Injunction
A final judgment containing a permanent injunction may be modified or dissolved by separate action upon a showing that the facts and circumstances have changed to the extent that the injunction is no longer just and equitable, or that the injunction is no longer needed to protect the rights of the parties.
Section 825. Injunctions Tried to the Court
All injunctive actions shall be tried to the Court and not to a jury unless the Court orders an advisory jury pursuant to Section 704(c) of this Title.
Section 826. Enforcement of Restraining Orders and Injunctions
A restraining order of injunction granted by a Judge may be enforced as the act of the Court. Disobedience of any injunction may be punished as a contempt, by the Court or any Judge who might have granted it. An attachment may be issued by the Court or Judge, upon being satisfied, by affidavit or testimony, of the breach of the injunction, against the party guilty of the same, who may be required to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody, until he shall fully comply with such requirements, or be otherwise legally discharged, or be punished by fine not exceeding Two Hundred Dollars ($200.00) for each day of, or separate act of, contempt, to be paid into the Court fund, or by confinement in the Tribal jail for not longer than sixty (60) days.
SUBCHAPTER B - REPLEVIN
Section 831. Order of Delivery - Procedure
(a) The plaintiff in an action to recover the possession of specific personal property may claim the delivery of the property at the commencement of suit, as provided herein.
(1) The complaint must allege facts which show:
(i) a description of the property claimed,
(ii) that the plaintiff is the owner of the property or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property,
(iii) that the property is wrongfully detained by the defendant,
(iv) the actual value of the property, provided that when several articles are claimed, the value of each shall be stated as nearly as practicable,
(v) that the property was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued under this Title, or any other mesne or final process issued against said plaintiff; or, if taken in execution or on any order or judgment against the plaintiff, that it is exempt by law from being so taken, and,
(vi) the prayer for relief requests that the Court issue an order for the immediate delivery of the property.
(2) The above allegations are verified by the party or, when the facts are within the personal knowledge of his agent or attorney and this is shown in the verification, by said agent or attorney.
(3) A notice shall be issued by the Clerk and served on the defendant with the summons which shall notify the defendant that an order of delivery of the property described in the complaint is sought and that the defendant may object to the issuance of such an order by a written objection which is filed with the Clerk and delivered or mailed to the plaintiff's attorney within five (5) days of the service of the summons. In the event that no written objection is filed within the five-day period, no hearing is necessary and the Court Clerk shall issue the order of delivery. Should a written objection be filed within the five-day period specified, the Court shall, at the request of either party, set the matter for prompt hearing. At such hearing the Court shall proceed to determine whether the order for prejudgment delivery of the property should issue according to the probable merit of the plaintiff's complaint. Provided, however, that no order of delivery may be issued until an undertaking has been executed pursuant to Section 833 of this Title.
(4) Nothing in this Title contained shall prohibit a party from waiving his right to a hearing or from voluntarily delivering the goods to the party seeking them before the commencement of the proceedings or at any time after institution thereof.
(b) Where the notice that is required by subsection (a) of this Section cannot be served on the defendant but the Judge finds that a reasonable effort to serve him was made and at the hearing the plaintiff has shown the probable truth of the allegations in his complaint, the Court may issue an order for the prejudgment delivery of the property. If an order for the prejudgment delivery of the property is issued without actual notice being given the defendant, the defendant may move to have said order dissolved and if he does not have possession of the property, for a return of the property. Notice of the right to move for return of said property shall be contained in the order for seizure and delivery of such property which shall be served upon the defendant or left in a conspicuous place where the property was seized, and the Chief of the Tribal Police shall hold said property in such cases for three (3) working days prior to delivery to the plaintiff in order to give the defendant a reasonable opportunity to move for the return of such property. Notice of said motion with the date of the hearing shall be served upon the attorney for the plaintiff in the action. The motion shall be heard promptly, and in any case within ten (10) days after the date it is filed. The Court must grant the motion unless, at the hearing on defendant's motion, the plaintiff proves the probable truth of the allegations contained in his complaint. If said motion and notice is filed before the Chief of the Tribal Police turns the property over to the plaintiff the Chief of the Tribal Police shall retain control of the property pending the hearing on the motion.
(c) The Court may, on request of the plaintiff, order the defendant not to conceal, damage or destroy the property or a part thereof and not to remove the property or a part thereof from the tribal jurisdiction pending the hearing on plaintiff's request for an order for the prejudgment delivery of the property, and said order may be served with the summons.
Section 832. Penalty for Damage of Property Subject to Order of Delivery
Any person who willfully and knowingly damages property in which there exists a valid right to issuance of an order of delivery, or on which such order has been sought under the provisions of this Title, or who conceals it, with the intent to interfere with enforcement of the order, or who removes it from the jurisdiction of the Court with the intention of defeating enforcement of an order of delivery, or who wrongfully refuses to disclose its location to an officer charged with executing an order for its delivery, or, if such property is in his possession, willfully interferes with the officer charged with executing such writ, may be held in civil contempt of Court, and shall be guilty of an offense, and if convicted of such offense shall be subject to a fine of not more than Five Hundred Dollars ($500.00) and imprisonment for a term of not more than six (6) months, or both; and, in addition to such civil and criminal penalties, shall be liable to the plaintiff for double the amount of damage done to the property together with a reasonable attorney's fee to be fixed by the Court, which damages and fee shall be deemed bases on tortious conduct and enforced accordingly.
Section 833. Undertaking in Replevin
The order shall not be issued until there has been executed by one or more sufficient sureties of the plaintiff, to be approved by the Court, an undertaking in not less than double the value of the property as stated in the complaint to the effect that the plaintiff shall duly prosecute the action, and pay all costs and damages which may be awarded against him, including attorney's fees and, if the property be delivered to him, that he will return the same to the defendant if a return be adjudged; provided, that where the Tribes or its agents or subdivisions is party plaintiff, an undertaking in replevin shall not be required of the plaintiff, but a writ shall issue upon complaint duly filed as provided by law. The undertaking shall be filed with the Clerk of the Court, and shall be subject to the provisions of Section 805 of this Title.
Section 834. Replevin Bond - Value
On application of either party which is made at the time of executing the replevin bond or the redelivery bond, or at a later date, with notice to the adverse party, the Court may hold a hearing to determine the value of the property which the plaintiff seeks to replevy. If the value as determined by the Court is different form that stated in the complaint, the value as determined by the Court shall control for the purpose of Sections 833 and 838 of this Title.
Section 835. Order of Delivery
The order for the delivery of the property to the plaintiffs shall be addressed and delivered to the Chief of the Tribal Police. It shall state the names of the parties, the Court in which the action is brought, and command the chief of the Tribal Police to take the property, describing it, and deliver it to the plaintiff as prescribed in this Title, and to make return of the order on a day to be named therein.
Section 836. Order Returnable
The return day of the order of delivery, when issued at the commencement of the suit, shall be the same as that of the summons; when issued afterwards, it shall be ten days after it is issued.
Section 837. Execution of Order
The Chief of the Tribal Police shall execute the order by taking the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detainer of the property, or leave such copy at his usual place of residence, or at the place such property was seized.
Section 838. Re-delivery on Bond
If, within three working days after service of the copy of the order, there is executed by one or more sufficient sureties of the defendant, to be approved by the Court or the Chief of the Tribal Police, an undertaking to the plaintiff, in not less than double the amount of the value of the property as stated in the affidavit of the plaintiff, to the effect that the defendant will deliver the property to the plaintiff, if such delivery be adjudged, and will pay all costs and damages that may be awarded against him, the Chief of the Tribal Police shall return the property to the defendant. If such undertaking be not given within three working days after service of the order, the Chief of the Tribal Police shall deliver the property to the plaintiff.
Section 839. Exception to Sureties
Any party for whose benefit an undertaking is made may except at any time to the sufficiency of the sureties on such undertaking. Such exception shall be made in writing and filed with the Clerk. Upon hearing, the Court shall make such order as is just to safeguard the rights of the parties.
Section 840. Proceedings on Failure to Prosecute Action
If the property has been delivered to the plaintiff, and judgment rendered against him, or his action be dismissed, or if he otherwise fail to prosecute his action to final judgment, the Court shall, on application of the defendant or his attorney, proceed to inquire into the right of property, and right of possession of the defendant to the property taken.
Section 841. Judgment - Damages - Attorney Fees
In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof in case a delivery cannot be had, and of damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same. The judgment rendered in favor of the prevailing party in such action may include a reasonable attorney fee to be set by the Court, to be taxed and collected as costs.
Section 842. Officer May Break Into Buildings
The Chief of the Tribal Police or other law enforcement officer, in the execution of the order of delivery issued by the Tribal Court, may break open any building or enclosure in which the property claimed, or any part thereof, is concealed upon probable cause to believe that the property is concealed therein, but not until he has been refused entrance into said building or enclosure and the delivery of the property, after having demanded the same, or if not person having charge thereof is present.
Section 843. Compelling Delivery by Attachment
In an action to recover the possession of specific personal property, the Court may for good cause shown, before or after judgment, compel the delivery of the property to the officer or party entitled thereto by attachment, and may examine either party as to the possession or control of the property. Such authority shall only be exercised in aid of the foregoing provisions of this Subchapter.
Section 844. Improper Issue of Order of Delivery
Any order for the delivery of property issued under this Subchapter without the affidavit and undertaking required, shall be set aside and the plaintiff shall be liable in damages to the party injured.
Section 845. Joinder of Cairn of Action for Debt - Stay of Judgment
In any action for replevin in the Tribal Court, it shall be permissible for the plaintiff to join with the claim in replevin a claim founded on debt claimed to be owing to the plaintiff if the debt shall be secured by a lien upon the property sought to be recovered in the claim in replevin. In such cases, the execution of the judgment for debt shall be stayed pending the sale of the property and the determination of the amount of debt remaining unpaid after the application of the proceeds of the sale thereto.
SUBCHAPTER C - ATTACHMENT
Section 851. Grounds for Attachment
The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon proof of any of the following grounds:
(a) When the defendant, or one of several defendants, is a foreign corporation, or a nonresident of the tribal jurisdiction (but no order of attachment shall be issued on this clause for any claim other than a debt or demand arising upon contract, judgment or decree, unless the claim arose wholly within the tribal jurisdiction), or
(b) When the defendant, or one of several defendants, has absconded with intention to defraud his creditors, or
(c) Has left the tribal jurisdiction to avoid the service of summons, or
(d) So conceals himself that a summons cannot be served upon him, or
(e) Is about to remove his property, or a part thereof, out of the jurisdiction of the Court with the intent to defraud his creditors, or
(f) Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors, or
(g) Has property or rights in action, which he conceals, or
(h) Has assigned, removed or disposed of, or is about to dispose of, his property, or a part thereof, with the intent to defraud, hinder or delay his creditors, or
(i) Fraudulently contracted the debt, or fraudulently incurred the liability or obligations for which the suit has been brought, or
(j) Where the damages for which the action is brought are for injuries arising from the commission of a criminal offense, or
(k) When the debtor has failed to pay the price or value of any article or thing delivered, which by contract he was bound to pay upon delivery, or
(l) When the action is brought by the Tribes, or their officers, agents, or political agencies or subdivisions for the purpose of collection of any Tribal tax, levy, charge, fee, assessment, rental, or debt arising in contract or by statute and owed to the Tribes.
Section 852. Attachment Affidavit
An order of attachment may be issued by the Court when:
(a) There is filed in the office of the court clerk a civil complaint stating a claim for relief and an application that the Court issue an order of attachment which states facts which show:
(1) The nature of the plaintiff's claim,
(2) That it is just,
(3) The amount which the affiant believes the plaintiff ought to recover, and,
(4) The existence of some one of the grounds for an attachment enumerated in Section 851 of this Subchapter.
(b) The application must be verified by the plaintiff, or, where his agent or attorney has personal knowledge of the facts, by said agent or attorney.
(c) The defendant has been served with a notice, issued by the Clerk, which shall notify the defendant that an order of attachment of property is requested and that he may object to the issuance of such an order by a written objection which is filed with the Court Clerk and mailed or delivered to the plaintiff's attorney within five (5) days of the receipt of the notice. A copy of plaintiff's application shall be attached to and served with the notice, and the notice and application may be served with the summons in the action.
(d) If no written objection is filed with;n the five day period, no hearing is necessary and the clerk may issue the order of attachment. If a written objection is filed within the five day period, the Court shall, at the request of either party, set the matter for a prompt hearing with notice to the adverse party. If the plaintiff proves the probable merit of his cause and the truth of the matters asserted in his application for an order of attachment, the Court may issue the order of attachment. Provided, however, before an order of attachment is issued by either the Court or the Clerk, the Plaintiff has executed an undertaking pursuant to Section 853 of this Title. The Tribes and their agents shall not be required to execute an undertaking.
(e) If the Court finds that the defendant cannot be given notice as provided herein, although a reasonable effort was made to notify him, but at the hearing the plaintiff proves the probable merit of his claim and the truth of the matters asserted in his application, the Court may issue the order of attachment. The defendant may subsequently move to have the attachment vacated as provided in Section 891.19 of this Title.
Section 853. Attachment Bonds
The attachment bond for the benefit of the party whose property is attached shall be in such form and in such amount, not less than double the amount of the plaintiff's claim, as the Court shall direct, and shall guarantee payment of all damages, costs, and reasonable attorney fees incurred as a result of a wrongful attachment. No bond shall be required of the Tribes.
Section 854. Order of Attachment
The order of attachment shall be directed and delivered to the Chief of the Tribal Police. It shall require him to attache the lands, tenements, goods, chattels, stocks, rights, credits, moneys and effects of the defendant within the tribal jurisdiction not exempt by law from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable cost of the action not exceeding One Hundred Dollars ($100.00).
Section 855. When Returnable
The return day of the order of attachment when issued at the commencement of the action, shall be the same as that of the summons, and otherwise within twenty (20) days of the date of issuance.
Section 856. Order of Execution
Where there are several orders of attachment against the defendant, they shall be executed in the order in which they are received by the Chief of the Tribal Police.
Section 857. Execution of Attachment Order
The order of attachment shall be executed by the Chief of the Tribal Police without delay. He shall go to the place within the tribal jurisdiction where the defendant's property may be found, and declare that, by virtue of said order, he attaches said property at the suit of the plaintiff; and the officer shall make a true inventory and appraisement of all the property attache, which shall be signed by the officer and returned with the order, leaving a copy of said inventory with the person or in the place from which the property was seized.
Section 858. Service of Order
(a) When the property attached is real property, the officer shall leave a copy of the order with the occupant, or, if there be no occupant, then a copy of the order shall be posted in a conspicuous place on the real property. Where it is personal property, and he can get possession, he shall take such into his custody, and hold it subject to the order of the Court.
(b) When the property attached is real property, third parties shall not be affected until a copy of the attachment order and the legal description of the real property attached shall be filed and placed of record in the land tract book maintained by the Court Clerk.
Section 859. Re-delivery on Bond
in The Chief of the Tribal Police shall re-deliver the property to the person whose possession it was found, upon the execution by such person, in the presence of the Chief of the Tribal Police, an undertaking to the plaintiff, with one or more sufficient sureties, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the Court in the action.
SUBCHAPTER D - GARNISHMENT
RESERVED FOR FUTURE PROVISIONS RELATING TO GARNISHMENT.
SUBCHAPTER E - PROVISIONS RELATING TO ATTACHMENT AND GARNISHMENT
RESERVED FOR FUTURE PROVISIONS RELATING TO BOTH ATTACHMENT AND GARNISHMENT.
SUBCHAPTER F - RECEIVERS
Section 892.1. Appointment of Receiver
A receiver may be appointed by the Supreme Court, the District Court, or any Judge of either:
(a) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to his claim, or between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.
(b) In an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed or materially injured, or that the condition of the mortgage has not been performed, and that the property is probably insufficient to discharge the mortgage debt.
(c) After judgment, to carry the judgment into effect.
(d) After judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or in proceeding in aid of execution, when an execution has been returned unsatisfied, or when the judgment debtor refuses to apply his property in satisfaction of the judgment.
(e) In the cases provided in this Title, and by special statutes, when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.
(f) In all other cases where receivers should be appointed to protect the property and rights of the parties thereto in dispute by the usages of the Court in equity.
Section 892.2. Persons Ineligible
No party, or attorney, or person so interested in an action, shall be appointed receiver therein except by consent of all parties thereto.
Section 892.3. Oath and Bond
Before entering upon his duties, the receiver must be sworn to perform them faithfully, and with one or more sureties, approved by the Court, execute an undertaking to such person and in such sum as the Court shall direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the Court therein.
Section 892.4. Powers of Receiver
The receiver has, under the control of the Court, power to bring and defend actions in his own name, as receiver; to take and keep possession of the property, to receive rents, to collect debts, to compound for and compromise the same, to make transfers, and generally to do such act respecting the property as the Courts may authorize.
Section 892.5. Investment of Funds
Funds in the hands of a receiver may be invested upon interest, by order of the Court; but no such order shall be made, except upon the consent of all the parties to the action, or except by order of the Court when the principal and interest earned thereon are guaranteed by the Federal Government and may be withdrawn within a reasonable time.
Section 892.6. Disposition of Property Litigated
(a) When it is admitted, by the pleadings or on oral or written examination of a person, that he has in his possession or under his control any non-exempt money or other thing capable of delivery, which, is held by him as trustee for a party, or which belongs or is due to a party, the Court may order the same to be deposited in Court or delivered to such party, with or without security, subject to the further direction of the Court.
(b) Any person abiding by an order of the Court in such cases and paying or delivering the money or other property subject to said order into Court, shall not thereafter be liable to the party for whom he held as trustee, or to whom the money or property belonged or was due, in any civil action for the collection or return of the property or money delivered or paid into Court.
(c) Such order may be made by ordering the party to procure the deposit or payment into Court of the property, which order may be enforced by contempt, or the Court, upon proper application, may order the person holding said property to be served with summons and brought into the action as a special defendant for the sole purpose of determining the nature and amount of property in his possession subject to payment into Court under this Section, and ordering said person to pay or deliver such nonexempt property into Court. After such payment has been made, the person shall be dismissed from the action.
(d) In cases where judgment has been obtained against the party whose property or money is to be paid into Court, it is not necessary to formally appoint a receiver for the money or property paid into Court under this Section, but the Court Clerk shall act as receiver as an aid to the enforcement of a judgment, and shall pay such money or deliver such property over to the person entitled thereto in conformity with the order of the Court.
Section 892.7. Punishment for Disobedience of Court
Whenever, in the exercise of its authority, the Court shall have ordered the deposit or delivery of money or other thing, and the order is disobeyed, the Court, besides punishing the disobedience as for contempt, may make an order requiring the Chief of the Tribal Police to take the money, or thing, and deposit or deliver it, in conformity with the direction of the Court.
Section 892.8. Vacation of Appointment by Supreme Court
In all cases in the Supreme Court in which a receiver has been appointed, or refused, by any Justice of the Supreme Court, the party aggrieved may, within ten (10) days thereafter have the right to file a motion to vacate the order refusing or appointing such receiver, and hearing on such motion may be had before the Supreme Court, if the same be in session, or before a quorum of the Justices of said Court in vacation, at such time and place as the said Court or the Justices thereof may determine, and pending the final determination of the cause, if the order was one of the appointment of a receiver, the moving party shall have the right to give bond with good and sufficient sureties, and in such amount as may be fixed by order of the Court or a Justice thereof, conditioned for the due prosecution of such case, and the payment of all costs and damages that may accrue to the Tribes, or any officer, or person by reason thereof, and the authority of any such receiver shall be suspended pending a final determination of such cause, and if such receiver shall have taken possession of any property in controversy in said action, the same shall be surrendered to the rightful owner thereof, upon the filing and approval of said bond.
SUBCHAPTER G - EMINENT DOMAIN
Section 893.1. Who May Exercise Authority
The Tribal Legislative Body, and any officer or Agency of the Tribes specifically authorized to do so by statute may obtain real or personal property by eminent domain proceedings in conformance with the Tribal Constitution, the Indian Civil Rights Act, and this Subchapter.
Section 893.2. What Property May be Condemned by Eminent Domain
Except property made exempt from eminent domain by the Tribal Constitution and statutes, all property real and personal within the Tribal jurisdiction, not owned by the Tribes and their agencies, shall be subject to eminent domain except title to property held in trust by the United States for an Indians or Tribe, or property held by an Indian or Tribes subject to a restriction against alienation imposed by the United States unless the United States has consented to the eminent domain of said property. Any lease or Tribally granted assignment, or other non-trust right to use such trust or restricted property conveyed by Tribal or federal law shall be subject to eminent domain in conformance with the Tribal Constitution and statutes and the Indian Civil Rights Act.
Section 893.3. Condemnation of Property
(a) Applicability of Other Rules. The Rules of Civil Procedure for the Courts of the Tribes govern the procedure for the condemnation or real and personal property under the power of eminent domain, except as otherwise provided in this Subchapter.
(b) Joinder of Properties. The plaintiff may join in the same action one or more separate pieces of property, whether in the same or different ownership and whether or not sought for the same use.
(c) Amount to Be Paid. The owner shall be entitled to receive just compensation for all property or rights to property taken from him in eminent domain proceedings.
Section 893.4. Complaint
(a) Caption. The complaint shall contain a caption as provided in Section 110(a), except that the plaintiff shall name as defendants the property, designated generally by kind, quantity, and location, and at least one of the owners of some part of or interest in the property.
(b) Contents. The complaint shall contain a short and plain statement of the authority for the taking, the use for which the property is to be taken, a description of the property sufficient for its identification, the interests to be acquired, and as to each separate piece of property a designation of the defendants who have been joined as owners thereof or of some interest therein. Upon the commencement of the action, the plaintiff need join as defendants only the persons having or claiming an interest in the property whose names are then known, but prior to any hearing involving the compensation to be paid for a piece of property, the plaintiff shall add as defendants all persons having or claiming an interest in that property whose names can be ascertained by a reasonably diligent search of the records, considering the character and value of the property involved and the interest to be acquired, and also those whose names have otherwise been learned. All others may be made defendants under the designation "Unknown Owners." Process shall be served as provided in Section 893.5 of this Subchapter upon all defendants, whether named as defendants at the time of the commencement of the action or subsequently added, and a defendant may answer as provided in Section 893.6 of this Subchapter. The Court meanwhile may order such distribution of a deposit as the facts warrant.
(c) Filing. In addition to filing the complaint with the Court, the plaintiff shall furnish to the clerk at least one copy thereof for the use of the defendants and additional copies at the request of the clerk or of a defendant.
Section 893.5. Process in Eminent Domain
(a) Notice; Delivery. Upon the filing of the complaint the plaintiff shall forthwith deliver to the clerk joint or several notices directed to the defendants named or designated in the complaint. Additional notices directed to defendants subsequently added shall be so delivered. The delivery of the notice and its service have the same effect as the delivery and service of the summons.
(b) Same; Form. Each notice shall state the Court, the title of the action, the name of the defendant to whom it is directed, that the action is to condemn property, a description of his property sufficient for its identification, the interest to be taken, the authority for the taking, the uses for which the property is to be taken, that the defendant may serve upon the plaintiff's attorney an answer within twenty 20 days after service of the notice, and that the failure so to serve an answer constitutes a consent to the taking and to the authority of the Court to proceed to hear the action and to fix the compensation. The notice shall conclude with the name of the plaintiff's attorney and an address where he may be served. The notice need contain a description of no other property than that to be taken from the defendants to whom it is directed.
(c) Service of Notice.
(1) Personal Service. Personal service of the notice shall be made in accordance with the rules for personal service of summons upon a defendant who resides within the United States or its territories or insular possessions and whose residence is known. A copy of the complaint may, but need not, be served.
(2) Service by Publication. Upon the filing of a certificate of the plaintiff's attorney stating that he believes a defendant cannot be personally served, because after diligent inquiry his place of residence cannot be ascertained by the plaintiff or, if ascertained, that it is beyond the territorial limits of personal service as provided in this Section, service of the notice shall be made on that defendant by publication in a newspaper published in the county where the property is located, or if there is no such newspaper, then in a newspaper having a general circulation where the property is located, once a week for not less than three successive weeks. Prior to the last publication, a copy of the notice shall also be mailed to a defendant who cannot be personally served as provided in this Section but whose place of residence is then known. Unknown owners may be served by publication in a like manner by a notice addressed to "Unknown Owners."
(3) When Publication Service. Complete. Service by publication is complete upon the date of the last publication. Proof of publication and mailing shall be made by certificate of the plaintiff's attorney, to which shall be attached a printed copy of the published notice with the name and dates of the newspaper marked thereon.
(d) Return; Amendment. Proof of service of the notice shall be made and amendment of the notice or proof of its service allowed in the manner provided for the return and amendment of the summons.
Section 893.6. Appearance or Answer
If a defendant has no objection or defense to the taking of his property, he may serve a notice of appearance designating the property in which he claims to be interested. Thereafter he shall receive notice of all proceedings affecting it. If a defendant has any objection or defense to the taking of his property, he shall serve his answer within twenty 20 days after the service of notice upon him. The answer shall identify the property in which he claims to have an interest, state the nature and extent of the interest claimed, and state all his objections and defenses to the taking of his property. A defendant waives all defenses and objection not so presented, but at the trial of the issue of just compensation, whether or not he has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award. No other pleading or motion asserting any additional defense or objection shall be allowed.
Section 893.7. Amendment of Pleadings
Without leave of Court, the plaintiff may amend the complaint at any time before the trial of the issue of compensation and as many times as desired, but no amendment shall be made which will result in a dismissal forbidden by Section 893.9 of this Subchapter. The plaintiff need not serve a copy of an amendment, but shall serve notice of the filing, as provided in Section 231(b) of this Title, upon any party affected thereby who has appeared and, in the manner provided in Section 893.9 of this Subchapter, upon any party affected thereby who has not appeared. The plaintiff shall furnish to the clerk of the Court for the use of the defendants at least one copy of each amendment, and he shall furnish additional copies on the request of the clerk or of a defendant. Within the time allowed by Section 893.6 of this subchapter, a defendant may serve his answer to the amended pleading, in the form and manner and with the same effect as there provided.
Section 893.8. Substitution of Parties
If a defendant dies or becomes incompetent or transfers his interest after his joinder, the Court may order substitution of the proper party upon motion and notice of hearing. If the motion and notice of hearing are to be served upon a person not already a party, service shall be made as provided in Section 893.5(c).
Section 893.9. Dismissal of Action
(a) As of Right. If no hearing has begun to determine the compensation to be paid for a piece of property and the plaintiff has not acquired the title or a lesser interest in the property or taken possession thereof, the plaintiff may dismiss the action as to that property, without an order of the Court, by filing a notice of dismissal setting forth a brief description of the property as to which the action is dismissed.
(b) By Stipulation. Before the entry of any judgment vesting the plaintiff with title or a lesser interest in or possession of property, the action may be dismissed in whole or in part, without an order of the Court, as to any property by filing a stipulation of dismissal by the plaintiff and the defendant affected thereby; and, if the parties so stipulate, the Court may vacate any judgment that has been entered.
(c) By Order of the Court. At any time before compensation for a piece of property has been determined and paid and after motion and hearing, the Court may dismiss the action as to that property, except that it shall not dismiss the action as to any part of the property of which the plaintiff has taken possession or in which the plaintiff has taken title or a lesser interest, without awarding just compensation of the possession, title or lesser interest so taken, or, if the possession, title, or interest in such property is to be returned to the defendant upon dismissal by motion of the plaintiff, the Court may also award reasonable actual damages incurred, not to exceed One Thousand Dollars ($1,000.00) in excess of fair rental value of the premises during the period in which the plaintiff held possession or title against the plaintiff notwithstanding the doctrine of sovereign immunity. The Court at any time may drop a defendant unnecessarily or improperly joined.
(d) Effect. Except as otherwise provided in the notice, or stipulation of dismissal, or order of the Court, any dismissal is without prejudice.
Section 893.10. Deposit and Its Distribution
The plaintiff shall deposit with the Court any money required by law as a condition to the exercise of the power of eminent domain; and, although not so required, may make a deposit when permitted by statute. In such cases the Court and attorneys shall expedite the proceedings for the distribution of the money so deposited and for the ascertainment and payment of just compensation. If the compensation finally awarded to any defendant exceeds the amount which has been paid to him on distribution of the deposit, the Court shall enter judgment against the plaintiff and in favor of that defendant for the deficiency. If the compensation finally awarded to any defendant is less than the amount which has been paid to him, the Court shall enter judgment against him and in favor of the plaintiff for the overpayment.
Section 893.11. Costs
Costs shall normally be paid by the Plaintiff in condemnation actions unless the Court, in its discretion determines that a defendant should pay their own costs, which may include a reasonable portion of plaintiff's costs because of inequitable conduct or other statutory reason.