Oglala Sioux Tribe: Law and Order Code
Last amended: 1996; New Ordinances Received: 2002.
CHAPTER 3
DOMESTIC RELATIONS
SECTION 25. RECOGNITION OF PREVIOUS MARRIAGES.
Indian marriages consummated before February 20, 1937, whether according to State law or Tribal custom, are declared valid subject to annulment as provided in Section 37 of this Code.
Hist: 1937 Code, Ch. 3, Sec. 1.
SECTION 26. RECOGNITION OF DEPARTMENT REGULATIONS FOR HEIRSHIP PURPOSES.
For the purpose of determining heirship, the rules and regulations heretofore adopted by the Secretary of the Interior shall remain in effect on all questions that arose prior to February 20, 1937, the date of adoption of this Code.
Hist: 1937 Code, Ch. 3, Sec. 2.
SECTION 27. MARRIAGES AND DIVORCES.
The Oglala Sioux Tribal Court shall have jurisdiction over marriages and divorces of the members of the Oglala Sioux Tribe as hereinafter defined. Indian custom marriages and divorces consummated after February 20, 1937 shall not be recognized.
Hist: 1937 Code, Ch. 3, Sec. 3.
SECTION 28. MARRIAGE.
Marriage is a personal relationship arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage. It must be followed by a solemnization.
Hist: 1937 Code, Ch. 3, Sec. 4.
SECTION 29. SOLEMNIZATION OF MARRIAGE.
A marriage may be solemnized by any recognized clergyman or Judge within the jurisdiction of the Pine Ridge Indian Reservation only after issuance of a license.
Hist: 1937 Code, Ch. 3, Sec.5.
SECTION 30. MARRIAGE LICENSE.
A member of the Oglala Sioux Tribe eligible by age and otherwise as hereinafter defined may obtain a marriage license from the Agency Office, and such marriages consummated by authority of such license shall be deemed legal in every respect as though such marriage was consummated under authority of license by the State of South Dakota.
Any unmarried male of the age of eighteen (18) years or upwards and any unmarried female of the age of fifteen (15) years or upward and not otherwise disqualified are capable of consenting to and consummating a marriage.
Any males under twenty-one (21) years of age and females under eighteen (18) years of age are to be considered minors, and whenever parents or guardian gives consent to the marriage of a minor, he or she thereby assumes the responsibility in part to provide for the minor and the children born until the minor comes of age. The assumption of this responsibility is to be stated in a written consent.
Such license must not in any case be granted where either party is under the age necessary to render the marriage absolutely valid, nor shall it be granted where either party is a minor, without previous consent of the parent or guardian of such minor.
There must intervene between the application for a license and the issuance of same, not less than ten (10) days, including two (2) Saturdays and Sundays. During this time the application must be posted at the Agency, and in the community of both parties. If, during this interval a complaint is filed by a third party claiming to have been injured, license cannot be issued until such complaint is adjusted, besides if complaint is filed against the health of either party, a certificate of health must be furnished to the Clerk by a recognized physician of the United States Indian Service.
No marriage license is to be issued without proof, by a physician's certificate, that the applicants are free from any communicable disease.
Hist: 1937 Code, Ch. 3, Sec. 6, and amended by Ord. #29.
SECTION 31. INCESTUOUS MARRIAGES.
Marriages between parents and children, ancestors and descendants of every degree, and between brother and sister, of the half as well as the whole blood, aunts and nephews, and between cousins of the half as well as the whole blood, and between uncles and nieces, are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate.
Hist: 1937 Code, Ch. 3, Sec. 7.
SECTION 32. VOIDABLE MARRIAGES.
If either party to a marriage be incapable from physical causes of entering the marriage state, or if the consent of either be obtained by fraud or force, the marriage is voidable. Every marriage of a stepfather with a stepdaughter, or stepmother with a stepson, is illegal and void.
Hist: 1937 Code, Ch. 3, Sec. 8.
SECTION 33. SUBSEQUENT MARRIAGE ILLEGAL.
A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning unless:
(1) The former marriage has been annulled or dissolved.
(2) Such former husband or wife was absent and not known to such person to be living for the space of five (5) successive years immediately preceding such subsequent marriages, or was generally reputed and was believed by such person to be dead at the time such subsequent marriage was contracted; in either of which cases the subsequent marriage is valid until its nullity is adjudged by the Oglala Sioux Tribal Court, by a competent tribunal or Judge.
Hist: 1937 Code, Ch. 3, Sec. 9.
SECTION 34. PARDON DOES NOT VALIDATE.
No pardon granted to any person sentenced to imprisonment for life in a State or Federal Court restores such person to the rights of any previous marriage, or to the guardianship of any issue of such marriage.
Hist: 1937 Code, Ch. 3, Sec. 10.
SECTION 35. VIOLATION - PENALTY.
If the officer issuing marriage license grants a license contrary to the provisions of the preceding paragraphs, he is guilty of an offense, and if a marriage is solemnized without such license being procured, the parties so married, and all persons aiding in such marriage are likewise guilty of a misdemeanor.
Hist: 1937 Code, Ch. 3, Sec. 11.
SECTION 36. FAILURE TO MAKE RETURN - PENALTY.
If a person solemnizing a marriage fails and neglects to make return thereof, in the manner provided and within ninety (90) days, to the Clerk of the Oglala Sioux Tribal Court or to the Superintendent, he shall be liable to a fine not exceeding fifty dollars ($50.00).
Application for marriage and certificate of marriage and return shall be on forms to be prepared by the Agency Office.
Hist: 1937 Code, Ch. 3, Sec. 12.
SECTION 37. ANNULMENT - GROUNDS FOR.
A marriage may be annulled by an action in the Oglala Sioux Tribal Court to obtain a decree of nullity, for any of the following causes existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was under the age of legal consent, and such marriage was contracted without the consent of his or her parents or guardians, or person having charge of him or her, unless after attaining the age of consent, such party for any time freely cohabited with the other as husband and wife.
(2) That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force.
(3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife.
(4) That the consent of either party was obtained by fraud, unless such party afterwards freely cohabited with the other as husband and wife, after knowing the full facts constituting the fraud.
(5) That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband and wife.
(6) That either party was, at the time of marriage, physically incapable of entering into the marriage state, and such incapacity continues and appears to be incurable.
Every minister of clergyman or Judge who solemnizes any marriage where either of the parties is known to him to be under the age of legal consent, and without the consent of his or her parents or guardian, or persons having charge of him or her, or where either of the parties is known to him to be of unsound mind, or any marriage to which, within his knowledge and legal impediment exists, is guilty of an offense.
Hist: 1937 Code, Ch. 3, Sec. 13.
SECTION 38. LIMITATION OF ACTION.
An action to obtain a decree of nullity of marriage for cause mentioned in Section 37 must be commenced within the provisions and by the parties, as follows:
(1) For causes mentioned in subparagraph 1 by the party to the marriage who was married under the age of legal consent, within four (4) years after arriving at the age of consent, or by a parent, guardian, or other person having charge of such under age male or female, at any time before such married minor has arrived at the age of legal consent.
(2) For causes mentioned in subparagraph 2 by either party during the life of the other, or by such former husband or wife.
(3) For causes mentioned in subparagraph 3 by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party.
(4) For causes mentioned in subparagraph 4, by the injured party within four (4) years after the discovery of the facts constituting fraud.
(5) For causes mentioned in subparagraph 5 by the injured party, within four (4) years after the marriage.
(6) For causes mentioned in subparagraph 6 by the injured party, within four (4) years after the marriage.
Hist: 1937 Code, Ch. 3, Sec. 14.
SECTION 39. CHILDREN LEGITIMATE.
Where the marriage is annulled on the ground that a former husband or wife was living, or on the ground of insanity, children begotten before the judgment are legitimate, and succeed to the estate of both parents.
Hist: 1937 Code, Ch. 3, Sec. 15.
SECTION 40. CUSTODY OF CHILDREN.
The Oglala Sioux Tribal Court must award the custody of the children of the marriage annulled on the ground of fraud or force, to the innocent parent, and may also provide for their education and maintenance out of the property of the guilty party.
Hist: 1937 Code, Ch., 3, Sec. 16.
SECTION 41. EFFECT OF JUDGMENT.
A judgment of nullity of marriage is conclusive only as against the parties to the action and those claiming under them.
Hist: 1937 Code, Ch. 3, Sec. 17.
SECTION 42. DIVORCE.
The Oglala Sioux Tribal Court shall have authority to grant divorces to members of the Oglala Sioux Tribe whether the marriage was consummated under marriage license issued by the Superintendent or the Clerk of the Oglala Sioux Tribal Court, or under the license issued by a civil authority.
Marriage is dissolved only:
(1) By the death of one of the parties; or
(2) By the judgment of the Oglala Sioux Tribal Court decreeing a divorce of the parties, where the parties are members of the Oglala Sioux Tribe or any recognized Indian Tribe.
The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons.
Hist: 1937 Code, Ch. 3, Sec. 18.
SECTION 43. DIVORCE - GROUNDS FOR.
Divorce may be granted for any of the following reasons:
1. Adultery 4. Willful Neglect2. Extreme Cruelty 5. Habitual Intemperance
3. Willful Desertion 6. Conviction of a Felony
(1) Adultery defined - Adultery is the unlawful voluntary sexual intercourse of a married person with one of the opposite sex, and when the crime is committed between parties, only one of which is married, both are guilty of adultery.
(2) Extreme Cruelty defined - Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.
(3) Desertion defined - Willful desertion is the voluntary separation of one of the married parties from the other with intent to desert.
Persistent refusal to have reasonable matrimonial intercourse as husband and wife, when health or physical condition does not make such refusal reasonably necessary, or the refusal of either party to dwell in the same house with the other party, when there is no just cause for such refusal, is desertion.
When one party is induced by the stratagem or fraud of the other to leave the dwelling place, or to be absent, and during the absence of the party, the offending party departs with intent to desert the other, it is desertion by the party committing the stratagem of fraud, and not by the other.
Departure or absence of one party from the family dwelling place, caused by cruelty or by threats of bodily harm from which danger would be reasonably apprehended from the other is not desertion by the absent party, but it is desertion by the other party.
Separation by consent, with or without the understanding that one of the parties will apply for a divorce, is not desertion.
Absence or separation, proper in itself, becomes a desertion whenever the intent to desert is fixed during such absence or separation.
Consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, and the other refuses, such refusal is desertion.
If one party deserts the other, and before the expiration of the statutory period required to make the desertion a cause of divorce, returns and offers in good faith to fulfill the marriage contract, and solicits condonation, the desertion is cured. If the other party refuses such offer and condonation, the refusal shall be deemed and treated as desertion by such party from the time of refusal.
The husband may choose any reasonable place or mode of living and if the wife does not conform thereto it is desertion.
If the place or mode of living selected by the husband is unreasonable and grossly unfit, and the wife does not conform thereto, it is desertion on the part of the husband, from the time her reasonable objections are made known to him.
(4) Willful Neglect defined - Willful neglect is the neglect of the husband to provide for his wife the common necessities of life, he having ability to do so, or by reasons of idleness, profligacy, or dissipation.
(5) Habitual Intemperance defined - Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business or which would reasonably inflict a course of a great mental anguish upon the innocent party.
Willful Desertion, Willful Neglect, or Habitual Intemperance must continue for six (6) months before either is grounds for divorce.
Hist: 1937 Code, Ch. 3, Sec. 19.
SECTION 44. DIVORCE DENIED; GROUNDS FOR DENIAL
Divorces must be denied upon showing:
1. Connivance 4.
Recrimination
2. Collusion 5. Limitation and
lapse of time
3. Condonation
(1) Connivance defined - Connivance is corrupt consent of one party to the commission of the acts of the other constituting the cause of divorce. Corrupt consent is manifested by passing permission with intent to connive or actively procure the commission of the acts complained of.
(2) Collusion defined - Collusion is an agreement between husband and wife that one of them shall commit, or appear to have committed, or to be represented in Court as having committed, acts constituting a cause for divorce for the purpose of enabling the other to obtain a divorce.
(3) Condonation defined - Condonation is the conditional forgiveness of a matrimonial offense constituting a cause for divorce. The following requirements are necessary to condonation:
1. A knowledge on the part of the condoner of the acts constituting the cause of divorce.
2. Reconciliation and remission of the offense by the injured party.
3. Restoration of the offending party to all marital rights.
Condonation implies a condition subsequent, that the forgiving party must be treated with conjugal kindness. Where the cause of divorce consists of a course of offensive conduct, or arises in causes of cruelty from excessive acts of ill treatment, which may, aggregately constituted the offense, cohabitation or passive endurance, or conjugal kindness, shall not be evidence of condonation of any of the acts constituting such cause, unless accompanied by an express agreement to condone. In such cases, condonation can be made only after the cause of divorce has become complete, as to the acts complained of. A fraudulent concealment by the condonee of facts constituting a different cause for divorce from one condoned and existing at the time of condonation voids such condonation.
Revocation of Condonation. Condonation is revoked and the original cause for divorce revived:
1. When the condonee commits acts constituting a like or other cause of divorce; or
2. When the condonee is guilty of great conjugal unkindness, not amounting to a cause of divorce, but sufficiently habitual and gross to show that the conditions or condonation had not been accepted in good faith, or not fulfilled.
(4) Recrimination defined - Recrimination is a showing by the defendant of any cause of divorce against the plaintiff in bar of the plaintiff's cause of divorce.
Condonation of a cause of divorce, shown in the answer as a recriminatory defense is a bar to such defense, unless the condonation be revoked, as above provided, or two (2) years have elapsed after the condonation, and before the accruing or completion of the cause of divorce against which recrimination is shown.
Hist: 1937 Code, Ch. 3, Sec. 20.
SECTION 45. ADULTERY BY HUSBAND - CHILDREN LEGITIMATE
When a divorce is granted for the adultery of the husband, the legitimacy of children of the marriage begotten of the wife before the commencement of the action is not affected.
Hist: 1937 Code, Ch. 3, Sec. 22.
SECTION 46. ADULTERY BY WIFE - PRESUMPTION OF LEGITIMACY.
When a divorce is granted for adultery of the wife, the legitimacy of children begotten of her before the commission of the adultery is not affected, but the legitimacy of other children of the wife may be determined by the Oglala Sioux Tribal Court upon the evidence in the case. In every such case all children begotten before the commencement of the action are to be presumed legitimate until the contrary is shown.
Hist: 1937 Code, Ch. 3, Sec. 22.
SECTION 47. LIMITATIONS OF ACTIONS FOR DIVORCE.
A divorce must be denied when there is an unreasonable lapse of time before the commencement of the action. Unreasonable lapse of time is such a delay in commencing the action as establishes the presumption that there has been connivance, collusion, or condonation of the offense, or full acquiescence in the same, with intent to continue the marriage relation, notwithstanding the commission of the offense set up as a ground of divorce. The presumption, arising from the lapse of time, may be rebutted by showing reasonable grounds for the delay in commencing the action.
There are no limitations of time for commencing actions of divorce, except such as contained in the foregoing paragraphs.
Hist: 1937 Code, Ch. 3, Sec. 24.
SECTION 48. SEPARATE MAINTENANCE AND ALIMONY.
Maintenance - Though judgment of divorce is denied, the Court may in action for divorce, provide for maintenance of the wife and her children, or any of them, by the husband.
Temporary Alimony - While an action for divorce is pending, the Oglala Sioux Tribal Court may, in its discretion, require the husband to pay any alimony, or any money necessary to enable the wife to support herself and/or the children, or to prosecute or defend the action.
Custody of Children - In an action for divorce, the Oglala Sioux Tribal Court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper and may, at any time, vacate or modify same.
Support - Where a divorce is granted for an offense of husband, the Oglala Sioux Tribal Court may compel him to provide for the maintenance of the children of the marriage and to make such suitable allowance to the wife for her support during her lifetime or for a shorter period as the Oglala Sioux Tribal Court may deem just, having regard for the circumstances of the parties respectively; and the Oglala Sioux Tribal Court may, from time to time, modify its orders in these respects.
Hist: 1937 Code, Ch. 3, Sec. 24.
SECTION 49. PROCEDURE FOR ANNULMENT AND DIVORCE.
(a) Any person applying for annulment or divorce shall deposit with the Clerk of the Oglala Sioux Tribal Court, twenty-five dollars ($25.00) at the time of action; and in case the defendant files a cross-complaint, the Clerk may with the approval of the Court, require the defendant to pay into Court a fee of like amount.
(b) The complaining party shall file with the Clerk a verified complaint concisely stating his or her cause of action and thereupon, the Clerk shall issue a summons to run in the name of the Oglala Sioux Tribal Court of the Oglala Sioux Tribe to the defendant apprising him or her of the pendency of the action and the summons shall concisely state the grounds upon which annulment or divorce is asked.
(c) The summons when issued together with a copy of the complaint, shall be delivered to the law and order department for service and shall be immediately served if service can be had. When served, the officer shall make return, showing the time of service of the summons, to the Clerk.
(d) In case service cannot be made upon the Reservation, the summons together with a copy of the complaint, shall be forwarded to the law and order department of the Reservation where the defendant is enrolled and there served.
(e) If service cannot be made personally either on the Pine Ridge Reservation or on the Reservation where the defendant is enrolled, a return shall be made to the Clerk showing said facts; thereupon the Clerk shall cause to be posted at the Agency of both Reservations, a copy of the summons and complaint; and, also mail a copy of the summons and the complaint to the last known post office address of the defendant and service shall be deemed complete thirty (30) days after the posting of said summons and complaint. The defendant shall have thirty (30) days in which to answer the complaint from the time of completed service either personally or posting or mailing.
(f) If the defendant fails to appear and answer within the time required the case may be heard by the Judge at anytime thereafter, but if the defendant answers the case, then the trial of action shall be placed on calendar by the Clerk and tried by the Court at the next regular court session unless adjourned by application of either party upon sufficient grounds.
(g) The Court shall thereupon make and enter findings of facts, conclusions of law, and a decree; and the same shall be filed and recorded by the Clerk and copies, upon request, shall be forwarded to one or both parties.
(h) The Court shall perform all the functions of the Clerk of the Court herein, where the Clerk cannot personally attend the Court as provided in Section 2.9 of this Code.
Hist: 1937 Code, Ch. 3, Sec. 25.
SECTION 50. OPENING DEFAULTS.
A defendant, who has not appeared, desiring to open said case on the grounds of fraud, shall file with the Court, within one (1) year after the decree has been entered, an affidavit showing all the facts upon which the fraud is predicated and thereupon the Court may in its discretion vacate the decree and allow a new trial upon the merits. A fee of fifteen dollars ($15.00) shall be required to be deposited with the Clerk at the time of the filing of the said action.
Hist: 1937 Code, Ch. 3, Sec. 26.
SECTION 51. ALIMONY FOR SUPPORT OF MINORS.
It shall be the duty of the court in all divorce actions to make adequate provisions for the support of the minor children and may require either or both parties to make provisions for their support and the decree entered shall provide for support of said minor children and when filed with the Superintendent, it becomes a lien on all moneys and property that the court may recommend to the Secretary of the Interior that allotted lands and trust funds or of property belonging to the parties be set aside for the use and benefit of the minors until they reach their majorities or unless changed by the Department.
In any case, where an enrolled member of the Oglala Sioux Tribe procures an annulment or divorce in any State court, he or she must file the same at the Agency and any provisions of said decree for alimony or for the support of the minor children shall have the same force and effect as if the decree had been issued by the Oglala Sioux Tribal Court.
Hist: 1937 Code, Ch. 3, Sec. 27.
SECTION 52. NON-COMPLIANCE WITH CODE.
Any person who shall not comply with any of the foregoing provisions of this Chapter with reference to domestic relations not otherwise provided shall be deemed guilty of an offense, and shall be punished by an imprisonment not to exceed thirty (30) days or a fine of fifty dollars ($50.00).
Hist: 1937 Code, Ch. 3, Sec. 28.
SECTION 53. ADOPTION OF A MINOR.
Any minor child may be adopted by an adult person, in the cases and subject to the rules prescribed in Sections 53.1 and 53.9 inclusive.
Hist: 1937 Code, Ch. 3, Sec. 29.
SECTION 53.1 AGE OF PERSON ADOPTING.
The person adopting the child must be at least ten (10) years older than the person adopted.
SECTION 53.2 CONSENT OF SPOUSE.
A married man not lawfully separated from his wife cannot adopt a child without the consent of his wife, nor can a married woman, not thus separated from her husband, without his consent, providing the husband or wife not consenting, is capable of giving such consent.
Hist: 1937 Code, Ch. 3, Sec. 29.
SECTION 53.3 CONSENT OF PARENTS.
A legitimate child cannot be adopted without the consent of the parents if living, nor an illegitimate child without the consent of its mother, if living, provided that in the following cases, consent shall not be necessary:
(1)
From a parent who has been adjudged guilty of adultery or who has
been convicted of any other punishable by imprisonment in the penitentiary
for a period not less than one (1) year, or for an offense involving
moral turpitude.
(2) From any parent who has abandoned his or her child for the period
of one (1) year.
(3) From any parent who has been adjudged by a Court or competent
jurisdiction to be a habitual drunkard.
(4) From any parent who has been judicially deprived of the custody
of the child, provided any such adjudication shall be final on appeal
to the Court of last record or the time for such appeal shall have
expired.
Hist: 1937 Code, Ch. 3, Sec. 29.
SECTION 53.4 CONSENT OF CHILD.
The consent of child, if over the age of twelve (12) years, is necessary to its adoption.
Hist: 1937 Code, Ch. 3, Sec. 29.
SECTION 53.5 JURISDICTION.
The Oglala Sioux Tribal Court is vested with jurisdiction to hear, try and determine all matters arising under the provisions of this Chapter.
Hist: 1937 Code, Ch. 3, Sec. 29.
SECTION 53.6 APPROVAL BY COURT NECESSARY.
The person adopting a child and the child adopted, and the other persons whose consent is necessary, must appear before a Judge of the Oglala Sioux Tribal Court and the necessary consent must thereupon be signed, and an agreement executed by the person adopting, and filed with the Court, to the effect that the child shall be treated in all respects as his own lawful child should be treated. Provided, that all persons whose consent is necessary, may appear personally before the Court, and that this Section shall not apply to incorporated homes or societies for destitute children.
Hist: 1937 Code, Ch. 3, Sec. 29.
SECTION 53.7 EXAMINATIONS TO BE SEPARATE.
The Oglala Sioux Tribal Court must examine all persons appearing before the Court pursuant to the last Section, separately. If satisfied that the interests of the child will be promoted by the adoption, the Court must issue an order declaring that the child shall henceforth be regarded and treated in all respects as the child of the person adopting.
Hist: 1937 Code, Ch. 3, Sec. 29.
SECTION 53.8 PARENT'S RIGHTS CEASE.
The natural parents of an adopted child are from the time of adoption, relieved of all parental duties towards the child adopted, and of all responsibility for the child so adopted, and have no right over it.
Hist: 1937 Code, Ch. 3, Sec. 29.
SECTION 53.9 ADOPTION OF ILLEGITIMATE CHILD BY FATHER.
The father of an illegitimate child, by publicly acknowledging it as his own and receiving it as such, with the consent of his wife if he is married, into his family and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child thereupon shall be deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this Chapter do not apply to such adoption.
Hist: 1937 Code, Ch. 3, Sec. 29.
SECTION 54. GUARDIANSHIP.
A guardian of a person or property or both, of a member of the Oglala Sioux Tribe of Indians, who is a minor or of unsound mind, may be appointed by the Oglala Sioux Tribal Court in all cases except as provided in Chapter 3 of the Tribal Code.
Hist: 1937 Code, Ch. 3, Sec. 29.
SECTION 54.1 STATE LAW APPLICABLE.
In the appointment of a guardian for a minor member of the Oglala Sioux Tribe the laws of the State of South Dakota will apply insofar as such laws do not conflict with the provisions of this ordinance.
Hist: Ord. #20.
SECTION 54.2 FEES AND BOND REQUIRED.
The Court shall fix a fee for the appointment of a guardian, the fee not to exceed in any case the amount of twenty-five dollars ($25.00), and shall be empowered to require a bond from the guardian for the faithful performance of his duties according to law and the following conditions shall form and constitute a part of every such bond:
(1) To make an inventory of all the property of the estate, real and personal, of his ward and that which comes to his possession or knowledge, and to return the same within such time as the Court may order.
(2) To dispose of and manage the estate according to law and for the best interest of the ward, and faithfully to discharge his trust in the relation thereto, and also in relation to the care, custody, and education of the ward.
(3) To render an account, an oath, of the property of the state of the ward in his hands, and all proceeds or interest derived therefrom, and of the management and disposition of same, within three (3) months after his appointment, at least once a year thereafter and at such other times as the Court directs, and at the expiration of his trust to settle his account with the Court of the Oglala Sioux Tribe, or with the ward, if he be of full age, or his legal representatives, and to pay over and deliver all the property of the estate, moneys, and effects remaining in his hands, or due from him on such settlement, to the person who is lawfully entitled hereto. Upon filing of the bond, duly approved, letters of guardianship will be issued to the person appointed.
Hist: Ord. #20.
SECTION 54.3 JURISDICTION.
The Oglala Sioux Tribal Court shall have exclusive jurisdiction over a guardian appointed by the Court. No person, whether parent or otherwise has any power as guardian of property, except by appointment as hereinafter provided.
Hist: Ord. #20
SECTION 54.4 APPOINTMENT BY WILL OR DEED.
A guardian of a person or estate, or both, of a child born, or likely to be born may be appointed by will or by deed to take effect upon the death of the parent appointing:
(a)
If the child be legitimate, by the father, with the written consent
of the mother, or by either parent, if the other be dead or incapable
of consent.
(b) If the child be illegitimate, by the mother.
Hist: Ord. #20.
SECTION 54.5 RULES FOR APPOINTING.
In awarding the custody of a minor or in appointing a general guardian, the Court is to be guided by the following considerations:
(1) By what appears to be for the best interest of the child in respect to its temporal and mental and moral welfare; and, if the child be of sufficient age to form an intelligent preference, the Court may consider that preference in determining the guardian.
(2) Between the parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but other things being equal, if the child be less than seven (7) years of age, it should be given to the mother; if it be of an age to require education and preparation for work or business, then to the father.
(3) When two persons are equally entitled to the custody of a child in other respects, preference is to be as follows:
1. To
a parent.
2. To one who was indicated by the wishes of the deceased
parent.
3. To one who already stands in the position of trustee of
a fund to be applied to the child's support.
4. To a relative.
Hist: Ord. #20.
SECTION 54.6 POWERS OF GUARDIANS.
A guardian appointed by the Court has power over the person and property of the ward, unless otherwise ordered. He is charged with the custody of the ward, and must look to his support, health, education, and may fix the place of residence of the ward at any place on the Pine Ridge Reservation, but not elsewhere without permission of the Court. He must keep safely the property of his ward and not permit any unnecessary waste or destruction of the real property nor make any sale of such property without the order of the Oglala Sioux Tribal Court, but must, so far as it is in his power, maintain the same, with its buildings and appurtenances, out of the income or other property of the estate, and deliver it to the ward at the close of his guardianship in as good condition as he received it.
Hist: Ord. #20.
SECTION 54.7 REMOVAL OF GUARDIANS.
A guardian appointed by the Oglala Sioux Tribal Court may be removed for any of the following reasons:
(1) For abuse of his trust.
(2) For continued failure to perform his duties.
(3) For incapacity to perform his duties.
(4) For gross immorality.
(5) For removal from the Pine Ridge Reservation without consent of the Court.
(6) On being convicted of a felony.
(7) When it is no longer necessary that the ward be under guardianship.
Hist: Ord. #20.
SECTION 54.8 TERMINATION OF POWERS.
The power of a guardian appointed by a parent is superseded:
(1) By his removal, as provided in the preceding section;
(2) By the solemnized marriage of the ward; or
(3) By the ward's attaining majority.
Hist: Ord. #20.
SECTION 54.9 TERMINATION OF POWERS OF GUARDIANS APPOINTED BY COURT.
The power of a guardian appointed by the Court is suspended only:
(1) By order of the Oglala Sioux Tribal Court;
(2) If the appointment was made solely because of the ward's minority or by his obtaining majority; or
(3) The guardianship over the person of the ward by the marriage of the ward.
Hist: Ord. #20.
SECTION 54.10 RELEASE BY WARD.
After a ward has come to his majority, he may settle accounts with his guardian and give him a release, which is valid if obtained fairly without undue influence. A guardian appointed by the Court is not entitled to his discharge until one (1) year after the ward's majority.
Hist: Ord. #20.
SECTION 54.11 DEFINITIONS.
Definition of Guardian - A guardian is a person appointed to take care of the person of property of another.
Ward defined - A ward is a person over whom or over whose property a guardian is appointed.
Guardians Classified: Guardians are either:
(a) General; or
(b) Special.
A general guardian is a guardian of the person, or of all property of the ward, or both. A special guardian is any other.
Hist: Ord. #20.
SECTION 54.12 QUALIFICATIONS OF GUARDIANS.
To be appointed a guardian by the Oglala Sioux Tribal Court, for a minor member of the Tribe or for a mentally incompetent member, a person must be:
(2) At least twenty-five (25) years of age.
(3) He must be qualified to administer the financial and personal affairs of his ward, in a satisfactory manner.
Hist: Ord. #20.
SECTION 54.13 GUARDIANS OF INSANE OR INCOMPETENT INDIANS.
When it is represented to the Court, by verified petition of any relative or friend, that any member of the Oglala Sioux Tribe is insane, or from any cause mentally incompetent to manage his property, the Oglala Sioux Tribal Court must cause notice to be given to the supposed insane or incompetent person of the time and place of hearing such petition, not less than five (5) days before the time of such hearing and such person, if able to attend must be brought before the Court. If after a full hearing and examination upon such petition, it appears to the Court that the person in question is incapable of taking care of himself and managing his property, the Court must appoint a guardian of his person and estate with the general duties specified in Sections 54 to 54.17. The Court may, in its discretion, exclude all non-participants from such hearing.
Hist: Ord. #20. and this Revised Code.
SECTION 54.14 DUTIES - BOND.
Every guardian appointed as provided in Section 54.13 has the care and custody of the person of his ward and the management of all his estate, until such time as the guardian is legally discharged; and, he must give bond to such ward in like manner, and with like conditions as prescribed with respect to the guardian of a minor.
SECTION 54.15 COMMITMENT TO ASYLUM.
A person of unsound mind may be placed in an asylum for such persons upon the order of the Oglala Sioux Tribal Court.
Hist: Ord. #20.
SECTION 54.15A COMMITMENT OF MENTALLY ILL PERSONS.
Sub. Sec. 1. Before any involuntary commitment for mental illness is commenced under the provisions of this Chapter, the immediate family of such individual shall meet with the Chief Tribal Judge of the Oglala Sioux Tribal Court, a qualified mental health professional or physician, and the Tribal Prosecutor, to determine if an alternative to commitment is available and realistic.
Sub. Sec. 2. Any person acting in good faith upon either actual knowledge or reliable information who shall make application for commitment pursuant to this Chapter, shall not be subject to civil or criminal liability for such act. Any person who, without probable cause, shall make application for commitment alleging that another person is mentally ill, shall be guilty of a misdemeanor, punishable by imprisonment not to exceed one hundred and eighty (180) days or to a fine not to exceed five hundred dollars ($500.00), or both.
Sub. Sec. 3. Any person applying for the commitment of an alleged mentally ill person shall present the information necessary for preparation of the written application to the Tribal Prosecutor as herein provided, whereupon the written application shall be accordingly prepared by the Tribal Prosecutor in the form of a petition verified by affidavit of applicant. The Tribal Prosecutor shall at once investigate the grounds upon which the application is based, and shall within seven (7) days submit the petition for commitment and a written report to the Chairman of the Oglala Sioux Tribal Health Committee of Mental Illness as to whether or not probable cause exists that the person subject to the petition is mentally ill.
All information obtained as a result of the investigation and written report shall be documented and made a part of the record in any further proceedings. The petition shall contain the following information:
(1) The name and address of the individual who applied for the petition and his interest in the case.
(2) The name of the person to be evaluated and, if known or readily discoverable, the address, age, marital status, and occupation of the person and the name and address of the person's nearest relatives.
(3) The facts upon which the allegations are based, including statements by the individual signing the petition and specification of the nature of the mental illness.
(4) Other information that the Tribal Council, by rule or regulation, or the Board, by rule or order, may require.
(5) The County of residence of such person; or if not known, where it is believed to be.
The Tribal Council shall prescribe the forms to be used in this title.
Sub. Sec. 4. A petition for commitment shall be accompanied by a certificate of a qualified mental health professional or physician unless, after reasonable effort, the petitioner cannot secure a certificate of examination. If no certificate from a qualified mental health professional or physician accompanies the application, an affidavit setting forth reasons an examination cannot be secured shall also be filed. Any qualified mental health professional or physician's certificate which accompanies an application shall be based on a personal examination of the individual and shall be conducted within ten (10) days of the filing of the petition.
Sub. Sec. 5. In any proceeding for involuntary commitment or detention or in any proceeding challenging such commitment or detention, the Tribal Prosecutor shall represent the individuals or agencies petitioning for commitment or detention and shall defend all challenges to such commitment or detention.
The Chairman of the Reservation Board of Mental Illness, on receipt of a duly certified petition for commitment and the Tribal Prosecutor's documented written report, shall immediately examine and file same with the Clerk of Courts. If the written report of the Tribal Prosecutor discloses lack of probable cause, the Chairman of the Reservation Board shall issue an order denying the petition and shall file same with the Clerk of Courts and shall authorize the Clerk or Courts to release a certified copy of said order to the petitioner. If the written report of the Tribal Prosecutor discloses that probable cause exists that the person subject of the petition is mentally ill, the Chairman of the Reservation Board shall issue the file with the Clerk of Courts an order convening, within seven (7) days excluding Saturdays, Sundays and holidays, the Reservation Board of Mental Illness for hearing on the petition and shall also issue written notice of said hearing. The hearing shall be conducted in the Courtroom of the Tribal Courthouse or such other place within the Reservation as the Chairman of the Reservation Board may designate to facilitate humane treatment with due regard to the comfort and safety of the alleged mentally ill person and others.
Certified copies of the petition and notice of hearing shall be personally served by the Tribal Police on the alleged mentally ill person at least five (5) days prior to hearing. The notice of hearing shall include the following:
(1) Notice of the time, date and place of hearing and directing the alleged mentally ill person to there appear in person, and notifying him that if he should fail to do so the Chairman of the Reservation Board may issue a warrant directing the Tribal Police to secure the protective custody of said alleged mentally ill person and to cause his personal appearance and attendance of said hearing.
(2) Notice to the alleged mentally ill person of his right to be represented by an attorney, said attorney to be either selected by himself or the Tribal Judge.
( 3) Notice that the alleged mentally ill person must be examined by a qualified mental health professional or physician designated by the Chairman of the Reservation Board, either by voluntarily appearing for the examination within twenty-four (24) hours after service of the notice, or by being apprehended by the Tribal Police and detained for examination and hearing upon the order of the Chairman of the Reservation Board issued after failure of the alleged mentally ill person to appear voluntarily within twenty-four (24) hours.
(4) Notice of the right of the alleged mentally ill person to obtain an additional examination of his own expense.
Sub. Sec. 6. If the person does not or cannot employ his own counsel four (4) days prior to the hearing, he, his representative, or the Chairman of the Reservation Board of Mental Illness shall petition of the Tribal Judge, who shall assign counsel to represent the interests of the person charged. The assignment of counsel will be made at least seventy-two (72) hours prior to the hearing. In no instance shall a person charged with being mentally ill not be represented by counsel.
Sub. Sec. 7. If the application for treatment is not accompanied by a qualified mental health professional's or physician's certificate, the Board shall order the individual to be examined by a qualified mental health professional or physician who is not a member of the Board.
Sub. Sec. 8. If the person charged with being mentally ill does not appear before the qualified mental health professional or physician designated by the Board to perform the examination within twenty-four (24) hours, the Chairman of the Board may issue a warrant and detain the person charged at the facility designated by the Reservation Board as long as necessary to complete the examination and hold the hearing, but in no event longer than one hundred and twenty (120) hours, excluding Saturdays, Sundays and holidays, if evaluation services are not available on those days.
Sub. Sec. 9. In each case of application for commitment of the mentally ill, correct answers so far as they can be obtained, to the following interrogatories shall accompany the physician's certificate on the initial examination, and if upon a further examination, after the answers are stated any of them are found to be erroneous, the Board of Mental Illness shall cause to be corrected:
1. HISTORY
(a) Informant -
(1) Name
(2) Address
(3) Relationship
(b) Patient -
(1) Full name
(2) Born; place and date
(3) Sex, race, education
(4) Occupation, religion
(5) Social Security Number
(6) How long in South Dakota
(7) Economic status
(8) Marital status; single, married, divorced, widowed, separated, unknown.
(c) Wife/Husband -
(1) Name
(2) Address
(d) Children -
(1) Name(s)
(2) Address(es)
(e) Father -
(1) Full Name
(2) Address
(f) Mother -
(1) Full Name (maiden name)
(2) Address
(g) Legally responsible relative or guardian -
(1) Full name
(2) Address
(3) Relationship
(h) Military Service-
(1) Yes or No
(2) Branch
(3) Serial Number
(i) Previous treatment for mental illness -
(1) Gives dates and places of treatment, dates of previous hospitalization, etc.
2. EXAMINATION
Findings -
(a) Physical condition, including any special test results.
(b) Present mental condition and reasons for hospitalization.
(c) Is this patient considered suicidal or homicidal?
(d) In your opinion is protective custody necessary if patient refuses to accept hospitalization voluntarily?
(e) Diagnostic impression.
(f) Signature of medical doctor.
(g) Is patient under the influence of any medication or drugs? List them, if known.
Sub. Sec. 10. After an examination, the examining mental health professional or physician shall either transmit a certificate to the Board or report to the Board that the execution of certificate is not warranted. The alleged mentally ill person has the right to obtain additional examination which may be placed in evidence before the Board.
Sub. Sec. 11. The qualified mental health professional or physician treating the patient shall take all reasonable precautions to ensure that, at the time of the hearing, the person alleged to be mentally ill, shall not be so under the influence of, or so suffer the effects of drugs, medication, or other treatment as to be hampered in preparing for or participating in the hearing. The Board, at the time of the hearing, shall be presented a record of all drugs, medication and other treatment such person has received during the seventy-two (72) hour period immediately prior to the hearing.
Sub. Sec. 12. The alleged mentally ill person and his attorney shall be present at all hearings unless the patient's attorney has agreed that the alleged mentally ill person be excused, the reasons for which shall be noted in the record.
The Alleged mentally ill person's attorney may subpoena and cross-examine witnesses and present evidence.
Sub. Sec. 13. If the board finds by clear and convincing evidence that the proposed patient is mentally ill and in need of treatment, the Board, by written findings, may order him to undergo either inpatient or outpatient treatment at a community health center, a Veterans Administration hospital, the center, or other suitable alternatives.
Sub. Sec. 14. All documents, testimony, and other records of the hearing shall be filed with the Clerk of Courts.
A patient who has been ordered to undergo treatment may request a certified transcript of the hearing. To obtain a copy, the patient shall pay for a transcript or shall file an affidavit that he is without means to pay for such transcript. if the affidavit is found to be true by the Board, the expenses of the transcript shall be charged upon the Reservation in which the proceedings were held.
The findings shall be made in duplicate; one copy of which is to be filed with the papers relating to such case in the office of the Clerk of Courts, and one copy to be sent with the duplicate warrants and duplicate certificate and interrogatories of the examining physician(s) and a copy of the testimony herein authorized to the administrator of the South Dakota Human Services Center or other appropriate facility.
Sub. Sec. 15. If commitment proceedings are discontinued at any time, all records of the proceedings shall be sealed. Inspection of a sealed record may be permitted by the Circuit Court, only upon petition by a person who is the subject of such records and only to those persons named in the petition.
Sub. Sec. 16. Upon completion of all testimony at the hearing, if the Board is in doubt whether such person is mentally ill, or in case it appears that such person is only temporarily mentally ill, the Board may temporarily commit such person to a mental health center for observation, examination, treatment, and an opinion of the persons's mental condition, for a period not to exceed fourteen (14) days; provided that if such person requires confinement as an inpatient, the mental health center must have inpatient facilities meeting the standards and requirements for such facilities as prescribed by the Mental Health Board. No person shall be committed to an inpatient facility for more than one (1) fourteen (14) day period under this Section during the course of the same hearing; or, as an alternative the Board may commit such person to the South Dakota Human Services Center for examination, observation, and treatment not to exceed thirty (30) days. The Board may adjourn the hearing for a reasonable time, and from time to time until opportunity has been given the administrator to give an opinion as to the mental condition of such person. Upon receipt of such opinion, from the administrator, or prior thereto, the Board may take final action.
Sub. Sec. 17. If the individual ordered to undergo a program of treatment does not comply with the order, the Board shall conduct a hearing for the sole purpose of determining compliance or non-compliance and if non-compliance is determined, the Board may modify its original order and direct the individual to undergo an alternative program of treatment. At least five (5) days notice of the hearing shall be given to the mentally ill person, and he shall be represented by counsel.
Sub. Sec. 18. If, at any time, it comes to the attention of the Board that the treatment of an individual ordered to undergo a program of treatment has not be successful, the Board shall conduct a hearing and may modify its original order and direct the individual to undergo an alternative program of treatment. At least five (5) days notice of hearing shall be given to the mentally ill person and he shall be represented by counsel.
Sub. Sec. 19. The findings, decision or judgment of the Board shall have no effect upon any guardianship proceeding instituted before or after such findings, judgment or decision to control the person or administer the estate of the mentally ill person, through any Court having jurisdiction of such cases, excepting that such findings, decision or judgment of the Board of Mental Illness shall control the custody, care and regulation of such person until other judgment or order is duly and legally made by a Court having jurisdiction to do so; and during all the time that a mentally ill person is confined in any public hospital or institution, the control and regulation of his person shall be under the authority and rules and regulations of such institution and statutes applicable thereto.
Sub. Sec. 20. Whenever a person shall, by the Reservation Board of Mental Illness, be adjudged mentally ill or committed for examination and observation, it shall be the duty of the Chairman of such Board to notify the administrator of the hospital or other facility by immediately forwarding to him a duplicate copy of the report of the examining physician and a duplicate warrant committing the patient, together with a copy of the record of the testimony and the findings of the Board.
Sub. Sec. 21. The Chairman of the Board may appoint someone, other than a relative of the patient, to convey the patient to the hospital, but in no instance shall a person convey persons of the opposite sex and no per diem or other compensation, other than expenses shall be allowed such attendant.
Whenever a relative or member of the family of a person adjudged mentally ill may desire to take charge of the conveying of such person to the hospital, it will be lawful for the Chairman of the Board to authorize such relative or member of the family to take charge of such person to convey him to the hospital; provided, that in judgment of the Chairman of the Board, such relative or member of the family is a competent person for that purpose and that such mentally ill person can, with safety, be entrusted to such relative en route.
The administrator of the hospital shall receipt and certify to the person delivering such mentally ill person in the same manner as in other cases when mentally ill persons are received.
Sub. Sec. 22. The expenses of such mentally ill person, attendant, and assistant attendant, if any be employed, including transportation, maintenance and other necessary expenses incurred in conveying the patient to the appropriate facility should be borne by the Public Health Service/Indian Health Service, or the designated facility when money for that purpose is appropriated. All bills of expenses connected with the conveyance of mentally ill persons to a hospital or facility for the mentally ill, shall be made in writing, fully itemized, with vouchers for all money expended, and verified by the oath of the person having charge of the mentally ill person, and accompanied by the receipt of the administrator or the hospital or other designated facility for the delivery of such mentally ill person.
Sub. Sec. 23. If it shall be shown to the satisfaction of the Board of Mental Illness that any person found to be mentally ill and a fit subject to custody and treatment as provided in this title, cannot at once be admitted to the designated facility and cannot, with safety, be allowed to go at liberty, such Board shall require that such person be suitably provided for otherwise, until such admission can be had, or until the occasion therefore no longer exists. Any patient may be cared for either as a public or private patient.
Sub. Sec. 24. In the case of a public patient, the Board shall require that he be in like manner restrained, protected, and cared for by the Public Health Service/Indian Health Service, at the expense of the Public Health Service/Indian Health Service and it may accordingly issue its warrant to the Public Health Service/Indian Health Service, who shall forthwith comply with the same. If a suitable place cannot be found, such Board of Mental Illness, in it discretion, may require that such patient be taken to a suitable mental health facility that may be designated by the Public Health Service/Indian Health Service, who shall have authority to make the best terms it can with the authorities of any mental health facility in any State for the admission of such patient.
Sub. Sec. 25. Mentally ill persons who shall have been under court ordered treatment outside of the South Dakota Human Services Center may, by authority of the Board of Mental Illness, be transferred to the South Dakota Human Services Center. Such admission may be had without another hearing.
Sub. Sec. 26. Patients shall have the rights to be free from physical restraint and isolation. Except in emergency situations when it is likely that patients could harm themselves or others, and when less restrictive means of restraint are not feasible, patients may be physically or chemically restrained or placed in isolation only on the written order of a qualified mental health professional, which explains the rationale for such action. The written order may be entered only after the qualified mental health professional has personally seen the patient concerned and evaluated whatever episode or situation is said to call for restraint or isolation. Emergency use of restraints or isolation shall be for no more than one (1) hour, by which time a qualified mental health professional shall have been consulted and shall have entered an appropriate order in writing. Such written order shall be effective for no more than twenty-four (24) hours and must be renewed if restraint and isolation are to be continued. While in restraint or isolation, the patient must be seen by qualified ward personnel who will chart the patient's physical and psychiatric condition at reasonable intervals.
Sub. Sec. 27. Religious services shall be made available to residents on a voluntary basis in accordance with their needs, desires, and capabilities and also in accordance with their basic right to freedom of religion.
Sub. Sec. 28. Nothing in this title or in any rule or regulation adopted pursuant thereto shall be construed to deny treatment by spiritual means through prayer for any person detained for evaluation or treatment who desires such treatment, or to a minor if his parent, guardian, or conservator desires such treatment.
Sub. Sec. 29. Subject to reasonable rules of the center, each patient in the Center shall have the right to communicate freely and privately with persons residing outside the facility by mail, telephone and in person unless limited, in writing, with the approval of the administrator, when such limitations on communications is essential to prevent substantial and serious physical or mental harm to the patient.
Sub. Sec. 30. A resident shall be able to communicate with his attorney or private physician without limitations subject to the facility's normal access restrictions.
SECTION 54.15B COMMITMENT OF DANGEROUSLY ILL PERSONS.
Sub. Sec. 1. When any person is alleged to be mentally ill and in such condition that immediate treatment is necessary for the protection from physical harm to himself or others, any person eighteen (18) years of age or older, may petition the Chairman of the Reservation Board of Mental Illness where such alleged mentally ill person is found, stating the factual basis for concluding that such person is mentally ill and in immediate need of treatment. The petition shall be upon a form and verified by affidavit. The petition shall include the following:
(2) The specific nature of the danger;
(3) A summary of the observations upon which the statement of danger is based; and
(4) A statement of facts which caused the person to be admitted to the applicant's attention.
Sub. Sec. 2. After examination of an application is filed under Sec. 1, the Chairman of the Reservation Board of Mental Illness may order the apprehension and transportation to an appropriate facility of an alleged mentally ill person who meets the criteria set forth in Sec. 1.
Sub. Sec. 3. A peace officer may apprehend any person he has probable cause to believe requires emergency admission under the criteria set forth in Sec. 1. The peace officer shall transport the person to a Reservation mental health facility, if the facility is capable of handling the person; or, if not capable, to an appropriate facility including a jail approved by the Reservation Board of Mental Illness.
Sub. Sec. 4. Immediately after transporting an alleged mentally ill person to an appropriate facility pursuant to Sec. 3, the peace officer shall petition the Chairman of the Reservation Board of Mental Illness as provided in Sec. 1. No person shall remain in an appropriate facility other than the Center, a community mental health center, or a private hospital for longer than twenty-four (24) hours.
Sub. Sec. 5. Immediately after the patient is taken into custody he shall be notified of his right to a hearing within five (5) days excluding Saturdays, Sundays, and holidays, and his right to be represented by counsel.
Sub. Sec. 6. Within twenty-four (24) hours after apprehension of a person who requires emergency admission, a qualified mental health professional or physician shall perform an examination of the person and shall immediately report his findings to the Chairman of the Reservation Board of Mental Illness.
Sub. Sec. 7. If the Chairman finds, as a result of the examination and an investigation of the application for an emergency admission that the person meets the criteria set forth in Sec. 1, he may direct the Tribal Police to transport the patient immediately to a mental health center, if the center is capable of handling the person on an inpatient basis; if not, direct the Tribal Police to transport the person immediately to the South Dakota Human Services Center.
Sub. Sec. 8. Within five (5) days, excluding Saturdays, Sundays, and holidays, after the alleged mentally ill person is taken into custody and transported to a community mental health center or the South Dakota Human Services Center, such person shall be afforded a hearing before the Reservation Board of Mental Illness where the facility is located in cases where he is transported to a community mental health center; or, the Yankton County Board of Mental Illness in cases where he is transported to the South Dakota Human Services Center, to determine whether the person is mentally ill and in immediate need of treatment. The hearing and procedures prior to the hearing shall be conducted in the same manner as provided in Chapter 27-7, S.D.C.L.
Sub. Sec. 9. If the Reservation Board of Mental Illness or the Yankton County Board of Mental Illness finds after the hearing that the person is mentally ill and in need of immediate treatment, the Board may direct that the person be committed to an appropriate facility for treatment.
Sub. Sec. 10. If, prior to the review required by Sub. Sec. 27-7A-17, S.D.C.L., the administrator of the South Dakota Human Services Center or the facility where the alleged mentally ill person is detained, determines that the person is no longer mentally ill and in need of treatment, that person shall be released and his records sealed.
Sub. Sec. 11. Ninety (90) days after the mentally ill person's arrival at the South Dakota Human Services Center or other facility, such person shall be afforded a review as provided in Sub. Sec. 27-7-68, S.D.C.L.
Sub. Sec. 12. If the Reservation Board finds that a person is mentally ill and in need of treatment, it may order the person committed to the South Dakota Human Services Center or to another appropriate facility.
Sub. Sec. 13. The patient shall be afforded the same review as other persons committed to a mental health hospital or facility as provided in Sub. Sec. 27-7-68 and Sub. Sec. 27-7-69.
SECTION 54.15C RESERVATION BOARD OF MENTAL ILLNESS.
Sub. Sec. 1. There shall be a Reservation Board of Mental Illness consisting of two (2) persons who shall be Oglala Sioux Tribal members, residents of the Reservation, and appointed by the Tribal Council, and a law trained lawyer, who need not be a resident of the Reservation or a member of the Oglala Sioux Tribe, who shall serve as Board Chairman.
Sub. Sec. 2. In the case of the temporary absence or inability of any member of the Board to act, the remaining members of the Board shall temporarily appoint replacements so that the original composition of the Board is retained. No hearing shall be conducted unless a reputable practicing physician or a qualified mental health professional shall be qualified and present as an acting member of the Board of Mental Illness and there are three (3) who are qualified and present. The record in all cases shall show the fact of the absence of the regular Board member and the name of the replacement.
Sub. Sec. 3. A record shall be made of all hearings and commitment proceedings of the Reservation Board of Mental Illness. Such recordings may be made by either stenographer or tape recording.
Sub. Sec. 4. The Chairman or Acting Chairman of such Board shall sign and issue all notices, appointments, warrants, subpoenas, or other processes required to be given or issued by the Board; it shall make all evidentiary rulings. The notices, reports, and communications herein required to be given may be sent by mail, unless otherwise expressed or implied, and the facts and date of such sending or reception must be noted on the proper record.
Sub. Sec. 5. The members of the Board of Mental Illness other than a law trained magistrate, shall be allowed compensation at an hourly rate as determined by the Tribal Council for all times actually employed in the duties of their offices as members of such Board of Mental Illness. The physician, as a member of the Board, in addition to what he is entitled to a member of the Board, shall be allowed an amount of fifty dollars ($50.00) , or a greater amount plus expenses, if approved by the Executive Committee of the Oglala Sioux Tribe for each case examined, and any physician who is not a member who makes an examination. All members of such Board shall be allowed mileage at the rate to be determined by the Tribal Council, and other necessary actual expenses incurred in the performance of their duties as members of such Board.
Sub. Sec. 6. The compensation, fees, and expenses in any commitment proceeding shall be allowed and paid out of any fund specifically established by the Treasurer of the Oglala Sioux Tribe.
Sub. Sec. 7. Counsel appointed by a Court to represent the interests of a person alleged to be mentally ill shall be paid by the Tribal Court administering the hearings and commitment proceedings. The counsel shall be compensated in a reasonable and just manner for such services and fees and for necessary expenses and costs incident to the proceedings in an amount to be fixed by the Circuit Judge. The Reservation will be reimbursed for such expenses by said person, if the person is financially able to do so. If not so able, then such costs of legal counsel shall be paid to the Reservation by any person legally bound for the support of such person, if they are financially able to do so.
Hist: Preceding Sections, 54.15A, 54.15B, and 54.15C adopted by Ord. #77-05, dtd. 7-19-77.
SECTION 54.15D. TEMPORARY COMMITMENT OF MENTALLY ILL PERSONS AND ALCOHOLICS.
(1) Information filed with Tribal Judge for Temporary Commitment - Time of Hearing - Notice of Hearing. If information in writing and under oath is made to any Tribal Judge that any person on the Reservation who is not charged with a criminal offense, is believed to be mentally ill, or chronically addicted to the excessive use of alcohol, and that the welfare of himself, and/or others requires that he be placed in a State, Federal, or private hospital or facility for the mentally ill, not exceeding ninety (90) days for observation or treatment, and such Tribal Judge shall believe such information to be true, he shall forthwith fix a day and place for the hearing and determining the matter; which place shall be either in the Tribal Courthouse, or at the residence of the person named, or at any other place on the Reservation as the Judge may deem best for such person and shall give five (5) days notice to such person of the time and place of such hearing with a full explanation of his constitutional rights.
(2) Trial - Issue Determined - Findings and Order on Trial by Court. If a trial is demanded, one shall be granted by the Court to hear and determine the issues of mental illness and/or chronic alcoholism and the need for commitment to a suitable facility. If the Court finds upon trial, that respondent/patient is mentally ill and/or chronically addicted to the excessive use of alcohol, and neither mentally retarded, an idiot, nor an imbecile, and that he should be temporarily committed for observation and/or treatment to some State or Federal hospital or locality or otherwise, then he shall make his order in accordance with said findings. The Court's order shall fix the temporary commitment period at a term which shall not exceed ninety (90) days or if not commitment be deemed necessary, dismiss the petition and release the patient/respondent.
(3) Temporary Commitment to Federal Facility. Such person may also be committed temporarily, for not exceeding ninety (90) days, as hereinbefore provided, to United States Veterans Administration facilities and other United States Government operated hospitals, or any other agency or department of the United States required or authorized by Federal law, to furnish care and treatment to such persons in those cases where such agency or department of the United States Government will accept such person.
(4) Property Rights and Legal Capacity Not Affected by Commitment. The commitment of a person under this Section shall not effect his property rights nor his legal capacity.
(5) Tribal Court order as Authority for Custody of Persons Committed - Maximum Period of Effectiveness. A certified copy of the Tribal Court order shall constitute the commitment and shall be the authority for such Federal or State hospital or institution to receive in its custody the person named in said order, provided proper facilities for treatment are available. Said order of the Tribal Court, shall in no event, be of any further force or effect from and after ninety (90) days from the date thereof.
(6) Patient Subject to Hospital Rules and Regulations. Said person, while a patient of any State hospital shall be subject to all laws and the rules and regulations governing said hospitals, not consistent with his legal and/or constitutional rights.
(7) Transportation Costs Paid by Tribe - Reimbursement by Patient or Persons Legally Bound for Support. The cost of transportation to and from a Federal, State or Reservation hospital or other facility shall be a primary charge against the patient so committed, but the Tribe, in the first instance, shall provide transportation to and from such hospital or other facility for such person so temporarily committed, and the Tribe shall be reimbursed for such expenses by said patient, if the patient is financially able to do so, and the Federal Government shall, pursuant to applicable treaty rights and laws, reimburse the Tribe in such costs expended. If not so able, then such costs of such transportation shall be paid to the Tribe by the person legally bound for the support of such patient if they are financially able to do so. The Tribe committing such person to a hospital or other facility, acting through its Courts, shall provide all transportation expenses of returning the patient from the State hospital to the Reservation within five (5) days after the Hospital Superintendent shall have mailed a notice by registered mail or certified mail to the committing Judge that the patient is to be released, discharged, or furloughed.
(8) Release or Furlough of Patient - Discharge on Expiration Date of Order. A person who has been temporarily committed by the Court to a Federal, State or Reservation hospital or other facility for observation and treatment, may be released, discharged, or furloughed by the hospital or facility superintendent any time during the commitment period. Said patient shall be automatically discharged on the expiration date fixed in the Court's order and the hospital or facility superintendent shall thereupon immediately release such patient, and any discharge from said superintendent of said patient shall operate to fully set aside in all respects said order of commitment by the Court.
(9) Supervision of Released Patients by Public and/or Private Facilities Providing Rehabilitation and Training Assistance - Continued Court Supervision. Any person committed to a Federal, State, Reservation or other facility under the provisions of this Section shall, upon release, be subject to the direct supervision and control of any Federal, State, or private facility, on and/or off the Reservation involved in the prevention of alcoholism and treatment of the mentally ill, willing to accept such person, as directed by the Tribal Court for one (1) year. Such institutions and/or facilities shall, to the greatest extent possible, provide all forms of assistance as may be necessary to humanely treat and rehabilitate such person and to help make him a part of his social and economic community. Particular emphasis is to be given to his training and/or retraining for work and to counseling. The Tribal Court shall maintain continued supervision over the rehabilitation and treatment of persons committed and released for such time and in such a manner consistent with the Court's time and resources.
(10) Recommitment for Additional Period. The Tribal Court, upon advice and recommendation of any hospital or facility treating a committed person is authorized, subject to a new hearing with the same procedures set forth in Sub. Sec. 2, preceding, to recommit such person for an additional period not to exceed ninety (90) days.
(11) Legal Forms. The Tribal Attorney shall prepare the legal forms needed hereunder if any be needed by the Court.
(12) Section Additional to Other Remedies. The remedies herein provide to the Court for dealing with the mentally ill or chronically alcoholic person are in addition to and not in substitution for any other remedies presently existing now or in the future in the Tribal Code.
(13) Severability of Provisions. If any provisions of the above sections or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of these sections which can be given without the invalid provision or application, and to this end the provisions of these sections are declared to be severable. (See S.D.C.L. 1967, Sec. 27-8-1, 27-8-16).
SECTION 54.15E EMERGENCY COMMITMENT OF DANGEROUSLY ILL PERSONS.
Notice to Patient of Right to Hearing and Counsel. If information, in writing and under oath, be made to any Tribal Judge that any person on the Reservation who is not charged with a criminal offense is believed to be a dangerously ill person, who constitutes a serious threat to himself and/or others, and that the welfare of himself and/or others requires that he be removed from the general populace and placed in an appropriate Federal, State, Reservation, or private institution to receive immediate observation and treatment, and such Judge shall believe such information to be true, such Judge shall order that such individual be placed in Tribal custody and immediately be brought before the Court. Immediately after the patient/respondent is taken into custody, he shall be notified of his right to a hearing within ten (10) days, excluding Saturdays, Sundays, and holidays, and his right to be represented by counsel.
(a) Prior to any hearing the Court shall direct that such person be transported to any Federal, State or private locality, either on or off the Reservation, to determine whether the person is mentally ill and in immediate need of treatment.
(b) Upon receipt by the Court of a report from the facility to which the patient was sent, a hearing shall be immediately held to determine whether he is dangerously ill and in need of immediate treatment.
(c) The provisions of Sec. 54.15D shall apply, wherever consistent with this section for the purposes sought and to provide uniformity in the enforcement of said section.
(d) If the Court shall find that any individual has intentionally falsely accused, by affidavit, testimony, written evidence or otherwise, another person of being a dangerously ill person, causing the latter to be unnecessarily placed in custody and/or sent to an institution; upon trial and conviction, said person shall be deemed to be in Contempt of Court and subject to the penalties for FALSE ARREST set forth in Sec. 80, of Chapter 6 of the Tribal Code.
Hist: Preceding Sec. 54.15D and 54.15E added per Res. #77-162, dtd. 12/12/77. Sections renumbered for uniformity from 54.18 to 54.15D and from 54.19 to 54.15E.
SECTION 54.16 RESTORATION.
Any person who has been declared insane, or the guardian or any relative of such insane person within the third degree, or any friend may apply by petition to the Oglala Sioux Tribal Court to have the fact of his restoration to capacity judicially determined. The petition shall be verified and shall state that such person is insane, upon receiving the petition, the Court must appoint a day for the hearing and cause notice of the hearing to be given to the guardian of the petitioner, if there be a guardian, and to his/her husband or wife, if there be one, and his/her father or mother, if living on the Reservation. The guardian or relative of the petitioner, or in the discretion of the Court, any other person may contest the right of the petitioner to the relief demanded. Witnesses may be required to appear and testify as in other cases, and may be called and examined by the Court, and if it be found that the petitioner is of sound mind and capable of taking care of himself and his property, his restoration to capacity shall be adjudged, and the guardianship of such person, if such person is not a minor, shall cease.
SECTION 54.17 STATE LAWS APPLICABLE.
The Oglala Sioux Tribal Court shall apply the laws of the State of South Dakota insofar as such laws do not conflict with the provisions of this ordinance in the appointment of a guardian for a mentally incompetent Indian of the Pine Ridge Sioux Tribe and shall have exclusive jurisdiction over tie guardian so appointed.
Hist: Ord. #20.
Back to Top