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tribal/12170502.json

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+"{\"id\": \"12170502\", \"name\": \"Cody CORNE, Defendant/Appellant, v. FORT PECK TRIBES, Plaintiff/Appellee\", \"name_abbreviation\": \"Corne v. Fort Peck Tribes\", \"decision_date\": \"2015-09-11\", \"docket_number\": \"No. 655\", \"first_page\": 20, \"last_page\": 20, \"citations\": \"13 Am. Tribal Law 20\", \"volume\": \"13\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T17:37:08.185705+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cody CORNE, Defendant/Appellant, v. FORT PECK TRIBES, Plaintiff/Appellee.\", \"head_matter\": \"Cody CORNE, Defendant/Appellant, v. FORT PECK TRIBES, Plaintiff/Appellee.\\nNo. 655.\\nFort Peck Court of Appeals.\\nSept. 11, 2015.\", \"word_count\": \"175\", \"char_count\": \"1021\", \"text\": \"SUPPLEMENTAL ORDER\\nThis matter has come to the attention of the Fort Peck Court of Appeals on review of the file for purposes of final disposition.\\nWe erroneously issued an Order Dismissing Appeal herein on July 21, 2014. The basis for the Dismissal Order was that Appellant had been given 30 days to file a Brief in Support of Appeal and had not done so. We therefore ordered the Appeal Dismissed. However, a Brief in Support of Appeal was timely filed on October 23, 2013, in which the alleged violations of due process rights were briefed. Had the matter not been dismissed, the Fort Peck Tribes would have had an opportunity to file a responsive brief and the matter would have been set for argument.\\nBased on the foregoing, the Order Dismissing Appeal herein is vacated. This matter is remanded to the Fort Peck Tribal Court for such further action as the Court deems reasonable and just.\"}"

tribal/12170676.json

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+"{\"id\": \"12170676\", \"name\": \"Virginia and Earl LAMOUREUX, Plaintiffs, v. LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS, d/b/a Victories Casino, a Sovereign nation, Defendant\", \"name_abbreviation\": \"Lamoureux v. Little Traverse Bay Bands of Odawa Indians\", \"decision_date\": \"2005-12-21\", \"docket_number\": \"No. C 052-0404\", \"first_page\": 50, \"last_page\": 51, \"citations\": \"13 Am. Tribal Law 50\", \"volume\": \"13\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Tribal Appellate Court of the Little Traverse Bands of Odawa Indians\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T17:37:08.185705+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Virginia and Earl LAMOUREUX, Plaintiffs, v. LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS, d/b/a Victories Casino, a Sovereign nation, Defendant.\", \"head_matter\": \"Virginia and Earl LAMOUREUX, Plaintiffs, v. LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS, d/b/a Victories Casino, a Sovereign nation, Defendant.\\nNo. C 052-0404.\\nTribal Court of the Little Traverse Bands of Odawa Indians.\\nDec. 21, 2005.\\nGary Kozma, Nelson, Petruska, Atkinson & Hart, P.C., Gaylord, MI, for Plaintiffs.\\nTobin H. Dust, Lippert, Humphreys, Campbell, Dust & Humphreys, P.C., Saginaw, MI, for Defendant.\", \"word_count\": \"217\", \"char_count\": \"1419\", \"text\": \"STIPULATION AND ORDER OF DISMISSAL\\nMICHAEL PETOSKEY, Tribal Court Judge.\\nIT IS HEREBY STIPULATED AND AGREED TO By the parties, through their counsel, that this action shall be dismissed, with prejudice, subject to the parties agreement to submit the action to binding arbitration.\\nIT IS HEREBY FURTHER STIPULATED AND AGREED TO By the parties, through their counsel, that the court shall retain jurisdiction only for the purpose of enforcing the arbitration agreement and any arbitration award.\\nORDER OF DISMISSAL\\nAt a session of said Tribal Court, located within Tribal Trust land, State of Michigan, this 21st day of December 2005. PRESENT: HONORABLE MICHAEL PETOSKEY, Tribal Court Judge\\nUpon filing and reading of the foregoing Stipulation, and the court being otherwise fully advised in the premises;\\nIT IS HEREBY ORDERED That this action shall be dismissed, with prejudice.\\nThe Court shall retain jurisdiction of the action only to enforce the parties agreement to arbitrate and any arbitration award.\"}"

tribal/12170935.json

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+"{\"id\": \"12170935\", \"name\": \"Jerry LOUIE, Appellant, v. COLVILLE TRIBAL FEDERAL CORPORATION, Appellee\", \"name_abbreviation\": \"Louie v. Colville Tribal Federal Corp.\", \"decision_date\": \"2015-12-01\", \"docket_number\": \"No. AP13-023\", \"first_page\": 136, \"last_page\": 150, \"citations\": \"13 Am. Tribal Law 136\", \"volume\": \"13\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Colville Tribal Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T17:37:08.185705+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before THERESA M. POULEY, REBECCA M. BAKER, and GARY F. BASS, JJ.\", \"parties\": \"Jerry LOUIE, Appellant, v. COLVILLE TRIBAL FEDERAL CORPORATION, Appellee.\", \"head_matter\": \"6 CTCR 35\\n12 CCAR 48\\nJerry LOUIE, Appellant, v. COLVILLE TRIBAL FEDERAL CORPORATION, Appellee.\\nNo. AP13-023.\\nColville Tribal Court of Appeals.\\nHearing Jan. 16, 2015.\\nDecided Dec. 1, 2015.\\nMark Carroll, Attorney at Law, appeared for Appellant.\\nTim McLaughlin, Attorney at Law, appeared for Appellee.\\nBefore THERESA M. POULEY, REBECCA M. BAKER, and GARY F. BASS, JJ.\", \"word_count\": \"6948\", \"char_count\": \"42131\", \"text\": \"BAKER, J.\\nTHIS MATTER comes before this court on an appeal by Jerry Louie (\\\"Louie\\\") from the Order of the Colville Tribal Court (\\\"Tribal Court\\\"), per the Honorable Cynthia Jordan. This order had dismissed Louie's petition for review of a decision, after an evidentiary hearing, of the Administrative Hearing Officer (\\\"AHO\\\"), the Honorable S. Renee Ewalt. The Tribal Court's and the AHO's dismissal orders had the effect of upholding Louie's termination from employment at Mill Bay Casino, an enterprise of the Colville Tribal Federal Corporation (\\\"CTFC\\\"). In 2012 Louie was terminated from his employment with CTFC without any prior progressive discipline. Louie challenged his termination through CTFC supervisors, to no avail. He then appealed to the AHO on numerous grounds, while also arguing that the AHO lacked subject matter jurisdiction to decide his appeal. After an evidentiary hearing and an adverse ruling by the AHO Louie sought review in Tribal Court and now this court on the basis of both the Colville Confederated Tribes' Administra tive Procedures Act (\\\"APA\\\"), CTC \\u00a7 2-4-1 et seq., and the Colville Tribal Civil Rights Act (\\\"CTCRA\\\"), CTC \\u00a7 1-5-1 et seq.\\nAthough for different reasons than those cited by the Tribal Court, we affirm.\\nAppellant Louie was represented throughout by attorney Mark J. Carroll. Appellee CTFC was represented throughout by attorney Timothy H. McLaughlin.\\nFACTS\\nThe procedural facts are not in dispute, nor are the facts related to the history of Louie's initial hire as an employee of the Colville Confederated Tribes (\\\"CCT\\\" or \\\"the Tribes\\\"), then of the Colville Tribal Enterprise Corporation (\\\"CTEC\\\"), and of his later retention as an employee of the Colville Tribal Federal Corporation (\\\"CTFC\\\"), appellee herein. Aso undisputed is the ownership of CTEC and CTFC and the adoption of the CTEC Employee Policy Manual, which later became the Employee Policy Manual of CTFC. Finally, it is not in dispute that CTEC's (later CTFC's) Employee Policy Manual, while emphasizing the at-will nature of CTFC's employment except in certain instances, it also provided a mechanism for review of terminations by an administrative hearing officer (\\\"AHO\\\") who is independent of the tribal entity, now CTFC. Later, a document called \\\"Supplementary Procedures for Administrative Hearings\\\" was generated.\\nJerry Louie became an employee of the Tribes in 1982. In 1996, however, he took a job with the Mill Bay Casino when the casino was owned and operated by the Colville Tribal Enterprise Corporation (\\\"CTEC\\\"), a wholly-owned corporation of the Tribes. In early 2006, while Louie was still an employee of CTEC, this court decided Finley v. Colville Tribal Services Corporation, 8 CCAR 38, 33 I.L.R. 6038 (2006), which established that Tobias Finley, at the time a seasonal employee of a previous wholly-owned enterprise of the Tribes, Colville Tribal Services Corporation (\\\"CTSC\\\"), possessed a property interest in his continued employment. CTSC had argued that its employee policy manual accorded no right of review for terminated seasonal employees, because, like new employees, they were subject to a \\\"probationary status.\\\" Construing CTSC's employee policy manual against its drafter, CTSC, this court held on due process grounds that, like other Tribal employees accruing benefits while employed, Finley should have had the right to a review by an administrative law judge of the merits of the reasons for his termination.\\nLater in 2006, the Board of Directors of CTEC adopted an Employee Policy Manual (\\\"EPM\\\"), and existing employees, including Louie, were required to acknowledge that they were subject to the EPM's terms and conditions in order to continue to work there. Louie complied with this request and kept his employment. Notably, the CTEC EPM explicitly and conspicuously made all CTEC employees \\\"at-will\\\" employees and, although \\\"guidelines\\\" for progressive discipline were pro vided, they were delineated as \\\"guidelines\\\" only, and not required to be followed in \\\"appropriate circumstances,\\\" going on to provide:\\nNothing in this section [pertaining to progressive disciplinary guidelines] alters the at-will nature of the employment relationship between CTEC and its employees. This policy should not be construed as promising specific treatment in a particular situation.\\nClearly it was the intent of the CTEC EPM to avoid the implications of Finley. The CTEC EPM further provided that any future policies for the CTEC organization, with some exceptions, could be made only by action by the CTEC Board of Directors.\\nIn 2009, someone at CTEC developed \\\"Supplementary Procedures\\\" applicable to CTEC employment. These \\\"Supplementary Procedures\\\" provided details for how administrative appeals would be handled, setting up specific mechanisms for such appeals in the event that all internal CTEC supervisory review of an employee's termination had taken place and the employee still felt aggrieved.\\nAlthough Louie made various objections to hearing before an AHO and argued that the AHO process was not applicable to him, and moved the AHO to recuse herself for being biased, arguments addressed infra, he makes no argument that the particular AHO assigned was not an AHO anticipated by the Supplementary Procedures or\\u2014if the Supplementary Procedures were simply a staff-generated document\\u2014that they exceeded the authority of the staff. Nor does he challenge the propriety of the selection process for AHOs under the Supplementary Procedures, although he does take issue with the fact that he did not receive a copy of the Supplementary Procedures until after he had appealed his termination to the AHO. Nevertheless, Mr. Louie ultimately received a full evi-dentiary hearing before the AHO.\\nWhile the Employee Policy Manual is silent on this point, the Supplementary Procedures provide that the AHO hearing is the employee's final remedy and explicitly state that no further review is allowed, to include any appeal to or review by Tribal Court or, indeed, by this court. The Supplementary Procedures, along with the EPM, also contain language to the effect that sovereign immunity is not waived by any of their provisions.\\nIn 2010, the Tribes' Business Council, the governing body of the Colville Confederated Tribes as the sole shareholder/owner of CTEC, transferred all of CTEC's assets to CTFC. All CTEC employees then began to be paid by and to receive benefits from CTFC rather than CTEC. No new policy manuals have been adopted since CTEC's assets were transferred to CTFC, but it is undisputed that all obligations of CTEC (if any) under the CTEC EPM and Supplementary Procedures accompanied the transfer of assets.\\nSpecifically in relation to Mr. Louie, the AHO made a number of Findings of Fact, to which Mr. Louie has not assigned error. While we emphasize that it is singularly unhelpful when a fact-finder, such as the AHO here, prefaces each \\\"Finding of Fact\\\" with the words, \\\"X testified that . nevertheless it is clear from the AHO's conclusions of law and, especially, the lengthy discussion in the \\\"Order\\\" section of her written decision, that she adopted the testimony of CTFC's witnesses and largely discounted that of Mr. Louie. It is on this basis that we recite the following facts.\\nOn April 17, 2012, Jerry Louie was terminated from his employment at CTFC. The letter declared that Mr. Louie was \\\"not happy with [his] job\\\" and cited the at-will employment clause set out in Section VI of the EPM. He had not been given any written warnings or progressive discipline, although his supervisor had discussed various issues and grievances with him over time. The AHO found that he was not terminated due to retaliation for Mr. Louie's contacting the Tribal Employment Rights Office or a Councilwoman regarding grievances, and, although Mr. Louie was a member of the protected class in regard to age discrimination, age was not a factor in the decision to terminate him. He timely appealed his termination through the chain of command at CTFC, but to no avail. He then properly and timely submitted notice that he wished to appeal his termination and requested a hearing before an Administrative Hearing Officer as set forth in the EPM.\\nThe Honorable S. Renee Ewalt was assigned to hear Mr. Louie's appeal. Before the AHO, CTFC filed a motion to quash a subpoena. AHO Ewalt set a briefing schedule but counsel for Mr. Louie needed additional time. Ultimately, AHO Ewalt, despite Mr. Louie's late-filed brief, considered both parties' briefings. Without oral argument, she granted CTFC's motion to quash. Subsequently AHO Ewalt held a full evidentiary hearing. In a 28-page decision replete with findings of fact and conclusions of law, AHO Ewalt upheld Mr. Louie's termination and dismissed his appeal. At one point during the course of the appeal, AHO Ewalt may have told Mr. Louie that if he was dissatisfied with her decision he would have the right to further appeal to the Tribal Court.\\nI. ISSUES ON APPEAL\\nPreliminarily, CTFC has moved to dismiss this appeal, raising two grounds for its motion:\\n1. This court, like the Tribal Court, lacks subject matter jurisdiction to conduct any type of review of Louie's termination by virtue of the structure of the CTEC/CTFC Employment Policy Manual and Supplementary Procedures.\\n2. CTFC, as a \\\"Section 17 federal corporation,\\\" is entitled to sovereign immunity from suit in this case.\\nLouie raises a number of issues, which can be encapsulated as follows:\\n1. The CTEC Employee Policy Manual and Supplementary Procedures do not apply to him, and thus he should be treated as a Tribal employee which entitles him to review of his termination by the Colville Tribal Court under the Colville Tribes' Administrative Procedures Act, CTC \\u00a7 2-4-1 et seq.; and the AHO's statement that he was entitled to Tribal Court review should be enforced;\\n2. Louie was deprived of an impartial decision-maker to review his termination from employment with CTFC, which implicated the right of due process when the AHO refused to recuse herself.\\n3. As a result of the denial of due process to him, and even if the CTEC EPM applies to him, the Col-ville Tribal Civil Rights Act (\\\"CTCRA\\\"), CTC \\u00a7 1-5-1 et seq., entitles him to relief via the Tribal Court because he was not afforded due process after being deprived of his employment, a property interest under Finley, supra.\\nII.STANDARD OF REVIEW\\nThis matter concerns combined issues of law and fact.\\nCombined issues of law and fact are reviewed under the non-deferential de novo standard when the administration of justice favors the Court of Appeals. \\\"Clearly erroneous\\\" review is used in such questions when the administration of justice favors the Trial Court. CCT v. Naff, 2 CCAR 50, 2 CTCR 10, 22 ILR 6032 (1995).\\nFinley v. CTSC, supra (2006).\\nHere, issues presented by CTFC pertaining to subject matter jurisdiction are purely questions of law. The status of CTFC and the resultant applicability of the doctrine of sovereign immunity, however, present mixed questions of law and fact, with the factual issues not entirely determined in this record.\\nThe issues presented by Louie pertain to the significance of the factual history of the establishment of CTEC and CTFC, which is not disputed; the applicability of Finley, supra, a question of law; the application of those factors to Louie's particular termination from employment, a mixed question of law and fact; and the subsequent hearing(s) in front of the AHO, including her denial of Louie's motion for recusal, again mixed questions of law and fact.\\nSince the issues presented herein are ones of combined law and fact, albeit with the facts either undisputed, or, in the case of the facts pertaining to CTFC's sovereign immunity argument, undetermined, the de novo standard applies.\\nIII.SUMMARY OF DECISION\\nAs to the issues raised by CTFC:\\n1. Although this court has no subject matter jurisdiction under the Tribes' APA to consider direct appeals from AHO decisions involving CTFC employee terminations, the Tribal Court, and in turn this court, retain subject matter jurisdiction to review cases when, as here, a claim of a violation of the CTCRA has been made.\\n2. Although CTFC, which claims to be a \\\"Section 17 federal corporation,\\\" may in fact possess some sovereign immunity by virtue of this alleged status, there has been inadequate development of the facts to establish this status in the record in this case, whether before the AHO, the Tribal Court or this court.\\nAs to the issues raised by Louie:\\n1. Since Louie agreed to become subject to the Employee Policy Manual, rather than refusing or declining to do so, he is bound by its provisions, which include review of his termination from employment by only an Administrative Hearing Officer and which allow no review by the Tribal Court system under the Tribes' Administrative Procedures Act. Further, the AHO's statement that Mr. Louie had a right of appeal to Tribal Court is of no consequence.\\n2. No showing has been made that the AHO was prejudiced when she declined to recuse herself after deciding a pretrial motion without oral argument, or that in doing so she demonstrated herself to be other than an impartial decision-maker.\\n3. Since a full evidentiary hearing occurred before the AHO, Louie enjoyed the benefit of notice and an opportunity to be heard, the two key elements of due process.\\nIn sum, Louie is not entitled to the protection of the Tribes' APA but instead to a hearing before an AHO. Louie's particular challenge to the AHO's impartiality was without basis in this record. And the AHO who heard his case afforded him due process of law, including both notice and an opportunity to be fully heard on the merits of his employment appeal.\\nBecause CTFC has moved to dismiss the appeal for lack of subject matter jurisdiction, and because of sovereign immunity, this opinion will first address CTFC's issues set forth above, and, because we deny CTFC's motion to dismiss Mr. Louie's petition, will then address the three issues raised by Louie.\\nCTFC's ISSUES\\n1. Although this court has no subject matter jurisdiction under the Tribes' APA to consider direct appeals from AHO decisions involving CTFC employee terminations, the Tribal Court, and in turn this court, retain subject matter jurisdiction to review cases when, as here, a claim of a violation of the CTCRA has been made.\\nAlthough it is true that Louie's Petition for Review filed in the Tribal Court cited largely to the Tribes' Administrative Procedures Act, CTC \\u00a7 2-4-20, it also included a claim that the AHO's decision \\\"denied Jerry Louie of due process\\\" (Petition, at p. 3, 1. 3) and was \\\"[i]n violation of constitutional provisions\\\" (Petition, at p. 3, 1. 10). It went on, in the prayer for relief, to cite not only CTC \\u00a7 2-4-20 (the APA) but also CTC \\u00a7 1\\u2014S\\u20142(h), a section of the Colville Tribal Civil Rights Act (CTCRA) dealing with denial of equal protection and due process.\\nAPA direct review is simply unavailable, since there is no code section allowing it in this situation, as we will discuss more fully infra. But that does not end the inquiry.\\nCTFC has steadfastly maintained in this case that there is no set of circumstances under which review by the Tribal Court system can occur in CTFC employment termination appeals. We disagree.\\nWhile we agree that the CTEC Employee Policy Manual and the mechanism for review of employment terminations by an administrative hearing officer has replaced any Tribal Court system review of such terminations under the Tribes' APA, CTC \\u00a7 2-4-20 (see discussion, infra, of Mr. Louie's issues), this begs the question of whether, under any circumstances, the Tribal Court, and in turn this court on appeal from Tribal Court, has the power to consider any matter originating as a CTFC employment appeal to the AHO.\\nWe note that the CTCRA provides:\\n1-5-3 Right of Action\\nAny person may bring an action for declaratory and/or injunctive relief only, against any executive officer or employee of the Confederated Tribes, or any employee or officer of any governmental agency acting within the jurisdiction of the Colville Tribal Court, to protect the rights set out in CTC \\u00a7 1-5-2 of this Chapter.\\n1-5-4 Colville Tribal Court\\nActions brought under CTC \\u00a7 1-5-3 shall be brought only in the Courts of the Confederated Tribes of the Colville Reservation^] notwithstanding the fact that a court of another jurisdiction may have concurrent jurisdiction.\\nCTC \\u00a7 1-5-3 and -4.\\nThus, since Louie has pled a violation of CTC \\u00a7 l-5-2(h), albeit in the context of his employment with CTFC, he is entitled to seek relief in the Tribal Court. Specifically, Amendment X, to the Colville Tribes' Constitution provides, in Article VIII, as follows.\\nSection 1: There shall be established by the Business Council of the Confederated Tribes of the Colville Reservation a separate branch of government consisting of the Colville Tribal Court of Appeals, the Colville Tribal Court, and such additional Courts as the Business Council may determine appropriate. It shall be the duty of all Courts established under this section to interpret and enforce the laws of the Confederated Tribes of the Colville Reservation as adopted by the governing body of the Tribes.\\nA claim under the CTCRA, which is part of the \\\"laws of the Confederated Tribes of the Colville Reservation,\\\" in accordance with the Tribes' Constitution, is thus to be \\\"interpreted\\\" and \\\"enforced\\\" in and by the Tribal Court system. Otherwise stated, the Tribal Court and this court possess subject matter jurisdiction to hear Louie's claims under the CTCRA arising out of the termination of his employment with the CTFC.\\n2. Although CTFC, which claims to be a \\\"Section 17 federal corporation,\\\" may in fact possess some sovereign immunity by virtue of this status, there has been inadequate development of the facts to establish this status in the record in this case, whether before the AHO, the Tribal Court or this court.\\nCTFC has made the claim that it is entitled, as a \\\"Section 17 federal corporation,\\\" to immunity from suit, at least in the context of this case. We disagree, primarily because the record in this case has not been developed either timely or sufficiently to determine (a) if CTFC is, in fact, a \\\"Section 17 federal corporation,\\\" or (b) what the parameters of sovereign immunity are in relation to such corporations.\\nThus, we look again to the Colville Tribal Civil Rights Act, under which we have determined that the Tribal Court system has subject matter jurisdiction, and find the following additional provision:\\n1-5-5 Sovereign Immunitg\\nWhen suit is brought in the Colville Tribal Court under CTC \\u00a7 1-5-4 to protect rights set out in CTC \\u00a7 1-5-2, the sovereign immunity of the Colville Tribes is hereby waived in the Courts of the Tribes for the limited purpose of providing declaratory and injunc-tive relief, where appropriate under the law and facts asserted to protect those rights; provided, the immunity of the Tribes is not waived with regard to damages, court costs, or attorney's fees.\\nCTC \\u00a7 1-5-5.\\nClearly, then, the Business Council did not intend for the Tribes themselves to be immune from suit (for the limited relief as provided in CTC \\u00a7 1-5-5) under the CTCRA. Nor, on the record in this case, are we able to come up with a rationale for holding that a wholly-owned corporation of the Tribes should be immune from suit\\u2014 subject, again, to CTC \\u00a7 1-5-5, which does not allow damages, court costs, or attorney's fees but only declaratory and injunc-tive relief, which would include a declaration that the termination violated CTC \\u00a7 l-5-2(h) (due process) and reinstatement (albeit without back pay). We note that the discussion of CTFC's purported status as a \\\"section 17 federal corporation\\\" has been, at best, sketchily developed. Here again the Code guides us by providing that the Court of Appeals \\\"shall not . entertain issues on appeal that have not been fully developed and ruled on by the Trial Court.\\\" CTC \\u00a7 1-2-106\\u00ae.\\nThus, while it is certainly possible that a future case may have a properly developed record on this important issue, this case does not.\\nWe move, then, to the issues raised by Mr. Louie.\\nB. LOUIE'S ISSUES\\n1. Since Louie agreed to become subject to the Employee Policy Manual, rather than refusing or declining to do so, he is bound by its provisions, which include review of his termination from employment by only an Administrative Hearing Officer and which allow no review by the Tribal Court system under the Tribes' Administrative Procedures Act. Further, the AHO's statement that Mr. Louie had a right of appeal to Tribal Court is of no consequence.\\nAs indicated in our discussion of the first of CTFC's issues above, we agree that the APA does not apply and is not available for review of Mr. Louie's termination. Here is our reasoning for that conclusion.\\nFirst, CTFC is correct in noting that the Tribes' Code limits APA review to cases involving\\nChapter 4-5 (On-Site Wastewater Treatment and Disposal); Chapter 4-6 (Mining Water Quality Protection); Chapter 4-7 (Forest Practices Water Quality); Chapter 4-8 (Water Quality Standards); Chapter 4-9 (Hydraulics Project Permitting); Chapter 4-15 (Shoreline Management); Chapter 10-1 (Tribal Employment Rights); and Chapter 10-3 (Indian Preference in Contracting) of the Colville Tribal Code.\\nCTC \\u00a7 2-4-1. And, as CTFC also points out, all those matters concern actions by the Tribes itself, not actions by CTFC. See CTC \\u00a7 2-4-20, defining \\\"agency\\\" as \\\"any tribal board, commission, department or officer authorized by law to propose rules for adopting [sic] by the Business Council or to adjudicate contested cases.... \\\" CTC \\u00a7 2-4-3(a). Further, the Code provides that the Tribal Court of Appeals \\\"shall not have jurisdiction to order the Trial Court to take any administrative personnel ac tions other th[a]n that permitted under applicable personnel policy.\\\" CTC \\u00a7 1-2-106(f). So, while it may perhaps be argued that CTFC's Board of Directors is a \\\"tribal board,\\\" within the meaning of CTC \\u00a7 2-4-20 defining an \\\"agency,\\\" it has not been established that CTFC's Board of Directors is \\\"authorized by law to propose rules for adoption] by the Business Council or to adjudicate contested cases.\\\" (Emphasis supplied.)\\nFurther, although it is unfortunate that the AHO apparently made the statement to Mr. Louie that he had a right to appeal any adverse decision of the AHO to Tribal Court, this cannot result in a such a right\\u2014at least not the right to a direct appeal of the AHO's decision. To repeat, this court \\\"shall not have jurisdiction to order the Trial Court to take any administrative personnel actions other th[a]n that permitted under applicable personnel policy.\\\" Id. On the other hand, the AHO's statement\\u2014according to our decision herein\\u2014was at least accurate at least insofar as Mr. Louie's right to have the Tribal Court review a decision which violates due process is concerned, as we discuss, infra.\\nAPA review is simply not available to terminated employees of CTFC.\\n2. No showing has been made that the AHO was prejudiced when she declined to recuse herself after deciding a pretrial motion without oral argument, or that in doing so she demonstrated herself to be other than an impartial decision-maker.\\nMr. Louie has made no claim that the AHO was not selected in such a way that he was denied due process. Rather, he complains that the AHO set a deadline for briefing on a pretrial motion brought by CTFC and decided the motion without oral argument. He then asked the AHO to recuse, and she denied that request.\\nFirst, as CTFC points out, Mr. Louie was not prejudiced by the AHO's setting of a deadline for briefing, because ultimately it is clear that she considered Mr. Louie's response to the pretrial motion, despite its having been submitted somewhat later than her briefing schedule had provided. This is made clear from the AHO's Findings of Fact and Conclusions of Law; Order Dismissing Appeal, at page 3, lines 6 through 8.\\nSecond, although Mr. Louie expected and would have liked a live hearing on the pretrial motion, and terms the AHO's denial of the motion to quash a \\\"sua sponte \\\" order, this is a miseharacterization. Citing Meusy v. Thomas, 10 CCAR 62, 5 CTCR 39, 38 I.L.R. 6063 (2011), Mr. Louie correctly points out that this court has expressed its disapproval of sua sponte rulings on substantive issues. But unlike a sua sponte order, an order issued on a motion without oral argument is not sua sponte. Rather, the test is whether procedural due process has been accorded the parties before a ruling is made, and whether the judicial officer has maintained not only a sense of fairness but also the appearance of it. See, e.g., Edwards v. Bercier, 10 CCAR 18, 5 CTCR 23, 37 I.L.R. 6009 (2009). Nothing in the Tribes' Law and Order Code requires a hearing, in person, on any given motion. What counts is that all parties be given notice of the motion and an opportunity to be heard\\u2014\\\"heard,\\\" that is, in the sense of having an opportunity to weigh in on the issue(s) presented in the motion; and the judge must consider the arguments made by all parties in a fair and impartial manner, giving his or her reasoning for the ruling, and demonstrating that he or she was being fair and impartial to both parties.\\nThus, in relation to CTFC's pretrial motion to quash, in due process terms, Mr. Louie had notice of the motion and an opportunity to be \\\"heard\\\" via his written submittals. He received \\\"process\\\" that was \\\"due.\\\" Thus, the AHO's approach in receiving and considering briefs from both parties and then deciding the case without oral argument did not form a basis for the AHO's disqualification as being \\\"prejudiced\\\" against Mr. Louie.\\nMoreover, it is well-settled in regard to recusal of judges for cause\\u2014and indeed codified by the Tribes' Business Council with respect to Tribal Court at least\\u2014that once a discretionary ruling has been made in a given case, a party cannot wait until after a ruling adverse to himself and then move to disqualify the judge because the judge has been \\\"unfair\\\" in ruling against him. While there is no specific code section pertaining to AHOs, by analogy it makes no sense that a request for disqualification be countenanced once a discretionary ruling\\u2014such as the AHO's ruling on CTFC's motion to quash\\u2014has been issued.\\nAlthough in this court's experience such attempts to disqualify a judge after a discretionary ruling has been made are all too common, these attempts cannot be countenanced. Otherwise, the \\\"forum-shopping\\\" problem would wreak havoc on the administration of justice. Likewise, although the Colville Law and Order Code requires any affidavit of prejudice in the Tribal Court system to be heard by another judge, we see no reason why this should be extended to the AHO system, when, as here, a clearly discretionary ruling has already been made by the AHO who, then, by refusing to recuse, denies the motion for recusal herself.\\nWe thus conclude that no due process violation occurred when the AHO refused to recuse and proceeded to hold the evi-dentiary hearing.\\n3. Since a full evidentiary hearing occurred before the AHO, Louie enjoyed the benefit of notice and an opportunity to be heard, the two key elements of due process.\\nLouie's final argument is that he was not afforded due process because, among other things, he was not allowed to receive copies of the recordings of the AHO's proceedings as provided in the Supplementary Procedures. Also part and parcel of his argument is that he simply was not afforded due process because Tribal Court did not allow a direct appeal under the APA. Additionally, he argued that the AHO determined the facts in the case in such a way that his termination was upheld. Noticeably absent, however, from his argument is that the evidence, disputed though it was, did not provide any basis for the AHO's findings of fact and in turn her conclusions of law leading to the upholding of his termination.\\nWhile we strongly disapprove of the fact that Mr. Louie has been unable to obtain copies of the recordings of the hearing at his own expense, since this is explicitly provided in the Supplementary Procedures, Administrative Hearings, Appeals, Paragraph ll, nevertheless, we fail to see how, in this case, such a failure on the part of those conducting the hearing implicates due process. This is because there is no argument that the AHO's findings of fact are not supported by substantial evidence. Additionally, there is simply no right to APA review in CTFC terminations because of the EPM.\\nAs the parties have pointed out in their briefing, employer-employee relations, and whether an employee is \\\"at-will\\\"\\u2014i.e., serving at the will of the employer\\u2014or has some rights to dispute and seek relief from an employment decision, are questions the answer to which originating with the common law doctrine of master and servant. However, the \\\"at-will\\\" starting point in the analysis of any employer/employee relationship based on employment policy manuals and other public policy issues has been softened over the years in many jurisdictions. Here the AHO properly relied on a seminal Washington ease, namely, Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984). We must emphasize that state case (common) law is to be considered guidance for us only in the absence of Colville Tribal Code or case law. But the AHO could thus be and, we agree, was in this instance properly persuaded by the rationale enunciated in Washington's Thompson v. St. Regis, supra. Indeed, a reading of this case is instructive. Generally speaking, in the absence of a contract, an employee serves at the will of the employer, who need give no reason for an employment decision adversely affecting the employee. Ibid., 102 Wash.2d at 228, 685 P.2d 1081. As explained by the Washington court in Thompson:\\n[I]f an employer, for whatever reason, creates an atmosphere of fair treatment with promises of specific treatment in specific situations and an employee is induced thereby to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship. We believe that by his or her objective manifestation of intent, the employer creates an expectation, and thus an obligation of treatment in accord with those written promises. See Restatement (Second) of Contracts, \\u00a7 2 (1981) (promise is a manifestation of an intention to act or refrain from acting in a specified way, so made as to justify a promise in understanding that a commitment has been made).\\nIbid., 102 Wash.2d at 280, 685 P.2d 1081.\\nThat opinion went on to clarify:\\nIt may be that employers may not always be bound by statements in employment manuals. They can state in a conspicuous manner that nothing contained therein is intended to be part of the employment relationship and are simply statements of company policy.\\nId. (emphasis supplied).\\nThus we note with rapt attention that the drafter of CTEC's EPM's Part L, \\\"Manual Objectives,\\\" Paragraph C., \\\"Use of Manual,\\\" states: \\\"This manual is to be used as a guide to operations and does not constitute an employment contract or a commitment to employment of a specific duration.\\\" EPM at 3. And, Part V, entitled \\\"Responsibility for Policies & Procedures,\\\" states, \\\"... An individual situation . may be left to the discretion of the Chief Executive Officer or his/her desig-nee. . In the absence of specific written policy, management always reserves the right to make decisions or take appropriate action in the best interests of the company.\\\" EPM, Part V.A., at 11. And, significantly, in relation to Mr. Louie's claim that he was denied a process of progressive discipline to which he was entitled, Part XII., \\\"Discipline,\\\" Paragraph A., \\\"Company Rules,\\\" states in part:\\nViolation of CTEC enterprise policies or rules may result in disciplinary action up to and including termination. CTEC may impose a more or less severe level of discipline for any offense or violation deemed by the company to be particularly serious.\\nEPM at 31. And Paragraph B., entitled \\\"Disciplinary Guidelines,\\\" says:\\nThe following is [sic] merely intended as guidelines. CTEC reserves the discretion to deviate from the following under appropriate circumstances. Nothing in this section alters the at-will nature of the employment relationship between CTEC and its employees. This policy should not be construed as promising specific treatment in a particular situation.\\nId. Similar permissive and non-mandatory language disclaiming any intent to create a promise of a course of action is included in Paragraph C., \\\"Discipline\\\":\\nDiscipline may follow a series of progressive steps that may be followed with a given employee. There are cases that might require immediate suspension and/or dismissal. The large majority of disciplinary actions, however, involve matters where the supervisor may, and should, apply progressive steps at working to correct the problem.\\nIbid., at 32 (emphasis supplied).\\nThus, in regard to Mr. Louie's claim that he was denied the benefit of progressive discipline and should not therefore have been terminated, it certainly appears clear to this court that the AHO's interpretation of the EPM was correct.\\nHowever, we also must note that there are several other areas of the EPM which sound in the nature of mandatory obligations on the part of the employer towards its employees in contest to the \\\"guidelines\\\" in the progressive discipline arena. These include the recitation of company policies in relation to conflict of interest, anti-nepotism, occupational safety and health (Part VIII.B., D., and E., respectively; EPM at 17-18); substance abuse (Part X.B.1. and 2.; EPM at 22-25); and harassment (Part X.C.; EPM at 26-28). The EPM also recites as company policy a commitment to abide by the Tribal Employment Rights Ordinance (\\\"TERO\\\"), which include the policies against discrimination on the basis of among other things, age. See Part VILA. We assume, also, that this would include protection from retaliation for reporting such violations to proper authorities, such as the Tribal Employment Rights Office and/or Business Councilmembers. For, in St. Regis Paper, supra, the at-will \\\"presumption\\\" has been somewhat circumscribed, for example, when the employment decision violates a statute or is contrary to public policy. See Thompson v. St. Regis Paper Co., supra, 102 Wash.2d at 232-233, 685 P.2d 1081, and cases cited therein.\\nMr. Louie made claims under the EPM's anti-nepotism policy. He claimed, too, that he was retaliated against for reporting grievances to the Tribal Employment Rights Office as well as to a Tribal Councilwoman. He said that he was discriminated against on the basis of his age. And the AHO heard testimony, considered exhibits, and addressed them each fully in her written decision, ultimately concluding that nothing occurred justifying his reinstatement to employment on this basis. In fact, the AHO addressed each and every claim that Mr. Louie raised and continues to raise in this court.\\nIt is quite apparent from the AHO's Findings of Fact and Conclusions of Law; Order Dismissing Appeal that, in addition to a deliberation on several pretrial motions, a lengthy evidentiary hearing occurred and that testimony was had from nine (9) witnesses. As well, 21 appellant's exhibits and 8 CTFC exhibits were considered. Moreover, the AHO, as we have previously stated, issued a 28-page decision with rulings on the pretrial motions and with 34 detailed findings of fact and 29 conclusions of law. While, as we have stated, we might find fault with the form of some of the findings of fact, it appears that the AHO resolved any disputed issues of fact in favor of CTFC. This it was the AHO's prerogative to do. And Mr. Louie does not challenge any particular finding of fact (nor, indeed, any particular conclusion of law).\\nThus, the failure of CTFC or others associated with the hearing to provide copies of the tapes is not a due process violation leading to a CTCRA remedy of reinstatement and the other relief sought in Mr. Louie's prayer for relief before the Tribal Court. Mr. Louie received a hearing. He had notice of it prior to its going forward. He presented evidence. And he received a decision, albeit one with which he was dissatisfied.\\nMr. Louie was accorded due process of law.\\nThus, Mr. Louie's petition to declare a violation of the Colville Tribal Civil Rights Act based upon a denial of due process, and under Finley, supra, must be denied.\\nIV. SUMMARY AND ORDER\\nCTFC's motion to dismiss for lack of subject matter jurisdiction should be denied. CTFC's motion to dismiss on the basis of sovereign immunity should also be denied.\\nJerry Louie was subject to the CTEC Employee Policy Manual, and the procedures in the Supplementary Procedures insofar as they did not create additional provisions beyond those in the EPM.\\nThe AHO properly denied Mr. Louie's motion to recuse and properly heard and granted CTEC's pretrial motion, inasmuch as the AHO considered Mr. Louie's as well as CTFC's briefing, albeit without oral argument. He was not denied an impartial decision-maker or, in turn, due process on this basis.\\nFinally, Mr. Louie had the benefit of a full evidentiary hearing, and his unsuccess ful request for copies of the recordings of the hearing bears no relevance to the issues he raises on appeal, nor to the propriety of his termination. He was, in sum, accorded due process of law.\\nMr. Louie's petition was properly dismissed by the Tribal Court, albeit for reasons different from ours.\\nIT IS THEREFORE ORDERED:\\n1. CTFC's motion to dismiss for lack of subject matter jurisdiction is denied.\\n2. CTFC's motion to dismiss on the basis of sovereign immunity is denied.\\n3. The Tribal Court's dismissal of Jerry Louie's petition for judicial review under the APA is affirmed.\\n4. The Tribal Court's dismissal of Jerry Louie's petition under the CTCRA is affirmed.\\n. The record does not establish whether this document was adopted by CTEC's Board of Directors or its staff. Thus we respectfully disagree with the AHO's statement at page 18, lines 21-22, that \\\"to argue that the Supplementary Procedures are being used without the awareness or approval of the Board of Directors or Chief Executive Officer is pure nonsense.\\\" This issue, while, as discussed infra, is not determinative in this case, it could well be crucial in future cases brought under the CTCRA.\\n. This provision was set forth in Part VI of the EPM. CTFC Exhibit 1 before the AU.\\n. EPM at Section XII(B), CTFC Exhibit 1 before the ALJ.\\n. CTSC Exhibit 1 before the ALJ, EPM Section 1(B).\\n. ALJ Finding of Fact No. 1.27 (testimony of Debi Condon). CTFC Exhibit 3 before the ALJ.\\n. Supplementary Procedures, Administrative Hearings, subsection B.14, CTFC Exhibit 3 before the AHO.\\n. EPM at p. 8, Part III; Supplementary Procedures at p. 1, under Generally, paragraph F.\\n. AHO Finding of Fact No. 1.27 (testimony of Debi Condon).\\n. Ibid.\\n. Such a statement is not really a \\\"finding\\\" but a recitation of the testimony.\\n. AHO Finding of Fact No. 1.2.\\n. AHO Finding of Fact No. 1.3.\\n. See AHO Finding of Fact Nos. 1.7 and 1.15.\\n. AHO Finding of Fact Nos. 1.13-1.15.\\n. AHO Finding of Fact No. 1.16.\\n. AHO Findings of Fact and Conclusions of Law; Order Dismissing Appeal, at p. 2, 11. 8-10.\\n. See, generally, CTFC's Response Brief and Renewed Motion to Dismiss (filed December 22, 2014).\\n. CTC \\u00a7 1\\u20145\\u20142(h) provides:\\nCivil Rights of Persons Within Tribal Jurisdiction. The Confederated Tribes of the Colville Reservation in exercising powers of self-government shall not:\\n\\n(h) Deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law[.] .,\\n. We note with some concern that the Supplementary Procedures state that the AHO \\\"may be selected from a panel of [AHOs] retained by CTEC [now CTFC]....\\\" Supplementary Procedures, Administrative Hearings, Appeals, Paragraph 15, at p, 3. Thus, since an AHO serves essentially at the pleasure of CTFC, we wonder if such an AHO would be an impartial decision-maker. But since this issue was neither raised nor briefed in this case, we do not address it here.\\n. CTC \\u00a7 1-1-143 provides: \\\"Any party to any legal proceeding . may accomplish a change of assignment of his case from one judge to another upon filing an Affidavit of Prejudice with the Court, giving satisfactory reasons for the change. The Affidavit shall be in written form and must be filed with the Court before any trial action whatever has been taken by the initial Judge. The initial Judge shall refer the affidavit to another judge for decision.\\\" (Emphasis supplied.)\\n. \\\"All proceedings shall be recorded, and either party may obtain a copy of the tapes at his/her own expense, except where the AU determines that a portion or portions of the hearing must remain sealed to protect employee confidentiality.\\\"\\n. CTC \\u00a7 1-2-11 provides: \\\"In all cases the Court shall apply, in the following order of priority unless superseded by a specific action of the Law and Order Code, any applicable laws of the Colville Confederated Tribes, tribal case law, state common law, federal statutes, federal common law and international law,\\\"\\n. We once again emphasize that a \\\"finding of fact\\\" prefaced with the phrase, \\\"X testified that .\\\" is not actually a \\\"finding\\\" of fact but a recitation of the testimony. Nevertheless, Mr. Louie makes no issue of the sufficiency of the evidence in supporting the conclusions of law, which are in the correct format and which along with the Order section, as we have stated, supra, made clear whose testimony was accepted and whose was rejected.\"}"

tribal/12170966.json

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+"{\"id\": \"12170966\", \"name\": \"Jeanne JERRED, Appellant/Cross Appellee, v. LeRoy JERRED, Appellee/Cross Appellant\", \"name_abbreviation\": \"Jerred v. Jerred\", \"decision_date\": \"2016-02-04\", \"docket_number\": \"Nos. AP15-018, AP15-019\", \"first_page\": 154, \"last_page\": 156, \"citations\": \"13 Am. Tribal Law 154\", \"volume\": \"13\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Colville Tribal Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T17:37:08.185705+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Justice MARK W. POULEY, Justice DAVE BONGA, and Justice R. JOHN SLOAN JR.\", \"parties\": \"Jeanne JERRED, Appellant/Cross Appellee, v. LeRoy JERRED, Appellee/Cross Appellant.\", \"head_matter\": \"7 CTCR 01\\n12 CCAR 66\\nJeanne JERRED, Appellant/Cross Appellee, v. LeRoy JERRED, Appellee/Cross Appellant.\\nNos. AP15-018, AP15-019.\\nColville Tribal Court of Appeals.\\nHearing held Dec. 18, 2015.\\nDecided Feb. 4, 2016.\\nVictoria Minto, Northwest Justice Project, appeared for Appellant/Cross Appel-lee.\\nAppellee appeared personally and without representation.\\nBefore Justice MARK W. POULEY, Justice DAVE BONGA, and Justice R. JOHN SLOAN JR.\", \"word_count\": \"995\", \"char_count\": \"6116\", \"text\": \"POULEY, J.\\nSUMMARY\\nThis matter came before the Court of Appeals following a contentious dissolution of a long-term marriage. While there were some procedural complications in the lower court, some of which were brought to the attention of this court, they were ultimately resolved and not the subject of this appeal or decision.\\nThe Trial Court enter\\u00e9d very detailed Findings of Fact, Conclusions of Law and a Decree of Dissolution and Order Regarding Real Property on October 5, 2015. Cross appeals followed.\\nThis court reviewed all of the pleadings filed in this matter. At the initial hearing the court heard from the parties, allowing them to clarify all of the issues on appeal and their positions.\\nThe purpose of the initial hearing is for the Court of Appeals to determine whether the facts or law as presented warrant the appeal to move forward with briefing of the issues; or whether the issues are so clear as to allow the court to dismiss or grant the appeal and/or remand the matter immediately to the Trial Court for further action. Having reviewed the files and considered the presentation of the parties at the initial hearing, this court entered an immediate oral ruling affirming in part, remanding for action in part, and reversing in part. This opinion follows.\\nISSUES\\n1. Did the Trial Court err in awarding the wife a share of the retirement annuity earned as a result of the husband's employment, and if not, did the Trial Court enter proper orders distributing that award?\\n2. Did the Trial Court distribute the parties' assets and liabilities in a fair and equitable manner?\\nDISCUSSION\\nIssue 1: Did the Trial Court err in awarding the wife a share of the retirement annuity earned as a result of the husband's employment, and if not, did the Trial Court enter proper orders distributing that award?\\n(Wife's appeal, AP15-018)\\nThe Respondent/husband earned a Civil Service Retirement System annuity based on his employment with and retirement from the United States Government. The Findings of Fact and Conclusion are clear and specific that the benefits were entirely earned during the marriage. The Trial Court awarded the wife a $600 per month share of the account. The Respondent/husband did not specifically challenge the Court's findings except to say he didn't believe the Court fairly considered his evidence or argument on the matter. This Court will not substitute our judgment for the trier of fact as the findings of the Trial Court clearly support the award. The decision of the Trial Court is AFFIRMED.\\nThe Court did, however, order distribution of the property in a manner that allows the husband to collect all of the monthly annuity distribution and requires him to pay the wife's share directly to her. Given the history of this marriage and the especially contentious nature at dissolution, it is error for the Court to create a requirement for ongoing relations between these parties. The Court's order places the burden of collecting the annuity on the wife if the husband fails to pay on time. This remedy creates a flash point for continued disputes and possible abuse. The goal of all dissolutions should be to separate the parties as completely as possible, this is doubly true when there is a history of domestic violence and abuse. We find the Trial Court's remedy to be erroneous, especially since there is a very simple solution to the issue.\\nThe Appellant/wife correctly notes that the federal retirement system easily addresses this conflict. 5 U.S.C. \\u00a7 8345(j) provides an approved Retirement Benefits Order the Court can enter, directing the United States Office of Personnel Management to pay the wife's share of the monthly annuity directly to her. The order also creates a survivor annuity which is supported by the findings of the Court, but not directly addressed in the decree.\\nThe matter is REMANDED for the court to enter the \\\"RETIREMENT BENEFITS COURT ORDER\\\" presented as an attachment to the appellate panel by the Appellant/wife.\\nIssue 2. Did the Trial Court distribute the parties' assets and liabilities in a fair and equitable manner?\\n(Husband's cross-appeal, AP15-019)\\nThe Respondent/husband filed a cross appeal essentially stating that he finds the distribution of property to be unfair and he does not believe the Court adequately considered evidence or arguments that he presented at trial. The Respondent fails to specifically present a cognizable issue for appeal. The Court obviously considered and weighed all evidence and entered detailed Findings of Fact. This Court was unable to find, and the Respondent/husband was unable to articulate, any basis to disturb those findings.\\nHis appeal is DISMISSED.\\nRestraining Order Clarification\\nDuring the initial appeal the husband raised a question regarding the continuing restraining order entered by the Trial Court. Upon questioning it was revealed the husband had a concern that he may be found to violate the technical language of the restraining order if he were to exit his vehicle to open a gate to access real property awarded to him by the Court. The Court of Appeals does not believe that was the intent of the Trial Court and REMANDS this matter directing the Trial Court to clarify the restraining order as necessary to allow the husband legal access to the property awarded by the Court.\\nCONCLUSION\\nBased on the foregoing, the Court AFFIRMS the distribution of the Retirement Account, and directs the Trial Court to enter the appropriate order to the Federal Government for direct distribution of the Retirement funds, DISMISSES the husband's appeal, and REMANDS to the Trial Court for an order clarifying the parameters of the Restraining Order.\"}"

tribal/12171266.json

@@ -0,0 +1 @@
+"{\"id\": \"12171266\", \"name\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. Morris BUCKLES, Defendant/Appellant\", \"name_abbreviation\": \"Tribes v. Buckles\", \"decision_date\": \"2016-02-26\", \"docket_number\": \"No. 704\", \"first_page\": 213, \"last_page\": 214, \"citations\": \"13 Am. Tribal Law 213\", \"volume\": \"13\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T17:37:08.185705+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRENDA DESMOND, Chief Justice, GERARD M. SCHUSTER and JOSEPH RAFFIANI, Associate Justices.\", \"parties\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. Morris BUCKLES, Defendant/Appellant.\", \"head_matter\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. Morris BUCKLES, Defendant/Appellant.\\nNo. 704.\\nFort Peck Court of Appeals.\\nFeb. 26, 2016.\\nTerry L. Boyd, Brockton, Montana, counsel for Defendant/Appellant Morris Buckles.\\nAdrienne M. Weinberger, Poplar, Montana, Prosecutor, Fort Peck Tribes.\\nBefore BRENDA DESMOND, Chief Justice, GERARD M. SCHUSTER and JOSEPH RAFFIANI, Associate Justices.\", \"word_count\": \"624\", \"char_count\": \"3904\", \"text\": \"OPINION AND ORDER\\nOn October 8, 2015, the Custer County Attorney filed an Information against Defendant/Appellant Morris Buckles for drug-related criminal offenses allegedly committed in May, 2015 in Custer County Montana, i.e., outside the exterior boundaries of the Fort Peck Indian Reservation. That same day a state district court judge of the 16th Judicial District, (which includes Custer County), signed an arrest warrant for Appellant Buckles and set bond at $50,000. On November 13, 2015, the Custer County Attorney filed an application for rendition to the State of Montana with the office of Steve Bullock, Governor of Montana. On November 18, 2015, Governor Bullock signed a Requisition for Rendition , asking the Chairman of the Fort Peck Tribes to arrange to have Appellant Buckles arrested and turned over to the Montana state authorities for the purpose of conducting a trial in Custer County. On December 1, on behalf of Plaintiff/Appellee, Fort Peck Tribes, Tribal Prosecutor Adrienne Weinberger filed a notice with the Tribal Trial Court outlining the procedure that had led to the Requisition for Rendition being conveyed to the Fort Peck Assiniboine and Sioux Tribes. The Court issued a warrant to apprehend Appellant Buckles on December 1, 2015 and he was placed in the Fort Peck Tribal Jail. At the tribal prosecutor's request, the Tribal Trial Court held a hearing, on December 7, 2015. Following the hearing, the Court ordered Appellant Buckles to be released to the State of Montana, Custer County.\\nA Petition for Review and potion for Stay were timely filed by Appellant Buckles on December 8, 2015. On January 8, 2016, we granted the Petition for Review but found no grounds for granting a Stay. We set a briefing schedule under which Appellant Buckles was given the opportunity to file a Brief in Support of his appeal within 20 days and that Appellee Fort Peck Tribes would then have 20 days to respond. Appellant Buckles did not file a Brief. However, Appellant Buckles clearly stated his legal position in the Notice of Appeal and Motion for Emergency Stay. The Fort Peck Tribes did file a brief opposing review and stating applicable law had been followed.\\nBecause this is an extradition proceeding, we are treating the Notice of Appeal as an Application for Writ of Habe-as Corpus. We deny the application and affirm the Tribal Trial Court.\\nThe state records reviewed by the Tribal prosecutor and presented to the Tribal Trial Court, outline in detail the basis for the request by the State of Montana. In the document filed by the Tribal prosecutor on December 1, 2015 entitled Extradition, she states under oath that the State of Montana has complied with the applicable provisions of the Fort Peck Tribes Comprehensive Code of Justice, (\\\"CCOJ\\\"), Title 3, Chapter 4, \\u00a7 402. Following the hearing, the Tribal Trial Court approved the release of Appellant Buckles, to Montana authorities in accordance with the tribal code provisions.\\nUnder Title II, Chapter 2, section 202, CCOJ, \\\"The Court of Appeals shall review de novo all determinations of the Tribal Court on matters of law, but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence.\\\" We find the Tribal Trial Court legal decision to be correct and supported by substantial evidence.\\nTherefore, the judgment of the Fort Peck Tribal Court is hereby affirmed.\\n. The requisition for rendition was erroneously dated 2014 instead of 2015. This is harmless error.\"}"

tribal/12171496.json

@@ -0,0 +1 @@
+"{\"id\": \"12171496\", \"name\": \"Kevin A. GASCO, Appellant, v. LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS ELECTION BOARD, Appellee\", \"name_abbreviation\": \"Gasco v. Little Traverse Bay Bands of Odawa Indians Election Bd.\", \"decision_date\": \"2011-09-12\", \"docket_number\": \"Nos. A-017-0711\", \"first_page\": 272, \"last_page\": 277, \"citations\": \"13 Am. Tribal Law 272\", \"volume\": \"13\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Tribal Appellate Court of the Little Traverse Bands of Odawa Indians\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T17:37:08.185705+00:00\", \"provenance\": \"CAP\", \"judges\": \"JAMES GENIA, C.J., GEORGE ANTHONY, J., and WENONA SINGEL, J.\", \"parties\": \"Kevin A. GASCO, Appellant, v. LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS ELECTION BOARD, Appellee.\", \"head_matter\": \"Kevin A. GASCO, Appellant, v. LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS ELECTION BOARD, Appellee.\\nNos. A-017-0711.\\nTribal Appellate Court of the Little Traverse Bands of Odawa Indians.\\nSept. 12, 2011.\\nJAMES GENIA, C.J., GEORGE ANTHONY, J., and WENONA SINGEL, J.\", \"word_count\": \"2736\", \"char_count\": \"16889\", \"text\": \"DECISION AND ORDER\\nPER CURIAM.\\nThis case is an election law appeal brought by a candidate for Tribal Council against the Election Board of the Little Traverse Bay Bands of Odawa Indians (Election Board). The candidate, Kevin A. Gaseo, filed a complaint on July 7, 2011 in the Tribal Court claiming that the Election Board acted unlawfully when it certified the preliminary results of the 2011 Tribal Council General Election on June 27, 2011. After hearing oral arguments in the case on July 15, 2011, the Tribal Court rejected Mr. Gasco's claims and affirmed the Election Board's preliminary certification of the election results. Mr. Gaseo then appealed to the LTBB Appellate Court. The Appellate Court received briefs filed by Mr. Gaseo and the Election Board and heard oral arguments on September 9, 2011. Based on its review, the Appellate Court reverses the Tribal Court's order and orders that the Election Board conduct a manual recount after providing the public with seven days advance notice In accordance with the instructions provided below.\\nBACKGROUND\\nThis matter was reviewed by the Tribal Court based on the following facts which were stipulated to by Mr. Gaseo and the Election Board:\\n1.The Election Board's first tally of the ballots in the Tribe's 2011 General Election on June 27, 2011 revealed that only one vote separated candidates John Keshick III and Kevin A. Gaseo. This first tally was conducted by machine. The Appellate Court notes that the Tribal Court mischaracterized this first stipulated fact by stating that Mr. Gaseo stipulated to receiving one less vote than Mr. Keshick, when in fact he only stipulated to he and Mr. Keshick being separated by one vote.\\n2. The Election Board conducted a recount using a second machine. This first recount resulted in a tie between Mr. Gaseo and Mr. Keshick.\\n3. The Election Board then conducted a manual recount of the ballots. This second recount resulted in 328 votes for Mr. Keshick and 327 votes for Mr. Gaseo. Based on this second recount, the Election Board certified the preliminary election results, declaring Mr. Keshick as the winner of the fourth of four open seats on the Tribal Council.\\nANALYSIS\\nA. Standard of Review\\nThe Appellate Court reviews the Tribal Court Order in accordance with the standard of review required by Rule 7.501 of the Rules of Appellate Procedures. Legal conclusions are reviewed de novo and factual findings are reviewed for clear error. In this case, where the facts have been stipulated to by the parties, the Appellate Court will focus on a de novo review of the Tribal Court's legal conclusions.\\nB. Arguments of the Parties\\nThe central thrust of Mr. Gasco's appeal is that the Election Board was required by law to conduct a special runoff election after its first recount resulted in a tie between himself and Mr. Keshick. Mr. Gaseo argues that the Election Board acted unlawfully when it chose to conduct a second manual recount following the tie, which resulted in a declaration that he had received one less vote than Mr. Keshick. Mr. Gasco's brief states,\\nBecause of the close margin between candidates Keshick and Gaseo [following the first tally of the ballots], there was an automatic recount by a second machine. At the completion of that mandatory recount the vote was tied. According to the Statute [Section X(C)(l)(a) of Waganakising Odawak Statute 2010-019, Tribal Elections and Election Board], this should result in a declared tie and a run off election held. There is no reference in the Statute to conducting a hand or manual recount to break a tie.\\nBrief of Appellant, August 19, 2011, p. 9. The Election Board argues that it acted lawfully by choosing to conduct a manual recount following the first recount resulting in a tied vote. The Election Board argues that after the first recount produced a tie, the statutory procedure for ties found at Section X(C)(l)(a) of the Elections Statute \\\"are not the governing rules. These rules govern the case of a tie that occurs after a recount triggered by an initial tie.\\\" The Election Board's position is that no specific rules exist within the Elections Statute or the Election Board Procedures Manual that govern the scenario where a tie results after a first recount following a tally that ends with a margin of difference of less than one percent. Under these circumstances, the Election Board argues, and the Tribal Court held, that it is appropriate to defer to the Election Board's decision to conduct an immediate manual recount and certify the results of the manual recount as the preliminary outcome of the election. In support of its claim that it is entitled to deference in its decision to conduct a manual recount, the Election Board relies upon the language of the LTBB Constitution, which states that the Election Board \\\"shall conduct all general and special elections,\\\" and shall \\\"adopt rules and regulations governing elections.\\\" LTBB Constitution, Article XI, \\u00a7 A.\\nC. Applicable Law\\nThe governing law for tribal elections includes Articles VII (Tribal Council), XI (Election Board), and XII (Elections) of the LTBB Constitution; the Tribal Elections and Election Board Statute (Elections Statute); and the Election Board Procedures Manual (Procedures Manual). Article XI, Section A of the LTBB Constitution is relevant for this case. It provides that\\nThe Election Board is hereby created by this Constitution as an independent entity. The Election Board shall conduct all general and special elections. The Election Board shall adopt rules and regulations governing elections, including the number of signatures required for candidacy petitions. These rules may be amended as needed. The Election Board shall have the authority to employ their own staff to fulfill their duties under this Constitution.\\nLTBB Constitution, Article XI, \\u00a7 A.\\nThe Tribal Council also has the power under the Article VTI, \\u00a7 D(l) of the LTBB Constitution to \\\"make laws not inconsistent with this Constitution.\\\" This power includes the authority to enact laws that govern Elections. The Tribal Court's opinion impliedly rejects the notion that the Tribal Council has the authority to enact a Tribal Elections and Election Board Statute, as evidenced by its failure to include the statute within its summary of the applicable law in this case. This presumption is incorrect, however, because the Constitution does not delegate exclusive legislative authority with respect to elections to the Election Board. Instead, the Constitution merely states that the Election Board shall \\\"conduct\\\" elections. The verb \\\"conduct\\\" is not defined in the Constitution. The Merriam-Webster Dictionary defines the verb \\\"conduct\\\" as \\\"to bring by or as if by leading: guide;\\\" and \\\"to lead from a position of command; to direct or take part in the operation or management of; to direct the performance of.\\\" Used in the LTBB Constitution, the statement that the Election Board has the power to conduct elections means that they have the authority to direct elections and to take part in the operation and management of elections. This power includes matters such as collecting nomination petitions, mailing ballots, collecting and counting ballots, and certifying elections results. This authority is distinct from the power to enact laws that govern elections.\\nThe LTBB Constitution also provides that the Election Board has the authority to enact rules and regulations governing elections. There is no reference in the LTBB Constitution to this being an exclusive grant of legislative authority. The Appellate Court finds that the Tribal Council possesses constitutional authority to enact laws that govern elections that are not inconsistent with the Constitution's specific election requirements. The Election Board's \\\"rules and regulations\\\" power is best understood as the authority to promulgate rules that fill in the gaps of relevant election law statutes and constitutional provisions.\\nWithin the Elections Statute, the relevant sections for our analysis include Parts C and D of Section X of the statute, titled \\\"Ties\\\" and \\\"Recounts\\\" respectively.\\nFinally, the applicable law in this case also includes the Election Board Procedures Manual, to the extent that it is consistent with the Tribal Elections and Election Board statute and the relevant portions of the LTBB Constitution. The relevant portions of the Procedures Manual include Sections B and C of the Election Day Procedures, titled \\\"Ties\\\" and \\\"Recounts.\\\"\\nD. Analysis\\nThe Appellate Court begins by noting that the parties agree on the law that applied to the initial tally of ballots. Following the first tally, when Mr. Gaseo and Mr, Keshick were separated by only one vote, the Elections Statute provision titled \\\"Recounts\\\" in Section X(D)(1) applied. That section provides that \\\"[a]ny contest that ends with a margin of less than one percent shall be subject to an automatic recount. A second machine shall be used for the recount.\\\" The Procedures Manual includes the same provision, and its language on this point is identical in all material respects. In accordance with this provision, the Election Board conducted an automatic recount using a second machine. This first recount produced a tie.\\nThe question that the Appellate Court must address is whether the Election Board lawfully conducted a manual recount following the tie, and whether they lawfully declared Mr, Keshick the winner of the fourth Tribal Council seat over Mr. Gaseo as a result of that manual recount. Mr. Gaseo claims that the manual recount was in error, and that the Election Board was required to conduct a special run-off election at that time.\\nThe Appellate Court is not persuaded by either the Election Board or Mr. Gasco's analysis. There are two reasons why we decline to adopt Mr, Gasco's reasoning. First, Mr. Gaseo argues that the statutory provision for a special run-off election applies whenever a recount results in a tie. Mr. Gaseo argues that this result is dictated by the statute because of a sentence in Section X(C)(l)(a) that reads as follows: \\\"Should a tie exist at the completion of the recount, the Election Board will conduct a special run-off election limited to the tied candidates .\\\" We disagree. The use of the words \\\"the recount\\\" does not refer to any recount under any circumstances. Rather the words \\\"the recount\\\" refers back to the recount addressed in the immediately preceding sentence in Section X(C)(l)(a). The immediately preceding sentence describes a recount in a very specific set of circumstances. It states that \\\"[i]n the event that at the completion of the canvas of the General Election results the tally reveals that any candidate has received the same number of votes as received by another candidate in that contest, the Election Board will conduct a recount of the ballots cast in that contest.\\\" Thus, the words \\\"the recount\\\" that Mr. Gaseo centers upon refer to a recount producing a tie that immediately follows an earlier tally revealing a tie. In this case, these circumstances were not present. The first tally of the ballots revealed a margin of less than one percent between Mr. Gaseo and Mr. Keshick, not a tie. Therefore, it follows that the special runoff election procedure referred to by Mr. Gaseo does not apply in this case.\\nSecondly, under Mr. Gasco's theory, the provisions of the Elections Statute would be applied sequentially, one after the other, depending on the outcome produced by the application of any one provision. For example, if an initial tally results in a less than one percent differential in votes for two candidates, and a recount performed in accordance with the statute produces a tie, then the Election Board should slide from the procedure for \\\"recounts\\\" in Section X(D)(1) to the statutory procedure for \\\"ties\\\" in Section X(C)(l)(a). This approach to determining the outcome is flawed, because it could result in a potentially infinite cycle of applying one provision of the Elections Statute after another without allowing for finality in the result. For this reason, the Appellate Court is not persuaded that the provisions of the Elections Statute are intended to be applied in this manner. Rather, to promote finality, election results should be determined by application of either the recounts section or the tie section, but not a dance back and forth between both of them.\\nThe Appellate Court is also not persuaded that the Election Board's manual recount and resulting preliminary certification of the election results is lawful under these circumstances. The Election Board conceded at oral argument that the Elections Statute and its Procedures Manual do not address how to determine an election when a tie results following a recount of votes that initially produced a less than one percent differential between candidates. The Election Board, believing that it was operating without a clear mandate under the governing law, chose to improvise and conduct a manual recount of the ballots. This manual recount was not and could not have been anticipated by the candidates and the tribal membership, leading its performance to be tainted by a lack of predictability and transparency.\\nThe Appellate Court also considers whether the Election Board's conduct should be afforded deference, in spite of the problems we identify with the use of the manual recount. In an earlier decision, we recognized that some degree of judicial deference to agency decisions may be appropriate where an agency acts within its legally-authorized, delegated authority. LTBB Gaming Regulatory Commission v. Milligan, LTBB Appellate Case A-006-0707, \\u2014 Am. Tribal Law-, 2008 WL 6969254 (October 1, 2008). In Milligan, we declined to give judicial deference to the Gaming Regulatory Commission's (GRC's) decision to suspend the casino General Manager because the GRC acted outside the scope of its delegated authority. There, the Gaming Ordinance had limited the GRC's authority to the promulgation of regulations and the processing of license applications in accordance with those regulations. Because the GRC had suspended the General Manager by issuing a spontaneous management directive that fell outside the scope of both regulation promulgation and license application processing, we held that it acted outside the scope of its authority.\\nHere, the LTBB Constitution provides that the Election Board has the authority to conduct elections and develop rules and regulations for elections. In this case, however, the Election Board's use of the manual recount did not constitute an exercise of either of these delegated powers. The Election Board can adopt rules and regulations using a deliberative process that conforms to the statutory requirements for taking official actions during meetings. See Tribal Elections and Election Board Statute, Section VI, Meetings, Minutes and Phone Polls, Waganakising Odawak Statute 2010-019. In the case of emergencies, the Election Board has a special procedure for taking action detailed in Section VI(C) of the Elections Statute. The Election Board's Procedures Manual also provides detailed requirements for the process of adopting new rules. See, Meeting Policy and Phone Poll Policy, Election Board Procedures Manual. In this case, the Election Board did not act consistent with its statutory requirements or its Procedures Manual. Just as in the case of Milligan, where the Election Board acts in a spontaneous, ad hoc fashion that does not comport with the scope of its authority, the Appellate Court declines to defer to its judgment.\\nGiven the failure of the governing law to dictate the outcome in this case, the Appellate Court concludes that the most appropriate action is for the Election Board to conduct a new manual recount of the ballots after providing seven days of public notice. The new manual recount must be conducted in a manner that allows the same degree of public observation that is permitted under the Elections Statute and Procedures Manual. If the manual recount results in a tie, then the Election Board must conduct a special run-off election in accordance with the runoff election procedures in the Elections Statute and Procedures Manual. If the manual recount does not result in a tie, then the Election Board must certify the outcome, even if the votes indicate a margin of less than one percent.\\nCONCLUSION\\nIn conclusion, the Appellate Court reverses the opinion of the Tribal Court and orders that the Election Board conduct a manual recount of the ballots in accordance with the instructions given in this opinion.\\nDECIDED AND APPROVED BY A UNANIMOUS APPELLATE COURT.\"}"

tribal/12171588.json

@@ -0,0 +1 @@
+"{\"id\": \"12171588\", \"name\": \"Corey CUTLER, Plaintiff, v. Jeremy DZINGLE, D.M.D., Marlene Gaseo, Jody Werner, Sharon Sierzputowski, And Carol Field, Defendants\", \"name_abbreviation\": \"Cutler v. Dzingle\", \"decision_date\": \"2011-06-15\", \"docket_number\": \"No. C-117-0211\", \"first_page\": 313, \"last_page\": 317, \"citations\": \"13 Am. Tribal Law 313\", \"volume\": \"13\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Tribal Appellate Court of the Little Traverse Bands of Odawa Indians\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T17:37:08.185705+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Corey CUTLER, Plaintiff, v. Jeremy DZINGLE, D.M.D., Marlene Gaseo, Jody Werner, Sharon Sierzputowski, And Carol Field, Defendants.\", \"head_matter\": \"Corey CUTLER, Plaintiff, v. Jeremy DZINGLE, D.M.D., Marlene Gaseo, Jody Werner, Sharon Sierzputowski, And Carol Field, Defendants.\\nNo. C-117-0211.\\nTribal Court of the Little Traverse Bands of Odawa Indians.\\nJune 15, 2011.\\nCorey Cutler, East Jordan, MI, In Pro Per.\\nTobin H. Dust, Humphreys, Campbell, Dust & Humphreys, P.C., Saginaw, MI, for Defendants.\", \"word_count\": \"1968\", \"char_count\": \"12415\", \"text\": \"ORDER AFTER GRANTING DEFENDANTS' MOTION TO DISMISS AND/OR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION TO ENFORCE WOS 2010-009, Sect. X. A\\nJOANNE GASCO, LTBB Chief Judge.\\nOn February 25, 2011, Plaintiff filed a Summons and Complaint. Defendant filed an Answer to Plaintiffs Summons and Complaint. On April 11, 2011, Plaintiff filed a Motion to Enforce WOS 2010-009, Sect. X., A, Brief in Support of his Motion, Exhibits, and Proof of Service. Defendant's attorney filed Defendants' Answer to Plaintiffs Motion Dated April 11, 2011 along with a Proof of Service. The Court held Status Conference (Pretrial Meeting) on April 05, 2011.\\nOn April 07, 2011, Defendants attorney filed Defendants Motion to Dismiss and/or for Summary Disposition, Defendants' Brief in Support of Their Motion to Dis miss and/or Summary Disposition, Notice of Motion Hearing scheduled for May 04, 2011, and Proof of Service. On May 04, 2011, the Court held a hearing on the motions submitted by Plaintiff and Defendant.\\nDEFENDANTS' MOTION TO DISMISS AND/OR FOR SUMMARY DISPOSITION\\nDefendant filed a motion to dismiss on April 07, 2011. Defendants seek dismissal based on two grounds. The first ground claims that sovereign immunity applies to the employees of the Little Traverse Bay Bands of Odawa Indians (LTBB) Dental Clinic as governed in the LTBB Constitution. Second, defendants claim that plaintiffs complaint fails to state a cognizable claim upon which relief can be granted. Therefore, according to Little Traverse Bay Bands of Odawa Indians Rules of Court Procedure (LTBBRCP) XVI (b)(6), failure to state a claim upon which relief can be granted provides an additional basis for summary disposition.\\nDefendants claim that although Plaintiff claims that he was subject to a standard of care \\\"far below a high standard of care\\\" (as stated in Plaintiffs complaint), the complaint fails to specifically allege how Dr. Dzingle breached the standard of care. In addition, Plaintiff does not clearly state what injuries or damages plaintiff suffered as a direct result and proximate cause of the claimed breach.\\nDefendants assert that their action in this matter does not constitute a breach of any type rather each employee acted within their scope of duties. As such, the employees are immune from suit according to sovereign immunity. Sovereign Immunity is afforded to officials and employees of the Tribe when acting within the scope of their duties or authority.\\nSOVEREIGN IMMUNITY\\nSovereign immunity is a well established area of Indian law that provides for dismissal on the premise that Indian tribes are immune from suit unless the tribe has waived sovereign immunity.\\nSovereign Immunity is provided for in the LTBB Constitution, Article XVIII as stated:\\n\\\"A. Tribal Immunity from Suit\\nThe Little Traverse Bay Bands of Odawa Indians, including all subordinate entities, shall be immune from suit except to the extent that the Tribal Council clearly and expressly waives its sovereign immunity, and officials and employees of the Tribe acting within the scope of their duties or authority shall he immune from suit.\\nB. Suit against Officials and Employees\\nOfficials and employees of the Little Traverse Bay Bands of Odawa Indians who act beyond the scope of their duties and authority shall be subject to suit in Tribal Court for purposes of enforcing rights and duties established by this Constitution or other applicable laws.\\\"\\nLTBB's view on sovereign immunity is not uncommon and is consistent -with sovereign immunity of Indian Tribes and their employees while performing duties in the exercise and discharge of their authority. Tenneco Oil Co. v. Sac & Fox Tribe of Indians, 725 F.2d 572, 574 (10th Cir.1984); Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 478 (9th Cir.1985); Boyd v. Puyallup Tribal Police, 2009 U.S. Dist. Lexis 122715; and Lewis v. Phroper, 2008 U.S. Dist. Lexis, 103394. Cameron v. Bay Mills Indian Community, 843 F.Supp. 334 (W.D.Mich.1994). Also, LTBB Tribal Court has recognized and extended sovereign immunity to the Tribe's casino em ployees. Carey v. Espinona & Eckhom, Case No. C-062-1005.\\nPlaintiffs complaint involves five (5) employees of the LTBB. Plaintiff claims that each employee acted with malice or reckless indifference to Plaintiffs request for a copy of his dental record. According to Plaintiff, Dr. Dzingle, employed with the LTBB Dental Clinic, did not disclose the records, that Dr. Dzingle provided care that was far below a high standard of care (stated in Plaintiffs complaint) and then Plaintiff states that he (Plaintiff) was unhappy with the services from Dr. Jeremy (stated in Plaintiffs motion dated April 11, 2011) and was referred to another clinic. Upon review of the documents submitted to the Court, it is unclear as to what Plaintiffs allegations are against Dr. Dzingle, it appears that the professional relationship between patient and doctor deteriorated. Plaintiff has not filed documentation that showed Dr. Dzingle acted beyond his scope of authority.\\nPlaintiff named Maureen Gaseo, LTBB employee, in the complaint because of a phone conversation that was terminated between the two before information could be exchanged about his care at LTBB Dental Clinic (Paragraph 10 of plaintiffs complaint). In addition, Plaintiff alleges Maureen Gaseo was made aware of the history of pain with his teeth and therefore was aware of the situation (Paragraph 3 of plaintiffs complaint). Plaintiff has not filed documentation or provided a legal basis to show that Maureen Gaseo acted beyond her scope of authority.\\nPlaintiff named Jody Werner, LTBB employee, in the complaint because of a personal face-to-face meeting where Plaintiff was notified of the decision to refer his care to another dentist and because Jody Werner managed the release of his patient records in January 2011 (Paragraph 10 of plaintiff's complaint). Further, Plaintiff claims that Jody Werner used the Public Documents Act as a reason for not releasing his dental records (Paragraph 15 of plaintiffs complaint). It appears that some time lapsed between the request for records and when Plaintiff actually received his dental records. From the complaint and exhibits, once the request for records was received, multiple levels of administration reviewed the request to ensure release of records were proper, including the legal department. Plaintiff also followed procedure and contacted the LTBB Administrator about his unhappiness with the process. Plaintiff received a response but then chose to file the complaint in LTBB Tribal Court. Plaintiff has not filed documentation or provided a legal basis that shows Jody Werner acted beyond her scope of authority.\\nPlaintiff named Sharon Sierzputowski, LTBB employee, in the complaint because she acknowledged his patient records were available but he would need to pick them up and could not be mailed because of cost (Paragraph 15 of plaintiffs complaint). Although Plaintiff is unhappy with the response of Sharon Sierzputowski, Plaintiff has not filed documentation or provided a legal basis to show that Sharon Sierzpu-towski acted beyond her scope of authority-\\nPlaintiff named Carol Field, LTBB employee, in the complaint because Carol Field sent some personal information on other patients in his file and that shows his privacy is not being maintained (Paragraph 15 of plaintiffs complaint). The employee may have erred by providing information on other patients of the dental clinic but Plaintiff has not filed documentation or provided a legal basis to show that Carol Field acted beyond her scope of authority.\\nPlaintiff did not file a response to Defendant's Motion to Dismiss and/or Summary Disposition but instead filed a Plaintiffs Motion to Enforce WOS 2010-009 Sec. X. A on April 11, 2011.\\nPLAINTIFFS MOTION TO ENFORCE WOS 2010-009 SEC. X. A.\\nPlaintiff, in his motion, requests this Court to enforce WOS 2010-009 Sec. X. A., commonly referred to as the Public Document Disclosure Act, based on Article XVIII B. of the LTBB Constitution. Plaintiff seeks to recover damages including inconvenience and mental anguish in the amount $500.00 from the named employees for acting with malice or reckless indifference in response to the Plaintiffs written request for copies of his dental records.\\nPlaintiff claims that on January 10, 2011, Plaintiff submitted a written request for records to the LTBB Dental Clinic. Plaintiff claims that Dr. Jeremy, Jody Werner, and Sharon Sierzputowski, are the appropriate persons who have authority to approve request for records within the LTBB Dental Clinic. Plaintiff contacted the clinic on February 7, 2011 and February 23, 2011 and spoke with Jody Werner and Sharon Sierzputowski. Plaintiff received a copy of dental records on February 24, 2011. Plaintiff contends that because he did not receive his dental records until February 24, 2011 that it shows the employees were acting with malice or with reckless indifference to Plaintiff.\\nDefendants' attorney responds that WOS 2010-009 does not apply because medical records are exempt from the act according to Section VI A which provides exemption to medical records and similar records that constitute a clearly unwarranted invasion of individuals' privacy or other documents that contain personal information. In addition, Defendants suggest that even if the statute applied it would not apply to Plaintiff because he is not a tribal citizen as defined in the statute. Plaintiff is not an enrolled citizen of the Little Traverse Bay Bands of Odawa Indians. Defendants further argue that even if the statute applied that any charge of violation must be filed with the tribal court within thirty (30) days of the alleged violation, according to Section XI of WOS 2010-009.\\nDefendant requests attorney fees and cost as LTBBRCP Section 4 provides for an award of attorney fees when the case has been prosecuted in bad faith for purposes of harassment only or as such other times as the court deems appropriate in its discretion.\\nThe issue of Article XVIII Sovereign Immunity has been addressed in Defendants' Motion to Dismiss and/or Summary Disposition in the previous section therefore the Court will not address that specific issue but will review Plaintiffs Motion to Enforce WOS 2010-009. Plaintiff is not represented by an attorney in this matter. Plaintiff has read and followed to the best of ability the LTBBRCP. One could view Plaintiffs Motion as an answer to Defendants' Motion to Dismiss since Plaintiff requests the Court to enforce the statute based on sovereign immunity but under the premise that Defendants' acted beyond their scope of authority and therefore are not immune from suit. The Court has already in the previous section stated that based on the complaint submitted and documentation (exhibits) in the record, the Court did not find that any of the named LTBB employees acted beyond their scope of authority. Therefore, there is no need to do any further analysis on Plaintiffs motion.\\nAlthough Defendants' attorney request an award of attorney fees and cost in this matter, the Court recognizes that Plaintiff is not represented by an attorney and responded to the motions to the best of his ability. Therefore, the Court will not find Plaintiff acted in bad faith and cost and attorney fees are denied. One of LTBB Tribal Court's purposes is to ensure a fair and accessible forum for those persons who choose to use the legal system to address their issues. Although not everyone will agree with the outcome of their case, the Court has the discretion to disregard any technical error or defect or failure to comply with the LTBBRCP which does not affect the substantive rights of the parties, particularly those parties not represented by professional attorneys.\\nWHEREFORE, FOR THE REASONS STATED ABOVE, IT IS HEREBY ORDERED:\\n1. Grant Defendants' Motion to Dismiss and/or Summary Disposition.\\n2. Deny Defendants' request for costs and attorney fees.\\n3. Deny Plaintiffs Motion to Enforce WOS 2010-009 Section X, A.\\n4. This case is hereby dismissed.\"}"

tribal/12172616.json

@@ -0,0 +1 @@
+"{\"id\": \"12172616\", \"name\": \"Lance ADAMS, Appellant, v. FORT PECK TRIBES, Appellee\", \"name_abbreviation\": \"Adams v. Fort Peck Tribes\", \"decision_date\": \"2017-01-11\", \"docket_number\": \"No. AP 691\", \"first_page\": 464, \"last_page\": 465, \"citations\": \"13 Am. Tribal Law 464\", \"volume\": \"13\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T17:37:08.185705+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lance ADAMS, Appellant, v. FORT PECK TRIBES, Appellee.\", \"head_matter\": \"Lance ADAMS, Appellant, v. FORT PECK TRIBES, Appellee.\\nNo. AP 691.\\nFort Peck Court of Appeals.\\nJan. 11, 2017.\", \"word_count\": \"116\", \"char_count\": \"709\", \"text\": \"DISMISSAL of APPEAL\\nMAYLINN SMITH, Chief Justice.\\nOn November 21, 2016 this Court requested affirmation that Appellant Adams wished to dismiss his appeal in accordance with his motion filed on November 24, 2015. Appellant Adams was given thirty (30) days to withdraw his Motion for Dismissal. As of this date nothing has been received by this Court in response to its November 21,2016 order.\\nGiven Appellant Adams failure to file any request with this Court asking to withdraw his motion dismissing his appeal, this Court ORDERS that the above entitled matter be dismissed with prejudice.\\nSO ORDER.\"}"

tribal/6764761.json

@@ -0,0 +1 @@
+"{\"id\": \"6764761\", \"name\": \"B.F., Appellant, v. TULALIP TRIBES, CENTRAL EMPLOYMENT DEPARTMENT, Appellee\", \"name_abbreviation\": \"B.F. v. Tulalip Tribes, Central Employment Department\", \"decision_date\": \"2014-06-03\", \"docket_number\": \"No. TUL-CV-ET-2012-0235\", \"first_page\": 37, \"last_page\": 37, \"citations\": \"12 Am. Tribal Law 37\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Tulalip Tribal Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"For the panel: DANIEL A. RAAS, Chief Justice, and DOUGLAS NASH and JANE M. SMITH, Justices.\", \"parties\": \"B.F., Appellant, v. TULALIP TRIBES, CENTRAL EMPLOYMENT DEPARTMENT, Appellee.\", \"head_matter\": \"B.F., Appellant, v. TULALIP TRIBES, CENTRAL EMPLOYMENT DEPARTMENT, Appellee.\\nNo. TUL-CV-ET-2012-0235.\\nTulalip Tribal Court of Appeals.\\nJune 3, 2014.\\nFor the panel: DANIEL A. RAAS, Chief Justice, and DOUGLAS NASH and JANE M. SMITH, Justices.\", \"word_count\": \"319\", \"char_count\": \"2090\", \"text\": \"ORDER DENYING MOTION FOR RECONSIDERATION\\nDANIEL A. RAAS, Chief Justice.\\nOn May 15, 2014, Appellant timely filed a motion for reconsideration of this Court's Opinion of May 12, 2014 in this proceeding. The argument Appellant makes is, at bottom, not whether the Dismissal Notice is the required \\\"memorandum\\\" documenting the end of the CED investigation, TTC 9.10.940(9), but that the investigation was concluded many weeks earlier and that calling the Dismissal Notice the required \\\"memorandum\\\" is a cover-up to avoid the requirement of documenting and making a decision within 25 days of concluding the investigation. There is not convincing evidence that was called to our attention that supports that theory. Instead, Appellant focuses on the time gap between the conclusion of the police investigation and the issuance of the Dismissal Notice to imply that the investigation was really concluded earlier. The briefing emphasizes that the CED personnel who were doing or would have had knowledge of the investigation couldn't pin down exact dates. From this, Appellant concludes that the investigation was completed more than 25 days before the Dismissal Notice was dated. Thus, she argues, the Employment Court could not have concluded that the Dismissal Notice was timely or that it was the required \\\"memorandum.\\\" The Employment Court found this fact against Appellant, and, on appeal, Appellant needed to overcome this finding made by the Employment Court. The Employment Court was able to observe the witnesses, listen to their testimony and make a firsthand determination of the weight which their testimony should be given. Appellant has failed to establish that the Employment Court's ruling was arbitrary, capricious, or unsupported by substantial evidence.\\nAccordingly, Appellant's motion for reconsideration is denied.\\nIt is so ordered.\"}"

tribal/6764871.json

@@ -0,0 +1 @@
+"{\"id\": \"6764871\", \"name\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. Karl EDER, Defendant/Appellant\", \"name_abbreviation\": \"Fort Peck Tribes v. Eder\", \"decision_date\": \"2014-08-07\", \"docket_number\": \"No. 579\", \"first_page\": 44, \"last_page\": 44, \"citations\": \"12 Am. Tribal Law 44\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. Karl EDER, Defendant/Appellant.\", \"head_matter\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. Karl EDER, Defendant/Appellant.\\nNo. 579.\\nFort Peck Court of Appeals.\\nAug. 7, 2014.\", \"word_count\": \"42\", \"char_count\": \"282\", \"text\": \"ORDER OF DISMISSAL\\nDefendant Karl Eder has discharged his sentence, rendering this appeal moot. Therefore,\\nIT IS HEREBY ORDERED that the appeal is dismissed,\"}"

tribal/6764924.json

@@ -0,0 +1 @@
+"{\"id\": \"6764924\", \"name\": \"Billie Jo BLACKHOOP, Appellee/Petitioner, v. Darin FALCON, Appellant/Respondent\", \"name_abbreviation\": \"Blackhoop v. Falcon\", \"decision_date\": \"2014-09-30\", \"docket_number\": \"No. 653\", \"first_page\": 46, \"last_page\": 46, \"citations\": \"12 Am. Tribal Law 46\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Billie Jo BLACKHOOP, Appellee/Petitioner, v. Darin FALCON, Appellant/Respondent.\", \"head_matter\": \"Billie Jo BLACKHOOP, Appellee/Petitioner, v. Darin FALCON, Appellant/Respondent.\\nNo. 653.\\nFort Peck Court of Appeals.\\nSept. 30, 2014.\", \"word_count\": \"42\", \"char_count\": \"275\", \"text\": \"ORDER DISMISSING APPEAL\\nBased on the agreement of the parties, and for good cause shown,\\nIT IS HEREBY ORDERED that this appeal is dismissed.\"}"

tribal/6765005.json

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+"{\"id\": \"6765005\", \"name\": \"Ronnie SMITH, Jr., Appellant, v. FORT PECK TRIBES, Appellee\", \"name_abbreviation\": \"Smith v. Fort Peck Tribes\", \"decision_date\": \"2014-11-05\", \"docket_number\": \"No. 669\", \"first_page\": 47, \"last_page\": 48, \"citations\": \"12 Am. Tribal Law 47\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"BRENDA DESMOND, Chief Justice, GERARD M. SCHUSTER and JOE RAFFIANI, Associate Justices.\", \"parties\": \"Ronnie SMITH, Jr., Appellant, v. FORT PECK TRIBES, Appellee.\", \"head_matter\": \"Ronnie SMITH, Jr., Appellant, v. FORT PECK TRIBES, Appellee.\\nNo. 669.\\nFort Peck Court of Appeals.\\nNov. 5, 2014.\\nLonnie Headdress, Sr., Deputy Public Defender, Fort Peck Tribes, Poplar, Montana, for Appellant, Ronnie Smith, Jr.\\nAdrienne R. Weinberger, Prosecutor, Fort Peck Tribes for Appellee, Fort Peck Tribes.\\nBRENDA DESMOND, Chief Justice, GERARD M. SCHUSTER and JOE RAFFIANI, Associate Justices.\", \"word_count\": \"436\", \"char_count\": \"2687\", \"text\": \"OPINION AND ORDER\\nAppellant Smith was charged with Attempted Murder as per Title 7, CCOJ \\u00a7 121/201. A fact finding hearing was held on July 15, 2014. Appellant was found guilty by the Court, Honorable Judge Marvin Youpee, Jr. presiding, and sentenced to one year incarceration. It is from this conviction that the appeal is made.\\nISSUE\\nThe Defendant's conviction was based on testimonial evidence alone. Defendant contends that there was physical evidence collected at the crime scene, including a gun and bullet, which was in the possession of the FBI and not available to prosecution or defense at trial\\nAppellant contends that his rights under the Indian Civil Right Act, 25 U.S.C. \\u00a7 1302, as reaffirmed by Title VI CCOJ \\u00a7 501, were violated.\\nDISCUSSION\\nThe testimony of the prosecution's witnesses in this case included that from eye witnesses. The Court also had testimony from law enforcement officials who heard from eye witnesses by excited utterances immediately at the scene. The Court also heard testimony from the victim, including physical evidence of a gunshot wound. This form of direct evidence is sufficient to support a conviction beyond a reasonable doubt.\\nAppellant's contention that the Court erred by convicting by the direct testimony alone is not sustainable in this case. The physical evidence not made available in this case because it was in the custody of the FBI or Federal Prosecutor was not exculpatory in nature.\\nThis case can be contrasted with the case cited by Appellant, Fort Peck Tribes v. Jeremy Adams, Case 491, September 24, 2008. In that case, the Tribes were unable to meet the burden of proof with testimonial evidence alone.\\nHere, we conclude as stated in Fort Peck Tribes v. Shilo Four Star, Case No. 611, May 6, 2013:\\n\\\"We affirm the Tribal Trial Court's decision. As trier of fact, the trial judge observed the witnesses and was able to assess their credibility. CCOJ Title II, Chapter 2, Section 202 provides, \\\"The Court of Appeals . shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence.\\\" In this case, the Tribal Trial Court's decision is supported by substantial evidence. Now, therefore,\\nIT IS HEREBY ORDERED that the Judgment of the Tribal Court is affirmed.\"}"

tribal/6765512.json

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+"{\"id\": \"6765512\", \"name\": \"MONEY CENTERS OF AMERICA, INC. and MCA of Wisconsin, Inc., Appellants, v. HO-CHUNK NATION, Appellee\", \"name_abbreviation\": \"Money Centers of America, Inc. v. Ho-Chunk Nation\", \"decision_date\": \"2013-10-16\", \"docket_number\": \"No. SU 13-07\", \"first_page\": 101, \"last_page\": 103, \"citations\": \"12 Am. Tribal Law 101\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Ho-Chunk Nation Supreme Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"MONEY CENTERS OF AMERICA, INC. and MCA of Wisconsin, Inc., Appellants, v. HO-CHUNK NATION, Appellee.\", \"head_matter\": \"MONEY CENTERS OF AMERICA, INC. and MCA of Wisconsin, Inc., Appellants, v. HO-CHUNK NATION, Appellee.\\nNo. SU 13-07.\\nHo-Chunk Nation Supreme Court.\\nOct. 8, 2013.\\nDecided Oct. 16, 2013.\", \"word_count\": \"962\", \"char_count\": \"5630\", \"text\": \"JUDGMENT (Accepting Appeal & Scheduling Order; Denying Appeal)\\nPER CURIAM.\\nOn October 8, 2013, the Appellants, Money Centers of America, Inc. and MCA of Wisconsin, Inc. (hereafter, \\\"Appellants\\\") filed a timely appeal of a final Trial Court judgment issued on September 9, 2013. HCN R.App. P, 7(a); HCN R. Civ. P. 80(A)(1), available at http://www.ho-chunknation.com/TPageld=123. \\\"Any party to a civil action . who is dissatisfied with [a] judgment ,.. may appeal to the Supreme Court.\\\" HCN Const., art. VII, \\u00a7 14, available at http://www.ho-ehunknation.com/?PageId=294. Presumptively, \\\"this Court is required to accept appeals which state an appealable issue.\\\" Deena M. Basina v. William P. Smith, SU 00-08 (HCN S.Ct., July 13, 2000) at 2. The Court, however, has consistently construed the constitutional right to appeal as applying only to a review of final judgments. HCN R.App, P. 7; see also, e.g., Stewart Miller v. Ho-Chunk Nation et al., SU 99-08 (HCN S.Ct., Sept. 15, 1999).\\nOn October 9, 2013, Appellee Ho-Chunk Nation filed an appeal from an April 15, 2013 Summary Judgment Order in the same case. While the Constitu tion \\\"confers the right to appeal ,that power is circumscribed by the procedures set out in the HCN Rules of Appellate Procedure\\u2014 [A]ny party who seeks an appeal must abide by the procedural rules established by this Court...,\\\" Bonnie Smith v. HCN Gaming Comm'n, SU 01-03 (HCN S.Ct., Mar. 16, 2001) at 1 (citing HCN Const., art. VII, \\u00a7 7(b)). In this sense, \\\"[a]ppeals are not automatically a matter of right but are within the Court's discretion. The HCN R.App. P. provides the guidelines as to how parties file an appeal.\\\" Veronica L. Wilber v. Ho-Chunk Nation, SU 04-02 (HCN S.Ct., Apr. 14, 2004) at 2. The Court may decline to accept an appeal for failure to adhere to clear procedural requisites. See Gale S. White v. Jean Day et al., CV 07-54 (HCN Tr. Ct, Dec. 9, 2008) at 16-17. \\\"This Court, despite its infancy, must require those who come into our court system to follow our rules and requirements.\\\" Leigh Stephen et al. v. Ho-Chunk Nation, SU 99-01 (HCN S.Ct., Mar. 23, 1999) at 3.\\nI.Notice of Appeal Filed by Money Center of America, Inc. and MCA of Wisconsin, Inc.\\nIn the instant case, the Notice of Appeal was filed by Appellants on October 8, 2013. The matter came before the Court for discussion on October 9, 2013. Associate Justice Trida Zunker, Associate Justice Todd Matha and Chief Justice Mary Jo Hunter reviewed the matter and perceived no appellate procedural violations. As a result, this appeal filed by Money Center of America and MCA of Wisconsin is accepted.\\nAdditionally, Associate Justice Todd Ma-tha has had prior minimal contact with Appellant MCA in Justice Maths's capacity as Solicitor General for the Mille Lacs Band and has recused himself. Therefore, this Court requires that the Ho-Chunk Nation Legislature appoint a Justice Pro Tempore pursuant to the Ho-Chunk Nation Constitution, art. VII, \\u00a7 13.\\nII. Notice of Appeal Filed By Ho-Chunk Nation\\nFurther, the appeal filed by Appel-lee Ho-Chunk Nation on October 9, 2013 came before the Court for discussion between Chief Justice Mary Jo Hunter and Associate Justice Trida Zunker on October 11, 2013. The Notice of Appeal raises two issues, both of which were addressed in the Summary Judgment Order in this case. See Ho-Chunk Nation v. Money Center of America, Inc. et al, SU 13-03, (HCN S. Ct, May 15, 2013) at 20-22. The Summary Judgment Order denying motions for summary judgment was issued on April 15, 2013. The decision issued on April 15, 2013 represented a nonfinal judgment permitting appeal to the Supreme Court within ten calendar days after entry of such an order. HCN R.App. P. 8. The time limit for appeal ran on April 25, 2013 at 4:30 p.m. In fact, Appellee attempted to file an appeal on April 25, 2013, but it was received at 5:15 p.m. and denied for untimely appeal. See Ho-Chunk Nation v. Money Center of America, Inc. et al., SU 13-03, (HCN S.Ct., May 15, 2013) at 1.\\nThe Court is denying the request for appeal submitted by Appellee Ho-Chunk Nation on October 9, 2013. The basis for this decision lies in the procedurally defective manner in which the Notice of Appeal was filed as it was submitted untimely.\\nIII. Orders of the Court\\nA. With respect to the Notice of Appeal filed by Appellants Money Center of America and MCA on October 8, 2013, the Court hereby ORDERS:\\n\\u2022 That this matter is accepted for appeal.\\n\\u2022 That the briefs should be filed in accordance with the HCN Rules of Appellate Procedure, Rule 12.\\n\\u2022 Upon appointment of the Justice Pro Tempore, this Court will set a date for oral argument.\\nB. With respect to the Notice of Appeal filed by Appellee Ho-Chunk Nation on October 9, 2013, the Court hereby ORDERS:\\n\\u2022 That this matter is denied for appeal in accordance with the HCN Rules of Appellate Procedure, Rule 8.\\nEGI HESKEKJBT.\\n. Ho-Chunk Nation filed an appeal one day after Notice of Appeal was filed by Money Center of America, Inc., and MCA of Wisconsin, Inc. and is determined the Appellee for purposes of this Order. Under Ho-Chunk Nation Rules of Appellate Procedure, Rule 7(b)2, \\\"the party taking the appeal shall be referred to as the Appellant; all other parties shall be referred to as Appellees.\\\" Further, the Federal Rule of Appellate Procedure state that \\\"[t]he party who files a notice of appeal first is the appellant\\\" for purposes of cross-appeals. Fed. R.App. P. 28.1(b).\"}"

tribal/6765581.json

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+"{\"id\": \"6765581\", \"name\": \"Theresa DAY, Appellant, v. Amy KIRBY, Table Gaines Division; Ho-Chunk Gaming-Wisconsin Dells; and Grievance Review Board, Appellees\", \"name_abbreviation\": \"Day v. Kirby\", \"decision_date\": \"2014-01-28\", \"docket_number\": \"No. SU 13-08\", \"first_page\": 103, \"last_page\": 106, \"citations\": \"12 Am. Tribal Law 103\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Ho-Chunk Nation Supreme Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Theresa DAY, Appellant, v. Amy KIRBY, Table Gaines Division; Ho-Chunk Gaming-Wisconsin Dells; and Grievance Review Board, Appellees.\", \"head_matter\": \"Theresa DAY, Appellant, v. Amy KIRBY, Table Gaines Division; Ho-Chunk Gaming-Wisconsin Dells; and Grievance Review Board, Appellees.\\nNo. SU 13-08.\\nHo-Chunk Nation Supreme Court.\\nJan. 28, 2014.\", \"word_count\": \"1375\", \"char_count\": \"8681\", \"text\": \"ORDER (Denying Motion for Reconsideration)\\nOn November 15, 2013, the appellant, by and through Attorney James C. Ritland, filed a motion to reconsider, urging this Court to reverse its denial of her appeal. The appellant unwisely resorted to a state trial level rule of civil procedure, entitled \\\"Relief from Judgment or Order,\\\" when articulating the grounds of her motion. Wis. Stat. \\u00a7 806.07. An equivalent rule exists within this jurisdiction, but, regardless, neither rule would logically govern this Court's appellate practice. HCN R. Civ. P. 58, mailable at http://www.ho-chunknation.com/?PageId=123. Instead, the appellant should have performed that degree of research reasonably necessary to determine whether and how to present the motion now under review. The Court denies the appellant's motion in accordance with its consistent treatment of such requests.\\nOver its eighteen (18) year history, the Court has entertained sixteen (16) motions for reconsideration within cases that proceeded to final disposition, including the present request. The overwhelming majority of these motions occurred within six (6) years of the Court's foundation. Only two (2) other such motions have been filed between November 2001, and November 2013. George Lewis v. HCN Election Bd. et al., SU 06-07 (HCN S.Ct., Apr. 13, 2007); Ho-Chunk Nation v. Bank of Am., N.A., SU 03-06 (HCN S.Ct., Sept. 11, 2003). The early concentration of reconsideration requests clearly correlates with the Court's development. Additionally, the Ho-Chunk Nation judicial system has long prided itself on serving as a forum in which the parties and the jurists openly and thoroughly engage in constructive dialogue, even if at times only for cathartic effect. In the Interest of the Minor Child: K.E.F., SU 97-03 (HCN S.Ct., Oct. 17, 1997) at 5 (describing the traditional opportunity to be heard).\\nConsequently, the Court has only dispatched with a single motion for reconsideration without comment. C & B Investments v. HCN Dep't of Health et al., SU 96-13 (HCN S.Ct,, June 23, 1997). The respective appellate parties have only succeeded twice on timely filed motions for reconsideration. Lewis, SU 06-07; Joelene Smith v. Ho-Chunk Nation et al., SU 98-03-04 (HCN S.Ct., July 31, 1998). The Court, however, has oftentimes chosen to expound upon the rationale of an underlying decision in an effort to offer further clarity despite ultimately denying the motion. See, e.g., Bonnie Smith v. HCN Gaming Comm'n, SU 01-02 (HCN S.Ct., June 15, 2001); Chloris Lowe et al. v. HCN Legislature Members Elliot Garvin et al., SU 00-15 (HCN S.Ct., Jan. 4, 2001); Lonnie Simplot et al v. HCN Dept of Health, SU 99-07 (HCN S.Ct., Feb. 7, 2000).\\nThe Court very early explained that the constitutional expectation of finality of appellate decisions ran contrary to a practice of routinely reconsidering judgments. Carol J. Smith v. Rainbow Casino et al., SU 97-04 (HCN S.Ct, Mar. 3, 1998) at 3 (citing HCN Const., art. VII, \\u00a7 7(c), available at http://www.ho~chunknation.eorn/? Pageld=294). As a result, the Court has usually \\\"addressfed] . motionfe] simply as a matter of clarification.\\\" Id. For the same reason, the appellate rules lack any provision concerning either reconsideration or rehearing.\\nThe Court may permissibly refer to the federal appellate rules \\\"for guidance in applying and supplementing the[ ] rules,\\\" HCN R.App. P. 1(a), and it has previously analogized to federal appellate motion practice. J. Smith, SU 98-03-04 (HCN S.Ct., July 31,1998) at 1 (citing Fed. R.App. P. 27). The federal rule includes a provision regarding reconsideration, entitled \\\"Disposition of a Motion for a Procedural Order,\\\" which states, in relevant part: \\\"The court may act on a motion for a procedural order ., without awaiting a response, and . [a] party adversely affected by the court's . . action may file a motion to reconsider, vacate, or modify that action.\\\" Fed. R.App. P. 27(b). In contrast, the federal appellate rules do not expressly contemplate the reconsideration of substantive final judgments.\\nThis Court's treatment of motions for reconsideration aligns with the federal experience. Importantly, the decision to grant reconsideration of a substantive judgment represents a discretionary determination. Cheryl Smith v. Ho-Chunk Nation et al., SU 00-07 (HCN S.Ct., July 14, 2000) at 2. Louella A, Kelly v. Jonette Pettibone et al., SU 99-02 (HCN S.Ct., Sept. 24, 1999) at 2.\\nIn keeping with our constitutional mandates, this Court has been reluctant to reconsider decisions. When this Court has reconsidered decisions, it has been the general practice to retain the initial decision. Therefore, this Court will reconsider decisions only in rare situations where there is a glaring problem such as a technical oversight or misstatement by the Court. This Court will not routinely second-guess itself as the time and effort which goes into decision[-]making is lengthy and deliberate. Routine recon-siderations are therefore unnecessary.\\nAs referenced above, appellate movants have only prevailed upon reconsideration on two (2) occasions. In 1998, the Court reversed a procedural order concerning the imposition of a stay during the pen-dency of the appeal, representing an exception under the cited federal appellate rule. J. Smith, SU 98-03-04 (HCN S.Ct., July 31, 1998). Most recently, the Court vacated a portion of a final decision wherein it appeared to offer an advisory opinion in the absence of a justiciable issue. Lewis, SU 06-07 at 3-4. In this limited instance, the Court arguably faltered in strictly exercising a judicial power. See In re Summers, 326 U.S. 561, 566-67, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945). The Lewis appeal obviously presented the rare situation appropriate for reconsideration, whereas the instant appeal simply does not.\\nThe appellant disputes the Court's application of its rules, especially in light of a previous opinion. The Court, however, specifically considered this opinion when it decided to decline the appeal. Order (Denying Appeal), SU 13-08 (HCN S.Ct., Oct. 28, 2013) (citing Kenneth L. Turin v, Douglas Greengrass et al., SU 04-08 (HCN S.Ct., Dec. 29, 2004)). The Court can perceive of no reason to engage in a reconsideration of its final judgment. The appellant's appeal faltered for reasons made all the more evident by the present motion, ie., inadequate research and preparation.\\n. Prior to November 1, 2009, the Wisconsin Court of Appeals could only opt to reconsider a decision sua sponle. Wis. Stat. \\u00a7 809.24; see also id, \\u00a7 809.24 (regarding reconsideration by the Supreme Court).\\n. In dicta, the Supreme Court referenced the adopted Trial Court standard for motions for reconsideration, but then based its opinion upon a longstanding aversion toward interlocutory appeals and piecemeal litigation. Bank of Am., SU 03-06 at 10\\u201411 (quoting Ralph Babcock v. HCN Gaming Comm'n, CV 95-08 (HCN Tr. Ct., Mar. 14, 1996) at 1). This Court has never applied the trial level post-judgment rule in conjunction with an appeal, HCN R. Civ. P. 58(B), and the adopted standard does not properly equate with the appellate function. Babcock, CV 95-08 at 1 (quoting Alaska R. Civ. P, 77(k)),\\n. The non-movant may file a response within ten (10) days. Fed. R.App. P. 27(a)(3)(A). In the instant case, the appellees did not respond on or before November 25, 2013.\\n. The United States Supreme Court may decide to reconsider a denial of a writ of certio-rari. \\\"Any petition for the rehearing of an order denying a petition for a writ of certiora-ri . shall be limited to intervening circumstances of a substantial or controlling effect or to other substantial grounds not previously presented.\\\" Sup.Ct. R. 44(2).\\n. In Smith, the Court continued by confusingly expressing that \\\"[ejither party can move the Court, through clear and convincing evidence, that a decision of the Court was in err.\\\" C, Smith, SU 00-07 at 2; see also Joelene Smith v. Scott Beard et al., SU 00-14 (HCN S.Ct., Mar. 12, 2001) at 1 (constituting the only other prior reference to this standard). The imposition of a preliminary burden of proof seems misplaced in relation to a discretionary decision. Also, the Supreme Court lacks the constitutional authority to find facts, thereby rendering an evidentiary threshold largely inapt. HCN Const., art. VII, \\u00a7 7(a). This partial departure has not proliferated within the case law, and the Court accordingly declines to overturn the above-identified decisions.\"}"

tribal/6765881.json

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+"{\"id\": \"6765881\", \"name\": \"Mary Ellen Blackdeer ANWASH, Appellant, v. HCN ENROLLMENT COMMITTEE, Appellee\", \"name_abbreviation\": \"Anwash v. HCN Enrollment Committee\", \"decision_date\": \"2014-12-02\", \"docket_number\": \"No. SU 14-04\", \"first_page\": 117, \"last_page\": 131, \"citations\": \"12 Am. Tribal Law 117\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Ho-Chunk Nation Supreme Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"Associate Justice TODD R. MATHA, Associate Justice TRICIA A, ZUNKER and Chief Justice MARY JO HUNTER.\", \"parties\": \"Mary Ellen Blackdeer ANWASH, Appellant, v. HCN ENROLLMENT COMMITTEE, Appellee.\", \"head_matter\": \"Mary Ellen Blackdeer ANWASH, Appellant, v. HCN ENROLLMENT COMMITTEE, Appellee.\\nNo. SU 14-04.\\nHo-Chunk Nation Supreme Court.\\nArgued Oct. 4, 2014.\\nDecided Dec. 2, 2014.\\nWendi Huling, represented Appellee, Enrollment Committee.\\nMary Blackdeer Anwash, appeared pro se, but did not present oral argument.\\nAssociate Justice TODD R. MATHA, Associate Justice TRICIA A, ZUNKER and Chief Justice MARY JO HUNTER.\", \"word_count\": \"6996\", \"char_count\": \"43736\", \"text\": \"DECISION\\nINTRODUCTION\\nThis matter came before Associate Justice Todd R. Matha, Associate Justice Trida A. Zunker and Chief Justice Mary Jo Hunter on appeal of the Trial Court's Judgment (Upholding Reissued Order), CV 12-73 (HCN Tr. Ct\\\" May 15, 2014) (hereinafter, \\\"Judgment \\\"), contesting the Trial Court's decision that affirmed the Ho-Chunk Nation Enrollment Committee's (hereinafter, \\\"Enrollment Committee\\\") decision in favor of Appellee. This Court convened Oral Argument on October 4, 2014. Ho-Chunk Nation Department of Justice Attorney Wendi Huling represented Appellee, Enrollment Committee. Appellant Mary Blackdeer An-wash appeared pro se, but did not present oral argument.\\nOn appeal, Appellant raised five (5) issues. The first issue is whether the presence of Affiant's immediate family member on the Enrollment Committee violates the Ho-Chunk Nation Code of Ethics Act, 2 HCC \\u00a7 1 (hereinafter, \\\"Ethics Code\\\"). In this instance, we affirm the result rendered by the Trial Court on this issue. The second issue is whether 2 HCC \\u00a7 7.10a constitutes an ex post facto law. Again, we affirm the result of the Trial Court and hold no. The third issue is whether the failure to grant more eviden-tiary weight to the certified birth certificate was arbitrary, capricious or unreasonable. On this issue, we hold no. The fourth issue is whether a DNA test against alleged siblings who themselves have not established proven DNA constitutes clear and convincing evidence of paternity. We hold no to the extent testing is conducted solely against alleged paternal half-siblings and remand to the Trial Court for a decision consistent with this opinion. Finally, the fifth issue is whether 2 HCC \\u00a7 7.10b(2) is void for vagueness or overbroad in scope. We hold no.\\nPROCEDURAL HISTORY\\nThe procedural history in this case is lengthy. On September 28, 2012, the Enrollment Committee held a hearing regarding Appellant's enrollment in the Ho-Chunk Nation. The Enrollment Committee adopted its administrative decision on September 28, 2012, sent by letter dated October 8, 2012. Decision, Enrollment Comm., In re: Enrolment of Mary An-wash Blackdeer, Sept. 28, 2012 (hereinafter, \\\"Decision \\\"), The Decision ordered Appellant to submit to DNA analysis with two paternal sibling relatives. On November 5, 2012, Appellant appealed to the Ho-Chunk Nation Trial Court and filed a Petition for Administrative, Review, The case languished at the Trial Court level through a series of motions and judgments, culminating with the Judgment issued on May 15, 2014.\\nThe Appellant timely filed her Notice of Appeal pro se in the Ho-Chunk Nation Supreme Court on July 10, 2014. The Order (Accepting Appeal) was issued on July 14, 2014, and the Order (Reschedul ing Oral Argument) was issued on July 23, 2014. Appellant's Brief was filed on August 22, 2014, and a Resubmitted Brief was filed on September 12, 2014. Appel-lee's Response Brief was filed on September 22, 2014. Appellant submitted a letter requesting waiver of oral argument on September 29, 2014, due to her pro se status. Appellant's Reply Brief was filed on October 1, 2014. Oral argument was convened on October 4, 2014. Appellant was not required to argue her position at oral argument.\\nISSUES PRESENTED\\n1. Does the presence of an Affiant's immediate family member on the Enrollment Committee during an enrollment hearing violate the Ethics Code?\\n2. Does 2 HCC \\u00a7 7.10a constitute an ex post facto law?\\n3. Was the failure to grant more evi-dentiary weight to the certified birth certificate arbitrary, capricious or unreasonable?\\n4. Does a DNA test against alleged half-siblings who themselves have not established proven DNA constitute clear and convincing evidence of paternity?\\n5.Is 2 HCC \\u00a7 7.10b(2) void for vagueness or overbroad in scope?\\nSTATEMENT OF FACTS\\nAppellant is a sixty-seven (67) year old currently enrolled elder in the Ho-Chunk Nation. Her birth certificate states her date of birth is November 25, 1947. Her birth certificate lists Lila Thomas as her mother and Harry Blackdeer (hereinafter, \\\"Mr. Blackdeer\\\") as her father. Appellant has three (3) full siblings and three (3) paternal half-siblings. Tr. of Hr'g Re: Enrollment of Mary Blackdeer Anwash (hereinafter, \\\"Hearing Transcript \\\") at 56-57, Sept. 28, 2012. Mr. Blackdeer passed away on March 14, 1971. He never took a DNA test to establish paternity with any of his children.\\nAppellant was enrolled with the Ho-Chunk Nation in 1978. Her certified birth certificate was one of the documents considered as part of her enrollment, and her application for enrollment with the Nation was approved. Presumably, the Business Committee that reviewed Appellant's application for enrollment had some convincing proof of her eligibility or they would have denied her membership. As she was added to the membership roll, one can only surmise that the Business Committee reviewed her application, verified the documentation substantiating her blood quatum and ancestry, and issued the final decision to enroll her.\\nA prior disenrollment action was commenced against Appellant in 2009, but the action was dismissed when one affiant, Betty White, was unable to testify in person or by telephone on two separate occasions. The Enrollment Committee entered an Order that the affiants failed to meet the requisite evidentiary standard, and the matter was dismissed.\\nRuby Garvin, Janice Goldman, and Betty White each filed affidavits with the Office of Tribal Enrollment to initiate the removal proceedings of Appellant in accordance with Tribal Enrollment And Membership Code (hereinafter, \\\"Membership Code\\\") 2 HCC \\u00a7 T.10b(2). Goldman filed an affidavit on July 25, 2012. Garvin and White filed affidavits on August 6, 2012. On September 28, 2012, the Enrollment Committee convened a hearing regarding Appellant's enrollment, which consisted of testimony from Appellant and other witnesses and a review of documentary evidence regarding Appellant's enrollment with the Ho-Chunk Nation. Witness testimony focused on alleged statements by Mr. Blackdeer to people other than the affiants that Appellant was not his daughter. Further testimony alleged this lack of paternity as well-known in the Ho-Chunk community. It is unclear from the transcripts and Trial Court record why this action was commenced over forty (40) years after Mr. Blackdeer's death.\\nThe Decision, rendered by the Committee on September 28, 2012, and sent to Appellant by letter dated October 8, 2012, ordered:\\nthe Affected Member, and two (2) paternal sibling relatives need to establish Ho-Chunk Nation blood quantum and lineage, submit to DNA analysis to be conducted by an independent testing laboratory contracted by and paid by the Ho-Chunk Nation. The Affected Member must contact the Office of Tribal Enrollment in order to set testing times and locations for her and the selected relative(s).\\nDecision at 1. The Decision does not specify which siblings must submit to DNA testing, but Appellee contends two (2) paternal half-brothers have offered to test. Resp. Br. at 9.\\nThe Decision was adopted at the hearing following an affirmation vote of six (6) members, with (0) zero members opposed and (0) zero members abstaining. The Decision was signed by Valerie R. Kem-pen, Chairperson for the Enrollment Committee. Other members of the Enrollment Committee included: Brenda Brown, Pat Schulz, Irene Keenan, Janice Savage, Lucinda LoneTree and Hattie Walker. At issue is the presence of Brenda Brown on the Enrollment Committee for Appellant's enrollment hearing.\\nBrenda Brown is the sister of Betty White, one of the affiants in this matter. Appellant raised this concern at the start of the hearing. A discussion ensued during the hearing whether Brown should re-cuse herself due to her sibling status with one affiant. Brown indicated she did not believe a conflict existed and stated: \\\"Well I believe as a committee member I am fair and impartial to this issue. Have nothing to do as a witness to whatever affidavit or whatever she's talking about.\\\" Hr'g Tr, at 6. The Committee members then decided that there was no need for Brown to re-cuse herself. Id.\\nIn response to the Decision rendered by the Committee, Appellant appealed first to the Trial Court, which affirmed. Appel lant then appealed the Trial Court Judgment to the Supreme Court.\\nSTANDARD OF REVIEW\\nThis Court possesses the constitutional authority \\\"to interpret and apply the . laws of the Ho-Chunk Nation,\\\" and may render binding \\\"conclusions of law.\\\" Constitution of the hg-chunk nation (hereinafter, \\\"Constitution\\\"), art. VII, \\u00a7 4, 7(a). When reviewing questions of law, the Court employs a de novo standard of review, meaning that it examines a matter anew. Hope B. Smith v. Ho-Chunk Nation et al., SU 03-08 (HCN S.Ct., Dec. 8, 2003) at 5 n. 3.\\nThe Supreme Court has previously ruled that the Court may review agency constitutional interpretations de novo. Willard LoneTree v. Larry Garvin, SU 07-04 (HCN S.Ct., Oct. 8, 2007) at 4. However, LoneTree, unlike the present appeal, involved agency interpretation and application of notions of constitutional procedural due process. Here, the Enrollment Committee is decidedly acting pursuant to and in furtherance of statutory standards. The Committee is not offering an interpretation of a constitutional provision, even those relating to enrollment.\\nThe Membership Code states a level of a review for appeals to the Trial Court. It is silent regarding a standard of review to be employed by the Supreme Court. In this matter, the Trial Court served an appellate function and did not issue any findings of fact. Consequently, the Supreme Court should generally subject an administrative decision to the same standard of review articulated for trial level judicial review of agency action in the statute. Therefore, this Court will determine whether the findings and recommendations of the Enrollment Committee: (1) contain irregularities of procedure; (2) are arbitrary, capricious or unreasonable; (3) are unsupported by Clear and Convincing Evidence upon the whole record; or (4) involve an abuse of discretion. To the extent there are new questions of law raised on appeal, we employ de novo review.\\nDECISION\\nAt issue here is enrollment of an elder tribal member. The significance of this matter cannot be overstated. This Court is sensitive to the fact that disenrollment can lead to a deprivation of identity previously held essential to an individual. However, the circumstances of the individual, regardless of how long he or she may have been enrolled in the Ho-Chunk Nation, cannot trump the requirements for an enrolled member as stated in the Constitution. The minimum Ho-Chunk blood quantum requirement is one-fourth (1/4) Ho-Chunk blood.\\nArt. II\\u2014Membership\\nSec. 1. Requirements. The following persons shall be eligible for membership in the Ho-Chunk Nation, provided, that such persons are not enrolled members of any other Indian nation:\\na. All persons of Ho-Chunk blood whose name appear or are entitled to appear on the official census roll pre pared pursuant to the Act of January 18, 1881 (21 Stat. 315), or the Wisconsin Winnebago Annuity Payroll for the year one thousand nine hundred and one (1901), or the Act of January 20, 1910 (36 Stat. 873), or the Act of July 1, 1912 (37 Stat. 187); or\\nb. All descendants of persons listed in Section 1(a), provided, that such persons are at least one-fourth (1/4) Ho-Chunk blood.\\nConst., art. II, \\u00a7 1(1\\u2014b).\\nIn addition, the Constitution grants the Ho-Chunk Nation Legislature (hereinafter, \\\"Legislature\\\"), the power to make laws, including codes, ordinances, resolutions and statutes, and requires the Legislature to adopt a Code governing Membership. Id. art. V, \\u00a7 2(a), 3. Thus, in accordance with the requirements of the Constitution, the Membership Code, 2 HCC \\u00a7 7, governs enrollment actions. Under the Membership Code, grounds for removal include:\\n10. Ineligible Tribal Member Removal Procedures\\na. Grounds for Removal.\\n(1) The Member is less than one-fourth (1/4) Ho-Chunk Blood (Article II, Section 1(b) of the Constitution);\\n(2) insufficient proof of Ho-Chunk ancestry (Article II, Section l(a0) of the Constitution);\\n(3) the Member is enrolled in another Indian Nation (Article II, Section 1 of the Constitution); or\\n(4) the Member was previously enrolled in another Tribe (Article II, Section 1(c) of the Constitution); this provision took effect for Members enrolled on or after March 3, 2000.\\n2 HCC \\u00a7 7.10a. Thus, the minimum blood quantum requirement is clear in both the Constitution and the Membership Code.\\nThe right to make determinations regarding tribal membership is one of the basic powers of the Ho-Chunk Nation as a sovereign Nation. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). The exercise of this inherent authority to determine membership \\\"is legitimate when it does so within constraints of [the] Constitution and the laws promulgated thereunder.\\\" Theresa Lynn Hendrickson v. HCN Office of Tribal Enrollment, SU 02-06 (HCN S.Ct., Mar. 21, 2003) at 3-4. Nothing decided in this case diminishes the inherent authority of the Ho-Chunk Nation to make membership decisions or to determine the process for making those decisions.\\nI. The presence of Brenda Brown, sister of affiant Betty White, did not constitute a conflict of interest because Brown did not possess a direct personal or financial interest and indicated her ability to remain impartial.\\nThe Trial Court declined to rule directly on this issue because of a procedural defect. Under the Ethics Code, the process for determining an ethics violation begins with the filing of a complaint with the Ethics Review Board. 2 HCC \\u00a7 1,12a. The Trial Court stated that the \\\"Court shall not condone and pass judgment upon an issue that is not properly before the Court.\\\" J. at 13. In this regard, the Trial Court adhered to a policy of requiring exhaustion of administrative remedies pri- or to adjudication. See, e.g., Williamson County Reg'l Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985); Myers v. Bethlehem Shipbuilding Carp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938)\\nThis Court agrees that the proper administrative process must be followed. Unfortunately, at the time the Judgment was issued in this case, the one year stat ute of limitations for filing the complaint with the Ethics Review Board had passed. 2 HCC \\u00a7 1.12a((), This fact precludes review of the first articulated issue. Jenna C. Littlegeorge v. Adam J. Hall, Enrollment Officer, et al., SU 12-03 (HCN S.Ct., Jan. 18, 2013) at 4-5. Exhaustion of the administrative process represents a clear prerequisite to judicial review and an acknowledgment of the constitutional separation of powers doctrine. Const., arts. Ill, \\u00a7 3, IV, \\u00a7 2; see also Sandra Slimcki v. Rainbow Casino et al\\\" SU 96-15 (HCN S.Ct., June 20, 1997) at 3; Loa Porter v. Chloris Lowe, Jr., SU 96-05 (HCN S.Ct., Jan. 10, 1997) at 5.\\nII. 2 HCC \\u00a7 7,10a is not an ex post facto law because the minimum blood quantum requirement for enrollment has not changed, and Appellant misapplies the doctrine in this case.\\nAppellant claims that 2 HCC \\u00a7 7.10, the \\\"Ineligible Tribal Member Removal Procedures\\\" provision, is an ex post facto law because it was passed after Appellant was enrolled in the Ho-Chunk Nation. The Constitution explicitly and emphatically forbids the Nation from passing ex post facto laws. Const, art. X, \\u00a7 1(a)(9). To pass an ex post facto law would be an unconstitutional act, and therefore beyond the authority of the Legislature. The Court could declare any such law a violation of the Constitution and enjoin its enforcement. Id., art. VIII, \\u00a7 6(b).\\nThe Court must then examine whether 2 HCC \\u00a7 7.10 is an ex post facto law. Ex post facto is defined as \\\"a law that applies retroactively, esp. in a way that negatively affects a person's rights by criminalizing action that was legal when it was committed.\\\" Black's Law Dictionary 600 (6th ed. 1999). In other words, an ex post facto law is legislation that retroactively alters the criminal law in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity. The basic principle behind the prohibition of ex post facto laws is that of due process, specifically notice. Said differently, one should have the ability to know that one is breaking the law prior to doing something that might be sanctioned. See Parmenton Decorah v. HCN Legislature et al., CV 99-08 (HCN Tr. Ct., July 1,1999) at 8.\\nThe Trial Court performed an exhaustive analysis on this issue, resorting to persuasive foreign court case law. While \\\"only decisions by this [CJourt are limitations on the Trial Court,\\\" this Court agrees with the ultimate determination. Jacob LoneTree et al. v. Robert Funmaker, Jr. et al., SU 00-16 (HCN S.Ct., Mar. 16, 2001) at 4. But, more succintly, the requirement of membership has not changed. The blood quantum requirement of one-fourth (1/4) Ho-Chunk blood exists now as it did when Appellant was originally enrolled. Thus, no penalty can arise which would be unjust.\\nGenerally, an ex post facto examination relates to the criminal law, but courts have extended ex post fact,o analysis to civil laws where the effect of the civil law is so clearly punitive as to negate the legislature's intention. See Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Thus, the fact that this case is not a criminal matter is not decisive. What is critical regarding ex post facto law's is that a party suffers harm, usually a penalty in the form of deprivation. While ex post facto laws necessarily involve the deprivation of a right, most notably the right of liberty in the context of criminal laws, the deprivation potentially suffered here is a deprivation of identity. This is clear. But, the revised and relevant portion of the Membership Code does not equate to an ex post facto law. One's potentially erroneous identification as Ho-Chunk does not and cannot trump the Constitution, which requires a minimum blood quantum of one-fourth (1/4) Ho-Chunk blood for enrollment. This was the law when Appellant was initially enrolled. It has not changed. The process for proving blood quantum, by establishing paternity, has changed with modern technology and the ability to prove paternity through DNA testing. But this does not change the basic underlying blood quantum requirement.\\nWhile disenrollment may certainly seem to penalize the disenrolled member, a person must possess the requisite blood quantum to be a lawful tribal member. If a tribal member is disenrolled for lacking the requisite blood quantum, that individual should not have been enrolled initially and the resultant disenrollment is not a penalty, but a just result under Ho-Chunk law. Nothing here is ex post facto, and the argument raised by Appellant misapplies the definition of ex post facto to these facts. Thus, we affirm the Trial Court's decision that 2 HCC \\u00a7 7.10 is not an ex post facto law.\\nIII. Failure to Properly Consider the Live Certificate of Birth Was Not Arbitrary, Capricious and Unreasonable Because Paternity is in Dispute and Reliable DNA Analysis is Possible Under These Circumstances.\\nAppellant claims that the Enrollment Committee failed to properly consider the Certificate of Live Birth. The applicable provision from the Membership Code states:\\nGreater weight will be given to the following documents: verification of enrollment in another Indian Tribe, certified birth certificate, social security card, Court Orders, and DNA analysis.\\n2 HCC \\u00a7 7.10f(10)(e). The Legislature's inclusion of several forms of evidence afforded greater weight in removal proceedings reveals DNA analysis is not the exclusive method of eligibility verification. A plain language analysis indicates that one form of evidence does not predominate over any other listed form of evidence. The cited provision further confirms that the evidence listed in this provision should be afforded greater weight than witness testimony, a type of evidence clearly absent from 2 HCC \\u00a7 7.10f(10)(c).\\nSeveral forms of evidence were introduced at the hearing on September 28, 2012, including Appellant's testimony, witness testimony from the three (3) affiants, and the certified birth certificate. The witness testimony included hearsay evidence from each of the affiants. Formal rules of evidence do not apply to enrollment hearings under the Membership Code, so hearsay evidence is not necessarily barred from admission or consideration, and, in any event, exceptions to the hear say rule may apply. However, evidence that is irrelevant, cumulative, or would be unfair or prejudicial may be excluded or admitted by the Chairperson in special circumstances. 2 HCC \\u00a7 7.10f(10)(a).\\nThe birth certificate was reviewed, but regardless the Enrollment Committee ordered DNA analysis. The statute does not give one greater weight over the other. See 2 HCC \\u00a7 7.10(f)(10)(c). While the statute may indicate various forms of evidence that should be assigned greater weight, the presence of one form of evidence does not preclude the introduction or necessity of another form of evidence. The Trial Court has previously examined this issue. In 2012, the Trial Court engaged in statutory analysis of HCC \\u00a7 7.10f(10)(c) and determined:\\nThe Legislature's inclusion of DNA analysis within select evidence granted greater weight highlights the value such testing offers in determining enrollment eligibility. Under circumstances in which an enrolled member's ability to maintain a required minimum blood quantum hinges on disputed paternity, DNA testing provides scientific certainty which would prove essential to protecting the integrity of the Ho-Chunk Nation Membership Roll.\\nSandra Sliwicki v, HCN Enrollment Comm., CV 11-63 (HCN Tr.Ct., July 10, 2012) at 11. That is to say, the existing certified birth certificate cannot be granted equal weight with a potential DNA test that can definitively prove paternity. In most enrollment disputes, a procedurally valid birth certificate existed. On this point, the Court must move away from questioning the \\\"authenticity\\\" of the document. The birth certificate is \\\"authentic\\\" in the sense that it may have been properly certified, but that does not make the statements contained on the document true. Still, if the Enrollment Committee simply chose to end its inquiry with receipt of a certified birth certificate, non-Ho-Chunks would remain on the Enrollment Roll today, as well as potential offspring, despite possessing no Ho-Chunk heritage.\\nThe instant case serves as a clarifying example of where the certified birth certificate does not suffice. Paternity is questioned, and Appellant's sole link to the Ho-Chunk Nation is through her alleged father. So long as DNA can be reliably analyzed with appropriate samples, including DNA as a form of evidence in conjunction with the certified birth certificate is correct. The two (2) forms of evidence are not mutually exclusive, and we agree with the Trial Court's reasoning in Sliwicki on this point. Further, we affirm the Trial Court's holding on this issue.\\nIV. A DNA test against alleged half-siblings, who themselves have not proven DNA against deceased father, does not constitute clear and convincing evidence of paternity, and ordering Appellant to submit to a DNA test under these facts is arbitrary, capricious and unreasonable, but testing against both a full-sibling and a half-sibling for comparison would meet the statutory standard of \\\"clear and convincing\\\" evidence.\\nSeveral possible findings and recommendations exist at the conclusion of an enrollment hearing under the Membership Code.\\ng. Findings and Recommendations.\\n(4) Committee Findings and Recommendations. The Committee on Tribal Enrollment may render any of the following findings and recommendations:\\n(a) Find that the removal by the Affi-ants is Frivolous and/or Malicious and dismiss the removal.\\n(b) Find that the Affiants or Tribal Enrollment Officer failed to meet the evidentiary standard necessary to remove a Member and dismiss the removal.\\n(c) Find that an Affected Member, through admission, does not meet the Membership requirements and proceed with the removal.\\n(d) Find that the Affected Member is ineligible for Membership if documentary and/or evidence shows by Clear and Convincing Evidence that the Affected Member does not meet the qualifications for Membership outlines in Article II, Section 1 of the Ho-Chunk Constitution.\\n(e) If the Committee finds the Affected Member is ineligible for Tribal Membership, it may further recommend the forfeiture of any or all property of the repayment of money received from the Nation, pursuant to the laws of the Nation. This may only happen upon determination by the Committee that the evidence establishes beyond a reasonable doubt that the Affected Member became a Member through fraud.\\n(f) Order that the Affected Member, and their relatives needed to establish Ho-Chunk lineage, submit to DNA analysis to be conducted by an independent testing laboratory contracted by and paid by the Ho-Chunk Nation. The Affected Member must contact the Office of Tribal Enrollment in order to set testing times and locations for him or her and the selected relative(s).\\n2 HCC \\u00a7 7.10g(4). We must focus on the final subsection.\\nThe Enrollment Committee Decision ordered:\\nthe Affected Member, and two (2) paternal sibling relatives need to establish Ho-Chunk Nation blood quantum and lineage, submit to DNA analysis to be conducted by an independent testing laboratory contracted by and paid by the Ho-Chunk Nation. The Affected Member must contact the Office of Tribal Enrollment in order to set testing times and locations for her and the selected relative(s).\\nDecision at 1. The reason for selecting this option as opposed to other options available to the Enrollment Committee as proscribed under 2 HCC \\u00a7 7. 10g(4) was to establish clear and convincing evidence that Appellant is the biological daughter of Mr. Blackdeer.\\nThe Constitution vests legislative power in the Legislature as delegated by the General Council. Const., art. IV, \\u00a7 2. As noted above, the Legislature has the power to make laws, including codes, ordinances, resolutions and statutes. Id., art. V, \\u00a7 2(a), 3. Here, the Constitution contains provisions that the Legislature enact a Membebship Code, which the Legislature enacted through the Membership Code. Id., art. II, \\u00a7 5. The Constitution indicates that \\\"[ajny person who has been rejected for enrollment or who has been removed from the Membership Roll shall have the right to appeal to the Judiciary for a remedy in equity consistent with this Constitution.\\\" Id., art. II, \\u00a7 6.\\nThe Constitution designates the Judiciary as \\\"hav[ing] the power to interpret and apply the Constitution and laws of the Ho-Chunk Nation.\\\" Id., art. VII, \\u00a7 4. As explained previously by the Trial Court:\\nThe Tribal Eneollment and Membehship Code creates a committee to conduct administrative adjudication by way of appeals. 2 HCC \\u00a7 7.8, However, by virtue of legislation, the Committee appears to perform administrative adjudication. Whether it is through adjudicatory rulemaking, informal rulemaking or legislative rulemaking, this presupposes that the Legislature has the constitutional authority to make enrollment decisions. The Legislature does not have the authority and cannot delegate power it does not retain; therefore, any informal, formal or legislative rulemaking made by a division or subdivision of an Executive Department would not require any judicial deference. The powers of the Legislature are enumerated within the Constitution, and the ability to determine membership is not one of the enumerated powers of the Legislature. Const, art., V, \\u00a7 2. Nonetheless, the Court recognizes the legislative authority to enact a law governing membership to provide a mechanism to effectuate the constitutional membership provision.\\nDaria Powless v. HCN Enrollment Comm., CV 10-15 (HCN Tr. Ct3., Sept. 2, 2010) at 13.\\nNotably, the statutory limitation cannot supersede the constitutional grant of power to the Supreme Court. As stated previously, the Supreme Court \\\"shall have the power to interpret the Constitution and laws of the Ho-Chunk Nation and to make conclusions of law.\\\" Const., art. VII, \\u00a7 7(a). At issue here is the interpretation of \\\"Clear and Convincing Evidence\\\" under the Membeeship Code.\\nThe Membership Code defines \\\"Clear and Convincing Evidence\\\" as \\\"evidence that tends to show, on its face, more likely than not, that fact which is trying to be proven.\\\" 2 HCC \\u00a7 7.3L However, this definition equates with the well-established standard of \\\"preponderance of the evidence,\\\" a lower standard of proof than \\\"clear and convincing evidence.\\\" A preponderance of the evidence standard is wholly inappropriate in this instance. The ability to sanction the disenrollment of a tribal member is the most severe authority we may exercise. Indeed, all involved bodies, be it the Enrollment Committee, the Judiciary or General Council, must proceed cautiously before reaching this extraordinary result. Simply put, one's enrollment should not hinge upon the slightest tipping of the scale to the contrary, which is what the standard as incorrectly defined by the Membership Code allows.\\nIn contrast, the Supreme Court earlier defined clear and convincing proof as \\\" \\\"where the truth of facts asserted is highly probable.' \\\" Joelene Smith v. Scott Beard et al., SU 00-14 (HCN S.Ct., Mar. 12, 2001) at 1 (quoting Black's Law Dictionary 251 (6th ed. 1991)); see also Von Conten v. Research Sys. Corp., 739 F.2d 1264, 1268 (7th Cir.1984) (quoting Colorado v. New Mexico, 467 U.S. 310, 317, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984)) (requiring high probability of factual contentions). Because of the magnitude of enrollment matters, we employ the well-established definition of clear and convincing evidence to require high probability of the truth of the facts asserted. Furthermore, while formal rules of evidence do not apply at the hearing, evidence which is unfair may be excluded under special conditions or stipulations. 2 HCC \\u00a7 7.10f(10)(a).\\nAs stated supra, the Trial Court has previously held that where paternity is in dispute, DNA testing is essential to prove paternity, thereby \\\"protecting the integrity of the Ho-Chunk Nation Membership Roll.\\\" Sliwicki, CV 11-63 at 11. In this case, despite the existence of a certified birth certificate which was relied upon when Appellant was initially enrolled, Ap-pellee claims the birth certificate is ques tionable because paternity is disputed (see part III, supra). Appellee claims that DNA analysis is necessary to provide clear and convincing evidence for Appellant to retain her membership with the Ho-Chunk Nation. The Trial Court agreed with Appellee. The Trial Court stated:\\nIn the instant case, the petitioner's biological mother is not a Ho-Chunk Nation Tribal Member and her father was a Ho-Chunk Nation Tribal Member. The three affiants disputed the paternity. Accordingly, the Committee doubted the authenticity of the Certificate of Live Birth. Under this situation, a DNA analysis would provide clear and convincing evidence to establish the petitioner's required blood quantum. The use of DNA tests to determine this information is a common practice and is in fact required, by the Constitution in at least some cases. Const., Art. II, \\u00a7 1(c). Therefore, the Committee's finding and recommendation to require the petitioner to submit to a DNA analysis is not arbitrary and capricious.\\nJ, 18-19.\\nSimply put, this analysis presumes fact which do not exist here\\u2014that there is actually a paternal sibling who has completed DNA testing against whom Appellant can compare results. There is not. See Tr. of Oral Argument at 9-10, SU 14-04 (Oct. 4, 2014), Nor is there a living sibling of Mr. Blackdeer against who Appellant could test. Id, Comparing Appellant's DNA with any sibling assumes the tested sibling is the biological child of Mr. Blackdeer. This assumption simply defies logic and sets a dangerous precedent. It assumes paternity of some individuals who have never been tested or proved. For that reason, the Decision as currently drafted opens the door to frivolous and/or malicious enrollment actions, contrary to the intent of the Legislature. See 2 HGC \\u00a7 7.12g(4)(i). DNA only tests paternity. As none of Mr. Blackdeer's children have had a DNA test establishing his paternity, paternity cannot be established for any of them. At best, they can determine if they share the same father.\\nAppellee contends that alleged half-brothers exist who will test against Appellant. Testing half-siblings is insufficient for the reasons stated above. However, Appellant also has full-siblings. Notably, the standard of proof is not \\\"beyond a reasonable doubt.\\\" The standard of \\\"clear and convincing\\\" evidence requires proof that it is highly probable Appellant is the biological daughter of Blackdeer. DNA tests to a scientific certainty. While none of the alleged biological children have been tested, Appellant has half-siblings and full siblings. Testing the full siblings and half-siblings against each other is necessary to prove or disprove a genetic match. Should Appellant's full siblings and half-siblings possess a genetic paternal match, the logical deduction is that their shared father is Mr. Blackdeer. This genetic match would also meet the requisite high probability required under the \\\"clear and convincing\\\" standard enunciated in the Membership Code. But, it is only met through testing and comparison of both a full sibling and a half-sibling. Simply put, this foundation must be established to ensure a reliable basis for analysis of Appellant's DNA.\\nAppellant belabors the fact that Mr. Blackdeer is deceased, and no individual has completed a DNA test establishing paternity. If the standard within the Membesship Code required \\\"proof beyond a reasonable doubt,\\\" then Mr. Blackdeer's unavailability would be determinative. However, the Code requires proof by \\\"clear and convincing evidence.\\\" A comparison against a full-sibling and a half-sibling establishing high probability of paternity meets this lower evidentiary stan dard. Importantly, this reliable basis does not exist testing solely against half-siblings who have not established DNA themselves. While the Decision does not specify which siblings shall submit to testing, Appellee contends half-brothers are willing to test. For the reasons stated above, testing solely these individuals will not meet the requisite clear and convincing standard. Therefore, the Decision issued by the Enrollment Committee must be clarified.\\nTo be clear, this Court does not dispute the importance of DNA testing as it relates to enrollment of members and the essential function it can provide under the proper circumstances. But, in this instance the critical prerequisite is missing: a DNA test proving paternity of Mr. Blackdeer for any child, whether an alleged full sibling or half-sibling. As such, this Court disagrees that the results of a DNA test solely against half-siblings as proposed by Appellee will provide clear and convincing evidence of disputed paternity. It will only prove or disprove the existence a blood relationship between the individuals who submit to DNA testing. Reliability demands DNA testing against both a full-sibling and a half-sibling under the facts of this case, followed by a process of logical deduction. Thus, this issue is remanded to the Trial Court for a decision consistent with this opinion.\\nY. 2 HCC \\u00a7 7.10b(2) is neither vague nor overbroad.\\nThe Supreme Court has favored a plain language approach and interpretation to the Constitution, statutes and contracts. See, e.g., Chloris Lowe, Jr. et e, v. HCN Legislature Members et al., SU 00-47 (HCN S.Ct., Mar. 13, 2001) at 6; Mam Advert. Agency, Inc. v. Ho-Chunk Nation et al. SU 04-07 (HCN S.Ct., Apr. 4, 2004) at 11; Greg Littlejohn v. HCN Election Bd. et al., SU 03-07 (HCN S.Ct., July 11, 2003) (Butterfield, J. dissenting) at 5; George Lewis v. HCN Election Board et al, SU 06-07 (HCN S.Ct., Mar. 12, 2007) at 7. The specific provision at issue is:\\n(b). Persons Authorized to Initiate Possible Removal.\\n(1) Initiation by Removal of Members. Any three (3) enrolled Ho-Chunk adult Members who are not Legal Incompetent may initiate a removal of a Member from the Membership Roll only by filing affidavits with the Office of Tribal Enrollment. The affidavits must clearly state the grounds for removal. A non-refundable filing fee of Fifty Dollars ($50.00) must accompany each affidavit.\\n2 HCC \\u00a7 7.10(b)(2)\\nA. Vagueness Doctrine\\n\\\"[TJhough common in writings generally, vagueness raises due process concerns if legislation does not provide fair notice of what is required or prohibited, so that enforcement may be arbitrary\\\" and is further typified by \\\"uncertain breadth of meaning.\\\" Black's Law Dictionary 742 (2d Pocket ed. 1996). The \\\"vagueness doctrine\\\" is defined as \\\"based on the Due Process Clause\\u2014requiring that a criminal statute state explicitly and definitely what acts are prohibited, so as to provide fair warning and preclude arbitrary enforcement.\\\" Id. at 743. The instant appeal is not a criminal matter. However, because fair warning and preclusion of arbitrary enforcement are important, the Court will determine whether the above-stated provision is void for vagueness.\\nA plain language reading of the provision is clear. Three (3) enrolled Ho-Chunk members may initiate a removal against a member, so long as they are legally competent and eighteen (18) years of age or older. The process is commenced with the filing of affidavits which must state the grounds for removal. Fifty dollars ($50.00) payment must be provided along with each affidavit. The standards for commencing an action are basic and clear. The provision is not void for vagueness.\\nB. Overbreadth Doctrine\\nThis doctrine directs \\\"that if a statute is so broadly written that it deters free expression, then it can be struck down on its face because of its chilling effect\\u2014 even if it also prohibits acta that may legitimately be forbidden.\\\" Id. at 507. This Court would be hard-pressed to apply this doctrine here because we are not confronted with an issue of free speech as one's speech is not regulated here. However, considering \\\"ft]he affidavits must clearly state the grounds for removal,\\\" speech is implicated. Yet, the provision as written certainly does not limit one's ability to engage in free speech. Indeed, it simply requires grounds for removal be clearly stated, in effect granting more liberty to the speaker, thereby reducing any potential chilling effect. As such, the provision is not overbroad.\\nCONCLUSION\\nFor the foregoing reasons, the Trial Court's Judgment is affirmed regarding Brenda Brown's participation as an Enrollment Committee Member; affirmed regarding the determination that no Ex Post Facto law exists here; affirmed regarding the proper evidentiary weight given to the certified birth certificate; and remanded for clarification regarding the order requiring DNA testing against two (2) paternal siblings. Further, this Court holds 2 HCC \\u00a7 7.10h(2) survives review under both the vagueness doctrine and the over-breadth doctrines.\\nEGI HESKEKJET.\\n. \\\"DNA\\\" is the acronym for deoxyribonucleic acid, which is that nucleic acid that carries the genetic information in the cell and is capable of self-replication and synthesis of ribonucleic acid \\\"RNA.\\\" 2 HCC \\u00a7 7.3(r).\\n. See J. at 1-2 for an account of the procedural history of the case in the Trial Court.\\n.While a case may be dismissed in Trial Court if a party with the burden of proof fails to attend a substantive hearing, HCN R. Civ. P. 56(B), there exists no equivalent appellate rule. Rather, the Supreme Court \\\"decide[s] all cases upon the briefs, memoranda and statements filed plus the oral argument, if heard.'' HCN R.App. P, 15(b) (emphasis added). Quite clearly, the presentation of oral argument does not constitute a mandatory requirement. Also, the federal rules would not require dismissal under similar circumstances. Fed, R.App. P. 34(e) (\\\"If the appellant fails to appear for argument, the court may hear the appellee's argument.''); see also HCN R.App. P. 1 (a) (permitting resort to federal rules for guidance).\\n. The decedent is referred to as Harry Black-deer, Jr. in various Trial Court documents. However, on the birth certificate, his name is listed as \\\"Harry Blackdeer.\\\"\\n. There appears to be dispute regarding Appellant's enrollment date. Appellee's Response Brief in this case states Appellant was enrolled on January 14, 1989. Resp. Br., SU 14-04 (Sep. 22, 2014) (hereinafter, \\\"Response Brief\\\") at 3. However, the record indicates her application, under the name \\\"Mary Ellen Blackdeer,\\\" was approved by the Wisconsin Winnebago Business Committee (hereinafter, \\\"Business Committee\\\") on October 26, 1963. Hr'g Tr. at 12. Other documents indicate official enrollment was in 1978.\\n. 12. Appeals to the Trial Court.\\nb. Scope of Judicial Review. Decisions of the Trial Court will be based upon a review of the record of the Committee on Tribal Enrollment's proceedings, oral arguments, if any, and any written statements submitted. The Trial Court will not exercise de novo review of me Committee's findings and recommendations and will give proper deference to the expertise of the Committee and to its determinations of credibility, The Trial Court will not substitute its discretion for discretion legally vested in the Committee. The Trial Court will strictly construe the provisions of this Code.\\n2 HCC \\u00a7 7,12b.\\n. Ruby Garvin's testimony included:\\nQ: Did Harold Blackdeer, Jr. ever directly tell you that Miss Mary Blackdeer is not his daughter?\\nA: No, we all know. We know. They didn't have to tell us.\\nHr'g Tr. at 25,\\nBetty White's testimony included:\\nG: Do you have any direct knowledge that Miss Anwash may not be eligible for enrollment?\\nA: No. It's just been\\u2014well, the whole\\u2014out whole area knows that she's not Ho-Chunk.\\nQ: Did her father ever tell you directly he was not her biological father?\\nA: I have been told by a few of her so-called relatives, Boye Ladd told me that she was\\u2014she didn't have an inkling of Ho-Chunk blood in her, and that he was glad to get her off our rolls, and my brother heard from Harold himself that she didn't belong to him at all.\\nId. at 38.\\n. Because formal rules of evidence do not apply, this Court will not engage in an analysis of hearsay and any potential exceptions in this case other than to note the policy against admission of hearsay is to ensure reliable evidence.\\n. Under the established facts of this case, there exist half-siblings and full-siblings against who Appellant may test to meet the requisite standard of proof under the Membership Code. However, the Court conceives a scenario where only half-siblings exist. In that case, paternal first cousins, as regarded in Anglo kinship terms, may conceivably exist to provide a secondary testing source to meet the requisite standard. The Court reserves further commenting upon such a possibility absent the necessary prerequisite factfinding.\"}"

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+"{\"id\": \"6766129\", \"name\": \"Robin MAYES, Petitioner, v. CHEROKEE NATION ELECTION COMMISSION, and Meredith Frailey, Don Garvin, David Thornton, Jack Baker, Curtis Snell, and Charles Hoskins, Jr., Respondents\", \"name_abbreviation\": \"Mayes v. Cherokee Nation Election Commission\", \"decision_date\": \"2013-04-19\", \"docket_number\": \"No. SC-13-06\", \"first_page\": 143, \"last_page\": 145, \"citations\": \"12 Am. Tribal Law 143\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Cherokee Nation Supreme Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Robin MAYES, Petitioner, v. CHEROKEE NATION ELECTION COMMISSION, and Meredith Frailey, Don Garvin, David Thornton, Jack Baker, Curtis Snell, and Charles Hoskins, Jr., Respondents.\", \"head_matter\": \"Robin MAYES, Petitioner, v. CHEROKEE NATION ELECTION COMMISSION, and Meredith Frailey, Don Garvin, David Thornton, Jack Baker, Curtis Snell, and Charles Hoskins, Jr., Respondents.\\nNo. SC-13-06.\\nCherokee Nation Supreme Court.\\nApril 19, 2013.\", \"word_count\": \"1043\", \"char_count\": \"6610\", \"text\": \"On the 16th day of April, 2013, hearing was had upon the timely challenge of Petitioner Robin Mayes to the eligibility of certain candidates for offices on the Cherokee Nation Council. Said hearing was scheduled by the Court pursuant to the accelerated requirements of the provisions of LA-06-10, Title 26 CNCA \\u00a7 37(3). The Petitioner appeared in person and by \\u00c1.J, Garcia, his attorney. The Respondent Cherokee Nation Election Commission appeared through Bill Horton, Commission Chairman and by Harvey L. Chaffin, their attorney. The Respondent Meredith Frai-ley appeared in person and by James J. Proszek, Hall, E still, Hardwick, Gable and Nelson, PC, Tulsa, Oklahoma. The Respondents Don Garvin and Jack Baker appear in person and by Chadwick Smith, their attorney. The Respondent David Thornton appeared in person and by Lloyd Cole, his attorney. The Respondent Curtis Snell appeared in person and by Charles Hoskins, Jr., his attorney. The Respondent Charles Hoskins, Jr., appeared in person pro se.\\nAt the outset of the hearing, the Court entered the following findings and orders in open Court:\\n1) That the Petitioner's Motion to Disqualify unnamed Justices was denied.\\n2) That the Petitioner's pending Motion for Continuance was denied.\\n3) That the Petitioner's Motion to Disqualify attorneys Hoskins, Jr. and Smith was denied.\\n4) The Petitioner's Motion to Strike Responses was denied.\\n5) That the issue raised in the Petitioner's Petition regarding the Election Commission's declining to consider the issue of delay in processing of Freedmen applications to vote was not properly before the Court pursuant to LA-06-10, Title 26 CNCA \\u00a7 (1).\\n6) That the issue raised in the Petitioner's Petition and pleadings regarding the Election Commission's failure to consider the method used by the Election Commission to collect background information; delay in certification of elections, and alleged error in the method of designating election poll watchers; was not properly before the Court pursuant to LA-06-10, Title 26 CNCA \\u00a7 (1).\\nWHEREUPON, the Court proceeded to hear testimony, receive evidence and consider the argument of counsel upon the remaining issues raised in the Petitioner's Petition, to-wit:\\na) Whether the Election Commission erred by finding candidates Frailey, Garvin and Thornton had not exceeded the two-term limits established by Article VI, \\u00a7 3, Constitution of the Cherokee Nation (1999);\\nb) Whether the Election Commission erred by finding that candidates Frailey, Garvin, Thornton, Baker, Snell and Hos-kins, Jr. had not exceeded their four-year terms established by Article VI, \\u00a7 3, Constitution of the Cherokee Nation (1999); and\\nc) Petitioner's challenge to Ms own eligibility and candidacy upon the grounds that he would be a candidate for a de-faeto office inasmuch as the Constitution of the Cherokee Nation of 1999 has not received approval from the federal government.\\nThis Court, having reviewed the Petition, written authority, argument and all responsive pleadings and briefs in opposition thereto, having considered the evidence and testimony presented in open Court, and having deliberated thereon, made its findings and pronouncement in open Court on the said 15th day of April, 2013 in disposition of all remaining issues presented, and pursuant to LA-06-10 Title 26 CNCA \\u00a7 (4), submits the following findings and Order memorializing said decision:\\nThe filings of candidates Frailey, Garvin and Thornton for their respective elective offices do not violate the Term Limits provisions of the Constitution of the Cherokee Nation (1999). This Court has recently held in Cherokee Nation Council v. Smith and CEC, SC-09-03, at page 5 of the Opinion that the issue of term limits was ripe for decision and that the first term of office to be considered for the purposes of calculation of Constitutional term limits would be the elective terms of office beginning pursuant to the election of 2007. Elective office held by these Candidates prior to that election would not be counted in determining term limits. The Election Commission did not err in finding that these candidates did not violate the Constitutional term limits. There is nothing presented by the Petitioner that would cause this Court to revisit our decision in SC-09-03 since its rendition on February 7, 2010.\\nFurther, in the same case, this Court on consideration of the staggered term scheme enacted by the Council in LA-07-07, which necessarily extended some Council office terms, found the same to be within the Constitutional authority granted to the Council. The ruling of the Election Commission in denying the challenge to the candidates Frailey, Garvin, Thornton, Baker, Snell and Hoskins, Jr. based upon exceeding a four year term of office is affirmed.\\nThe Petitioner challenges his own candidacy by advocating that the failure of the federal government to approve the Constitution of the Cherokee Nation of 1999, renders the same ineffective and that he is therefore seeking election to a de facto office, one that exists but is illegal. This Court in In Re: The Status and Implementation of the 1999 Constitution of the Cherokee Nation, JAT-05-04, found that the 1999 Constitution of the Cherokee Nation was the Organic Law of the Cherokee Nation on July 26, 2003 pursuant to the vote of its Citizens. Our majority found that evidence of federal approval was sufficient and bolstered by federal inaction for three years since the vote of the Citizens on the Constitution. We now stand at ten years after the election and nothing presented by the Petitioner compels us to revisit our decision in JAT-05-04. The office sought by the Petitioner is legally created by, and exists under the organic authority of the Constitution of 1999.\\nThe ruling of the Cherokee Nation Election Commission affirming the eligibility of Council candidates Charles Hoskins, Jr., David Thornton, Meredith Frailey, Curtis Snell, Don Garvin and Jack Baker is affirmed by this Court. Respondents' request for attorney fees and costs pursuant to LA-03-03 is denied with an admonition to the Petitioner delivered in open Court.\\nIT IS SO ORDERED.\\n/s/ Darrell Dowty DARRELL DOWTY, Chief Justice\\n/s/ James G. Wilcoxen JAMES G. WILCOXEN, Justice\\n/s/ Troy Wayne Poteete TROY WAYNE POTEETE, Justice\\n/s/ John C. Garrett JOHN C. GARRETT, Justice\\n/s/ Angela Jones ANGELA JONES, Justice\"}"

tribal/6766321.json

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+"{\"id\": \"6766321\", \"name\": \"Julia COATES, Appellant, v. Jodie FISHINGHAWK and Carole Richmond, Appellees\", \"name_abbreviation\": \"Coates v. Fishinghawk\", \"decision_date\": \"2015-04-20\", \"docket_number\": \"No. SC-2015-04\", \"first_page\": 156, \"last_page\": 162, \"citations\": \"12 Am. Tribal Law 156\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Cherokee Nation Supreme Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Julia COATES, Appellant, v. Jodie FISHINGHAWK and Carole Richmond, Appellees.\", \"head_matter\": \"Julia COATES, Appellant, v. Jodie FISHINGHAWK and Carole Richmond, Appellees.\\nNo. SC-2015-04.\\nCherokee Nation Supreme Court.\\nApril 20, 2015.\", \"word_count\": \"3069\", \"char_count\": \"18951\", \"text\": \"ORDER\\nComes now, this matter of an appeal from the Cherokee Nation Election Com mission and after taking testimony from witnesses, admitting exhibits and reading the transcript from testimony taken from the hearing before the Cherokee Election Commission, this Court finds that the Election Commission's finding should be sustained.\\nIt is therefore adjudged and decreed that by Appellant's failure to prove that she established a bona fide permanent residence within the jurisdictional boundaries of the Cherokee Nation for 270 days immediately preceding the day of the general election in which she sought the position of Deputy Principal Chief of the Cherokee Nation, she is ineligible to run for said office.\\nIT IS SO ORDERED.\\n/s/ John C. Garrett John C. Garrett, Justice\\n/s/ Angela Jones Angela Jones, Justice\\n/s/ Lynn Burris Lynn Burris, Justice\"}"

tribal/6766538.json

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+"{\"id\": \"6766538\", \"name\": \"In the Matter of T.W., a Minor Child Brenda Weeks, Petitioner/Appellant, v. Jessica Weeks Mahone, Respondent/Appellee\", \"name_abbreviation\": \"Weeks v. Mahone\", \"decision_date\": \"2016-02-09\", \"docket_number\": \"No. 673\", \"first_page\": 184, \"last_page\": 185, \"citations\": \"12 Am. Tribal Law 184\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of T.W., a Minor Child Brenda Weeks, Petitioner/Appellant, v. Jessica Weeks Mahone, Respondent/Appellee.\", \"head_matter\": \"In the Matter of T.W., a Minor Child Brenda Weeks, Petitioner/Appellant, v. Jessica Weeks Mahone, Respondent/Appellee.\\nNo. 673.\\nFort Peck Court of Appeals.\\nFeb. 9, 2016.\", \"word_count\": \"447\", \"char_count\": \"2650\", \"text\": \"ORDER\\nThis matter comes before the Court of Appeals on a Petition for Review of an Order of Dismissal issued September 3, 2014.\\nThe Order issued September 3, 2014 dismisses a custody matter concerning T.W., a minor child, stating the Tribal Court lacks jurisdiction in the matter, The Order further vacates earlier issued Temporary Order of Custody and Interim Custody Order.\\nBrenda Weeks, Appellant herein, is the maternal grandmother of T.W. Appellant is represented in the matter by Terry L, Boyd, Counsel, Brockton, Montana. He filed a written brief in support of appeal and appeared for oral argument held before the Court of Appeals on January 26, 2015.\\nJessica Weeks Mahone, Appellee and mother of T.W. did not file a responsive brief and did not appear in person or by counsel at oral argument.\\nAlthough the procedural history of this case is convoluted, the basic issue on this appeal is subject matter jurisdiction.\\nThe Tribal Court custody matter was brought under Title X, CCOJ, 304-A. The pertinent provision states \\\"The Court shall have jurisdiction over this action if at least 1 party to the action is an Indian and at least 1 party has been a bona fide resident within the boundaries of the Fort Peck Reservation for a period of 90 days immediately preceding the filing of the action.\\\"\\nThe underlying petition alleges neglect, and the child is the subject of the proceeding. Section 304-A of Title X CCOJ is applicable. Here, it is undisputed that the child's natural mother, Jessica Weeks Ma-hone, is an enrolled ' Indian person. The minor child, T.W. is an enrolled member of the Fort Peck Assiniboine and Sioux Tribes. Further, at least one person, Appellant Brenda Weeks, is a bona-fide resident of the Fort Peck Reservation and was so for the required time. Section 304-A of Title X CCOJ is applicable.\\nWe need not make further determination here, since the merits of the matter may be further considered by the Tribal Court. We conclude and find that the Tribal Court has jurisdiction in this matter pursuant to Title X CCOJ 304-A.\\nTHEREFORE, IT IS THE ORDER OF THIS COURT:\\n1. The Order of Dismissal issued September 3, 2014 is set aside and vacated.\\n2. This matter is remanded to the Fort Peck Tribal Court for such other and further proceedings as the Court deems appropriate. Until such time as the Court Orders otherwise, the Temporary Order of Custody entered, July 14, 2014 and Interim Custody Order entered and filed on July 29, 2014 are reinstated.\"}"

tribal/6766944.json

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+"{\"id\": \"6766944\", \"name\": \"Jerry D'AMBRA, Jr. v. Todd MAIKSHILO, et al.\", \"name_abbreviation\": \"D'Ambra v. Maikshilo\", \"decision_date\": \"2014-04-28\", \"docket_number\": \"No. GDTC-T-10-105-PMG\", \"first_page\": 216, \"last_page\": 225, \"citations\": \"12 Am. Tribal Law 216\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Mohegan Gaming Disputes Trial Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jerry D\\u2019AMBRA, Jr. v. Todd MAIKSHILO, et al.\", \"head_matter\": \"Jerry D\\u2019AMBRA, Jr. v. Todd MAIKSHILO, et al.\\nNo. GDTC-T-10-105-PMG.\\nMohegan Gaming Disputes Trial Court.\\nApril 28, 2014.\\nMary M. Puhlick, Esq., for Plaintiff.\\nRobert A. Rhodes, Esq,, for Defendant.\", \"word_count\": \"4453\", \"char_count\": \"27005\", \"text\": \"MEMORANDUM OF DECISION\\nGUERNSEY, C.J.\\nFollowing an extensive history of pretrial motions, the trial of this matter pro duced a number of contradictory versions of the events of June 19, 2009 in which the Plaintiff suffered an injury to his knee during the course of (or immediately following) his arrest for behavior that can only be described as drunken and obnoxious. With respect to the question of liability, at issue were whether the arresting officer, Todd Maikshilo, was justified in using a control technique described as a modification of the \\\"rear sentry take-down,\\\" and if so, whether the force used in so doing was excessive. That the Plaintiffs behavior provided probable cause for his arrest for breach of the peace is not questioned by anyone, including the Plaintiff (at least at the time of trial, although certainly not at the time of his arrest).\\nI\\nA\\nFACTUAL BACKGROUND OF THE ARREST\\nOn June 19, 2009, when the Plaintiff was 20 years old, he and a 49 year old friend, Merrick Bolcum, embarked on a journey from Warwick, Rhode Island to the Mohegan Sun for the purpose of attending an Eric Church performance in the Wolf Den. D'Ambra lived with his parents in Warwick and worked in the family construction business as an equipment manager, as well as attending flight school. Upon arrival at one of the parking garages, D'Ambra and Bolcum prepared for the concert by consuming three large rum and cokes each, using a bottle of rum supplied by Bolcum.\\nThus fortified, the two proceeded to the Wolf Den only to discover that it was filled to capacity, with places reserved for Players Club members. According to D'Am-bra, they attempted to view the concert by means of an entrance on the right side, were discovered and told to leave, and did so. Feeling the effects of alcohol, they proceeded to a buffet, where they ate and D'Ambra used the men's room to vomit. He testified that upon returning from the men's room he observed two security personnel speaking with Bolcum. They were taken by security to Krispy Kreme for coffee and donuts, and it was there that they first encountered Maikshilo, who performed a Breathalyzer test on Bolcum. This account is corroborated by the report of Security Supervisor Matthew Corey and the testimony of Maikshilo, which described how the two were escorted to the Summer Entrance to await the arrival of a Tribal Police officer, who performed the Breathalyzer test, the results of which were either \\\"borderline\\\" or a failure, and resulted in an agreement that the two of them would wait two hours before driving. Neither D'Ambra nor Maikshilo testified as to any animosity between them at this first meeting, and Maikshilo returned to his post at the Sky Casino.\\nThereafter, the recollection of the various witnesses of the events leading up to D'Ambra's arrest and injury diverge on numerous details. Security Officer Edward Martin testified that he first observed D'Ambra at Krispy Kreme from his position at the Summer valet entrance to the Casino, and described D'Ambra's behavior as \\\"very boisterous, loud,\\\" At some point thereafter D'Ambra announced he was going to get sick and needed fresh ah, so Martin walked him outside the Summer valet entrance. According to Martin, neither Maikshilo nor any other Tribal Police officer was present at this time. Martin's testimony described increasingly belligerent demeanor on the part of D'Ambra, escalating to the point that Martin called the dispatcher for a Tribal Police officer. Thereafter, Maikshi-lo arrived, followed a few minutes later by Officer Mark Laflamme.\\nD'Ambra's version of his second encounter with Maikshilo describes meeting the officer on his way out of the Summer valet-entrance and walking around him, ignoring first the officer's request to escort him to the men's room to be sick, and then once outside, the officer's request that he sit down. Although somewhat minimized by D'Ambra, it is clear that his behavior went downhill soon afterwards. As for the injury to his knee, D'Ambra's description is as follows:\\nAnd then I turned around and I put my hands on my knees and kind of leaned over like I was going to throw up and then out of nowhere I got whacked behind the knee and I hit the ground and as soon as I hit the ground I threw my hands behind my back as fast as I could because I did not want to get hurt. I was scared. I was in a lot of pain. I was screaming. And then that's when I got loud after I was on the ground and handcuffed.\\nTranscript at 36. According to D'Ambra, he fell forward with his face landing in the mulch, after which he was handcuffed by Maikshilo. D'Ambra's recollection was that neither Security nor Laflamme was present.\\nAs to the beginning of Maikshilo's second encounter with D'Ambra, his testimony corresponds with that of Martin. Approximately 15 minutes after the first encounter, Maikshilo was dispatched back to the Summer valet entrance to deal with an out of control patron. Upon arrival he spoke with Martin, who stated he was having an issue with D'Ambra, described by Martin as using a lot of profanity and alleging that it was the Wolf Den that got him drunk. Martin and Maikshilo's testimony differ as to whether the Plaintiff was seated at this time, with Maikshilo recalling that he was. At some point D'Ambra rose, directing profanity at Maikshilo and Martin, and challenged the officers to taser him. He then put both hands behind his back, daring the officers to arrest him. With Laflamme assisting, taking D'Am- bra's left arm, Maikshilo handcuffed him, arresting him for breach of peace.\\nIt was at this point, after Laflamme had walked away to speak with Martin, that Maikshilo asserts D'Ambra attempted to lunge or pull away from him, causing Maikshilo to perform a control maneuver on the Plaintiff to prevent him from falling or escaping. There was much dispute at trial over the maneuver's nomenclature, but Maikshilo's description of it as a modified rear sentry takedown is as good as any. With one hand on Plaintiffs shoulder and the other on the handcuffs, Maikshilo applied his right foot to the rear of Plaintiffs left calf, bringing him down on to Maikshilo's extended right leg. Maikshilo conducted a memorable in-court demonstration of the effectiveness of this maneuver on Plaintiffs counsel. His skill in performing it was impressive.\\nLaflamme's account largely tracks that of his fellow officer, recalling that D'Am-bra was sitting on the ground when he arrived, yelling and screaming. At some point D'Ambra rose, approached the officers, and dared them to arrest him, turning around and putting his hands behind his back. During this time, D'Ambra was not physically resisting, but was very loud. Laflamme assisted Maikshilo in handcuffing D'Ambra, and then turned to speak with a security officer about what was going on. When Laflamme turned back towards D'Ambra, he saw him sliding down on to Maikshilo's leg. Laflamme assisted Maikshilo in getting D'Ambra to the ground. He did not observe D'Ambra trying to escape or the first part of the control maneuver when contact was made with the back of D'Ambra's knee.\\nCuriously, there was no video surveillance of this incident. This would not be surprising if D'Ambra's account is correct, in that he recounts landing in the \\\"mulch\\\" (actually a flower bed), an area off to the right (facing the entrance) that quite likely was not covered by the security cameras. Maikshilo and Laflamme's testimony, however, places the incident more directly in front of the Summer valet entrance which, if correct, makes the lack of video surveillance puzzling.\\nThereafter, Connecticut State Police took custody of D'Ambra, transporting him in a wheelchair to their office for processing. The State Police criminal information, Defendant's Exhibit C, contains inaccurate hearsay statements relative to D'Ambra's behavior prior to arrest. However, statements made to the state trooper concerning D'Ambra's allegation that he had been drinking at the Wolf Den are consistent with other reports of him making the same allegation, particularly that of Security Supervisor Corey in speaking with D'Ambra during the initial encounter at the Season's Buffet, as well as his statement at the emergency room of Backus Hospital, to which he was taken by Mohegan Ambulance following release from State Police custody.\\nB\\nMEDICAL EVIDENCE RELEVANT TO USE OF FORCE\\nX-rays taken at Backus Hospital that night revealed a tibial spine avulsion fracture. A cruciate ligament injury was noted to be a possibility. D'Ambra was given pain medication and directed to follow up with an orthopedist. On June 21, 2009 he presented to Kent Hospital, where x-rays confirmed the \\\"there may be an avulsion fracture of the intercondylar eminence of the proximal end of the tibia\\\" as well as effusion within the knee joint. On June 24, 2009 he was seen by Dr. Brian J. Jolley at the Lahey Clinic in Lexington, Massachusetts, reported the history of the events at Mohegan Sun on June 19, 2009, and assessed his current pain level at 8-9/10. Dr. Jolley's examination revealed \\\"rather impressive\\\" ecchymosis, and his assessment was \\\"blunt trauma to the knee with huge effusion.\\\" Plaintiffs Exhibit 5. D'Ambra declined an aspiration at that time and he was sent for an MRI to assess intra-articular damage to the knee. This was performed the next day and revealed a large lipohemarthrosis, a loose body, a medial patellar facet bone bruise and a high-grade partial tear of the medial reti-naculum and lateral subluxation of his patella. Arthroscopic surgery, at least to remove the loose body and possibly to repair it, was recommended by Dr. Jolley. At that time aspiration was performed, removing 120 mL of bloody fluid.\\nSurgery was performed on July 10, 2009, with pre- and post-operative diagnoses of: 1. Left knee loose body; and 2. Posttraumatic arthropathy. The procedures, consisting of left knee arthroscopy, removal of loose body, and synovectomy, were performed under general anesthesia. A photograph of the loose piece, which appears to be almost two inches in length, is included in Plaintiffs Exhibit 5. During post-operative physical therapy he was given a corticosteroid injection due to large effusions. Physical therapy resulted in significant but slow improvement.\\nRelevant to the amount of force applied to D'Ambra's left knee by Maikshilo during the modified rear sentry takedown on June 19, 2009, is Dr. Jolly's description of D'Ambra's injuries:\\nHe was seen in follow-up on June 30, 2009. His pain was still severe and motion very limited. The MRI revealed a large amount of fluid, a lipohemarthro-sis. This is a mix of blood and fat consistent with a fracture. There was a fracture of the anterolateral femur and a large loose body, from the fracture site. He also had a high grade sprain of his medial retinaculum (tissue holding his patella in place) and lateral subluxation of his patella. These findings are consistent with a traumatic dislocation/sub-luxation of his patella remlting in a fracture and loose body. He also had significant bone bruising seen indicative of severe trauma....\\nPlaintiffs Exhibit P-7 (emphasis added). In assessing whether excessive force was employed by Maikshilo in the performance of the modified rear sentry takedown, the Court has the benefit of the testimony of Reginald Allard, the Defendant's expert, who taught methods of restraint and control, including the rear sentry takedown, for 23 years at the Connecticut State Police Academy. When asked by the Court, over Defendant's objection, as to whether he had \\\"any statistics with respect to the frequency of knee injuries resulting from training cadets in the execution of the rear sentry takedown,\\\" Allard testified as follows:\\nThis specific technique, I have never had an application of a rear sentry take down in that static environment of a gymnasium, 13,000 people in which an injury was sustained by a recruit based on the application of the strike. Never. We've had injuries, inclusive of myself, with other techniques and misdirected, unintentional strikes to the front of the kneecap as well as the meniscus on the outside of the knee. But not with this particular technique. Hundreds, thousands of times that I've applied it, had it applied to me, to the recruits, we've never had an injury based on the strike itself causing injury to a recruit.\\nII\\nANALYSIS\\nWhile the testimony as to the events surrounding the arrest and injury of D'Ambra differ in significant detail, there are at least two points upon which the Court finds virtually no dispute. First, that D'Ambra was drunk, hostile, and, without any justification, extremely rude and abusive towards Mohegan Security and Police personnel who were treating him professionally and with respect. Secondly, despite this, and even recognizing that a drunk person can suddenly become violent, D'Ambra did not become so, even according to the testimony of Maiksh-ilo that D'Ambra lurched forward making Maikshilo concerned for D'Ambra's safety, not his own. As Laflamme testified, there was never any doubt that the officers could control D'Ambra.\\nThe issue of qualified immunity, raised by the Defendant, turns on the \\\"objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.\\\" Pearson v. Callahan, 555 U.S. 223, 244, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), quoting Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). In the instant case, placing D'Am-bra under arrest for breach of peace was clearly objectively reasonable, as was handcuffing him, although both the point at which and manner in which he was handcuffed is disputed.\\nConnecticut has long held that \\\"the force to be used by an officer in making an arrest must not be necessary, but reasonably necessary under the circumstances.\\\" Lentine v, McAvoy, 105 Conn. 528, 532, 136 A. 76 (1927); see also Martyn v. Donlin, 151 Conn. 402, 411, 198 A.2d 700 (1964) (\\\"[u]nder our rule, in effecting a legal arrest, the arresting officer may, with the exception hereinafter noted, use such force as he reasonably believes to be necessary, under all the circumstances surrounding its use, to accomplish that purpose, that is, to effect the arrest and prevent an escape.\\\"). The use of force so excessive as not to be objectively reasonable constitutes a breach of a legal duty to the arrested person, and falls within the definition of \\\"tort\\\" set forth MTC \\u00a7 3-245 that forms the basis for the limited waiver of sovereign immunity in MTC \\u00a7 3-250(b).\\nIt should be noted that Defendant's arguments under Conn. Gen.Stat. \\u00a7 52-557n are inapplicable. This case is governed by the Mohegan Torts Code and the waiver of immunity contained therein, MTC \\u00a7 3-250(b). The waiver set forth in Conn. Gen.Stat. \\u00a7 52-557n, and the bewildering and inconsistent caselaw that has flowed therefrom, simply have no applicability to the sovereignty of the Mohegan Tribe. Tribal sovereign immunity is not a matter of state law, and the extent to which the Connecticut legislature (or the Connecticut Supreme Court) may or may not have waived the governmental immunity of municipalities is irrelevant. As the MacLean court held in a case interpreting a possible waiver of immunity inferred from the Uniform Administrative Procedures Act:\\nEven if the Uniform Administrative Procedure Act had been held by the Connecticut Supreme Court in some way to constitute a waiver of sovereign immunity, the more fundamental issue presented is whether a decision by the Connecticut Supreme Court finding a waiver of the sovereign immunity of the State of Connecticut becomes the substantive law of the Mohegan Tribe by virtue of MTO 95-4 Section 301 and Article XIII, Section I of the Constitution of the Mohegan Tribe of Indians of Connecticut. We hold that the applicable tribal law of the Mohegan Tribe recognizes and preserves the sovereign immunity of the Tribe, and that a waiver of sovereign immunity by the State of Connecticut may not be incorporated into the substantive law of The Mohegan Tribe pursuant to MTO 95-4 Section 300 et seq.\\nMacLean v. Office of the Director of Regulation, 1 G.D.A.P. 20, 22, 5 Am. Tribal Law 273 (2004) footnotes omitted).\\nAs to the amount of force used to subdue D'Ambra, the issue of whether the use of the modified rear sentry takedown was excessive in and of itself may be a close call, but the appropriateness of the degree of force that was used in doing so is not. \\\"All claims that law enforcement officers have used excessive force-deadly or not\\u2014 in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard-\\\". Weyel v. Catania, 52 Conn. App. 292, 296, 728 A.2d 512 (1999). quoting Graham v, Connor, 490 U.S. 386, 395 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).\\nThe proper application of the Fourth Amendment's reasonableness test requires careful attention to the facts and circumstances of each case, including the following:\\n1. the severity of the crime at issue;\\n2. whether the suspect poses an immediate threat to the safety of the officer or others; and\\n3. whether the suspect is actively resisting arrest or attempting to evade arrest by flight.\\nId. at 296-97. Here, the crime at issue was a drunk and disorderly 20 year old clearly committing a breach of the peace, but not threatening anyone. Although Maikshilo was appropriately careful to prevent D'Ambra from gaming access to any of his weapons or equipment, there is no suggestion that D'Ambra attempted to do so, and by Maikshilo's account D'Ambra was already handcuffed when the maneuver was performed on him. That Maikshi-lo would want D'Ambra seated after being handcuffed was also within his discretion, as was the supposition that D'Ambra would continue to refuse to comply. The Court finds that Maikshilo's decision to perform the modified rear sentry take-down satisfies the standard of objective reasonableness,\\nHowever, Maikshilo was skilled at performing the rear sentry takedown with a minimum of force, as he demonstrated in Court. The force applied to the back of D'Ambra's knee, sufficient to break off a two inch piece of bone within the knee resulting from a traumatic dislocation/sub-luxation of his patella, was far beyond what was objectively reasonable under the circumstances faced by Maikshilo and constituted a tort within the limited waiver of sovereign immunity in the Mohegan Torts Code. MTC \\u00a7 3-250(b).\\nIII\\nDAMAGES\\nAs described by Dr. Jolley, D'Ambra suffered persistent severe pain and swelling. His [initial] \\\"exam was very limited by pain, but he had significant loss of motion and huge swelling of his knee and leg.\\\" Plaintiffs Exhibit P-7. An MRI revealed a lipohemarthrosis (a mix of blood and fat consistent with fracture) and a fracture of the anterolateral femur and a large loose body from the fracture site, as well as a \\\"high grade sprain of his medial retinaculum\\\" and a lateral subluxation of his patella. Dr. Jolley also found significant bone bruising, indicative of severe trauma.\\nSurgery was performed on July 10, 2009, and the surgical findings including a large osteochondral loose body, which was removed, and \\\"a huge amount of synovitis\\\" (inflammation of the synovial membrane). It was noted that the retinaculum was healing and did not need repair. Although range of motion was improved it was still short of normal. Persistent knee swelling after the surgery was initially treated with diclofenac, but still required aspiration of 80 cc of fluid and corticosteroid injection on August 4, 2009. He underwent physical therapy at Lepre Physical Therapy from 7/27/2009-10/15/2009 (24 sessions) and at Prehab Sports Medicine Services, Inc. from 2/8/2010-3/15/2010 (9 sessions), for a total of 33 sessions. D'Ambra testified that he still does his home exercise program 2 to 3 times per week. When reevaluated by Dr. Jolley on November 28, 2012, his physical examination revealed some persistent loss of motion, and it was noted that he required ibuprofen intermittently for his symptoms. Pursuant to the AMA Guides to the Evaluation of Permanent Impairment, 6th Ed., Dr. Jolley assigned a 7% disability of the left lower extremity (Class I patellar subluxation or dislocation with mild symptoms). This corresponds to a 3% whole person impairment. Plaintiffs life expectancy is 52.5 years.\\nEconomic Loss due to medical and health care expense totals $24,468.76. Inasmuch as it appears that this sum is derived from the gross billings from providers, Plaintiffs copays would be already included, and are irrelevant except in the context of collateral source reduction. Plaintiff testified that he was out of work from the date of injury for a total of 18 weeks, missing approximately 25 hours per week at $17.50 per hour, for a total of $7,875.00 in lost wages, which the Court finds consistent with the medical evidence. Lost time for subsequent physical therapy (while he was able to work) is insufficiently (or not at all) documented and will not be considered. The total actual damages/economic loss under MTC \\u00a7 3-246 is therefore $32,343.76. Although his hoped-for career as a commercial pilot may have been delayed, there is no evidence of any economic loss associated with this.\\nIn terms of non-economic damages, D'Ambra suffered a severe and painful injury to his knee, requiring surgical correction for the purpose of, inter alia, removing the large bone fragment that Maikshilo's kick had dislodged from D'Am-bra's tibia. Fortunately, after 33 physical therapy sessions, he appears to have made a good recovery, with a mild disability rating. Non-economic damages are assessed at $60,000.00\\nJudgment shall enter for the Plaintiff against the Defendant in the amount of $32,343.76 actual damages and $60,000,00 non-economic damages, for a total award of $92,343.76. The issue of collateral sources will be addressed as provided in MRCP \\u00a7 47(c).\\n. Originally filed in the Mohegan Tribal Court against the Mohegan Tribal Police Department and the two individual Tribal police officers, this matter was transferred to the Gaming Disputes Court pursuant to MRCP \\u00a7 38C. The record shows that the Defendant has filed one motion to strike and two motions for summary judgment, as a result of which was that the Mohegan Tribe was determined to be the proper defendant under MTC \\u00a7 3-131, and the naming of the Tribal Police Department a case of misnomer.\\n. Testimony established that the drinks were consumed from Dunkin Donuts travel mugs.\\n. Krispy Kreme is located at the Summer Entrance.\\n. Testimony of Todd Maikshilo, Transcript at 146.\\n. Defendant's Exhibit D-A.\\n. Transcript at 11. According to Martin, D'Ambra kept calling out to girls walking by, making comments such as \\\"Nice ass. Why don't you come over and sit with me and stuff like that.\\\" Transcript at 12. Although Initial ly compliant with requests from Martin to calm down, D'Ambra's behavior became \\\"a little more and more rude.\\\" Transcript at 13.\\n. \\\"He started getting angered. He wanted to go back into the casino. But he kept saying he was sick. He was going to throw up. He just kept going forward more and more closer to me and calling me an asshole. You can't do anything. You can't stop me .\\\" Transcript at 15.\\n. D'Ambra testified: \\\"... And he said you need to sit down. And I said I'm not sitting down, I don't feel good. And he said if you don't sit down and obey me you're going to get arrested. And excuse my language and that's when I kind of flipped the switch. I said you're going to fucking arrest me because I won't sit down. You're going to arrest me? And he said keep it up, you want to get tasered? And I said fucking taser me. I've been tasered before....\\\" Transcript at 36.\\n. Transcript at 39. This area is visible in Defendant's Exhibit L.\\n. Transcript at 40.\\n. Transcript at 40-42.\\n. Transcript at 165.\\n. The modification to the maneuver shown in the video (Exhibit P-19) consisted of stopping at this point, rather than throwing the arrestee face first over on to the ground for handcuffing, obviously unnecessary in that D'Ambra was already handcuffed.\\n. Transcript at 15.\\n. Transcript at 10,\\n. Defendant's Exhibit B, the incident report prepared by Maikshilo, reports that \\\"Monitor Room personnel checked for video footage of this incident and stated that they were unable to obtain any due to the area of location of the accused's arrest.\\\"\\n.Defendant's Exhibit A, Corey's report, describes the following:\\nWhile speaking to Mr, D'Ambra, he admitted to being underage and extremely intoxicated. Mr. D'Ambra stated he had been drinking in the Wolf Den while attending the Eric Church concert and had not been carded.\\nAt trial Mr, D'Ambra denied making these statements.\\n. The full colloquy was as follows:\\nTHE COURT: I'm going to ask you one other question and I want you to hold your answer to see whether there's any objection. You were asked about injuries in the course of training cadets who perform this maneuver, do you have any statistics with respect to the frequency of knee injuries resulting from training cadets in the execution of the rear sentry take down?\\nATTY. RHODES: Your Honor,\\nTHE COURT: This may be beyond what was discussed at his deposition, I don't know.\\nATTY. RHODES: Right. Your Honor, what I would just say in terms of my objection would be that his testimony was about injuries in general during training, not\\u2014I don't think the question or answer was limited to injuries sustained in training of this technique.\\nTHE COURT: I thought it was about this technique. I misunderstood it.\\nATTY. RHODES: I didn't think\\u2014I thought it was a broader question Your Honor.\\nTHE COURT: I don't know why we would be asking about other techniques.\\nATTY. RHODES: I think the idea was that even practicing any kind of restraint and control techniques in a controlled environment people can still get hurt I think that was the idea of the question.\\n. The Court is impressed with the professionalism and courtesy shown D'Ambra and Bolcum throughout the evening, commencing with the first encounter at the buffet.\\n. The exception related to the use of deadly force, not here applicable.\\n. Defendant's contention that, given D'Am-bra's starring role in bringing about his own arrest, the proximate cause of his injuries was his own conduct, would eliminate in every case any claim for excessive force, no matter how unnecessary, except perhaps where the arrest was not based on probable cause. In this case, however, the proximate cause of D'Ambra's injury' was the extreme amount of force employed by Maikshilo in executing the modified rear sentry takedown. As Laflamme testified, there was never any doubt about the officers' ability to control D'Ambra.\"}"

tribal/6767655.json

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+"{\"id\": \"6767655\", \"name\": \"Buel ANGLEN, Jack D. Baker, Julia Coates, Lee Keener, and Carol Cowan Watts, Intervenors/Appellant, v. COUNCIL OF THE CHEROKEE NATION, Appellee, and Cherokee Nation Election Commission, Appellee\", \"name_abbreviation\": \"Anglen v. Council of the Cherokee Nation\", \"decision_date\": \"2013-03-04\", \"docket_number\": \"No. SC-2013-03\", \"first_page\": 326, \"last_page\": 328, \"citations\": \"12 Am. Tribal Law 326\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Cherokee Nation Supreme Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Buel ANGLEN, Jack D. Baker, Julia Coates, Lee Keener, and Carol Cowan Watts, Intervenors/Appellant, v. COUNCIL OF THE CHEROKEE NATION, Appellee, and Cherokee Nation Election Commission, Appellee.\", \"head_matter\": \"Buel ANGLEN, Jack D. Baker, Julia Coates, Lee Keener, and Carol Cowan Watts, Intervenors/Appellant, v. COUNCIL OF THE CHEROKEE NATION, Appellee, and Cherokee Nation Election Commission, Appellee.\\nNo. SC-2013-03.\\nCherokee Nation Supreme Court.\\nMarch 4, 2013.\", \"word_count\": \"1519\", \"char_count\": \"9881\", \"text\": \"OPINION\\nTROY WAYNE POTEETE, Justice.\\nCONCURRING IN PART:\\nI CONCUR WITH THE MAJORITY IN THE DETERMINATION to deny the Motion to Dismiss filed by the Cherokee Nation and the Tribal Council.\\nI CONCUR that the Appellants should have been allowed the status of interve-nors and not amicus and that the district Court erred when it reversed itself and relegated the Appellants to amicus status.\\nI do not agree with the majority's determination that relegating of the Appellants to amicus status did them no harm. In Watts v. Smith, 10 Am. Tribal Law 297, 299, Paragraph 2 this court stated:\\n\\\"Deviations from reasonably equal division of citizenship among the 5 districts created should be well documented in the record and must exist in the form of testimony taken, under oath, and subject to cross examination.\\\" Emphasis added.\\nAmicus status deprived the Appellants of the right to cross examination of witnesses in the proceedings below.\\nDISSENTING IN PART:\\nI respectfully dissent to the Majority Determination that there is no sufficient basis to interfere with the action of the Tribal Council and the determination that district boundary lines as established by Legislative Act 26-12 (LA-26-12) are constitutional.\\nI agree with the Majority that this court must \\\"give great deference to the enactments of the Tribal Council and where possible uphold their constitutionality.\\\" Watts v. Smith, 10 Am. Tribal Law at 299; see also Lay v. Cherokee Nation, JAT-95-05-K, at 8-9. However, I do not believe that the deference required allows this Court to forgo scrutiny of the legislative act to ascertain that an acceptable rationale exists for deviation from the acceptable norm of a 10% deviation between the largest and smallest districts.\\nIn Watts v. Smith, 10 Am. Tribal Law at 299, this court set out the framework to determine constitutionality of reapportionment with this statement:\\n\\\"This court recognizes the need to give great deference to the enactments of the Tribal Council and where possible uphold their constitutionality. Notwithstanding, any enactment of the Council is subject to review to insure that the same is not contrary to the Constitution. The ultimate issue is whether there is a constitutionally justifiable basis to deviate from 'one Cherokee, one vote'. . There has been much argued about the 10% rule. This ride is not codified in Cherokee law. Nevertheless, it is a rule of persuasive guidance established by the U.S. Sup.Ct., Voinovich v. Quilter, 507 U.S. 146 [113 S.Ct. 1149, 122 L.Ed.2d 500]-Supreme Court 1993. Granted, it is not mandatory even in federal districting, nonetheless, it does afford a reasonable benchmark, any substantial deviation from which should be justified, As such, there must be a compelling governmental interest to over-ride an otherwise unconstitutional deviation.\\\"\\nIn Watts the court reviewed the district lines drawn by Legislative Act 20-10 which created a 35.77% deviation between the highest and lowest population districts. (District 5 plus 22.88% and District 4 minus 12.89%). This Court determined that this deviation exceeded what was constitutionally acceptable and held the act unconstitutional.\\nThe majority opinion herein erroneously states: \\\"The error was remedied by this Court along county lines to bring the five (5) districts closer to the deviation standard\\\". Such was not the case. This Court did not remedy the error, but rather simply stated that the alternative boundary proposed by the Appellant would be acceptable. It is important to clarify that this Court did not assume or usurp the Legislative prerogative to apportion itself in accordance with the Constitutional mandate. Subsequent to this Courts announcement of its opinion the Tribal Council adopted LEGISLATIVE ACT-36-10 (LA-36-10) which provided a total deviation of 19.28%, with boundary lines drawn along county lines, which have traditionally guided Tribal Council districting.\\nThe Appellants complain that LA 26-12 has created a deviation of 19.06% which is a slight improvement over the disparity approved of by this court in Watts. The configuration of the fifteen districts created by the LA 26-12 lack all those attributes which made such a variance in population among the districts acceptable. The configuration of the five districts set out in LA-36-10 were drawn along county lines and the exterior boundaries of the Cherokee Nation and provided a clear delineation of district boundaries. Those five districts are compact, contiguous, and do not split communities. Retention of these attributes is an acceptable justification for deviation from the 10% rule. Mahan v. Howell, 410 U.S. 316, 328, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), Brown v. Thomson, 462 U.S. 835, 842-843, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983). A long line of cases has established 'traditional districting principles' which guide determination of acceptable levels of deviation from the equal distribution of the population, these include compact shape, contiguous, respect for political subdivisions and traditional boundaries. Shaw v. Reno, 509 U.S. 630 at 647, 113 S.Ct. 2816, 125 L.Ed.2d 511, Miller v. Johnson, 515 U.S., 900, 919-20, 115 S.Ct. 2475, 132 L.Ed.2d 762(1995) Bush v. Vera, 517 U.S. 952, 977, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996).\\nBy contrast the districts created by LA-26-12 are not contiguous, split at least ten towns and communities, split counties, and are without definition but for the lines on a map. While district boundaries along county lines can be readily determined by reference to a simple map as was the situation in LA-36-10, such is not the case with LA-26-12. The irregular lines which split towns, communities, and traditional political sub-division boundaries are based on some landmarks and a variety of boundaries, including zip code, but these boundaries are not identified in the act. I agree with the District Court that it is the duty of the Council and not the Court to determine the exact District boundaries. However, without some legal definition the exact District boundaries will be left to Geo-Data Department or some other Depart ment of the Executive Branch, The Constitution clearly requires the Council to determine District Boundaries. As it is written LA 26-12 leaves determination of District Boundaries to the Executive Branch. The vagueness of the District descriptions also leaves Cherokee citizens without a clear reference with which to determine their voting district and will undoubtedly be the source of much controversy and confusion.\\nThe deviation of 19.28% in LA-36-10 could be justified because the districts created thereby were contiguous, compact, and honored traditional political sub divisions and Cherokee Communities. In stark contrast, Legislative Act-12-26 violates the \\\"one Cherokee one vote\\\" standard, while at the same time dividing communities and creating disjointed, disconnected, and incoherent districts. The lack of proper descriptions of these districts leaves many Cherokee voters without an authoritative reference to determine within which district they should be registered to vote.\\nI appreciate that a division into fifteen districts makes following county lines impractical. However, the configurations of the districts in LA-12-26 offer no coherent adherence to any traditional tribal, state or local political subdivisions such as are necessary to justify substantial deviation from the \\\"one Cherokee, one vote\\\" standard which this Court has heretofore adhered.\\nIt should be noted that the necessity of 15 districts is an imposition imposed by the Tribal Council upon itself by Legislative Act 36-10, section 5(D).\\nArt. 6, \\u00a7 3 of the Constitution of the Cherokee Nation simply states;\\n\\\"The Council shall establish representative districts which shall be within the boundaries of the Cherokee Nation. Fifteen of these seats shall be apportioned to afford a reasonably equal division of citizenship among the districts, .\\nLA 12-26 fails to create a reasonably equal division of citizenship among the fifteen districts it creates. It creates districts with a variance of 19.06%, almost twice the acceptable variance of 10%; and does so while violating that almost universally accepted principle of democratic governments; the principle that political subdivisions should be contiguous.\\nThe act also creates an absurd situation by creating a district in which no elected council person lives and then assigning an elected representative to represent a district in which she does not live. The Cherokee Nation Constitution Article VI, Section 3 requires that \\\"Council members representing districts within the boundaries must be domiciled within their district \\\", LA-26-12 purports to remedy the Constitutional dilemma by assigning a Councilor to the district. Certainly such a remedy is less objectionable than the even more absurd result of declaring that a Councilor, duly elected by the voters, has been rendered ineligible by legislative fiat.\\nSUMMARY\\nI believe that LA-26-10 is unconstitutional because;\\nIt fails to adequately describe the Districts it purports to create and that it leaves the determination of District Boundaries to the Executive Branch.\\nIt violates the \\\"one Cherokee, one vote\\\" standard without acceptable justification.\\nThe creation of a district without a representative and the purported assignment of a representative to that district cannot be reconciled to the Constitution.\\nRESPECTFULLY.\\n. Legislative Act 36-10 (LA-36-10) established a deviation of minus 10.03% and plus 9.25% while Legislative Act 26-12 (LA-26-12) established a deviation of minus 9.12% plus 9.94%.\"}"

tribal/6767985.json

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+"{\"id\": \"6767985\", \"name\": \"In the Matter of SCHMID, Michael, Plaintiff, v. GRAND RONDE TRIBAL HOUSING AUTHORITY, Defendant\", \"name_abbreviation\": \"Schmid v. Grand Ronde Tribal Housing Authority\", \"decision_date\": \"2011-12-02\", \"docket_number\": \"No. C-11-10-001\", \"first_page\": 363, \"last_page\": 365, \"citations\": \"12 Am. Tribal Law 363\", \"volume\": \"12\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Tribal Court of the Confederated Tribes of the Grand Ronde Community\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T18:33:05.920383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of SCHMID, Michael, Plaintiff, v. GRAND RONDE TRIBAL HOUSING AUTHORITY, Defendant.\", \"head_matter\": \"In the Matter of SCHMID, Michael, Plaintiff, v. GRAND RONDE TRIBAL HOUSING AUTHORITY, Defendant.\\nNo. C-11-10-001.\\nTribal Court of the Confederated Tribes of the Grand Ronde Community.\\nDec. 2, 2011.\", \"word_count\": \"825\", \"char_count\": \"5149\", \"text\": \"ORDER OF DISMISSAL\\nSUZANNE O JIBWAY TOWNSEND, Chief Judge.\\nDefendant Grand Ronde Tribal Housing Authority (\\\"GRTHA\\\") appeared specially in this matter to seek dismissal of the Petition in its entirety. Defendant argues that the Tribe has not waived its sovereign immunity with respect to this suit, and this Court is therefore without subject matter jurisdiction to hear the matter. Plaintiff responds that as a matter of fairness, he should have a forum to raise his complaint and seek damages against GRTHA.\\nConsistent with well-established precedent in dealing with Motions to Dismiss based on subject matter jurisdiction, this Court construes the Complaint liberally and will presume, for the purposes of this Motion only, that all the allegations of the complaint are true. All inferences will be drawn in favor of the plaintiff. See, e.g.. McLachlan v. Bell, 261 F.3d 908, 909 (9th Cir.2001). Plaintiff nevertheless bears the burden of establishing jurisdiction. See, e.g., Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir.2001).\\nPlaintiff filed his Complaint under the Tribe's Small Claims Court Ordinance. Plaintiff seeks recovery of $5,000 for damages alleged to have occurred when Plaintiffs home was burglarized. Plaintiff alleges that negligence on the part of GRTHA caused his loss because GRTHA failed to timely repair the broken door to his home, which he rents from GRTHA.\\nThe Tribe's Small Claims Court Ordinance provides a simplified and expedited process in Tribal Court where a Plaintiff may seek to recover money, an object, work or other in-kind payment of goods and services, if the amount of money or the value of the goods or services does not exceed $5000.00. Small Claims Court Ordinance, Seetion(e)(2). Plaintiffs claim is within the monetary jurisdictional limits of the Small Claims Court Ordinance, and on its face, also otherwise meets the requirements of the Ordinance. Id. at Section (c).\\nGrand Ronde Tribal Housing Authority is a Tribal entity established \\\"for the purpose of developing and implementing Tribal housing programs.\\\" Tribal Housing Ordinance, Tribal Code Section 480(a). An action brought against GRTHA is therefore an action against the Tribe. When the Tribe is a defendant in any suit before the Court, this Court has subject matter jurisdiction to decide the claim only if the Tribe has authorized such jurisdiction by waiving its sovereign immunity for the type of suit being brought. Confederated Tribes of Grand Ronde v. Strategic Wealth Management, Inc., et al., Case No.: C-04-08-003, Order Vacating Arbitration Award of Attorney Fees and Costs (August 5, 2005) at p. 19.\\nPlaintiff does not argue that the Tribe has waived its sovereign immunity from suit in the context of a Small Claims complaint. The Small Claims Ordinance itself specifically provides that the sovereign immunity of the Tribe is not waived for suits under the Ordinance, \\\"except as to counterclaims against the Tribe when the Tribe is a plaintiff in a case brought under the Ordinance.\\\" Tribal Code Section 255.4(g). In other words, unless the Tribe itself brings a claim under the Small Claims Ordinance, there is no waiver of the Tribe's immunity from suit for purposes of the Small Claims Ordinance.\\nThe Tribal Tort Claims Ordinance does contain a limited waiver of the Tribe's sovereign immunity for actions brought against the Tribe for injuries such as those alleged by Plaintiff. Tribal Code, Section 255.6. The Tribal Tort Claims Ordinance sets out specific procedures related to the giving of notice of claims against the Tribe and the filing of the action, and sets out specific timelines within which the action must be prosecuted. These procedures differ markedly from the expedited and simplified process for bringing a claim under the Small Claims Court Ordinance. The Tribal Tort Claims Ordinance does not provide for the filing of a tort claim against the Tribe in Small Claims Court, no matter the size of the claim. Thus, although Plaintiff may bring an action against the Tribe for recovery of the type of damages he is seeking, the action must be brought in accordance with the provisions of the Tribal Tort Claims Ordinance, and may not be brought under the Small Claims Ordinance.\\nFor the reasons described above, the claims brought against GRTHA by Plaintiff under the Small Claims Court Ordinance must be dismissed for lack of subject matter jurisdiction.\\nNOW THEREFORE, IT IS ORDERED:\\n1. Defendant's Motion to Dismiss the Complaint in its entirety with prejudice, based on lack of subject matter jurisdiction in Small Claims Court, is GRANTED.\\n2. Defendant's Small Claims Court Complaint is hereby DISMISSED in its entirety.\\n3. Nothing in this Order shall prevent Plaintiff from filing a complaint under the provisions of the Tribal Tort Claims Ordinance, and nothing shall prevent the parties herein from engaging in mediation or other voluntary settlement processes.\"}"

tribal/7336352.json

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+"{\"id\": \"7336352\", \"name\": \"COLVILLE CONFEDERATED TRIBES, Appellant, v. Crystal OLNEY, Appellee\", \"name_abbreviation\": \"Colville Confederated Tribes v. Olney\", \"decision_date\": \"2011-11-21\", \"docket_number\": \"No. AP11-010\", \"first_page\": 203, \"last_page\": 206, \"citations\": \"10 Am. Tribal Law 203\", \"volume\": \"10\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Colville Tribal Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T20:15:13.484759+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Chief Justice ANITA DUPRIS, Justice DAVE BONGA and Justice DENNIS L. NELSON.\", \"parties\": \"COLVILLE CONFEDERATED TRIBES, Appellant, v. Crystal OLNEY, Appellee.\", \"head_matter\": \"5 CTCR 41\\n10 CCAR 75\\nCOLVILLE CONFEDERATED TRIBES, Appellant, v. Crystal OLNEY, Appellee.\\nNo. AP11-010.\\nColville Tribal Court of Appeals.\\nOral argument held July 15, 2011.\\nDecided Nov. 21, 2011.\\nM. Simonsen & C. Slatina, Office of Prosecuting Attorney, appeared for Appellant.\\nD. Rodrigues, Office of Public Defender, appeared for Appellee.\\nBefore Chief Justice ANITA DUPRIS, Justice DAVE BONGA and Justice DENNIS L. NELSON.\", \"word_count\": \"1560\", \"char_count\": \"9210\", \"text\": \"NELSON, J.\\nCrystal Olney was tried before a jury on the charge of Physical Control, CTLOC 3-3-3 & 3-3-1 (which incorporates by reference RCW 46.61.504, Actual Physical Control). Ms. Olney moved for a directed verdict after the prosecution had rested its case in chief: the motion was granted and the case dismissed. Colville Confederated Tribes (CCT) did not make an exception to the order, but appeals the directed verdict. We reverse and remand for a new trial.\\nISSUES\\nWe have two issues before us:\\n1. Whether an appeal is precluded when a party losing a motion fails to note an objection to the ruling; and\\n2. Whether the trial court judge erred at law when granting the motion for a directed verdict leading to the dismissal of the case against the defendant.\\nFACTS\\nOn December 11, 2011, Officer Mar-chand of the Colville Tribal Police located a van in a ditch off the roadway at Mile Post .5 of the Moses Meadows/Lyman Lake Road. Crystal Olney was in the middle seat of the van, the engine was not running, and the keys were found on the floor of the van.\\nWhen tribal police arrived they found the engine still warm and heard Ms. Olney ask \\\"where have you been? I called you (a long time ago).\\\" Ms. Olney smelled of alcohol and was given a BAC test, the result of which was .101.\\nShe was charged with violating Colville Law and Order Code (CTLOC), Sections 3-3-3 and 3-3-1 (which incorporates by reference RCW 46.61.504, Actual Physical Control). The complaint against her acknowledged the affirmative defense allowed by Section 3-3-3 (Vehicle Safely Off Roadway).\\nMs. Olney moved for a directed verdict after Officer Marchand testified to the above. The written motion alleged that Officer Marchand's testimony showed the van to be safely off the roadway and that Ms. Olney did not have physical possession of the van while under the influence of alcohol. The prosecution argued against the motion. The motion was granted and the case dismissed. The prosecution did not preserve its objection.\\nSTANDARD OF REVIEW\\nWhether \\\"an appeal is precluded where the losing party to a motion fails to note an objection to the ruling\\\" is an issue at law. There is sound reasoning in the position that questions of law \\\"are reviewed under the non-deferential de novo standard.\\\" United States v. McConney, 728 F.2d 1195 (9th Cir.1984); CCT v. Naff, 2 CCAR 50, 2 CTCR 08, 22 ILR 6032 (1995).\\n\\\"In reviewing a trial court decision denying either a motion for a directed verdict . the appellate court applies the same standard as the trial court: that is, whether there is sufficient evidence that could support a verdict. Stiley v. Block, 130 Wash.2d 486, 504, 925 P.2d 194 (1996); Hizey v. Carpenter, 119 Wash.2d 251, 271, 830 P.2d 646 (1992); State v. Bourne, 90 Wash.App. 963, 967-68, 954 P.2d 366 (1998).\\\"\\nIn other words, we review the matter de novo.\\nDISCUSSION\\nThe issues before us are a matter of first impression before this court. When there is no statutory or ease law applicable to an issue before this court, it may look to other jurisdictions for instruction. CTLOC 2-2-102.\\n1. Failure to preserve objection:\\nColville Tribal Court of Appeals Court Rule (COACR) 7(a)(6) states: \\\"Grounds for requesting a new trial or a limited appeal on issues of law and/or fact shall be limited to (an) . Error of law occurring at trial and excepted to at any time by the party\\\".\\nMs. Olney contends that the prosecution did not note an exception or object to the Trial Court's granting a directed verdict and dismissing the case, thus not perfecting the right to appeal. The prosecution opposed the motion at the time it was heard by the trial court judge.\\nThis court has long adhered to the philosophy of \\\"substance over form.\\\" Tribal courts nationwide are faced every day with pro se parties or advocates/spokespersons representing them who have no formal training at law. Accordingly, tribal courts are forced to be flexible, but just, in the application of the law.\\nCOACR 1 provides that \\\"While these rules are specific, the Court of Appeals may allow flexibility in their application.\\\" A similar provision is set forth in the Washington State Rules of Appellate Procedure. RAP 1.2(a) states that the appellate rules of procedure \\\"will be liberally interpreted to promote justice and facilitate the decision of cases on the merits. Cases and issues will not be determined on the basis of compliance or noncompliance with these rules except in compelling circumstances where justice demands.... \\\"\\nSuch was the case in Washington v. Olson, 126 Wash.2d 315, 893 P.2d 629 (1995). That court stated:\\n\\\"It is clear from the language of RAP 1.2(a), and the cases decided by this Court, that an appellate court may exercise its discretion to consider cases and issues on their merits. This is true despite one or more technical flaws in an appellant's compliance with the Rules of Appellate Procedure. This discretion, moreover, should normally be exercised unless there are compelling reasons not to do so. In a case where the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the Court is not greatly inconvenienced and the respondent is not prejudiced, there is no compelling reason for the appellate court not to exercise its discretion to consider the merits of the case or issue.\\\" at P. 323, 893 P.2d 629\\nWe find that the nature of the appeal is clear, that this Court is not greatly inconvenienced, and that Ms. Olney is not unduly prejudiced by allowing the appeal to proceed.\\n2. Whether the Trial Court judge erred when granting the motion for a directed verdict\\nThe defendant, as noted, moved for a directed verdict after the prosecution rest ed its case in chief at trial. The prosecution objected, arguments were made, and the Trial Court then dismissed the charge of Actual Physical Control with prejudice.\\nAppellate Courts of the State of Washington have considered numerous cases regarding directed verdicts. A succinct summary of the law regarding directed verdicts in the State of Washington can be found in Dunnell v. Department of Social and Health Services, 118 Wash.App. 1019, 2003 WL 21963051 (Wash.App. Div. 2, 2003). That court determined that:\\n\\\"A directed verdict is appropriate only if as a matter of law there is no substantial evidence of reasonable inference to sustain a verdict for the nonmoving party when viewing the evidence in the light most favorable to the nonmoving party. Hisey v. Carpenter, 119 Wash.2d 251, 271-72, 830 P.2d 646 (1992); Levy v. North Am. Co., 90 Wash.2d 846, 851, 586 P.2d 845 (1978). Substantial evidence means evidence that evidence would convince \\\"an unprejudiced, thinking mind.\\\" Hizey 119 Wash.2d at 272, 830 P.2d 646 (quoting Indus. Indem. Co. of Northwest, Inc. v. Kallevig, 114 Wash.2d 907, 916, 792 P.2d 520 (1990). At the same time, if any justifiable evidence on which reasonable minds might reach conclusions that sustain the verdict, the question is for the jury. Levy at P. 851, 586 P.2d 845.\\\"\\nOfficer Marchand's testimony showed that Ms. Olney had a BAC reading of .101 percent; that she had been with the vehicle for some time while waiting for the police; that the engine was still warm; and that she was the sole occupant of the vehicle when it was found. Reasonable minds could infer that she had been operating the van while under the influence of alcohol and, thus, guilty of Physical Control.\\nThe affirmative defense to the charge of Actual Physical Custody is that the vehicle was safely off the roadway. CTLOC 3-3-3. This is a question of fact. In criminal jury trials, the jury determines matters of fact. A judge may grant a motion for a directed verdict only where no reasonable inference that will sustain a jury verdict in favor of the non-moving party. Levy, supra.\\nA jury could determine that a vehicle in a ditch alongside a roadway is not \\\"safely off' the roadway for the reason that emergency vehicles blocking or partially blocking the roadway cause other vehicles to slow down. A jury could easily infer that drivers of oncoming vehicles could cause their own accident while looking to see what has happened.\\nIn this instance, the question whether Ms. Olney's van was safely off the roadway was a question for the jury to determine. \\\"A trial court has no discretion in ruling on a motion for a directed verdict, but must accept as true the non-moving party's evidence and draw all favorable inferences arising from it.\\\" Saunders v. Lloyd's of London, 113 Wash.2d 330, 335, 779 P.2d 249 (1989). Simply put, it is not the trial court's function to determine fact. It is the sole province of the jury.\\nCONCLUSION\\nAccordingly, the Trial Court's order dismissing the complaint herein is REVERSED. This matter is REMANDED for a new trial.\"}"

tribal/7337353.json

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+"{\"id\": \"7337353\", \"name\": \"Eleanor LOWENSTEIN v. MOHEGAN TRIBAL GAMING AUTHORITY\", \"name_abbreviation\": \"Lowenstein v. Mohegan Tribal Gaming Authority\", \"decision_date\": \"2011-05-05\", \"docket_number\": \"No. GDTC-T-09-107 PMG\", \"first_page\": 259, \"last_page\": 263, \"citations\": \"10 Am. Tribal Law 259\", \"volume\": \"10\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Mohegan Gaming Disputes Trial Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T20:15:13.484759+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Eleanor LOWENSTEIN v. MOHEGAN TRIBAL GAMING AUTHORITY.\", \"head_matter\": \"Eleanor LOWENSTEIN v. MOHEGAN TRIBAL GAMING AUTHORITY.\\nNo. GDTC-T-09-107 PMG.\\nMohegan Gaming Disputes Trial Court.\\nMay 5, 2011.\\nMichael D. Colonese, Esq., Brown Jacobson, P.C., Norwich, CT, for Plaintiff.\\nRichard F. Banbury, Esq., Rome McGuigan Sabanosh, P.C., Hartford, CT, for Defendant.\", \"word_count\": \"2233\", \"char_count\": \"13570\", \"text\": \"MEMORANDUM OF DECISION\\nGUERNSEY, C.J.\\nThe instant action presents the Court with a situation where the evidence of the injury to the Plaintiff is direct and essentially unquestioned, but evidence of the cause of the fall that produced the Plaintiffs injury is entirely circumstantial. \\\"A plaintiff, however, may sustain his burden of proof by circumstantial evidence,\\\" Terminal Taxi Company, Et Al. v. Flynn, 156 Conn. 313, 316, 240 A.2d 881 (1968), if the inference is \\\"not only logical and reasonable but also strong enough that it can be found to be more probable than not.\\\" Colin C. Tait & Eliot D. Prescott, TAIT'S HANDBOOK OF CONNECTICUT EVIDENCE (4th Ed. 2008) \\u00a7 3.5.1.\\nI\\nFactual Background\\nThe evidence presented can be summarized as follows. The Plaintiff, then 69 years of age and a resident of Roslyn, New York, together with her husband Carl, her grandson Zack and a friend of Zack's, went to the Mohegan Sun on March 8, 2008 so that she and her husband could take the kids to the Bon Jovi concert that night. They arrived about noon, and checked into their room at the Mohegan Sun Hotel, intending to stay the night after the concert.\\nAfter checking in, they decided to go to lunch at a restaurant in the Casino, Fide-lia's. When they arrived, the restaurant was very busy, with almost every table taken. They were seated in the rear of the restaurant, near the kitchen. After lunch, they exited in a way best described as counterclockwise, proceeding along a path that the Plaintiff described as tiled, although the area under the outside booths surrounding this path was carpeted. The photographs and testimony of the former manager of Fidelia's indicated that the same was a terrazzo floor.\\nBy the time the Plaintiffs party reached that part of the path by the \\\"last\\\" booth (i.e. nearest the entrance) Zack and his friend were in front, speaking with Plaintiffs husband Carl, and the Plaintiff was walking behind them. Carl Lowenstein testified that he heard a noise, turned around, and saw that his wife had fallen and that her right wrist was badly deformed. No one in the Plaintiffs party (or anyone other than the Plaintiff, as far as the evidence indicated) witnessed the actual fall.\\nThe fall occurred in the vicinity of \\\"Station Area A\\\", which is accessed only by servers or other employees of the Defendant and which stores condiments, including mustard, ketchup, A-l steak sauce, soy sauce, olive oil, etc. for use by servers. These are kept in closed containers; sauces prepared by the kitchen would more likely be in open ramekins. The kitchen is located at the back of the restaurant, and servers would carry trays to tables and booths located in the left front of the restaurant along the same path used by the Plaintiffs party in exiting the restaurant. Fidelia's does serve a breakfast buffet, but the buffet had ceased several hours before the accident. An all day breakfast menu is served, but well before the time of the accident all delivery of food and beverages to patrons was by way of full service by employees of the Defendant to patrons seated at booths or tables.\\nCarl Lowenstein testified that his immediate concern was the obvious, severe injury to his wife's hand. Neither the Plaintiff nor her husband observed any substance on the tiled area where she fell. Medical response personnel arrived quickly and placed the Plaintiff on a gurney, at which time Carl Lowenstein observed a large, wet, greasy or oily spot on the sole of her right shoe. The shoes she was wearing at the time of the fall have not been preserved.\\nThe Plaintiff testified credibly that as she was walking, she felt something under her foot that made it go out suddenly, causing her to slip and fall down hard on j the \\\"tile\\\" floor. By the time the Defendant's Security Supervisor arrived on the (scene, the Plaintiff was already being transported to Backus Hospital. It does not appear that any search for defects was i conducted, and it is unknown whether the three photographs attached to the incident report show the actual point on the terraz-Wl zo floor where the Plaintiff fell.\\nThe Plaintiff was taken by Mohegan Ambulance to William W. Backus Hospital, where X-Rays revealed a \\\"highly commi-nuted impacted fracture of the distal radius, with radial epiphyseal fractures distributed in a burst pattern. The carpus [was] laterally displaced relative to the forearm, without AP malalignment.\\\" At the hospital, the Plaintiff was given a splint cast, and after discharge was actually able to attend the Bon Jovi concert that night. After returning home to Roslyn, on March 10, 2008 she consulted with Dr. Jay S. Simoncic, a hand specialist, whose diagnosis was a comminuted distal radius fracture. Dr. Simoncic was of the opinion that the Plaintiff required open reduction and internal or external fixation. This surgery was performed at Glen Cove Hospital on March 18, 2008 under general anesthesia. During the procedure the attempted closed reduction was carried out, but was not successful due to the multiple bone fragments and amount of comminution of the fracture.\\nAs a result, an open approach to the volar aspect of the wrist was performed. Significant comminution and bone loss was noted. Reduction was carried out but there was difficulty maintaining the reduction using a plate for internal fixation, so additional external fixation was carried out, affording better reduction of the fracture fragments. When seen again by Dr. Simoncic on March 26, 2008, there was mild swelling noted but the external fixator was in good position. Examination revealed decreased range of motion about the digits. Dr. Simoncic's diagnosis at that point was status post right wrist external fixation and internal fixation of distal radius fracture. The Plaintiff was started on occupational therapy for range of motion of the digits. The last notation introduced from Dr. Simoncic (July 31, 2008) indicated the Plaintiff was feeling a little bit stiff with regards to her fingers, but otherwise doing quite well and was to continue occupational therapy. Although no percentage disability was assigned, the Plaintiff has scarring from the surgical site and is unable completely to close her fingers together, which condition she demonstrated to the Court during trial. The evidence established that the total medical, surgical and rehabilitative expense arising out of this fall was $27,231.57, which certainly appears to be reasonable in light of the severity of the injury.\\nII\\nANALYSIS\\nThe burden of persuasion in a civil case of this nature is well established. As described by Prof. Tait, \\\"a party satisfies his or her burden of persuasion if the evidence, considered fairly and impartially, induces in the mind of the trier a reasonable belief that it is more probably than otherwise that the fact or issue is true.\\\" (citations omitted) TAIT & PRESCOTT, op, cit, \\u00a7 3.5.1. \\\"It is not necessary that the proof negate all other possibilities or that it reach the degree of certainty that excludes every other reasonable conclusion.\\\" Id.\\nIn the instant case, the Plaintiff has established that it is more probable than not that she slipped on a substance on the terrazzo floor. Her testimony was credible , and the evidence presented, including photographs accompanying the incident report, does not establish the presence of any type of tripping hazard. As for the source of the substance responsible for the Plaintiff slipping on the terrazzo floor, the Plaintiff has established that any self-service buffet had ended hours earlier, that it was not common for patrons to carry their own food and drink through the restaurant, and that those carrying food, drink, condiments, water, etc. over the terrazzo floor where Plaintiff fell were more likely than not the Defendant's employees.\\nAs the Connecticut Appellate Court has observed, the drawing of inferences is based on a \\\"rough assessment of probabilities\\\":\\n\\\"An inference is a factual conclusion that can rationally be drawn from other facts. If fact A rationally supports the conclusion that fact B is also true, then B may be inferred from A. The process of drawing inferences based on a rough assessment of probabilities is what makes indirect or circumstantial evidence relevant at trial. If the inference (fact B from fact A) is strong enough, then fact A is relevant to prove fact B.\\\"\\nCurran v. Kroll, 118 Conn.App. 401, 409, 984 A.2d 763 (2009), quoting 1 C. Fishman, Jones on Evidence (1992) \\u00a7 4:1, pp. 299-300, In short, the Plaintiff has established that she slipped on a liquid substance of some sort, on a terrazzo floor, in a busy restaurant, and that the only persons transporting such substances in the area where she fell were employees of the Defendant. The Plaintiff has proved that it is more probable than not that the proximate cause of her fall was a liquid substance of some sort that dropped onto the terrazzo floor while being transported by an agent of the Defendant.\\nThe instant case therefore involves neither the \\\"mode of operation\\\" theory of liability nor issues of constructive notice, inasmuch as \\\"proof of notice is not required because the defendant is presumed to be on notice of the conduct of its own employees\\\". Kelly v. Stop and Shop, Inc., 281 Conn. 768, 785 fn. 6, 918 A.2d 249 (2007). As for Defendant's First Special Defense, that of comparative negligence, the Defendant has failed to prove any negligence on the part of the Plaintiff; if anything, the photographs accompanying Defendant's Incident Report tend to show that the defect was not one that the Plaintiff could have observed.\\nThe injuries suffered by the Plaintiff were both painful and severe. The fracture was of such severity and so commi-nuted that closed reduction was not possible, open reduction with internal fixation failed adequately to deal with the fracture, and additional external fixation was required. F or purposes of this decision it is irrelevant that no percentage disability was assigned; the Plaintiff demonstrated to the Court the limitations with which she has been left.\\nThe Court finds that fair, just and reasonable compensation for the non-economic damages suffered by the Plaintiff in this case is $75,000.00, and that her actual damages (or economic loss) total $27,231.57. In accordance with MTC \\u00a7 3-251(a)(3), the award of non-economic damages is reduced to $54,463.14, for a total award of $81,694.71. Collateral source issues, if any, shall be raised pursuant to MRCP \\u00a7 47(c).\\nJudgment shall enter in favor of the Plaintiff in the amount of $ 81,694.71.\\n. Testimony at trial indicated the restaurant seating was for the most part in concentric circles. The table at which the Plaintiff's party was dining was described as being at about the 12:00 o'clock position as seen by one standing at the front entrance.\\n. See list in Plaintiff's Exhibit 3 \\\"SSA 3\\u2014 Condiments.\\\"\\n.Fidelia's discourages, but does not completely prohibit, patrons from bringing in their own food and drink; when they arise, these issues are handled on a case by case basis. Testimony established that it was not typical for a patron to bring in food or drink, and no evidence was introduced that any patron had done so prior to Plaintiffs fall.\\n. The Defendant has not introduced any evidence directed to the reasonableness or medical necessity of the treatment rendered.\\n. Although her husband testified credibly as to the observation of a discoloration on the sole of Plaintiffs shoe, the same does not factor into the Court's finding, inasmuch as such a discoloration could have occurred at any time prior to the accident.\\n. The Connecticut Appellate Court continues '[m]uch has been written about the jury's ability to draw inferences, but, as explained by Professor McCormick, \\\"in few areas of the law have so many words been spoken by the courts with so little conviction.\\\" 2 C. McCormick, Evidence (5th Ed. 1999) \\u00a7 338, p. 418.\\n. It is interesting to note that, as the Connecticut Supreme and Appellate Courts have held, \\\"Connecticut does not subscribe to the oft-repeated rule that an inference cannot be based on an inference. Successive inferences are permissible if justified by the facts Curran v. Kroll, 118 Conn.App. 401, 410, 984 A.2d 763 (2009), quoting C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) \\u00a7 4.3.1. In the instant case, however, the two operative inferences, that the Plaintiff slipped on a spilled substance and that such substance was dropped while being transported by an agent of the Defendant, arise from different sets of facts.\\n. This theory of liability was made inapplicable to claims brought under the Mohegan Torts Code by the 2007 amendment to the definition of \\\"negligence\\\" contained in MTC \\u00a7 3-245.\\n. Although counsel for the Defendant strongly argued that the same was not proven, it was conceded in argument that if the Defendant's employees accidentally put something on the floor, the Defendant was responsible.\\n. Plaintiff's Second Special Defense, relating to collateral source payments, should never have been pleaded; such pleading is prohibited under both Mohegan Rules of Civil Procedure and Superior Court rules. See MRCP \\u00a7 23(f); Conn. Prac. Bk. \\u00a7 10-78.\\n. It is not dear to what extent New York surgeons regularly assign such ratings.\"}"

tribal/7338957.json

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+"{\"id\": \"7338957\", \"name\": \"In The Matter of the ESTATE OF Violet ASHIKE, Deceased. And concerning Lugredita Ashike, Appellant and Rita Chase, Appellee\", \"name_abbreviation\": \"In re the Estate of Ashike\", \"decision_date\": \"2012-06-19\", \"docket_number\": \"Nos. 2010-AP-0006, 2010-CV-0034\", \"first_page\": 10, \"last_page\": 13, \"citations\": \"11 Am. Tribal Law 10\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Appellate Court of the Hopi Tribe\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In The Matter of the ESTATE OF Violet ASHIKE, Deceased. And concerning Lugredita Ashike, Appellant and Rita Chase, Appellee.\", \"head_matter\": \"In The Matter of the ESTATE OF Violet ASHIKE, Deceased. And concerning Lugredita Ashike, Appellant and Rita Chase, Appellee.\\nNos. 2010-AP-0006, 2010-CV-0034.\\nAppellate Court of the Hopi Tribe.\\nJune 19, 2012.\\nGary LaRance, Scottsdale, AZ, for Plaintiff.\", \"word_count\": \"1310\", \"char_count\": \"8081\", \"text\": \"OPINION\\nPAT SEKAQUAPTEWA, Justice.\\nThis matter comes before the Hopi Appellate Court on Appellant Lugredita Ash-ike's Notice of Appeal in which she appeals the Hopi Trial Court order dated September 10, 2010. That order granted Appellee Rita Chase's Motion to Defer to Navajo Court and dismissed Appellant's Petition for Adjudication of Intestacy in the Hopi Trial Court.\\nStatement of Relevant Facts and Procedural History\\nDecedent Violet Ashike was a member of the Navajo Nation who lived on the Hopi Reservation lands known as the Hopi Partitioned Lands (HPL) until her death on April 2, 2009. Decedent died intestate leaving her estate which consisted of two houses and a Grazing Permit on Range Unit 262. All such property is located within the Hopi Tribe's jurisdiction in the HPL. Decedent was a member of the Navajo Tribe and is survived by her seven children, including the Appellant and Ap-pellee, who are also members of the Navajo Tribe.\\nOn January 4, 2010, Appellee petitioned to probate Decedent's estate in the Navajo Nation Family Court, Judicial District of Tuba City.\\nOn March 10, 2010, the Appellant filed a Petition for Adjudication of Intestacy in the Hopi Tribal Court.\\nOn June 23, 2010, Appellee filed a Motion to Defer to Navajo Court.\\nOn July 8, 2010, Appellant filed a Response to the Motion to Defer to Navajo Court. Appellant argued that: the Hopi Court had jurisdiction per Hopi Ordinance 21 \\u00a7 1.1.1; the Hopi Court should not defer jurisdiction to the Navajo Court until it determined clearly that the Navajo Court had such jurisdiction; the Accommodation Agreement did not grant the Navajo Court exclusive jurisdiction over succession matters, among other arguments.\\nOn July 21, 2010, Appellee filed a Reply to Response to Motion to Defer to Navajo Court.\\nOn August 4, 2010, the Trial Court heard Appellee's Motion to Defer to Navajo Court.\\nOn September 8, 2010, the Hopi Trial Court determined that it did not have subject matter or personal jurisdiction and dismissed the petition: \\\"The court finds this cause of action involves a probate matter in which the decedent was a member of the Navajo Indian Tribe. Her heirs are members of the Navajo Indian Tribe. It is not disputed that the issues involved herein are Navajo related. The court also finds that Public Law 93-531, as amended\\u2014Accommodation Agreement of 1992 provides in pertinent part that probate matters are entirely Navajo related and are subject to the jurisdiction of the Navajo Tribe. Public Law 93-531, as amended, Subsection G.2. Jurisdiction.The court concludes that the Hopi Tribal Court does not have subject matter and personal jurisdiction over this cause of action. The cause of action is dismissed.\\\" Order pp. 1-2.\\nOn September 23, 2010, Appellant filed a Notice of Appeal of the September 8, 2010 Order of Dismissal.\\nOn February 8, 2011, the Navajo Nation Family Court dismissed Appellee's petition to probate Decedent's estate for lack of subject matter jurisdiction. The Navajo Court found that it lacked jurisdiction since none of Decedent's property was located within the territorial jurisdiction of the Navajo Nation or the Tuba City Family Court.\\nOn November 10, 2011, the Hopi Tribe, through its counsel, with an interest in protecting its jurisdiction and the jurisdiction of its courts, submitted a brief as amicus curiae in support of Appellant's appeal in this case.\\nIssues Presented\\n(1) Whether the Hopi Tribal Courts have subject matter jurisdiction over probate cases involving Navajo residents on the Hopi Partitioned Lands?\\n(2) Whether the Hopi Tribal Courts properly transferred the probate matter concerning Navajo residents on the Hopi Partitioned Lands to the Navajo Nation Courts in this case?\\nDiscussion\\nI. The Hopi Tribal Courts Have Subject Matter Jurisdiction Over Probate Cases Involving Navajo Residents on the Hopi Partitioned Lands.\\nArticle I of the Hopi Constitution grants the Hopi Tribe jurisdiction over \\\"such land as shall be determined by the Hopi Tribal Council in agreement with the United States Government and the Navajo Tribe, and such lands as may be added thereto in Mure.\\\" Hopi Const. Art. I. In addition, Hopi Ordinance 21 \\u00a7 1.7.1 further specifies that the Hopi Trial Court \\\"shall have original jurisdiction of all causes of action arising on the Hopi Reservation wherein the defendants to the action are Indians as defined in 8.1.l(k) thereof.\\\" The Ordinance defines \\\"Indian\\\" as \\\"any person who is an enrolled member of any Federally recognized tribe or who has Indian blood and is regarded as an Indian by the society of Indians among whom he lives.\\\" Hopi Ord. 21 \\u00a7 3.1-Kk).\\nThe Hopi Tribal Courts have jurisdiction over this probate dispute. The Hopi Tribal Courts also have probate jurisdiction in the absence of a probate ordinance. See In re Komaquaptewa, 4 Am. Tribal Law 432 (Hopi 2002). The Hopi Partitioned Lands are a part of the Hopi Reservation. Despite being a member of the Navajo Tribe, Decedent voluntarily remained on Hopi land by choosing to stay and live on the HPL. Though occupied by Navajo persons (including decedent) under the Accommodation Agreement through leasehold agreements, the property in question is nevertheless on Hopi land. See Order dated Sep. 10, 2010. See also the Navajo and Hopi Indian Land Settlement Act of 1974, Pub.L. No. 96-531, 88 Stat. 1712 (codified as amended at 25 U.S.C. \\u00a7 640d et seq. (1994) (\\\"1974 Settlement Act\\\"); Sekaquaptewa v. MacDonald, 626 F.2d 113 (9th Cir.1980) (allocating approximately 900,000 acres known as the Hopi Partitioned Lands to the Hopi Tribe).\\nThe Navajo Nation has declared that its courts lack jurisdiction over this probate dispute. The Navajo Tribal Council has bestowed subject matter jurisdiction on the Navajo Nation Family Court over probate matters, but only if such matters involve property \\\"found within the territorial jurisdiction of the Court.\\\" See Navajo Nation Code Title 8, \\u00a7 1. Since the estate is located within the HPL, the property is not found within the territorial jurisdiction of the Navajo Nation Family Court.\\nDecedent and all parties in this case properly qualify as an \\\"Indian\\\" as defined in Hopi Ordinance 21 \\u00a7 3.1.l(k) due to their membership in the Navajo Tribe.\\nII. The Hopi Tribe and Tribal Courts have Subject Matter Jurisdiction over this Matter so there is no need to \\\"Transfer\\\" the Matter to the Navajo Nation Courts\\nAppellant's second issue on appeal is that the Hopi Tribe did not properly and effectively transfer its jurisdiction over probate matters concerning Navajo residents of the HPL to the Navajo Nation Courts. Because we find that the Hopi Tribal Courts have subject matter jurisdiction over this probate matter, we do not address this issue.\\nConclusion\\nThe Hopi Tribal Court has subject matter jurisdiction to hear the case as per Article I of the Hopi Constitution and Hopi Tribal Ordinance 21 \\u00a7 1.7.1.\\nOrder\\nThe Hopi Trial Court's order finding that the Hopi Tribal Courts lack subject matter jurisdiction to hear this case and its order dismissing the case are reversed and remanded for further proceedings on the merits.\\n. We note that even in the case of non-Indian defendants, the Ninth Circuit has recently held that a tribe has regulatory and adjudicatory jurisdiction flowing from the tribe's inherent authority to exclude and manage its own lands. Citing the longstanding rule that Indian tribes possess inherent sovereign powers, including the power to exclude unless Congress clearly and unambiguously says otherwise, the 9th Circuit found that a tribe's power to exclude nonmembers from its land necessarily includes the incidental power to regulate because the tribe should be able to set conditions on nonmembers' entry. Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, at 808, 811-12, 814, 816 (9th Cir.2011).\"}"

tribal/7339503.json

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+"{\"id\": \"7339503\", \"name\": \"In re the welfare of J.D., beda?chelh, Petitioner and Appellant, C.W., Mother, Respondent, H.D., Father, Respondent, P.C., Intervener, and M.M., Intervener\", \"name_abbreviation\": \"In re the welfare of J.D.\", \"decision_date\": \"2013-03-08\", \"docket_number\": \"Nos. TUL-CV-AP-2012-0446, TUL-CV-YI-2011-0041\", \"first_page\": 136, \"last_page\": 142, \"citations\": \"11 Am. Tribal Law 136\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Tulalip Tribal Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: JANE M. SMITH, Chief Justice; DOUGLAS NASH, Justice; JOHN C. SLEDD, Justice.\", \"parties\": \"In re the welfare of J.D., beda?chelh, Petitioner and Appellant, C.W., Mother, Respondent, H.D., Father, Respondent, P.C., Intervener, and M.M., Intervener.\", \"head_matter\": \"In re the welfare of J.D., beda?chelh, Petitioner and Appellant, C.W., Mother, Respondent, H.D., Father, Respondent, P.C., Intervener, and M.M., Intervener.\\nNos. TUL-CV-AP-2012-0446, TUL-CV-YI-2011-0041.\\nTulalip Tribal Court of Appeals.\\nMarch 8, 2013.\\nAnthony Jones, Tulalip Office of Reservation Attorney, for beda?ehelh.\\nChristina Parker, Tulalip Office of Civil Legal Aid, for J.D.\\nChorisia Folkman, Tulalip Office of Civil Legal Aid, for C.W. (oral argument only).\\nP.C., pro se (oral argument only).\\nBefore: JANE M. SMITH, Chief Justice; DOUGLAS NASH, Justice; JOHN C. SLEDD, Justice.\", \"word_count\": \"2727\", \"char_count\": \"16616\", \"text\": \"OPINION and ORDER AFFIRMING APPEAL FOR LIMITED REMAND\\nPER CURIAM:\\nThis matter comes before the Court of Appeals (Court) pursuant to Oral Argument Hearing on December 6, 2012. Appellant alleges that the Juvenile Court erred by ordering placement of a minor child with her grandmother that was based on evidence not seen by the parties and against the recommendations of beda?ehelh. This Court reviewed the record and affirms the appeal. The Court orders a limited remand.\\nBACKGROUND\\nThe facts below are not at issue. J.D. is a minor who has a troublesome family history, a record of inappropriate and dangerous conduct, and a history of unsuccessful placements. She was adjudicated as a youth in need of care in an April 5, 2011 order, and was placed in the temporary legal custody of beda?chelh, and remains so. A January 26 report by beda?chelh for a February 9, 2012 status hearing indicates, among other things, that J.D. resided with P.C., her paternal grandmother, for approximately nine years, was returned to the care of her mother in January 2010, was choked by her father in the summer of 2010, was returned to the care of P.C. in November 2010, and ran away to live with her mother in January 2011. J.D. has a history of alcohol and marijuana abuse, sex with older men, running away, and at least two reported attempts at suicide. She has been in a number of foster homes and temporary placements over the past two years. A declaration by J.D.'s older sister claims that J.D.'s mother has chronic drug and alcohol problems and has been in treatment fourteen times. A beda?chelh report to the court on November 11, 2011 for a December 8, 2011 status hearing indicates that there is a restraining order against the father and that J.D. had indicated \\\"to her foster mother that her paternal grandmother stated she is willing to have the youth back in her home, however the grandmother is unwilling to have beda?ehelh in the home because the father lives in the home with the paternal grandmother.\\\"\\nJ.D. was put into a temporary placement but was subsequently removed because she was not following the rules of the placement. P.C. filed for intervention, which was granted, and then requested that J.D. be placed with her. All the parties were in general agreement that placement with P.C. was appropriate as J.D. had been placed with P.C. for nine years prior to the latest incident and had done well. The only issue with the placement was that P.C. refused to comply with beda?chelh's request for a background check and home assessment. A hearing on P.C.'s motion for intervention was held on January 5, 2012. P.C. objected to being subjected to background checks by beda?ehelh based on three general alternative arguments: (1) that she has already been subjected to extensive background checks due to her federal employment and service in another Tulalip Tribal program, (2) that she should not have to \\\"jump through hoops for someone else's (i.e. J.D.'s) behavior,\\\" and (3) her impression that beda?chelh routinely fails to protect confidential information. In its written order following the January 5 hearing, the court reserved ruling on the motion to intervene and denied visitation until P.C. provided information to the court that visits between J.D. and P.C. would be appropriate. That order states \\\"any information filed by [P.C.] shall be sealed and may not be released without a court order.\\\"\\nA second hearing on the motion to intervene was held on February 9, 2012. During this hearing, the judge referenced documents submitted to the court by P.C. which were not provided to other parties, and the judge allowed inspection by the parties but did not provide or allow copies to be made. Counsel for beda?chelh noted that the documents submitted by P.C. were at least two years old and one document was five years old. In the course of the hearing, the judge stated, \\\"As far as the, uh, amount of information as far as whether [P.C.] is someone that is appropriate, I not only read the material here, but believe it or not, I have other sources, you know, and I checked to, and, make sure [P.C.] is going to be OK so as a result I found that's enough.\\\" The court then granted P.C.'s motion to intervene and granted her visitation rights.\\nOn May 29, 2012, P.C. filed a motion requesting that J.D. be placed with her. The motion is supported by an \\\"affidavit\\\" which is actually an unsworn, unsigned statement by P.C. The statement explains that P.C. objects to being subjected to background and drug tests by beda?chelh because, she alleged, the mere process of conducting such checks could jeopardize her federal security clearance. She asserted that background checks performed for her federal employment and participation in other Tulalip Tribal programs should suffice. She also asserted that beda?chelh policy regarding background checks and drug tests has never b'een \\\"vetted through\\\" the Tulalip General Council or \\\"approved\\\" by the Board of Directors, and therefore they are \\\"not applicable until the Board of Directors has passed it via resolution and the ordinance amended accordingly.\\\" Beda?ehelh opposed the motion based upon P.C.'s refusal to cooperate with beda?ehelh in performing a criminal background check, child protective service history check, and drug testing. The court found P.C.'s reasons for not cooperating with beda?chelh \\\"reasonable.\\\" August 2, 2012, Findings of Fact, Conclusions of Law, Opinion and Order, Finding of Fact, p. 11.\\nOn July 19, 2012, P.C. tiled a toxicology report and a background check for herself directly with the court. Both reports were negative in all respects. Although no written motion was filed requesting that these documents be sealed, and no written order was filed doing so, it appears from the August 2, 2012 order of the court that these documents were withheld from beda?chelh and the other parties. The latter order also directed that some documents be made available for viewing by beda?chelh's counsel at an August 16 review hearing. While the trial court's order of August 2 specifically references the documents filed by P.C. on July 19, it also more broadly references \\\"documents filed by [P.C.] under seal.\\\" Similarly, the court's August 2 Findings of Fact, Conclusions of Law, Opinion and Order broadly refers to \\\"certain documents\\\" filed by P.C. \\\"relating to her fitness\\\" that are \\\"sealed and confidential and have not been seen by anyone other than the judge,\\\" and that \\\"the court relied on these documents in placing J.D.\\\" with P.C. It is unclear if the \\\"sealed\\\" documents referenced in the court's order are limited to the toxicology report and background check filed by P.C. on July 19, or if they include other documents. It is also unclear from the record whether beda?ehelh was permitted, at or after the August 16 hearing, to review all the documents relied upon by the Court in its placement order.\\nOn August 2, 2012, the court issued its Findings of Faet, Conclusions of Law, Opinion and Order overruling the objections of beda?chelh and placing J.D. with P.C., conditioned on P.C. permitting a safety inspection of her home. On August 16, 2012, the court found that the safety check had been made and ordered J.D. placed with P.C. beda?chelh timely filed this appeal on August 22, 2012. The Notice of Appeal indicates that as of August 22, 2012, certain documents filed with the court remain under seal and had not been provided to beda?chelh.\\nJURISDICTION\\nThis Court has jurisdiction over this matter pursuant to Tulalip Tribal Law and Order Code section 2.20.020.\\nSTANDARD OF REVIEW\\nThis Court is directed to review findings of fact under a clearly erroneous standard, TTC 2.20.090(1), and review conclusions of law by the de novo standard, TTC 2.20.090(4).\\nANALYSIS\\n1. Did the Juvenile Court violate beda?chelh's statutory right to discover, offer, and inspect evidence by relying on unspecified, ex parte judicial communications and withholding evidence 'provided to the Court in support of Intervener P.C.'s motion for placement?\\nUnder Tulalip Tribal Code, TTC 4.05.100, all parties to a proceeding under Chapter 4.05 shall have \\\"[t]he opportunity to discover, offer, and inspect evidence.\\\" The Code also imposes the obligation on all parties to disclose to other parties certain material including statements by any proposed witness or agent and results of any physical or mental examination. TTC \\u00a7 4.05.340(2). The obligation to disclose is an ongoing obligation and if a party finds, either before or during the hearing, additional material or information that is subject to disclosure it shall be promptly disclosed. TTC 4,05.340(2)(b).\\nIn the instant case, the paternal grandmother submitted background documentation which she did not want beda?chelh to have access to as she was concerned about privacy violations. beda?chelh objected to the acceptance of those documents, but was overruled. The judge did allow beda?chelh a brief time to inspect some documents, but beda'chelh was not allowed to copy them for verification, and it appears likely from the record that the court did rely upon documents, information or other evidence that was never made known to the parties or was made known only after a decision was made.\\nThis withholding of documents from beda?ehelh is in clear violation of TTC 4.05.100. beda?chelh is the entity designated by the Tulalip Tribes to independently investigate and substantiate evidence that would assist the court in making a reasoned and knowledgeable decision in the placement of minors who have come before the court. beda?chelh staff are the technical \\\"experts\\\" in juvenile matters. While the court has the discretion to not always follow the recommendations of beda?chelh, it must allow beda?chelh the opportunity to independently look at the evidence, investigate the authenticity of the evidence, and make recommendations to the court based on its findings and conclusions. This is the job of beda?chelh staff\\u2014-they are trained to spot falsehoods, and must make day-to-day decisions on the best interests of these children.\\nThere is no doubt that the Juvenile Court has the right to seal or otherwise protect documents that are in evidence in a case before it, including, for good cause, sealing or otherwise restricting disclosure of documents in a youth in need of care case. TTC 4.05.340(2)(c)(iv). The Court below made no finding of good cause. Moreover, the power to protect sensitive documents does not allow withholding evidence from the parties that is relied upon by the court in reaching its decision. As this Court recently stated,\\nvarious provisions of [the Tulalip Law and Order Code] addressing protective orders and discovery allow us to infer certain minimum standards applicable to the court's presumed discretion to seal and unseal court files. The protective order must be based on good cause and must be designed to prevent irreparable harm to an identifiable person or persons. The sealing must be justified by compelling privacy or safety concerns that outweigh the public interest in access to the court record. The protective order must also not unfairly limit the ability of a party or other interested persons to pursue their rights in another forum. The protective order must promote the interests of justice of those seeking access to the protected information as well as those intended to be protected by the order.\\nBradley v. The Tulalip Tribes, 10 NICS App. -, 10 Am. Tribal Law 283 (Tulalip Tribal Ct.App.2012). The withholding of documents by the Juvenile Court in this case did not meet these standards.\\n2. Did the Juvenile Court err in concluding that physical ctistody of a Youth In Need of Care may be ordered without Appellant's completion of its standard background investigation?\\nTTC 4.05.350(9) sets forth placement requirements that beda?chelh is mandated to follow when it places minor children with temporary physical custodians. The provision requires that beda?chelh follow certain preferences and priorities for out-of-home placements, \\\"considering foremost the best interests of the child and the child's health, safety, and welfare.\\\" TTC 4.05.350(9)(a). beda?ehelh argues that the Youth Court's placement order, made despite P.C.'s refusal to complete beda?chelh's standard background check, violated TTC 4.05.350(9) \\\"by denying beda?chelh a meaningful opportunity to conduct an investigation and provide recommendations.\\\" Notice of Appeal, p. 5.\\nHere, it was the Court, not beda?chelh, that was making a placement decision, so the applicability of this Code provision might be doubted. In addition, it might be argued that beda?chelh did make a recommendation\\u2014it urged the Court not to grant the placement request. But we need not reach those issues. The Court acknowledged beda?chelh's statutory duty \\\"to set out recommendations for placement,\\\" in its August 2, 2012 order. The Court concluded mat beda?ehelh's recommendation was unnecessary for the court to place a child though. That conclusion is incorrect. Because we cannot say that this incorrect legal conclusion had no influence on the Youth Court's decision, the placement decision must be reversed.\\n3. Did the Juvenile Court violate the Youth In Need of Care's due process right to reasonable protection, from harm, by ordering placement based on ex parte judicial communication and sealed, self-reported information from a proposed physical custodian, thereby preventing beda?chelh from making meaningful recommendations to the court?\\nState and federal courts have held that children in foster care have constitutional substantive due process rights that governments must respect in making decisions about care and custody of foster children. Braam ex rel. Braam v. State, 150 Wash.2d 689, 698-700, 81 P.3d 851 (2003). Relying on the weight of authority among state and federal courts, the Washington State Supreme Court held that \\\"foster children have a constitutional substantive due process right to be free from unreasonable risks of harm and a right to reasonable safety.\\\" Id. at 698, 81 P.3d 851. Appellant asks that we recognize a similar due process right under the Indian Civil Rights Act, and that we hold that the Youth Court provided insufficient process because beda?chelh was unable to complete the investigation it deemed appropriate.\\nIt is difficult to imagine a right more fundamental or more essential to liberty than the right of a child to a safe home. Nevertheless, we decline the invitation to decide this case on novel due process grounds. Existing Code provisions are sufficient to resolve the appeal.\\nCONCLUSION\\nBased upon the foregoing, we reverse the permanent placement of J.D. with P.C. and hold that before that placement can be confirmed, the court must provide to the parties all of the documents, evidence and information, including any information received ex parte along with the source of that information, which it relied upon in reaching its decision. If there is a valid reason to limit the distribution of those documents or information, the court can shape a reasonable order to do so consistent with this opinion. Nothing in this opinion is intended to require that J.D. cannot remain in the temporary placement with P.C. pending further action by the Youth Court.\\nIT IS SO ORDERED.\\nConcur: JANE M. SMITH, Chief Justice, and DOUGLAS NASH and JOHN C. SLEDD, Justices.\\n. TTC \\u00a7 4.05.020, Definitions. (35)\\\"Party'' means \\\"the parent, child, or tribe to whom certain rights accrue, including, but not limited to, with certain restrictions and limitations: the right to be notified of proceedings; to retain counsel or, in some cases, to secure Court-appointed counsel or Court-approved spokesperson; to appear and present evidence; to call, examine, and cross-examine witnesses; the unlimited or restricted right to discovery and the inspection of the records; and the right to request a hearing or appeal a final order.\\\" (Emphasis added)\\n. Until officially published, viewable at http:// www.nics.ws/opimons/opinions.htm.\"}"

tribal/7339686.json

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+"{\"id\": \"7339686\", \"name\": \"SWINOMISH INDIAN TRIBAL COMMUNITY, Plaintiff, v. Alford Vern McLEOD, Defendant\", \"name_abbreviation\": \"Swinomish Indian Tribal Community v. McLeod\", \"decision_date\": \"2012-09-13\", \"docket_number\": \"No. CRCO-2011-0041\", \"first_page\": 187, \"last_page\": 190, \"citations\": \"11 Am. Tribal Law 187\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Swinomish Tribal Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SWINOMISH INDIAN TRIBAL COMMUNITY, Plaintiff, v. Alford Vern McLEOD, Defendant.\", \"head_matter\": \"SWINOMISH INDIAN TRIBAL COMMUNITY, Plaintiff, v. Alford Vern McLEOD, Defendant.\\nNo. CRCO-2011-0041.\\nSwinomish Tribal Court.\\nSept. 13, 2012.\", \"word_count\": \"1362\", \"char_count\": \"8395\", \"text\": \"MEMORANDUM OPINION\\nMARK W. POULEY, Chief Judge.\\nTHIS MATTER came on before the Court on Defendant's MOTION TO DISMISS. BASED UPON the case record to date, and argument of the parties, the Court orally DENIED the motion. This opinion is consistent with and memorializes that ruling.\\nDefendant is charged with Possession of a Controlled Substance and Possession of Drug Paraphernalia. It is alleged that on February 7, 2011 Defendant was in possession of marijuana and a glass pipe that is used to ingest or inhale a controlled substance. Defendant argues that the charges should be dismissed because possession of marijuana should be excluded from prosecution pursuant to Washington state statute RCW 69.51 which he asserts permits his use of the drug because it is recommended by a health care provider. The court rejects this argument and DENIES the motion to dismiss.\\nThe Defendant is charged with violating STC 4-10.020(A)(3) illegal possession of marijuana. The relevant portion of the Swinomish statute reads as follows:\\n4-10.020 Controlled Substances That Are Illegal Without a Valid Prescription.\\n(A) Any substance that contains any quantity of a chemical that falls within the following categories is illegal to possess without a valid prescription:\\n(3) Marijuana;\\n(B) If there is any doubt as to whether a substance is illegal or not, the court shall be guided by the provisions of RCW 69.50, Schedule I through V, attached hereto.\\nThe definitions section of the Swinomish statute states:\\n4-10.010 Definitions.\\nAll terms used in this Chapter shall be given their commonly accepted meaning or as defined in Section 4-01.040. If there is any doubt as to the meaning of a term, the court shall be guided by the definitions contained in RCW 69.50, et seq., as currently in effect (copy attached) or as later amended. Nothing in this Chapter shall be construed to make illegal an act that is legal under the Uniform Controlled Substances Act,\\nSTC 4.10 et. seq. does not incorporate by reference RCW 69.50. The Swinomish Code merely states that \\\"if there is any doubt about the meaning of a term\\\" and \\\"any doubt as to whether a substance is illegal or not\\\" the tribal court may turn to RCW 69.50 for guidance. There is no doubt or confusion that possession of marijuana is illegal pursuant to the Swinomish Code and RCW 69.50. The Swinomish statute unambiguously makes possession of marijuana illegal so there is no need for this court to look to RCW 69.50 for any guidance.\\nThe Defendant emphasizes the language in 4-10.020 to argue it is not illegal to possess marijuana if one has a \\\"valid prescription.\\\" While not argued by the Defendant, the Court notes that STC 4-10.010 states \\\"[njothing in this Chapter shall be construed to make illegal an act that is legal under the Uniform Controlled Substances Act.\\\" Citing RCW 69.51A, in which Washington has decided that a person may not be prosecuted for the \\\"medical use\\\" of marijuana, the Defendant argues his use should not be prosecuted by the Swinomish Tribe. The Defendant argues that possession of a written authorization for medical use of marijuana from a medical provider that meets the standards set forth under RCW 69.51A is the equivalent of a \\\"valid prescription\\\" in STC 4-10.020. The court rejects this argument.\\nRCW 69.51A does not legalize medical use of marijuana, but creates a statutory defense in the prosecution for possession of a controlled substance. State v. Fry, 168 Wash.2d 1, 228 P.3d 1 (2010) Similarly, the act does not recognize a medical provider's authorization for such use as a \\\"valid prescription.\\\" A medical provider's authorization merely validates a patient's qualifications for medical use of marijuana pursuant to the act. Marijuana remains a controlled substance and may not be prescribed under Federal law. It therefore remains illegal and a medical \\\"authorization for use\\\" is not a \\\"valid prescription\\\" that renders possession of marijuana legal. RCW 69.51A creates a statutory defense to prosecution and there is no equivalent language in the Swinomish code creating a similar defense.\\nAs stated earlier the mentions of RCW 69.50 in STC 4-10 are not the equivalent of an express incorporation by reference. Still RCW 69.51A would not apply in this case even if RCW 69.50 were expressly incorporated in the tribal code. An independent sovereign may fully incorporate by reference the laws of another sovereign including an incorporation of future amendments to that law. See, Wiley v. Colville Confederated Tribes, 2 CCAR 60 (1995). Accepted canons of statutory construction require the court to find, however, express statutory language setting forth the incorporation. In this case, the Swinomish Code does not expressly incorporate by reference RCW 69.50 and it surely does not incorporate RCW 69.51A since it never mentions that section. Neither is RCW 69.51A an amendment to RCW 69.50, but merely an additional law that creates a statutory defense or exception to enforcement of RCW 69.50. This court can find no legal basis to conclude that where a legislature has expressly incorporated by reference a particular statutory provision, a court may them imply that the legislature also intended to incorporate by reference subsequently passed legislation that merely references the enforcement of the prior law. Even if the Swinomish Tribal Code incorporated by reference RCW 69.50, it did not incorporate RCW 69.51A and the court will not do so by implication.\\nThere is nothing in the Swinomish Tribal Code that suggests the Senate intends this Court to implicitly incorporate a statutory defense created by the Washington State Legislature. STC 4-10 et seq. was passed in it's original form in 1991. The law was included in the tribe's codification project and passed in its existing form in 2003. [History] Ord. 184 (9/30/03); Ord. 75 U/2/91) On the other hand, RCW 69.51A was adopted by the state in 1999 and was subsequently amended. 2010 c.2S4 \\u00a7 2; 2007 c.371 \\u00a7 3; 1999 c.2 \\u00a7 6 (Initiative Measure No. 692, approved November 3, 1998). If the Swinomish Tribe intended to adopt this defense or amend STC 4-10 it had the opportunity to do so. In fact, the Senate codified this section without any reference to any affirmative defenses after Washington created the statutory defense contained in RCW 69.51A. This court will not apply a controversial statutory defense created by a foreign jurisdiction when the legislative body of this tribe has so far elected not to adopt a similar provision given the opportunity to do so.\\nThe court also rejects the Defendant's invitation to create an affirmative defense by court rule. Courts unquestionably have the authority to allow the assertion of affirmative defenses that are based on the development of case law. It is unnecessary to wait for the legislative body to statutorily create all defenses. That said, a court must be mindful of the priorities and values of the community that it serves and make rulings consistent with those values. This court is keenly aware of the high priority the Swinomish community has placed on combating drug abuse, including marijuana use. The Defendant did not present any argument or evidence that suggests there is anything in tribal law, history, custom or tradition that supports adoption of this defense in the Swi-nomish Court. If the community wishes to allow medical use of marijuana that is a topic for the community to discuss and for it's leaders to address. It is not for this court to dictate that the Swinomish Community should follow lock step with decisions made by the Washington state legislature.\\nFinding that STC 4-10.020 makes the use and possession of marijuana illegal, and that nothing in RCW 69.50 or 69.51A either legalizes or authorizes the use or possession of marijuana on the Swinomish Reservation, the court DENIES the Defendant's motion to dismiss. Dated this 13th day of September, 2012.\\n. The Defendant is also charged with violation of STC 4-11.030 for possessing drug paraphernalia. Presumably, the Defendant contends if his marijuana use is permissible, possession of paraphernalia to inhale marijuana is also permissible. Because the court rejects the first argument, it is unnecessary to further discuss the paraphernalia charge.\"}"

tribal/7339832.json

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+"{\"id\": \"7339832\", \"name\": \"M.J.C., Appellant, v. TULALIP TRIBES EARLY HEAD START, Appellee\", \"name_abbreviation\": \"M.J.C. v. Tulalip Tribes Early Head Start\", \"decision_date\": \"2013-06-20\", \"docket_number\": \"No. TUL-CV-AP-2013-0349; Employment Court No. TUL-CVET-2013-0167\", \"first_page\": 229, \"last_page\": 230, \"citations\": \"11 Am. Tribal Law 229\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Tulalip Tribal Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"M.J.C., Appellant, v. TULALIP TRIBES EARLY HEAD START, Appellee.\", \"head_matter\": \"M.J.C., Appellant, v. TULALIP TRIBES EARLY HEAD START, Appellee.\\nNo. TUL-CV-AP-2013-0349.\\nEmployment Court No. TUL-CVET-2013-0167.\\nTulalip Tribal Court of Appeals.\\nJune 20, 2013.\", \"word_count\": \"778\", \"char_count\": \"4787\", \"text\": \"ORDER DISMISSING APPEAL\\nJANE M. SMITH, Chief Justice.\\nThis matter comes before the Court of Appeals pursuant to the Notice of Appeal filed by M.J.C. on June 11, 2013. M.J.C. seeks to appeal the Findings, Opinion and Order Affirming Disciplinary Action (hereinafter \\\"Order\\\") issued by the Employment Court on May 28, 2013. The Deputy Court Clerk has certified that the Employment Court Order was served on M.J.C. on May 28, 2013 in compliance with TTC 9.10.950(H).\\nThe Tulalip Tribes' Constitution, Article YJ, Section l.K grants the Tulalip Board of Directors the power to define the duties and powers of the Tribal Court and this Court of Appeals. Appeal deadlines duly enacted by a legislative body with authority over court rales and procedures are jurisdictional in nature. Browder v. Director, Dept. of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Dodge v. Hoopa Valley Gaming Commission, 7 NICS App. 51, 56 (Hoopa Valley Tribal Ct.App.2005). The Board of Directors has established that an appeal of a Tulalip Employment Court decision must be filed \\\"within 10 calendar days from the date of final decision of the Employment Court.\\\" TTC 9.10.950(12). This Court therefore has no jurisdiction, absent a defect in service of the Employment Court decision, to hear an appeal of an Employment Court filed more than ten calendar days from the date of the final decision. Because M.J.C.'s Notice of Appeal in this case was filed fourteen days from the date of final decision of the Employment Court, this Court has no jurisdiction to hear the appeal. Accordingly, this appeal is hereby dismissed.\\nIt is so ordered.\\n. In her appeal to the Employment Court, M.J.C. designated the appellee to be the Tulal-ip Tribes. See Notice of Appeal and Request for Appeal Hearing, April 1, 2013. For unknown reasons, the Employment Court appears to have designated the appellee as Tu-lalip Tribes Human Resources. See Notice of Employment Appeal Hearing, April 4, 2013. The disciplinary action being appealed by M.J.C. was issued by the Tulalip Tribes Early Head Start program. See Employee Suspension Notice, 3/18/13. Therefore, the appellee is actually the Tulalip Tribes Early Head Start program. This distinction and the proper designation of parties is significant because, among other things, of this Court's prior rulings regarding Tribal bar membership requirements for persons representing Tulalip Tribal entities. Regardless of how a plaintiff or employee-appellant, particularly one appearing pro se, designates the parties, it is incumbent upon the Tribe and the Tribal entities involved to either correct or challenge an improper designation of the parties. It is also incumbent upon court staff to take care in preparing the captions of court orders and pleadings so as to not identify an entity that is not a proper party to the proceedings. This Court notes that, to its credit, the Office of Reservation Attorney, in the April 30, 2013 Ex Parte Motion for Continuance it filed in this matter, designated the Tulalip Tribes, not the Human Resources Department, as the Respondent and correctly noted that the Early Head Start supervisor was the \\\"department representative,\\\" and that Human Resources staff would appear as a \\\"witness.\\\"\\n.A modified version of the Employment Court order was re-filed in the Court records on May 30, 2013. The sole modification of the order was that the full names of the employees were deleted and the employees were identified only by their initials, in an apparent effort to comply with TTC 9.10.950(13). This Court notes that TTC 9.10.950 requires only that the \\\"employee appellant,\\\" not all the employees named in an order or opinion, be identified solely by their initials.\\n. The Deputy Court Clerk has informed the Court of Appeals that the modified version of the Employment Court Order filed on May 30, 2013 was not served on Appellant. Because the modifications to the Order were purely ministerial in nature, this Court holds that the filing of the modified version in no way affected the trigger of the appeal deadline. Service of the May 28 Version of the Order provided M.J.C. with actual notice that the Employment Court had affirmed the disciplinary action against M.J.C., as well as the factual findings, legal conclusions, and full text of the Court's Order.\\n. Even if the Employment Court had served M.J.C. with the modified version of the Employment Court's Order and this Court based the appeal filing deadline on the May 30 date of filing of that version, M.J.C.'s Notice of Appeal to this Court would still be untimely.\"}"

tribal/7339850.json

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+"{\"id\": \"7339850\", \"name\": \"The TULALIP TRIBES, Petitioner and Appellee, v. 2008 WHITE FORD ECONOLINE VAN, (VIN# 1FBNE31L08DA70088), Respondent in rem. Alfred Luongo, Registered Owner and Appellant\", \"name_abbreviation\": \"Tulalip Tribes v. 2008 White Ford Econoline Van\", \"decision_date\": \"2013-08-14\", \"docket_number\": \"No. TUL-CV-AP-2012-0404\", \"first_page\": 232, \"last_page\": 236, \"citations\": \"11 Am. Tribal Law 232\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Tulalip Tribal Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"For the panel: JANE M. SMITH, Chief Justice, and DOUGLAS NASH and ELIZABETH P.M. NASON, Justices.\", \"parties\": \"The TULALIP TRIBES, Petitioner and Appellee, v. 2008 WHITE FORD ECONOLINE VAN, (VIN# 1FBNE31L08DA70088), Respondent in rem. Alfred Luongo, Registered Owner and Appellant.\", \"head_matter\": \"The TULALIP TRIBES, Petitioner and Appellee, v. 2008 WHITE FORD ECONOLINE VAN, (VIN# 1FBNE31L08DA70088), Respondent in rem. Alfred Luongo, Registered Owner and Appellant.\\nNo. TUL-CV-AP-2012-0404.\\nTulalip Tribal Court of Appeals.\\nAug. 14, 2013.\\nFor the panel: JANE M. SMITH, Chief Justice, and DOUGLAS NASH and ELIZABETH P.M. NASON, Justices.\", \"word_count\": \"2189\", \"char_count\": \"13266\", \"text\": \"ORDER DENYING MOTION FOR RECONSIDERATION\\nJANE M. SMITH, Chief Justice.\\nOn June 14, 2013, the Tulalip Tribes filed a Motion for Reconsideration and Rehearing, asking this Court to reconsider our Opinion in this proceeding filed on May 31, 2013. Because the Tribes' motion was filed within ten days of service of the Opinion on the Tribes as required by Tu-lalip Tribal Code (TTC) 2.20.110(2), we accept it for review.\\nOn July 5, newly retained counsel for Alfred Luongo, the registered owner of the vehicle subject to potential forfeiture in this proceeding, filed a Response to the Tribes' Motion for Reconsideration and Rehearing. This was well beyond the ten day deadline set forth in TTC 2.20.110(3) for filing a response to the motion. However, due to a clerical error, we will excuse the late filing. The Response also was not accompanied by proof of service, as also required by TTC 2.20.110(3). Because the court clerk served the Response on the Tribes three days after it was filed, we will excuse the failure to serve.\\nThe Tribes' Motion for Reconsideration presents three arguments. First, the Tribes contend this Court erred by foregoing oral argument and orally dismissing the case, and then reversing that ruling sua sponte to reach the merits. The Tribes argue that this constituted error because the Tribal Code authorizes dismissal when a party fails to comply with a court order. The Tribes further contend that our decision to forego oral argument constitutes grounds for rehearing because the Tribes would have used oral argument to \\\"expand\\\" on issues raised in the Tribes' brief.\\nSecond, the Tribes contend the Court erred in relying on the U.S. Supreme Court decision in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993), because that decision rests on an \\\"originalist interpretation\\\" of the Eight Amendment that should not be applied in Indian Country.\\nThird, the Tribes asks the Court to reconsider our Opinion because the Tribes detrimentally relied on the Court's oral ruling dismissing the case in that the Tribes invested approximately two thousand dollars in converting the van to use by the Tulalip Police Department prior to the issuance of our written decision remanding to the trial court for a determination of whether the forfeiture constituted an excessive fine.\\nANALYSIS\\n1. Reversal of the Oral Ruling to Dismiss the Appeal\\nWe believe it is clear from the rules and cases cited in our Opinion that the Court had the discretion to rescind its oral ruling of dismissal, waive oral argument, and proceed to decide the merits based on the briefs. The Tribes' motion acknowledges that the rule providing for oral argument is \\\"permissive,\\\" (i.e., appellants are not required to present oral argument). The Tribes argue that the Court had the discretionary authority under TTC 2.20.050 to dismiss the appeal because Appellant did not comply with the Court's scheduling order, which included boilerplate language commonly used by this Court that the parties \\\"shall\\\" appear for oral argument. The fact that we ultimately chose to not exercise our discretion to dismiss does not constitute grounds for reconsideration. The Tribes also argue our Opinion and a strict reading of the appellate rules \\\"creates an issue whether an Appellee would ever be able to present oral argument if the Appellant decides not to appear\\\" for oral argument. Given the explicit grant of authority in TTC 2.20.050 for this Court to \\\"make other rulings as appropriate\\\" when a party fails to comply with the appellate rules, this argument appears to have little merit, and in any event the issue is not before the Court in this appeal.\\nIn regards to the \\\"expanded\\\" argument the Tribes would have offered at oral argument, the Tribes' motion cites the value of the van, the marijuana, the grow operation at the appellant's residence, and the cost of enforcement for the sting and arrest. However, none of these facts/issues are documented in the record or discussed in the Tribes' brief. Thus, the entirety of the Tribes' \\\"expanded\\\" oral argument would have required reliance on facts not in the record and issues not presented in the Tribes' brief. TTC 2.20.080 expressly prohibits parties from presenting arguments orally that have not been properly raised in a written brief or motion. These extra-record, unbriefed facts and issues are precisely the kind of things that would be proper to submit to the trial court on the remand to determine whether the forfeiture constituted an excessive fine, and the trial court is better suited than the Court of Appeals to take evidence and enter factual findings and conclusions of law in regard to these facts and arguments.\\nII. Reliance on United States Supreme Court Decisions\\nIt is ironic that the Tribes, having cited Austin, supra, in support of their position in their brief on the merits, now argue in their Motion for Reconsideration that the Court should not follow Austin. The Tribes' opening brief also relied on the U.S. Supreme Court decision in Browning-Ferris Indus. Of Vt. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989), but now, in their Motion for Reconsideration, the Tribes argue that Austin is flawed in part because it followed Browning-Ferns. It seems to us that, having cited both of these cases approvingly in their brief on the merits, the Tribes should be estopped from now arguing that these cases are somehow inapplicable. In a more substantive vein, except for a broad assertion that this case should be treated differently because it arises out of Indian country and tribes lack criminal jurisdiction over non-Indians, the Tribes' motion does not claim that Austin was decided incorrectly or that the Tulalip Court of Appeals misapplied Austin. The Tribes' motion also does not explain why or how the Court should ignore Austin in light of the provisions of the Tulalip code and constitution cited in the Court's Opinion that federal law may be utilized as a guide and that the exercise of Tulalip home rule is to be not inconsistent with federal law.\\nThe Tribes now also cite the U.S. Supreme Court decision in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), without explaining or offering any argument as to why the Tribes should be allowed to pick and choose which U.S. court decisions the Court of Appeals must follow and which it should ignore. The Tribes also make the incorrect claim in their motion for reconsideration that the Tribes' forfeiture statute does not require a \\\"finding of scienter.\\\" The Tulalip statute provides an innocent owner defense, and expressly requires that the petitioner must prove all the allegations in the petition by a preponderance of the evidence, including \\\"that the property was used with the knowledge or consent of the owner.\\\" TTC 2.15.010(l)(e)(ii). Thus, a finding of scienter is required for a civil forfeiture under TTC 2.15.010(l)(e). The scienter requirement is one of the key issues the Austin Court focused on in determining whether a civil forfeiture statute would be considered punitive and therefore subject to an excessive fines analysis.\\nLastly, even the citation to the Hudson decision in the Tribes' Motion for Reconsideration supports, rather than refutes, our Opinion in this case. The citation from Hudson (which is a double jeopardy case, not an excessive fines case) states that a court should first look at whether the legislature intended a penalty to be civil or criminal in nature, but then the Court should \\\"inquire! ] further whether the statutory scheme was so punitive either in purpose or effect as to transform what was clearly intended as a civil remedy into a criminal penalty.\\\" This is exactly what the Court of Appeals has done. And it is important to bear in mind for purposes of the excessive fines analysis (as opposed to the double jeopardy analysis in Hudson) that the inquiry is whether the fine is \\\"punitive,\\\" not whether a fine transforms a civil statute into a criminal one. In other words, the excessive fines doctrine can be applied to the Tulalip civil forfeiture statute without transforming the civil remedy into a criminal penalty that would de facto subject a non-Indian to a tribal criminal proceeding. One of the key holdings of Austin is that, for purposes of the excessive fines clause, it is of no import whether a statute is civil or criminal. And even in Hudson, the holding that double jeopardy did not apply hinged on the fact that the Tenth Circuit Court of Appeals had conducted an excessive fines analysis and determined that \\\"the actual fines imposed by the Government were not so grossly disproportional to the proven damages to the Government as to render the sanctions 'punishment' for double jeopardy purposes.\\\" Hudson, 522 U.S. 93, at 98, 118 S.Ct. 488. Hudson expressly notes that \\\"punishment\\\" can be civil or criminal in nature. Id. at 99, 118 S.Ct. 488. Indeed, Hudson, now cited by the Tribes in their Motion for Reconsideration, cites Austin with approval. Id. at 103, 118 S.Ct. 488. Hudson affirms that a civil penalty that is not so severe as to convert the statute into a criminal one for double jeopardy purposes is nonetheless subject to an excessive fines analysis under the Eight Amendment. Thus, Hudson provides further support for our holding that the excessive fines clause of the Indian Civil Rights Act applies to the Tribes' civil forfeiture statute.\\nAs the United States Second Circuit Court of Appeals has noted, \\\"... ordinarily the inquiry into whether a sanction is 'criminal' or 'civil' is neither simple or mechanical.... \\\" Poodry v. Tonawanda Band, 85 F.3d 874, 889. Pursuant to Austin and Hudson, the possibility that a civil statute imposes remedial sanctions that also have punitive aspects does not transform the civil statute into a criminal one, but the excessive fines clause applies nonetheless.\\nIII. Detrimental Reliance\\nWhether the Tribes prematurely converted the van to their own use without waiting to receive a signed written order from the Court of Appeals is no basis for reconsidering the Court's Opinion. As argued by the appellant, post-seizure expenditures of Tribal funds that are unrelated to the forfeiture itself are simply not relevant, and ruling for the Tribes on this point would create an incentive for the Tribes to expend funds converting seized property to its own use while court proceedings are still pending. If there was some urgency on the part of the Tribes to make this conversion, the Tribes should have filed a motion with the Court to expedite the issuance of a written opinion confirming its oral ruling. The Tribes also could have formally requested a status report from this Court once ninety days had passed from the date of oral argument without a written opinion. Moreover, it could well be that the trial court determines that the forfeiture of the van was not an excessive fine, in which case the Tribes would suffer no harm from their own mistake in proceeding to convert the van without a written order or opinion.\\nCONCLUSION\\nThe Tribes' Motion for Reconsideration and Rehearing is denied. Pursuant to our Opinion of May 31, 2013, this matter is remanded to the trial court for a determination of whether the forfeiture in this ease violates the excessive fines clause of ICRA.\\nIT IS SO ORDERED.\\n. The Tulalip Court clerk's office, possibly as a result of implementing new case management software, assigned the appellate case number to the proceedings before the trial court on remand. Mr. Luongo's attorney then filed a motion for continuance in response to a notice of hearing issued by the trial court in response to the remand order (again, that notice bore the appellate case number). In other words, there were two proceedings which required a response from Mr. Luongo\\u2014the remand proceeding before the trial court and the reconsideration hearing before the Court of Appeals\\u2014but because the clerk assigned the same case number (the appellate case number) to both, Mr. Luongo's attorney was led to believe that he only needed to file one pleading, which was his motion for continuance of the trial court hearing. Mr. Luongo's Response was filed within ten days of his attorney being notified of this error.\\n. This Court is skeptical that the costs of an investigation of a potential marijuana growing operation at the appellant's house or other costs that go beyond those directly related to the forfeiture of the vehicle are relevant to the excessive fines analysis. However, the Tribes remain free to present this argument to the trial court on remand.\\n. The Tribes' argument that the Tulalip Courts should ignore federal court decisions that rely on an \\\"originalist interpretation\\\" of the United States Constitution is unpersuasive. Vast areas of federal common law ultimately rest on interpretations of how English and American law were understood historically.\"}"

tribal/7339967.json

@@ -0,0 +1 @@
+"{\"id\": \"7339967\", \"name\": \"FORT PECK HOUSING AUTHORITY, Plaintiff/Appellant, v. Johnna SPOTTED WOLF, Defendant/Appellee\", \"name_abbreviation\": \"Fort Peck Housing Authority v. Spotted Wolf\", \"decision_date\": \"2009-08-04\", \"docket_number\": \"No. 510\", \"first_page\": 242, \"last_page\": 242, \"citations\": \"11 Am. Tribal Law 242\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FORT PECK HOUSING AUTHORITY, Plaintiff/Appellant, v. Johnna SPOTTED WOLF, Defendant/Appellee.\", \"head_matter\": \"FORT PECK HOUSING AUTHORITY, Plaintiff/Appellant, v. Johnna SPOTTED WOLF, Defendant/Appellee.\\nNo. 510.\\nFort Peck Court of Appeals.\\nAug. 4, 2009.\\nLaFon Copenhaver, Lay Counselor, Wolf Point, MT; John Fredericks III, Esq., Fredericks Peebles & Morgan LLP, Louisville, CO, for the Fort Peck Housing Authority.\\nMary L. Zemyan, Esq., Wolf Point, MT, for Ms. Spotted Wolf.\", \"word_count\": \"213\", \"char_count\": \"1307\", \"text\": \"OPINION AND ORDER\\nOn April 29, 2009, Appellee Johnna Spotted Wolf filed a Motion to Dismiss the pending appeal in this matter as well as the underlying Complaint for Eviction. Appellee Spotted Wolf has vacated the premises at issue. On May 19, 2009, Appellant Fort Peck Housing Authority responded that it supported dismissal of the appeal on the grounds of mootness but opposed dismissal by the Court of Appeals of the underlying Complaint as beyond the authority of the Court of Appeals.\\nWe agree with Appellant. In this proceeding we have authority only to dismiss the appeal, as requested and to remand the matter to the Tribal Trial Court with instructions to vacate the Tribal Trial Court August 7, 2008 Order as moot. Any further proceedings at the Trial level are within that Court's authority.\\nTherefore, IT IS HEREBY ORDERED that this appeal is dismissed and the Tribal Trial Court is directed to vacate its August 7, 2008 Order.\"}"

tribal/7340224.json

@@ -0,0 +1 @@
+"{\"id\": \"7340224\", \"name\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. MALISSA COMES LAST, Defendant/Appellant\", \"name_abbreviation\": \"Fort Peck Tribes v. Malissa Comes Last\", \"decision_date\": \"2010-11-22\", \"docket_number\": \"No. 532\", \"first_page\": 267, \"last_page\": 267, \"citations\": \"11 Am. Tribal Law 267\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. MALISSA COMES LAST, Defendant/Appellant.\", \"head_matter\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. MALISSA COMES LAST, Defendant/Appellant.\\nNo. 532.\\nFort Peck Court of Appeals.\\nNov. 22, 2010.\", \"word_count\": \"65\", \"char_count\": \"420\", \"text\": \"ORDER DISMISSING APPEAL\\nA Notice of Appeal was timely filed herein. On March 26, 2010, the parties were ordered to file Briefs/Memoranda or Statements in support of their relative positions. Appellant did not file a Brief. Therefore,\\nIT IS HEREBY ORDERED, that the Appeal is Dismissed.\"}"

tribal/7340512.json

@@ -0,0 +1 @@
+"{\"id\": \"7340512\", \"name\": \"In the Matter of the ADOPTION OF R.A.M., a minor Indian Child of Fort Peck Tribes\", \"name_abbreviation\": \"In re the Adoption of R.A.M.\", \"decision_date\": \"2011-10-04\", \"docket_number\": \"No. 578\", \"first_page\": 283, \"last_page\": 284, \"citations\": \"11 Am. Tribal Law 283\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of the ADOPTION OF R.A.M., a minor Indian Child of Fort Peck Tribes.\", \"head_matter\": \"In the Matter of the ADOPTION OF R.A.M., a minor Indian Child of Fort Peck Tribes.\\nNo. 578.\\nFort Peck Court of Appeals.\\nOct. 4, 2011.\", \"word_count\": \"224\", \"char_count\": \"1313\", \"text\": \"ORDER DENYING PETITION FOR REVIEW\\nThis matter comes before the Court of Appeals on a Petition for Review brought by Riquelmer Aydin Martinez, Appellant, appearing pro se. The Appellant appealed an Order dated June 23, 2011, denying Appellant's request to vacate a June 17, 2009 Order of Adoption issued by the Court, Honorable Danna Runsabove presiding.\\nUpon review of the Court file, the Orders and Pleadings herein, this Court makes the following findings and Order:\\n1. The Trial Judge, in her Order affirming the original June 17, 2009 Order of Adoption, found no merit in the Appellant's Expediated Petition to set aside Order of Adoption.\\nThis Court will not set aside factual determinations of the Tribal Court if such determinations are supported by substantial evidence. Title II CCOJ Section 202.\\n2. The Court of Appeals shall review de novo all determinations of the Tribal Court on matters of law. Title II CCOJ Section 202. We find no error of law in the Court's Order.\\nBASED UPON THE FOREGOING FINDINGS AND GOOD CAUSE APPEARING:\\nIT IS NOW, THEREFORE, THE ORDER OF THIS COURT THAT:\\n1. The Petition for Review be denied.\\n2. The Court's judgment and order is affirmed.\"}"

tribal/7340749.json

@@ -0,0 +1 @@
+"{\"id\": \"7340749\", \"name\": \"Brady C. METCALF, Plaintiff, v. The COQUILLE INDIAN TRIBAL COUNCIL, Ken Tanner, Edward L. Metcalf, Thomas H. Younker, Toni Ann Brend, Judy Rocha, Sharon Parrish, Cassie Ross, The Coquille Indian Tribe Election Board, Jon Ivy, Julie Chouquette and Linda Robertson, Defendants\", \"name_abbreviation\": \"Metcalf v. Coquille Indian Tribal Council\", \"decision_date\": \"2009-06-18\", \"docket_number\": \"No. C08-06\", \"first_page\": 1, \"last_page\": 24, \"citations\": \"9 Am. Tribal Law 1\", \"volume\": \"9\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Coquille Indian Tribal Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-11T01:29:30.374552+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Brady C. METCALF, Plaintiff, v. The COQUILLE INDIAN TRIBAL COUNCIL, Ken Tanner, Edward L. Metcalf, Thomas H. Younker, Toni Ann Brend, Judy Rocha, Sharon Parrish, Cassie Ross, The Coquille Indian Tribe Election Board, Jon Ivy, Julie Chouquette and Linda Robertson, Defendants.\", \"head_matter\": \"Brady C. METCALF, Plaintiff, v. The COQUILLE INDIAN TRIBAL COUNCIL, Ken Tanner, Edward L. Metcalf, Thomas H. Younker, Toni Ann Brend, Judy Rocha, Sharon Parrish, Cassie Ross, The Coquille Indian Tribe Election Board, Jon Ivy, Julie Chouquette and Linda Robertson, Defendants.\\nNo. C08-06.\\nCoquille Indian Tribal Court.\\nJune 18, 2009.\\nSee also 9 Am. Tribal Law 25, 2009 WL 6346439.\", \"word_count\": \"10097\", \"char_count\": \"61843\", \"text\": \"ORDER DISMISSING COMPLAINT WITH PREJUDICE AND ALLOWING FILING OF NOTICE OF APPEAL FROM ELECTION BOARD DECISION\\nDON OWEN COSTELLO, Chief Judge.\\nThe court having found that it lacks subject matter jurisdiction over the claims set forth in plaintiffs complaint and that plaintiff cannot truthfully amend to allege jurisdiction over the claims; that plaintiff has submitted information to the court sufficient to preserve a right to appeal the October 29, 2008 decision of the Election Board denying plaintiffs challenge to the 2008 Tribal election; and that it has jurisdiction to consider the appeal pursuant to CITC Ch. 194 as amended August 6, 2008; now, therefore,\\nIT IS ORDERED that plaintiffs complaint be and hereby is dismissed, with prejudice;\\nIT IS ORDERED that counsel for defendants shall within ten days hereafter submit for the court's approval a form of judgment of dismissal consistent with the opinion and this order; and\\nIT IS ORDERED that plaintiff shall within ten days hereafter file with the eourt a proper notice of appeal of the Election Board's October 29, 2008 decision that comports with the provisions of CITC Ch. 194 as amended August 6, 2008, and is consistent with the opinion and this order, if plaintiff intends to preserve his right to such appeal.\\nDated this 18th day of June, 2009.\\nOPINION\\nThis opinion sets forth the court's reasoning in ruling on defendants' motion to dismiss plaintiffs complaint. The complaint is against the Coquille Indian Tribal Council and its members, and the Coquille Indian Tribe Election Board and its members for damages and other relief arising from defendants' alleged violations of plaintiffs rights to speech and equal protection under Tribal law and the Indian Civil Rights Act of 1968 (hereinafter, ICRA). Defendants move to dismiss the complaint on several grounds, one being that the court lacks subject matter jurisdiction. The court finds that it lacks subject matter jurisdiction and that plaintiff eannot truthfully amend the complaint to allege jurisdiction. The court today will enter an order dismissing plaintiffs complaint with prejudice. The court finds that plaintiff has submitted information into the court's record sufficient to preserve a right to appeal the October 29, 2008 decision of the Election Board denying plaintiffs challenge to the 2008 Tribal election, and that the court has jurisdiction to hear the appeal pursuant to CITC Ch. 194 as amended August 6, 2008. The court will allow plaintiff time to file sueh an appeal in proper form.\\nA\\nIn his complaint plaintiff challenges actions taken by defendants in response to his request for contact information for all eligible voting members of the Tribe. Plaintiff alleges in substance that: (1) he requested the contact information to pursue election and referendum campaigns out of his concern over the defendant Tribal Council's legislative adoption of Coquille Indian Tribal Code (hereinafter, CITC) Ch. 740, the Marriage and Domestic Partnership Ordinance; (2) defendant Tribal Council wrongfully withheld the contact information in response to his request and, when plaintiff ran for Vice Chair to challenge an incumbent who had voted for CITC Ch. 740, imposed an oath requiring candidates to use the contact information only for campaign purposes; (3) in response to plaintiffs election and referendum campaigns, and to prevent plaintiff from being able to obtain signatures under Coquille Tribal Constitution (hereinafter, Const.) Art. IV, defendant Election Board enacted an election rule granting the Election Board the authority to determine the appropriateness of materials submitted by candidates for tribal office for inclusion in voters' packets, and, supported by defendant Tribal Council, determined certain materials submitted by the plaintiff to be inappropriate for inclusion; (4) the oath and the appropriateness standard for materials were not in keeping with the Tribe's past practices; and (5) irregularities in referendum procedures imposed by the defendant Tribal Council effectively discriminate against General Council members residing off the reservation and outside the Tribe's five-county service area. Plaintiff alleges that defendants violated his rights to free speech and equal protection under the Tribe's law and the ICRA, and that they have discriminated against tribal members residing outside the five county service area.\\nBy way of relief plaintiff asks the court in substance to: (1) enter judgment against defendants that they have willfully violated the ICRA; (2) find that defendants' conduct was malicious and order them to pay punitive damages; (3) permanently enjoin and restrain defendants and unnamed others who are not parties to the case from further violations of the ICRA or other applicable tribal law(s); (4) impose orders on defendants Tribal Council and Election Board to regulate a variety of General Council contact information, election and referendum procedures; and (5) grant to plaintiff such other and additional relief as is just and proper.\\nDefendants appear specially pursuant to CITC 620.120(12)(a) \\u00a7 (1), (5) and (8) and move to dismiss plaintiffs complaint on four grounds: \\\"(1) [T]he tribal court lacks subject matter jurisdiction over the matters alleged in the complaint; (2) service of summons and process has been insufficient; (3)[p]laintiff has failed to cite a Tribal ordinance or Tribal Court case law which supports his claim for relief; and (4)[p]laintiff has failed to state a claim upon which relief can be granted.\\\" Defendants' Motion to Dismiss, Page 1, lines 16-22.\\nDefendants base their motion on three subsections of CITC 620.120(12)(a): (1) \\\"lack of jurisdiction over the subject matter\\\"; (5) \\\"insufficiency of summons or process or insufficiency of service of summons or process\\\"; and (8) \\\"failure to state ultimate facts sufficient to constitute a claim\\\". They challenge subject matter jurisdiction on the ground that sovereign immunity protects them from suit in this court. Plaintiff counters that defendants cannot claim immunity because the Tribe's immunity from suit does not extend to them as tribal officials. Sovereign immunity is a matter of subject matter jurisdiction. Thomas v. Coquille Indian Tribe, et al, \\u2014 Am. Tribal Law \\u2014,-, 2004 WL 5823303, *7-8 (Coquille Indian Tribal Court March 9, 2004); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 5.Ct. 1670, 1676-77, 56 L.Ed. 106 (1978). This court does not have subject matter jurisdiction to hear and decide claims brought against a defendant who is immune from suit, and \\\"shall\\\" dismiss the complaint as against a defendant who is immune. CITC 620.120(12)(g)(4). The court finds that the defendants and each of them are immune from suit in this court, and that the court therefore lacks jurisdiction to hear and decide plaintiff's claims. The remaining grounds for dismissal are moot and the court abstains from ruling on them.\\nB.\\nThe court reviews plaintiffs complaint \\\"liberally with a view of substantial justice between the parties.\\\" CITC 620.120(4)(a). The \\\"substantial justice\\\" test may be found in the civil pleading codes of multiple jurisdictions. As noted by the United States Supreme Court, it is a \\\"modification of the common law rule which construes all pleadings most strongly against the pleader.\\\" Gillette v. Bullard, 87 U.S. 571, 20 Wall. 571, 22 L.Ed. 387 (1874). This court adheres to it and in ruling on defendants' motion to dismiss for lack of jurisdiction over the subject matter construes the allegations in the complaint favorably to the plaintiff, without compensating for pleading defects or allegations that are missing. See Thomas, supra, at -, 2004 WL 5823303, *4-8; Dawson v. Springer, \\u2014 Am. Tribal Law -, -, 2003 WL 25906569, *1 (Coquille Tribal Ct. 2003) (\\\"although the Court will make every favorable inference in order to uphold the sufficiency of a complaint, it will not compensate for pleading deficits.\\\") The court \\\"disregard^ an error or defect in a [pleading] that does not affect the substantial rights of the [defendants]\\\" and does not disregard an error or defect that affects their substantial rights.\\nC\\nThe delegation to the Tribal Court in 1997 of \\\"all judicial authority of the tribe\\\" together with ordinances directing the court to apply the law of other jurisdictions in addition to the Tribe's law and permitting it to decline to hear a case if it \\\"is of such a nature that the Tribal Court should not hear it\\\", empower this court to exercise sound discretion in determining the contours of its jurisdiction. The court's discretion is constrained by the law empowering it. This court, like any other, cannot invent itself and its judge, like any other\\nis not a knight-errant roaming at will in pursuit of his own ideal of beauty or goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to \\\"the primordial necessity of order in the social life\\\". Wide enough in all conscience is the field of discretion that remains.\\nThe court is bound to follow the Tribe's constitutional and legislative law that empower it. This court derives its authority from Const. Art. VII \\u00a7 4 and CITC 610.200(l)(a). Const. Art. VII \\u00a7 4 provides:\\nPOWERS. The tribal court and such inferior courts as the tribal council may from time to time ordain and establish shall be empowered to exercise all judicial authority of the tribe.\\nThe judicial power of the tribal court shall extend to all cases and matters in law and equity arising under this constitution, the laws and ordinances of or applicable to the Coquille Indian Tribe and the customs of the Coquille Indian Tribe.\\nProvided that until such time as the tribal court is established, the judicial authority of the Coquille Indian Tribe shall vest in the tribal council.\\nCITC 610.200(1) provides in relevant part:\\n(a) Subject matter Jurisdiction. The Tribal Court shall have civil jurisdiction over cases and matters in law and equity arising under the following:\\n(1) Coquille Indian Constitution;\\n(2) Laws and Ordinances of the Tribe which contain express grants of jurisdiction to the Tribal Court;\\n(3) Customs of the Tribe;\\n(4) Indian Child Welfare Act, 25 U.S.C. 1 901 et seq.,\\n(5) Any other federal statutes that grant jurisdiction to Tribal Courts and;\\n(6) Appealable decisions of any committee, commission, board or authority of the Tribe.\\nIn deciding the matter now before it the court is guided by well-reasoned federal court decisions outlining the parameters of federal court subject matter jurisdiction, which were decided under law similar to that of this Tribe. Thomas, supra, at-, 2004 WL 5823303, *3-5. \\\"It is fundamental to our system of government that a court of the United States may not grant relief absent a constitutional or valid statutory grant of jurisdiction.\\\" United States v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir.2002). \\\"A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.\\\" A-Z International v. Phillips, 323 F.3d 1141, 1145 (9th Cir.2003) (quoting United States v. Bravo-Diaz, 312 F.3d 995, 997 (9th Cir.2002)). See also Table Bluff Reservation, v. Philip Morris, Inc., 256 F.3d 879, (9th Cir.2001). \\\"Unless a grant of jurisdiction over a particular case affirmatively appears, we are presumed to lack jurisdiction.\\\" National Treasury Employees Union v. Federal Labor Relations Authority, 112 F.3d 402, 404 (9th Cir.1997).\\nD\\nPlaintiff alleges that the defendants violated his free speech and equal protection rights under Tribal law and the ICRA. Const. Art. VI \\u00a7 11 provides:\\nThe tribal council and other officials of the tribe shall not deny to any person within its jurisdiction freedom of speech, press or religion or the right of peaceful assembly. The tribal council and other officials of the tribe shall not deny to any person the equal protection of tribal laws or deprive any person of liberty or property without due process of law. The tribe shall provide to all persons within its jurisdiction the rights guaranteed by the Indian Civil Rights Act of 1968.\\nThe ICRA conferred on individuals certain civil rights in their relations with Tribes, including freedom of speech, 25 U.S.C. \\u00a7 1302(1), and equal protection of the laws. 25 U.S.C. \\u00a7 1302(8). Santa Clara Pueblo, supra, 436 U.S. at 64, 98 S.Ct. 1670 (citation omitted). The Coquille Indian Tribe's incorporation into its Constitution of ICRA civil rights generally and free speech and equal protection specifically surely gives rise to rights. At issue is whether there is a remedy for these rights in this court.\\nConst. Art. VII Section 4 (\\\"The judicial power of the tribal court shall extend to all cases and matters in law and equity arising under this constitution\\\") and CITC 610.200(l)(a) (\\\"The Tribal Court shall have civil jurisdiction over cases and matters in law and equity arising under the (l)Coquille Indian Constitution\\\") are read in conjunction with the CITC 610.999. It provides:\\nNothing in this Ordinance shall be construed to have waived the sovereign immunity of the Coquille Indian Tribe. Notwithstanding any other provisions of [Ch. 610], the Tribal Court shall not have jurisdiction over the Tribal Council or the officers of the Tribal Council, no matter what form of relief is sought, unless the Tribal council, by resolution or ordinance, has expressly and explicitly waived its sovereign immunity for a particular action.\\nThe Tribal Council has constitutional authority to \\\"ordain and establish\\\" the Tribal Court. Const. Art. VII \\u00a7 4. As explained in part E, below, it has the authority to protect the Tribe's sovereign immunity to suit in any court including this court, and to determine the extent, if any, to which that immunity may be waived or extended. The Tribal Council has not waived the Tribe's immunity to suit in this court for any purpose relevant to plaintiffs claims, and in particular has not waived sovereignty for violation of free speech, equal protection and ICRA rights. By contrast, it has affirmed the Tribe's immunity and extended immunity to itself and its officers through legislation. CITC 610.999. It has expressly provided for no waiver of the immunity of the Election Board and its officers and representatives. CITC 194.300. It has by legislation created the exclusive means for any future waiver of sovereign immunity. CITC 190.170 (\\\"Any waiver of the Tribe's sovereign immunity must be explicitly made by the Tribal Council, by resolution, and the terms and conditions of such waiver explicitly set forth in such resolution.\\\") No constitutional provision, ordinance or other authority identified by the parties or located by this court supersedes or indicates invalidity of any of these measures. For these reasons, this court holds that it lacks subject matter jurisdiction over the claims alleged by plaintiff against the defendants and each of them. Thomas v. Coquille Indian Tribe, et al, \\u2014 Am. Tribal Law at -, 2004 WL 5823303, *7-8 (Coquille Tribal Ct. March 9, 2004); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1676-77, 56 L.Ed. 106 (1978).\\nE\\nThe Coquille Indian Tribe's law preserving and extending sovereign immunity is in keeping with well-settled legal doctrine that (1) Indian tribes are not subject to suit in any court unless the Tribe or the United States Congress has waived the Tribe's immunity to suit; (2) waiver of sovereign immunity must be unequivocally expressed and not implied; and (3) tribal immunity extends to tribal officials acting in their representative capacity and within the scope of their authority.\\nAs the United States Supreme Court has summarized the law, Indian tribes are \\\" 'distinct, independent political communities, retaining their original natural rights' in matters of local self-government.\\\" Santa Clara Pueblo, supra, at 55, 98 S.Ct. 1670, quoting Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 559, 8 L.Ed. 483 (1832), and citing United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710 717, 42 L.Ed.2d 706 (1975) and F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW 122-123 (1945). \\\"Although no longer 'possessed of the full attributes of sovereignty,' they remain a 'separate people, with the power of regulating their internal and social relations,' \\\" Santa Clara Pueblo, supra at 55-56, 98 S.Ct. 1670, quoting United States v. Kagama, 118 U.S. 375, 381-382, 6 S.Ct. 1109, 1112-1113, 30 L.Ed. 228 (1886). \\\"They have power to make their own substantive law in internal matters (citations omitted) and to enforce that law in their own forums, see, e.g., Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959).\\\" Santa Clara Pueblo, supra at 55-56, 98 S.Ct. 1670. \\\"Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers.\\\" Santa Clara Pueblo, supra at 58, 98 S.Ct. 1670 (citations omitted). Absent Congressional action, State of Montana v. Gilham, 133 F.3d 1133, 1136 (9th Cir.1998) (citing Santa Clara Pueblo, supra), or tribal consent to suit, \\\"state and federal courts have no jurisdiction over Indian tribes; only consent gives the [federal] courts the jurisdictional authority to adjudicate claims raised by or against tribal defendants.\\\" Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir.1989).\\nThe Supreme Court has repeatedly held that Indian tribes are subject to suit only where Congress has authorized the suit or the tribe has waived its sovereign immunity. See Nez Perce Tribe v. Idaho Power Co., 847 F.Supp. 791, 806 (D.Idaho 1994), citing Kiowa Tribe of Oklahoma v. Manufacturing Technologies, 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998); Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 890, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978) (Suits against Indian tribes are barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation); Oklahoma Tax Com'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509, 111 S.Ct. 905, 112 L.Ed.2d 1112 (1991) (Suits against tribes are barred by sovereign immunity absent clear waiver by tribe or congressional abrogation); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) \\\"A waiver of sovereign immunity for Indian tribes 'cannot be implied but must be unequivocally expressed.' \\\" Id. (citation omitted). These cases do not contemplate that a Tribe can execute an express waiver solely by violating a statute or arguably acting beyond the scope of its sovereign powers.\\nIn Santa Clara, Puebla, a female member of the tribe and her daughter challenged a tribal ordinance that denied tribal membership to the children of a female member who married outside the tribe. The plaintiffs relied on 25 U.S.C. \\u00a7 1302(8), the right to equal protection of the laws. Noting that a waiver of sovereign immunity \\\"cannot be implied but must be unequivocally expressed,\\\" the Court found nothing in the ICRA which \\\"purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief.\\\" Id. at 58-59, 98 S.Ct. at 1677. As the Santa Clara Pueblo court noted, \\\"Tribal forums are available to vindicate rights created by the ICRA, and \\u00a7 1302 has the substantial and intended effect of changing the law which these forums are obliged to apply. Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians.\\\" Id. at 66, 98 S.Ct. 1670. Because waiver of sovereign immunity \\\"'cannot be implied but must be unequivocally expressed' \\\", United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976), quoting, United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969), the Court emphasized that this modification by itself could not be interpreted as a waiver of the immunity from suit traditionally enjoyed by sovereign powers. Santa Clara Pueblo, supra, 436 U.S. at 57-59, 98 S.Ct. at 1676-77. In accord is Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457, 1460 (10th Cir.1989), where the court held:\\nNor are we persuaded that the Cherokee Constitution waives the Tribe's immunity to suit under the ICRA. Plaintiffs urge us to construe language in the Cherokee Constitution providing that 'the appropriate protection guaranteed by the OCRA shall apply to all members of the Cherokee Nation' as such an express waiver. The cited language no more constitutes an unequivocal expression of waiver than does the language of the ICRA, which itself created the substantive rights supposedly guaranteed to all members of the Cherokee Nation, language which the Supreme Court refused to interpret as a waiver.\\nLike other tribes, the Coquille Indian Tribe remains a \\\"separate people, with the power of regulating their internal and social relations.\\\" Santa Clara Pueblo, supra at 55-56, 98 S.Ct. 1670 (citation omitted). Its sovereign immunity \\\"is an amalgam of two quite different concepts, one applicable to suits in the sovereign's own courts and the other to suits in the courts of another sovereign.\\\" Nevada v. Hall, 440 U.S. 410, 414, 99 S.Ct. 1182, 1185, 59 L.Ed.2d 416 (1979), cited at Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 760, 118 S.Ct. 1700, 1706, 140 L.Ed.2d 981 (1998) (Stevens, J. dissenting, joined by Thomas, J. and Ginsburg, J.) \\\"In the former category, the sovereign's power to determine the jurisdiction of its own courts and to define the substantive legal rights of its citizens adequately explains the lesser authority to define its own immunity.\\\" Kiowa Tribe of Oklahoma, supra 523 U.S. at 760, 118 S.Ct. 1700, citing Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907).\\nFederal decisions uphold the extension of \\\"tribal immunity' to individual tribal officials acting in their representative capacity and within the scope of their authority,\\\" regardless of whether the extended immunity is granted by tribal legislation. Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 478-79 (9th Cir.1985); United States v. Oregon, 657 F.2d 1009 n. 8 (9th Cir.1981); Wright v. Colville Tribal Enterprise Corp., 159 Wash.2d 108, 147 P.3d 1275 (2006). See also Tenneco Oil Co. v. Sac & Fox Tribe of Indians, 725 F.2d 572, 574 (10th Cir.1984); Romanella v. Hayward, 933 F.Supp. 163, 167 (D.Conn.1996). Of course, tribal sovereign immunity would not protect an individual defendant sued in his individual capacity, see Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 360 (2nd Cir.2000), nor would it protect one who acted outside the scope of his authority. White Mountain Apache Indian Tribe, 480 P.2d at 658 (holding tribal sovereign immunity protects officers from suit in official but not individual capacity). Plaintiff has not alleged that any of the persons named in the complaint acted outside the scope of their authority, nor does he sue them in their individual capacity.\\nThe parties point to no authority discrediting the reasoning of the decisions above and the court has found none. The court finds the authorities persuasive and consistent with the Coquille Indian Tribe's laws of sovereign immunity. Plaintiff cites decisions of other tribe's courts for the proposition that \\\"the ICRA does waive the tribe's sovereign immunity from suit in tribal court for violations of that act.\\\" The court does not find those decisions to be persuasive. They were decided under tribal laws and precedent materially different from those of the Coquille Indian Tribe. Several are dc facto court-imposed waivers of tribal sovereign immunity. One of them interprets Santa, Clara Pueblo to mean that because ICRA does not waive immunity to suit in federal court, it is a waiver to suit in tribal court and tribes must furnish a remedy in their courts. See Works v. Fallon Paiute-Shoshone Tribe, 24 Indian L. Rep. 6078, \\u2014 Am. Tribal Law-, 1997 WL 34704273 (Nev. Inter-Tribal C.A.1997). Neither that conclusion nor its rationale is to be found in Santa Clara Pueblo, and other tribal courts have reached contrary conclusions. See Winnebago Tribe of Nebraska v. Bigfire, 24 Indian L. Rptr. 6232 (Winnebago Tribal Court) (An express waiver of tribal immunity is necessary before an ICRA claim may be brought in tribal court.) The ICRA does not provide for a remedy in the courts of tribes. As the authorities that this court finds persuasive make abundantly clear, only Congress and a tribe can waive sovereign immunity. The Coquille Indian Tribe has vested the power to waive sovereign immunity in its Tribal Council and not in its Tribal Court. CITC \\u00a7 610.999 and 190.170.\\nSome tribes have enacted far-reaching waivers of sovereign immunity. The parties may find it useful to examine the law of one such tribe. Title XX of the Mash-antucket Pequot Civil Rights Code is an extensive statutory scheme that creates civil rights and specific remedies and procedures to vindicate those rights in the Mashantucket Tribal Court. It \\\"unequivocally and expressly\\\" waives immunity and clearly sets out what defendants can and cannot be names in a suit. It is attached to this opinion as Appendix A for comparative and illustrative purposes.\\nF\\nFor reasons set forth above, the court will enter an order granting defendants' motion to dismiss for lack of subject matter jurisdiction. In granting defendants' dismissal motion, the court must consider whether to allow plaintiff to re-plead. If the jurisdictional allegations are not sufficient and plaintiff cannot truthfully amend to allege jurisdiction, the court should dismiss the matter without leave to re-plead. Thomas, supra at -, 2004 WL 5823303, *10-11; Chais-Shulman v. Bank of America Trust No. 54212, 456 F.2d 253 (9th Cir.1972) cert. denied, 409 U.S. 864, 93 S.Ct. 155, 34 L.Ed.2d 111 (1972). Because the court finds it lacks subject matter jurisdiction on grounds of sovereign immunity, plaintiff cannot truthfully amend to allege jurisdiction. Therefore, the complaint will be dismissed with prejudice. Thomas, supra at -, 2004 WL 5823303, *10-11.\\nG\\nThe Coquille Indian Tribe's law includes an ordinance authorizing a candidate to challenge election results. CITC Ch. 194 as amended August 6, 2008 (the Elections Ordinance) \\u00a7 194.010-194.300 governs the appointment of the Election Board by the Tribal Council and sets out the Election Board's responsibilities and authorities. CITC 194.160 provides that a candidate can challenge election results through timely complaint to the Election Board. It provides procedures for appeal to the Tribal Court if the candidate disagrees with the outcome of the challenge. In his complaint plaintiff does not claim to have complied with these provisions, nor does he allege that he seeks this remedy. But he includes with his brief response to motion to dismiss and supporting materials filed with this court March 20, 2009, Exhibits \\\"14\\\" and \\\"13\\\". The court attaches them to this opinion as, respectively, Ap pendices B and C. Appendix B is plaintiffs letter to the Election Board challenging the results of the 2008 election and Appendix C is the Election Board's October 29, 2008 letter denying the challenge together with response. These Appendices can be interpreted as expressing an intent to appeal to the Tribal Court under the Elections Ordinance.\\nThese documents were received into the court's record in the course of the submission of materials in the course of a non-facial challenge to the sufficiency of plaintiffs complaint. Under the circumstances and taking into account that plaintiff is self-represented, and in keeping with this court's discussion, supra, regarding liberal interpretation of pleadings with a view of substantial justice between the parties, the court finds that it is in the interest of justice to provide plaintiff the opportunity for an appeal under CITC Ch. 194 as amended August 6, 2008. He shall file a notice of appeal in proper form with this court if he wishes to pursue this remedy. If the appeal is timely and comports with the law, the effective date of its filing shall relate back to October 30, 2008, the date of the filing of the complaint.\\nAPPENDIX A\\nTITLE XX MASHANTUCKET PEQUOT CIVIL RIGHTS CODE\\nCHAPTER 1\\nSection 1. Civil Rights\\na. The Tribe shall not:\\n(1)make or enforce any law prohibiting the free exercise of religion or abridging the freedom of speech, or of the press, or the right of the people to peaceably\\nassemble and to petition for a redress of grievances;\\n(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;\\n(3) subject any person for the same offense under tribal law to be twice put in jeopardy;\\n(4) compel any person in any criminal case to be a witness against himself or herself;\\n(5) take any private property for a public use without just compensation;\\n(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him or her, to have compulsory process for obtaining witnesses in his or her favor, and at his or her own expense to have the assistance of counsel for his or her defense;\\n(7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000 or both;\\n(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;\\n(9) pass any bill of attainder or criminal ex post facto law; or\\n(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.\\nb.The tribal court shall interpret the rights enumerated under this Title in a manner that is consistent with tribal custom, practice and tradition. The tribal court is not bound by interpretations by state and federal courts of similar language found in state and federal constitutions.\\nSection 2. Jurisdiction and Waiver of Sovereign Immunity From Suit\\na. The tribal court shall have jurisdiction over claims alleging a violation or violations of the rights enumerated under Section 1 of this Title.\\nb. The Tribe hereby expressly waives its sovereign immunity from suit in the tribal court for claims against the Tribe alleging a violation(s) of the rights enumerated in Section 1, as provided for and defined in this Title. Nothing herein shall be construed as a waiver of the sovereign immunity of the Tribe from suit in state or federal court or in any action before any state or federal agency, or in any other forum or context.\\nc. There shall be no cause of action in the tribal court under this Title relating to, or which may affect, activities of the Elders Council or Peacemakers Council.\\nd. There shall be no cause of action in the tribal court under this Title relating to, or which may affect, the Tribe's Indian Preference Policy.\\nSection 3. Claims Against the Tribe\\na. Claim. Any person, whether a tribal member or non-member, may bring an action against the Tribe for violations of the rights enumerated in Section 1 of this Title.\\nb. Tribe as Defendant. Claims under this Title shall be brought only against the Tribe and there shall be no separate cause of action against any division, agency, committee, office, entity or instrumentality of the Tribe, or against any officer, agent, servant or employee of the Tribe; provided that, an action against the Tribe may be based upon the actions of an officer, agent, servant or employee of the Tribe or of a division, agency, committee, office, entity or instrumentality of the Tribe, including the Gaming Enterprise.\\nc. Complaint. A claim brought under this Title shall be brought by the filing of a complaint which complies in all aspects with the Mashantucket Pequot Rules of Civil Procedure and which also shall allege, with specificity, the following:\\n(1) the act or acts which resulted in the violation of rights enumerated in Section i;\\n(2) the date or dates of the alleged violation(s);\\n(3) the specific acts which resulted in the alleged violation and the officer, agent, servant, or employee or, the division, agency, committee, office, entity or instrumentality of the Tribe which committed or is alleged to be responsible for such acts;\\n(4) the specific right or rights which have been violated with citations to the section or sections of this Title; and\\n(5) the date on which the Notice of Claim, required under Section 3(d) of this Title, was filed with a copy of the Notice of Claim attached to the complaint.\\nd. Notice of Claim. Claims brought under this Title shall be preceded by a written notice of claim filed with the tribal clerk by the claimant or the claimant's representative within 180 days after the claim accrues. Claims are deemed to accrue on the date of the alleged violation of rights under this Title. The Notice of Claim shall contain the following information: (i) the name and address of the claimant and the name and address of the claimant's attorney, if any; (ii) a concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the alleged violation(s) of right(s) complained of; (iii) a concise statement of the nature and extent of the injury claimed to have been suffered; (iv) a statement of the amount of monetary damages that is being requested and whether declaratory relief is being requested; and (v) the name of any officer, agent, servant, employee or the division, agency, committee, office, entity or instrumentality of the Tribe involved, if known.\\ne. Awards. In a judgment under this Title, the court may enter an award as follows:\\n(1) The court may enter an award for actual damages resulting from a violation of the rights enumerated in Section 1 of this Title.\\n(2) In addition to an award of actual damages, the court may enter an award for pain and suffering or mental anguish provided that, in no event shall the total award of actual damages plus pain and suffering for injuries arising from the set of facts and circumstances alleged in the complaint exceed the amount of $250,000.\\n(3) Attorney's fees may be awarded in the discretion of the court to the prevailing party against the Tribe only when the court determines that the action(s) of the Tribe were wholly unreasonable and particularly egregious. If the Tribe is the prevailing party, the court shall award attorney's fees only upon a finding that the plaintiffs claim is frivolous, unreasonable or without foundation in the law or fact. An award of attorney's fees must be supported by contemporaneous records of hours billed and the billing rate(s) charged which must be consistent with prevailing billing rates of attorneys practicing before the tribal court. In no event shall an award of attorney's fees exceed 25% of the total damage award.\\n(4) The court may enter a judgment for declaratory relief.\\n(5) The court shall not enter any other award or judgment under this Title, including:\\n(a) no award based upon any rule of law imposing absolute or strict liability;\\n(b) no award or other judgment imposing punitive or exemplary damages;\\n(c) no award based upon a claim for loss of consortium; and\\n(d) no award, order or judgment for injunctive relief, whether restraining action or commanding positive action be taken.\\nf. Statute of Limitations. No claim under this Title shall be brought but within one year from the date of the violation(s) of right(s) complained of.\\nSection 4. Miscellaneous\\na. All actions against the Tribe shall be tried to the court and not to a jury. No costs shall be taxed against the Tribe.\\nb. In all actions where it is alleged that the liability of the Tribe is based upon the action of an officer, agent, servant, or employee acting within the scope of his or her employment there shall be no separate cause of action against the officer, agent, servant or employee. Nothing in this Law shall be construed to waive the sovereign immunity of the Tribe to the extent that sovereign immunity would be applicable to such individual.\\nSection 5. Application of Law\\nThis law shall be applicable to claims accruing after the enactment date. For claims arising prior to the enactment of this law or pending in the tribal court on the date of enactment, there shall be no cause of action recognized under tribal law, except as provided in Section 6 of this Title.\\nSection 6. Repeal of Prior Law\\nThe sections of tribal law entitled \\\"Indian Civil Rights Act\\\" and \\\"Waiver of Tribal Sovereign Immunity\\\" contained in the tribal law concerning the criminal court, formerly codified at Title I, Chapter 3, Sections 10 and 11 of the Mashantucket Pequot Tribal Laws, are hereby repealed and are of no further force and effect, except that: (a) any claims alleged pursuant to those sections, and which are pending in the tribal court on the date of the enactment of this Title, shall be recognized as claims under this Title; and (b) any claim pursuant to those sections, which accrued within one year prior to the enactment of this law, may be brought under this Title by filing the notice and complaint required hereunder within 180 days after the enactment of this Title.\\nLEGISLATIVE HISTORY\\u2014MASHAN-TUCKET PEQUOT CIVIL RIGHTS CODE AND FOR AMENDMENTS TO TITLE VIII. EMPLOYMENT REVIEW CODE\\nI. Introduction\\nCivil rights or civil liberties, in the context of state and federal law, mean \\\"personal, natural rights guaranteed and protected by Constitution,\\\" including freedom of speech, free exercise of religion, freedom from discrimination or the unequal treatment under the law based upon race, gender, age, religion, etc. In the state and federal constitutions, most of the rights and liberties guaranteed to individuals are defined in terms of restraints on the government. The state and federal constitutions do not restrict or restrain action by tribal governments, since tribes pre-date these constitutions and do not derive their sovereignty from either the state or federal governments\\u2014tribes being inherently sovereign.\\nIn 1968, Congress enacted the Indian Civil Rights Act, 25 U.S.C. \\u00a7 1301-1303 (the \\\"ICRA\\\"), which imposes restraints on Indian tribes when \\\"exercising powers of self-government.\\\" The ICRA, also called the Indian Bill of Rights, is similar but not identical to the Bill of Rights (the first ten amendments to the federal Constitution) in the U.S. Constitution.\\nIn Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), the U.S. Supreme Court reviewed the ICRA and found that the only type of claim an individual could pursue in the federal courts to enforce the rights enumerated in the ICRA was under the habe-as corpus provision. An individual may bring a claim under the habeas provision to \\\"test the legality of detention by order of an Indian tribe.\\\" 25 U.S.C. \\u00a7 1303. Other than challenging an order of detention by an Indian tribe, an individual who believes that his or her rights have been violated by the action of a tribal government may not bring suit against the tribal government in federal (and certainly not in state) court. However, in Santa Clara Pueblo, the U.S. Supreme Court stated that \\\"tribal forums are available to vindicate rights created by the ICRA and [25 U.S.C.] \\u00a7 1302 has the substantial and intended effect of changing the law which these forums are obliged to apply.\\\" Id. at 65, 98 S.Ct. 1670.\\nTribes have addressed civil rights in different ways. Some tribes have ineorporat- ed the enumerated rights in the ICRA (some in a modified fashion) in a tribal constitution (examples include: Poarch Band of Creek Indians, Menominee Tribe, Gay Head Warnpanoag Tribe), while others have adopted laws addressing civil rights. Tribal courts have come to different conclusions concerning whether an individual may sue an Indian tribe in tribal court pursuant to the ICRA, or whether the tribe must expressly waive its immunity from suit in the tribal court for claims under the ICRA. For example, in Winnebago Tribe of Nebraska v. Bigfire, 24 Indian L. Rptr. 6232 (Winnebago Tribal Ct.1997), the court opined that an express waiver of tribal immunity is necessary before an ICRA claim may be brought in tribal court, while the Inter-Tribal Court of Appeals of Nevada has determined that a civil rights action could proceed in the tribal court because the ICRA constituted a waiver in the tribal forum. See Works v. Fallon Paiute-Shoshone Tribe, 24 Indian L. Rptr. 6078 (Inter-Tribal Court of App., Nev.1997).\\nPresently, the Mashantucket Pequot Tribal Laws do not affirmatively protect an individual's rights vis-\\u00e1-vis tribal governmental action, with the exception of a provision in Title I addressing actions by the tribal police. See I M.P.T.L. ch. 3, Sections 10 & 11. In a chapter addressing the court's jurisdiction over criminal matters, the law adopts the Indian Civil Rights Act and states that it shall be applied in tribal court. That provision also contains a waiver of sovereign immunity but only for an \\\"action taken by the tribal police alleging a violation of the Indian Civil Rights Act provided the alleged violation occurred within the nation lands.\\\" The limitation of awards under this waiver is set at a total award of $500,000, per incident and the III. Law prohibits any award for punitive damages, for loss of consortium, and limits an award for pain and suffering to 50% of the award for actual damages, all similar to the tort law originally enacted.\\nTo date, there have been no claims brought in the tribal court against the tribal police under this provision. However, litigants and the court have used these provisions to incorporate the ICRA into other areas, and to provide a forum for claims against the Gaming Enterprise particularly in the employment context.\\nThe Mashantucket Pequot Civil Rights Code is being adopted as a new title of the Mashantucket Pequot Tribal Laws to address civil rights of individuals as they relate to the tribal government and the various entities organized as arms of the tribal government. In passing this Code, the Tribal Council recognizes the rights of individuals and provides a cause of action in the Mashantucket Pequot Tribal Court to enforce these rights.\\nII. Section by Section Analysis Of Civil Rights Code\\n1. Section L Civil Rights\\nSection 1 of the Tribal Civil Rights Code provides an enumeration of rights which is similar, but not identical to those provided in the Indian Civil Rights Act. One difference is the insertion of the word \\\"criminal\\\" before \\\"ex post facto\\\" in Section 1(a)(9). This change is meant to clarify that this prohibition is relevant only in the criminal context and does not apply in the civil context. In addition, the words \\\"under tribal law\\\" have been inserted in Section 1(a)(3) (concerning double jeopardy) to clarify that this pertains to prosecutions under tribal law and would not pertain to prosecutions by separate sovereigns, such as the federal government and tribal government.\\nThe enumerated rights are framed as a prohibition against the Tribe taking action, such as making or enforcing any law prohibiting the free exercise of religion or abridging the freedom of speech. The one significant difference between Section 1 of the Tribe's Civil Rights Code and the ICRA is that the proposed law does not contain the language \\\"when exercising powers of self-government,\\\" which the ICRA does contain. The ICRA provides that the tribe shall not do certain enumerated things, when exercising powers of self-government and self-government is defined in the ICRA. The tribal law offers broader protections to individual rights because it does not contain this language. This language was deleted in order to make clear that this law would cover claims based upon alleged actions taken by the Gaming Enterprise or the Museum and Research Center for example, such as a discrimination claim by an employee. Although the Gaming Enterprise and the Museum are arms of tribal government, there may be confusion or disagreement concerning whether actions taken by these entities would or their officers, agents and employees would be covered as exercises of \\\"self government,\\\" which is generally understood to encompass legislative and judicial acts of the tribal government, but may not necessarily include actions taken by an arm of tribal government.\\nSection 1 of this law also contains a provision directing the tribal court to interpret this law in a manner which is consistent with tribal custom, practice and tradition. The Tribal Council expressly has provided that the tribal court shall not be bound by interpretations of similar language by state and federal courts, leaving the tribal court free to interpret these provisions under tribal law.\\n2. Section 2. Jurisdiction and Waiver of Sovereign Immunity From Suit\\nSection 2 provides an express grant to the court of jurisdiction over the defined civil rights claims and provides a waiver of the Tribe's sovereign immunity for such claims. Additionally, this Section expressly states that this law does not create a cause of action which would affect actions of the Elders Council or the Peacemakers Council, which is intended to give deference to the decisions of those forums. It is not the intent of Council to provide a cause of action allowing challenges to the decisions of the Elders or Peacemakers Council pursuant to this Law. Section 2(d) clarifies that this law does not provide any cause of action based upon the Tribe's Indian preference policy. This provision was added to clarify that the \\\"equal protection\\\" of tribal laws provided for in Section 1(a)(8) does not affect or modify, in any manner, the Tribe's policies and laws concerning Indian preference, and the enforcement of the Indian preference policy shall not be considered a violation of any rights enumerated in this law and shall not form the basis of any action under this law.\\n3. Section 3. Claims Against The Tribe\\nSection 3 describes how the claim may be brought under this Title. This Section specifies that the claim may be brought only against the Tribe and cannot be brought against a separate arm, agency, department or subdivision of the Tribe or against an officer, agent or employee of the Tribe or of an arm, agency, department or subdivision. Further, this Section specifies the information that must be contained in a complaint to commence the action in tribal court; requires that a Notice of Claim be filed within 180 days after the claimed violation of rights occurred; and describes the type of awards which the court may enter.\\nMore particularly, the law allows the court to enter an award of money damages for actual damages incurred and an award for pain and suffering; however, the law limits the total award for actual damages and pain and suffering to $250,000. However, this total limitation of $250,000 is intended to cover any claims relating to a set of facts and circumstances which form the basis of the claim. It is not the intent to allow $250,000 for each claimed violation of rights under this Title. Therefore, if one set of facts and circumstances allegedly gives rise to several alleged violations of rights, the total recovery is limited to $250,000.\\nThis law allows the court to award attorneys' fees to the prevailing party. However, the standard that a party must meet in order for the court to make such an award is difficult. To award attorney's fees against the Tribe, a party must show that the Tribe's action was \\\"wholly unreasonable and particularly egregious,\\\" and if a plaintiffs claim is \\\"frivolous, unreasonable or without foundation in the law or fact,\\\" the court may award attorney's fees against a plaintiff and in favor of the Tribe.\\nSimilar to tribal law for torts against the Tribe, Title XII (Civil Actions Law), a claimant must bring his or her claim within one year after the violation of rights occurred, while maintaining a requirement that the plaintiff file a notice of claim within 180 days of the violation. It is intended that this notice requirement and statute of limitations be strictly construed and be interpreted as a substantive, rather than a procedural, requirement.\\nThe law provides that the court may order declaratory relief, but prohibits an order or award for injunctive relief. In-junctive relief expressly includes both an order to take positive action and orders restraining action. Similar to provisions in Title IV (Tort Law/Gaming Enterprise) and Title XII (Civil Actions Law), the court may not enter awards based upon strict or absolute liability theories; or to impose punitive or exemplary damages; or for loss of consortium claims.\\n4. Section 4. Miscellaneous\\nSection 4, called \\\"Miscellaneous,\\\" provides that actions against the Tribe under this law must be tried by the court (a judge) and not a jury; no costs shall be assessed against the Tribe; and suits in which a claimant is complaining about the action of an officer, agent, servant or employee acting within the scope of employment, the claimant cannot bring an action against the individual. These provisions are identical to provisions in tribal law addressing tort and contract claims.\\n5. Section 5. Application Of Law\\nSection 5 states that this law shall apply only to claims arising after its enactment date and does not provide for a cause of action if the violation of rights occurred prior to the enactment of the law. This applies even if a claimant has a pending action in the tribal court. The only exception made to this rule (in Section 6 of the proposed law) is if a claimant has an action pending in the tribal court pursuant to the present tribal law regarding civil rights claims against the tribal police, or if such a person has a claim against the tribal police which arose within one year prior to the enactment of the law. In that case, such a claimant could pursue the claim under this title. If there is such a claim, the claimant must file a notice of claim and a complaint within 180 days after the enactment of the law.\\n6. Section 6. Repeal of Prior Law\\nSection 6 also repeals the prior law concerning the tribal police, since those types of claims would now be governed by this Title.\\nThe issue of an individual's rights, whether a tribal member or nonmember, in relation to the Tribal government is an important issue throughout Indian country. A review of decisions in the Indian Law Reporter and of commentaries by legal scholars demonstrates the complexity of the issues and the struggle within Indian communities to address these issues in a manner consistent with the community's practices, customs and traditions. Much of the debate or controversy focuses on whether the ICRA, a law imposed upon tribes by Congress, is enforceable in tribal courts and the interpretation of its provisions. One theme running through much of the commentary and some of the decisions is that tribes themselves must address these issues either through the enactment of tribal law or inclusion of rights within tribal constitutions. The concern is that if the tribes do not affirmatively address the issue of civil rights, Congress may review the issue again and impose legislation more intrusive on tribal sovereignty.\\nAt Mashantucket, the only tribal law that specifically had addressed civil rights concerned the Tribal Police. However, ICRA claims and issues have been raised by litigants in tribal court in matters involving employment actions at the Gaming Enterprise. For example, in the Johnson case, the court ruled that the ICRA required the Gaming Enterprise to allow employees to be represented by counsel in the Board of Review process. That case arose in the context of Title VIII Employment, governing the tribal court's review of final decisions by the President/CEO of the Gaming Enterprise and the chief human resources officer. From that decision, the court expanded into independent claims of ICRA violations in several other cases. The adoption of a tribal law addressing civil rights claims allows the Tribal Council to define the rights and the remedies afforded in tribal court.\\nIII. Amendments to Title VIII Employee Review Code\\nThe Tribal Council is aware of litigation in the employment context concerning civil rights. Within the employment context, the tribal court has discussed rights such as due process and equal protection. In most cases, these claims have been brought pursuant to Title VIII. Employment, which provides an appeal process from a final decision regarding disciplinary actions, including terminations from employment. Many of these decisions have addressed civil rights through a discussion of the Indian Civil Rights Act. The Tribal Council, in connection with the enactment of the Tribal Civil Rights Code, has determined that it is necessary to amend Title VIII to allow for claims concerning violations of \\\"procedural due process rights\\\" in the employment context. The amendments add new subsections (d), (e), and (f> to Section 3 of Title VIII. These new subsections provide that an employee who has progressed through the Board of Review process and has received a final decision from the President/CEO or from the chief human resources officer, may seek a review in tribal court of what an employee claims to be a violation of procedural due process rights, as that term is defined in the law.\\nThe new subsection 3(d) provides that an employee may seek review of a violation of procedural due process rights in an appeal brought under Title VIII, but in order to do so, the employee must allege such a claim in the Notice of Appeal and provide the information as described in subsection 3(d), This requirement is mandatory and an employee should not be allowed to pursue such claims unless the information required is provided.\\nIn subsection 3(e), the law states that the tribal court may only review, under Title VIII, whether an employee's procedural due process rights were violated, and may not consider any other claimed violation of civil rights in an Appeal under Title VIIL Any claim alleging a violation of rights, other than procedural due process rights, must be pursued under the new Civil Rights Title.\\nSubsection 3(f) defines \\\"procedural due process rights\\\" to mean the right to adequate notice, a meaningful opportunity to be heard, and the right to representation at the employee's option and expense. These rights have been generally recognized by the tribal court in the employment context.\\nIt is the intent of the Council in adopting these amendments to specifically provide employees with the right to raise issues of procedural due process in the Board of Review process within the context of an Appeal. At the same time, the Council recognizes that in order to make such a claim, the employee must provide detailed information in the Notice of Appeal, describing the claimed violations. It is also the intent to give the employee an opportunity to raise all issues concerning the Disciplinary Action in the Appeal, without the necessity of commencing a separate action under a separate title.\\nLegislative History. Derivation. Effective October 12, 2000-TCR101200-04 enacted the \\\"Civil Rights Code.\\\"\\nPLAINTIFF'S EXHIBIT \\\"14\\\"\\nCoquille Indian Tribe\\nTribal Council\\nP.O. Box 783\\n3050 Tremont North Bend, Oregon 97459\\nI hereby submit this written request to the Tribal Council of the Coquille Indian Tribe, for a resolution, granting me access to contact information for all eligible voters of the Coquille Indian Tribe; in order that I might exercise my constitutionally protected rights as a member of the General Council under Article IV, Section 2 of The Constitution of the Coquille Indian Tribe.\\nWhile I appreciate the right to privacy of individual tribal members; as members of the General Council, they have inherent responsibilities of governance. In that capacity, I have the right to contact them under Article IV, Section 2 of the constitution.\\nThe Tribal Council may either grant or reject this request for a resolution granting me access to current contact information for all eligible voting members of the Coquille Indian Tribe General Council.\\nAs explained to me by legal council, I understand that I have the option of pursuing this matter in Tribal Court if this request is denied\\nrespectfully,\\nBrady C. Metcalf\\nTribal Roll # 677\\ndetune\\n3. Election Rule 08-01 was presented to Tribal Council on September 11,2008, as required by the Elections Ordinance, Coquille Indian Tribal Code Chapter 194.\\n4. Election Rule 08-01 was applied evenhandedly to all candidates running for Tribal Council office in 2008.\\n5. Brady Metcalf submitted materials for the Tribal Voter Information Pamphlet that were excluded by Election Rule 08-01. Mr. Metcalf had included a Referendum Petition in his election materials. The Referendum Petition was excluded! from the Voter Information Packet, on the decision of the Election Board thit a referendum effort and an election campaign were separate issues, and could not be combined in the Voter Information Pamphlet.\\n6. All candidates for office were provided with a directory. Candidates were requited to sign a notarized oath stating that they would use the list of General Council pames, addresses, and phone numbers (a) use the directory exdusiyjjiy for the purpose of that year's campaign for Tribal Council, (b) will makfc no copies of the directory, and (c) will destroy the directory immediately after conclusion of the election.\\n7. Mr. MetqalPs signed oath was not received prior to his receipt of his directory( Mr. Metcalf did return his signed oath, but it was not notarized.\\n8. Mr. Metcalf mailed his Referendum Petition, which was excluded from the Voter Information Packet, on at least one occasion using the addresses providedibv the Election Board under Finding 6 above.\\nFindings of Facts anil Conclusions of Law Page 2 of 3\\n(UUpewit TT> lUfewrs \\u00be\\n. The members of the Tribal Council are Ken Tanner, Edward L. Metcalf, Thomas H. Younker, Toni Ann Brend, Judy Rocha, Sharon Parrish and Cassie Ross.\\n. The members of the Election Board are Jon Ivy, Julie Chouqucttc and Linda Robertson.\\n. Indian Civil Rights Act of 1968, 25 USC \\u00a7 1301-1303.\\n. The court has thoroughly reviewed the parties' submissions and the entire record in this case, and has conducted additional research. Parties' submissions and procedural history of the case: October 30, 2008 plaintiff filed his complaint. March 3, 2009 defendants filed their motion to dismiss the complaint and supporting memorandum. March 20, 2009 plaintiff filed his brief response to motion to dismiss and supporting materials. April 3, 2009 defendants filed their reply to plaintiff's memorandum in opposition to motion to dismiss and supporting materials. April 2 i, 2009 the court heard oral arguments on defendants' motion to dismiss. April 24, 2009 the court entered orders on oral motions and the order for supplemental briefing and ami-cus curiae briefing. May 7, 2009 defendants filed their supplemental memorandum supporting motion to dismiss complaint. May 21, 2009 plaintiff filed his supplemental brief. May 28, 2009 defendants filed their reply brief and supplemental memorandum supporting motion to dismiss complaint.\\n. A special appearance is a procedure that allows a defendant to challenge jurisdiction and sufficiency of service of process without submitting to the court's jurisdiction. Black's Law Dictionary, 7th Ed. 1999.\\n. See, e.g., Oregon Revised Statutes (ORS) 419B.857(1).\\n. See Thomas, supra, at \\u2014, 2004 WL 5823303, *4-5 and Dawson, supra, at 1.\\n. The view of substantial justice takes in the parties on both sides of the case. CITC 620.120(4)(a).\\n. The court takes judicial notice that it became operational in 1997.\\n. \\\"The court shall apply the law of the Coq-uille Indian Tribe first, the law of other tribes second, federal law third, and Oregon law fourth, except to the extent that federal law governs.\\\" CITC 610.500(2). \\\"Law Applicable in Civil Actions\\\" includes without limitation \\\"the Constitution and written laws and ordinances of the Tribe, decisions of the Court which have been certified for publication by the Chief Judge, and applicable laws of the United States.\\\" CITC 620.010(2)(a).\\n. CITC 610.200(l)(d)(3).\\n. The Nature of the Judicial Process: Lecture III. The Method of Sociology. The Judge as Legislator, 141. Cardozo, B.N., New Haven, Yale University Press 1921.\\n. CITC 610.200(1) requires that the court have jurisdiction in three aspects: subject matter, territorial and personal. Only subject matter jurisdiction is at issue here.\\n. Plaintiff's brief response to motion to dismiss at 7\\n. See the court's discussion of non-facial challenges at Thomas, supra, at -\\u2014, 2004 WL 5823303, *5-6.\"}"

tribal/7340987.json

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+"{\"id\": \"7340987\", \"name\": \"FORT PECK TRIBES, Appellant, v. Forrest SMITH, Appellee\", \"name_abbreviation\": \"Fort Peck Tribes v. Smith\", \"decision_date\": \"2012-03-15\", \"docket_number\": \"No. 588\", \"first_page\": 315, \"last_page\": 316, \"citations\": \"11 Am. Tribal Law 315\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FORT PECK TRIBES, Appellant, v. Forrest SMITH, Appellee.\", \"head_matter\": \"FORT PECK TRIBES, Appellant, v. Forrest SMITH, Appellee.\\nNo. 588.\\nFort Peck Court of Appeals.\\nMarch 15, 2012.\", \"word_count\": \"454\", \"char_count\": \"2781\", \"text\": \"OPINION AND ORDER\\nThis matter comes on appeal by the Fort Peck Tribes/Appellant. Representing Fort Peck Tribes, Office of the Prosecutor, is James Big Horn, Tribal Prosecutor. Representing Forrest Smith, Defendant/Appellee is Mary L. Zemyan, attorney. Both Briefs submitted were well researched and argued.\\nHISTORY\\nThe background history of this case is fairly well defined and agreed upon by the parties. Criminal charges of various drug-related offenses were filed against Defendant Smith by the State of Montana in March, 2010. Part of the process was a search warrant application granted on March 23, 2010 issued both through the State Justice Court and Fort Peck Tribal Court. Thereafter, on October 13, 2010, the State Court proceedings were dismissed against Smith after he presented a newly issued tribal enrollment card. Subsequently, criminal charges were filed against Smith in the Fort Peck Tribal Court for various drug-related offenses stemming from the same conduct. The charges filed in the Fort Peck Tribal Court were drug-related, but not the same charges that had been charged in State Court.\\nDefendant Smith filed a Motion to Dismiss the Fort Peck Tribal Court charges on August 3, 2011, arguing that the statute of limitations had expired prior to the filing. The Court granted the Motion to Dismiss on October 21, 2011.\\nThis appeal followed.\\nISSUES\\nAlthough there were a number of interesting and collateral issues in the case, the main issue can be framed as follows:\\nWere the misdemeanor charges filed against Defendant Smith in Fort Peck Tribal Court timely filed? The trial court ruled, and we affirm, that the charges were not timely filed.\\nThe question was whether the statute of limitations was tolled pursuant to CCOJ Title VI, Chapter 1, Section 102(d). \\\"The period of limitations does not run . when (i.e. during) a prosecution in another jurisdiction against the offender for the same conduct .\\\"\\nHere, the criminal conducts charged by the Prosecutor were for related, but not the same offenses. The Prosecutor had one (1) year from March, 2010, to file these misdemeanor charges. Title VI, Section 102(a). The exception provided in Title VI, Section 102(d) does not apply here, due to the nature of the criminal charges filed in Fort Peck Tribal Court.\\nIT IS THE OPINION AND ORDER OF THIS COURT:\\nThat the trial court's Order of Dismissal of October 21, 2011 be, and the same is hereby affirmed.\\n. We do not appreciate or condone the labeling of Appellant Big Horn's Brief as incoher-\\u215b ent. Counsel will refrain from such characterization in further submittals to this court, unless the basis for same is clearly stated and justified.\"}"

tribal/7341151.json

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+"{\"id\": \"7341151\", \"name\": \"ONEIDA HUMAN RESOURCE DEPARTMENT, Appellant, v. ONEIDA PERSONNEL COMMISSION, Respondent\", \"name_abbreviation\": \"Oneida Human Resource Department v. Oneida Personnel Commission\", \"decision_date\": \"2009-09-08\", \"docket_number\": \"No. 09-AC-010\", \"first_page\": 110, \"last_page\": 114, \"citations\": \"9 Am. Tribal Law 110\", \"volume\": \"9\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Oneida Tribal Judicial System, Appellate Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-11T01:29:30.374552+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"ONEIDA HUMAN RESOURCE DEPARTMENT, Appellant, v. ONEIDA PERSONNEL COMMISSION, Respondent.\", \"head_matter\": \"ONEIDA HUMAN RESOURCE DEPARTMENT, Appellant, v. ONEIDA PERSONNEL COMMISSION, Respondent.\\nNo. 09-AC-010.\\nOneida Tribal Judicial System, Appellate Court.\\nSept. 8, 2009.\\nJudicial Officers, Janice L. McLester, Anita F. Barber, Lois Powless, Winnifred L. Thomas and Jennifer Webster, presiding.\", \"word_count\": \"1555\", \"char_count\": \"9961\", \"text\": \"Final Decision\\nOn May 15, 2009, Appellant filed an Intent to Appeal the May 1, 2009 decision of the Oneida Tribal Judicial System, Trial Court's decision, in order to preserve the Appellant's right to appeal. They requested a stay regarding any appeal, pending a response from the Trial Court addressing a Motion for Clarification.\\nOn May 18, 2009, Appellant filed a Motion for Clarification to the Trial Court, seeking clarification to Appellants argument of \\\"Petitioner contends according to OBC Resolution 4-13-90-A, which reads in part: '... the Oneida Personnel Commission be delegated the sole commission to generate personnel policies to be presented and recommended to the Oneida Business Committee to review, take formal action to approve, disapprove, . said policy recommendations.' \\\"\\nOn May 18, 2009, the Trial Court denied the motion ruling the \\\"Oneida Tribal Judicial System Rules of Civil Procedure do not require the Court to answer post-judgment motions for clarification. See Amelia Cornelius and Shirley Hill v. Oneida Election Board 03-TC-337, 2003 WL 25897267 12/8/03.\\\"\\nA. Jurisdiction\\nThis case comes to us as an appeal of an original hearing body, the Oneida Tribal Judicial System, Trial Court. Any person aggrieved by a final decision in a contested case can seek Oneida Tribal Judicial System review under Sec. 1.11-1 of the Oneida Administrative Procedures Act.\\nB. Factual Background\\nOn August 21, 2008, Respondent, Oneida Personnel Commission, filed a complaint seeking Injunctive and Declaratory Relief against Appellant, Oneida Human Resources Department alleging the Standard Operating Procedure addressing the use of previous Oneida employment history to be invalid based on two factors: \\\"1) the SOP exceeds Respondent's authority to create internal Standard Operating Procedures (SOP) and 2) the SOP denies both due process and equal protection of tribal law to employees and applicants.\\\"\\nAfter Peacemaking efforts failed to reach a solution, the case entered back into trial proceedings with oral arguments heard on March 10, 2009 on the following issues:\\n1. Does the Human Resources Department Employee Verification Standard Operating Procedure violate the rights of employees of the Oneida Tribe by subjecting them to a different standard of review of previous employment history than applicants from outside the Tribe?\\n2. Does HRD have the authority to create substantive Tribal law independent of the requirements of the APA?\\nOn May 1, 2009 the Trial Court ruled the Human Resources Department's Standing Operating Procedure addressing employment history was in conflict with the Oneida Personnel Policies and Procedure and therefore was invalid.\\nOn May 15, 2009 Appellant filed a Motion for Clarification at the Trial Court seeking answers to several questions. The Trial Court answered, denying the motion ruling \\\"The Oneida Tribal Judicial System Rules of Civil Procedure do not require the Court to answer post-judgment motions for clarification. See Amelia Cornelius and Shirley Hill v. Oneida Election Board 03-TC-337, 2003 WL 25897267 12/8/03. While the Court tries its best to make its rulings clear and easy to under* stand, we may fall short in certain areas. The decision of the Court stands as written and speaks for itself. If any party disagrees with the ruling, appeals are available in accordance with applicable law.\\\"\\nOn May 15, 2009 Appellant filed their Notice of Appeal alleging the Trial Court decision to be:\\nClearly erroneous and is against the weight of the evidence presented at the hearing level; Arbitrary and/or capricious;\\nThere is a presentation or introduction of new evidence that was not available at the hearing level which, if available, may have affected the final decision.\\nOn May 19, 2009 Appellant filed their Notice of Intent to Appeal (Amended) after receiving the Trial Court decision denying the Motion for Clarification. Appellant requests clarification/ruling on the Trial Court's decision in part which states \\\"the Oneida Personnel Commission be delegated the sole commission to generate personnel policies to be presented and recommended to the Oneida Business Committee to review, take formal action to approve, disapprove, . said policy recommendations.\\\"\\nThe Appellate body met on August 17, 2009 and files its decision to deny the Motion for Clarification and to affirm the Trial Court's decision.\\nII. Issues\\nIs the Trial Court denial of the Motion for Clarification clearly erroneous?\\nIII. Analysis\\nIs the Trial Court denial of the Motion for Clarification clearly erroneous?\\nNo. In the Rules of Civil Procedure there is no rule which requires the Trial Court to respond to a Motion for Clarification. The Trial Court responded by citing Amelia Cornelius and Shirley Hill v. Oneida Election Board 03-TC-337, 12/8/03 in which\\nAccording to the Rules of Appellate Procedure, Rule 5(A), any original hearing body decision may be appealed to the Oneida Appeals Commission as a matter of right. The trial court rendered its decision on November 24, 2003, the Petitioners have a right to appeal that decision. The Oneida Appeals Commission may accept or deny the appeal.\\nThe Appellant may appeal to the Oneida Tribal Judicial System, Appellate Court, on arguments and issues that have already been heard at an original hearing body level.\\nIn the Appellant's Brief, of May 28, 2009, it goes on to say \\\"In essence the appellant does not challenge the decision of the Trial Court regarding the Human Resource's Standard Operating Procedure which addresses previous Oneida employment history.\\\" This argument was brought before the Trial Court resulting in the May 1, 2009 decision invalidating the Human Resources Standard Operating Procedure. This court interprets this to mean he is not appealing the Trial Court decision invalidating the Human Resources Department Standard Operating Procedure regarding employment history reference checks.\\nHowever, in the Appellant's appeal before this Appellate body, he is asking this body to answer questions which have not been heard before and answered by an Original Hearing Body. He requests clarification on:\\n1.) Does Resolution 4-13-90-A deal specifically with the development of poli- c\\u00edes directly affecting \\\"Personnel\\\" only, or does this section also apply to all policy affecting \\\"Personnel\\\" no matter how discretely?\\n2.) Is the Trial Court in its decision, intending to affirm absolute authority to the Personnel Commission in the development and the acceptance (approval, disapproval) of all policies and procedures, or are other entities within the tribe given limited authority in the development and approval/disapproval?\\n3.) How does Resolution 4-13-90-A effect more recent laws such as the Oneida Nation Gaming Ordinance (ONGO) and section 1.8-1 of the Oneida Administrative Procedures Act (APA)?\\nThe Original Hearing Body is the finder of fact, not the Appellate Review Body. We can only review allegations/assertions brought before us that are made after the original hearing body has made their determinations based on evidence presented. In this case the three (3) questions the Appellant brought before this body have not been argued at the Trial Court level. See Oneida Bingo & Casino, Table Games v. Elizabeth Kramer, \\u2014 Am. Tribal Law -, 2002 WL 34528454, 7/30/02, \\\"This issue was not raised during the course of the appeal, therefore it is improper to issue a ruling at this time.\\\" In Oneida Administration v. Parr, \\u2014 Am. Tribal Law-, 2001 WL 36228228,10/22/01, we stated:\\nRegarding the motion to dismiss, we held in Grignon, Alfrieda v. Senior Center, 3 O.N.R. 3-46, Pg 47, \\u2014 Am. Tribal Law -, 1997 WL 34715243 (6-6-97), that 'as an appellate body, this Commission will normally only consider on appeal those issues which were raised and argued before the original hearing body' in Powless, Debra v. Oneida Election Board, 2. O.N.R. 3-56, Pgs 57, 58 Docket No. 95-CVL-0017, (6-7-96), we held 'first, this issue was not properly raised before the original hearing body and is therefore not an issue that will be fully considered at appellate review', in Weber, Clyde v. Oneida Bingo and Casino, 2. O.N.R. 3-4, pg 4 Docket No. 95-EP-0013, (1-9-96), we held 'the Appeals Commission is not a body that makes a record or accepts new evidence. It is an appellate body that reviews the record and decision of the lower hearing body'.\\nThe original question brought before the Trial Court had to do with Human Resources Department's Standard Operating Procedure allowing it to consider job applicants' prior tribal work history. The Trial Court ruled this practice was not permitted as it was inconsistent with Human Resources Department's authority to do \\\"reference checks\\\" as allowed by the Oneida Personnel Policies and Procedures. They go on to say the Business Committee or General Tribal Council could authorize Human Resources to use employment history in the future, but it would have to amend the Oneida Personnel Policies and Procedures manual and such policy would not raise due process or equal protection concerns.\\nAfter any court ruling there are often new questions raised due to related issues. This Appellate Court will not rule on issues that were not raised by the original case. The Human Resources Department is requesting an answer to the questions raised, however, this Appellate Review body is not the correct agency to supply such legal opinion or declaratory ruling. One avenue would be for the Appellant to seek legal counsel to analyze and evaluate the questions raised and pose those questions to an original hearing body who can make a determination or ruling in the areas the appellant is requesting.\"}"

tribal/7341214.json

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+"{\"id\": \"7341214\", \"name\": \"Joyce L. WARNER, Plaintiff, v. HO-CHUNK NATION; Ona Garvin, Director of Gaming; James Webster, Department of Business; individually and in their official capacity, Defendants\", \"name_abbreviation\": \"Warner v. Ho-Chunk Nation\", \"decision_date\": \"2009-01-26\", \"docket_number\": \"No. CV 04-72\", \"first_page\": 7, \"last_page\": 20, \"citations\": \"8 Am. Tribal Law 7\", \"volume\": \"8\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Ho-Chunk Nation Trial Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T21:40:06.827169+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Joyce L. WARNER, Plaintiff, v. HO-CHUNK NATION; Ona Garvin, Director of Gaming; James Webster, Department of Business; individually and in their official capacity, Defendants.\", \"head_matter\": \"Joyce L. WARNER, Plaintiff, v. HO-CHUNK NATION; Ona Garvin, Director of Gaming; James Webster, Department of Business; individually and in their official capacity, Defendants.\\nNo. CV 04-72.\\nHo-Chunk Nation Trial Court.\\nJan. 26, 2009.\", \"word_count\": \"6662\", \"char_count\": \"41863\", \"text\": \"ORDER (Final Judgment)\\nTODD R. MATHA, Chief Judge.\\nINTRODUCTION\\nThe Court must determine whether the plaintiff maintained a property interest in her former position, as distinguished from employment in general, which rendered a disciplinary demotion constitutionally impermissible in the absence of minimum procedural due process protection. The Court holds that the Ho-Chunk Nation PERSONNEL POLICIES & PROCEDURES MANUAL (hereinafter Personnel Manual) created no such property interest. The Court also holds that the plaintiff failed to adequately rebut the asserted grounds for the demotion. Furthermore, the plaintiff could not have secured an award of money damages without an express waiver of sovereign immunity.\\nPROCEDURAL HISTORY\\nThe Court recounts the procedural history in significant detail within a previous judgment. Order (Determination upon Remand), CV 04-72 (HCN Tr. Ct\\\" Aug. 15, 2008) at 1-3. For purposes of this decision, the Court notes that the plaintiff, Joyce L. Warner, by and through Attorney Timothy Harjo, sought and received an extension of the post-trial briefing schedule. Order (Granting Continuance), CV 04-72 (HCN Tr. Ct., Sept. 17, 2008). Consequently, the parties filed timely legal memoranda on October 10, 2008. See Mem., CV 04-72 (Oct. 13, 2008); Defs.' Post-Trial Br., CV 04-72 (Oct. 10, 2008). Neither party chose to file a responsive brief on or before October 24, 2008. Order (Granting Continuance).\\nAPPLICABLE LAW\\nCONSTITUTION OF THE HO-CHUNK NATION\\nArt. V\\u2014Legislature\\nSec. 2. Powers of the Legislature. The Legislature shall have the power:\\n(a) To make laws, including codes, ordinances, resolutions, and statutes;\\n(f) To set the salaries, terms and conditions of employment for all government personnel;\\nArt. VII\\u2014Judiciary\\nSec. 5. Ju risdiction of the Judiciary.\\n(a) The Trial Court shall have original jurisdiction over all cases and controversies, both criminal and civil, in law or in equity, arising under the Constitution, laws, customs and traditions of the Ho-Chunk Nation, including cases in which the Ho-Chunk Nation, or its officials and employees, shall be a party. Any such case or controversy arising within the jurisdiction of the Ho-Chunk Nation shall be filed in the Trial Court before it is filed in any other court. This grant of jurisdiction by the General Council shall not be construed to be a waiver of the Nation's sovereign immunity.\\nArt. X\\u2014Bill of Rights\\nSec. 1. Bill of Rights.\\n(a) The Ho-Chunk Nation, in exercising its powers of self-government, shall not:\\n(8) deny to any person within its jurisdiction the equal protection of its law's or deprive any person of liberty or property without the due process of law;\\nArt XII\\u2014Sovereign Immunity\\nSec. 1. Immunity of Nation front Suit The Ho-Chunk Nation shall be immune from suit except to the extent that the Legislature expressly waives its sovereign immunity, and official and employees of the Ho-Chunk Nation acting within the scope of their duties or authority shall be immune from suit.\\nSec. 2. Suit Against Officials and, Employees. Officials and employees of the Ho-Chunk Nation who act beyond the scope of their duties or authority shall be subject to suit in equity only for declaratory and non-monetary injunctive relief in Tribal Court by persons subject to its jurisdiction for purposes of enforcing rights and duties established by this constitution or other applicable laws.\\nHO-CHUNK NATION PERSONNEL POLICIES AND PROCEDURES MANUAL (updated Jan. 22, 2004)\\nIntroduction\\nGeneral Purposes: [p. 2]\\n\\u215c \\u215c \\u215c \\u215c\\nThe Ho-Chunk Nation hereby asserts that it has the right to employ the best qualified persons available; that the continuation of employment is based on the need for work to be performed, availability of revenues, faithful and effective performance, proper personal conduct, and continuing fitness of employees; and that all employees are temiinable for cause unless otherwise specified in writing as a prescribed employment term, with the exception of at-will employees. (RESOLUTION 1/22/04A)\\n\\u215c \\u215b \\u215c \\u215d\\nCh. 6 Compensation and Payroll Practices\\nCompensation upon Promotion or Demotion [p. 171\\nPermanent employees who are demoted to a position with a lower pay rate or range will be reduced to the rate or range rate in the lower position as follows:\\nN on-disciplinary demotions will be assigned to that pay rate the employee would have achieved in the lower position if the employee's service had been continuous in the lower position based on his or her original permanent hire elate, which will be retained. Upon the effective date of demotion, the employee will be assigned a new annual review date and will be placed on a ninety (90) day performance probation with a possible merit increase. Only employees that have worked for the Nation for over ninety (90) days and have a good current evaluation will be demoted for non-disciplinary reasons. (RESOLUTION 03/23/99G)\\nDisciplinary demotions will be assigned to the base rate of the new position. Upon the effective date of demotion, the employee will be assigned a new annual review date and will be placed on a ninety (90) day performance probation with a possible merit increase.\\nCh. 12\\u2014Employment Conduct, Discipline, and Administrative Review\\nTypes of Discipline [pp. 59-60]\\nDepending on the nature of circumstance of an incident, discipline will normally be progressive and bear a reasonable relationship to the violation. The types of discipline that may occur are as follows in general, order of increasing formality and seriousness:\\nA.Verbal Reprimand\\nA verbal statement by the supervisor to an employee, usually pointing out an unsatisfactory element of job performance, is intended to be corrective or cautionary. A verbal reprimand informally defines the area of needed improvement, sets up goals for the achievement of improvement, and informs the employee that failure to improve may result in more serious actions. The supervisor shall record the date and content of the reprimand. The record shall be placed in the employee's personnel file.\\nB. Written Reprimand\\nThis is the first level of formal discipline. The written reprimand is issued by the supervisor with approval of the Department Director, and a copy to the Personnel Office for placement in the employee's personnel file.\\nC. Suspension\\nAn employee may be suspended from work without pay for up to five working days by authority of the Department Director. Suspensions of a longer duration require approval by the Personnel Director. Under no circumstances will a suspension exceed 10 working days.\\nD. Discharge for Misconduct\\nEmployees should be aware that their employment relationship with the Ho-Chunk Nation is based on the condition of mutual consent to continue the relationship between the employee and the Nation. Therefore, the employee or Nation is free to terminate the employment relationship for misconduct, at any time. Recommendations to discharge an employee are to be made to and authorized by the Department Director.\\nInitiating Discipline: Considerations and, Notice [p. 60]\\nSupervisory and management personnel should be guided in their consideration of disciplinary matters by the following illustrative, but not exclusive, conditions.\\n* The degree of severity of the offense\\n* The number, nature, and circumstance of similar past offenses\\n* Employee's length of service\\n* Provocation, if any, contributing to the offense\\n\\u215c Previous warnings related to the offense\\n* Consistency of penalty application\\n\\u215c Equity and relationship of penalty to offense\\nDisciplinary notice to regular employees should, as a general rule, contain the following information:\\n* A statement of the disciplinary action to be taken and its effective date\\n* A statement of the reason(s) for imposing the discipline and the nature of the violation\\n* Attachment of any supporting material or evidence where appropriate\\n* What the worker has to do to improve Service of disciplinary notice will be deemed to have been made upon personal presentation, or by depositing the notice, postage prepaid, in the U.S. mail, addressed to the employee's last known address on tile.\\nENTERPRISE EMPLOYEES ONLY [p. 62]\\nMatters covered by Administrative Review System: Eligible employees who have complaints, problems, concerns, or disputes with another employee, the nature of which causes a direct adverse effect upon the aggrieved employee, may initiate an administrative review' according to established procedures. Such matters have to do with: specific working conditions, safety, unfair treatment, disciplinary actions (except verbal reprimands), compensation, job classification, reassignment, any form of alleged discrimination, a claimed violation, misinterpretation, or inequitable application of these policies and procedures.\\nHearing Levels for Enterprise: [pp. 62-63]\\nProbationary or Limited Term Employees my [sic] not grieve on any matters.\\n1. Verbal warnings may not be grieved, but the employee may add a written response to their personnel file.\\n2. Performance Evaluations and written reprimands are to be grieved in sequence to:\\nLevel 1 Supervisor and General/Facility Manager\\nLevel 2 Executive Director\\n3. Suspensions are to be grieved in sequence to;\\nLevel 1 Supervisor and General/Facility Manager\\nLevel 2 Executive Director Level 3 Trial Court\\n4. Terminations are to be grieved in sequence to:\\nLevel 1 Supervisor and General/Facility Manager\\nLevel 2 Executive Director\\nLevel 3 Trial Court\\nTribal Co-mi Review: [p. 63]\\nJudicial review of any appealable claim may proceed to the HoChunk [sic ] Nation Tribal Court after the Administrative Review Process contained in this Chapter has been exhausted. The Ho-Chunk [sic ] Nation Rules of Civil Procedure shall govern any judicial review of an eligible administrative grievance shall file [sic] a civil action with the Trial Court within thirty (30) days of the final administrative grievance review decision.\\nLimited Waiver of Sovereign Immunity [p. 64]\\nThe HoChunk [sic.] Nation hereby expressly provides a limited waiver of sovereign immunity to the extent that the Court may award monetary damages for actual lost wages and benefits established by the employee in an amount not to exceed $10,000, subject to applicable taxation. Any monetary award granted under this Chapter shall be paid out of the departmental budget from which the employee grieved. In no event shall the Trial Court grant any monetary award compensating an employee for actual damages other than with respect to lost wages and benefits The Trial Court specifically shall not grant any monetary award against the Nation or its officials, officers, and employees acting within the scope of their authority on the basis of injury to reputation, defamation, or other similar invasion of privacy claim; nor shall the Trial Court grant any punitive or exemplary damages.\\nThe Trial Court may grant equitable relief mandating that the HoChunk [sic ] Nation prospectively follow its own laws, and as necessary to remedy any past violations of tribal law. Other equitable remedies shall include, but not be limited to: an order of the Court to the Personnel Department to reassign or reinstate the employee, a removal of negative references from the personnel file, an award of bridged service credit, and a restoration of seniority. Notwithstanding the remedial powers noted in the Resolution, the Court shall not grant any remedies that are inconsistent with the laws of the HoChunk [sic ] Nation. Nothing in this Limited Waiver or within the Personnel Policies and Procedures Manual shall be construed to grant a party any legal remedies other than those included in the section. (RESOLUTION 06/09/98A)\\nCh. 14 Definitions [pp. 69, 72]\\nDemoted: A change in employment status i*esulting in:\\n1. movement from one position to another that requires fewer minimum qualifications and is assigned a lower pay range; or\\n2. movement from one pay step to a lower pay step within the same salary range assigned to a particular position.\\nDischarge: Involuntary separation or termination of employment.\\nSuspension: The temporary removal of an employee from service, without pay, for disciplinary reasons and for a specified period of time.\\nHO-CHUNK NATION RULES OF CIVIL PROCEDURE\\nRule 42. Scheduling Conference.\\nScheduling Order. The Court may enter a scheduling order on the Court's own motion or on the motion of a party. The Scheduling Order may be modified by motion of a party upon showing of good cause or by leave of the Court.\\nRule 58. Amendment to or Relief from Judgment or Order.\\n(A) Relief from Judgment. A Motion to Amend or for relief from judgment, including a request for a new trial shall be made within ten (10) calendar days of the filing of judgment. The Motion must be based on an error or irregularity that prevented a party from receiving a fair trial or a substantial legal error that affected the outcome of the action.\\n(B) Motion for Reconsideration. Upon motion of the Court or by motion of a party made not later than ten (10) calendar days after entry of judgment, the Court may amend its findings or conclusions or make additional findings or con- elusions, amending the judgment accordingly. The motion may be made with a motion for a new trial. If the Court amends the judgment, the time for initiating an appeal commences upon entry of the amended judgment. If the Court denies a motion filed under this Rule, the time for initiating appeal from the judgment commences when the Court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within thirty (30) days after the filing of such motion, and the Court does not decide a motion under this Rule or the judge does not sign an order denying the motion, the motion is considered denied. The time for initiating the appeal from judgment commences in accordance with the R ules of Appellate Procedure.\\n(C)Motion to Modify. After the time period in which to file a Motion to Amend of a Motion for Reconsideration has elapsed, a party may file a Motion to Modify with the Court. The Motion must be based upon new information that has come to the party's attention that, if true, could have the effect of altering or modifying the judgment. Upon such motion, the Court may modify the judgment accordingly. If the Court modifies the judgment, the time for initiating an appeal commences upon entry of the modified judgment. If the Court denies a motion filed under this Rule, the time for initiating an appeal from the judgment commences when the Court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within thirty (30) calendar days after the filing of such motion, and the Court does not decide the motion or the judge does not sign an order denying the motion, the motion is considered denied. The time for initiating an appeal from judgment commences in accordance with the Rules of Appellate Procedure.\\n(D) Erratum Order or Re-issuance of Judgment. Clerical errors in a Court record, including the Judgment or Order, may be corrected by the Court at any time.\\n(E) Grounds for Relief. The Court may grant relief from judgments or orders on motion of a party made within a reasonable time for the following reasons: (1) newly discovered evidence which could not reasonably have been discovered in time to request a new trial; (2) fraud, misrepresentation or serious misconduct of another party to the action; (3) good cause if the requesting party was not personally served in accordance with Rule 5(c)(l)(a)(i) or (ii), did not have proper service and did not appear in the action; or (4) the judgment has been satisfied, released, discharged or is without effect due to a judgment earlier in time.\\nRule 61. Appeals.\\nAny final Judgment or Order of the Trial Court may be appealed to the Supreme Court. The Appeal must comply with the Rules of Appellate Procedure, specifically Rules of Appellate Procedure, Rule 7, Right of Appeal. All subsequent actions of a final Judgment or Trial Court Order must follow the Rides of Appellate Procedure.\\nRule 84. Business Hours.\\nThe Court is open from 8:00 a.m. to 4:30 p.m. Monday through Friday, with the exception of legal holidays, closings due to inclement weather, or other unforeseen circumstances. For a document to be timely filed, it must be received and stamped by the Clerk of Court no later than 4:30 p.m. on or before the due date.\\nFINDINGS OF FACT\\n1. The Court incorporates by reference Findings of Fact 1-8 enumerated in a prior decision Order (Determination upon Remand,) at 7-8.\\n2. In the initial pleading, the plaintiff recounts the events surrounding her May 23, 2004 demotion as follows:\\nCindy Spring, the Administrative Assistant at DeJope Bingo, called to let me know that Ona Garvin, Interim Director of Gaming had called and asked that I return her call. On 05-20-04 at 10:58 A.M., I returned Ona Garvin's call-I was on sick leave from May 13, 2004 through May 21,2004.\\nOna Garvin stated that a management decision had been made to move me from DeJope Bingo as Executive General Manager to Ho-Chunk Bingo as Gaming Hall Manager under Robert Mudd, General Manager of Ho-Chunk Casino effective Sunday, May 23, 2004. This management decision was a demotion for me from Executive General Manager to Gaming Hall Manager. No information was given to me why I was being moved....\\nAs of this date, I have not received any status changes, memos, letters or formal written forms in regard to my demotion. I would like to know why I have not received any written documentation.\\nCompL, CV 04-72 (July 20, 2004), Attach. 1 at 2, 4; see also Defs. ' Answers to PI. \\u215b First Set of Interrogs., CV 04-72 (Nov. 28, 2007) at 8.\\n3. The defendants responded in part: \\\"At no time did the Defendants wrongfully demote the Plaintiff.... The plaintiff was demoted properly according to HCN Policies and Procedures Manual, Ch. 6, Pg. 16, N'on-disciplinary demotions. Effective on May 23, 2003, the Plaintiff was non-disei-plinarily demoted from Executive Manager of DeJope Bingo to Gaming Hal Manager of Ho-Chunk Casino and Bingo.\\\" Defs.' Answer, CV 04-72 (Sept. 1, 2004) at 2.\\n4. Upon remand, the Court determined to re-establish each scheduling timeframe, including the discovery period, as if the plaintiff had filed a new case. Scheduling Order, CV 04-72 (HCN Tr. Ct\\\" Sept. 20, 2007). This action reflected the wishes of the parties. Order (Determination upon Remand) at 2 n.2. The plaintiff subsequently sought and received several modifications to the Scheduling Order. Id. at 2-3; see also Scheduling Order at 1 (citing HCN R. Civ. P. 42).\\n5. Regarding the disciplinary motivation for the demotion, the plaintiff asserts that \\\"[n]ot until November of 2008, some four years later did the Defendant's provide any reason or explanation for Plaintiffs employment status from Executive Manager of Dejope [sic ] Bingo to Bingo Hall Manager at Rainbow Casino.\\\" Mem, at 14 (citing Defs. ' Answers to PI. \\u215b First Set of Interrogs. at 2-4). On November 28, 2007, the defendants offered the following clarification for the first time:\\nGeorge Lewis, former President, and James Webster, former Executive Director of Business, were the decision makers [sic ] regarding Ms. Warner's various transfers which included her demotion from the Executive Manager of DeJope Gaming. The decision was made on May 19, 2004 and executed commencing on May 19, 2004 and continued until May 23, 2004 when it became effective.... Ms. Warner was asked to present a budget for the facility at a meeting on March 23 and 24, 2004. During the meeting it became readily apparent that someone other than Joyce Warner had prepared the budget and that Ms. Warner was unaware of its contents or how it worked. Ms. Warner did not appropriately handle administrative matters.... The plaintiff was demoted for inadequate performance as an administrator.\\nDefs.' Answers to PL's First Set of Inter-rogs. at 2-4. Shortly thereafter, former Executive Director Webster supplemented the above response, stating:\\nIn addition to the lack of knowledge regarding ongoing finances of Dejope [sic ], the facility was physically deteriorating and wasn't being properly cared for or maintained. Joyce had no plans for improving the situation nor did she notify the Executive Director of Business or anyone in the business department that the financial and physical conditions of DeJope needed immediate attention.\\nThe Director of Gaming informed me that Joyce's secretary' was responsible for what work was done at DeJope and if that person wasn't there to help Joyce, then Joyce would not be able to do the job. Joyce took the philosophy of surrounding yourself with good people to the extreme. Joyce's performance at the budget review meeting is indicative of her management capabilities for a facility as large as DeJope.\\nI felt the Nation's best financial interest would be served by allowing Joyce to use her experience and focus her attentions strictly on a bingo venue.\\nDefs. ' Supplemental Answers to PI. \\u215b First Set of Intermgs., CV 04-72 (Nov. 30, 2007).\\n6.Despite the foregoing responses, the plaintiff sought no extension of the discovery period for purposes of exchanging further interrogatories or scheduling depositions.\\n7. The plaintiff addressed the charge that she failed to \\\"notify the Executive Director of Business . . that the financial and physical conditions of DeJope needed immediate attention,\\\" id., claiming that she described these deficiencies in detail within an initial report delivered to defendant Webster. Trial (LPER at 48, May 15, 2008, 02:31:14 CDT). The plaintiff, however, submitted no such report into evidence.\\n8. Each of the plaintiffs witnesses that testified about the reasons for the demotion joined in the above characterization. Id. at 29, 33, 35, 42, 43, 11:39:21, 11:51:07, 12:01:55, 12:34:02, 12:34:36 CST. At best, former Executive Administrative Assistant Cindy M. Whitehorse merely testified that she \\\"assisted\\\" the plaintiff with budget preparation. Id. at 21,11:13:52 CST.\\n9. Supervisory staff promoted the plaintiff on November 3, 2003, in hopes that her managerial style would improve financial and personnel conditions at De-Jope Bingo. Id, at 42, 12:33:22 CST; see also Trial Ex. A at 1. After six (6) months, supervisory staff demoted the plaintiff since each individual perceived a lack of tangible improvement attributable to the plaintiffs actions.\\n10. Processing the plaintiffs demotion as a non-disciplinary measure enabled the plaintiff to receive the \\\"pay rate [she] would have achieved in the lower position if the [her] service had been continuous in the lower position based on . her original permanent hire date.\\\" Pers Manual, Ch. 6 at 17. Otherwise, the plaintiff would have received \\\"the base rate of the new position.\\\" Id.\\n11. The plaintiff incorporated the earlier pleadings into her most recent amended pleading PL's Second Am. Compl, CV 04-72 (Nov. 30, 2007) at 4, 6. The defendants have repeatedly asserted the defense of sovereign immunity since the first responsive pleading. Defs. ' Answer at 3.\\nDECISION\\nThe Court afforded the parties an opportunity to brief the issues relevant to the Court's resolution of this case. The principal issue under consideration is one of first impression. The Court has never determined whether an employee must receive procedural due process protection in relation to a demotion. Likewise, the Court has never considered whether the limited waiver of sovereign immunity enables a demoted employee to receive lost wages. The Court shall address each identified issue in turn.\\nI. Does an employee maintain a property interest in his or her position in addition to the recognized property interest in employment?\\nThe Court has previously provided a discussion relating to procedural due process, and, therefore, refers the parties to that jurisprudential examination. Order (Denying PL's Mot. for Summ. J.), CV 04-72 (HCN Tr. Ct., Sept. 11, 2006) at 14-17. For present purposes, the Court will simply reiterate the universally accepted proposition that \\\" 'property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent sourceId. at 16 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). The plaintiff acknowledged this common understanding within her post-trial analysis of procedural due process. Mem. at 6 (citing Roth, 408 U.S. at 577, 92 S.Ct. 2701). The plaintiff then proceeds to assert that she \\\"need only show that [the] Ho-Chunk Nation Constitution and the Personnel Policy Manual combine to create an entitlement to continued employment.\\\" Id. (emphasis added).\\nIn this regard, the plaintiff somewhat confusingly concludes that the \\\"Ho-Chunk Nation personnel manual containing . the procedure for demoting employees, together with the Nation's rules of conduct, entitled her to continued employment in her position . and created an implied contract for demotion only for just cause and in accordance with the procedure specified in the manual.\\\" Id. at 8. The \\\"procedure\\\" that the plaintiff references appears within the non-disciplinary demotion provision, and does not constitute a procedure, but rather the conditions necessary for processing such a demotion. Pers. Manual, Ch. 6 at 17. The plaintiff nonetheless argues that the requirements \\\"that the employee . be[ ] employed for at least 90 days; and have a good current evaluation . restricts an employer from demoting an employee for a non-disciplinary reason without protecting the employee's property rights, such as her earnings, reputation and work history.\\\" Mem. at 11 (citing id.).\\nThe plaintiff, however, does not explain how these minimal conditions either protect \\\"earnings, reputation and work history\\\" or how these \\\"factors underlying the necessity of a pre-termination hearing\\\" have become recognized property rights. Margaret G. Garvin v. Donald Greengrass et al., CV 00-10, -38 (HCN Tr. Ct., Mar. 9, 2001) at 27. In Garvin, the Court set forth several accepted rationales for affording pre-deprivation minimal procedural due process in the context of a termination, but one must still possess a property interest to engage in a due process analysis. Id. at 27-28. The plaintiff seemingly insists on self-identifying property interests as opposed to identifying the statutory bases for the same. She \\\"confuses the mere loss of something of value (such as wages) with injury to a property interest (such as the right to earn wages).\\\" Diaz v. Gates, 420 F.3d 897, 900 n. 1 (9th Cir.2005).\\nMoreover, the plaintiff does not explain why she focuses upon the non-disciplinary demotion provision when the Court has determined that the defendants performed a disciplinary demotion. Order (Determination upon Remand) at 8. The Court can only speculate that the plaintiff attempts to ding to the two (2) conditions appearing in the non-disciplinary provision since neither provision requires the presence of \\\"good cause\\\" for its execution. Pers. Manual, Ch. 6 at 17. As earlier stated, \\\"[t]he Nation could arguably demote an employee for a disciplinary reason or no reason at all.\\\" Order (Determination upon Remand.) at 10. Quite simply, no convincing argument exists supporting a property interest in one's position under the Personnel Manual.\\nThe Ho-Chunk Nation Supreme Court has asserted that \\\"[tjhrough the binding precedent of HCN case law it is clear that supervisors fail to afford an employee with due process when they do not provide the employee with at least a minimal opportunity to be heard before a suspension or termination.\\\" Kenneth L. Twin v. Toni McDonald et al., 6 Am. Tribal Law 172, 2006 WL 5820604 (Ho-Chunk 2006) at 7. This case precedent all derives from a single pronouncement in the introductory paragraphs of the former Personnel Man ual, namely: \\\"all employees are terminable for cause unless otherwise specified in writing as a prescribed employment term .Pers. Manual, Intro, at 2. The Personnel Manual defines \\\"discharge\\\" as an \\\"involuntary separation or termination of employment.\\\" Id., Ch. 14 at 69. Likewise, \\\"suspension\\\" is defined as a \\\"temporary removal of an employee from service.\\\" Id. at 72.\\nConversely, the plaintiffs demotion did not sever the employment relationship with the Nation. The plaintiffs employment continued without interruption. A demotion involves a \\\"change in employment status,\\\" which may result in \\\"movement from one position to another.\\\" Id., at 69. Therefore, the plaintiffs repeated arguments that the demotion impacted her \\\"continued employment\\\" are neither accurate nor apt. Supra p. 13, note 3; see also Ross v. Clayton County, 173 F.3d 1305, 1307 (holding \\\"that an employee may have a property interest in his rank in addition to a property interest in continued employment itself').\\nExisting federal case law, albeit minimal, lends further credence to this outcome.\\nThe same analysis applied to determine the existence of a property right in employment is utilized to determine if there is a property right in a particular employment status. Procedural detail in a statute or regulation, standing alone, is not sufficient to establish a protected property interest in an employment benefit. However, if the statute or regulation places substantive restrictions on the discretion to demote an employee, such as providing that discipline may only be imposed for cause, then a property interest is created.\\nHennigh v. Shawnee, 155 F.3d 1249, 1254 (10th Cir.1998) (citation omitted) (acknowledging that a collective bargaining agreement, contracted pursuant to state legislation, required the presence of \\\"good cause\\\" in the context of a demotion); accord Sonnleitner v. York, 304 F.3d 704, 711 (7th Cir.2002); Williams v. Kentucky, 24 F.3d 1526, 1538 (6th Cir.1994); Sowers v. City of Fort Wayne, 737 F.2d 622, 624 (7th Cir.1984); Shawgo v. Spradlin, 701 F.2d 470, 476 (5th Cir.1983). Each of the above-cited cases found the presence of a property interest in one's position, but the underlying terms and conditions of employment each required that good cause justify a demotion. The Personnel Manual contains no such good cause provision in relation to a demotion, disciplinary or nondisciplinary. Pers. Manual, Ch. 6 at 17.\\nBased upon the foregoing, the Court holds that the plaintiff did not maintain a property interest in her position under the former Personnel Manual. The Ho-Chunk Nation Legislature (hereinafter Legislature) specifically enabled supervisors to demote an employee without cause. The defendants consequently had no constitutional duty to afford the plaintiff pre-deprivation minimal procedural due process. In this instance, the defendants executed a disciplinary demotion after the plaintiff did not satisfy expectations following her promotion. Nevertheless, the Personnel Manual does not require the presence of good cause to support the demotion, and the Court has no authority to deem otherwise lest it assume a legislative function. The Court has no power, explicit or implicit, to set terms and conditions of employment. See Const., Art. V, \\u00a7 2(a, f).\\nII. Does the failure to provide a statutorily required disciplinary notice provide the plaintiff with an actionable offense?\\nThe Court has resolved that the defendants masked a non-disciplinary demotion for one of a disciplinary nature. While the plaintiff was not entitled to procedural due process notification, the Personnel Manual still requires the provision of disciplinary notice. Pers. Manual, Ch. 12 at 60. The Legislature may have intended the notice section to address the formal measures of discipline discussed within Chapter 12 (written reprimand, suspension and discharge), but the Legislature clearly identified the disciplinary character of the demotion at issue here. Furthermore, neither party provided the Court with legislative history capable of further elucidating the disciplinary notice section.\\nThe section in question instructs that \\\"[disciplinary notice to regular employees, should, as a general rule, contain [certain] information.\\\" Id. (emphasis added). A supervisor, therefore, maintains some discretion regarding the contents of the notice since the directive is phrased in permissive language. However, the notice must be in written form as reflected within the following service provision, which permits service by either \\\"personal presentation\\\" or mailing Id. Former Director of Gaming Garvin offered a verbal notification that did not reveal the disciplinary status of the demotion, and the Court accordingly adjudged that \\\"[t]he plaintiff re ceived no notice of the demotion.\\\" Order (Denying PI. \\u215b Mot for Summ. J.) at 12.\\nIn 2004, the Court permitted a litigant to attack the propriety of a non-disciplinary demotion. Anna Kaufman v. Dennis Gager, Dir. of Gaming, et al., CV 02-49 (HCN Tr. Ct., Mar. 30, 2004). Ms. Kauff-man received a promotion from her immediate supervisor, but the Director of Gaming subsequently overturned the action since he believed that the plaintiff did not meet the minimum qualifications for the job. Id. at 14, 18. At trial, the plaintiff presented testimonial accounts from her supervisor, a Personnel Specialist, and the General Manager, all who supported the grounds for the promotion. Id. at 10-13, 16,19. As a result, the Court deemed that the articulated grounds for the demotion proved in error, and awarded the plaintiff a degree of money damages for lost wages. Id. at 20.\\nThe Court recognizes that Kauffman dealt with a non-disciplinary demotion, but the instant plaintiff likewise could have attacked the justification(s) for the disciplinary demotion. The plaintiff remained largely unable to do so since the defendants provided no rationale until responding to interrogatories four and a half (4 J\\u00e9) years later. Yet, the plaintiff did ultimately receive this opportunity, and, at trial, could not elicit the testimony of anyone within the supervisory chain of command who would have decided otherwise. Therefore, regardless of the amount of time between the demotion and the articulated justification thereof, the Court would have upheld the basis for the defendants' discretionary action. The defendants deprived the plaintiff of a timely notice, which they could have subsequently perfected, thereby removing any grounds for awarding the plaintiff her former position. The plaintiff may have possibly been able to pursue an award of money damages to compensate for the period of time that elapsed before receiving notification, if it were not for one dispositive fact addressed below.\\nIII. Did the Personnel Manual provide an aggrieved employee the ability to pursue a claim for money damages in the context of a disciplinary demotion?\\nThe Court does maintain subject matter jurisdiction over the instant cause of action, but the mere fact that a litigant may file suit does not obviate the Nation's sovereign immunity. See Const., Art. VII, \\u00a7 5(a); see also Marlene C. Cloud et al. v. Ho-Chunk Nation et al., CV 06-31 (HCN Tr. Ct., Aug. 21, 2007) at 12. The Nation \\\"shall be immune from suit except to the extent that the Legislature expressly waives its sovereign immunity.\\\" Id., Art. XII, \\u00a7 1. In this regard, the Legislature has passed a limited waiver of sovereign immunity, which it subsequently incorporated into the Personnel Manual. Pees. Manual, Ch. 12 at 63-64 (codifying HCN Leg. Res. 06-09-98A at 2).\\nWithin the limited waiver, the Legislature pronounced a condition precedent to availing oneself of the ability to claim money damages. Specifically, \\\"{j Judicial review of any appealable claim may proceed to the Ho-Chunk Nation Tribal Court after the Administrative Review Process in this Chapter has been exhausted.\\\" Id. (emphasis added). Relevant to this case, a grievance may proceed to Court, provided that it concerns either a suspension or termination. Id. at 68. The plaintiff had the right to grieve within the Administrative Review System, id. at 62, but the Personnel Manual restricts Trial Court review to only two (2) causes of action. Id. at 68.\\nThe Court consequently cannot entertain a request for lost wages in relation to a demotion. The language of the limited waiver of sovereign immunity is anything but express, which is a constitutional requirement. Const., Art. XII, \\u00a7 1. One might then reasonably question the result in Kauffman where the Court did award monetary relief. However, in Kauffman, the defendant, Rainbow Casino, did not assert the defense of sovereign immunity within its responsive pleading. Kauffman, CV 02-49 (June 17, 2002) at 2. The Court deems that the Nation waives this affirmative defense if not pled in an answer. See Louella A. Kelty v. Janette Pettibone et al., 6 Am. Tribal Law 320, 2006 WL 5891107 (HCN Tr. Ct.2006); see also Frey v. EPA, 270 F.3d 1129, 1135 (7th Cir.2001); Cards v. State, 62 Wis.2d 42, 46, 214 N.W.2d 405 (Wis.1974). In the case at bar, the defendants affirmatively pled the defense of sovereign immunity, and, therefore, the plaintiff cannot receive money damages.\\nThe parties retain the right to file a timely post judgment motion with this Court in accordance with HCN R. Civ. P. 58, Amendment to or Relief from Judgment or Order. Otherwise, \\\"[ajny final Judgment or Order of the Trial Court may be appealed to the Supreme Court. The Appeal must comply with the Rides of Appellate Procedure [hereinafter HCN R.App. P. 1, specifically Rules of Appellate Procedure, Rule 7, Right of Appeal.\\\" HCN R. Civ. P. 61. The appellant \\\"shall within sixty (60) calendar days after the day such judgment or order was rendered, file with the Supreme Court Clerk, a Notice of Appeal from such judgment or order, together with a filing fee as stated in the appendix or schedule of fees.\\\" HCN R.App. P. 7(b)(1). \\\"All subsequent actions of a final Judgment or Trial Court Order must follow the [HCN R.App. P.\\\\.\\\" HCN R. Civ. P. 61.\\nIT IS SO ORDERED this 26th day of January 2009, by the Ho-Chunk Nation Trial Court located in Black River Falls, WI within the sovereign lands of the Ho-Chunk Nation.\\n. The plaintiff submitted her Memorandum by facsimile transmission at 2:35 p.m. PDT on Friday, October 10, 2008, which caused administrative staff to file stamp the document as received on Monday, October 13, 2008, since technically received after business hours at 4:35 p.m. CDT on October 10, 2008. See Ho-Chunk Nation Rules of Civil Procedure (hereinafter HCN R. Civ. P.), Rule 84. The Court nonetheless considered the plaintiffs submission since it did not explicitly reference the Central Time Zone within its briefing schedule.\\n. In a subsequent amended pleading, the plaintiff discards this version of the facts, alleging that \\\"[wjithout warning or notice, the Defendant [sic ] was demoted from her position as Executive Director of De lope [sic ] Bingo and Gaming Center on April [sic ] 23, 2004....\\\" PL's First Am. CompL, CV 04-72 (Jan. 18, 2005) at 2. The plaintiff reiterated this account within a later dispositive motion. Br. in Stipp. of Mot. for Summ. J., CV 04-72 (Nov. 23, 2005) at 2; but see Mem. at 14.\\n. The Court earlier conjectured that an employee might conceivably hold a liberty interest in connection with one's personnel record, but the plaintiff makes no concise argument in the case at bar for recognizing this type of interest Garvin, CV 00-10, -38 at 29-30. Instead, the plaintiff continues to simply presume the results of a legal argument without making a measured argument in the first instance. And, in doing so, the plaintiff claims that the \\\"denial of a pre-demotion hearing . adversely affected a cognizable property interest in her continued employment under HCN law.\\\" Mem. at 16 (emphasis added). Regarding liberty interests, the Ninth Circuit Court of Appeals noted that \\\"accusations against an employee do not implicate a constitutional liberty interest unless they seriously damage [her] community standing and associations or foreclose [her] freedom to pursue other employment.\\\" Wheaton v. Webb-Petett, 931 F,2d 613, 617 (9th Cir.1991). Ms. Warner has not even attempted to present such a case, and since the demotion was processed as a non-disciplinary measure, she would likely prove unable to make the necessary showing.\\n. The Court raised the possibility that a due process violation might have occurred, but the Court has not had the occasion to analyze this separate issue until the present case. Kauffman, CV 02-49 at 18 n.2.\\n. The Court has continued to adjudicate other identified grievable matters. See, e.g., Kauff-man, CV 02-49 (alleging unfair reassignment in the form of a demotion); Regina K. Baldwin et al. v. Ho-Chunk Nation et al., CV 01-16,-19 -21 (HCN Tr. Ct\\\" Oct. 3, 2003) (alleging unfair treatment and discrimination in the context of a layoff); Liana Bush et al. v. Clarence Pettihone, in his official capacity as Vice President of the Ho-Chunk Nation, et al., CV 00-93, -101 (HCN Tr. Ct\\\" Jan. 23, 2001) (alleging unfair compensation determination). The Court has essentially concluded that these causes of action arose under the laws of the Ho-Chunk Nation, and the Legislature could not unnecessarily constrict the subject matter jurisdiction of the Court. See Const.. Art. VII, \\u00a7 5(a). Regardless, the Court has no authority to modify the waiver of sovereign immunity. The aforementioned cases proceeded against the named individuals for declaratory and non-monetary injunctive relief with a single exception as discussed below. Id., Art X1\\u00cd, \\u00a7 2.\"}"

tribal/7341323.json

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+"{\"id\": \"7341323\", \"name\": \"Darren L. BRINEGAR, Appellant, v. BUSINESS DEPARTMENT and Joseph Decorah, Appellee\", \"name_abbreviation\": \"Brinegar v. Business Department\", \"decision_date\": \"2010-10-08\", \"docket_number\": \"No. SU 10-01\", \"first_page\": 137, \"last_page\": 142, \"citations\": \"9 Am. Tribal Law 137\", \"volume\": \"9\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Ho-Chunk Nation Supreme Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-11T01:29:30.374552+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice MARY JO HUNTER, Associate Justice DENNIS FUNMAKER, and Associate Justice JOAN GREENDEER-LEE.\", \"parties\": \"Darren L. BRINEGAR, Appellant, v. BUSINESS DEPARTMENT and Joseph Decorah, Appellee.\", \"head_matter\": \"Darren L. BRINEGAR, Appellant, v. BUSINESS DEPARTMENT and Joseph Decorah, Appellee.\\nNo. SU 10-01.\\nHo-Chunk Nation Supreme Court.\\nArgued July 30, 2010.\\nDecided Oct. 8, 2010.\\nShari LePage Locante, represented Appellant.\\nHeidi Drobnick, represented Appellee,\\nChief Justice MARY JO HUNTER, Associate Justice DENNIS FUNMAKER, and Associate Justice JOAN GREENDEER-LEE.\", \"word_count\": \"2436\", \"char_count\": \"15117\", \"text\": \"DECISION\\nPER CURIAM.\\nBackground\\nOn May 23, 2005, Darren Brinegar was hired as the general manager of DeJope Bingo. He signed a contract that was to be in effect for one year. Petitioner's List of Exhibits to Supplement the Administrative Record (Hereinafter PLESAR) CV08-05 (HCN Tr. Ct\\\" July 8, 2009) at Exhibit B. On October 12, 2005, Brinegar was transferred to Rainbow Casino and signed a contract to become the 'general manager' of Rainbow Casino. Again, the contract was to be in effect for only a year. The contract stated that it would end on September 30, 2006 unless it was renegotiated. Id., at Exhibit C. Both contracts stated that Mr. Brinegar could not be fired without cause or prior notice. Though the contract with Rainbow Casino stated that Mr. Brinegar would be 'general manager', his notice of transfer to Rainbow Casino referred to him as the 'executive manager.' Id., at Exhibit D. Mr. Brinegar's Ho-Chunk Nation Employee Status Change Notice also referred to his position as 'executive manager.' Id., at Exhibit H. As of December 17, 2003, the Ho-Chunk Nation had passed a law making all executive managers of casinos at-will employees. Id., Exhibit K. On January 22, 2004. the Ho-Chunk Nation passed two related resolutions for the position Executive Manager\\u2014Casino, 1.22.04A denoting \\\"NOTE: This position has been designated as an At-Will position\\\" and 1.22.04B denoting \\\"Salary: Negotiable\\\".\\nOn May 6, 2008, Mr. Brinegar's superi- or, Joseph Decorah, informed him that if he did not resign immediately, he would be fired. Mr. Decorah did not state a reason for this demand. Decision, GRB-051-08DH (GRB, July 30, 2008) (hereinafter Oe- cisi\\u00f3n) at 1-2. Furthermore, Mr. Decorah threatened to challenge Mr. Brinegar's unemployment claims unless he resigned. On May 7, 2010, Mr. Brinegar submitted his letter of \\\"forced resignation,\\\" stating that he was only resigning because otherwise he was going to be fired and did not want his unemployment challenged. PLE-SAR at Exhibit I.\\nMr. Brinegar timely filed his grievance with the Ho-Chunk Nation Grievance Review Board (hereinafter GRB) on May 15, 2008. Decision at 1. The GRB found that \\\"The Board is not empowered to determine by interpretation if placing an ultimatum before an employee to resign or be terminated is against the law.\\\" Decision at 3. Thus, the Board found that Mr. Brinegar could not grieve his termination, since it was a voluntary resignation. Decision at 1. Mr. Brinegar filed a timely Petition for Administrative Review on August 26, 2008. Order (Final Judgment) CV08-50 (HCN Tr. Ct\\\" Feb. 19, 2010) at 1. The lower court found that Mr. Brinegar had no property interest in his job because he was an at-will employee, and that he could not argue constructive discharge because he could not show a public policy violation. Id.\\nThe Appellant timely filed a Notice of Appeal on April 15, 2010. The court issued a Scheduling Order accepting the case on April 17, 2010. Scheduling Order SU10-01 (HCN S.Ct., April 17, 2010). On July 28, 2010, the Appellee in this case, through Attorney Heidi Drobnick, filed a Notice and Motion to Re-caption Case and a Notice and Motion for Expedited Consideration for case SU 10-01. This change was required by a ruling in the lower court, Ho-Chunk Nation v. Ho-Chunk Grievance Review Board and Ginny Stenroos, CV 10-07 (HCN Tr. Ct., April 26, 2010). This Court issued an Order Granting Notice And Motion To Re-Caption Case and Notice And Motion For Expedited, Consideration, SU10-01 (S.Ct., July 28, 2010), recaptioning the case formerly known as Darren Brinegar v. The Ho-Chunk Nation Grievance Review Board, to Darren L. Brinegar v. Business Department and Joseph Decorah. On July 30, 2010, this Court convened oral arguments.\\nIssues\\nI. Was Brinegar an at-will employee or was he protected by the Employment Relations Act of 2006?\\nThe definition of an at-will employee given in the ERA is:\\nAn employee who is subject to termination with or without cause or notice. The Employee also has the right to leave at any time for any or no reason or notice. At-will employees include Executive Managers of the Nation's Gaming Facilities and Managers of the non-gaming revenue generating facilities. The At-Will Employee classification will be stated on the employee's job description. ERA \\u00a7 5.2.1G).\\nInitially, this Court looked at the tribal resolutions that defined the job position in question. The first resolution, 12.17.03B resolved that the position of Executive Manager-Casino shall be an at-will classification but was not stated in the job description for the executive manager of a casino, in violation of the ERA. PLESAR at Exhibit A. However, the Nation's Legislature passed subsequent resolutions 1.22.04A and 1.22.04B. The Appellee's evidence did show a newer version of the 'executive manager' job description which does include the \\\"at-will\\\" designation. This document was submitted into the record during the lower court review. Moreover, the ERA itself does state that the 'executive manager' position is at-will. The trial court found that Appellant was an \\\"at-will\\\" employee and this Court concurs.\\nParties agreed that the Appellant could be terminated. Appellant began the argument, he should have received a reason of terminated and further he had a 10-day period to cure the conduct constituting cause for termination. The Court suspects he furthered this 10-day period to cure argument based on the contracts he entered with the Nation to hold his position. So, this Court will discuss the contracts. Appellant also contended that he did not know of the \\\"at will\\\" status based on employment agreement. This Court will next discuss whether the Appellant only learned of his \\\"at-will\\\" status just prior to the Grievance Review Board hearing as was indicated.\\nThe Appellant argued the contention over if he was an 'executive manager' considering both employment contracts which he signed call him a 'general manager'. While it seems likely looking at the administrative record that Appellant's superiors intended to hire him as an 'executive manager' at Rainbow Casino based on the Employee Status Change form indicating these changed assignments, no one updated the contract to reflect the job title. After sending Appellant the notice that he was to be reassigned to the position of 'executive manager' at Rainbow Casino, the Nation proceeded to sign a contract with Appellant employing him as the 'general manager' at Rainbow Casino. The Nation is a sophisticated party, their error in forming this employment contract with the wrong title in the first contract and again in the second contract is understandably misleading.\\nThe Appellee asserts that the two contracts were illegal and claims that the legislature did not delegate the authority to enter into the contracts to the Nation's representatives who signed them with Appellant. The first contract was signed by Ona Garvin, while the second was signed by George R. Lewis. Below the names on both contracts are the words \\\"Tribal Representative.\\\" Even if the legislature had not truly authorized these contracts, are they still be bound by apparent authority if these people to hold themselves out as tribal representatives and sign contracts. The record is absent about whether the Nation did nothing to inform others of the contracts' lack of legitimacy or to stop these illegitimate contracts from being created. This Court need not address the legitimacy of the contract since both contracts had expired prior to the incident at hand.\\nAppellant claims that once the contracts expired, it continued from month to month like a tenant-landlord contract. However, this argument is flawed for several reasons. First, the analogy from tenant law to employment law is weak. As well, the Appellant has not provided a reason that the Ho-Chunk should adopt this law from a foreign jurisdiction. Both contracts that Appellant signed, the first at DeJope Bingo and the second at Rainbow Casino, stated that they would expire at the end of one year. The second contract plainly stated that it, and its terms, would end on September 30, 2006. After the contract terms ended, Appellant continued to operate under the same position. By the time the Appellant had the confrontation with Mr. Decorah, well more than one year had passed since the second contract had expired. Therefore, with the terms of the contract expired, he could not have expect a reason of termination nor 10 day period to cure the conduct constituting cause for termination were not required.\\nAdditionally, the Appellant argued his job was reclassified by his superiors, his reclassification violated the ERA. The ERA provides that in order for a position to be reclassified, the request for the reclassification must \\\"be substantiated in writing with such specific details given to those duties and responsibilities being performed continuously for six (6) months that are different in scope from those contained in the applicable job description.\\\" ERA 3.8.(c), The reclassification of the job position that the Appellant accepted occurred before his initial employment contract informing him that he was to become an 'executive manager' stated, \\\"Effective October 9, 2005, you will be permanently reassigned to the position of Executive Manger-Casino at Rainbow Casino. I look forward to working with you in your new position.\\\" PLESAR at Exhibit D. Hence, the letter transferring Appellant to the position of 'executive manager' was abbreviated but with this evidence it cannot be considered a violation of the ERA.\\nAnother Appellant claim was that the memorandum sent from Libby Fairchild to Silas Cleveland referring to him as a permanent employee negated him as an at-will employee. PLESAR at Exhibit G. This memorandum does not bear scrutiny. Nothing in the ERA states that a permanent employee cannot also be an at-will employee.\\nWas the Appellant knowingly an at-will employee? The Appellant alleged that he did not know he was an at-will employee because the two contracts stated the positions \\\"general manager\\\" and not \\\"executive manager\\\". The Appellant argued that as a general manager he is not an at-will position. Furthermore, he asserted that his \\\"yes\\\" response in the GRB hearing was based on learned knowledge just prior to the July 30, 2008 GRB hearing. Yet, the Appellant's forced resignation, dated two month earlier, included his title \\\"Executive Manager\\\" with his signature. PLESAR at Exhibit I. This Court finds that the Appellant knew his official title and knew his at-will status.\\nThis Court agrees with the lower court that the Appellant (petitioner) was an at-will employee dischargeable for any reason or no reason at all, since there was no proof of discrimination or harassment. His supervisor was under no obligation to offer the Appellant (petitioner) any reason or anything else.\\nDid the employer constructively discharge Brinegar?\\nThe Appellant contended that the lower court decision erred because the Nation not extend the protection under construction discharge. In all, the Appellant believed he had protection of ERA right to grieve a termination, disguised as a voluntary resignation. Was there a constructive discharge, an actual termination, or a voluntary resignation?\\nThis court must first look at this case on the issue of constructive discharge, there is a three part test for determining if constructive discharge was present, which is laid out in Maureen Arnett et al. v. HCN Dep't of Admin., CV 00-06, -65 (HCN Tr. Ct. Jan. 8, 2001). The test was reiterated in Kristin K. White Eagle v. Ho-Chunk Nation Grievance Review Board, CV 08-17 (HCN Tr. Ct., Apr. 22, 2009). The three parts of the test are:\\n(1) the actions and conditions that caused the employee to resign were violative of [fundamental] public policy\\n(2) these actions and conditions were so intolerable or aggravated at the time of the employee's resignation that a reasonable person in the employee's position would have resigned; and\\n(3) facts and circumstances showing that the employer had actual . knowledge of the intolerable actions and conditions and of their im pact on the employee and could have remedied the situation, Arnett v. HCN Dep't of Admin., at 16.\\nKnowing the three-part test, it was argued that his firing was in violation of public policy because Mr. Decorah was trying to circumvent the Nation's rules, which give certain rights to terminated employees, by forcing him to resign rather than terminating him. It was not necessary for the supervisor to approach the Appellant in the manner he did with regards to this action, especially since it was not necessary realizing that the contract expired. It is not against public policy to give the choice of resignation or termination for \\\"at-will\\\" employees. This Court must affirm the lower courts determination Appellant failed the Arnett test.\\nThe issue of res judicata is at play here as well. In Kristin K. White Eagle v. Ho-Chunk Nation Grievance Review Board, CV 98-07 (HCN Tr. Ct., April 22, 2009), the court ruled that an at-will employee could not prove constructive discharge for being confronted with an ultimatum to resign now or be fired, as forcing an employee to resign with such an threat was not against public policy.\\nThe Trial Court, quoting from Dan M. Sine v. Jacob Lonetree, as President of the Ho-Chunk Nation, CV 97-143 (HCN Tr. Ct., Aug, 3, 1998), decided that an at-will employee \\\"maintains no property interest in his or her continued employment.\\\" Darren Brinegar v. Ho-Chunk Nation Grievance Review Board, CV 08-50 (HCN Tr. Ct, Feb. 19, 2010) at 13. Hence, because he holds no property interest in his employment, a terminated employee cannot grieve his separation from it.\\nThe Trial Court also stated that \\\"The petitioner was an at-will employee dis-chargeable for any reason or no reason at all.\\\" Id., at 17. However, this statement is clearly so simply defined. An employee, even an at-will employee, cannot be discharged for \\\"any reason.\\\" The ERA provides a list of unacceptable forms of discrimination:\\nwith the exception of Ho-Chunk Preference in Employment as set forth in paragraph (b) below, it will be a violation of this Act to discrimination based on an individual's sex, race, religion, national origin, pregnancy, age, marital status, sexual orientation, or disability. ERA \\u00a7 5.5a.\\nIf an at-will employee is fired for any one of these reasons, he would need the right appeal his firing. In the matter beforehand, although the Appellant filed his complaint under the auspice of harassment and discrimination, no such argument was present.\\nCONCLUSION\\nThe Trial Court's Order (Final Judgment) is affirmed. As a final decision, it is binding on all parties.\\nEGI HESKEKJET.\"}"

tribal/7341368.json

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+"{\"id\": \"7341368\", \"name\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. David MUSKRAT, Defendant/Appellant\", \"name_abbreviation\": \"Fort Peck Tribes v. Muskrat\", \"decision_date\": \"2013-04-05\", \"docket_number\": \"No. 635\", \"first_page\": 328, \"last_page\": 328, \"citations\": \"11 Am. Tribal Law 328\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. David MUSKRAT, Defendant/Appellant.\", \"head_matter\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. David MUSKRAT, Defendant/Appellant.\\nNo. 635.\\nFort Peck Court of Appeals.\\nApril 5, 2013.\", \"word_count\": \"415\", \"char_count\": \"2436\", \"text\": \"ORDER DENYING REVIEW\\nA Notice of Appeal and Request for Stay of Judgment/Order was filed herein by Mr. David Muskrat on March 21, 2013. We deny the request and Motion in accordance with the following.\\nAppellant Muskrat was charged on September 4, 2012 with Criminal Endangerment, in violation of Fort Peck Tribes Comprehensive Code of Justice, (\\\"CCOJ\\\"), Title VII \\u00a7 234, Murder, in violation of CCOJ Title VII \\u00a7 201 and Duties in the Event of an Accident, in violation of CCOJ Title XVII \\u00a7 123. According to his Notice, Appellant Muskrat was released on bond after a pretrial conference on October 25, 2012. Also, according to the Notice of Appeal, the trial in the matter was originally set for February 26, 2013 but then continued to June 13, 2013 due to the unavailability of certain evidence. Appellant Muskrat states that the Order continuing trial did not state that the conditions of release remained in effect. On March 13, 2013, Appellant Muskrat was arrested and charged with Criminal Contempt in violation of CCOJ Title VII, \\u00a7 426 and Illegal to Sell, Trade, Possess or Bargain in Drug Paraphernalia, in violation of CCOJ Title VII \\u00a7 417. Appellant Muskrat was arraigned the next day and remanded to detention pending a hearing on a petition for revocation of pretrial release that had been filed by the tribal prosecutor. That hearing was held on March 19, 2013. Following the hearing the Tribal Judge ordered that Appellant Muskrat be remanded to detention until the trial.\\nThe question before us is governed by CCOJ Title II, \\u00a7 202, which states in relevant part: \\\"Jurisdiction of Court of Appeals. The jurisdiction of the Court of Appeals shall extend to all appeals from final orders and judgments of the Tribal Court.\\\" There is not yet a final Order or judgment in this case. Section 202 also states in (b) that the Court of Appeals has jurisdiction \\\"during the pendency of any criminal appeal, to release the appellant on his/her own recognizance or on bail pursuant to Section 206(e) of this Code.\\\" However, both this section and \\u00a7 206(e) pertain to actions of this Court when an appeal is pending. Because there is no final Order of the Tribal Trial Court, there is not an appeal pending. Therefore,\\nIT IS HEREBY ORDERED that Appellant's Notice of Appeal and Request for Stay is denied.\"}"

tribal/7341370.json

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+"{\"id\": \"7341370\", \"name\": \"Daria POWLESS, Petitioner, v. HCN ENROLLMENT COMMITTEE, Respondent\", \"name_abbreviation\": \"Powless v. HCN Enrollment Committee\", \"decision_date\": \"2010-09-02\", \"docket_number\": \"No. CV 10-15\", \"first_page\": 147, \"last_page\": 161, \"citations\": \"9 Am. Tribal Law 147\", \"volume\": \"9\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Ho-Chunk Nation Trial Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-11T01:29:30.374552+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Daria POWLESS, Petitioner, v. HCN ENROLLMENT COMMITTEE, Respondent.\", \"head_matter\": \"Daria POWLESS, Petitioner, v. HCN ENROLLMENT COMMITTEE, Respondent.\\nNo. CV 10-15.\\nHo-Chunk Nation Trial Court.\\nDecided Sept. 2, 2010.\", \"word_count\": \"6829\", \"char_count\": \"42457\", \"text\": \"DECISION\\nAMANDA L. ROCKMAN, Associate Judge.\\nINTRODUCTION\\nThe Court must determine whether to uphold the findings and recommendations of the Ho-Chunk Nation Committee on Tribal Enrollment (hereinafter Tribal Enrollment Committee or Committee). The Court declines to affirm the findings and recommendations of the Tribal Enrollment Committee. The analysis of the Court follows below.\\nPROCEDURAL HISTORY\\nThe petitioner, Daria M. Powless, by and through Attorney JoAnn F. Jones, initiated the current action by filing a timely Petition for Administrative Review (hereinafter Petition) with the Court on February 8, 2010. See also Ho-Chunk Nation Rules of Civil Procedure (hereinafter HCN R. Civ. PX Rule 63(A)(3)(a). On February 24, 2010, the respondent filed an Administrative Record, followed by a March 1, 2010 filing of Official Exhibits. See HCN R. Civ. P. 63(D). The Court convened a Status Hearing on Thursday, March 4, 2010 at 2:30 p.m. CDT, in order to address the scheduling. On March 4, 2010, the Court entered the Scheduling Order, setting forth the timelines and procedures to which the parties should adhere during the pendency of the appeal.\\nOn March 19, 2010, the respondent filed a Motion to Dispense with Briefing Schedule, constituting a stipulation to forego submission of briefs in regards to the underlying petition. Mot. to Dispense with Briefing Schedule (Mar. 19, 2010) at 1. The Court convened a Motion Hearing on Wednesday, April 7, 2010 at 10:00 a.m. CDT, in order to address the briefing. The Court entered its Amended Scheduling Order on April 28, 2010. The petitioner filed a timely Initial Brief on April 30, 2010. HCN R. Civ. P. 63(E). The respon dent filed a Response Brief on May 27, 2010. Id. The petitioner did not timely file a Reply Brief Id. Neither party requested Oral Argument; specifically, the petitioner did not believe that Oral Arguments were necessary. Initial Br., at 1.\\nAPPLICABLE LAW\\nCONSTITUTION OF THE HO-CHUNK NATION\\nArt. II\\u2014Membership\\nSec. 1. Requirements\\nThe following persons shall be eligible for membership in the Ho-Chunk Nation, provided, that such persons are not enrolled members of any other Indian nation:\\n(a) All persons of Ho-Chunk blood whose names appear or are entitled to appear on the official census roll prepared pursuant to the Act of January 18, 1881 (21 Stat. 315), or the Wisconsin Winnebago Annuity Payroll for the year one thousand nine hundred and one (1901), or the Act of January 20, 1910 (36 Stat. 873), or the Act of July 1,1912 (37 Stat. 187); or\\n(b) All descendants of persons listed in Section 1(a), provided, that such persons are at least one-fourth (1/4) Ho-Chunk blood.\\n(c) DNA must prove parentage. \\\"DNA\\\" means deoxyribonucleic acid [Amendment II adopted on May 6, 2009 which became effective June 20, 2009 by operation of law,]\\n(d) Beginning the date this amendment is approved, the Ho-Chunk Nation shall no longer consider or accept for enrollment any person who has previously been enrolled as a member of another Tribe (including the Winnebago Tribe of Nebraska). [New section adopted by Amendment I on January 26, 2000 and approved by the Secretary on March 3, 2000.]\\nSee. 2. Relinquishment of Membership and Re-enrollment.\\nEnrollment in any other Indian Nation shall constitute voluntary relinquishment of membership. Adult members may relinquish their membership or the membership of their minor children. Relinquishment of membership shall be done in writing. Any adult member who has voluntarily requested to be removed from the Membership Roll shall not be eligible for re-enrollment. Any minor whose membership has been relinquished by a parent shall be eligible for re-enrollment upon reaching the age of eighteen (18).\\nSec. 3. Re-enrollment by General Council.\\nAny person of at least one-fourth (1/4) Ho-Chunk blood who has relinquished membership under Section 2 of this Article may be re-enrolled into membership by a two-thirds (2/3) vote of the General Council, provided, that such individual is not an enrolled member of any other Indian Nation.\\nSec. 4. Membership Roll\\nThe Legislature shall maintain one official roll of all tribal members.\\nSec. 5. Membership Code.\\nThe Legislature shall have the power to enact laws not inconsistent with this Article to govern membership. Removal of any person who is not eligible for membership from the Membership Roll shall be done in accordance with the Membership Code, provided, that such removal is approved by at least two-thirds (2/3) vote of the General Council.\\nSec. 6. Appeals\\nAny person who has been rejected for enrollment or who has been removed from the Membership Roll shall have the right to appeal to the Judiciary for a remedy in equity consistent with this Constitution.\\nArt. IV\\u2014General Council\\nSec. 2. Delegation, of Authority. The General Council hereby authorizes the legislative branch to make laws and appropriate funds in accordance with Article V. The General Council hereby authorizes the executive branch to enforce the laws and administer funds in accordance with Article VI. The General Council hereby authorizes the judicial branch to interpret and apply the laws and Constitution of the Nation in accordance with Article VII.\\nArt. V\\u2014Legislature\\nSec. 2. Powers of the Legislature. The Legislature shall have the power:\\n(a) To make laws, including codes, ordinances, resolutions, and statutes;\\nSec. 3. Codes. The Legislature shall adopt Codes governing Membership, Open Meetings, Elections, Ethics including conflicts of interest, nepotism, and the conduct of all elected and appointed officials and employees, and other Codes as deemed necessary.\\nArt. VII\\u2014Judiciary\\nSec. 5. Jurisdiction of the Judiciary\\n(a) The Trial Court shall have original jurisdiction over all cases and controversies, both criminal and civil, in law or in equity, arising under the Constitution, laws, customs, and traditions of the Ho-Chunk Nation, including cases in which the Ho-Chunk Nation, or its officials and employees, shall be a party.\\nSec. 6. Powers of the Trial Court.\\n(a) The Trial Court shall have the power to make findings of fact and conclusions of law. The Trial Court shall have the power to issue all remedies in law and in equity including injunctive and declaratory relief and all writs including attachment and mandamus.\\nTRIBAL ENROLLMENT AND MEMBERSHIP CODE, 6 HCC \\u00a7 7\\n\\u0437. Definitions. For purposes of this Code, these words have the following definitions and will be identified throughout this document by capitalization:\\ni. \\\"Clear and Convincing Evidence\\\" means evidence that tends to show, on its face, more likely than not, that fact which is trying to be proven.\\nr. \\\"DNA\\\" is the acronym for deoxyri-bonucleic acid, which is that nucleic acid that carries the genetic information in the cell and is capable of self-replication and synthesis of ribonucleic acid \\\"RNA\\n\\u0438. \\\"Ho-Chunk Blood\\\" means the quantum of Ho-Chunk Blood in a person's lineage as it appears in Article II, Section 1 of the Constitution and includes Members of the Winnebago Tribe of Nebraska. If the Base Rolls provide no percentage of Ho-Chunk Blood, the Tribal Enrollment Officer will determine that the percentage of Ho-Chunk Blood is four-fourths (4/4), unless the Tribal Enrollment Officer determines by Clear and Convincing Evidence that the actual percentage is less than four-fourths (4/4).\\n5. Committee on Tribal Enrollment.\\na. Committee Membership.\\n(1) Within the Department of Heritage Preservation, there will be a Committee on Tribal Enrollment that will serve the Office of Tribal Enrollment in an advisory capacity and hear appeals in accordance with this Code.\\n8. Appeals to Committee on Tribal Enrollment and Trial Court.\\na. Except for as provided in paragraph 10. b. (2)(b)(v)(cc) 1, any Member, Applicant, or Sponsor may appeal a determination made by the Office of Tribal Enrollment to the Committee on Tribal Enrollment Matters which may be appealed include determinations regarding Eligibility for Membership, a fine imposed by the Committee, or a Blood Quantum change that adversely affects the Member. Such appeal must be filed within sixty (60) Days after the date on which the Office of Tribal Enrollment publishes Notice of Eligibility for Membership or notifies the Member, Applicant, or Sponsor of the decision by certified mail. The Committee will hold a hearing and issue a decision on such appeal in accordance with this Code.\\nb. The Committee on Tribal Enrollment's decision will be appealable to the Trial Court pursuant to Article II, Section 6 of the Constitution.\\n10. Ineligible Tribal Member Removal Procedures.\\na. Grounds for Removal.\\n(1) The Member is less than one-fourth (1/4) Ho-Chunk Blood (Article II, Section 1(b) of the Constitution);\\n(2) insufficient proof of Ho-Chunk ancestry (Article II, Section 1(a) of the Constitution);\\nb. Persons Authorized to Initiate Possible Removal.\\n(1)Initiation of Removal by Tribal Enrollment Officer. The Tribal Enrollment Officer will initiate a removal of a Member from the Membership Roll upon determining that, by Clear and Convincing Evidence, the Member fails to meet the eligibility requirements.\\ne. Commencement of Removal.\\n(3) Notice of Hearing. The Office of Tribal Enrollment will provide the notice of hearing to the Affected Member at least thirty (30) Days prior to the date set for the hearing. The notice will include the date, time and location of the hearing and state that the Affected Member has the right to be represented by counsel. The notice will be sent by certified mail return receipt requested.\\nf. Hearing.\\n(2) Discovery. Not less than fifteen (15) Days prior to a hearing, each party will share with the other(s) all documentary evidence which the party intends to present at the hearing.\\n(3) Postponement of Hearings. Once scheduled, hearings will not be postponed for more than thirty (30) Days.\\n(4) Chairperson to Preside. The Chairperson of the Committee will preside over the hearing and will be responsible for controlling the presentation and admissibility of evidence, appearance of witnesses, and the overall order of the hearing.\\n(6) Closed Hearing. Due to confidential and private matters hearings will be closed to the public. Only Members of the Committee, the Tribal Enrollment Officer and his or her designated administrative/technical staff, the Affiants, the Affected Member, and the counsel of each party, the court reporter, and video photographer may be present at all times. Witnesses will be present only when giving testimony and shall be instructed to not discuss their testimony with any other individual during the hearing.\\n(7) Record. The record will include the Affidavits, all documentary evidence presented at the hearing and any stipulation or admission entered into at the hearing and all testimony taken during the hearing. The hearing will be recorded by transcript and video-taped. The transcript and tape will be kept on file by the Office of Tribal Enrollment for not less than one (1) year after the hearing. Transcripts and tapes will not be released to any person, including the Affected Member, other than as required by the discovery rules applicable to any appeal to the Nation's Trial Court.\\n(10) Evidence.\\n(a) Formal rules of evidence do not apply at the hearing but evidence which is irrelevant, cumulative or which would be unfair or prejudicial may be excluded by the Chair or admitted by the Chair under special conditions or stipulations. Basic rules of relevancy, materiality and probative force will be used by the Chair as a guide to admissibility. The Chair will rule on the admissibility of evidence.\\n(b) Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. Upon request, opportunity will be granted to compare the copy to the original. At the discretion of the Committee, a reasonable amount of time will be provided to review the evidence.\\n(c) Greater weight will be given to the following documents: verification of enrollment in another Indian Tribe, certified birth certificate, social security card, Court Orders, and DNA analysis.\\ng. Findings and Recommendations.\\n(3) Timeline for Findings and Recommendations. The Committee will issue written findings and recommendations to the parties within ten (10) Days of the hearing.\\n(4) Committee Findings and Recommendations. The Committee on Tribal Enrollment may render any of the following findings and recommendations:\\n(a) Find that the removal by the Affiants is Frivolous and/or Malicious, and dismiss the removal.\\n(b) Find that the Affiants or Tribal Enrollment Officer failed to meet the evidentiary standard necessary to remove a Member and dismiss the removal.\\n(c) Find that an Affected Member, through admission, does not meet the Membership requirements and proceed with the removal.\\n(d) Find that the Affected Member is ineligible for Membership if documentary and/or testimonial evidence shows by Clear and Convincing Evidence that the Affected Member does not meet the qualifications for Membership outlined in Article II, Section 1 of the Ho-Chunk Constitution.\\n(e) If the Committee finds the Affected Member is ineligible for Tribal Membership, it may further recommend the forfeiture of any or all property or the repayment of money received from the Nation, pursuant to the laws of the\\nNation. This may only happen upon a determination by the Committee that the evidence establishes beyond a reasonable doubt that the Affected Member became a Member through fraud.\\n(f)Order that the Affected Member, and their relatives needed to establish Ho-Chunk lineage, submit to a DNA analysis to be conducted by an independent testing laboratory contracted by and paid by the Ho-Chunk Nation. The Affected Member must contact the Office of Tribal Enrollment in order to set testing times and locations for him or her and the selected relative(s).\\n12. Appeals to Trial Court,.\\na. An appeal of the findings and recommendations of the Committee on Tribal Enrollment must be filed in the Trial Court within thirty (BO) Days of the date of the findings and recommendations.\\nb. Scope of Judicial Review. Decisions of the Trial Court will be based upon a review of the record of the Committee on Tribal Enrollment's proceedings, oral arguments, if any, and any written statements submitted. The Trial Court will not exercise de novo review of the Committee's findings and recommendations and will give proper deference to the expertise of the Committee and to its determinations of credibility. The Trial Court will not substitute its discretion for discretion legally vested in the Committee. The Trial Court will strictly construe the provisions of this Code.\\nc. The Trial Court will determine whether the findings and recommendations of the Committee:\\n(1) contains irregularities of procedure;\\n(2) is arbitrary, capricious or unreasonable;\\n(3) is unsupported by Clear and Convincing Evidence upon the whole record; or HO-CHUNK NATION RULES OF CIVIL PROCEDURE\\nRule 5. Notice of Service of Process.\\n(A) Definitions.\\n2. Summons\\u2014The official notice to the party informing him/her that he/she is identified as a party to an action or is being sued, that an Answer is due in twenty (20) calendar days {See HCN ft Civ. P. 6) and that a Default Judgment may be entered against them if they do not file an Answer in the prescribed time. It shall also include the name and location of the Court, the case number, and the names of the parties. The Summons shall be issued by the Clerk of Court and shall be served with a copy of the filed Complaint attached.\\n(C) Methods of Service of Process\\n1. Personal Service. The required papers are delivered to the party in person by the bailiff, or when authorized by the Court, a law enforcement officer from any jurisdiction, or any other person not a party to the action who is eighteen (18) years of age or older and of suitable discretion.\\nRule 61. Appeals.\\nAny final Judgment or Order of the Trial Court may be appealed to the Supreme Court. The Appeal must comply with the Ho-Chunk Nation Rules of Appellate Procedure, specifically Rules of Appellate Procedure, Rule 7, Right of Appeal. All subsequent actions of a final Judgment or Trial Court Order must follow the HCN Rules of Appellate Procedure.\\nRule 63. Judicial Review of Administrative Adjudication.\\n(A) Any person aggrieved by a final agency decision may request that the Ho-Chunk Nation Trial Court review such decision by filing a Petition for Administrative Review with the Court within thirty (30) calendar days of such decision, unless otherwise provided.\\n(E) Within thirty (30) calendar days of filing the Petition for Administrative Review, the petitioner shall file a written brief, an Initial Brief unless the petitioner has sought an evidentiary modification pursuant to HCN R. Civ. P. 63(D)(l)(a-b). The respondent shall have thirty (30) calendar days after filing of the brief within which to file a Response Brief. After filing of respondent's Response Brief, the petitioner may file the Reply Brief within ten (10) calendar days.\\nRule 70. Judgments in Traditional Court Resolution Proceeding.\\nSelection of the Traditional Court by a litigant forecloses the use of the Trial Court. All decisions of the Traditional Court will be summarized in writing by the Trial Judge. The decisions of the Traditional Court will not be appealable. The party selecting resolution by the Traditional Court must do so in writing and sign an acknowledgment that they understand that they will not be able to appeal the judgment to the Trial Court or Supreme Court. All parties appearing before the Traditional Court must appear voluntarily and consent in writing to the jurisdiction of the Traditional Court. The decisions of the Traditional Court apply only to the parties involved in that dispute, and will not be given any legal authority beyond that provided by the Constitution of the Ho-Chunk Nation.\\nFEDERAL RULES OF EVIDENCE\\nRule 801. Definitions.\\nThe following definitions apply under this article:\\n(a) Statement.\\nA \\\"statement\\\" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.\\n(b) Declarant.\\nA \\\"declarant\\\" is a person who makes a statement.\\n(c) Hearsay.\\n\\\"Hearsay\\\" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 802. Hearsay Rule.\\nHearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.\\nRule 80S. Hearsay Exceptions; Availability of Declarant Immaterial.\\nThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\\n(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term \\\"business\\\" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.\\nRule 901. Requimnent of Authentication or Identification.\\n(a) General provision.\\nThe requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.\\n(b) Illustrations.\\nBy way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:\\n(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.\\nFINDINGS OF FACT\\n1. The parties received proper notice of the Amended Scheduling Order dated April 26, 2010.\\n2. The petitioner, Daria Powless, is currently a member of the Ho-Chunk Nation, Tribal ID #4394004799, and resides at W2425 Raedel Lane, Wisconsin Dells, W I 53965-0368.\\n3. The respondent, Tribal Enrollment Committee, is a division within the Ho-Chunk Nation Department of Heritage Preservation located on trust lands at Ho-Chunk Nation Headquarters, W9814 Airport Road, P.O. Box 667, Black River Falls WI. See Dep't of Heritage Pres. Establishment & Org. Act of 2001, \\u00a7 6.5c.\\n4. The Committee accepted a voluntary DNA analysis of the petitioner, Daria M. Powless, and the purported source of her blood quantum, Eldon Powless, which revealed that there was a 0.000% chance that the alleged source of the petitioner's blood quantum was related to the petitioner. Official Ex. at 8-9.\\nDECISION\\nThe Constitution of the Ho-Chunk Nation (hereinafter Constitution) vests legislative powers in the HCN Legislature (hereinafter Legislature) as delegated by the General Council. Const., Art. IV, \\u00a7 2. The Legislature has the power to make laws, including codes, ordinances, resolutions, and statutes. Id., Art. V, \\u00a7 2(a), \\u00a7 3. In this instance, the Constitution contains provisions that the Legislature enact a membership code, and the Legislature subsequently enacted the Tribal Enrollment and Membership Code. Id., Art. II, \\u00a7 5. The Constitution indicates that \\\"[a]ny person who has been rejected for enrollment or who has been removed from the Membership Roll shall have the right to appeal to the Judiciary for a remedy in equity consistent with this Constitution.\\\" Id., Art. II, \\u00a7 6 (emphasis added).\\nThe Constitution delineates the Trial Court as having \\\"the power to issue all remedies in law and in equity including injunctive and declaratory relief and all writs including attachment and manda mus.\\\" Id., ART.VII, \\u00a7 6(a). An equitable remedy is one administered according to fairness as opposed to strictly formulated rules. Ronald, Kent Kirkwood v. Francis Decorah et al., CV 04-33 (HCN Tr. Ct., Feb. 11, 2005) at 15. Equitable remedies are typically prospective in nature and involve the court coercing a party to perform or refrain from performing an action. Id.; Hope B. Smith v. Ho-Chunk Nation, SU 03-80 (HCN S.Ct., Dec. 8, 2003) at 11. The Tribal Enrollment And Membership Code allows the Court only two (2) options for review, to either sustain or remand. See supra note 3. The Tribal Enrollment and Membership Code encroaches upon the Court's ability to perform an appeal and grant appropriate or expansive relief. Id.\\nThe Tribal Enrollment and Membership Code creates a committee to conduct administrative adjudication by way of appeals. Tribal Enrollment and Membership Code, 2 HCC \\u00a7 7.8. However, by virtue of the legislation, the Committee appears to perform administrative adjudication. Whether it is through adjudicatory rulemaking, informal rulemaking or legislative rulemaking, this presupposes that the Legislature has the constitutional authority to make enrollment decisions. The Legislature does not have that authority and cannot delegate any power that it does not retain; therefore, any informal, formal or legislative rulemaking made by a division or a subdivision of an Executive Department would not require any judicial deference. The powers of the Legislature are enumerated within the Constitution, and the ability to determine membership is not one of the enumerated powers of the Legislature. Const., Art. V, \\u00a7 2. Nonetheless, the Court recognizes the legislative authority to enact a law governing membership to provide a mechanism to effectuate the constitutional membership provision. Even so, the statutory limitation cannot supersede the constitutional grant of power to the Trial Court. The Trial Court has the authority to \\\"issue all remedies in law and equity.\\\" Const., Art. VI I, \\u00a7 6(a); see also id, ART. II, \\u00a7 6 (establishing a \\\"right to appeal to the Judiciary for a remedy in equity\\\"). Because of this constitutional mandate, it cannot be an error for the Trial Court to exercise its remedial power.\\nThe Supreme Court has previously ruled that the Court may review agency constitutional interpretations de novo. Willard Lonetree v. Larry Garvin, SU 07-04 (HCN S.Ct., Oct. 8, 2007) at 4. Supreme Court decisions \\\"are binding on the Trial Court.\\\" Jacob Lonetree et al. v. Robert Funmaker, Jr. et al. SU 00-16 (HCN Tr. Ct., Mar. 16, 2001) at 4 (citing Const., Art. VII, \\u00a7 7(c)). The Supreme Court earlier explained that \\\"[sjtare decisis is the policy of courts to stand by prior established precedent.\\\" See HCN Election Bd. v. Robert Mudd, SU 97-05 (HCN S.Ct., Oct. 28, 1997) at 2. The Trial Court must observe binding precedent of the Supreme Court. Likewise, the Supreme Court has favored a plain language approach and interpretation to the CONSTITUTION, statutes, and contracts. See, e.g., Chloris Lowe, Jr. et al. v. HCN Legislature Mem bers et al., SU 00-17 (HCN S.Ct., Mar. 13, 2001) at 6; Marx Advertising Agency, Inc. v. HCN et al., SU 04-07 (HCN S.Ct., Apr. 4, 2004) at 11; Greg Littlejohn v. HCN Election Bd. et al., SU 03-07 (HCN S.Ct., July 11, 2003) (Butterfield, J. dissenting) at 5.\\nThe plain language of the Constitution indicates \\\"[t]he following persons shall be eligible for membership in the Ho-Chunk Nation . [a]ll descendants of persons listed in Section 1(a), provided, that such persons are at least one-fourth (1/4) Ho-Chunk blood.\\\" Const., Art. II, \\u00a7 1(b). The Committee determined that Ms. Powless, through clear and convincing evidence provided through a DNA (deoxy-ribonucleic acid) test, that she was not one-fourth (1/4) Ho-Chunk blood as constitutionally mandated; as a voluntary DNA analysis of the petitioner, Daria M. Pow-\\nless, and the purported source of her blood quantum, Eldon Powless, revealed that there was a 0.000% chanee that the alleged source of the petitioner's blood quantum was related to the petitioner. Enrollment Committee Decision (Jan. 8, 2010) at 1; Official Ex. at 8-9.\\nBased upon the Committee's determination, the petitioner filed a Petition for Administrative Review because the petitioner's \\\"attorney was not granted sufficient time to prepare for [the] case, time for discovery, [and the] request for rescheduling of [the] case was denied by [the Committee].\\\" Pet. at 1. She further alleged that the \\\"[pjerson initiating the removal [was] not present at [the] hearing.\\\" Id. Furthermore, the \\\"DNA [was] not authenticated by [an] expert.\\\" Id. Also, the Committee failed to consider the Traditional Court ruling. Finally, the petition ers due process was denied.\\\" Id. The petitioner consequently requested that the \\\"matter be dismissed, [and she] remain enrolled as [Traditional [C]ourt decided on October 19, 2009[, and] that she receive her per capita. [Or the Court] remand for [a] new hearing with discovery and new DNA test certified [and] paid for by [the] Ho-Chunk Nation and Eldon Powless.\\\" Id. at 3. The only relevant inquiry to the Court is whether Ms. Powless has the requisite (1/4) Ho-Chunk blood. Const., Art. II, \\u00a7 1(b).\\nThe Court recognizes that the Committee was not required to follow the formal rules of evidence in the removal hearing. Tribal Enrollment and Membership Code, 2 HCC \\u00a7 7.10f(10)(a). As previously discussed, the Court cannot be improperly bound by the restrictive standards of review articulated within the Tribal Enrollment and Membership Code. The Court maintains several serious concerns regarding the admission of the DNA evidence in this case. As the DNA test was the primary piece of evidence presented by the Office of Tribal Enrollment and the primary evidence that the Committee relied upon for its Decision, the issues surrounding its admission are problematic. Enrollment Committee Decision (Jan. 8, 2010) at 1. The Court presently finds the DNA test inadmissible as offered for several reasons analyzed below.\\nThe DNA test allowed into evidence by the Committee is hearsay as defined by the Federal Rules of Evidence (hereinafter Fed.R.Evid.) 801(c). It is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Id. A written assertion is considered a \\\"statement.\\\" Fed.R.Evid. 801(a). Thus, the DNA test's assertion that Mr. Powless is not the petitioner's father is a \\\"statement.\\\" A \\\"declarant\\\" is a person who makes a statement. Fed. R.Evid. 801(b). The \\\"declarant\\\" of the results of the DNA test is the Oklahoma State University Human Identity Laboratory (hereinafter OSU Laboratory). At the hearing, no one from the OSU laboratory testified. The DNA test results were offered to prove the truth of the matter asserted; specifically that Mr. Powless is not the father of the petitioner. Therefore, the DNA test results meet the definition of hearsay. Such hearsay is inadmissible. Fed.R.Evid. 802. The DNA test does not fall under the business records hearsay exception. Fed.R.Evid. 803(6) allows business records to be admitted \\\"if witnesses testify that the records are integrated into a company's records and relied upon in its day to day operations.\\\" Matter of Ollag Constr. Equip. Corp., 665 F.2d 43, 46 (2d Cir.1981). Although OSU laboratory may engage in DNA analyses on a daily basis, those analyses are not akin to the running of the day-to-day operations of the business. The necessary witnesses also did not testify at the removal hearing.\\nThe Second Circuit has laid out a basic admissibility test for DNA evidence. It recognized that the general theories of genetics which support DNA testing are readily accepted within the scientific community. United States v. Jakobetz, 955 F.2d 786, 799 (2nd Cir.1992). Thus, a court can take judicial notice of the general acceptability of the general theory of DNA evidence and the use of common techniques. Id. However, in order to be admissible there must be a showing of reliability of the particular data being offered. Id. at 799-800. For example, a qualified witness should give some indication how the laboratory work was completed and what analysis was used in making the calculations. Id. at 800.\\nThe Second Circuit's requirements for DNA testing to be admissible represent a very basic threshold. Several Circuits have more stringent standards. However, even under the Second Circuit's moderate standard, Mr. Hall's presentation is not sufficient to authenticate the DNA evidence accepted by the Committee. Fed.R.Evid. 901(a) requires authentication as a condition precedent to admissibility. Authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Fed.R.Evid. 901(a). Evidence can be authenticated by the testimony of a witness with knowledge. Fed.R,Evid. 901(b)(1). However, Mr. Hall does not have sufficient knowledge of how the laboratory work was done, analyzed, and delivered.\\nIn order for the DNA test to be admitted into evidence, the Enrollment Office must provide testimony from a representative of OSU Laboratory to testify as to its authenticity. This must be someone with personal knowledge of the procedures and processes of OSU Laboratory's DNA testing facility. As the test was completed over five (5) years ago, those in charge of administering the test may no longer be employed by OSU Laboratory. It possible that someone from OSU Laboratory is still qualified to testify as to how the laboratory work was completed, how the information was analyzed, and the chain of custody was established in regards to this particular DNA test.\\nBASED UPON THE FOREGOING, the respondent must schedule a hearing with the Court on or before December 2, 2010 for the purposes of presenting and authenticating the DNA test, in accordance with the FedeRal Rules of Evidence. The respondent may instead require the petitioner to submit to a new DNA test, conducted by an independent testing laboratory contracted by and paid by the Ho-Chunk Nation. The Court understands that due to the availability of the laboratory, the testing may not be able to be completed by this date. However, the respondent shall notify the Court on or before December 2, 2010, as to when the test will actually occur. The respondent shall also notify the Court within ten (10) days of receiving the new test results to schedule an evidentiary hearing.\\nThe parties retain the right to file a timely post-judgment motion with this Court in accordance with HCN R. Civ. P. 58, Amendment to or Relief from Judgment or Order. Otherwise, \\\"[t]he time for taking an appeal shall begin from the date the judgment is filed with the [Trial Court] Clerk [of Court].\\\" HCN R. Civ. P. 57. Since this decision represents a non-final judgment, \\\"[a]n appeal from [this] interlocutory order maybe [sic] sought by filing a petition for permission to appeal with the Supreme Court Clerk within ten (10) calendar days after the entry of such order with proof of service on all other parties to an action.\\\" Ho-Chunk Nation Rules of Appellate Procedure, Rule 8.\\nIT IS SO ORDERED this 2nd day of September 2010, by the Ho-Chunk Nation trial Court located in Black River Falls, WI within the sovereign lands of the Ho-Chunk Nation.\\nThe Court appreciates the assistance of Staff Attorney Zachary Harold Atherton- Ely in the preparation and drafting of this opinion.\\n. The HCN R. Civ. P. indicate as follows: \\\"laws provide for filing within one hundred eighty (180) days: Tribal Enrollment and Membership Act.\\\" HCN R. Civ. P., R. 63(A)(3)(a). The Tribal Enrollment and Membership Code was subsequently enacted on October 16, 2007, and it supersedes Tribal Enrollment and Membership Act of 1995. The Tribal Enrollment and Membership Code currently provides a thirty (30) day timeframe for an individual to request a review of the \\\"findings and recommendations\\\" of the Committee. The HCN R. Civ. P. do not reflect such amendment.\\n. At the hearing, the Court noted that a discrepancy exists between the Tribal Enrollment and Membership Code and the HCN R. Civ. P. regarding deadlines. See supra n. 1. However, the Ho-Chunk Nation General Council delegated exclusive constitutional authority to the Ho-Chunk Nation Supreme Court \\\"to establish written rules for the Judiciary.\\\" Const., Art. VII, \\u00a7 7(b); see also HCN Judiciary Establishment & Org. Act, 1 HCC \\u00a7 1.5c; Bonnie Smith v. HCN Gaming Comm'n, SU 01-02 (HCN S.Ct., May 11, 2001) at 2. Pursuant to this delegation, the Supreme Court adopted the Ho-Chunk Nation Rules of Civil Procedure on May 11, 1996, which \\\"govern the procedure of the Trial Court in all actions and proceedings.\\\" HCN R. Civ. P. 1. Of particular relevance here, HCN R. Civ. P. 63 deals with judicial review of administrative adjudication, and establishes court imposed deadlines and procedures for the Judiciary. Furthermore, the Supreme Court issued an administrative rule, which indicates that the judges must enter written decisions within three (3) months after the parties present a matter for either interim or final opinion. In the Matter of Timely Issuance of Decisions, Admin. Rule 04-09-05(1) (HCN S.Ct., Apr. 9, 2005). The Tribal Enrollment and Membership Code attempts to require the Court to issue a judgment within sixty (60) days of the filing. Based upon HCN R. Civ. P. 63, Judicial Review of Administrative Adjudication, the briefing schedule oftentimes extends beyond sixty (60) days of the filing. The Court attempted to expedite the matter. See Scheduling Order, CV 10\\u201415 (HCN Tr. Ct., Mar. 4, 2010). However, due to an extension requested by the parties, the Court issued an Amended Scheduling Order, which resulted in the briefing schedule concluding on June 3, 2010. Therefore, the Court, relying upon the Supreme Court's administrative rule, must enter a judgment on or prior to September 3, 2010. Admin. Rule 04-09-05(1).\\n. The Tribal Enrollment and Membership Code attempts to restrict the Court's constitutionally granted authority to hear such appeals and grant remedies in equity. Specifically, the legislation states,\\n[i]n reviewing a finding and recommendation of the Committee, the Trial Court will have two (2) options. These two (2) options are to either sustain or remand the Committee's findings and recommendations. The Court may not reverse a Committee's findings and recommendations. The Trial Court will only remand the Committee's findings and recommendations if the Court determines that the Committee's findings and recommendations contain irregularities of procedures or are arbitrary, capricious, or unreasonable, or unsupported by Clear and Convincing Evidence upon the whole record or involve an abuse of discretion. Upon remand, the Committee will reconsider its findings and determinations in light ol the Trial Court's opinion and judgment.\\nTribal Enrollment and Membership Code. 2 HCC \\u00a7 7.12. A court of equity has traditionally had the power to fashion any remedy deemed necessary and appropriate to do justice in the particular case. The legislation inhibits the Court's ability to review an appeal and grant appropriate or expansive relief. See, e.g., Bride v. Baker, 37 App. D.C. 231, 236 (D.C.Cir.1911) (\\\"Courts of equity are established to do justice in cases where an adequate remedy at law may not be had, and they should seek to do ultimate justice in all cases.''). The Court cannot practically employ its equitable powers if improperly constrained to afford the utmost deferential treatment to the Committee's decision.\\n. The predecessor legislation did not contain any similar provisions. Tribal Enrollment and Membership Act of 1995, HCNL 015-85, \\u00a7 12.\\n. The Constitution authorizes the Judiciary to hear appeals. Const., Art. II, \\u00a7 6. Nonetheless, the Legislature also created a mechanism under the Tribal Enrollment and Membership Code for the Tribal Enrollment Committee within the Department of Heritage Preservation to hear appeals. Tribal Enrollment and Membership Code, 2 HCC \\u00a7 7.5a(l) (forming a committee \\\"that will serve the Office of Tribal Enrollment in an advisory capacity and hear appeals in accordance with this Code\\\").\\n. The Legislature has deliberately selected this well-established burden of proof for accomplishing the purpose of the legislation. The Seventh Circuit Court of Appeals has offered the following observation in relation to this civil evidentiary standard:\\nThe party with the burden of proof \\\"must have been able to place in the ultimate fact-finder an abiding conviction that the truth of . [his or her] factual contentions are \\\"highly probable.'' ' Colorado v. New Mexico, 467 U.S. 310, 317, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984). This is the Supreme Court's definition of those words so often and so freely bandied about: clear and convincing evidence.'\\nVon Gonten v. Research Sys. Corp., 739 F.2d 1264, 1268 (7th Cir.1984); see also Joelene Smith v. Scott Beard et al., SU 00-14 (HCN S.Ct., Mar. 12, 2001) at 1 (acknowledging this standard definition). To prove something by \\\"clear and convincing evidence,\\\" the party with the burden of proof must convince the trier of fact that it is substantially more likely than not that the thing is in fact true. This is a lesser requirement than \\\"proof beyond a reasonable doubt,\\\" which requires that the trier of fact be close to certain of the truth of the matter asserted, but a stricter requirement than proof by \\\"preponderance of the evidence,\\\" which merely requires that the matter asserted seem more likely true than not. The Tribal Enrollment and Membership Code defines clear and convincing evidence as \\\"evidence that tends to show, on its face, more likely than not, that fact which is trying to be proven.\\\" Tribal Enrollment and Membership Code, 2 HCC \\u00a7 7.3i. The legislatively provided definition appears to confusingly incorporate the \\\"preponderance of the evidence\\\" standard.\\n. In some instances, the Constitution and tradition and custom do not coincide. For instance, the Traditional Court has previously indicated that tradition and custom would only be applicable to an undisturbed paternal line. See Robert A. Mudd v. HCN Legislature, SU 03-02 (HCN S.Ct,, Apr. 8, 2003) at 4. In a juvenile case, the Traditional Court similarly articulated as follows: \\\"unless a child possesses undisturbed paternal Hocak heritage, the Traditional Court may only concur with the placement of a child . An adult or child with Hocak heritage derived maternally who voluntarily resides amongst the Hoc^k is welcome, but is not a member of a clan.\\\" In the Interest of Minor Child: S.L.S., DOB 01/03/1986, JV 00-19 (HCN Tr. Ct\\\" Mar. 29, 2001) at 5, n.l. Regardless, the Constitution requires that \\\"persons are at least one-fourth (1/4) Ho-Chunk blood.\\\" Const., Art. II, \\u00a7 1(b). The Preamble of the Constitution bespeaks an incorporation of culture and traditions within the document, which is the supreme law of the land. Const., pmbl., ART. Ill, \\u00a7 4. Ms. Annette Powless attended a Traditional Court meeting in October 2009; the Traditional Court indicated that Ms. Daria Powless should remain enrolled. Removal Hr'g of Daria M. Powless, Professional Reporting Services (Dec. 22, 2009) at 71; Official Ex. at 2. Although, the HCN R. Civ. P. 70 requires that '[a]ll parties appearing before the Traditional Court must appear voluntarily and consent in writing to the jurisdiction of the Traditional Court,\\\" only Ms. Powless appeared, and the parties did not mutually consent. HCN R. Civ. P. 70. Further, the Traditional Court indicated that the grandmother cared for the petitioner with no assistance, and that petitioner was destined to experience the Ho-Chunk way of life. Official Ex. at 2, The Court neither disputes that the grandmother cated for Ms. Powless, nor the perceived, preordained life of the petitioner.\\n. Parties can obtain a copy of the applicable rules by contacting the Ho-Chunk Nation Judiciary at (715) 284-2722 or (800) 434-4070 or visiting the judicial website at www.hu-chunknalion.com/government/judicial/con.s_ law.htm.\"}"

tribal/7341415.json

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+"{\"id\": \"7341415\", \"name\": \"Tawanna QUIDGEON v. Joseph QUIDGEON, Jr.\", \"name_abbreviation\": \"Quidgeon v. Quidgeon\", \"decision_date\": \"2009-01-30\", \"docket_number\": \"No. CV-08-0137\", \"first_page\": 95, \"last_page\": 98, \"citations\": \"8 Am. Tribal Law 95\", \"volume\": \"8\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Mohegan Tribal Trial Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T21:40:06.827169+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tawanna QUIDGEON v. Joseph QUIDGEON, Jr.\", \"head_matter\": \"1 M.T.C.R. 86\\nTawanna QUIDGEON v. Joseph QUIDGEON, Jr.\\nNo. CV-08-0137.\\nMohegan Tribal Trial Court.\\nJan. 30, 2009.\\nTawanna Quidgeon, Pro se, for the Petitioner.\\nJoseph Quidgeon, Jr., Pro Se, for the Respondent.\", \"word_count\": \"1462\", \"char_count\": \"8861\", \"text\": \"MEMORANDUM OF DECISION\\nJANE W. FREEMAN, Judge.\\nThe Petitioner, Tawanna Quidgeon, has filed a Petition For Recognition of Foreign Child Support Order and Withholding of Per Capita Distribution Benefits For Payment of Child Support Arrearages (\\\"Petition\\\") pursuant to the Mohegan Tribal Code (\\\"MTC\\\") \\u00a7 3-1. The Court held a hearing on the Petition on January 23, 2009, at which both parties appeared.\\nAn action for the dissolution of Petitioner's marriage to the Respondent is pending in the Superior Court for the Judicial District of New London at Norwich in the case of Tawanna Quidgeon v. Joe Quidgeon, No. FA 08-4109138 (\\\"Dissolution Action\\\"). On September 8, 2008, the Superi- or Court entered an order requiring the Respondent to pay the sum of $222.00 per week, as pendente lite child support for the three minor children (\\\"PL Order\\\"; Plaintiffs Ex. 1). The Petitioner requests this Court to recognize the PL Order as the law of the Mohegan Tribe, pursuant to MTC \\u00a7 3-1.\\nIn all of the previous petitions filed pursuant to MTC \\u00a7 3-1, petitioners have sought recognition and enforcement of a final judgment ordering the payment of child support. In this case, however, Petitioner is seeking recognition and enforcement of a pendente lite order for the payment of child support. Thus the Court must decide, as an issue of first impression, whether under MTC \\u00a7 3-1 it can recognize and enforce an order for pen-dente lite child support, entered by a court of competent jurisdiction.\\nThe answer to the foregoing question presents an issue of statutory construction. There are two relevant sections in the Mohegan Tribe Code, MTC \\u00a7 3-1 and MTC \\u00a7 1-5. The former section provides in pertinent part, as follows:\\nSec. 3-1. Recognition and Enforcement of Valid Child Support Orders.\\n(a) The Mohegan Tribal Court shall recognize, as the law of The Mohegan Tribe, any valid child support order from any court of competent jurisdiction that has been entered against a Mohegan Tribal Member.\\nThe latter section provides in pertinent part, as follows:\\nSec. 1-5. Enforcement of Judgments; Recognition of Foreign Judgments.\\n(a) Except as may be limited by Mohegan Tribal law including but not limited to the Gaming Revenue Allocation Plan or applicable federal law, the Mohegan Court System shall have the power to fashion any legal or equitable remedy reasonably required to enforce judgments and decrees, including but not limited to attachments, garnishments and executions.\\n(b) The judgment, decree or order of a court of the United States or of any State, and the judgment, decree or order of another federally recognized tribe, may be enforced by the Mohegan Court System, except as may be limited by Mohegan Tribal law, including but not limited to the Gaming Revenue Allocation Plan, or an applicable federal law, and provided that such judgment, decree or order does not contravene the policy of the Mohegan Tribe, and does not interfere with the right and the ability of the Mohegan tribe to govern itself and to exercise its sovereign authority.\\n\\\"The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . \\\" Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650, 931 A.2d 142 (2007) (quoting Friezo v. Friezo, 281 Conn. 166, 181-82, 914 A.2d 533 (2007)). In any case of statutory construction, the analysis begins with the language of the statute and if the statutory language provides a clear answer, it ends there. Harris Trust and Savings Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 254, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000). \\\"When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same matter.... \\\" Southern New England Telephone Co. v. Cashman, supra, 283 Conn. at 650-51, 931 A.2d 142 (quoting Friezo, supra, 281 Conn. at 181\\u201482, 914 A.2d 533). In addition, \\\"every word in a legislative enactment is presumed to have meaning,\\\" Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 329, 743 A.2d 622 (2000) (quoting Mingachos v. CBS, Inc., 196 Conn. 91, 98, 491 A.2d 368 (1985)), and \\\"there is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment.\\\" Biasetti v. Stamford, 250 Conn. 65, 81, 735 A.2d 321 (1999) (citations and internal quotation marks omitted). Where more than one statute addresses a subject, it is presumed that the legislature intended them to be read together to create a harmonious body of law. Mayor v. Mayor, 17 Conn.App. 627, 633, 554 A,2d 1109 (1989) (citations omitted). Additionally, \\\"[ajlthough it is recognized that headings or titles of legislation are not conclusive, they may, nonetheless, be valuable aids to construction and legislative intent.\\\" In re Cameron C., 103 Conn.App. 746, 753, 930 A.2d 826 (2007).\\nBoth MTC \\u00a7 3-l(a) and MTC \\u00a7 1-5 address the same general subject matter, i.e., the recognition and enforcement of orders of other courts of compe tent jurisdiction. However, MTC \\u00a7 3-1 (a) uses the phrase \\\"child support orders\\\", while MTC \\u00a7 1-5 uses the phrase \\\"judgment, decree or order of a court.\\\" MTC \\u00a7 3\\u20141 (a) is the more specific ordinance since it only addresses the child support arena, while MTC \\u00a7 1-5 addresses all judgments, decrees or orders of another court. Generally, specific terms governing the same subject matter \\\"will prevail over general language of the same or another statute which might otherwise prove controlling. .\\\" State v. State Employees' Review Board, 239 Conn. 638, 653-54, 687 A.2d 134 (1997) (quoting Concerned Citizens of Sterling, Inc. v. Connecticut Siting Council, 215 Conn. 474, 482-83, 576 A.2d 510 (1990)). In this case, however, MTC \\u00a7 1-5 was enacted by the Tribal Council several years after the enactment of MTC \\u00a7 3\\u20141(a). \\\"The General Assembly is always presumed to know all of the existing statutes and the effect that its action or non-action will have upon any of them.\\\" Plourde v. Liburdi, 207 Conn. 412, 417, 540 A.2d 1054 (1988) (citations and internal quotations omitted).\\nWhen the Tribal Council enacted MTC \\u00a7 1-5, it provided for the enforcement of judgments, decrees and orders. The term \\\"judgment\\\" has been defined as \\\"[a] court's final determination of the rights and obligations of the parties in a case. The term judgment includes an equitable decree and any order from which an appeal lies.\\\" Black's Law Dictionary (8th Ed.2004). Further, the title of MTC \\u00a7 1-5 refers only to the \\\"Enforcement of Judgments\\\" and the \\\"Recognition of Judgments\\\"; it does not mention orders or decrees. The term \\\"order\\\" \\\"generally embraces final decrees as well as interlocutory directions and commands.\\\" Black's Law Dictionary (8th Ed.2004). On the other hand, the term \\\"decree\\\" is defined as \\\"a judicial decision in a court of equity, admiralty, divorce, or probate\\u2014similar to a judgment of a court of law\\\" or as \\\"[a] court's final judgment.\\\" Black's Law Dictionary (8th Ed.2004).\\nThe title of MTC \\u00a7 1-5 is evidence of a legislative intent to recognize and enforce only final judgments, orders and decrees. In order to create a harmonious body of law, MTC \\u00a7 3-1, which refers to the recognition and enforcement of child support orders, must be construed to mean only final orders for child support and not interlocutory (pendente lite) orders. Such a construction is also consistent with the generally recognized rule of international comity followed by American courts, that only valid and final judgments will be recognized. Pilkington Bros. P.L.C. v. AFG Industries Inc., 581 F.Supp. 1039, 1045 (D.Del.1984).\\nIt is therefore held that under the provisions of MTC \\u00a7 3-1, this Court may only recognize and enforce final orders of child support entered by courts of competent jurisdiction. Because the Petitioner has secured only the PL Order, there is no final order of child support which can be recognized and enforced by this Court. At such a time as the Petitioner secures a final order of child support in the Dissolution Action, and if there is a child support arrearage, she may re-file a petition under the provisions of MTC \\u00a7 3-1.\\nFor the foregoing reasons, the petition dated November 8, 2008, is hereby denied.\\n. The dissolution action was pending as of the hearing date in this Court on January 23, 2009.\\n. MTC \\u00a7 1-5 was enacted on October 15, 2008 and MTC \\u00a7 51(a) was enacted on April 7, 2004.\"}"

tribal/7341909.json

@@ -0,0 +1 @@
+"{\"id\": \"7341909\", \"name\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. John MYRICK, Defendant/Appellant\", \"name_abbreviation\": \"Fort Peck Tribes v. Myrick\", \"decision_date\": \"2013-07-31\", \"docket_number\": \"No. 643\", \"first_page\": 362, \"last_page\": 363, \"citations\": \"11 Am. Tribal Law 362\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Fort Peck Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRENDA DESMOND, Chief Justice, GERARD M. SCHUSTER and JOSEPH RAFFIANI, Associate Justices.\", \"parties\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. John MYRICK, Defendant/Appellant.\", \"head_matter\": \"FORT PECK TRIBES, Plaintiff/Appellee, v. John MYRICK, Defendant/Appellant.\\nNo. 643.\\nFort Peck Court of Appeals.\\nJuly 31, 2013.\\nAdriennie Weinberger, Office of the Prosecutor, Fort Peck Tribes, Poplar. Montana, for Plaintiff/Appellee, Fort Peck Tribes.\\nLonnie Headdress, Sr., Deputy Public Defender, Fort Peck Tribes, Poplar, Montana, Defendant/Appellant, Donelle Parker.\\nBefore BRENDA DESMOND, Chief Justice, GERARD M. SCHUSTER and JOSEPH RAFFIANI, Associate Justices.\", \"word_count\": \"513\", \"char_count\": \"3159\", \"text\": \"OPINION AND ORDER\\nThis is an appeal of denial of a Petition for Writ of Habeas Corpus. We affirm in accordance with the following. Appellant John Myrick was arrested on Wednesday June 12, 2018, at approximately 10:24 p.m. on the charge of Robbery in violation of Fort Peck Tribes Comprehensive Code of Justice, (\\\"CCOJ\\\"), Title VII, Chapter 3, Section 321, in connection with events that occurred that evening. The next day, Thursday June 13, 2013, the Tribal Prosecutor filed an Affidavit of Probable Cause and a proposed Order to Hold. The Tribal Trial Court granted the request and set the arraignment for Monday July 17, 2013. The Order states in part, \\\"That Probable Cause is found to hold the above named Defendant on the criminal offenses listed above until arraignments on June 17, 2013 at 1:00 p.m.\\\"\\nThe CCOJ provision governing Habeas Corpus proceedings, Title IV Chapter 4, \\u00a7 404 provides:\\nSec. 404. Habeas corpus.\\nRelief by habeas corpus proceedings shall be granted whenever it appears to the Court that any person is unjustly imprisoned or otherwise unlawfully deprived of his/her liberty. Upon the filing of the complaint the Court shall issue a writ directed to the defendant commanding him/her to bring the person alleged to be restrained before the Court at a time and place therein speci-fled, at which time the Court shall proceed to hear the matter and render judgment accordingly.\\nThe Tribal Trial Court held a hearing on Appellant's Petition for Writ of Habeas Corpus on June 21, 2013. On June 24, 2013, the Trial Judge issued an order denying the Petition.\\nAccording to CCOJ Title VI, Chapter 4, Section 401, arraignment \\\"shall be held without unnecessary delay after the accused is taken into custody and in no instance shall arraignment be later than the next regular session of court.\\\" Neither Section 401 nor any other provision of the CCOJ defines the phrase \\\"regular session of court.\\\" Appellant contends that the next regular session was Friday June 14, 2013. The Affidavit of Probable cause asks that Appellant Parker be held, \\\"until the next scheduled arraignment day of June 17, 2013\\\", the following Monday. In view of the lack of a clear definition of \\\"regular session of court\\\" and the status of habeas corpus; as an \\\"extraordinary\\\" remedy, we do not find grounds to reverse the decision of the Tribal Trial Court. Further, while the writ of habeas corpus is an essential protection of the; right to liberty without unreasonable restraint, the record does not support a finding of unnecessary delay within the meaning of Section 401.\\nIT IS NOW, THEREFORE, THE ORDER OF THIS COURT:\\nThe Petition for Review of denial of the writ of Habeas Corpus is denied.\"}"

tribal/7341915.json

@@ -0,0 +1 @@
+"{\"id\": \"7341915\", \"name\": \"Susan J. BLASER, Appellant, v. Sandra GAUTHIER, Respondent\", \"name_abbreviation\": \"Blaser v. Gauthier\", \"decision_date\": \"2009-06-03\", \"docket_number\": \"No. 08-AC-027\", \"first_page\": 250, \"last_page\": 252, \"citations\": \"9 Am. Tribal Law 250\", \"volume\": \"9\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Oneida Tribal Judicial System, Appellate Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-11T01:29:30.374552+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Susan J. BLASER, Appellant, v. Sandra GAUTHIER, Respondent.\", \"head_matter\": \"Susan J. BLASER, Appellant, v. Sandra GAUTHIER, Respondent.\\nNo. 08-AC-027.\\nOneida Tribal Judicial System, Appellate Court.\\nJune 3, 2009.\\nJudicial Officers Anita F. Barber, Janice L. McLester, Leland Wigg-Ninham, Lois Powless, Winnifred L. Thomas and Jennifer Webster presiding.\", \"word_count\": \"786\", \"char_count\": \"4912\", \"text\": \"DECISION\\nI Background\\nThis case arises out of the Appellant being put on three (3) days investigative leave without pay after an allegation was made that she engaged in workplace misconduct. Around the same time the Appellant took ninety (90) days medical leave. Upon her return she grieved the investigative leave claiming it was an adverse employment action and should be overturned. The Area Manager affirmed the three-day unpaid investigative leave. The Appellant appealed the decision to the Oneida Personnel Commission who upheld the investigative leave. The Appellant appealed to the Oneida Tribal Judicial System citing and explaining four (4) out of six (6) possible criteria for acceptance. The Appellate Court accepted the appeal, on the basis there is an exhibited procedural irregularity which would be considered a harmful error that may have contributed to the final decision, which if the error had not occurred, would have altered the final decision.\\nA. Jurisdiction\\nThe Oneida Tribal Judicial System has jurisdiction over this appeal by virtue of Sec. 1.11-1 of the Administrative Procedures Act which permits appeal of a final decision in a contested case.\\nB. Factual background\\nOn April 15, 2008, the Appellant was placed on a three-day investigative leave. The respondent imposed the leave because the Appellant had allegedly made some threatening statements to another coworker. The leave was without pay beginning April 15, 2008 ending April 18, 2008. It is not clear whether the Appellant was to return April 18, 2008 or April 19, 2008. However, on April 18, 2008 the Appellant took a personal day and entered into a 90-day medical leave. The results of the investigation were not shared with the Appellant.\\nOn July 18, 2008, the Appellant returned to work. On July 29, 2008 the Appellant grieved her three-day investigative leave claiming many errors on the part of the Respondent. The Appellant requested that the investigation be overturned and removed from her file and also sought \\\"the return of my three days with all benefits.\\\"\\nOn August 6, 2008, the Area Manager denied the Appellant grievance based on two grounds: 1) The grievance procedures are not applicable to an investigative leave and 2) grievance was untimely as it was filed well over the 10 days allowed for grievances in Sec. V.D.6.a.l.b.\\nC. Procedural background\\nThe Appellant timely appealed to the Personnel Commission, which held a hearing on September 16, 2008. The Personnel Commission ruled on November 6, 2008 that the Appellant's July 29, 2008 appeal of the investigative leave was untimely because it exceeded the 10 days permitted for employee appeals as required by Sec. V,D.6.a.l.b,\\nOn December 2, 2008, the Personnel Commission reconvened to address the Appellant's request to Review, Re-evaluate and Re-examine the ruling. The Original Hearing Body entertained the Review, Re-Evaluate and Re-Examine request by the Appellant, which posed a problem with timelines for the approval by the Appellate court. This error gave a false impression for the Appellant to continue. As a result, the Appellant did not have the opportunity to present a full brief to the Appellate court.\\nD.Applicable law\\nIt is difficult for the Appellate court to adequately rule on this case based on the information provided.\\nII Issues\\nWas there exhibited a procedural irregularity which would be considered a harmful error that may have contributed to the final decision, which if the error had not occurred, would have altered the final decision?\\nIll Analysis\\nWas there exhibited a procedural irregularity which would be considered a harmful error that may have contributed to the final decision, which if the error had not occurred, would have altered the final decision?\\nYes. The Oneida Personnel Commission did not cite their finding of fact and conclusion of law. The Oneida Personnel Commission erred when they responded to Appellant's November 12, 2008 Request to Review, Re-Evaluate and Re-examine Ruling. The right to appeal process was included in the November 6, 2008 Motion Decision to dismiss. This response resulted in a procedural irregularity.\\nIn order to adequately review this case, the following questions must be clearly defined by the Original Hearing Body.\\nDo timelines stop when an employee is on a medical leave?\\nDoes it say this in the Medical Leave Policy?\\nWhere is the rule of law that supports the dismissal of this case?\\nWhere is the finding of facts and conclusion of law analysis?\\nIV Decision\\nWe are remanding this case back to the Personnel Commission for a full hearing on the questions listed above.\\nIT IS SO ORDERED.\"}"

tribal/7341977.json

@@ -0,0 +1 @@
+"{\"id\": \"7341977\", \"name\": \"In the Matter of S.R.S., V.M.S., T.L.S., S.A.S., minors\", \"name_abbreviation\": \"In re S.R.S.\", \"decision_date\": \"2009-02-24\", \"docket_number\": \"No. 2007-768-CV-CW\", \"first_page\": 172, \"last_page\": 173, \"citations\": \"8 Am. Tribal Law 172\", \"volume\": \"8\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Grand Traverse Band of Ottawa and Chippewa Indians Tribal Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T21:40:06.827169+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Matter of S.R.S., V.M.S., T.L.S., S.A.S., minors.\", \"head_matter\": \"In the Matter of S.R.S., V.M.S., T.L.S., S.A.S., minors.\\nNo. 2007-768-CV-CW.\\nGrand Traverse Band of Ottawa and Chippewa Indians Tribal Court.\\nFeb. 24, 2009.\\nSara W. Brubaker, Tribal Presenting Officer.\\nMichael J. Long, Guardian Ad Litem.\\nDevid A. Becker, for Respondent, J.J.\\nC.M., Respondent, In Pro Per.\\nA.S., Respondent, In Pro Per.\\nD.W., Respondent, In Pro Per.\", \"word_count\": \"920\", \"char_count\": \"5640\", \"text\": \"ORDER DENYING MOTION FOR REHEARING/RECONSIDERATION\\nWILSON D. BROTT, Chief Judge.\\nRespondent mother J.J., through counsel, has filed a motion requesting rehearing or reconsideration with respect to this Court's decision to terminate her parental rights as to S.R.S. Respondent argues that the child in question, who is 16 years old, intends to \\\"do what she wishes at this age, and is not going to accept the Court's interference with her relationship with the mother\\\" and that the Court will then be forced to bring the parties in for repeated show causes, etc. Respondent further argues that the Court did not take into account cultural factors due to the Respondent being Native American.\\nMotions for reconsideration are governed by GTBCR 4.119(F), which states:\\n(1) Unless another rule provides a different procedure for reconsideration of a decision (see, e.g., Rule 4.604[A], 4.612), a motion for rehearing or reconsideration of the decision on a motion must be served and filed not later than 14 days after entry of an order disposing of the motion.\\n(2) No response to the motion may be filed, and there is no oral argument, unless the court otherwise directs.\\n(3) Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.\\nThe Court terminated the parental rights of Respondent-mother J.J. because the Court was convinced that the testimony of the witnesses, taken as a whole, established sufficient grounds by clear and convincing evidence that Respondent's rights should be terminated. While the Guardian Ad Litem and more than one witness advocated for the child's position that parental lights to her mother should not be terminated, the Court found that the evidence in this case substantially outweighed that position. In other words, the Court found that the Respondent mother has a significant, chronic and substantial alcohol problem, and has a history of repeated relapses which have occurred again and again, particularly once she is no longer on any court-ordered supervision. Furthermore, several relapses within the pen-dency of this case occurred while on court-ordered supervision. As a i*esult, the Court felt that taking the entire record and history of Ms. J. and her chronic substance abuse into account, the seriously neglected condition each child was found to be in and were forced to suffer while Respondent was using (very much including the child in question), and the substantial efforts made by this Court (and others) in the past which have been unsuccessful, that termination of parental rights was more than justified and proven by the Tribal Presenting Officer as to the child in question.\\nThe Court concluded that the risk of harm to the child if the parental rights were not terminated, combined with the evidence of the lack of adequate parenting and supervision by the Respondent mother in the past, substantially outweighed the child's desire that her mother's parental rights not be terminated. There is no provision within the Tribal Code that the Court must blindly follow the wishes of the child when considering whether or not to terminate parental rights. When considering the best interests of the child as defined in 10 GTBC \\u00a7 102(d), \\\"the reasonable preference of the child\\\" as stated in 10 GTBC \\u00a7 102(d)(9) is but one of thirteen factox*s to be considered by the Court. The testimony presented was that in spite of the Respondent mother's significant lack of supervision and neglect of this child/that the child was fiercely loyal to her mother. The Court took this fierce loyalty in the face of substantial and overwhelming evidence of her mother's neglect into account and found that the child's preference was not reasonable under the circumstances.\\nNeither the record nor the law' supports Respondent's contention that the Court did not appropriately take into account factors related to Native Amei'ican culture or society. Respondent has cited no law which indicates that the standard of proof required in this case is anything other than what is required under the Grand Traverse Band Tribal Code, specifically 10 GTBC \\u00a7 125. Respondent appears to be implying that the Indian Child Welfare Act (25 U.S.C.A. \\u00a7 1901 et ser/., also known as \\\"ICWA\\\") should be applied to this case, but cites no authority for the position that the provisions of ICWA should be applied by a Tribal court (as opposed to a state court) in a child welfare proceeding. The Grand Traverse Band of Ottawa and Chippewa Indians has the authority as a sovereign nation to develop its own standards for termination of parental rights, which it did when adopting the Children's Code (10 GTBC \\u00a7 101 et see/.).\\nWHEREFORE, for the reasons stated above as well as the reasons stated on the record in the original hearing, the Respondent-mother's motion for rehearing and/or reconsideration of the order terminating the Respondent's parental rights to S.R.S., are hereby DENIED.\"}"

tribal/7342427.json

@@ -0,0 +1 @@
+"{\"id\": \"7342427\", \"name\": \"The TULALIP TRIBES, Plaintiff/Appellee, v. 1997 OLDSMOBILE BRAVADA, Respondent/Appellant\", \"name_abbreviation\": \"Tulalip Tribes v. 1997 Oldsmobile Bravada\", \"decision_date\": \"2009-09-21\", \"docket_number\": \"No. TUL-CV-GC-2009-0092\", \"first_page\": 279, \"last_page\": 282, \"citations\": \"8 Am. Tribal Law 279\", \"volume\": \"8\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Tulalip Tribal Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T21:40:06.827169+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Justice JANE M. SMITH, Justice ROBERT ANDERSON and Justice ELIZABETH NASON.\", \"parties\": \"The TULALIP TRIBES, Plaintiff/Appellee, v. 1997 OLDSMOBILE BRAVADA, Respondent/Appellant.\", \"head_matter\": \"The TULALIP TRIBES, Plaintiff/Appellee, v. 1997 OLDSMOBILE BRAVADA, Respondent/Appellant.\\nNo. TUL-CV-GC-2009-0092.\\nTulalip Tribal Court of Appeals.\\nArgued Aug. 14, 2009.\\nDecided Sept. 21, 2009.\\nSavini was present and was not represented by counsel.\\nRick Kilmer, Office of Prosecuting Attorney, represented the Tribes.\\nBefore Justice JANE M. SMITH, Justice ROBERT ANDERSON and Justice ELIZABETH NASON.\", \"word_count\": \"1237\", \"char_count\": \"7336\", \"text\": \"OPINION and ORDER AFFIRMING TRIAL COURT ORDER\\nSMITH, J.\\nJURISDICTION\\nThe Tulalip Tribal Appellate Court has jurisdiction over this case pursuant to Tu-lalip Law and Order Code, Ordinance 49, \\u00a7 1.11.1, which states:\\nAny person who claims in good faith, that the Tulalip Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of a case shall have a right to appeal a final judgment\\nSUMMARY\\nAlexa Savini [Appellant] is requesting the return of her 1997 Oldsmobile Bravada [Bravada]. It was seized by the Tulalip Tribal Police incident to an ongoing investigation into alleged drag use and distribution on the Tulalip Reservation. When the Bravada was initially stopped, Ms. Brianne Dennis was driving the vehicle. Appellant's son, William \\\"Vito\\\" McLeod was a passenger in the vehicle. Drugs and paraphernalia were found in Ms. Dennis' purse. Both individuals were subsequently arrested and the vehicle seized.\\nThe Trial Court conducted a forfeiture hearing concerning the seizure of the 1997 Bravada. Appellant and her son were both present at the hearing. The Tulalip Tribes [Tribes] orally requested a continuance of the hearing since two of its three witnesses were not present for the hearing. Judge Bass determined that the Tribal Police had received timely notice of the subpoenas and it was their own internal errors which delayed actual notice to the officers. Judge Bass denied the continuance.\\nThe Tribes then offered one witness who put forth evidence about how the investigation was conducted, what was found and who was involved. The Tribes' witness gave extensive testimony. At the end of the officer's testimony, Judge Bass gave Appellant a thorough instruction on what would be allowed on cross-examination. He advised Appellant that she would not be allowed to testily and argue her side at this time, but would be given adequate time later to present her evidence. Ms. Savini stated she did not have any questions of the officer. The Tribes then rested.\\nWhen it was time for Appellant to present her arguments and evidence, Judge Bass again gave a thorough instruction as to what would be allowed and not allowed. He also stated that Appellant would have to be sworn in before she could present her testimony. Ms. Savini stated she had no witnesses and declined to be sworn in. Judge Bass repeatedly advised her that this was her time to give her side of the case. She repeatedly declined to be sworn in and presented no evidence. Though she made several comments that her blood sugar was low, she did not request that the hearing be continued because she was too ill to continue.\\nAfter closing arguments, Judge Bass ruled that it was shown that the car was being used to transport drugs. He ordered forfeiture of the car to the Tribes.\\nIssue # 1: Did the trial court err by not continuing the forfeiture hearing based on Appellant's statements about her low blood sugar?\\nMs. Savini made several passing comments that she couldn't think clearly because her blood sugar was low. She did not at any time indicate to Judge Bass that she was in distress and could not continue due to her medical condition. In fact, she made some very helpful suggestions to her son when he attempted to ask questions of the Tribes' witness in cross-examination. It is the duty of a party to ask for a continuance if a sudden medical condition potentially could hamper their ability to go forward with their case, unless the person is clearly in a medical emergency. There was nothing in the record to indicate that Appellant wanted a continuance of the hearing. There is substantial case law on the issue of appellate courts giving deference to the trial court which is in the best position to hear testimony, observe the demeanor of the witnesses and the parties, determine witness credibility and make its decision based on the evidence before it. The trial judge had the parties before him, the appellate court does not. We find that the trial judge did not err by conducting the hearing instead of continuing it.\\nIssue # 2: Did the trial court err by finding sufficient grounds to forfeit the vehicle?\\nThe Tribes' witness provided sufficient evidence to the trial court judge to prove that drugs were being transported in the vehicle. The stop was lawful, drugs were found in the possession of the driver of the vehicle. Evidence was offered that the vehicle had been seen being driven by Ms. Dennis several times prior to being stopped on the date in question. Appellant did not provide any contradicting evidence. She was given ample opportunity to do so and declined. She stated that she would not be sworn in unless she had an attorney present.\\nIt is a general notion that when unrepresented persons appear in any court, they are held to the standards of any attorney. They are to be familiar with the rules of the court and the procedures to be followed in handling cases before that particular court. IDM Financial, LLC v. Napheahi & Williams, 5 NICS App. 78 (1998). Although this Court is ever vigilant in its effort to ensure the fairness of proceedings involving pro se litigants, a party who represents himself is bound by the same rules of procedure and substantive law as any attorney represent ing him would have been. Pratt v. Hoopa Valley Tribal Police Department, 5 NICS App. 57 (1998).\\nIt was the Tribes' burden to prove that the vehicle was used to transport drugs. The Trial Court found that the Tribes met that burden. The burden then shifted to the owner of the vehicle to prove that the vehicle was used without her permission and/or knowledge. the instant case, Appellant was given ample opportunity to present evidence and/or to testily on her own behalf that the vehicle was being used without her consent or knowledge. The judge advised her several times that if she didn't get sworn in, she would lose her opportunity to testify that the vehicle was used without her knowledge or permission. It was her decision not to be sworn in and therefore the Court was left with no alternative but to find that no evidence was presented to mitigate the seizure of the vehicle. While we understand that Appellant may have a concern about testifying without an attorney present, this does not give her leniency to not present any evidence on her behalf and expect the court to find in her favor. She must accept the inherent consequences of her decision. We find that the trial court did not err when it found sufficient grounds to order forfeiture of the 1997 Bravada.\\nThe Trial Court Order of March 20, 2009 is affirmed. The Appeal is denied and this matter is remanded to the Trial Court for resolution consistent with this order.\\nConcur: ELIZABETH F.M. NASON and ROBERT ANDERSON, Associate Justices.\\n. TTLOC \\u00a7 2.2.12(c), \\\"An owner of property who has a verified answer on file may prove that the use of the property occurred without his or her knowledge or consent;\\\"\"}"

tribal/7342445.json

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+"{\"id\": \"7342445\", \"name\": \"THE PEOPLE OF THE LITTLE RIVER BAND OF OTAWA INDIANS, Appellee-Plaintiff, v. Nobert KELSEY, Appellant-Defendant\", \"name_abbreviation\": \"Little River Band of Otawa Indians v. Kelsey\", \"decision_date\": \"2009-02-03\", \"docket_number\": \"No. 08 036 AP\", \"first_page\": 283, \"last_page\": 287, \"citations\": \"8 Am. Tribal Law 283\", \"volume\": \"8\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Little River Band of Ottawa Indians Tribal Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T21:40:06.827169+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice MICHAEL PETOSKEY, Chief Justice, and STELLA GIBSON and RONALD DOUGLAS, Associate Justices.\", \"parties\": \"THE PEOPLE OF THE LITTLE RIVER BAND OF OTAWA INDIANS, Appellee-Plaintiff, v. Nobert KELSEY, Appellant-Defendant.\", \"head_matter\": \"THE PEOPLE OF THE LITTLE RIVER BAND OF OTAWA INDIANS, Appellee-Plaintiff, v. Nobert KELSEY, Appellant-Defendant.\\nNo. 08 036 AP.\\nLittle River Band of Ottawa Indians Tribal Court of Appeals.\\nFeb. 3, 2009.\\nJohn Kelsey, Attorney At Law, Copemish, MI.\\nEugene Zeller, Manistee, MI.\\nChief Justice MICHAEL PETOSKEY, Chief Justice, and STELLA GIBSON and RONALD DOUGLAS, Associate Justices.\", \"word_count\": \"1591\", \"char_count\": \"9935\", \"text\": \"OPINION AND ORDER REGARDING JURISDICTION\\nMICHAEL PETOSKEY, Chief Justice.\\nI. INTRODUCTION:\\nThis threshold issue arises out of a present appeal of the conviction of Appellant-Defendant (hereinafter Defendant) on Sexual Assault. Defendant argues that the Little River Band of Ottawa Indians does not have criminal jurisdiction over this matter because the crime occurred on tribal fee land outside the \\\"reservation\\\". On the other hand, the People of the Tribe argued that the Tribe has the sovereign power to hold Tribal members and other Indians accountable for unacceptable behavior during a Tribal event at their Community Center. This Court remanded this question back to the Tribal Court for \\\"findings of fact\\\" and \\\"conclusions of law\\\" because the issue had not been previously addressed by the Tribal Court. The Tribal Court issued its mitten decision on August 21, 2008. The Tribal Court ruled in favor of the People of the Tribe based upon the express language of the Tribal Constitution. Both parties to the present appeal have extensively briefed this issue for the Court and should be commended for their volume of work.\\nII. ISSUE:\\nDoes the Little River Band of Ottawa Indians Tribal Court have criminal jurisdiction in a case when the criminal act occurred in the Tribal Community Center located on land owned by the Tribe, but not within the \\\"reservation\\\" boundaries and not on land held by the U.S. government as \\\"trust\\\" land, during a tribal event and when the Defendant is both a tribal member and a tribal official?\\nIII. DISCUSSION AND ANALYSIS:\\nWhether the courts of the Tribe have jurisdiction, i.e. authority, over matters is a threshold determination, which must be made by the courts in each and every case. See Champagne v. The People of the Little River Band of Ottawa Indians, Case No. 06-178-AP. (This Court's Note: The case caption should actually be: The People of the Little River Band of Ottawa Indians v. Champagne.) The beginning point for any analysis of tribal jurisdiction begins with the inherent authority of tribes to mange their internal affairs and domestic relations. See Taiton v. Mages, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896). In fact, federal Indian law recognition of such inherent authority is well established and long-standing in the law. The next step is to look for any limitations that may have been placed upon that inherent authority.\\nDefendant argues that the Tribal Community Center is not located within \\\"Indian country\\\" as that term is defined by 18 USC 1151. Defendant characterizes the present issue as \\\"a very simple, textbook criminal jurisdiction issue\\\". The vehemence of his argument is exceeded only by its misdirection. Defendant has submitted numerous federal cases which define the parameters of \\\"Indian country\\\" for the purposes of determining whether federal courts have federal criminal jurisdiction of crimes committed on such lands. That analysis has nothing to do with whether tribal courts have tribal criminal jurisdiction. After diligent research of authorities, this Court cannot find any federal limitation over the exercise of tribal criminal authority over crimes committed by Indians on land which is owned in fee by the Tribe.\\nIt is common knowledge that the Tribal Community Center has been the center of Tribal community activities ever since it was purchased by the Tribe many years ago. In fact, this very Court conducted several hearings in those facilities when the Tribal courts were first established and it is where the Tribal court offices were located for many years. Thus, it is imperative that judicial notice be taken of the tribal nature of all the activities that have occurred at the Community Center over many years now. In addition, the Center is a community gathering point to host varied and numerous tribal meetings, to serve community meals and to provide tribal office space for the conduct of the business of a tribal sovereign.\\nCriminal law simply put is the mere imposition of standards of behavior by defining that behavior which is unacceptable to the society, i.e. community, of people. It is clear to this Court that the Tribe's standards of behavior ought to apply to the behavior of Tribal members and other Indians in the Tribal Community Center. The general welfare of the Tribe depends upon individuals deferring from behavior that offends community standards. The interests of the Tribe are very strong here. This case involves a tribal member in an elected position acting as an agent of the Tribe at a Tribal activity who committed a crime against a Tribal employee in a public setting openly visible to other employees and Tribal members who were present. It also involves a Tribal Court finding that Defendant exercised political influence affecting the victim and the Tribe's welfare. It is sad that the present Defendant is a member of the Tribal Council, who in an effort to escape accountability, argues that the Tribe does not have the sovereign authority to hold him accountable to his violation of Tribal standards of behavior. The people should expect that Tribal officials will always work to protect and pro mote tribal sovereignty, especially their elected representatives.\\nNonetheless, the Court must consider whether the Tribe itself has imposed a limitation on the exercise of its inherent authority. Thus, we begin an examination of tribal law. Article I of the Tribal Constitution defines the \\\"territory\\\" of the Little River Band of Ottawa Indians as \\\"... all lands which are now or hereinafter owned by or reserved for the Tribe .\\\" (bold added for emphasis by this Court). See The Constitution of the Little River Band of Ottawa Indians, Article I, Sec. 1. In fact, the provision includes a mandate that such lands \\\"shall\\\" be included in the definition. A constitutional mandate is a mandate of the people of the Band because the Tribal Constitution, as the organic governing document of the Tribe, is their collective consent to be governed and it provides their framework for government. The design is mandated.\\nSection 2 of that same Article requires that [tjhe jurisdiction over its members and territory shall be exercised to the fullest extent consistent with this Constitution, the sovereign powers of the Tribe, a,nd federal law.\\\" (bold added again for emphasis by this Court). Defendant argues that this Section which distinguishes jurisdiction from territory means that tribal jurisdiction is not synonymous with its territory. We agree, but reach a different conclusion than Defendant would have us reach. Defendant's conclusion is that tribal jurisdiction is smaller than its territory because the Tribe cannot exercise criminal jurisdiction over the land it owns in fee. Defendant makes this argument despite the express words used in the People's definition of \\\"territory\\\" cited above. However, this Court recognizes that tribal jurisdiction is larger than territory because some tribal authority extends beyond its land, e.g. tribal membership and self-regulation of tribal treaty rights within treaty ceded areas. The drafters of the Tribal Constitution wisely recognized such.\\nNext, the Court examines the laws enacted by Tribal Council. There are two (2) ordinances enacted by Tribal Council that apply to the instant matter. The Law and Order\\u2014Criminal Offenses\\u2014Ordinance details the territorial jurisdiction of the Tribe to include:\\n(1) \\\"all land within the limits of the Tribe's reservation, including trust land, fee patented land and rights of way running through the reservation; and\\n(2) all lands outside the boundaries of the Tribe's reservation held in trust by the United States for individual members of the Tribe or for the Tribe; and\\n(3) all other lands considered 'Indian country' as defined by 18 U.S.C. section 1151 that is associated with the Tribe. \\\" See Ordinance # 03-j00-03.\\nThe second ordinance is the Criminal Procedures Ordinance and it provides that: \\\"[T]he Tribal Court shall have jurisdiction over any action by any Indian as defined by this Ordinance, that is made a criminal offense under a/pplicable Tribal Code and that occurred within the territorial jurisdiction of the Tribe as defined in the Constitution\\\" (bold added for emphasis by this Court). See Ordinance # 03-300-03, Section 8.08. Tribal Council is obligated by the Tribal Constitution, as this Court is, to assert jurisdiction over the Tribe's territory.\\nIt is clear to this Court that the first of these two (2) Ordinances is unconstitutionally narrow in that it does not provide for the exercise of the inherent criminal jurisdiction over all tribal lands. As mentioned above, the Tribal Constitution requires that \\\"ft]he jurisdiction over its members and territory shall be exercised to the fullest extent consistent with this Constitution, the sovereign powers of the Tribe, and, federal law.\\\" See Tribal Constitution, Article I, Section 2, It is beyond dispute that Indian tribes have the inherent authority to mange their own affairs and domestic relations. There is no federal limitation over the exercise of tribal criminal authority over crimes committed by Indians on land which is owned in fee by the Tribe.\\nIV. ORDER:\\nWHEREFORE, FOR ALL OF THE FOREGOING, this Court DENIES Defendant's Motion for Peremptory Reversal AND AFFIRMS the Tribal Court decision in its entirety because the Tribe has criminal jurisdiction in the present matter.\\nIT IS ORDERED THAT an Appellate Scheduling Conference be scheduled to set a briefing schedule to resolve all other issues pending in this appeal.\"}"

tribal/7342539.json

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+"{\"id\": \"7342539\", \"name\": \"Theresa DAY, Appellant, v. Amy KIRBY, Table Games Division; Ho-Chunk Gaming-Wisconsin Dells; and Grievance Review Board, Appellees\", \"name_abbreviation\": \"Day v. Kirby\", \"decision_date\": \"2013-10-28\", \"docket_number\": \"No. SU 13-08\", \"first_page\": 444, \"last_page\": 445, \"citations\": \"11 Am. Tribal Law 444\", \"volume\": \"11\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Ho-Chunk Nation Supreme Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T19:05:47.253425+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Theresa DAY, Appellant, v. Amy KIRBY, Table Games Division; Ho-Chunk Gaming-Wisconsin Dells; and Grievance Review Board, Appellees.\", \"head_matter\": \"Theresa DAY, Appellant, v. Amy KIRBY, Table Games Division; Ho-Chunk Gaming-Wisconsin Dells; and Grievance Review Board, Appellees.\\nNo. SU 13-08.\\nHo-Chunk Nation Supreme Court.\\nOct. 28, 2013.\", \"word_count\": \"875\", \"char_count\": \"5248\", \"text\": \"ORDER (Denying Appeal)\\nOn October 21, 2013, the appellant, by and through Attorney James C. Ritland, filed a timely appeal of a final Trial Court judgment issued on August 20, 2018. HCN R.App. P. 7(b)(1), 11(a), available at http://www.ho-ehunknation.com/?PageId= 123. \\\"Any party to a civil action . who is dissatisfied with [a] judgment . may appeal to the Supreme Court.\\\" HCN Const., art. VII, \\u00a7 14, available at http://www.ho-chunknation.com/?Pageld =294. Presumptively, \\\"this Court is required to accept appeals which state an appealable issue.\\\" Deena M. Basina v. William P. Smith, SU 00-08 (HCN S.Ct., July 13, 2000) at 2. The Court, however, has consistently construed the constitutional right to appeal as applying only to a review of final judgments. HCN R.App. P. 7; see also, e.g., Stewart Miller v. Ho-Chunk Nation et al., SU 99-08 (HCN S.Ct., Sept. 15, 1999).\\nMoreover, while the Constitution \\\"confers the right to appeal ., that power is circumscribed by the procedures set out in the HCN Rules of Appellate Procedure- [Ajny party who seeks an appeal must abide by the procedural rules established by this Court.... \\\" Bonnie Smith v. HCN Gaming Comm'n, SU 01-03 (HCN S.Ct., Mar. 16, 2001) at 1 (citing HCN Const., art. VII, \\u00a7 7(b)). In this sense, \\\"[ajppeals are not automatically a matter of right but are within the Court's discretion. The HCN R.App. P. provide the guidelines as to how parties file an appeal.\\\" Veronica L. Wither v. Ho-Chunk Nation, SU 04-02 (HCN S.Ct., Apr. 14, 2004) at 2. The Court may decline to accept an appeal for failure to adhere to clear procedural requisites. See Gale S. White v. Jean Day et al., CV 07-54 (HCN Tr.Ct., Dec. 9, 2008) at 16-17. \\\"This Court, despite its infancy, must require those who come into our court system to follow our rules and requirements.\\\" Leigh Stephen et al. v. Ho-Chunk Nation, SU 99-01 (HCN S.Ct., Mar. 23, 1999) at 3.\\nThe Supreme Court has erected rather minimal requirements regarding the content of a notice of appeal. An appellant first needs to establish the basic parameters of the appeal. \\\"The Notice of Appeal shall identify the party/parties making the appeal by name and address, and shall identify the final judgment or order being appealed by name and case number.\\\" HCN R.App. P. 11(a). An appellant then must set forth the essential contours of the appeal.\\nThe Notice of Appeal must include a short statement of the reason or grounds for the appeal. The party filing the appeal must articulate exactly how the lower court erred as a matter of law when considering the facts offered to that court. The statement should include references and/or citations to the applicable law.\\nId,., Rule 11(b) (emphasis added).\\nThe Court deems that the appellant has not satisfied the above-quoted appellate requirements. The appellant's notice of appeal begins with a short recitation of the facts underlying the dispute followed by a conclusory statement that the Trial Court denied the administrative appeal. Notice of Appeal, SU 13-08 at 1. The appellant next presents four (4) separate legal issues for appellate consideration. Id. at 1-2. The appellant concludes with a section entitled, \\\"Citations,\\\" wherein she articulates four (4) somewhat disparate points of law: 1) the absence of deference to an agency that ignores facts in the record; 2) the abuse of discretion standard of appellate review; 3) the definitional aspects of the substantial evidence test; and 4) the presumption of progressive discipline in Ho-Chunk \\\"for cause\\\" employment. Id. at 2.\\nThe notice of appeal does not arguably contain \\\"a short statement of the reason or grounds for the appeal.\\\" HCN R.App. P. 11(b). More importantly, while the appellant phrased her issues as questions attributing error on behalf of the Trial Court, she fails to \\\"articulate exactly how the lower court erred as a matter of law.\\\" Id. An appellant must preliminarily offer such a contention before the Supreme Court may begin reviewing \\\"the factual findings and conclusions of law of the Trial Court.\\\" Id., Rule 6. These essential elements must appear within a notice of appeal, and their absence will inevitably lead to a denial of appellate consideration. See, e.g., Kenneth L. Twin v. Douglas Greengrass et al., SU 04-08 (HCN S.Ct., Dec. 29, 2004); Cheryl Smith v. Ho-Chunk Nation et al., SU 00-07 (HCN S.Ct., May 26, 2000). Consequently, the Court denies the present appeal.\\nEGI HESKEKJET.\\n. The appellate rules do not expressly contemplate the filing of an answer to a Notice of Appeal prior to its acceptance or rejection by this Court. HCN R.App. P. 7(e). In contrast, an appellee may submit an oppositional answer within ten (10) days after the filing of a Petition for Permission to Appeal an interlocutory decision. HCN R.App. P. 8.\\n. In certain situations, irrelevant here, a party may conceivably incorporate a request for a stay of the Trial Court order. HCN R.App. P. 7(c).\\n. An appellant is not expected to enumerate the issues upon appeal until submission of the initial brief. HCN R.App. P. 13(a)(2).\"}"

tribal/7342974.json

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+"{\"id\": \"7342974\", \"name\": \"In the Interest of Adult CTF Beneficiary Joan M. FRANK, Petitioner, v. HO-CHUNK NATION OFFICE OF TRIBAL ENROLLMENT, Respondent\", \"name_abbreviation\": \"Frank v. Ho-Chunk Nation Office of Tribal Enrollment\", \"decision_date\": \"2011-06-28\", \"docket_number\": \"No. CV 11-31\", \"first_page\": 515, \"last_page\": 523, \"citations\": \"9 Am. Tribal Law 515\", \"volume\": \"9\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Ho-Chunk Nation Trial Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-11T01:29:30.374552+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In the Interest of Adult CTF Beneficiary Joan M. FRANK, Petitioner, v. HO-CHUNK NATION OFFICE OF TRIBAL ENROLLMENT, Respondent.\", \"head_matter\": \"In the Interest of Adult CTF Beneficiary Joan M. FRANK, Petitioner, v. HO-CHUNK NATION OFFICE OF TRIBAL ENROLLMENT, Respondent.\\nNo. CV 11-31.\\nHo-Chunk Nation Trial Court.\\nJune 28, 2011.\", \"word_count\": \"3968\", \"char_count\": \"24226\", \"text\": \"ORDER\\n(Granting Petition in Part and Requesting Further Information)\\nAMANDA L. ROCKMAN, Interim Chief Judge.\\nINTRODUCTION\\nThis case concerns whether an adult can access monies from her Children's Trust Fund (hereinafter CTF) to pay for costs associated with the purchasing an automobile and tuition for obtaining a high school diploma. The Court employs the standard enunciated in the Per Capita Distribution Ordinance (hereinafter Per Capita Ordinance), \\u00a7 12.8c to assess the merit of the petitioner's request. The analysis and holding of the Court follow below.\\nPROCEDURAL HISTORY\\nThe petitioner initiated the current action by filing the April 11, 2011 Petition for Release of Per Capita Distribution (hereinafter Petition). Consequently, the Court issued a Summons accompanied by the above-mentioned Petition on April 11, 2011, and served the documents upon the respondent's representative, Ho-Chunk Nation Department of Justice (hereinafter DOJ), by personal service as permitted by HCN R. Civ. P. 5(C)(1). The Summons informed the respondent of the right to file an Answer within twenty (20) days of the issuance of the Summons pursuant to HCN R. Civ. P. 5(A)(2). The Summons also cautioned the respondent that a Default Judgment could result from failure to file within the prescribed time period.\\nThe respondent, by and through DOJ Attorney Paul Rosheim, timely filed the Respondent's Answer on April 22, 2011, requesting that the Court deny the petitioner's request for relief unless the petitioner provided additional information. Regardless, the Court delivered Notice(s) of Hearing to the parties on May 4, 2011, informing them of the date, time and location of the Fart-Finding Hearing. The Court convened the Hearing on May 25, 2011 at 10:00 a.m. CDT. The following parties appeared at the Hearing: Joan M. Frank, petitioner, and DOJ Attorney Paul Rosheim, respondent's counsel.\\nAt the Fact-Finding Hearing, the petitioner filed information regarding the proposed vehicles, education, and finances in open court. On June 1, 2011, the petitioner filed a correspondence with the Court indicating that the previously proposed vehicle had been sold on May 25, 2011. The petitioner faxed paperwork that day regarding a similar vehicle. Also on June 1, 2011, the respondent filed Respondent's Reply recommending that the Court release the CTF money for the vehicle and dispense with a Fart-Finding Hearing.\\nAPPLICABLE LAW\\nPER CAPITA DISTRIBUTION ORDINANCE, 2 HCC \\u00a7 12\\nSubsec. 8. Minors and Other Legal Incompetents.\\na. The interests of minors and other legally incompetent Members, otherwise entitled to receive per capita payments, shall, in lieu of payments to such minor or incompetent Member, be disbursed to a Children's Trust Fund which shall establish a formal irrevocable legal structure for such CTFs approved by the Legislature as soon after passage of this Ordinance as shall be practical, with any amounts currently held by the Nation for passage for the benefit of minor or legally incompetent Members, and all additions thereto pending approval and establishment of such formal irrevocable structure, to be held in an account for the benefit of each such Member-beneficiary under the supervision of the Trial Court of the Nation. Trust assets of such CTFs shall be invested in a reasonable and prudent manner, which protects the principal and seeks a reasonable return.\\nb. Education Criterion.\\n(1) The trust assets of each such account maintained for a minor shall be disbursed to the Member-beneficiary thereof upon the earlier of (i) said Member beneficiary meeting the dual criteria if (a) reaching the age of eighteen (18) and (b) producing evidence of personal acquisition of a high school diploma to the Department of Enrollment (HSED, GED or any similar substitute shall not be acceptable), or (ii) the Member reaches the age of twenty-five (25); provided that this provision shall not operate to compel disbursement of funds to Members legally determined to be incompetent. In the event a Member, upon reaching the age of eighteen (18) does not produce proof of personal acquisition of a high school diploma, such Member's per capita funds shall be retained in the CTF account and any and all per capita distributions payable to said Member after reaching age 18 will be added to such fund and not be paid to the Member and the CFT account and shall be held on the same terms and conditions applied during the Member-beneficiary's minority until the earliest to occur: (1) the Member produces the required diploma; (2) the Member reaches the age of twenty-five (25); or (3) the Member is deceased.\\n(2) Transition Rule. The following rule pertains to Tribal Members who reached age eighteen (18) on or before November 1, 2000 and have not received their CTF account due to failure to meet the graduation requirement shall [sic] receive the quarterly or other periodic per capita distributable to them with respect to all per capita payments made on or before November 1, 2001; after which periodic payments shall be added to their CTF account until they qualify for the distribution of the CTF by virtue of the provisions of paragraph 8b, above.\\nc. Funds in the CTF of a minor or legally incompetent Member may be available for the benefit of a beneficiary's health, education, and welfare when the needs of such person are not being met from other Tribal funds or other state or federal public entitlement programs, and upon a finding of special need by the Ho-Chunk Nation Trial Court. In order to request such funds, the following provisions apply:\\n(1)A written request must be submitted to the Trial Court by the beneficiary's parent or legal guardian detailing the purpose and needs for such funds.\\n(2) The parent or legal guardian shall maintain records and account to the Trial Court in sufficient detail to demonstrate that the funds disbursed were expended as required by this Ordinance and any other applicable federal law.\\n(3) Any other standards, procedures, and conditions that may be subsequently adopted by the Legislature consistent with any applicable federal law shall be met.\\nHO-CHUNK NATION RULES OF CIVIL PROCEDURE\\nRule 5. Notice of Service of Process.\\n(A) Definitions.\\n(2) Summons\\u2014The official notice to the party informing him/her that he/she is identified as a party to an action or is being sued, that an Answer is due in twenty (20) calendar days (See HCN R. Civ. P. 6) and that a Default Judgment may be entered against them if they do not file an Answer in the prescribed time. It shall also include the name and location of the Court, the case number, and the names of the parties. The Summons shall be issued by the Clerk of Court and shall be served with a copy of the filed Complaint attached.\\n(C) Methods of Service of Process.\\n(1) Personal Service. The required papers are delivered to the party in person by the bailiff, or when authorized by the Court, a law enforcement officer from any jurisdiction, or any other person not a party to the action who is eighteen (18) years of age or older and of suitable discretion.\\n(3) After the first successful service of process, the Court and the parties will then perform all written communications through regular mail at that address. Therefore, each party to an action has an affirmative duty to notify the Court, and all other parties, of a change in address within ten (10) calendar days of such change.\\nRule 27. The Nation as a Party.\\n(B)Civil Actions. When the Nation is filing a civil suit, a writ of mandamus, or the Nation is named as a party, the Complaint should identify the unit of government, enterprise or name of the official or employee involved. The Complaint, in the case of an official or employee being sued, should indicate whether the official or employee is being sued in his or her individual or official capacity. Service can be made on the Ho-Chunk Nation Department of Justice and will be considered proper unless otherwise indicated by these rules, successive rules of the Ho-Chunk Nation Court, or Ho-Chunk Nation Law.\\nRule 58. Amendment to or Relief from Judgment or Order.\\n(A) Relief from Judgment. A Motion to Amend or for relief from judgment, including a request for a new trial shall be made within ten (10) calendar days of the filing of judgment. The Motion must be based on an error or irregularity which prevented a party from receiving a fair trial or a substantial legal error which affected the outcome of the action.\\n(B) Motion for Reconsideration. Upon motion of the Court or by motion of a party made not later than ten (10) calendar days after entry of judgment, the Court may amend its findings or conclusions or make additional findings or conclusions, amending the judgment accordingly. The motion may be made with a motion for a new trial. If the Court amends the judgment, the time for initiating an appeal commences upon entry of the amended judgment. If the Court denies a motion filed under this rule, the time for initiating an appeal from the judgment commences when the Court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within thirty (30) days after the filing of such motion, and the Court does not decide a motion under this Rule or the judge does not sign an order denying the motion, the motion is considered denied. The time for initiating an appeal from judgment commences in accordance with the Rules of Appellate Procedure.\\n(C) Motion to Modify. After the time period in which to file a Motion to Amend of a Motion for Reconsideration has elapsed, a party may file a Motion to Modify with the Court. The Motion, must be based upon new information that has come to the party's attention that, if true, could have the effect of altering or modifying the judgment. Upon such motion, the Court may modify the judgment accordingly. If the Court modifies the judgment, the time for initiating an appeal commences when the Court denies the motion on the record or when an order denying the motion is entered, whichever occurs first. If within thirty (30) calendar days after the filing of such motion, and the Court does not decide the motion or the judge does not sign an order denying the motion, the motion is considered denied. The time for initiating an appeal from judgment commences in accordance with the Rules of Appellate Procedure.\\n(D) Erratum Order or Reissuance of Judgment. Clerical errors in a court record, including the Judgment or Order, may be corrected by the Court at any time.\\n(E) Grounds for Relief. The Court may grant relief from judgments or orders on motion of a party made within a reasonable time for the following reasons: (1) newly discovered evidence which could not reasonably have been discovered in time to request a new trial; or (2) fraud, misrepresentation or serious misconduct of another party to the action; or (3) good cause if the requesting party was not personally served in accordance with Rule 5(c)(l)(a)(i) or (ii); did not have proper service and did not appear in the action; or (4) the judgment has been satisfied, released, discharged or is without effect due to a judgment earlier in time.\\nRule 61. Appeals,\\nAny final Judgment or Order of the Trial Court may be appealed to the Ho-Chunk Nation Supreme Court. The Appeal must comply with the Ho-Chunk Nation Rules of Appellate Procedure, specifically Rules of Appellate Procedure, Rule 7, Right of Appeal. All subsequent actions of a final Judgment or Trial Court Order must follow the HCN Rules of Appellate Procedure,\\nFINDINGS OF FACT\\n1. The parties received proper notice of the Fact-Finding Hearing.\\n2. The petitioner, Joan M. Frank, is an adult member of the Ho-Chunk Nation, Tribal ID# 439A004934, but has not received the balance in her CTF account due to a failure to satisfy the graduation requirement found in the Per Capita Ordinance, \\u00a7 12.8b(l).\\n3. The respondent, Ho-Chunk Nation Office of Tribal Enrollment, is a sub-entity of the Ho-Chunk Nation, a federally recognized Indian tribe with principal offices located on trust lands at the Ho-Chunk Nation Headquarters, W9814 Airport Road, P.O. Box 667, Black River Falls, WI 54615.\\n4. The petitioner remains ineligible to receive quarterly per capita payments since attaining the age of majority on March 27, 2008, due to her non-completion of accredited, secondary education. See Per Capita Distribution Ordinance, \\u00a7 12.8b(2).\\n5. The petitioner is unemployed. She currently remains at home raising her four month old son.\\n6. The family income consists of the petitioner's husband's income of approximately $1,673.36 per month, which is currently below the poverty guidelines for a family of three individuals. 70 Fed.Reg. 8,373 (Feb. 15, 2008).\\n7. The petitioner requested a relief of CTF monies for costs associated with the Brigham Young University Independent Study program to receive her high school diploma. However, the petitioner did not provide documentation regarding course requirements, total cost, nor a statement from the HCN Department of Education indicating that completion of this program would satisfy the graduation requirement found in the Per Capita Ordinance, \\u00a7 12.8b(l),\\n8. The petitioner also requested a release of CTF monies for costs associated with the purchase of an automobile.\\nBrenengen Chrysler Ford LLC $14,615.90\\n1200 N. Superior Aveneue (vehicle purchase\\nTomah, WI 54660 price and warranty)\\na. The petitioner has satisfied the preliminary evidentiary showing for an automobile purchase. See In the Interest of Minor Child: S.S., DOB 07/30/82, by Sharon A. Porter v. HCN Office of Tribal Enrollment, CV 99-76 (HCN Tr.Ct., Dec. 27, 1999) at 6-7. The petitioner demonstrated the following facts:\\nla. the lack of a reliable vehicle;\\nlb. the possession of a valid driver's license of Joan M. Frank, # F652-4939-0607-03;\\nlc. the anticipated purchase of 2008 Mercury Milan;\\nld. the vehicle's odometer reading of 36,085 miles;\\nle. the presentation of a complete sales quotation;\\nlf. the vehicle's VIN\\n# 3MEHM07Z38R632576;\\nle. the presentation of a complete sales quotation;\\nlg. the provision of a vehicle photograph;\\nlh. the indication of a Kelley Blue Book retail value of $17,600.00; and\\nli. an automobile insurance quote.\\nThe requested purchase also represents a commercially reliable vehicle, ie., less than six (6) years old with an odometer reading of less than 75,000 miles. See In Re: L.L.L. by Helen Littlesoldier v. HCN Enrollment Dep't, CV 97-03 (HCN Tr.Ct., Mar. 11, 1997) at 2.\\n9. No tribal funding source or state or federal public entitlement programs exist to cover the above-enumerated cost. See Per Capita Ordinance, \\u00a7 12.8c.\\n10. As of April 1, 2011, the petitioner's CTF account balance was $194,094.69.\\nDECISION\\nThe Court applies a four-part test when determining the circumstances under which it would grant a release of monies from the CTF account of a tribal member. See In the Interest of Minor Child,(ren): V.D.C., DOB 10/03/84 et al., by Debra Crowe v. HCN Office of Tribal Enrollment, CV 00-25 (HCN Tr.Ct., Apr. 6, 2001) at 7 (citing In the Interest of Minor Child: S.D.S., DOB 04/25/83, by Michelle R. DeCora, v. HCN Office of Tribal Enrollment, CV 00-35 (HCN Tr.Ct., May 4, 2000) at 7). The Court derived the four-part test from language appearing in the Per Capita Ordinance, \\u00a7 12.8c. Crowe at 7. First, the Court may only grant a release for the benefit of a beneficiary's health, education, or welfare. Second, any such benefit must represent a necessity, and not a want or desire. Third, the petitioner must demonstrate special financial need. Finally, the petitioner must provide evidence of exhaustion of tribal funds and public entitlement programs. Id. at 8.\\nThe Court closely examines each Petition for Release of Per Capita Distribution in fulfillment of its statutory obligation to supervise the CTF accounts. Per Capita Ordinance, \\u00a7 12.8a. The Court performs this supervision against the backdrop of federal enabling legislation. Specifically, the Indian Gaming Regulatory Act requires that parents receive per cap-ita monies \\\"in such amounts as may be necessary for the health, education, or welfare, of the minor.\\\" Indian Gaming Regulatory Act, 25 U.S.C. \\u00a7 2710(b)(3)(C) (emphasis added). The Court has focused upon this limitation in developing its case law, announcing basic principles and rudimentary understandings that have guided it through a variety of requests.\\nAs stated above, the Indian Gaming Regulatory Act assumes that only a parent or guardian would need to seek access to trust monies since competent adults would ordinarily receive such funds upon regular distribution. However, the Ho-Chunk Nation Legislature mandates retention of the corpus of a CTF until an adult member obtains either a high school diploma or the age of twenty-five (25) years. Per Capita Ordinance, \\u00a7 12.8b(l). The Legislature erected the graduation requirement in response to an actual and/or perceived drop in the graduation rate of Ho-Chunk youth. See Marvel J. Cloud v. HCN Office of Tribal Enrollment, CV 01-34 (HCN Tr. Ct., July 10, 2001) at 9. In doing so, the Legislature directed that the CTF monies \\\"shall be held on the same terms and conditions applied during the Member-beneficiary's minority.\\\" Per Capita Ordinance, \\u00a7 12.8b(l) (emphasis added).\\nImportantly, the Legislature did not require identical treatment in regards to the occasional release of such funds. The Court still applies the four-part test, but more strictly. Essentially, \\\"the Court must not undermine [the] intent [of the graduation requirement] by unduly approving releases from the CTF of adult members who have failed to attain a high school diploma. Otherwise, the Court would strip the legislation of its only inducement, ie., no high school diploma, no CTF.\\\" In the Interest of Adult CTF Beneficiary: Renata White, DOB 02/27/81 v. HCN Office of Tribal Enrollment, CV 01-75 (HCN Tr.Ct., Oct. 16, 2001) at 10.\\nThe Court shall now address the requests presented by the petitioner in the instant case. The Court has declined to release monies for basic welfare necessities unless the adult CTF beneficiary documented enrollment in a high school degree program. Typically, the adult member either voluntarily or involuntarily departed a local high school and subsequently gained admission to either a school district affiliated alternative education facility, a nearby technical college or a distance education institution. See, e.g., In the Interest of Adult CTF Beneficiary: Myra Jo Black-deer, DOB 09/01/88 v. HCN Office of Tribal Enrollment, CV 07-58 (HCN Tr.Ct., Sept. 10, 2007); In the Interest of Adult CTF Beneficiary: April Webster, DOB 08/30/87 v. HCN Office of Tribal Enrollment, CV 05-107 (HCN Tr.Ct., Mar. 15, 2006); In the Interest of Adult CTF Beneficiary: Alicia Blackhawk, DOB 10/25/81 v. HCN Office of Tribal Enrollment, CV 05-29 (HCN Tr.Ct., June 1, 2005). In such an instance, the Court requires the adult member to satisfy reasonable academic benchmarks during the process of acquiring a high school diploma, including continuing attendance. See, e.g., In the Interest of Adult CTF Beneficiary: Vincent G. Decorah, DOB 11/22/85 v. HCN Office of Tribal Enrollment, CV 09-16 (HCN Tr.Ct., June 23, 2009); In the Interest of Adult CTF Beneficiary: Ci Ci B. Big John, DOB 03/05/88 v. HCN Office of Tribal Enrollment, CV 09-04 (HCN Tr. Ct., May 6, 2009).\\nThe present petitioner is enrolled in the Brigham Young University Independent Study program to receive a high school diploma. The petitioner previously attended the Believers Baptist Academy in Indiana. However, as the State of Wisconsin did not recognize the credits she earned there, the petitioner currently has the status of a ninth grader with one semester completed. The petitioner demonstrated the request to release money from her CTF for costs associated with the Brigham Young University Independent Study program will benefit her education, health, and welfare, and represents a necessity as opposed to a want or desire. The petitioner also demonstrated a financial hardship and showed exhaustion of other methods of funding. However, before the Court may grant the release of CTF monies for this request, the petitioner must submit documentation regarding the course requirements and total cost. The petitioner must also submit a statement from the HCN Department of Education indicating that the program is accredited for an online HSED and that completion will result in the release of the balance of the petitioner's CTF. The petitioner shall present the aforementioned documentation prior to July 28, 2011.\\nRegarding the automobile request, the petitioner has demonstrated the presence of a health and welfare necessity and a financial need. The petitioner has also provided evidence of exhaustion of tribally, state, and federally funded programs. The automobile will allow the petitioner to travel to testing sites and attend physical education classes in order to complete her high school education. The petitioner also needs the vehicle to obtain part-time employment and transport her minor child to medical appointments. Moreover, the petitioner has satisfied the standard erected for consideration of an automobile request.\\nTHEREFORE, based upon the preceding facts and analysis, the Court grants the automobile request and directs Fifth Third Bank to deliver a check payable in the following amount to:\\nBrenengen Chrysler Ford LLC $14,615.90\\n1200 N. Superior Avenene (vehiete purchase\\nTomah, WI 54660 price and warranty)\\nThe checks shall bear the following notation: \\\"for Joan M. Frank, Tribal ID # 439A004934.\\\" The petitioner bears the responsibility of contacting the above provider to inform it of the anticipated receipt of the check and the item that the Court has approved for payment.\\nIn regards to the granted request, the Court directs the petitioner, Joan M. Frank, to \\\"maintain records sufficient to demonstrate that the funds disbursed were expended as required by [the Per Capita Ordinance] and any applicable Federal law.'' Per Capita Ordinance, \\u00a7 12.8c(2). The petitioner shall submit a financial report along with relevant documentation (Le., receipts and invoices) to the Court within three (3) months after receipt of the disbursement, confirming the specified use of the funds. Failure to do so may subject the petitioner to the contempt powers of the Court pursuant to the Ho-Chunk Nation Contempt Ordinance and/or repayment of the amount subtracted from the CTF account. Furthermore, the petitioner must submit any excess funds to the Court in the form of a check. The Court shall maintain an open case file until acceptance of a final accounting, and service of process shall be performed on the address stated in the Petition unless parties direct otherwise in writing. See HCN R. Civ. P. 5(C)(3).\\nThe parties retain the right to file a timely post judgment motion with this Court in accordance with HCN R. Civ. P. 58, Amendment to or Relief from Judgment or Order. Otherwise, \\\"[a]ny final Judgment or Order of the Trial Court may be appealed to the Ho-Chunk Nation Supreme Court. The Appeal must comply with the Ho-Chunk Nation Rules of Appellate Procedure (hereinafter HCN R.App. P.), specifically (HCN R.App. P.), Rule 7, Right of Appeal\\\" HCN R. Civ. P. 61. The appellant \\\"shall within sixty (60) calendar days after the day such judgment or order was rendered, file with the Supreme Court Clerk, a Notice of Appeal from such judgment or order, together with a filing fee as stated in the appendix or schedule of fees.\\\" HCN R.App. P. 7(b)(1). \\\"All subsequent actions of a final Judgment or Trial Court Order must follow the [HCN R.App, P.].\\\" HCN R. Civ. P. 61.\\n. The Ho-Chunk Nation Rules of Civil Procedure (hereinafter HCN R. Civ. P.) permit the Court to serve the Complaint upon the DOJ when the plaintiff/petitioner names as a party either a unit of government or enterprise or an official or employee being sued in their official or individual capacity. HCN R. Civ. P. 27(B).\"}"

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+"{\"id\": \"7343100\", \"name\": \"Nick LAY, as Cherokee Council Member District 8, Plaintiff, v. CHEROKEE NATION, Defendant\", \"name_abbreviation\": \"Lay v. Cherokee Nation\", \"decision_date\": \"1998-12-09\", \"docket_number\": \"JAT Case No. 97-05\", \"first_page\": 23, \"last_page\": 29, \"citations\": \"1 Am. Tribal Law 23\", \"volume\": \"1\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Cherokee Nation Judicial Appeals Tribunal\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T23:14:00.589869+00:00\", \"provenance\": \"CAP\", \"judges\": \"RALPH F. KEEN, JUSTICE, Assigned Pursuant to 20 CNCA App. Rule 3a (12)\", \"parties\": \"Nick LAY, as Cherokee Council Member District 8, Plaintiff, v. CHEROKEE NATION, Defendant.\", \"head_matter\": \"Nick LAY, as Cherokee Council Member District 8, Plaintiff, v. CHEROKEE NATION, Defendant.\\nJAT Case No. 97-05.\\nCherokee Nation Judicial Appeals Tribunal.\\nDec. 9, 1998.\\nJames G. Wilcoxen, Wilcoxen, Wilcoxen & Primomo, Muskogee, OK, for plaintiff.\\nDonald G. Hopkins, Tulsa, OK, for Defendant Margaret Riney Election Office, and The Election Office of The Cherokee Nation.\\nLinda L, Donelson, Office of Law & Justice Cherokee Nation, Tahlequah, OK, for Remaining Defendants.\", \"word_count\": \"2963\", \"char_count\": \"18334\", \"text\": \"ORDER\\nRALPH F. KEEN, Justice.\\nNick Lay (\\\"Lay\\\" or \\\"Plaintiff\\\") brings this action for Declaratory Relief asking the Court to find that Legislative Act 7-97, Section 4(D) [codified as 26 CNCA Section 4(D) ], is unconstitutional, insofar as it defers reapportionment of seats on the Council of the Cherokee Nation (\\\"Council\\\") until the year 2002. In conjunction therewith, Lay also seeks reapportionment of the Council seats (in accordance with a formula which has been codified as Cherokee law since September 9, 1989) prior to the 1999 general election.\\nNumerous parties were named as defendants in this action. By stipulation of the parties, approved by the Court on November 24, 1998, the Cherokee nation (\\\"Defendant\\\") was substituted as party defendant.\\nA recitation of the rest of the procedural history of this case is unnecessary.\\nAll parties agree that the issues before the Court concern only an interpretation of the laws of the Cherokee nation. Therefore, by concurrence of the parties, the matter has been submitted to the Court for a decision on the pleadings, briefs and associated documents.\\nFACTS\\nArticle V, Section 3, of the Cherokee Constitution was amended by referendum of the Cherokee people on June 20, 1987. That provision of the Cherokee Constitution, as amended, provides:\\nThe Council shall consist of fifteen (15) members, who are members by blood of the Cherokee Nation of Oklahoma. Each Council member shall be elected in the general election for a term of four (4) years and until his successor is duly elected and installed.\\nThe Council shall establish representative districts which shall be within the historical boundaries of the Cherokee nation of Oklahoma. These districts shall be apportioned to afford a, reasonably equal division of tribal membership among the districts [emphasis added].\\nThe last sentence, shown in italics, forms the core of the legal issues in this lawsuit.\\nImplementing the 1987 amendment, the Council passed Legislative Act 35-89, effective September 9, 1989, codified as 26 CNCA Section 4, which established nine (9) representative districts within the historic boundaries of the Cherokee Nation. The enactment also established a formula based upon membership population for determining how to divided the fifteen (15) Council seats among the nine (9) districts. Neither the Constitution nor the Act require any particular method of determining membership population.\\nFor the 1991 general elections, the Council was apportioned among the then-new districts as follows:\\nDistricts 6, 7, 8, and 9\\u2014one Councilor, each;\\nDistricts 2, 3, 4, and 5\\u2014two Councilors, each;\\nDistrict 1\\u2014three Councilors.\\nThe original apportionment was based upon the United States' government's 1990 census. It is undisputed, by either party to this lawsuit, that changes have occurred in the membership population of the Cherokee nation's districts since the time of the federal census, some districts have gained population, while others have lost population, in relation to each other.\\nLay has offered population figures, based upon 1994 tribal registration, compiled by the Cherokee nation Office of Research and Analysis. The Defendant does not dispute the validity of these figures, but does criticize their current usefulness, given their age, for purposes of current reapportionment.\\nDefendant argues that the figures offered by Lay \\\"are now four (4) years old. The numbers could have shifted once again back to the current apportionment or could have changed so that Plaintiff Lay's district may not be entitled to more that one (1) council representative, instead of two (2) council seats for which he is currently striving.\\\"\\nIt should be noted that the Defendant offers only speculation on the membership population; the Defendant has not offered any evidence whatsoever regarding more-current membership population figures of any sort, or from any source. While the 1994 figures offered by Lay may be older than one might like, they are clearly more current than 1990 figures.\\nIn 1997, the Council passed Legislative Act No. 7-97 [effective May 12, 1997] which superseded the entire then-existing Cherokee election code, which, consequently and necessarily, changed 26 CNCA Section 4. However, the formula for apportionment of seats on the Council between the council districts remained the same as it had been with the 1989 Act [Legislative Act 35-89] under which the original apportionment was conducted.\\nNotwithstanding the undisputed membership population information available to the Council in 1997 that shows the current apportionment of Council seats to be in violation of the \\\"reasonably equal\\\" requirement of the amendment, the Council did not reapportion the seats between the districts. Indeed, not only did the Council not act to reapportion the districts with the 1997 legislation for the 1999 general election, the Council instead chose to freeze any changes in the apportionment, as established in 1990, until the year 2002.\\nHad the Council ordered reapportionment using the figures of the Cherokee Nation Office of Research and Analysis, Districts 1 and 4 would have lost one (1) seat on the Council, and Districts 6 and 8 would have each gained (1) seat on the Council.\\nCHEROKEE LAW\\nThe second paragraph of Article V, Section 3, of the Cherokee Constitution, states:\\nThe Council shall establish representative districts which shall be within the historic boundaries of the Cherokee Nation of Oklahoma. These districts shall be apportioned to afford a reasonably equal division of tribal membership among the districts.\\nThe Cherokee Constitution, while requiring a fifteen (15) member Council, does not specify how many districts shall be established (obviously more than one is required), nor does it establish, or give guidance regarding, the boundaries of the districts. By the plain meaning of the words used in the Constitution, both of those tasks are left to the Council, and the Council has fulfilled its constitutional obligation.\\nThe issues raised by the parties in this lawsuit arise from the second sentence of Article V, Section 3, and the enactment of the Council in response to that section of the Constitution. These questions may be generally stated as follows.\\n1. What is required to be done, when and how often, regarding apportionment, with the following constitutional language? These districts shall be apportioned to afford a reasonably equal division of tribal membership among the districts.\\n2. Is 26 CNCA Section 4(C), (D), per se, in conformity with Article V, Section 3, mandate?\\n3. With the figures for the 1994 tribal registration compiled by the Cherokee Nation Office of Research and Analysis, is 26 CNCA Section 4(C)(D) as to be applied for the 1999 general election in conformity with the Article V, Section 3, mandate?\\nANALYSIS\\nIt should first be noted that the Court pays great deference to the enactments of the Council and the constitutional responsibilities of the Council. For reasons to be explained later, to decide these issues in this lawsuit it is unnecessary for the Court to answer the first question posed, and the Court shall, therefore no do so. With the answer to the third question, answered later herein, as to the 1999 general election, the second question becomes moot.\\nThere is no question that the Constitution grants important powers to the Council. However, that provision of the Cherokee Constitution which says the Council shall \\\"establish\\\" \\\"necessary and proper laws for the good of the nation\\\" contains a limiting provision. The first sentence of Article V, Section 7 reads:\\nThe Council shall have the power to establish laws which it deems necessary and proper for the good of the Nation, which shall not be contrary to the provisions of this Constitution [emphasis added].\\nIn other words, Article V, Section 7 grants the Council wide powers to make the laws of the Cherokee Nation, but the Council may not violate the Constitution in so doing.\\nThe Defendant has urged that if the Court finds that there is a problem with 26 CNCA Section 4(C), (D) in relation to Article V, Section 3, of the Constitution, that we also find that it is a matter for the Council to resolve. If, however, the Court were to adopt Defendant's reasoning, the Court would be violating Articles IV, VII, and XIII of the Cherokee Constitution.\\nThis Court, akrne, has the responsibility, under Article VII of the Cherokee Constitution, to hear and resolve any disagreements arising under any provisions of . . [the] Constitution or any enactment of the Council, Article VII also provides that: The decision of the Judicial Appeals Tribunal shall be final insofar as the judicial process of the Cherokee nation is concerned.\\nThe Court does not need to ascertain whether a delay of twelve (12) years between apportionment of Council districts is per se constitutional or unconstitutional. When there are two possible interpretations of an enactment by the Council, one which would render it unconstitutional, this Court, if at all possible, will adopt the alternative construction which will uphold the enactment. A hypothetical argument might be made finding that there is a compelling need for reapportionment only being conducted every twelve (12) years is constitutional. This Court does not deal with hypothetical questions, except when used as examples to explain a \\\"real\\\" question.\\nThe questions for the Court are:\\n1. Would a delay in reapportionment until the year 2002 be reasonable, or unreasonable, in light of the fact that the 1994 numbers showed a need for reapportionment in 1997? And an answer to this question turns on the answer to the question.\\n2. Did the Council have a constitutionally reason to override and/or disregard the clear and convincing evidence of the need for reapportionment when they enacted Legislative Act 7-97, Section 4(C), (D)?\\nA good part of the answers to these questions is found in the following, excellent statement of Cherokee law taken from the Defendant's brief. Dejenduid agrees that if the Cherokee government is to be truly representative of the people, apportionment should be conducted whenever the population figures bear out the need to do so.\\nIn 1997 the Council of the Cherokee nation had before it clear, convincing and undisputed evidence that reapportionment should be conducted prior to the 1999 general election. The population figures bore out the need, to do so. There has not been presented ANY compelling argument as to why reappoHionment should not have been provided for in the 1997 enactment.\\nThe argument against conducting reapportionment, now, is, basically, it is too late to do it for the 1999 general elections. The Defendant speculates as to horrible results that would result if the Court should rule for the Plaintiff and order reapportionment for the 1999 elections, such as, To make a, change in the districts in [sic] this late date could, cause enormous confusion ., and, There is no time for the Election Commission to make proposals for federal funding to assist in hiring more personnel or acquiring more equipment . Defendant's fears lack merit and are not convincing.\\nIT IS FOUND, ADJUDGED AND DECREED that Legislative Act 7-97, Section 4(C), (D) [codified as 26 CNCA Section 4(C), (D) ] AS APPLIED TO THE 1999 GENERAL ELECTION, violates Article V, Section 3, of the Cherokee Constitution.\\nWe agree with and adopt the sound reasoning of the United States Supreme Court when we find that, Article V, Section 3, of our Cherokee Constitution calls for One Cherokee, One Vote.\\nA postponement of the reapportionment of the Districts until 2002 violates the present right of every Cherokee voter to equal representation in Council of the Cherokee Nation as guaranteed under the Cherokee Constitution.\\nIT IS ORDERED that for the 1999 general election, the number of Councilors to be elected from and for each of the nine (9) districts of the Cherokee nation are as follows:\\nNUMBER OF DISTRICT COUNCILORS\\n1. Cherokee (Cherokee County) 2\\n2. Trail of Tears (Adair County) 2\\n3. Sequoyah (Sequoyah County) 2\\n4. Three Rivers (McIntosh, Muskogee and Wagoner Counties) 1\\n5. Delaware (Delaware and Ottawa Counties) 2\\n6. Mayes (Mayes County) 2\\n7. Will Rogers (Rogers County) 1\\n8. Oolagah (Tulsa and Washington Counties) 2\\n9. Craig (Craig and Nowata Counties) 1\\nTotal 16\\nIT IS FURTHER ORDERED that the Election Commission of the Cherokee nation, created by Legislative Act 7-97, Section One, et seq. [codified as 26 CNCA Section One, et seq.] is to conduct the 1999 general elections for Council of the Cherokee nation in accordance, and in full compliance, with this ORDER of the Court.\\nWith today's ruling, the District lines do not change, only the number of Councilors to be chosen for districts 1, 4, 6, and 8 changes.\\nThe Court takes judicial notice that the filing period for candidates for Council does not open until February 1, 1999. Obviously, ballots have not been prepared. Moreover, it is presently 1998, not 1898, and the Cherokee Nation already has at (11) its command and disposal considerable computer power and highly talented, motivated employees. The Election Commission is, or should be, \\\"up and running.\\\" There should be no, or very little need for additional funding or personnel.\\nLastly, it should be noted that the Court is not striking down 26 CNCA Section 4(D) in its entirety, only its application to the 1999 general election. Therefore, after the 1999 election, under the Code as the Council presently has it written, another apportionment shall be conducted prior to June 30, 2002. By necessity 26 CNCA Section 4(C) is struck down as unconstitutional as applied to the 1999 general elections and it will be made moot for the 2003 general elections by virtue of the reapportionment that is to be conducted in 2002.\\nRALPH F. KEEN, JUSTICE, Assigned Pursuant to 20 CNCA App. Rule 3a (12)\\n. The language of the Stipulation is as follows: The parlies hereby stipulate and agree that all previously named defendants will be and are hereby dismissed from this action upon the substitution of the Cherokee Nation as party defendant. It is further agreed that the Cherokee Nation will not attempt to raise its sovereign immunity in those proceedings. The parties further acknowledge that should plaintiff prevail herein that it may or may not be necessary for this court to enter certain orders directing any or all of them to carry out the judgment herein. Signed by: Jim Wilcox-en, Attorney for Plaintiff; Donald Hopkins, Attorney for Defendant, Margaret Riney; and. Linda Donelson, Attorney for all remaining Defendants. Approved by Justice Ralph F. Keen, Judicial Appeals Tribunal. Filed November 24, 1998.\\n. The Cherokee Code formula for apportionment of Council seats between nine (9) districts is as follows: Said apportionment shall be attained by first dividing the combined total population of all members of the Cherokee Nation residing within the historical boundaries of the Cherokee Nation by fifteen (IS). This figure must then be divided into the total population of all members of the Cherokee Nation residing within each district. The re- suiting percentage shall determine the number of representatives per district. All percentage points. 5 higher shall be rounded upward to the nearest whole number and all percentage points less than .5 shall be rounded downward to the nearest whole number.\\n.Section One of said Act.\\n. See prior footnote for the language of the Cherokee Code apportionment formula.\\n. Indeed, prior to that time Section 4 had been amended by Legislative Act 7-93, eff. November 6, 1993; and Legislative Act 2-94, eff. July 11, 1994, but in spite of each amendment, the apportionment formula always remained the same.\\n. The first: sentence of 26 CNCA Section 4(D) [LA 7-97] reads: Apportionment of representation having been first conducted in 1990, shall be conducted every twelve years thereafter, and shall be included no later than June 30 of the year preceding a regular election year.\\n. See 26 CNCA Section 4(A)(B) [LA 7-97],\\n. 26 CNCA Section 4(C) [LA 7-97] Number of Representatives for Each District. Pursuant to apportionment conducted in 1990, eligible voters from Districts 6, 7, 8 and 9 shall elect one representative each to the Council. Eligible voters from Districts 2, 3, 4 and 5 shall elect two representatives each to the Council by casting votes for up to two candidates, provided that if only one vote is case, that vote will still be counted. District 1 shall elect three representatives to the Council by casting votes for up to three candidates, provided that if less than three votes are cast, the votes will still be counted.\\n.26 CNCA Section 4(D) [LA 7-97] Apportionment. Apportionment of representatives having been first conducted in 1990, shall be conducted every twelve years thereafter, and shall be conducted no later than June 30 of the year preceding a regular election year. Apportionment shall be conducted by the Election Commission and approved by the Council by amendment of this section. Said apportionment shall be attained by first dividing the combined total population of all members of the Cherokee Nation residing within the historical boundaries of the Cherokee Nation by fifteen (15). This figure must then be divided into the total population of all members of the Cherokee nation residing within each district. The resulting percentage shall determine the number of representatives per district. All percentage points .5 or higher shall be rounded upward to the nearest whole number and all percentage points less than .5 shall be rounded downward to the nearest whole number.\\n. Phillips v. Eagle, JAT 98-09; City of Norman v. Liddell, 596 P.2d 879 (Okl.1979).\\n. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481.\"}"

tribal/7343339.json

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+"{\"id\": \"7343339\", \"name\": \"In re The STATUS AND IMPLEMENTATION OF the 1999 CONSTITUTION OF the CHEROKEE NATION, Dennis Jay Hannah and Ralph F. Keen, Jr., in Their capacities as officers of the 1999 Cherokee Nation Constitution Convention And as citizens of the Cherokee Nation, Petitioners, Notice to: Chadwick Smith, Principal Chief of the Cherokee Nation; and The Council of the Cherokee Nation; and Jeanette Hanna, Regional Director of the Bureau of Indian Affairs\", \"name_abbreviation\": \"In re the Status & Implementation of the 1999 Constitution\", \"decision_date\": \"2006-06-07\", \"docket_number\": \"JAT 05-04\", \"first_page\": 63, \"last_page\": 71, \"citations\": \"6 Am. Tribal Law 63\", \"volume\": \"6\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Cherokee Nation Supreme Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T17:52:38.572494+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: DARELL R. MATLOCK, JR., Chief Justice, DARRELL DOWTY, Justice, STACY L. LEEDS, Justice.\", \"parties\": \"In re The STATUS AND IMPLEMENTATION OF the 1999 CONSTITUTION OF the CHEROKEE NATION, Dennis Jay Hannah and Ralph F. Keen, Jr., in Their capacities as officers of the 1999 Cherokee Nation Constitution Convention And as citizens of the Cherokee Nation, Petitioners, Notice to: Chadwick Smith, Principal Chief of the Cherokee Nation; and The Council of the Cherokee Nation; and Jeanette Hanna, Regional Director of the Bureau of Indian Affairs.\", \"head_matter\": \"In re The STATUS AND IMPLEMENTATION OF the 1999 CONSTITUTION OF the CHEROKEE NATION, Dennis Jay Hannah and Ralph F. Keen, Jr., in Their capacities as officers of the 1999 Cherokee Nation Constitution Convention And as citizens of the Cherokee Nation, Petitioners, Notice to: Chadwick Smith, Principal Chief of the Cherokee Nation; and The Council of the Cherokee Nation; and Jeanette Hanna, Regional Director of the Bureau of Indian Affairs.\\nJAT 05-04.\\nCherokee Nation Supreme Court.\\nJune 7, 2006.\\nRalph I1'. Keen, Jr., lor Petitioners Dennis Jay Hannah and Ralph F. Keen, Jr.\\nA. Diane Hammons, for Respondent Chadwiek Smith, Principal Chief.\\nTodd Hembree, for Respondent Council of the Cherokee Nation.\\nNo appearance, for Respondent Jeanette Hanna, Regional Director of the Bureau of Indian Affairs.\\nBefore: DARELL R. MATLOCK, JR., Chief Justice, DARRELL DOWTY, Justice, STACY L. LEEDS, Justice.\", \"word_count\": \"3879\", \"char_count\": \"24060\", \"text\": \"OPINION OF THE COURT RECORD OF PROCEEDINGS\\nDARELL R. MATLOCK, JR., Chief Justice.\\n1. The Petitioners, Dennis Jay Hannah and Ralph F. Keen, Jr., on March 7, 2005 filed their petition for Declaratory Judgment by the Court, for determination of the legal status of the amendment to the Cherokee Nation Constitution of 1975, Article XV, Section Ten (10), and, whether the Cherokee Nation Constitution of 1999 is now the organic document of the Cherokee Nation Government, and, to establish a timetable for the implementation of the provisions of the Cherokee Nation Constitution of 1999.\\n2. Notice was given to the Respondents on March 8, 2005.\\n3. David Cornsilk filed a motion to intervene and motion to dismiss the petition on March 14, 2005, and, subsequently on November 10, 2005 withdrew his motion to intervene and motion to dismiss the petition.\\n4. The Respondent, Principal Chief Chadwick Smith, on March 23, 2005 filed a motion to stay the proceedings for 45 days which was granted by the Court on March 29, 2005.\\n5. The Respondent, Council of the Cherokee Nation filed their response on March 24, 2005.\\n6. The Respondent, Chadwick Smith, Principal Chief, filed a second motion to stay the proceedings on August 15, 2005 which was subsequently denied by the Court on September 7, 2005.\\n7. Respondent, Jeanette Hanna, Regional Director of the Bureau of Indian Affairs has failed to respond to the petition filed herein.\\n8. The Petitioners filed their motion for summary judgment on March 6, 2006 and served the motion on Respondents Chadwick Smith, Principal Chief, by General Counsel Diane Hammons, and, Respondent, Cherokee Nation Council, by their attorney Todd Hembree on April 7, 2006.\\n9. That neither the Principal Chief, Chadwick Smith or the Council of the Cherokee Nation has responded to the Petitioners' motion for summary judgment.\\nFINDINGS\\nThe Court has jurisdiction to determine the issues presented herein pursuant to Article VIII of the Cherokee Nation Constitution of 1999, and, the Petitioners' motion for summary judgment is considered under Rule 44 of the Rules and Procedures of the Judicial Appeals Tribunal (Supreme Court).\\nProper notice of these proceedings has been given to the Principal Chief, Chadwick Smith, the Council of the Cherokee Nation and the United States of America by its Representative, Jeanette Hanna, Regional Director of the Bureau of Indian Affairs.\\nThe Court finds there are no disputes of material facts and the material facts are determined as follows:\\n1. Article XV, Section Ten (10) of the Cherokee Nation Constitution of 1975 was a self imposed requirement that set forth:\\n\\\"no amendment or new constitution shall become effective without the approval of the President of the United States or his authorized representative\\\"\\n2. The people of the Cherokee Nation by their inherent sovereign power had the right to remove the self-imposed requirement of Article XV, Section Ten (10) of the Cherokee Nation Constitution of 1975.\\n3. The United States Government by and through its agent, the Assistant Secretary of Indian Affairs, Neal A. McCaleb, on April 23, 2002 via a letter addressed to the Principal Chief Chad Smith did state in part:\\n\\\"We have no objection to the referendum as proposed and I am prepared to approve the amendment deleting the requirement for Federal approval of future amendments.\\\"\\n4. Neal A. McCaleb executed an affidavit on April 4, 2006 which sets forth in part:\\n\\\"In my capacity as Assistant Secretary, and on behalf of the Department of Interior, Bureau of Indian Affairs, it was my purposeful intentions that my correspondence of April 23, 2002, serve as full and final approval of the question, both as to form and Bureau policy and the same was approved under the requirements of Article XV Section 10 of the 1975 Cherokee Constitution for presentment to the Cherokee voters for their final approval or rejection at referendum election.\\\"\\n5. The proposed removal of Article XV, Section Ten (10) of the 1975 Constitution of the Cherokee Nation was properly submitted to the Cherokee people on May 24, 2003, and, was approved by the Cherokee people by a vote of 7,107 in favor and 4,223 against.\\n6. The elections; of May 24, 2003 and of July 26, 2003 were had under the law of the Cherokee Nation Constitution of 1975.\\n7. The proposed 1999 Constitution of the Cherokee Nation was properly put to the Cherokee people on July 26, 2003 and the Cherokee people adopted the 1999 Constitution as the new Constitution of the Cherokee Nation by a vote of 3,622 in favor and 3,059 against.\\n8. The results of both the May 24, 2003 and the July 26, 2003 elections have been properly certified by the Cherokee Nation Election Commission on June 11, 2003 and August 7, 2003 respectively.\\n9. The Cherokee Nation Constitution of 1999 became the organic law of the Cherokee Nation on July 26, 2003 pursuant to Article XVIII of the Cherokee Nation Constitution of 1999.\\n10. The provisions of the 1999 Cherokee Nation Constitution overrule, supersede and repeal the provisions of the Cherokee Nation Constitution enacted the 6th day of September, 1839 and the provisions of the Constitution of the Cherokee Nation of 1975 enacted the 26th day of June, 1976. Article XVI of' the 1999 Constitution of the Cherokee Nation.\\n11. All actions taken by the three (3) separate branches of the government; Legislative, Executive and Judicial on and after July 26, 2003 have been done under and should be in compliance with the constitutional authority granted to each of them under the Cherokee Nation Constitution of 1999.\\n12.The present state of the Judiciary in order to conform to the Cherokee Nation Constitution of 1999 is as follows:\\n(a) Seat Two (2) of the Supreme Court of the Cherokee Nation is held by Chief Justice, Darell R. Matlock, Jr., and his appointment in October of 2003 was to complete the term of office for Seat Two (2) which ends on December 31,2012.\\n(b) Seat Three (3) of the Supreme Court of the Cherokee Nation is held by Justice Darrell Dowty and his appointment in February of 2005 was to complete the term of office for Seat Three (3) which ends on December 31, 2014.\\n(c) In order to better implement the mandates of the Cherokee Nation Constitution of 1999, Justice Stacy L. Leeds, whose term under the 1975 Constitution of the Cherokee Nation and 20 CNCA 1985 \\u00a7 33 would have expired on December 31, 2006, which is consistent with Seat Number Four (4) under the new Constitution, shall continue on the Supreme Court as Seat Four (4) under Article VIII, Section Two (2) of the 1999 Constitution.\\n(d) Seats One (1) and Five (5) shall be filled immediately as per. Article VIII of the Cherokee Nation Constitution of 1999.\\n(e) The Judges of the District Court shall continue to serve under the 1999 Constitution of the Cherokee Nation Article Three (3) until the Cherokee Nation Council passes legislation defining their respective terms and the procedure set forth in Article VIII, Section Three (3) of the Cherokee Nation Constitution of 1999 is completed.\\n(f> The Court Rules adopted by the Supreme Court under No. JAT-06-01 shall remain in full force and effect until further order of the Court.\\n(g) The Court Administrator, Lisa Fields, shall remain the Court Administrator pursuant to Article VIII Section Four (4) of the Cherokee Nation Constitution of 1999 until further order of the Court.\\n13. The present Cherokee Nation Council members were elected to office under the authority of the 1975 Cherokee Nation Constitution and before the 1999 Constitution was adopted by the people of the Cherokee Nation on July 26, 2003.\\n14. To fulfill the mandates under the Cherokee Nation Constitution of 1999 and in order to achieve a stable continuative governmental transition under the 1999 Constitution of the Cherokee Nation, the Council of the Cherokee Nation shall proceed as follows:\\n(a) The Council shall within 60 days of this decision select two at-large Council members to serve until the next regularly scheduled election pursuant to Article VI, Section Three (3) of the Cherokee Nation Constitution of 1999.\\n(b) The Council shall before the next regularly scheduled election establish a system of staggered terms for all seats on the Council to be organized into elections every two years. Atilde VI, Section Three (3) of the 1999 Cousditution of the Cherokee Nation.\\n(c) The Council shall in a timely manner proceed to put in place all that is mandated in the Cherokee Nation Constitution of 1999.\\n1. The Principal Chief and Deputy Chief were elected under the author ity of the 1975 Constitution of the Cherokee Nation and before the 1999 Constitution of the Cherokee Nation was adopted by the people of the Cherokee Nation on July 26, 2003.\\n2. The Principal Chief of the Cherokee Nation shall in a timely manner put in place all mandates directed to the Executive branch by the Cherokee Nation Constitution of 1999.\\nIT IS THEREFORE ORDERED by the Court that the 1999 Constitution of the Cherokee Nation became effective on July 26, 2008.\\nIT IS FURTHER ORDERED by the Court that all the findings of the Court are the Court's Orders.\"}"

tribal/7343383.json

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+"{\"id\": \"7343383\", \"name\": \"Paul HIGH ELK, Clara High Elk, and Codi American Horse, Defendants/Appellants v. James VEIT and Fred Kost, Plaintiffs/Appellees\", \"name_abbreviation\": \"High Elk v. Veit\", \"decision_date\": \"2006-02-10\", \"docket_number\": \"No. 05-008-A\", \"first_page\": 73, \"last_page\": 80, \"citations\": \"6 Am. Tribal Law 73\", \"volume\": \"6\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Cheyenne River Sioux Tribal Court of Appeals\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T17:52:38.572494+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Chief Justice FRANK POMMERSHE lM and Associate Justices, JAMES CHASING HAWK and ROBERT N. CLINTON.\", \"parties\": \"Paul HIGH ELK, Clara High Elk, and Codi American Horse, Defendants/Appellants v. James VEIT and Fred Kost, Plaintiffs/Appellees.\", \"head_matter\": \"Paul HIGH ELK, Clara High Elk, and Codi American Horse, Defendants/Appellants v. James VEIT and Fred Kost, Plaintiffs/Appellees.\\nNo. 05-008-A.\\nCheyenne River Sioux Tribal Court of Appeals.\\nFeb. 10, 2006.\\nBefore Chief Justice FRANK POMMERSHE lM and Associate Justices, JAMES CHASING HAWK and ROBERT N. CLINTON.\", \"word_count\": \"3754\", \"char_count\": \"22930\", \"text\": \"OPINION\\nPER CURIAM.\\nBackground\\nThis matter involves litigation occasioned by frustration of the expectations of Plaintiffs, Jim Veit and Fred Kost, that their grazing authorization for Tribal Range Unit Number 162, which is assigned to Appellants Paul and Clara High Elk and Codi American Horse (the High Elk Defendants), would be renewed for the 2005 grazing year. Expecting such renewal, the Plaintiffs allegedly prepaid the initial payments for the anticipated rental for the 2005 grazing year so that proper payments could be made to the Bureau of Indian Affairs in a timely fashion. They did so without any written sublease or other pasturing agreement for the range unit in question for the 2005 grazing year based on their personal anticipation of renewal for the 2005 grazing year due to the alleged long standing relationship between the parties. Unfortunately for the Plaintiffs, the High Elk Defendants did not renew their previous authorization with the Plaintiffs for the 2005 grazing year. Instead, they entered into a pasturing authorization agreement with Duane and Sharon Keller (the Kellers), which was approved by the Bureau of Indian Affairs, and which resulted in the Kellers placing cattle on Range Unit Number 162 commencing some time in May, 2005.\\nThis litigation and its tortuous procedural history basically involves the Plaintiffs' efforts to recoup the sums they voluntarily paid for grazing rights in 2005 based on their own expectation of renewal, but without the benefit of any written, signed pasturing authorization, The present appeal purports to be an interlocutory appeal, although for reasons stated below actually involves an appeal of a final collateral order entered at a time when the original Defendants, Paul and Clara High Elk and Codi American Horse, were no longer parties to any proceeding, that purported to attach or garnish rent payments due to the High Elk Defendants from The Kellers and directed such payments to be held in escrow, pending the outcome of the litigation. Both the High Elk Defendants and the Plaintiffs were represented by counsel in this appeal. This Court received briefs from these parties and heard oral argument on January I. 2006. By separate Order of this Court dated January 5, 2006, this Court vacated the earlier attachment/escrow order and directed the accumulated escrow be paid to the Plaintiff, indicating that an Opinion explaining its action would be forthcoming. This Opinion explains and supports that Order.\\nA. Factual Background\\nFor several years Plaintiffs, Jim Veit and Fred Kost, had subleased pasture from Defendants Paul and Clara High Elk and Codi American Horse, who were assigned Range Unit Number 162. The Court is advised that Range Unit Number 62 is composed of land held in trust by several owners, including Plaintiffs Paul and Clara High Elk, and the Cheyenne River Sioux Tribe (Tribe). Despite the fact that some disagreements allegedly occurred over the years, by even the Defendants' account of the facts, \\\"all parties anticipated that Plaintiffs would again lease pasture for the 2004-2005 grazing year.\\\" Dr. In Support of Appellant, p. 1. Anticipating renewal of their pasturing authorization but before securing any written agreement with the High Elk Defendants, Plaintiffs allegedly prepaid portions of the 2005 grazing authorization fees. The High Elk Defendants later entered into a pasturing permit with Duane and Sharon Keller, for the 2005 grazing year, leading to the placement of cattle by Kellers on the Unit in May of 2005. Once they recognized that their grazing authorization would not be renewed for the 2005 grazing year, the Plaintiffs sought some method of recouping their advance grazing permit payments. Thereafter, the tortuous procedural history leading to this appeal ensued.\\nB. Procedural Background\\n'In order to recover their advance permit fees, Plaintiffs/Appellees filed a related action, R-076-05, against both Defendants Paul and Clara High Elk and Codi American Horse, and Duane and Sharon Keller seeking to prevent the removal of the Keller cattle from Range Unit Number 162 on the Cheyenne River Sioux Reservation, apparently deeming the Keller cattle some sort of security for repayment of their advance rental payments. After a series of ex parte Temporary Restraining Orders and hearing's were held, the matter was set for Hearing on July 28, 2005 and then rescheduled for further Hearing on August 23, 2005. At the August 23, 2005 hearing, the Kellers appeared only through counsel and The Tribal Court dismissed Paul and Clara High Elk and Codi American Horse as parties to the then pending case\\u2014No. R.076-05. Counsel for Defendants Paul and Clara High Elk and (Jodi American Horse requested to be advised of further proceedings in the matter so they could attend as an interested observer. Despite the fact that the High Elk Defendants had already been dismissed from the action, the Tribal Court ordered Defendants/Garnishees Duane and Sharon Keller to pay any pasture rent otherwise due to Paul and Clara High Elk and Codi American Horse into an escrow account instead of paying such sums directly to the High Elk Defendants. No such relief had been requested in the initial Complaint filed in the case and Paul and Clara High Elk and Codi American Horse were never served with any pleading, motion, or other notice providing advance notiee of such a request. At the time the attachment/garnishment order was entered Paul and Clara High Elk and Codi American Horse had been dismissed from and were no longer parties to the case. This appeal contests the validity of this attachment order and its reaf-firmance on September 15, 2005.\\nOn September 15, 2005, another hearing was held in this matter. At that time, and for the first time, the attorney for Appellants Paul and Clara High Elk and Codi American Horse were handed a new Complaint requesting some type of attachment or garnishment. At this hearing, the trial court orally dismissed the Kellers from action (leaving, of course, no remaining party defendants who had actually been served) but named them as Garnishees and reiterated its earlier order for them to make payments otherwise due to the High Elk parties into a trust escrow account pending the outcome of the new action. The Kellers apparently thereafter made some payments that should have been paid to the High Elks into the trust escrow account. The High Elks later filed an Answer and Counterclaim to the new action and simultaneously filed a Notice of Appeal from the attachment/garnishment order, styling it as an interlocutory appeal. This appeal ensued.\\nDiscussion\\nA. Jurisdiction\\nWhile not raised by any of the parries, the jurisdiction of this Court over this appeal poses some difficulties. Under Rule 84(b) of the Cheyenne River Sioux Tribe Rules of Civil Procedure, appeal is limited to \\\"any final order, commitment, or judgment of the trial court.\\\" The Appellants have styled this appeal as an interlocutory appeal and, were it such, this Court would have no jurisdiction over the appeal since interlocutory appeals generally do not constitute appeals from final orders which is required by Rule 84(b) as a prerequisite for the this Court to exercise jurisdiction. In First Financial Bank USA v. Garrett, No. 02-003-A, 4 Am. Tribal Law 84 (Chy.Riv.Sx.Ct.App.2003), however, this Court adopted the so-called collateral order rule as part of its definition of final orders. In that case, in reference to a sale order as part of a foreclosure proceeding, this Court said:\\nThe federal courts, which also have a final judgment rule embodied in 28 U.S.C. \\u00a7 1291, nevertheless treat as final any collateral order that would otherwise be nonappealable if immediate appeal were not permitted. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The federal courts therefore hold that any collateral order is final within the meaning of section 1291 and therefore immediately appealable. Generally, in order to fall within the federal collateral order rule permitting immediate appeal, a collateral order \\\"must conclusively determine the disputed question/ 'resolve an important question completely separate from the merits of the action,' and be effectively unreviewable on appeal from a final judgment.\\\" Richardson-Merrell, Inc. v. Roller, 472 U.S. 424, 431, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985), quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) see also, Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989). While not directly applicable in the courts of the Cheyenne River Sioux Tribe, this Court holds that the federal notion of finality reflected in the collateral order rule effectively serves the interests of justice reflected in Rule 84(b) of the Cheyenne River Sioux Rules of Civil Procedure which are designed to afford \\\"[a]ny party who is aggrieved\\\" a right of appeal from a final order. The problem, of course, with collateral orders is that unless such orders are treated as final, they can otherwise never be appealed after the last order entered in a case.\\nIn this matter, this Court holds that an order of sale in a foreclosure action, such as the pending matter, constitutes an appealable collateral order, although we dismiss on other grounds. The older for sale of the secured collateral conclusively determines the right of the owner to continue possession of the , secured property and therefore satisfies the first test of a collateral order. An order for the sale of secured collateral is also collateral and separable from the ultimate effort to collect the judgment, although it may implicate the ultimate outcome of that effort. Thus, it satisfies the second test for a collateral order. Finally, since the sale of the collateral cannot be simply undone through a successful appeal, the order is \\\"effectively unreviewable on appeal from a final judgment.\\\" This Court therefore holds that any order for sale of secured collateral for a loan constitutes an appealable final order of the Tribal Court within the meaning of the collateral order rule which it today embraces as a reasonable interpretation of Rule 84(b).\\nFor many of the same reasons, this Court finds that this ancillary attachment/garnishment order, never requested in the initial: Complaint, constitutes a collateral final order and therefore constitutes an appealable final order. To rule otherwise would render the attachment/escrow order entered in this case effectively unreviewable since it lasts only as long until entry of final judgment in the case.\\nB. Due Process\\nAppellants raise a series of objections to the attachment/garnishment order including lack of effective notice, lack of any bond or other security, lack of hearing as to hardship, and deprivation of due process of law in violation of the federal Indian Civil Rights Act of 1968, 25 U.S.C \\u00a7 1302(8). While some are phrased as procedural irregularities, most of these claims (other than the lack of property bond or other security) implicate the due process requirements of notice and hearing, In Cheyenne River Sioux Tribe Housing Authority v. Howard, No. 04-008A (Ch. Riv. Sioux Ct.App,, Sept. 23, 2005) this Court recently reaffirmed the traditional Lakota values embodied in the term due process of law. Just as Lakota tradition requires the respectful listening to the position of all interested persons on any important issue, the legal requirement of due process of law .requires that all persons interested in a matter receive adequate written notice of any proceeding that would implicate their personal interests, including their property or, as here, rent payments contractually owed to them, that they be made parties to any ease or judgment that would affect those interests, and that they have a full and fair opportunity to participate as a party in any hearing on such issues. These requirements are further supplemented by the indispensable party provisions of Rule 19 of the Cheyenne River Sioux Tribal Rules of Civil Procedure. In the Howard case, this Court recently summarized the requirements of due process in a civil context as follows:\\nThis Court has long recognized that basic Lakota concepts of fairness and respect as well as the federal Indian Civil Rights Act, 25 C.K.C \\u00a7 1302(8), clearly guarantees all parties who appear before the courts of the Cheyenne River Sioux Tribe due process of law. E.g. Dupree v. Cheyenne River Housing Authority, 16 Ind. L. Rep. 6106 (Chy. R. Sx.Ct.App.1988). Basic to any concept of due process of law in a civil proceeding, such as this eviction case, is receipt of timely notice and the opportunity to be heard and present evidence at a hearing in support of one's case. Mullane v. Central Hanover Bank, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The basic requirements of notice and hearing, which lie at the core of civil due process of law, do not constitute mere formal requirements or hoops that must be surmounted before judgment. Rather, due process involves functional procedural prerequisites designed to assure that every party has a realistic opportunity to be heard in any case affecting their legal rights. Here, Mr. Howard was lighting to remain in the only home he lawfully occupied, a precious and important right, indeed, particularly for a person in Mr. Howard's fragile medical condition, even if he did own the home in question.\\nEvery court of the Cheyenne River Sioux Tribe is bound both by customary Lakota concepts of respect and by the requirements of due process of law protected by the federal Indian Civil Rights Act, 25 U.S.C. \\u00a7 1302(8), to assure that the parties before them are all afforded due process of law.... Where the trial court finds any of these elements lacking or, as here, fails by its own omission to establish their presence, it proceeds at its peril since the judgment it enters may turn out to be defective, as here, for want of basic procedural fairness that denies due process of law. Furthermore, where an appeal is brought to this Court demonstrates the denial of the fundamental procedural elements of fairness, it is the duty of this Court to reverse the judgment or order before for want of due process of law, irrespective of whether that argument was di reetly raised by the party. Such serious procedural errors constitute plain error that much be noted by and acted upon by the Court.\\nUnfortunately, precisely the same language could be applied to the procedure in this case that led to the garnishment/attachment order at issue here. First, until receipt of the Complaint in the new action, first served on counsel at the September 15, 2005 hearing, Paul and Clara High Elk and Codi American Horse had never received any written notice of any demand for attachment or garnishment of rent payments unquestionably due to them from the Kellers pursuant to their pasturing agreement Clearly, receipt of such written notice after the August 23., 2005 bearing had already ordered garnishment and on the same day and at the staid of the September 15, 2005 hearing where the attaehment/garnishment order was reiterated does not constitute adequate or effective notice permitting a party to appear and defend. Indeed, when counsel appeared at the September 15, 2005 hearing Paul and Clara High Elk and Codi American Horse were not parties to any pending action and were not thereafter served with summons and complaint in any effective manner that would provide adequate notice for attachment of their property on the same day. Second, counsel for the High Elks appeared at the September 15, 2005 as an interested observer, not representing any remaining party to the proceeding. No reasonable attorney would think counsel in such a situation would be adequately prepared for and might reasonably expect to defend his clients' interests in action to attach rent payments due his clients. Third, the hearing took place the same day counsel for the High Elk Defendants first received notice of the demand. Clearly, in the absence of some life or death emergency, not obvious on the face of this record, such short notice does not constitute adequate notice to comply with due process of law under the principles set forth above. Fourth, at the time the second garnishment/attachment order was issued the High Elk Defendants had not even been served with a summons and Complaint in this new action and it is, at best dubious, that the action was effectively pending on September 15, 2005 both for lack of effective service of process and for lack of filing of the Complaint with the trial court, which under the applicable rules commences the action. Thus, precisely why the trial court thought it had before it any pending action involving the High Elk Defendants remains a mystery to this Court based on the record before it.\\nThe only major response to these problems offered by Appellees, James Veit and Fred Kost, is that the High Elks through their attorney, Curtis L. Carrroll, waived all due process and other objections since he allegedly agreed to the attachment/garnishment order at the September 15, 2005 hearing. Curtis L. Carroll, attorney for the High Elk Defendant, flatly denies making any such agreement. No transcripts were made of the proceedings although a tape recording of the hearing exists, as it does for most proceedings in the trial court. When asked during argument if she had reviewed the tape recording before making the representations to this Court on this critical fact, the attorney for the Appellees, Cheryl F. Laurenz-Bo-gue, admitted that she had not. Instead she claims she relied on her notes on the issue. Unlike the attorney for the Appel-lees, this Court has reviewed the tape recording of the hearing, which was also available to counsel upon request from the Clerk's office. This Court can find omit no such agreement to the garnishment/attachment order by the attorney for the Hish Elk Defendants Curtis L. Carroll. While the Kellers' attorney clearly agreed to the payment, their rights were adequately secured. It was the High Elk Defendants who were deprived of grazing rental fees due to them and whose rights were adversely affected by the attachment/garnishment order at issue here. Agreement from the Kellers' attorney certainly is not the same and does not have the same effect as agreement from the attorney for the High Elk Defendants, the parties to whom the rental payments were due. In short, whether out of confusion in her notes or otherwise, Ms. Laurenz-Bogue has simply misrepresented the facts of the hearing to this Court. Obviously, on the actual record of this case, her waiver argument cannot be sustained.\\nThis Court specifically reminds Ms. Lau-renz-Bogue and advises all other counsel that misrepresentations of factual events or the record to the Court, particularly where deliberate, reckless, or negligent constitutes unprofessional conduct, which can lead to appropriate disciplinary action. Ms. Laurenz-Bogue is specifically advised and all counsel are cautioned that before making representations to this Court in any brief or oral argument about events at any hearing conducted on the record in the trial court, they should carefully review and listen to the tapes of the appropriate hearing. Failure to do so will be considered evidence of recklessness should any misrepresentation occur.\\nFor the reasons stated in this Opinion entry of the attachment/garnishment order at issue here constituted a departure from Lakota traditions of respect and honor, was contrary to law, and violated the guarantees of due process of law found in the federal Indian Civil Rights Act of 1968. 25 U.S.C. \\u00a7 1302(8). For these reasons the order must be and has already been vacated by this Court's Order of January 5, 2006.\\nHo hecetu yelo.\\nIt is so ordered.\\n. By vacating the collateral attachment/garnishment order, this Court does not mean to suggest that either the Tribal Court or this Court properly has jurisdiction over the underlying case. The basic problem is that to the extent that the Tribe holds any benelicial title to any of the lands in Range Unit Number 162 and it has not and cannot be made a party, there may be a failure to join an indispensable party to this action if any portion of the relief requested by the Plaintiffs affects the rights of possession in lands to which the Tribe has a present interest. Clement v. Le Compte, No. 93-009-A (Chy.Rv.Sx. Tr. Ct. App.1994). Since neither the full extent of Tribe's rights in Range Unit Number 162 nor the full extent of the relief sought by the Plaintiffs are clear on the present record, this Court offers no view on the jurisdiction of the Tribal Court over the underlying litigation but strongly urges the Tribal Court to carefully review those issues in the first instance before taking in further steps in this litigation.\\n. For unexplained reasons, the Complaint was never filed until November 19, 2005, long after the orders at issue here were entered.\\n. While this Court does not base its decision on and does not need to fully address the bond or security issue, the Court notes that this situation can be distinguished from the usual injunctive court order in which security or a bond is required in that the escrow account itself constitutes security for each side should it prevail in the final decision of the trial court. Thus, unlike the issuance ol an injunctive that may cause harm to the party enjoined which is not covered by anv security other than a court ordered bond, the escrow account here covers the direct, although perhaps not any consequential, loses each party may sustain. Thus, without finally deciding the matter, the bond and security objections raised by the Appellant may not be well founded.\\n. This Court also notes that the funding for and staff of the Office of Court Clerk is now totally inadequate to prepare written transcripts from the tapes of trial court hearings. For that reason, this Court, now treats the tape recordings as the official record of the hearings. When equipment is available and in working order, the Office of the Clerk will, upon written request accompanied by the appropriate fee, make copies of those tapes for the parties. If no means are available for making such copies, counsel must review the originals of the tapes on the Court's transcription equipment by appointment with the Office of the Clerk. The obligation to effectively review the record costs with the parties and their counsel and is not the responsibility of the Office of the Clerk.\"}"

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+"{\"id\": \"7343417\", \"name\": \"Janet FUNMAKER, Appellee, v. Libby FAIRCHILD, in her capacity Executive Director of HCN Dep't as Personnel, HCN Dep't of Personnel, HCN Now Tracy Thundercloud, in his capacity as acting Executive Director of HCN Dep't of Personnel, HCN Dep't of Personnel, HCN, Appellants\", \"name_abbreviation\": \"Funmaker v. Fairchild\", \"decision_date\": \"2007-08-31\", \"docket_number\": \"No. SU 07-05\", \"first_page\": 61, \"last_page\": 68, \"citations\": \"7 Am. Tribal Law 61\", \"volume\": \"7\", \"reporter\": \"West's American Tribal Law Reporter\", \"court\": \"Ho-Chunk Nation Supreme Court\", \"jurisdiction\": \"Tribal Jurisdictions\", \"last_updated\": \"2021-08-10T21:23:51.756426+00:00\", \"provenance\": \"CAP\", \"judges\": \"Chief Justice HUNTER, Justice FUNMAKER and Justice GREENDEER-LEE presiding.\", \"parties\": \"Janet FUNMAKER, Appellee, v. Libby FAIRCHILD, in her capacity Executive Director of HCN Dep\\u2019t as Personnel, HCN Dep\\u2019t of Personnel, HCN Now Tracy Thundercloud, in his capacity as acting Executive Director of HCN Dep\\u2019t of Personnel, HCN Dep\\u2019t of Personnel, HCN, Appellants.\", \"head_matter\": \"Janet FUNMAKER, Appellee, v. Libby FAIRCHILD, in her capacity Executive Director of HCN Dep\\u2019t as Personnel, HCN Dep\\u2019t of Personnel, HCN Now Tracy Thundercloud, in his capacity as acting Executive Director of HCN Dep\\u2019t of Personnel, HCN Dep\\u2019t of Personnel, HCN, Appellants.\\nNo. SU 07-05.\\nHo-Chunk Nation Supreme Court.\\nDecided Aug. 31, 2007.\\nBrian Stevens, Department of Justice, represented the Appellants.\\nMark Goodman, represented the Appel-lee.\\nChief Justice HUNTER, Justice FUNMAKER and Justice GREENDEER-LEE presiding.\\nThe Court takes this opportunity to thank law clerk, Kate Lindsay, for her assistance with this Decision.\", \"word_count\": \"3394\", \"char_count\": \"20891\", \"text\": \"DECISION\\nPER CURIAM.\\nAn appeal of the Ho-Chunk Nation (hereinafter HCN) Trial Court ruling in Janet Funmaker v. Libby Fairchild, in her capacity as Executive Director of HCN Dep't of Personnel, HCN Dep't of Personnel, and HCN, CV 06-61 (HCN Tr. Ct., Mar., 9, 2007). This case was heard by the Court on July 21, 2007, with Chief Justice Hunter, Justice Funmaker and Justice Greendeer-Lee presiding. Attorney Brian Stevens of the Department of Justice represented the Appellants, and attorney Mark Goodman represented the Appellee.\\nPROCEDURAL HISTORY\\nOn April 18, 2006, the Grievance Review Board (hereinafter GRB) issued its Decision in Janet Funmaker's grievance contesting her suspension and then termination from her job as hotel front desk supervisor at Ho-Chunk Casino, Hotel & Convention Center. Janet Funmaker v. Judy Whitehorse, in her official capacity as Front Desk Manager, Ho-Chunk Casino, Hotel and Convention Center, Case Nos.: GRB-060-06-T and GRB-050-050S (GRB, Apr. 18, 2006) (hereinafter GRB Decision). The GRB found that Appel-lee's suspension was wrongful and that she was not given due process for her suspension and termination. Consequently, the GRB instructed the Executive Director of Personnel to grant Appellee the following relief:\\na. Expunge the petitioner's personnel record regarding the suspension;\\nb. Grant back pay for the duration of the suspension;\\nc. Receive benefits for the duration of the suspension;\\nd. Reinstatement to petitioner's former position, or a comparable position within the Nation;\\ne. Expunge the termination from petitioner's record;\\nf. Receive back pay as a result of the termination; and\\ng. Receive full benefits as a result of the termination.\\nId. at 15. The then Executive Director of Personnel complied with the GRB Decision with the exception of giving Appellee back pay, which she claimed she lacked the authority to award. Appellee then tiled a Complaint with the Trial Court requesting the GRB decision be enforced. The Trial Court rendered its Order (Remand) on March 9, 2007, ruling that the GRB did have the authority to grant monetary relief and that sovereign immunity did not apply to the GRB. Order (Remand) at 16. Appellants filed a timely appeal with this Court on March 20, 2007. Briefs were submitted by both parties, and Oral Argument was heard on July 21, 2007. At Oral Argument, a Joint Stipulation and, Identification of Issues Notice of Substitution of Party (hereinafter Joint Stipulation ) was filed. In the Joint Stipulation, the parties agreed to substitute Tracy Thundercloud, the current Executive Director of the Department of Personnel, for Libby Fair-child, the former Executive Director of Personnel. Joint Stipulation at 2. Additionally, the parties stipulated to the fact that Appellee was wrongfully terminated and was entitled to up to $10,000 in back pay in accordance with ERA \\u00a7 5.35. Id. Consequently, the parties asked the Supreme Court to only clarify the GRB's authority, specifically in regard to whether the GRB is able to grant monetary damages. Id. at 2-3.\\nISSUE PRESENTED\\nDoes the GRB have the authority to grant monetary awards?\\nDECISION\\nAny analysis of the GRB's authority to issue remedies must start with an examination of the Employment Relations Act (hereinafter ERA), the statute which creates the GRB. Paragraph 34h of the ERA describes the remedial power of the GRB: \\\"The Board shall have the authority to direct the Executive Director of Personnel to execute the appropriate remedy consistent with the determination of the Board.\\\" ERA, 6 HCC \\u00a7 5.34h, (emphasis added). Appellants must then prove that \\\"appropriate remedy\\\" does not include back pay in order to prevail. Appellants seek to exclude monetary awards by applying the principle of sovereign immunity to GRB decisions, since sovereign immunity traditionally protects a nation from monetary but not equitable relief. The HCN sovereign immunity clause states: \\\"The Ho-Ghunk Nation shall be immune from suit except to the extent that the Legislature expressly waives its sovereign immunity .\\\" HCN Const., Art. VII, \\u00a7 1. Appellants put forth two arguments to support why the GRB's decisions should fall within the sovereign immunity clause: 1. Suits do not have to occur in a court of law. The GRB adjudicates suits; therefore, sovereign immunity applies. Appellant Br. at 5. And, 2. The power the GRB exerts is not legislative but judicial. Therefore, the GRB is more like a court, so the disputes that it adjudicates are suits and sovereign immunity applies. Id. The Court rejects both of these contentions.\\nAppellants define a suit in the following manner: \\\"... a suit is the proceeding, in whatever form, before a body capable of resolving the dispute, assigning the rights of parties, and affording remedies under law.\\\" Id. However, Appellants offer no citation for this definition. The Trial Court does provide citation for its contention that suits can only occur in a court of law. Order (Remand) at 12, n. 5. Additionally, both Black's and Ballentine's law dictionaries state that a suit has to occur in a court of law: \\\"Any proceeding by a party or parties against another in a court of law.\\\" Black's Law Dictionary 1448 (7th Ed.1999); \\\"Any proceeding in a court of justice by which a person pursues therein that remedy which the law affords him.\\\" Ballentine's Law Dictionary (3rd Ed.1969). The Court, therefore, rules that a \\\"suit\\\" has to occur in a court of law.\\nThe next question the Court must then decide is whether the GRB can be considered a court. If the GRB is a court, it adjudicates suits and sovereign immunity would apply. Appellants state that \\\"[t]he GRB is more similar to a lower court of special jurisdiction, created by Legislative act, and as authorized in Article VII of the HCN Constitution.\\\" Appellant Br. at o. However, both the Department of Peeson-nel Establishment and Organization Act of 2001 (hereinafter Establishment Act) and the ERA directly contradict Appellants' argument. The Constitution states that the Legislature delegates its power to Executive Departments. HCN Const., Art. V, \\u00a7 2(b). The Personnel Department is an example of an Executive Department that is wielding delegated legislative power as Art. V, \\u00a7 2(b) is cited in the authority section of the Establishment Act. Establishment Act, 1 HCC \\u00a7 10.1b. The GRB is an agency within the Department of Personnel. Several paragraphs within the ERA support this contention. For example, the paragraph entitled, \\\"Responsibilities,\\\" of the ERA states that \\\"[t]he Department of Personnel Establishment and Organization Act of 2001 (1 HCC \\u00a7 10) delegates to the Executive Director of the Department of Personnel the functions and authority to implement, manage, enforce and promulgate, i.e. create, establish, publish, make known and carry out the policies within this Act.\\\" ERA, \\u00a7 5.4a. The Department of Personnel is charged with the responsibility of investigating all incidents resulting in disciplinary action and with creating an impartial GRB to review such disciplinary actions. ERA, \\u00a7 5.34a. The GRB consists of employees of the Nation and one legal representative of the Department of Personnel. ERA, \\u00a7 5.34b(1-2). Finally, a staff member of the Department of Personnel is present at GRB hearings to \\\"advise all participants with regards to policy and procedure.\\\" ERA \\u00a7 5.34f(1). Because the GRB is part of the Department of Personnel, it too only has delegated Legislative authority. Consequently, the GRB cannot be considered a court and has no judicial authority. If it were to be considered a court, grave separation of powers problems would arise. First, as the Trial Court correctly notes, the Legislature would be impermissibly delegating authority it does not have, encroaching upon the Judiciary's authority. Order (Remand) at 12. And second, an Executive Department does not have the authority to supervise a court, as the Personnel Department does the GRB.\\nSeveral practical problems would result if the GRB did not have the authority to grant monetary awards as well. The Trial Court poses a hypothetical scenario illustrating the problems that could occur if the GRB could not award back pay in which those who succeed at the GRB would not be allowed back pay but those who lost at the GRB could be granted back pay when they appealed to the Trial Court. Order (Remand) at 14. Appellants counter by alleging the Trial Court erred in its hypothetical scenario and propose their own procedural interpretation of the ERA. Before comparing the Trial Court's and Appellants' differing proposals, the Court notes the Appellants' misuse of the legal term, \\\"error,\\\" in Appellants' brief to prevent future similar mistakes. The word, \\\"error,\\\" should not be used when the attorney merely disagreed with a court's interpretation of the law. Questions of law are reviewed de novo, requiring no error for the Supreme Court to reverse a Trial Court decision. Error is primarily associated with findings of fact that are found erroneous under a clearly erroneous standard, United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948), or when the Trial Court abuses its discretion, Rae Anna, Garcia v. Joan (Greendeer-Lee, Loa Porter; Hattie Walker and, Greg Garvin as Officials of the HCN; HCN Personnel Dep't and HCN Health and Human Services Dep't, SU 03-01 (HCN S.Ct., Apr. 30, 2003) at 3-4. In this case, the hypothetical example posed by the Trial Court was dicta and cannot be considered error.\\nFurthermore, Appellants never explain why they consider the Trial Court's hypothetical example to be error. Appellants seem to suggest that the Trial Court erred by ruling that the hypothetical procedure it discussed was the only possible procedure, which has no basis in the ERA. Appellant Br. at 9. First, the Trial Court does not have to address every possible interpretation of the ERA, especially when it is posing a hypothetical example. Second, the Trial Court's proposed procedure is entirely plausible. The ERA allows for an appeal to the Trial Court. ERA, \\u00a7 5.34a(3). The word, \\\"appeal,\\\" generally assumes that a party is seeking reversal of a lower court or agency's decision. Therefore, following a strict interpretation of the ERA, a person who prevailed at the GRB could not appeal to the Trial Court because they would not be seeking a reversal. A more liberal interpretation of the ERA may allow for those who prevail at the GRB to then go to the Trial Court for a determination of their back pay, as Appellants suggest. However, such a procedure would be highly impractical. This Court agrees with the Trial Court that one of the presumed purposes of establishing the GRB was to limit the number of employment cases in the court system. Order (Remand) at 13. If Appellants' proposed procedure were followed, every grievance involving a suspension or termination would have to go to the Trial Court. Additionally, calculating back pay requires no expertise that a Trial Court may have but the GRB would not. It would be a waste of judicial resources to have the GRB finds the facts of wage rate plus days missed due to a suspension or termination but then go to the Trial Court simply to do the math. A procedure such as this would needlessly postpone the restitution that those who have been wrongly suspended or terminated deserved.\\nThe Trial Court's and Appellants' proposed procedures highlight the possible problems that could occur if a court is overzealous in its interpreting of statutes. Here, the statute is unambiguous. The ERA states that the GRB has the authority to grant any \\\"appropriate remedy.\\\" ERA, \\u00a7 5.34h. Appellants are correct in that the Legislature probably never intended for the GRB to be able to grant limitless monetary awards, especially given that there is a monetary cap on the Trial Court's ability to grant monetary awards. However, it is not the Court's job to fix drafting mistakes in Legislation. The Tidal Court was correct to not read into the statute a procedure not directly stated, as Appellant would have this court do. These problems are best resolved by the Legislature who makes the law. Consequently, the Court strongly urges the Legislature to reexamine the ERA and, if they so choose, amend it to include a monetary cap for the GRB.\\nFinally, the problematic nature of the Joint Stipulation must be addressed. In the Joint Stipulation, the parties agreed to limit the back pay according to ERA \\u00a7 5.35. Joint Stipulation at 2. The Court finds the unorthodox tactic used by the parties to be largely ineffectual. Stipulating to using a law that the Trial Court specifically ruled did not apply carries little to no weight with the Court. Clearly, if the Court owes no deference to the Trial Court's interpretations of the law, no deference will be given to the parties' agreement about the law either. The Joint Stipulation seems to imply that because the parties never asked the Trial Court to determine whether or not the GRB could award more than $10,000, the Supreme Court should not address this issue and only decide whether the GRB can award monetary damages. Joint Stipulation at 2-3. However, the Trial Court's ruling that the GRB can award more than $10,000 is directly correlated to the issue of determining the GRB's remedial authority. Because Appellants made the sovereign immunity claim at the Trial Court level, the Trial Court explained why sovereign immunity did not apply and, therefore, why the $10,000 limited waiver of sovereign immunity did not apply. Therefore, the Trial Court's and now this Court's decision to address why the $10,000 limit did not apply to the GRB was both necessary and appropriate.\\nThe most troubling aspect of the Joint Stipulation, though, is the fact that Appellee agreed to number four, which states: \\\"The parties stipulate that Appel-lee, Janet Funmaker was wrongfully terminated and is entitled to back pay not to exceed $10,000 as per Rule 35 of the ERA.\\\" Joint Stipulation at 2. Why the Appellee would agree to limit her back pay to $18,000 less than what she actually lost is baffling to the Court. If it could be construed that Appellee did not understand the Joint Stipulation, the Court may have been willing to overlook the bad lawyering and rule the Joint Stipulation as void since the agreed $10,000 limit is based on an inapplicable law. However, the Appellee understood the Joint Stipulation well enough to cross out the other two paragraphs of the Joint Stipulation that called for overturning the Trial Court decision. Joint Stipulation at 2, 3. Additionally, Appellee made no effort to argue her case in her brief, characterizing the Appellants' argument as \\\"esoteric\\\" and just stating that she wanted her money that she was entitled to. Appellee Br. at 3. The Court sympathizes that multiple appeals of a case can be time consuming, but that is no excuse for essentially refusing to make any legal arguments on your behalf, especially when so great a sum is at stake.\\nCONCLUSION\\nBased on the foregoing, the Court affirms the Trial Court's decision in Funmaker v. Libby Fairchild, et al., CV 06-61 (HCN Tr. Ct., Mar. 9, 2007). The Court remands back to the GRB to find facts necessary to determine the back pay entitled to the Appellee. If the back pay is greater than $10,000, the GRB should only award $10,000 as per the Joint Stipulation. The Court further reminds the GRB that these facts should have been found and stated in the original Decision. When reviewing administrative decisions, the Trial Court plays the role of an appellate court and is not charged with finding facts. The GRB, with its greater expertise and familiarity, is the appropriate body to find facts.\\nIT IS SO ORDERED. EGI HES-KEKJENET.\\nGREENDEER-LEE, Associate Justice.\\nThis was an unusual case since the Appellant was arguing against the reasoning of the lower court decision and not against the Appellee. During the lower court hearing, the Appellee said the (trial) court should enforce the order because . the court can award monetary relief in cases such as this one. Or the court could render an advisory opinion. During oral arguments, the Appellee only wishes for a quick resolution and financial award.\\nI am dissenting from the Court for the reasoning that follows because both the Appellee and Appellant agreed that the Trial Court has the authority to award monetary relief. The lower cpurt begins by providing an interesting exercise in legal writing about what constituted a \\\"suit\\\". Further that only suits and cases of controversy are heard before a court of law. This is not disputed. However, the trial court did reference that the \\\"term is any proceeding .\\\" Appellant also provided \\\"a suit is the proceeding.... \\\" Though albeit inexperience or lack of thorough research efforts by the Appellant, I did find that such similarities worthy of further discussion. A further examination of a proceeding, \\\"a proceeding any procedural means for seeking redress from a tribunal or agency\\\". An act or step that is part of a larger action. BLACK'S LAW DICTIONARY 1221 (7th ED.1999). The proceedings can be criminal, informal, contempt, and administrative. So if this matter can be considered an administrative proceeding, first the matter is addressed before an agency with the expertise of the corresponding policies. This step prevents an unnecessary burden to the Judiciary, yet should the matter remain unresolved, the Judiciary is the next step. I liken the hearings of the GRB to administrative proceedings.\\nThe Court regards the actions of the GRB similar to legislative actions, and not in fact suits . because only the Judiciary is entrusted with such authority to oversee cases and controversies. I do not believe that one can conclude that the Legislature is impermissibly delegating authority that encroaches on the Judiciary branch when enabling the GRB. Nor should one have concluded that the executive branch is supervising a court just because the GRB is an extension of its Personnel Department. I see the Legislature enacting a board to administer administrative proceedings for limited purpose of resulting personnel grievances. The Legislature intentionally delineated the authority of the GRB exactly limited to those duties already in the purview of the Personnel Department. Those remedies of equity to award merely gave the GRB the discretion to determine appropriate remedies, since not all grievances are similar in incident. Further the Legislature specifically cited in the ERA 6 HCC \\u00a7 5.35 the Constitution authority of the Trial Court. Rather than usurping the authority of the Judiciary, the Legislature kept intact the necessary step of any monetary remedy to be entrusted to and entered before the Trial Court. For example, the Gaming Ordinance \\u00a7 821 allows for monetary remedies.\\nSuch interpretation does not lend to the intentions by the Legislature to relieve the Trial Court the burden of resolving controversial personnel matters. I believe the Legislature were mindful of Constitutional authority, and, liken the monetary awards that should be entered at the Trial Court similar to those small claim matters also being handled by the Trial Court. If truly attempting to relieve the Trial Court of the burden of matters before their court, why did the Legislature allow for the jurisdiction of the Courts to extend to small claims, probate, and divorce matters around the same time?\\n. The Court also notes that Appellants incorrectly referred to \\\"rales\\\" in the ERA instead of sections. For example, in ERA, \\u00a7 5.35a, the \\\"5\\\" is the section, the \\\"35\\\" is the subsection, and the \\\"a\\\" is the paragraph. See Legislative Organization Act of 2001, 2 HCC \\u00a7 11.35.\\n. $17,000 is an unofficial figure found in the Complaint filed by the Appellee at the Trial Court. The Appellee claimed she lost $27, 040 in wages from her termination and $1,040 from her suspension. Compl. at 3. Janet Funmaker v. Tracy Thundercloud, et at., SU 07-05\\n. Administrative Procedure Act of 1946, (60 Stat. 237, 5 U.S.C.A.) governing practice and proceedings before federal administrative agencies.\\n. Eviction Ordinance, 8 HCC Section 3 (2005); HCN Gen. Council Res. 11-19-02(7); Divorce and Custody Ordinance, 4 HCC \\u00a7 9 (2004)\"}"