Title TCT Tribal Court

Chapter TCT.1 Sovereign Immunity Code of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians

Preamble

This ordinance is enacted pursuant to the inherent sovereign authority of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians to protect and preserve the sovereign immunity of the Tribe, to define the entities and individuals entitled to the protection of such immunity, and to specify the manner in which such immunity may be waived, which predates its Treaties of 1825, 1826, 1837, 1842, 1847 and 1854 with the United States Government. In the implementation of this inherent sovereign authority, Article V, § 1(s) of the Amended Constitution and Bylaws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians, empowers the Tribal Governing Board to: "To promulgate and enforce ordinances…providing for the maintenance of law and order and the administration of justice…" Pursuant to this inherent sovereign authority, the Tribal Governing Board hereby recognizes that Tribal sovereign immunity, as defined in numerous federal court decisions, is an inherent and indispensable aspect of Tribal sovereignty. The Lac Courte Oreilles Band of Lake Superior Chippewa Indians also recognizes that Tribal sovereign immunity affords necessary protection of Tribal resources, and necessary protection for Tribal officers, employees, and agents in both governmental and commercial settings.

Subchapter TCT.1.1 General Provisions

TCT.1.1.010 Title

This ordinance shall be known as the Sovereign Immunity Code of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

TCT.1.1.020 Authority

TCT.1.1.030 Declaration of Policy

It is the policy of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians to exercise its sovereign immunity, and to grant limited waivers of such immunity, as dictated by the best interests of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians and its citizens. The Lac Courte Oreilles Band of Lake Superior Chippewa Indians recognizes that Tribal sovereign immunity, as defined in numerous federal court decisions, is an inherent and indispensable aspect of Tribal sovereignty. The Lac Courte Oreilles Band of Lake Superior Chippewa Indians also recognizes that Tribal sovereign immunity affords necessary protection of Tribal resources, and necessary protection for Tribal officers, employees, and agents in both governmental and commercial settings.

TCT.1.1.040 Purpose

The purpose of this ordinance is to protect and preserve the sovereign immunity of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians, to define the entities and individuals entitled to the protection of such immunity, and to specify the manner in which such immunity may be waived.

TCT.1.1.050 Territorial Applicability

This ordinance shall govern the sovereign immunity of the Tribe pursuant to the provisions of this ordinance within Lac Courte Oreilles Reservation lands as well as off-reservation lands under the jurisdiction and purview of the Lac Courte Oreilles Tribe.

TCT.1.1.060 Effective Date

Except as otherwise provided in specific sections, the provisions of this ordinance shall be effective on the date adopted by the Tribal Governing Board.

TCT.1.1.070 Interpretation

The provisions of this ordinance:

(a) Shall be interpreted and applied as the minimum requirements applicable to the protection and preservation of the sovereign immunity of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians;

(b) Shall be liberally construed in favor of the Tribe;

TCT.1.1.080 Severability and Non-Liability

If any section, provision or portion of this ordinance is adjudged unconstitutional or invalid by a court of competent jurisdiction, the remainder of this ordinance shall not be affected thereby. The Tribe further asserts immunity on its part and that of its agencies, employees, and/or agents from any action or damages that may occur as a result of reliance upon and conformance with this ordinance.

TCT.1.1.090 Repeal of Inconsistent Tribal Ordinances

All ordinances and resolutions inconsistent with this ordinance are hereby repealed. To the extent that this ordinance imposes greater restrictions than those contained in any other tribal law, code, ordinance or regulation, the provisions of this ordinance shall govern.

Subchapter TCT.1.2 Definitions

TCT.1.2.010 General Definitions

Any term not defined in this section shall be given its ordinary meaning. The following terms, wherever used in this ordinance, shall be construed to apply as follows, except where the context indicates otherwise:

(a) "Agent" shall mean a person who is authorized to act on behalf of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians with respect to a specific transaction or transactions. For the purposes of this ordinance, agent shall include all individuals elected or appointed to serve on a board, committee, or commission of the Tribe.

(b) "Employee" shall mean any individual who is employed by the Tribe and is subject to the direction and control of the Tribe with respect to the material details of the work performed, or who has the status of an employee under the usual common law rules applicable to determining the employer-employee relationship. For the purposes of this ordinance, employee shall include individuals employed by a tribal entity or Tribally Chartered corporation.

(c) "Officer" shall mean a person elected or appointed to serve on a board, committee, or commission of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(d) "Reservation" or "Reservation Lands" means those lands located within the exterior boundaries of the Lac Courte Oreilles Reservation lands as well as off-reservation lands under the jurisdiction and purview of the Lac Courte Oreilles Tribe.

(e) "Tribal Entity" shall mean a corporation or other organization which is wholly owned by the Lac Courte Oreilles Band of Lake Superior Chippewa Indians and is operated for governmental or commercial purposes.

(f) "Tribe" shall mean the Lac Courte Oreilles Band of Lake Superior Chippewa Indians, and includes all departments, divisions, business units, and other subdivisions of the Tribe.

(g) "Tribal Court" means the court of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(h) "Tribal Governing Board" means the Tribal Governing Board of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

Subchapter TCT.1.3 General

TCT.1.3.010 Sovereign Immunity of the Tribe

The sovereign immunity of the Tribe, including sovereign immunity from suit in any state, federal or Tribal court, is hereby expressly reaffirmed. No suit or other proceeding, including any Tribal proceeding, may be instituted or maintained against the Tribe unless the Tribe has specifically waived sovereign immunity for purposes of such suit or proceeding. No suit or other proceeding, including any Tribal proceeding, may be instituted or maintained against officers, employees or agents of the Tribe for actions within the scope of their authority, unless the Tribe has specifically waived sovereign immunity for purposes of such suit or proceeding.

TCT.1.3.020 Sovereign Immunity of Tribal Entities

The sovereign immunity of Tribal Entities, including sovereign immunity from suit in any state, federal or Tribal court, is hereby expressly reaffirmed. No suit or other proceeding, including any Tribal proceeding, may be instituted or maintained against a Tribal Entity unless the Tribe has specifically waived sovereign immunity for purposes of such suit or proceeding. No suit or other proceeding, including any Tribal proceeding, may be instituted or maintained against officers, employees or agents of a Tribal Entity for actions within the scope of their authority, unless the Tribe has specifically waived sovereign immunity for purposes of such suit or proceeding.

TCT.1.3.030 Waiver of Sovereign Immunity

(a) All waivers of sovereign immunity shall be made in accordance with this ordinance.

(b) A limited waiver of sovereign immunity of the Tribe or a Tribal Entity may be effected:

(1) by express resolution of the Tribal Governing Board;

(2) by motion of the Tribal Governing Board in adoption of an employment agreement encompassing a limited waiver of sovereign immunity for purposes of enforcement of the terms of the employment agreement in tribal court; or

(3) by express resolution of the Tribal Governing Board authorizing a limited waiver of immunity to a Tribal Entity to sue and be sued in the Tribal Entities corporate name, upon any contract, claim or obligation arising out of its activities under ordinance or charter, and limited to the liability for the debts or obligations of the Tribal Entity.

(c) Only through express resolution of the Tribal Governing Board, shall the Tribe provide a limited waiver of its sovereign immunity to permit Tribal officers, employees, or agents to testify as witnesses or to produce documents following receipt of a subpoena from a court of competent jurisdiction or a duly authorized official.

(1) A limited waiver of sovereign immunity to allow testimony and production of documents shall not extend to and shall not be deemed to include any testimony or the production of any documents which are not directly relevant to the limited purposes expressed in the waiver.

(d) A limited waivers of sovereign immunity shall not be general but shall be specific and limited as to duration, grantee, transaction, assets subject to the waiver, the court having jurisdiction, and applicable law.

(e) No waiver of sovereign immunity shall be deemed to be consent to the levy of any judgment, lien, or attachment upon Reservation Land(s).

Chapter TCT.2 Rules of Civil Procedure Code of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians

Preamble

This ordinance is enacted pursuant to the inherent sovereign authority of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians which predates its Treaties of 1825, 1826, 1837, 1842, 1847 and 1854 with the United States Government. In the implementation of this inherent sovereign authority, Article V, § 1 (q) and (s) of the Amended Constitution and By-laws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians empowers the Tribal Governing Board to: "establish a tribal court for the purpose of enforcing tribal ordinance…" Article V, § 1 (q); "promulgate and enforce ordinances governing the conduct of members of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians and provide for the maintenance of law and order and the administration of justice by establishing a tribal court and defining its duties and powers" Article V, § 1 (s). The following rules are adopted to govern civil proceedings initiated in the Lac Courte Oreilles Tribal Court.

Subchapter TCT.2.1 Introduction

TCT.2.1.010 Title

This ordinance shall be known as the Rules of Civil Procedure Code of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

TCT.2.1.020 Authority

This ordinance is enacted pursuant to the inherent sovereign authority of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians. In the implementation of this inherent sovereign authority, Article V, § 1 (q) and (s) of the Amended Constitution and By-laws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians empowers the Tribal Governing Board to: "establish a tribal court for the purpose of enforcing tribal ordinance…" Article V, § 1 (q); "promulgate and enforce ordinances governing the conduct of members of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians and provide for the maintenance of law and order and the administration of justice by establishing a tribal court and defining its duties and powers" Article V, § 1 (s).

TCT.2.1.030 Purpose

The purpose of this ordinance is to establish the Rules of Civil Procedure and practice before the courts of the Tribe.

TCT.2.1.040 Territorial Applicability

TCT.2.1.050 Effective Date

Except as otherwise provided in specific sections; the provisions of this ordinance shall be effective on the date adopted by the Tribal Governing Board.

TCT.2.1.060 Interpretation

The provisions of this ordinance:

(a) Shall be interpreted and applied as the minimum requirements to secure a just, speedy and inexpensive determination of every action and proceeding;

(b) Shall be liberally construed in favor of the Tribe;

(c) At every state of the proceeding, the court may disregard any technical error or defect in a failure to comply with these rules which does not affect the substantive rights of the parties particularly those not represented by an attorney.

(d) Shall not be deemed a limitation or repeal of any other tribal power or authority.

TCT.2.1.070 Severability and Non-Liability

TCT.2.1.080 Repeal of Inconsistent Tribal Ordinances

Subchapter TCT.2.2 Definitions

TCT.2.2.010 General Definitions

(a) "Appellate Court" shall mean the appellate court as designated in Chapter TCT.3 – Appellate Code.

(b) "Arrest Warrant" shall mean an order in writing issued by a tribal judge directing authorized personnel to arrest the person designated in a warrant.

(c) "Citizen" shall mean those persons whom are currently citizens (members) of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians and those who are entitled to be citizens (members) under provisions in effect, or who fall within the class defined as citizens (members) in Article II of the Constitution of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(d) "Clerk of Court" shall mean an officer of the Tribal Court who has charge of the clerical part of its business.

(e) "Complaint" shall mean a formal, written allegation against a party.

(f) "Juvenile" shall mean any individual less than eighteen (18) years of age.

(g) "Reservation" or "Reservation Lands" means those lands, including the beds of any streams and flowages, located within the exterior boundaries of the Lac Courte Oreilles Reservation lands as well as off-reservation lands under the jurisdiction and purview of the Lac Courte Oreilles Tribe.

(h) "Subpoena" shall mean a writ commanding the designated person to appear and testify and/or produce physical evidence.

(i) "Search Warrant" shall mean an order in writing issued by a tribal judge directing authorized tribal enforcement personnel to search specific persons and/or property.

(j) "Tribal Court" shall mean the duly constituted court of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians, as established by the Tribal Governing Board, with the judicial authority of the Tribe pursuant to Tribal Governing Board Resolution 76-10, dated May 27, 1976.

(k) "Tribal Governing Board" shall be the duly constituted Tribal Governing Board of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians pursuant to Article III of the Lac Courte Oreilles Constitution.

(l) "Tribal Law Enforcement Officer" shall mean any personnel who currently is employed by the Tribe as a Police Officer or Conservation Warden pursuant to Chapter PHS.1 – Public Safety Commission Code.

(m) "Tribe" shall mean the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

Subchapter TCT.2.3 Establishment and Duties of the Court

TCT.2.3.010 Creation of the Court

There is hereby established the Lac Courte Oreilles Tribal Court.

TCT.2.3.020 Jurisdiction of the Tribal Court

The Tribal Court shall have jurisdiction over:

(a) All matters arising under the Constitution and laws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(b) All actions brought under the provisions of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians Tribal Code of Law.

(c) All other civil actions in which the locus of any element of any claim is on the Tribe's reservation, or which is based on any contract made on or providing for the delivery of goods or services on the reservation.

(d) Notwithstanding any other provision of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians Tribal Code of Law, the Tribal Court shall have jurisdiction in claims, counterclaims, or cross-claims against the Tribe or its officers acting in their official capacity only as follows:

(1) Against the Tribe, an action for a writ of habeas corpus to test the legality of a person's detention by the Tribe.

(2) Against an officer of the Tribe for actions taken within his or her official capacity, an action for prospective relief in which the officer has acted beyond the scope of his or her valid authority, in violation of applicable law.

(3) Against the Tribe, or against an officer of the Tribe for actions taken within his or her official capacity, where the Tribe has properly waived its sovereign immunity or that of its officers, by resolution, ordinance, agreement, or otherwise.

TCT.2.3.030 Consent to Jurisdiction

Anyone entering the Lac Courte Oreilles Reservation consents to the civil jurisdiction of the Lac Courte Oreilles Tribal Court and such criminal jurisdiction as is not prohibited by federal law, and the application of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians Tribal Code of Law regulating conduct while upon the reservation.

TCT.2.3.040 Composition of the Lac Courte Oreilles Tribal Court

All judicial authority of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians shall be vested in the Lac Courte Oreilles Tribal Court. The Tribal Court shall be composed of the Justices, Judges, and Magistrates of the Tribal Court, Court Administrator, the Clerk of Court, Deputy Clerks and other judicial employees.

TCT.2.3.050 Location of Lac Courte Oreilles Court

The seat of the Lac Courte Oreilles Tribal Court shall be the Lac Courte Oreilles Reservation. The Court may convene in any location designated by the Tribal Governing Board or a judge or magistrate of the Court.

TCT.2.3.060 Law Applicable to Civil Actions

In all civil actions, the Lac Courte Oreilles Tribal Court shall apply any ordinance of the Tribe, the applicable laws of the United States, and any federal regulations which may be applicable. For any matter not determined by the law of the Tribe, the American Law Institute's Concise Restatement of Torts, Concise Restatement of Property, Restatement (2d) Contracts, and the Uniform Commercial Code shall be used as authority to the extent applicable, subject to modification by the Court to reflect the customs, traditions, values and policies of the Tribe. The Court shall make such modification only upon a finding, made after notice and hearing, that modification is necessary to conform to the law to the customs, traditions, values, or policies of the Tribe. The Court may of its own motion or that of a party, adopt any other source of law as persuasive authority and may apply any such source with or without modification. Any action that may be brought under federal law or the law of the State of Wisconsin may be brought in tribal court.

TCT.2.3.070 Court Rules

The chief judge may prescribe, subject to amendment by the Tribal Governing Board, any rule necessary for the conduct of the Lac Courte Oreilles Tribal Court not inconsistent with the provisions of this chapter.

TCT.2.3.080 Application of Tribal Code of Law

This chapter applies in all actions of the Lac Courte Oreilles Tribal Court, except where specific Titles of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians Tribal Code of Law (LCOTCL) provides for specific procedures in particular actions.

TCT.2.3.090 Penalties and Forfeitures

(a) All penalties and forfeitures assessed shall be in accordance with the provisions set forth in Tribal Ordinances. No criminal penalty shall exceed the limitations contained in applicable federal law.

(b) All penalties and forfeitures collected shall be disposed of in a manner deemed appropriate by the Tribal Governing Board.

TCT.2.3.100 Indian Civil Rights Act

All proceedings in Lac Courte Oreilles Tribal Court shall be conducted in conformity with the Indian Civil Rights Act of 1968, 25 U.S.C. §§1301 – 1303.

Subchapter TCT.2.4 Judges and Magistrates

TCT.2.4.010 Selection of Judges and Magistrates

(a) The Tribal Governing Board shall appoint a Chief Judge, and may appoint such Associate Judges and Magistrates, upon such terms and conditions as are determined by the Tribal Governing Board. The judges and magistrates of the Lac Courte Oreilles Tribal Court shall be selected by a majority vote of the Tribal Governing Board at a meeting in which a quorum is present.

(b) No person shall be eligible for selection as a judge or magistrate unless he or she is:

(1) Is at least eighteen (18) years of age;

(2) Is of good moral character and integrity;

(3) Has never been convicted of a felony;

(4) Has not been convicted within the last twelve (12) months of a misdemeanor or an ordinance adopting state criminal law;

(5) Is capable of preparing opinions and orders and conducting hearings incident to the office of judge or magistrate;

(6) Has demonstrated knowledge of the Lac Courte Oreilles Tribal Code of Law and understandings as necessary of applicable federal and state laws.

(7) No individual may serve as judge or magistrate while serving as a member of the Tribal Governing Board or as a tribal law enforcement officer.

(c) The Tribal Governing Board may also select pro tempore judges as it deems advisable to perform any of the duties of the Tribal Judge.

TCT.2.4.020 Terms of Office

(a) Each judge and magistrate shall hold office for a period of four (4) years, unless sooner removed for cause, or by reason of resignation, death or incapacity. A judge or magistrate shall be eligible for reappointment.

TCT.2.4.030 Duties of Judge

(a) A duly appointed Judge shall have the authority to act in all matters within the jurisdiction of the Lac Courte Oreilles Tribal Court or under the Lac Courte Oreilles Tribal Code of Law. A Tribal Court Judge shall have the authority to:

(1) Preside over all matters brought under the jurisdiction of the Lac Courte Oreilles Tribal Code of Law and other matters under the jurisdiction of the Lac Courte Oreilles Constitution.

(2) Issue orders and judgement on all matters filed with the Tribal Court.

(3) Exercise such other powers as set forth by the Lac Courte Oreilles Tribal Code of Law.

TCT.2.4.040 Duties of Magistrate

(a) Subject to the right of any party to seek a new ruling from the Lac Courte Oreilles Tribal Court on any decision of a magistrate, a magistrate shall have the authority to:

(1) Issue orders related to service of summons by publication.

(2) Preside over uncontested matters, and enter uncontested orders and judgments.

(3) Preside at initial hearings (whether or not called by that particular name) in conservation, children's court, traffic, general conduct, and other matters where the function of the court proceeding is to conduct preliminary proceedings including but not limited to ascertaining the positions of parties, informing parties of their rights, and accepting pleas. The magistrate may also enter uncontested orders at such proceedings.

(4) Issue orders affecting discovery.

(5) Issue subpoenas.

(6) Issue search warrants.

(7) Permit facsimile transmission filings in particular cases.

(8) Issue orders related to the taking of testimony by telephone or audiovisual means.

(9) Exercise such other powers as set forth by the Lac Courte Oreilles Tribal Code of Law.

TCT.2.4.050 Disqualification, Recusal, and Removal of Judges or Magistrates

(a) Disqualification.

(1) A judge or magistrate shall be disqualified to sit on any case in which he or she has any direct interest, is or has been or reasonably may be a witness, or is a spouse, parent, child, grandparent, grandchild, brother, or sister of a party. In the event that more than one judge has been appointed, the clerk of court shall randomly select from the Chief Judge, Associate Judge(s), Pro Tempore Judge(s), or the Magistrate to serve in the place of the disqualified judge or magistrate. In the event all Lac Courte Oreilles judges or magistrates are disqualified, the clerk of court shall randomly select from the list of appellate judges maintained under Chapter TCT.3 – Appellate Code to preside over the case.

(2) An appellate judge shall be disqualified to hear any appeal in any case in which he or she sat as a trial judge, has any direct interest, has been a witness, or is a spouse, parent, child, grandparent, grandchild, brother, or sister of a party. Upon disqualification, the clerk of the appellate court shall randomly select another judge from the list of appellate judges to serve on the case.

(b) Recusal.

(1) A judge or magistrate shall recuse himself or herself from a case in which he or she has a conflict of interest or the appearance of a conflict of interest or in any other case where failure to recuse would be a violation of 2 LCOTCL Chapter 6 – Judicial Conduct Code. In the event that more than one judge has been appointed, the clerk of court shall randomly select from the chief judge, associate judge(s), pro tempore judge(s), or the magistrate to serve in the place of the disqualified judge or magistrate. In the event all Lac Courte Oreilles judges or magistrates are disqualified, the clerk of court shall randomly select from the list of appellate judges maintained under Chapter TCT.3 – Appellate Code to preside over the case.

(2) If a Judge or Magistrate determines that he or she has no conflict of interest or the appearance of a conflict of interest in any case, a party may petition the Tribal Governing Board as to whether the Judge or Magistrate should be recused. The Tribal Governing Board shall make a decision on the Judge or Magistrate's recusal by a majority vote of a quorum of the Tribal Governing Board.

(1) A judge or magistrate may be suspended from office upon written charges brought for his or her removal which recited good cause. Good cause shall be limited to serious or repeated violations of 2 LCOTCL Chapter 6 – Judicial Conduct Code, a conviction of a crime or of an ordinance adopting a state criminal statute, a repeated failure to attend scheduled court dates, or serious or repeated disregard of unambiguous tribal laws. A hearing shall be provided before the Tribal Governing Board within ten (10) days of the judge's or magistrate's receipt of written notice of the charges, at which time the judge or magistrate shall be provided with the opportunity to respond to the charges against him or her, including the presentation of the testimony of witnesses in his or her behalf. A judge or magistrate may be removed only for good cause shown at the hearing, and only upon a majority vote taken by secret ballot of a quorum of the Tribal Governing Board.

(2) Upon the removal, resignation, or physical or mental incapacity of a judge or magistrate, the Tribal Governing Board shall appoint an individual to the remainder of the term of office.

TCT.2.4.060 Immunity of Judges and Magistrates

Judges and magistrates shall be immune from civil liability arising from the true and faithful performance of his/her lawful acts and deeds while serving in the capacity of a judge or magistrate for the Tribal Court or for any other court of competent jurisdiction.

TCT.2.4.070 Compensation

Judges and magistrates shall receive such compensation as established by the Tribal Governing Board.

Subchapter TCT.2.5 Clerk of Court

TCT.2.5.010 Appointment of Clerk of Court

The Tribal Governing shall appoint a Clerk of Court, and may appoint such deputy or assistant Clerks of Court, upon such terms and conditions as are determined by the Tribal Governing Board.

TCT.2.5.020 Duties of Clerk of Court

The Clerk shall render assistance to the Tribal Court, to tribal law enforcement personnel, and to all other persons having business with the Court. The Clerk shall serve as the Clerk of the Court of Appeals. The Clerk shall attend and keep written records of all proceedings of the Tribal Court, and is authorized to administer oaths and to collect fees, fines, forfeitures, costs and other monies. The Clerk and any deputy or assistant clerks shall be bonded in an amount fixed by the Tribal Governing Board, and shall transmit any and all monies received to the Tribal Secretary-Treasurer. The Clerk shall assure that a verbatim stenographic or electronic record is made of all proceedings of the Tribal Court. The Clerk may delegate any of the foregoing duties to the assistant clerk, while maintaining supervision and responsibility for the duty so delegated. The Clerk shall make periodic accountings to the Tribal Governing Board and to the Tribal Court of all funds received and disbursed by the Clerk. Such accounting shall be made at least annually, and upon request of either the Tribal Governing Board or Tribal Court.

Subchapter TCT.2.6 Attorney General / Prosecutor

TCT.2.6.010 Appointment of Attorney General / Prosecutor

An Attorney General / Tribal Prosecutor shall be appointed by the Tribal Governing Board, for such term and upon such conditions as are determined by the Tribal Governing Board. The Tribal Governing Board may also appoint such deputy, assistant, special, or pro tempore Attorney General(s) / prosecutors as it deems advisable to perform any of the duties of the Tribal Prosecutor. The Attorney General / Tribal Prosecutor may also appoint such special or pro tempore prosecutors when advisable to perform any of the duties of the Tribal Prosecutor.

TCT.2.6.020 Duties of Attorney General / Prosecutor

The Attorney General / Tribal Prosecutor, or such designated deputy, assistant, special, or pro tempore Attorney General(s) / prosecutors as deemed advisable by the Attorney General to perform any of the duties of the Tribal Prosecutor, shall represent the Tribe before the Tribal Court in all appropriate proceedings and may bring any action to enforce the Tribal Code of Law and any other tribal ordinance, which shall be brought in the name of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians or in the name of any of the Tribe's entities

Subchapter TCT.2.7 Court Files

TCT.2.7.010 Court Files to Be Open

Except as specified herein, all records and files of the Tribal Court shall be available for public inspection during the regular business hours of the Tribal Court.

TCT.2.7.020 Closed Files

All juvenile and domestic relations files, and all other files specified by the Tribal Code of Law, shall be closed. The court may in its discretion and in the interest of privacy, deem other court files as closed files. All closed files shall be unavailable for public inspection without an order of the Tribal Court. This section shall not be construed to prevent law enforcement personnel or other Tribal entities/departments as otherwise authorized by law, from inspecting files of the Tribal Court upon request.

TCT.2.7.030 Control of Court Files

No court files may be removed from the custody, control, and physical possession of the Tribal Court. Individuals securing copies of documents from Tribal Court files or transcripts of Tribal Court proceedings, shall, unless otherwise authorized by law or ordered by the Tribal Court, pay the actual costs of reproduction of such material.

Subchapter TCT.2.8 Practice Before the Court

TCT.2.8.010 Right to Counsel

(a) Any party appearing before the Tribal Court has the right to be represented by an attorney or lay advocate at the party's expense.

(b) Any person who is a party in any action or proceedings before the Tribal Court may represent herself or himself, or be represented by any other person who is licensed to appear before the Tribal Court, except the Clerk of Court, the Deputy Clerk, a Judge or Magistrate of the Tribal Court, a current member of the Tribal Governing Board, or a tribal law enforcement officer.

TCT.2.8.020 Admission to Practice Required

No attorney or lay advocate shall represent any person in an action before the Tribal Court unless such attorney or lay advocate is duly admitted to practice before the Lac Courte Oreilles Tribal Court. The Tribal Court may grant leave to appear in a single case to any individual who is a member in good standing of another state or tribal bar.

TCT.2.8.030 Procedure for Admission

(a) An attorney for the purposes of this subchapter shall be a person who has graduated from an American Bar Association accredited institution and has been admitted to a court or jurisdiction. A Lay Advocate is a person who has completed certified training in the practice of law in tribal courts. A Lay advocate cannot be an attorney who is inactive or is not in current standing in another jurisdiction. Any person wishing to practice before the Tribal Court shall file a written request for admission with the Clerk of Court, accompanied by a Certificate of Good Standing from the State Bar or Supreme Court of the State in which such attorney is duly licensed to practice law. Such request shall be accompanied by an admission fee as determined by the Court rule pursuant to Section TCT.2.8.030(b)(1), below.

(b) Attorneys may appear on behalf of any party in any action or proceeding before the Tribal Court, provided they are licensed to practice law before the Tribal Court. Such license shall be issued upon compliance with the following:

(1) Filing with the Clerk of Court an affidavit that the applicant is licensed to practice law and provides evidence that the attorney is in good standing before the highest court of any state; and

(2) Filing with the Clerk of Court an affidavit that the applicant has studied and is familiar with the Constitution and By-Laws of the Tribe, this Code, the Lac Courte Oreilles Tribal Code of Law (LCOTCL), Title 25 of the United States Code and Title 25 of the Code of Federal Regulations; and

(3) Paying an annual license fee of one hundred dollars ($100.00); and

(4) Taking the following oath before the Clerk of Court, either in person or by affidavit:

"I do solemnly swear (or affirm) that I will support the laws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians;

I will maintain the respect due to the Tribal Court and its judicial officers;

I will not counsel or maintain any suit or proceeding which shall appear to me unjust, nor any defense except such as I believe to be honestly valid or debatable under the law;

I will employ confidentiality for the purpose of maintaining the causes confided to me, and such means only as are consistent with truth and honor, and I will never seek to mislead any judge or magistrate, or by false statement or misrepresentation of fact or law;

I will employ in the conduct of my duties the highest degree of ethics and moral standards with which my profession is charged, and I will be guided at all times by the quest for truth and justice;

In the conduct of my duties as an attorney, I will not impugn the morals, character, honesty, good faith, or competence of any person, nor advance any fact prejudicial to the honor or reputation of any person, unless required by the justice of the cause with which I am charged."

(c) Any lay advocate wishing to practice before the Tribal Court shall file a written request for admission with the Clerk of Court, accompanied by an affidavit reciting the qualification of such spokesman to represent another before the Court.

(1) Filing an affidavit with the Clerk of Court which states that the applicant has studied and is familiar with Constitution and By-Laws of the Tribe, this Code, the Lac Courte Oreilles Tribal Code of Law (LCOTCL), Title 25 of the United States Code and Title 25 of the Code of Federal Regulations; and

(2) Paying an annual license fee of $50; and

(3) Taking the following oath before the Clerk of Court either in person or by affidavit:

"I do solemnly swear (or affirm) that I will support all laws of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians;

I will maintain the respect due to the Tribal Court and its judicial officers; and

I will employ confidentiality for the purposes of maintaining the causes confided to me, and such means only as are consistent with truth and honor, and I will never seek to mislead any judge, justice, jury or elder by any artifice, or by false statement or misrepresentation of fact or law; and

I will conduct myself in an orderly, courteous and respectful manner and shall not misbehave or disrupt, obstruct, or otherwise interfere with the conduct of any proceeding by the Court or the administration of justice by the Lac Courte Oreilles Tribal Court."

(d) Upon the successful determination of admission to the practice an attorney shall be issued a bar number which shall be required on all documents submitted to the Tribal Court.

(1) Attorneys shall be number LCO1001;

(2) Lay advocates shall be numbered LCOA1001; and

(3) Attorneys admitted Pro Hac Vice shall be numbered LCOT1001.

TCT.2.8.040 Revocation of License to Practice Before the Court

(a) Any license issued pursuant to Section TCT.2.8.020 and Section TCT.2.8.030 of this chapter may be revoked or suspended by the Tribal Court. Such action may be taken on its own motion or upon sworn complaint by a citizen of the Tribe.

(b) Any license may be revoked or suspended by the Tribal Court upon a finding that the licensee has been disbarred or suspended from the practice of law by any court of the United States, State, or Tribe.

(c) Any license may be revoked or suspended by the Tribal Court upon a finding that a attorney or lay advocate has filed a false affidavit with the Clerk of Court to obtain her/his license, or has violated her/his oath made before the Clerk of Court or has engaged in misconduct or unethical conduct as an attorney or lay advocate which has violated her/his oath.

TCT.2.8.050 Procedure for Revocation of License to Practice Before the Court

(a) The Court shall provide a written notice of revocation or suspension to the licensee of the motion or complaint and a right to a hearing before a judge of the Tribal Court. The Licensee shall have ten (10) days to respond to the notice.

(b) A hearing shall be conducted, within thirty days of the notice under Section TCT.2.8.050(a), before a judge of the Tribal Court. The Hearing will be informal and the Licensee shall be afforded the opportunity to respond to the complaint or the motion. The hearing will be final.

(c) Following a hearing, the Tribal Court may revoke, suspend, or sanction, a license as deemed appropriate based in the information provided at the hearing.

TCT.2.8.060 Admissions and Continuation Rules

The chief judge may, by rule, impose requirements in addition to those listed in Section TCT.2.8.030 for admission to the bar and for continuation of membership in the bar, which may include education requirements, examination requirements, renewal fees, or any combination thereof.

Subchapter TCT.2.9 Starting an Action

TCT.2.9.010 Summons and Complaint

(a) An action in Tribal Court is commenced by the filing of a summons and complaint as prescribed by this section.

(b) The summons and complaint shall be a single document setting forth the following:

(1) The names and addresses, and tribal status of the parties. If a party who is not a member of the Tribe is alleged to be eligible for membership in the Tribe, the complaint shall be accompanied by an original certificate of eligibility from the Tribe's enrollment office or enrollment committee.

(2) The case number assigned by the Clerk of Court.

(3) A command to the defendant to appear at tribal court at a date, time and place specified by the Clerk of Court.

(4) A brief statement, including approximate date and place, of the transaction or occurrence giving rise to the action.

(5) The relief requested.

(6) A statement that failure to appear may result in a judgment taken against the defendant for the relief requested, plus costs and attorney fees.

(7) The dated signature of the Clerk of Court and of the plaintiff or plaintiff's attorney or lay advocate.

(d) The first appearance date specified under Section TCT.2.9.010(b)(3), above shall be no less than 20 days and no more than 60 days from the date of issuance of the summons and complaint. Service, if by mail, shall be made no less than ten days prior to the first appearance date. Service, if personal, shall be made no less than seven days prior to the first appearance date.

(e) The Clerk of Court shall not accept for filing any summons and complaint that does not bear the dated signature of the plaintiff or plaintiff's attorney, or that is not accompanied by the filing fee as required by Section TCT.2.15.010(a) and, if applicable, the mailing fee as required by Section TCT.2.15.010(b).

TCT.2.9.020 Service of the Summons and Complaint

Service of the summons and complaint may be by the following methods:

(a) Natural Person. The plaintiff may cause personal service to be made upon the defendant by hand delivery to the defendant in person or to any person of apparent normal understanding no less than 16 years old residing within the residence of the defendant.

(b) Natural Person under Disability. When the defendant is a minor under the age of 18 years, service shall be made upon the minor's parent or guardian. When a minor defendant is 14 years of age or over, service shall also be made on the minor. When the defendant is an adult who is known by the plaintiff to have a guardian, service shall be made on the defendant and on the defendant's guardian. Service may be made personally as provided in Section TCT.2.9.020(a) above.

(c) Service on Tribe. When the defendant is the Tribe, service may be made by delivering a copy of the summons and complaint to the Chairman, Vice-Chairman, or Secretary-Treasurer of the Tribe, or the Attorney General or the Chairman's administrative assistant.

(d) Service on other Governmental Bodies. When the defendant is a governmental body other than the Tribe, service shall be made on the agent of the governmental body as designated under the law of the State in which service is made; however, service may be made either personally or by certified mail as provided in this section. If service is made personally, it may be made upon the agent so designated or upon the person apparently in charge of the agent's office.

(e) Service on Domestic or Foreign Corporations or Limited Liability Companies. When the defendant is a domestic or foreign corporation or limited liability company, service shall be made on the agent of the domestic or foreign corporation or limited liability company as designated under the law of the State in which service is made; however, service may be made either personally or by certified mail as provided in this section. If service is made personally, it may be made upon the agent so designated or upon the person apparently in charge of the agent's office.

(f) Service by Certified Mail. A plaintiff may request the Clerk of Court to make service by certified mail, in which case the Clerk of Court shall mail a copy of the summons and complaint to each defendant, other individual, or agents as designated according to defendant's status under Section TCT.2.9.020(a), above. Mail shall be certified, return receipt requested, return requested if not claimed within five days. The Clerk shall charge the plaintiff the fees as required by Section TCT.2.15.010 of this ordinance for service by certified mail, receipt requested, return postage guaranteed. Service by mail shall be complete upon mailing unless the envelope enclosing the summons and complaint is returned unopened by the post office to the Clerk of Court prior to the date of the first appearance.

(g) Service by Publication. If service cannot reasonably be made under Section TCT.2.9.020(a) of this ordinance, service by publication may be made. Plaintiff shall cause a summons to be published in a newspaper of general circulation in the area of the defendant's last known residence. The summons for publication shall inform the defendant that a lawsuit has been filed against the defendant in Lac Courte Oreilles Tribal Court, and shall give the names of the parties, the case number, and the address of the Clerk of Court, with the advice that a copy of the full summons and complaint may be obtained at that address. Publication shall occur once each week for three consecutive weeks. The plaintiff shall file an affidavit showing the required publication and an affidavit detailing attempts to personally serve the defendant and to serve the defendant by mail and the reasons why such attempts failed and why the plaintiff does not believe additional attempts will be successful.

(h) Who May Serve. Any person over eighteen years of age, not a party to the action, may make personal service. In the case of personal service, an affidavit of service shall be returned to the Clerk of Court and shall constitute proof of service. If service is disputed, the person making personal service may be required to testify as to the circumstances of the service.

TCT.2.9.030 Answers, Counterclaims, Cross-Complaints, and Third-Party Complaints

(a) All parties shall appear on the first appearance date specified in the summons and complaint. All answers, counterclaims and cross complaints may be made orally or in writing. If made in writing, any such pleadings shall be filed with the Clerk of Court with copies served on all parties. A third-party complaint must be made in writing and shall be filed with the Clerk of Court and served on the third-party defendant on or before the return date or at such later date as the Court allows.

(b) Written pleadings shall not substitute for personal appearance or appearance by an attorney or lay advocate on the first appearance date. Failure of any party to appear may result in judgment as provided in §§ Section TCT.2.11.010 and Section TCT.2.11.020 of this ordinance.

(c) Upon the first appearance date, the court shall determine whether the defendant wishes to make a defense to the complaint. If the defendant does not wish to make a defense or raise a counterclaim, judgment may be entered in favor of the plaintiff. If the defendant does wish to make a defense, the court shall determine whether the parties wish to settle their differences without trial. If such settlement is made, the court shall enter judgment, or dismiss the complaint, as called for by the settlement. If the parties do not make such a settlement, a trial date shall be set or a scheduling order under Section TCT.2.9.050 of this ordinance, shall be entered depending on the complexity of the case. Trial may be had on the date of the first appearance if all parties and the court consent.

(d) Any party may request a substitution of judge for cause by making such request at the hearing on the first appearance date.

(e) The court may in its discretion adjourn the first appearance as the interests of justice require.

TCT.2.9.040 Filing and Service of Papers After Summons and Complaint

(a) The service of any papers in an action subsequent to the summons and complaint may be made by first-class mail or facsimile transmission, or electronic mail to the party and to the party's attorney or lay advocate who has filed a notice of appearance in the action, or by delivery to such person, the person's home, or the person's office. No filing may be made by electronic facsimile (fax) unless permitted by specific order of a judge or magistrate.

(b) No party shall file any paper in an action without also serving a copy on every other party in the action, except for a party in default.

(c) No pleading, motion, or other paper may be filed to harass or cause unnecessary delay or needless increase in expense, or that is not well-grounded in fact and warranted by existing law, or by a good faith argument for the extension, modification, or reversal of existing law. The court may impose sanctions, including a requirement that any party, attorney, or lay advocate who makes any such filing pay reasonable attorney fees to the other party, dismissal of a complaint or petition, or any other remedy fashioned by the Court.

TCT.2.9.050 Scheduling Order

On or after the first appearance date, the Court may enter a scheduling order, and may from time to time thereafter amend the order. The entry of any scheduling order shall occur after a scheduling conference which may be held either as part of the first appearance or as a separate scheduling conference. At any such conference, any unrepresented party must appear in person, and at least one attorney or lay advocate must appear for any party who has such representation. After consultation the court shall issue a scheduling order including such of the following as are applicable to the circumstances and complexity of the case:

(a) The time within which any other parties shall be joined;

(b) The time within which any motions shall be filed;

(d) The time within which motion for default judgment may be heard;

(e) The methods and timetables for the completion of discovery;

(f) The time within which motion for summary judgment may be heard;

(g) The date for a pretrial conference;

(h) The date for trial; and

(i) Any other matters governing the conduct of the case that the court deems appropriate.

TCT.2.9.060 Status Conferences

The court may on its own motion or upon a request of a party set a status conference whenever useful to the advancement of a case.

TCT.2.9.070 Pre-Trial Discovery

(a) The methods and timetables for pre-trial discovery shall be set by the Court in a scheduling order. Discovery shall be tailored to allow adequate case assessment and trial preparation, but shall not be permitted to harass or oppress a party, to unreasonably increase expense, or to waste time.

(b) A party seeking discovery who has not served a proper demand as permitted by a scheduling order and whose demand has not been timely met by another party, may seek an order compelling the other party to comply with the demand and may be awarded its costs and fees necessitated by the failure to comply, and other relief as the Court deems appropriate.

(c) A party who has received a discovery demand that is not authorized by a scheduling order of that is otherwise improper may seek a protective order against the demand and may be awarded its costs and fees necessitated by discovery demand, and other relief as the Court deems appropriate.

TCT.2.9.080 Telephone and Audiovisual Proceedings

(a) On its own motion or motion of any party the Court may conduct any proceeding by telephone or audiovisual means. Any party seeking to appear in person or by counsel by telephone or audiovisual means shall secure the consent of the Court. Any party may object to such appearance, and the Court shall then determine if such appearance shall be allowed. Any party wishing to present evidence by telephone or audiovisual means shall either secure the consent of the other party or provide notice to the other party that unless objection is received within the time set by the court the court may receive such evidence by telephone or audiovisual means.

(b) In determining whether to conduct a proceeding, allow an appearance, or allow evidence to be presented by telephone or audiovisual means the court shall consider the following:

(1) Whether all parties have requested or consented to such procedure;

(2) The availability of adequate equipment;

(3) Whether any undue surprise or prejudice would result;

(4) Whether there is good reason for the individual appearing by telephone or audiovisual means not to be physically present in court;

(5) The convenience and expense to the court, parties, and witnesses;

(6) Whether the appearance of a witness by telephone or audiovisual means will allow full and effective cross-examination and access to relevant documents and other exhibits.

(7) The importance of presenting the testimony of a witness in open court, in order to observe demeanor, or in order to maintain the solemnity of proceedings and impress on the witness the duty to testify truthfully;

(8) Where the judge is participating by telephone or audiovisual means, the above factors as applicable, and the cost/benefit comparison of proceeding by telephone or audiovisual means or otherwise; and

(9) Any other factor the court deems relevant.

(c) If testimony is offered by telephone or audiovisual means, the proceedings shall be simultaneously recorded either by stenographic or electronic means. Any proceeding required to be conducted in open court shall be conducted in such a way that any interested observers may hear the proceedings.

TCT.2.9.090 Time

(a) In computing any period of time prescribed or allowed by this Tribal Code of Law, or any other ordinance or statute, or by order of the court, the day of the act, event, or default from which the designated time period begins to run shall not be included. The last day of the period shall be included unless it is a day that the clerk of court's office is closed, in which case the period shall extend until the day that the clerk of court's office is open next. When the period of time prescribed or allowed is ten days or less, Saturdays and Sundays are excluded in the computation.

(b) When an act is required to be done at or within a specified time, the court may order the period enlarged on motion for cause and upon just terms. No motion filed after the expiration of the specified time shall be granted unless excusable neglect is shown.

(c) A written motion, other than one which may be heard ex parte, shall be served with notice of hearing on the motion not later than five days before the hearing unless a shorter time is provided by ordinance or order of the court. A shortened time may be sought for cause by ex parte motion and affidavit.

(d) Whenever a party has a right or is required to do some act or take some proceedings within a prescribed period of time after the service of a notice or other paper on the party, the party shall have three additional days if the notice or paper is served by mail or reputable express carrier, or one additional day if the notice or paper is served by facsimile transmission completed by 4:00 p.m. and midnight.

TCT.2.9.100 Subpoenas

(a) The judges or magistrates of the Lac Courte Oreilles Tribal Court shall have the power to issue subpoenas for the attendance of witnesses and production of documents or physical evidence on the request of any party to a case or on the court's own motion, which subpoena shall bear the signature of the judge or magistrate issuing it. Service of subpoena shall be by law enforcement personnel or by an individual appointed by the court for that purpose, and may be by any means directed by the court.

(b) Service of a subpoena unless otherwise directed by the court shall be made by delivering a copy of it to the person named or by leaving a copy at the person's place of residence with any competent person sixteen (16) years or older who also resides there.

(c) Proof of service of the subpoena shall be filed with the Clerk of Court by noting on the back of a copy of the subpoena the date, time and place it was served, and noting the name of the person to whom it was delivered. Proof of service shall be signed by the person who actually served the subpoena. The court may in its discretion provide for alternative reliable proof of service.

(d) In the absence of justification satisfactory to the court, a person who fails to obey a subpoena may be deemed to be in contempt of court.

(e) Each witness answering a subpoena shall be entitled to a witness fee of $25 per day. The party requesting the subpoena shall deposit the fee with the Clerk of Court at the time of the request. The Clerk of Court shall pay the witness fee to the witness after the witness testifies or is excused from further testimony by the Court and shall return the fee to the party requesting the subpoena if for any reason the witness does not appear as subpoenaed. The witness fee may be included in an award of costs to a prevailing party.

TCT.2.9.110 Statute of Limitations

Unless a specific limitation on an action is provided by tribal ordinance, and contract claim may be presented within six years of the accrual of the claim, and tort claim other than a professional malpractice may be presented within three years of the accrual of the claim, and any professional malpractice claim may be presented within three years of the discovery of the claim. The filing in federal or state court or any action which should properly be brought in Tribal Court tolls the limitation.

Subchapter TCT.2.10 Trial

TCT.2.10.010 Trial to Court

All trials in Tribal Court shall be to the Court without a jury.

TCT.2.10.020 Formality

Trials shall be conducted by the Court with the degree of formality necessitated by the circumstances. Circumstances which the court may consider in determining the degree of formality to be used include the number of parties, the complexity of the case, the representation or lack thereof of the parties, and such other factors as the Court deems appropriate. In all cases, each party shall be allowed to present evidence and argument and to examine witnesses to the extent deemed appropriate by the Court for full disclosure of the pertinent facts.

TCT.2.10.030 Evidence

Evidence shall be admitted as provided in the Lac Courte Oreilles Rules of Evidence. In cases where circumstances warrant, the court may waive the Chapter TCT.4 –Rules of Evidence, or particular provisions, or other particular application thereof, except those related to privilege pursuant to Chapter TCT.4 –Rules of Evidence. An essential finding of fact may not be based on hearsay unless it would be admissible pursuant to Chapter TCT.4 –Rules of Evidence.

TCT.2.10.040 Court Control

(a) The judge shall establish the order of proof and argument consistent with fair and prompt resolution of the dispute.

(b) The judge may question witnesses.

TCT.2.10.050 Burden of Proof

Where none is otherwise stated, the burden of proof shall be on the party asserting a claim or affirmative defense to prove each element of the claim or affirmative defense by a preponderance of the evidence.

Subchapter TCT.2.11 Judgment

TCT.2.11.010 Failure of Plaintiff to Appear

If the plaintiff fails to appear at the first appearance or for trial, the court may dismiss the complaint. Dismissal shall be without prejudice unless a complaint filed by the plaintiff arising from the same transaction or occurrence has been dismissed on the same grounds once before.

TCT.2.11.020 Failure of Defendant to Appear

If the defendant fails to appear at the first appearance or at trial, the court may enter judgment for plaintiff upon due proof of facts which show the plaintiff is entitled to judgment.

TCT.2.11.030 Summary Judgment

At any time not barred by a scheduling order in the case, a party may move for summary judgment on any claim, counterclaim, cross-claim or third-party claim, which shall be granted if the pleadings, depositions, answers to interrogatories, admissions, and evidentiary affidavits on file show that there is no genuine issue as to any material fact and that the moving or opposing party is entitled to judgment as a matter of law. The court may, in its discretion, hold a non-evidentiary hearing on the motion. Any material upon which the motion is based which is not on file at the time of the filing of the motion shall be filed with the motion. Any counter affidavits or other material in opposition to the motion shall be filed and served within the time set by scheduling order, or if none is in effect, no more than 21 days after service of the motion and supporting papers on the responding party. If the court holds a hearing on the motion, it shall be no sooner than five days after the last date allowed for filing responsive materials. Interlocutory summary judgment may be entered on some but not all claims or issues in a case. The court may enter summary judgment in favor of a party even though the party has not moved for summary judgment, if the materials submitted in support of and opposition to another party's motion for summary judgment show that summary judgment is appropriate under the standards set by this section.

TCT.2.11.040 Judgment After Trial

After trial, the court may give its decision orally immediately, or it may file written findings of fact, conclusions of law, and judgment, no later than 45 days following trial.

TCT.2.11.050 Reopening Judgment

(a) Judgment may be reopened at any time within one year of judgment in any case where service was by mail or publication, the defendant did not receive actual notice of the action and did not appear in the action or otherwise submit to the jurisdiction of the court, and the defendant petitions the court to reopen the judgment within 15 days of receiving actual notice of the action or judgment. Such petition shall be verified and shall state the facts upon which the petitioner bases the claim to reopen under this subparagraph. After hearing, the court may grant the petition to reopen, in which case a trial date shall be set.

(b) Default judgment may be reopened on all grounds other than failure of actual notice, by petition for good cause shown within six months of entry of judgment.

TCT.2.11.060 Costs

The court, in its discretion, may assess costs against a defendant found guilty of violating a tribal ordinance, and may, in its discretion, apportion and assess costs against the respective parties to a civil action. Such costs shall not include attorney fees, except as specifically provided by ordinance. Such costs shall be included in the judgment.

TCT.2.11.070 Disclosure of Assets

When a judgment for money damages is entered under this chapter, the court shall order that the judgment debtor execute, under penalty of contempt, within 15 days of the entry of judgment unless the judgment is satisfied sooner, a statement, on forms provided by the Clerk of Court, disclosing, as of the date of judgment, the debtor's name, residence address, employers and their addresses, frequency of pay periods and gross and net pay per period, any non-USA trust real property interests, cash on hand, financial institutions in which the debtor has any funds and the amount of funds in each institution, the names and addresses of all persons who hold any property belonging to the debtor or who owe any money or property to the debtor, and all items and property worth more than $100.00.

TCT.2.11.080 Effect of Judgment

Entry of a judgment entitles the prevailing party to enforcement by the Tribal Court on its terms. A judgment for a sum certain may be enforced by writ of execution against property of the losing party which is located on the Lac Courte Oreilles Reservation.

TCT.2.11.090 Installment Payments

Upon the request of the party against whom judgment is entered, which can be made orally at the time of the hearing or by petition, and after such inquiry as the judge deems proper, the judge may order the payment of such judgment by installments, in such amounts and such times as the judge deems just and reasonable. Such order shall also provide for a stay of further proceedings to collect the judgment during said party's compliance with the order.

TCT.2.11.100 Effect of Appeal on Judgment

The filing of an appeal with the Lac Courte Oreilles Court of Appeals, pursuant to the requirements of Chapter TCT.3 – Appellate Code, shall not prevent the enforcement of the judgment of the trial court, unless the trial court on its own motion or that of a party orders a stay of enforcement pending the appeal.

Subchapter TCT.2.12 Enforcement of Judgment

TCT.2.12.010 Power of the Court

Upon entry of judgment the Tribal Court may upon application of the prevailing party:

(a) Issue a writ of execution which shall command tribal enforcement personnel to collect the amount of the judgment from the losing party;

(b) Issue a writ of execution which shall command any natural or legal person, partnership, or limited liability entity, or the tribe to pay over to the prevailing party any asset or income held by any such person, partnership, entity or the tribe that is owned by or which may accrue to the benefit of the losing party, provided that no such writ shall run against tribal assets or income without the consent of the tribe;

(c) Issue a subpoena to the losing party, ordering the party to appear before the Court at a time and place specified, and to testify under oath concerning property, or any debts due or to become due to him, place of employment, name of employer, and the amount of wages received, and other pertinent matters that would enable the prevailing party to collect the judgment.

TCT.2.12.020 Writ of Execution

(a) Upon receipt of the writ of execution, tribal law enforcement personnel shall serve the writ upon the losing party and take possession of any non-exempt property as ordered by the Tribal Court. Within 30 days, the tribal law enforcement personnel shall cause a sale of such property. The proceeds of the sale shall be returned to the Tribal Court within 30 days above prescribed. The net proceeds of such sale, after deducting sale expenses and amounts due any secured party under Section TCT.2.12.020(b), below shall be remitted to the prevailing party.

(b) If there exists a perfected security interest in the sold property, there shall be deducted from the proceeds of sale the amount due under the security agreement, and such amount shall be paid to the secured party. In the event a sufficient amount does not remain to satisfy the total amount due under the security agreement, after deducting other sale expenses any amount remaining shall be paid over to the secured party.

TCT.2.12.030 Stay of Writ

The losing party may prevent the issuance of a writ of execution or judicial sale, by presenting to the Tribal Court sufficient proof that said party has made payment of the judgment to the prevailing party, or is willing to commence payment of the judgment to the prevailing party, upon terms acceptable to the prevailing party and the Court. Upon such proof, the Tribal Court shall not issue a writ of execution, and, if one has been issued, shall rescind the order.

TCT.2.12.040 Property Exempt from Execution

The following property shall be exempt from levy and sale under any execution:

(a) All interests in property held in trust by the United States.

(b) All assets and income of the Tribe, unless specifically pledged.

(c) All personal consumer goods, clothing, furniture, utensils, books and appliances, and the like, kept for the personal use of the debtor or the debtor's dependents, not exceeding $5,000 in value.

(d) The tools, implements, materials, stock, apparatus, or other things needed by the judgment debtor to carry on his profession, trade, occupation, or business in which he is principally engaged, not exceeding $7,500 in value.

(e) A dwelling and home appurtenances thereto, owned in fee and occupied by the judgment debtor, not exceeding $40,000 in value excepting mortgage, construction, and tax liens.

(f) All other exempt property.

TCT.2.12.050 Interest on Judgments

Any judgment not paid within the time prescribed by the court, or if no time is prescribed, within 30 days of the date of judgment, shall accrue simple interest on the balance not paid at the rate of 1.5% per month. The filing of an appeal shall not stop the accrual of interest.

Subchapter TCT.2.13 Foreign Judgments

TCT.2.13.010 Definition

In this chapter "foreign judgment" means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in the tribal court. "Judgment debtor" means any person against whom a judgment was entered in any court, and against whom enforcement is sought in Lac Courte Oreilles Tribal Court.

TCT.2.13.020 Filing and Status of Foreign Judgments

(a) A certified copy of any foreign judgment may be filed with the clerk of court. A filing fee for the foreign judgment must be received by the clerk of court for the judgment to take effect.

(b) The clerk of court shall treat the foreign judgment in the same manner as the judgment of the tribal court. A judgment so filed has the same effect and is subject to the same procedures and status as a judgment of tribal court, and may be enforced or satisfied in like manner.

(c) The Tribal Court may, after notice and hearing upon its own motion or motion of a party, have the right to review and modify any foreign order for the enforcement of a judgment, including but not limited to garnishment orders.

TCT.2.13.030 Notice of Filing

(a) At the time of filing of the foreign judgment, the judgment creditor or lawyer shall make and file with the clerk of court an affidavit setting forth the name and last-known post office address of the judgment debtor, the judgment debtor's lawyer, if any, the judgment creditor, and the judgment creditor's lawyer, if any.

(b) Promptly upon filing of the foreign judgment and affidavit, the clerk shall mail notice of the filing to the judgment debtor and the judgment debtor's lawyer as named in the affidavit, and shall record proof of such mailing in the file. The notice shall include the name and address of the judgment creditor and the judgment creditor's lawyer, if any. The judgment creditor may also mail such notice and file proof of such mailing with the clerk of court. Failure of either the clerk or the judgment creditor to mail notice as provided in this section shall not affect the enforceability of the foreign judgment if proof of mailing by the other is filed.

(c) No execution or other process for enforcement of a foreign judgment shall issue until 15 days after the foreign judgment is filed.

TCT.2.13.040 Stay

If the judgment debtor shows the court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court or magistrate shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished security for the satisfaction of the judgment as required by the court in which the judgment was rendered, or if no such security was required, upon furnishing security in an amount and kind satisfactory to the tribal court.

Subchapter TCT.2.14 Contempt of Court

TCT.2.14.010 Definition

Contempt of court means any of the following:

(a) Misconduct in the presence of the court which interferes with a court proceeding or with the administration of justice, or which impairs respect for the court.

(b) Disobedience, resistance, or obstruction of the authority, process, order, or judgment of the court.

(d) Refusal to produce a record, document, or other object.

(e) Refusal or failure as a party or, in a children's court case, of an affected person, to obey an order to appear.

TCT.2.14.020 Power of Court to Punish Contempt of Court

The Tribal Court may impose a sanction for contempt of court.

TCT.2.14.030 Summary Procedure

The judge presiding in an action or proceeding may impose a sanction upon a person who commits a contempt of court in the actual presence of the court. The judge shall impose the sanction immediately after the contempt of court and only for the purpose of preserving order in the court and preserving the authority and dignity of the court. A violation of Section TCT.2.14.010 Section TCT.2.14.010(c) or Section TCT.2.14.010(e) may be considered under this section even though the contemnor does not appear in court.

TCT.2.14.040 Nonsummary Procedure

A person aggrieved by a contempt of court may seek imposition of a sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a sanction.

TCT.2.14.050 Sanctions Authorized

The court may impose one or more of the following sanctions:

(a) Payment of a sum of money sufficient to compensate for a loss or injury suffered by the party as a result of the contempt of court.

(b) A forfeiture not to exceed $5,000 for each instance of contempt, not to exceed $5,000 for all instances, occurring in one calendar day or for each calendar day the contempt of court continues.

(d) Expulsion from Tribal Court.

(e) Execution of a capias warrant for failing to appear to a court order to appear in person.

(f) Jailing for no more than five days for each instance of contempt.

(g) An award of costs and attorney fees occasioned by the contempt of court.

(h) A sanction other than the sanctions specified in Section TCT.2.14.050(a) of this ordinance, if the court specifically finds that those sanctions would be ineffectual to terminate a continuing contempt of court.

TCT.2.14.060 Enforcement of Monetary Sanctions

Any sanction imposed under Section TCT.2.14.050 Section TCT.2.14.050(a), Section TCT.2.14.050(b), or Section TCT.2.14.050(g) may be enforced by the court or aggrieved party by any procedure provided in Section TCT.2.12.010 - Section TCT.2.12.050. As part of the contempt proceeding the court may of its own motion or on motion of any party order any monetary sanction under Section TCT.2.14.050 Section TCT.2.14.050(a), Section TCT.2.14.050(b), or Section TCT.2.14.050(g), and the costs of incarceration under Section TCT.2.14.050(f) to be paid from any funds held by the Tribe, or which may in the future be held by the Tribe, for the individual who is the subject of the order, and any such order for payment shall have priority over any other disbursement of such funds.

TCT.2.14.070 Defenses

The good faith protection of the alleged contemnor, or of a child, or of any other third party whom the alleged contemnor is privileged to defend, from imminent physical harm or the threat of imminent physical harm is an affirmative defense to an allegation of contempt.

Subchapter TCT.2.15 Fees and Costs

TCT.2.15.010 Collection of Fees

The Court shall set, and the Clerk of Court shall collect fees for the services of the Court, including but not limited to the following:

(a) Filing of summons and complaint.

(b) Service of summons and complaint by mail.

(d) Issuance of writ of execution.

(e) Provision of copies, and provision of certified copies.

(f) Provision of transcripts.

(g) Bar admission fees.

TCT.2.15.020 Fees and Costs Waiver for Indigents

(a) Any Tribal Member may commence or defend any action or special proceeding in LCO Tribal Court, without being required to pay a filing fee, upon order of the Court based on a finding that because of poverty the person is unable to pay the costs of the action or special proceeding,

(b) A person seeking an order under par. (a) shall file in the court a Petition for Waiver of Filing and Service Fees-Affidavit of Indigence and Order.

(c) The court shall make a finding of poverty and issue an order under par. (a) if the affidavit demonstrates any of the following:

(1) That the person is a recipient of means-tested public assistance, including aid to families with dependent children, relief provided by counties under Wis. Stat. §59.53 (21), medical assistance, supplemental security income, food stamps or benefits received by veterans under Wis. Stat. §45.40 (1m) or under 38 USC §§ 1501 to 1562.

(2) That the person is represented by an attorney through a legal services program for indigent persons.

(3) That the person is otherwise unable, because of poverty, to pay the costs of the action, proceeding or appeal. In determining the person's ability under this subdivision to pay the fees and costs, the court shall consider the person's household size, income, expenses, assets and debts and the federal poverty guidelines under 42 USC §9902 (2).

(d) The Court shall not waive fees and costs for any Tribal member who is incarcerated at the time of filing a cause of action, or who has an incarceration date pending within thirty days of filing.

Subchapter TCT.2.16 Protection of Court, Law Enforcement and Social Services Personnel

TCT.2.16.010 Violation

Any person who harasses, or threatens bodily harm to, any judge, magistrate or other court personnel, advocate, attorney, law enforcement, or social services personnel with the intent or effect of discouraging that person from discharging his or her duties under any ordinance of the tribe or rendering assistance to anyone seeking protection of rights under any ordinance of the Tribe may be prosecuted by the Tribe for violation of this section and shall be subject to a civil forfeiture not to exceed $5,000 for each violation.

TCT.2.16.020 Definition

"Harassment" means, for purposes of this chapter:

(a) Striking, shoving, kicking, or otherwise subjecting another to physical contact, or attempting or threatening to do the same, or

(b) Engaging in a course of conduct or committing at least two acts which harass or intimidate another person and which serve no legitimate purpose.

TCT.2.16.030 Intent

Intent may be determined by the circumstance surrounding the acts forming the basis of the alleged violation.

TCT.2.16.040 Prosecution

Any person who believes that he or she has been the victim of a violation of Section TCT.2.16.010 may report such alleged violation to the office of the tribal prosecutor for a determination of whether the alleged violation shall be prosecuted. All actions under this section shall be brought by the Tribe in the name of the Tribe, and all forfeitures awarded shall be awarded to the Tribe.

Chapter TCT.3 Court of Appeals Code of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians

Subchapter TCT.3.1 General Provisions

TCT.3.1.010 Creation of the Lac Courte Oreilles Court of Appeals

A Court of Appeals is hereby established, consisting of the judges of other tribal courts who from time to time consent to sit on a panel of three judges to hear appeals cases. One of the three judges on every panel must have graduated from an accredited law school and be a current member of the bar of any state ("Attorney Judge").

TCT.3.1.020 Maintenance of Court of Appeals Roster

The Clerk of the Court of Appeals shall maintain a roster, which shall be updated from time to time, of the judges who have consented to serve on the Court of Appeals.

Subchapter TCT.3.2 Definitions

TCT.3.2.010 Definitions

(a) "Appellant" means the party filing an appeal.

(b) "Court of Appeals" means the Tribe's appellate court as established by this chapter.

(d) "Tribal Governing Board" means the Tribal Governing Board of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

(e) "Tribal Court" means the trial level court of the Tribe.

(f) "Tribe" means the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

Subchapter TCT.3.3 Jurisdiction

TCT.3.3.010 Exclusive Jurisdiction

(a) The Court of Appeals shall have exclusive jurisdiction to review all decisions of the Tribal Court as provided herein. The decision of the Court of Appeals shall be final as to all such review.

(b) In a case properly filed under Subchapter TCT.2.9, and properly appealed under this chapter, the jurisdiction of the Court of Appeals shall include the authority to determine the constitutionality of acts of the Tribal Governing Board.

(Res. No. 07-72.)

Prior Codifications

§TCT.3.3.010 was formerly codified as LCOTCC §2.4

Commentary

Section TCT.3.3.010(a) safeguards the authority of the Court of Appeals to perform its review function without interference from other governmental agencies either before or after it has acted.

Section TCT.3.3.010(b) establishes the authority of the Court of Appeals to review the constitutionality of Tribal Governing Board acts of whatever nature. Because tribal constitutions do not typically provide for a separation of powers between the judiciary and the other functions of the government, some question may be raised as to the implicit authority of the courts to review the acts of tribal government. Whatever the correct answer is to that question, this subsection delegates whatever authority is necessary to perform such review.

TCT.3.3.020 Acceptance of an Appeal

The only review of a Tribal Court order or judgment shall be an appeal to the Lac Courte Oreilles Court of Appeals, as provided in this Code. For all appeals, the Attorney Judge of the Court of Appeals shall conduct a preliminary review of the record on appeal and determine whether the appeal presents an error of law or fact, which may warrant reversal or remand, based upon application of the standard of review stated in Section TCT.3.4.050. The Attorney Judge may request additional information before any decision is made including, but not limited to, written briefs and/or a hearing. If the Attorney Judge determines that no such error or omission exits, the Attorney Judge shall explain the grounds for dismissal in a written decision. If the Attorney Judge determines that such an issue may exist, the appeal shall be forwarded to the full three- Judge panel which includes the Attorney Judge for a decision.

TCT.3.3.030 Who May Appeal

Any party in a case aggrieved by a decision of the Tribal Court in that case may initiate an appeal.

TCT.3.3.040 What May Be Appealed

Except as otherwise provided by tribal law or resolution, any final judgment or order of the Tribal Court may be appealed to the Court of Appeals. A final judgment or order is one which disposes of all issues in litigation between at least two parties to a case.

(Res. No. 07-72.)

Prior Codifications

§TCT.3.3.040 was formerly codified as LCOTCC §2.7

Commentary

Nothing but a final judgment or order may be appealed. If an order in a case leaves other matters to be decided, and does not completely settle all disputed issues between the parties, so that the Tribal Court still has work to do, then the order is not final and an appeal cannot be filed. In cases involving multiple parties, an order or judgment may dispose of all issues between two or more of the parties, and would therefore be appealable. In cases involving multiple issues, an order disposing of one or more issues may leave others as yet unresolved and would therefore not be appealable.

TCT.3.3.050 When an Appeal May Be Taken

(a) A notice of appeal must be filed with the Clerk of the Tribal Court, and served on all other parties, no later than 30 days after the entry of the final judgment or order from which the appeal is taken. If one party has timely and properly filed a notice of appeal, any other party in the case on appeal may file a notice of appeal within 15 days of service of the initial party's notice of appeal.

(b) A final judgment or order is entered when it is filed with the Clerk of Court.

Appeals of subject matter jurisdiction in the appeal.

(Res. No. 07-72.)

Prior Codifications

§TCT.3.3.050 was formerly codified as LCOTCC §2.8

Commentary

The appeal is started by filing the notice of appeal, a simple form for which a model is provided as Official Form No. 1. A party other than the initial appellant may decide to appeal in light of the initial appellant's appeal and is therefore allowed additional time to do so after service of the first notice of appeal. The interest of parties in the security of judgments entered by the court requires that an appeal must be filed within the time prescribed or be forever waived.

Calculation of time is prescribed by Section TCT.3.4.080.

Proper methods of service are prescribed by Section TCT.3.4.090.

Subchapter TCT.3.4 Procedure

TCT.3.4.010 How an Appeal May Be Taken

(a) A notice of appeal shall be filed by any party seeking review of a final judgment or order of the Tribal Court. The notice of appeal shall be filed and served, together with the request for transcript required by section 2.9(c), within the time prescribed by sec. 2.8 of this chapter. The notice of appeal shall bear the caption and case number of the case in the Tribal Court and shall be labeled "Notice of Appeal." The notice of appeal shall identify by date, judge, and case number the judgment or order appealed, and shall state the substance of the judgment or order and whether the appellant appeals from the entirety of the judgment or order or from only part thereof, and if the latter, shall specify the part thereof. The notice of appeal shall also include a brief statement of the grounds for appeal and shall specify the precise relief sought. No appeal shall be dismissed for any formal defects in the notice of appeal as long as the matter appealed is clearly identified and filing and service are timely and properly made. If a notice of appeal does not contain every item required by this subsection, the Court of Appeals may order that the defects be corrected before the case proceeds.

(b) Notice of Appeal shall be accompanied by a cash deposit equal to the amount of the forfeiture or judgment plus costs, and payment of the filing fee. The Clerk of Court shall not accept for filing a notice of appeal that is not accompanied by the cash deposit and filing fee or an order waiving fees. Upon motion and at its discretion, the Tribal Court may postpone the provision of the cash deposit or allow alternative security to be furnished. The appeal will be dismissed if the cash deposit is not paid or waived. No filing fee shall be required in an appeal filed by the Tribe.

(c) A request for transcript shall be filed with the Clerk of the Tribal Court at the same time the notice of appeal is filed. The request for transcript shall specify those proceedings, or parts thereof, to which any reference will be made in the appeal proceedings and for which the official transcript will be required by the Court of Appeals for its review. Any other party may request transcription of additional proceedings or parts thereof by filing a request no later than 15 days after service of the appellant's notice of appeal and request for transcript. A party requesting a transcript shall the pay the fee prescribed by Section TCT.3.4.100(b). No fee shall be required for any transcript requested by the Tribe.

(d) The filing of an appeal does not constitute an automatic stay of the tribal court's judgment or order under Section TCT.2.11.100. A motion seeking a stay may be addressed to the tribal court before or after the filing of the notice of appeal.

(Res. No. 07-72.)

Prior Codifications

§TCT.3.4.010 was formerly codified as LCOTCC §2.9

Commentary

The essence of the notice of appeal is to give fair notice to the other parties that what would otherwise be a final disposition of a case at the tribal court level will not be final, and to allow the other parties to begin preparation for responding to the appeal or for filing a cross-appeal. The notice of appeal provided for in this section also requires a statement of the grounds for appeal and the relief sought, in the event a self-represented appellant elects not to file a brief. Any party including in the notice of appeal the items listed in this subsection will be deemed to have clearly identified the matter appealed. A notice of appeal that fails to include all of the items listed in this subsection, may cause the Court to expand the time for response, dismiss the appeal, or make other appropriate orders.

TCT.3.4.020 Clerical Functions upon Filing of Appeal

(a) Upon receipt of the notice of appeal, cash deposit, filing fee, and request for transcript, the Clerk of the Tribal Court shall forward to the Clerk of the Court of Appeals the notice of appeal and filing fee and shall prepare the record on appeal. The record on appeal shall consist of all papers filed by the parties or the court, and the transcript requested by appellant or any other party, unless limited by stipulation of the parties.

(b) Upon receipt of the notice of appeal and the filing fee, the Clerk of the Court of Appeals shall docket the appeal and shall randomly select, from the roster maintained pursuant to Section TCT.3.1.020, a panel of three judges to serve on the appeal. If any judge refuses to serve or is disqualified from serving under Section TCT.2.4.050, the clerk will randomly select another judge to replace him or her.

(c) The Clerk of the Tribal Court shall file the completed record on appeal with the Clerk of the Court of Appeals, and shall serve notice thereof, together with a copy of any transcript included in the record, on each of the parties.

TCT.3.4.030 Briefing and Oral Argument

(a) If the appellant intends to submit a brief, he or she shall file and serve a brief within 45 days of the filing of the record on appeal.

(b) If the respondent intends to submit a brief, he or she shall file and serve a response brief within 30 days of service of appellant's brief, or within 75 days of the filing of the record on appeal, whichever occurs first.

(d) Briefs shall contain an argument and conclusion specifying the precise relief sought. The initial brief filed shall also include a statement of the case and statement of the issues presented on appeal and how the Tribal Court decided them.

(e) Briefs shall be typewritten or computer word-processed, double-spaced in a 12 point or larger font, on white 8 ½ by 11 inch paper, and shall not exceed 50 pages in length, except that reply briefs shall not exceed 15 pages in length, exclusive of any table of contents and table of authorities included. The original and three copies of each brief shall be filed with the Clerk of the Court of Appeals.

(f) Oral argument may be permitted in the discretion of the Court. Whether argument is allowed, and if so the length of argument allowed, shall be set by the Court of Appeals panel.

(Res. No. 07-72.)

Prior Codifications

§TCT.3.4.030 was formerly codified as LCOTCC §2.11

Commentary

The above rules are considered the minimum necessary for allowing the Court of Appeals to conduct its business in an efficient and just fashion. Briefing rules are purposely looser than in other jurisdictions to allow non-lawyers to represent themselves, or if otherwise permitted by the rules of the Tribal Court (see Chapter TCT.2), to represent others. Briefs are made optional, in recognition that some self-represented parties may not wish to file briefs but may rather wish to present their cases solely in oral argument. The notice of appeal [see Sec. 2.9(a)] accordingly requires a short statement of the grounds for appeal and of the relief sought. A party may or may not be disadvantaged by failure to file a brief.

TCT.3.4.040 Decisions

(a) All decisions of the Court of Appeals shall be in writing, shall specify the relief granted, if any, and the Court's rationale therefore. The Clerk of Court of Appeals shall, within two days of their filing, furnish copies of the decision and any order of the Court of Appeals to the Tribal Court and the parties.

(b) All decisions and dissents shall be written by the most senior judge voting with the majority or dissent, unless assigned by that judge to another judge. Any judge dissenting or concurring shall file a written opinion, or join in a written opinion filed by another judge. The most senior judge is the judge having the longest term of continuous service as a judge at the time.

(c) A petition for reconsideration may be filed by an aggrieved party within 15 days of the filing of any decision or order of the Court of Appeals. The petition for reconsideration shall state the specific change in the decision sought, and all reasons, and the authority therefore, for the change. Any non-petitioning party shall have 15 days from the date of service of the petition to respond. Oral argument on a petition for reconsideration is discretionary with the Court.

(d) The Tribal Court shall in all respects be bound by the decisions and orders of the Court of Appeals.

TCT.3.4.050 Standard of Review

The Court of Appeals shall apply the following standards of review:

(a) A finding of fact by a judge shall be sustained unless it is clearly erroneous.

(b) A factual inference drawn by a judge shall be reviewed as a finding of fact as long as more than one reasonable inference can be drawn from the facts.

(d) Conclusions of law are reviewed de novo.

(e) A stipulated, uncontested, or documentary fact is reviewed as a conclusion of law.

(f) The meaning of an unambiguous contract is reviewed as a conclusion of law.

(g) A mixed issue of fact and law is reviewed according to the appropriate standard for each part.

(h) Whether a finding of fact or a conclusion of law has been properly labeled as such by the Tribal Court is reviewed as a conclusion of law.

(i) A discretionary determination shall be sustained if the record reflects that the Tribal Court exercised discretion and applied the appropriate legal standard to the admissible facts of record.

(j) Sentencing and the imposition of fines, forfeitures and other penalties or remedial measures, not including the assessment of damages, shall be reviewed as a discretionary determination.

(k) The Court of Appeals shall not substitute its judgment for that of the Tribal Court on a matter committed to the discretion of the Tribal Court.

(Res. No. 07-72.)

Prior Codifications

§TCT.3.4.050 was formerly codified as LCOTCC §2.13

Commentary

The standard of review defines the relationship between the trial court and the appeals court. The standard of review seeks to allocate to each court that part of the judicial work which it can best do. The trial court is in the best position to weigh the evidence and assess witness credibility and is therefore sustained on such matters unless its findings are clearly erroneous. The trial court is in no better position to interpret the law than the appeals court; in fact, the appeals court has the luxury of being able to analyze the law away from the heat of trial and can better perform this task itself. The appeals court can therefore look at questions of law afresh and need not defer at all to the trial court. Discretionary questions by their nature can result in different decisions when put to different decision makers. The function of the appeals court in reviewing a discretionary decision is not to decide the result it would choose, but to determine whether the trial court in fact exercised discretion and made a decision based on the applicable facts and law. The exercise of discretion is more than bald decision-making and it is the task of the appeals court to see that the appropriate process was followed.

Specific instances of common standard of review problems are listed in this section; for instance the definition of sentencing as a discretionary determination. These instances are not exclusive. The Tribal Governing Board may provide by ordinance and the courts by decision the classification of other matters as factual, legal, or discretionary.

TCT.3.4.060 Obligations of the Tribal Court

(a) In all matters tried to the court, the judge shall make separate findings of fact and conclusions of law. It is sufficient if the findings and conclusions are made orally on the record in open court, or if they are contained in a written opinion.

(b) If the Tribal Court fails to make findings of fact, the Court of Appeals may affirm the judgment if the record supports it, reverse if the record does not support it, or remand for findings and conclusions.

TCT.3.4.070 Preservation of Issues for Appeal

(a) Absent a compelling reason, issues not raised before the Tribal Court will not be heard before the Court of Appeals.

(b) An issue raised but not argued orally or by brief is deemed abandoned.

(d) Facts not in the trial record shall not be presented in any manner to the Court of Appeals.

(Res. No. 07-72.)

Prior Codifications

§TCT.3.4.070 was formerly codified as LCOTCC §2.15

Commentary

Subsections (a) and (d) preserve the basic function of the appeals court as a court of review, not a court of initial determination. The trial court should have the first opportunity to consider all issues in litigation and to see that the record is fully developed.

Section TCT.3.4.070(b) protects the court and parties from expending energy on issues that an appellant has no intention of pursuing.

Section TCT.3.4.070(c) states the principle that a court will not decide issues over which there is no current controversy. The controversy that existed during trial may be over by the time of appeal. The exception to this rule is the type of case that may occur again but is likely never to survive long enough to receive appellate review. For instance, an individual may wish to challenge a court's suspension of his hunting and fishing rights for a period of three months, but by the completion of the appellate briefing schedule the suspension would be ended and the case moot. Since the issue could recur, but would always become moot before it was ready for decision, the mootness doctrine would be set aside.

TCT.3.4.080 Time

(a) In computing any period of time prescribed or allowed by this ordinance or by order of the Court of Appeals, the day of the act, event, or default from which the period of time begins to run is not included. The last day of the period is computed unless it is a Saturday, Sunday, legal holiday, or day upon which the office of the Clerk of Tribal court is not open for business. When the period of time is ten days or less, Saturdays, Sundays, legal holidays, or days upon which the office of the Clerk of Tribal Court is not open for business shall not be included in the period.

(b) Whenever a party has a right or is required to do some act within a prescribed period of time following service of a notice or paper on the party, and when that notice or paper is served by mail, 3 days shall be added to the prescribed period.

TCT.3.4.090 Service

(a) Any paper filed with the Clerk of Tribal Court or the Clerk of the Court of Appeals shall be served upon each party. Filing constitutes the certification of the party or the party's attorney or lay advocate that service has been properly made.

(b) Service shall be made upon a party's attorney, if any, or if the party is not represented by counsel upon the party.

TCT.3.4.100 Fees

The Clerk of the Tribal Court shall collect the following fees:

(a) For filing of the notice of appeal, $100.00, which includes preparation of the first ten pages of a transcript.

(b) For the preparation of a transcript, a charge after the tenth page, to be set by order of the Tribal Court. All transcript charges shall be paid in advance.

(c) The Tribal Court may order the waiver of the fees provided for in this section, upon the filing of a sufficient affidavit of indigency.

(d) During the appeal, the parties shall bear their own costs of an appeal.

(e) Costs associated with copying court files, tapes, documents, other evidence and other portions of the record shall be paid by the party requesting such copies.

Subchapter TCT.3.5 Practice

TCT.3.5.010 Practice Before the Court of Appeals

Any individual authorized to practice before the Tribal Court shall be authorized to practice before the Court of Appeals.

TCT.3.5.020 Motions Before the Court of Appeals

Any party to an appeal may file such motions as appear necessary, together with supporting briefs and affidavits, as appropriate. Such motions shall be filed with the Clerk of the Court of Appeals. All motions before the Court of Appeals shall be placed on a briefing schedule by the chief judge, who may order oral argument at his or her discretion.

TCT.3.5.030 Frivolous Appeals

In completing the review under sec. 2.5, the Attorney Judge in his/her discretion may order a party, his or her attorney or lay advocate, or both, filing or pursuing a frivolous appeal, to pay the costs and reasonable attorney fees incurred by the other party or parties in responding to the appeal and may assess expenses incurred by the Court to the Appellant. If an Appellant has been granted a waiver of fees, the Court may assess a duty of community service to the Appellant.

TCT.3.5.040 Reservation of Rights

This chapter may be amended or rescinded by the Tribal Governing Board at any time.

Chapter TCT.4 Rules of Evidence of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians

Subchapter TCT.4.1 General

TCT.4.1.010 Scope

These rules shall apply to all proceedings in Tribal Court. The Tribal Court, subject to the decisions of the Court of Appeals, shall interpret and apply these rules. The policies and rationales underlying the Federal Rules of Evidence and the Wisconsin Rules of Evidence may be cited as persuasive authority, but the Court may base its rulings on alternative policies and rationales that are more suited to the Tribe, and the Federal Rules and Wisconsin Rules shall not be controlling. The Tribal Court shall in all cases be allowed to adjust the application of these rules to fit the circumstances of the case as provided in Section TCT.2.10.030.

TCT.4.1.020 Rulings on Evidence

No appeal may be based on an evidentiary ruling unless a substantial right of a party is affected and

(a) An objection or motion to strike is timely made, stating the specific ground of objection, unless the specific ground was clear from the context; and

(b) In the case of a ruling excluding evidence an offer of proof in the form prescribed by the court is made.

Subchapter TCT.4.2 Relevancy

TCT.4.2.010 Relevancy Defined

"Relevant evidence" is any evidence tending to make the existence of any fact of consequence more or less probable.

TCT.4.2.020 Admissibility

Only relevant evidence is admissible.

TCT.4.2.030 Exclusion of Relevant Evidence: General Rule

Relevant evidence may be excluded if its admission would violate any other section of this chapter, or if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or if it would be cumulative, a waste of time, or cause undue delay.

TCT.4.2.040 Exclusion of Relevant Evidence: Specific Rules

Evidence of the following is not admissible, even if relevant:

(a) Statements made in settlement negotiations or mediation, compromises, or offers to compromise, when offered to prove liability or the lack thereof.

(b) Corrective measures taken after an event, which would have made the event less likely to occur, when offered to prove negligence or culpability.

(c) Payments, offers to pay, and promises to pay for medical, hospital, or disability expenses, when offered to prove liability.

(d) Pleas of no contest or subsequently withdrawn pleas of guilty, in any court, when offered against the person making the plea, to prove liability.

(e) Existence of insurance against liability, or lack thereof, when offered to prove negligence or culpability.

Subchapter TCT.4.3 Privileges

TCT.4.3.010 Privileges: General

(a) Except as provided by this section, the Indian Civil Rights Act, or the United States constitution, as applicable, no person is privileged to refuse to be a witness, to refuse to disclose any matter, to refuse to produce any object or writing, or to prevent another from doing any of the above.

(b) A confidential communication is one not intended to be disclosed to any third party except the agents or colleagues of the person to whom the disclosure is made, in the course of furthering the purpose for which the disclosure was made.

(c) A privilege may be asserted by the person making the communication, or by the person to whom the communication was made, on behalf of that person, unless the person making the communication has validly waived the privilege.

(d) Any person making a communication may waive the privilege by so testifying in open court.

(e) No inference shall be drawn from the assertion of a lawful privilege.

TCT.4.3.020 Attorney-Client Privilege

A client has a privilege to refuse to disclose and to prevent any other person from disclosing any confidential communication between the client and the attorney or attorney's agent, made for the purpose of obtaining legal assistance, except as stated below. For the purpose of this section, "attorney" includes lay advocate.

(a) When such communication was used to commit or plan a crime.

(b) When two or more parties claim some right through the same deceased client, and the communication is relevant to the claim.

(c) When the communication is relevant to a claim by the client against the attorney or by the attorney against the client.

(d) When the attorney attested to a document and a communication is relevant to an issue related to the attested document.

(e) When an issue exists between two or more joint clients, and a relevant communication to the attorney was made in their common interest by one of the clients.

TCT.4.3.030 Health Care Provider-Patient Privilege

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication between the patient and a physician, registered nurse, licensed psychologist, psychiatric social worker, or chiropractor, or any person reasonably believed by the patient to be one of the above, made for the purpose of obtaining diagnosis or treatment of the patient's physical, mental or emotional condition, except:

(a) When the physical, mental, or emotional health of a patient is relied on by the patient as an element of his claim or defense.

(b) When the court orders a physical, mental, or emotional examination of the patient, and the results of the examination, including any review of records conducted, are offered in the proceeding for which the examination was ordered.

(c) When an examination of a physically or emotionally abused or injured child creates a reasonable ground for an opinion that the condition was other than accidentally caused, or was inflicted by another.

(d) When the results of chemical tests for intoxication or blood alcohol concentration are offered.

TCT.4.3.040 Husband-Wife Privilege

A person has a privilege to prevent his or her spouse or former spouse from testifying against him or her as to any confidential communication made by him or her to the other during the marriage, except when both spouses are parties to the action.

TCT.4.3.050 Spiritual Advisor Privilege

A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication to his or her spiritual advisor in the advisor's capacity as such.

TCT.4.3.060 Honesty Testing Devices

A person has a privilege to refuse to disclose, and to prevent another from disclosing, any oral, written, or other communication made in the course of, and any results deriving from, any polygraph, voice stress analysis, psychological stress evaluator, or other test purporting to test honesty, in which the person was the test subject.

TCT.4.3.070 Ballot

A person has a privilege to refuse to disclose and to prevent another person from disclosing his or her vote in any secret ballot, unless the ballot was cast illegally.

TCT.4.3.080 Mediation or Peacemaking

(a) No oral or written communication made or presented in the course of a mediation or peacemaking session or meeting, or made to a mediator or peacemaker in the course of the mediator's or peacemaker's duties in relation to a particular case, may be admissible in any judicial or administrative proceeding, nor shall any such communication be subject to discovery or compulsory process.

(b) Exception. Any mediator, peacemaker, or any other person otherwise required to report child abuse under any state or tribal law, may report a communication in peacemaking pursuant to such law without violating this section.

Subchapter TCT.4.4 Witnesses

TCT.4.4.010 Oath

Prior to testifying, every witness shall indicate by solemn oath or affirmation, in a form prescribed by the Tribal Court, that he or she shall testify truthfully. A child or other person who may not understand the significance of an oath or affirmation may be allowed to testify if the court is satisfied that the witness understands the difference between truth and falsity and understands that he or she must tell the truth.

TCT.4.4.020 Personal Knowledge

A witness may only testify as to facts within his or her personal knowledge.

TCT.4.4.030 Opinions

A witness may testify as to an opinion or inference only to the extent that the witness's observations, experience, education, and training qualify the witness to offer the opinion or inference.

TCT.4.4.040 Judge, Advocate, Attorney as Witness

The judge presiding at a trial may not testify as a witness. No advocate or attorney representing a party in a case may testify as a witness in the case.

TCT.4.4.050 Character Evidence

A witness's character for truthfulness may be attacked by evidence of reputation, opinion, or the testimony of the witness on direct or cross-examination, and if so attacked may be supported by evidence of the types listed above.

TCT.4.4.060 Impeachment by Conviction of Crime

The credibility of a witness may be impeached by evidence of the witness's conviction of a crime.

TCT.4.4.070 Prior Statements

(a) A witness examined about a prior statement made by him or her need not be shown the statement during the examination, but the statement shall be shown to opposing counsel upon completion of that part of the examination.

(b) Extrinsic evidence of a witness's prior inconsistent statement is admissible only if the witness was examined so as to give him or her an opportunity to explain or deny the statement, or as the interests of justice require.

TCT.4.4.080 Court Control

(a) The court shall exercise control over the mode and order of interrogating witnesses to avoid waste of time and to protect witnesses from harassment.

(b) The scope of cross-examination extends to all relevant matters. The court may limit cross examination to those matters inquired into upon direct examination.

(c) Leading questions may not be used on direct examination except in introductory matters, matters not in dispute, or as deemed necessary by the court to develop testimony. A party may call an adverse party or a witness identified with him or her and interrogate him or her by leading questions.

(d) The court may call witnesses on its own motion, subject to cross-examination by the parties, and may interrogate witnesses.

TCT.4.4.090 Exclusion of Witnesses

At the request of a party, the Court shall order witnesses excluded from the courtroom except while testifying, shall order witnesses to be kept separate from each other, shall order witnesses not to communicate with each other, and shall order such other measures as in the court's discretion shall prevent undue influence or taint upon testimony.

Subchapter TCT.4.5 Writings

TCT.4.5.010 Writings Used to Refresh Recollection

(a) A witness may refer to any writing if necessary or helpful to refresh his or her recollection for the purpose of testifying, and any writing so referred to, either before or during testimony, shall be made available to an adverse party upon conclusion of that part of the examination.

(b) An adverse party may cross-examine the witness on the writing, and may introduce in evidence those portions of the writing that relate to the witness's testimony.

(c) If a claim is made that for any reason the writing cannot be made available to an adverse party, the judge shall examine the writing in chambers and shall make such orders as justice requires, including striking all testimony of the witness subsequent to the use of the writing.

TCT.4.5.020 Recorded Recollection

Any writing shown to have been made by the witness when the matter was fresh in his or her mind, and shown to reflect that knowledge correctly, concerning a matter about which the witness now has insufficient recollection to enable him or her to testify fully and accurately, is admissible.

TCT.4.5.030 Specific Writings

Writings of the character set forth in this section are admissible, subject to the authentication requirements of Section TCT.4.5.040.

(a) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness.

(b) Health care records.

(1) "Health care records" are those records maintained by a hospital, physician, licensed psychologist, psychiatric social worker, or dentist.

(2) When witness unnecessary. A custodian or other qualified witness is unnecessary if the party who intends to offer hospital records into evidence at a trial or hearing files with the court at least 10 days before the trial or hearing an accurate, legible and complete duplicate of the hospital records for a stated period, certified by the record custodian, and notifies all appearing parties at least 10 days before the trial or hearing that such records for the stated period have been filed.

(3) Subpoena limitations. Health care records maintained off the Reservation are subject to subpoena only as provided by the law of the state in which the records are located. Health care records maintained on the Reservation are subject to subpoena only if the health care agency is a party to the action, or if authorized by an ex parte order of a judge for cause shown and upon terms, of if upon a properly authorized request from an attorney, the health care agency refuses, fails, or neglects to supply within 2 business days a legible certified duplicate of its records at a minimum charge of $5 per request. The rate shall not exceed 20 cents per record page and $5 per x-ray copy.

(c) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law, or (c) in civil cases and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

(d) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the record thereof was made to a public office pursuant to requirements of law.

(e) Records of religious organizations. Statements of births, marriages, divorces, deaths, whether a child is marital or nonmarital, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(f) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(g) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings or rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(h) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original record document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorized the recording of documents of that kind in that office.

(i) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(j) Statements in ancient documents. Statements in a document in existence 20 years or more whose authenticity is established.

(k) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(l) Learned treatises. A published treatise, periodical or pamphlet on a subject of history, science or art is admissible as tending to prove the truth of a matter stated therein if the judge takes judicial notice, or a witness expert in the subject testifies, that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as an expert in the subject.

(1) No published treatise, periodical or pamphlet constituting a reliable authority on a subject of history, science or art may be received in evidence, except for impeachment on cross-examination, unless the party proposing to offer such document in evidence serves notice in writing upon opposing counsel at least 30 days before trial, or within such other time as set by the court. The notice shall fully describe the document which the party proposes to offer, giving the name of such document, the name of the author, the date of publication, the name of the publisher, and specifically designating the portion thereof to be offered. The offering party shall deliver with the notice a copy of the document or of the portion thereof to be offered.

(2) No rebutting published treatise, periodical or pamphlet constituting a reliable authority on a subject of history, science or art shall be received in evidence unless the party proposing to offer the same shall, not later than 20 days after service of the notice described in par. (1) or such other time as set by the court, serve notice similar to that provided in par. (1) upon counsel who has served the original notice. The party shall deliver with the notice a copy of the document or of the portion thereof to be offered.

(3) The court may, for cause shown prior to or at the trial, relieve the party from the requirements of this section in order to prevent a manifest injustice.

(m) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of no contest), adjudging a person guilty of a crime to prove any fact essential to sustain judgment, or to impeach. The pendency of an appeal may be shown but does not affect admissibility.

(n) Judgment as to personal, family or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

(o) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, at the instance or against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, with motive and interest similar to those of the party against whom now offered, by a witness who is now physically unavailable to testify, refuses to testify, or lacks memory sufficient to testify on the subject.

(p) Enrollment records. Evidence from the Lac Courte Oreilles Enrollment Office showing enrollment or lack of enrollment in the Lac Courte Oreilles Tribe, not including supporting documentation from the enrollment files unless otherwise admissible under these rules.

TCT.4.5.040 Authentication

(a) No writing, photograph, or other documentary evidence may be admitted unless evidence is supplied sufficient to prove that the matter in question is what it purports to be.

(b) No extrinsic evidence of authenticity is required for any of the following:

(1) Public documents under seal. A document bearing a seal purporting to be that of any tribe of or of the United States, or of any state, district, commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department officer or agency thereof, and a signature purporting to be an attestation or execution.

(2) Public documents not under seal. A document purporting to bear the signature in his official capacity of an officer or employee of any entity included in sub. (1), having no seal, if the public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3) Public documents of foreign countries. A document purporting to be executed or attested in his official capacity by a person authorized by the law of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (a) of the executing or attesting person, or (b) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the judge may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make certification, by certificate complying with sub. (1), (2) or (3) or complying with any statute or rule adopted by the Tribal Court or Court of Appeals.

(5) Official publications. Books, pamphlets or other publications purporting to be issued by public authority.

(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.

(7) Trade inscriptions and the like. Inscriptions, signs, tags or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(8) Acknowledged and authenticated documents. Documents accompanied by a certificate of acknowledgment under the hand and seal of rubber stamp of a notary public or other person authorized by law to take acknowledgments or any public officer entitled by virtue of his public office to administer oaths or authenticated or acknowledged as otherwise authorized by statute.

(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by the Uniform Commercial Code.

(10) Health care records. Records filed with the court pursuant to Section TCT.4.5.030(b).

(c) Subscribing witness's testimony. The testimony of a subscribing witness is not necessary to authenticate a writing that is otherwise admissible.

Subchapter TCT.4.6 Hearsay

TCT.4.6.010 Hearsay Definitions

(a) Statement. A ''statement" is (a) an oral or written assertion or (b) nonverbal conduct of a person, if it is intended as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.

(c) Hearsay. "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.

TCT.4.6.020 Hearsay Exclusions

A statement meeting the requirements of Section TCT.4.6.010 will nevertheless not be considered hearsay if:

(a) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

(1) Inconsistent with his testimony, or

(2) Consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or

(3) One of identification of a person made soon after perceiving him; or

(b) Admission by party opponent. The statement is offered against a party and is:

(1) His own statement, in either his individual or a representative capacity, or

(2) A statement of which he has manifested his adoption or belief in its truth, or

(3) A statement by a person authorized by him to make a statement concerning the subject, or

(4) A statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or

(5) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

(6) Any writing specified in Section TCT.4.5.030.

TCT.4.6.030 Hearsay Rule

Hearsay is admissible only if facts and circumstances indicate that it has a sufficiently high degree of trustworthiness to justify its admission.

Subchapter TCT.4.7 Audio and Visual Recordings

TCT.4.7.010 Audio Recordings

No audio recording, and no audio portion of a visual video tape, film, or digital recording, and no transcript or other recitation or presentation of the contents thereof, is admissible in evidence unless all adults whose voices are heard on the recording (except for incidental and non-consequential voices) consented to the recording, or unless the recording was validly made by a law enforcement agency.

TCT.4.7.020 Visual Recordings

The Court may also exclude the visual portion of a video tape, film, or digital recording recorded without the consent of all adults who appear on the recording (except for incidental and non-consequential appearances) based on the circumstances of the recording and the purpose for which the recording evidence is offered, unless the recording was validly made by a law enforcement agency or unless the recording was made for security purposes at a commercial, governmental, or other public place.

TCT.4.7.030 Burden of Proof

The party propounding the audio or visual recording evidence bears the burden of showing consent by a preponderance of the evidence.

Subchapter TCT.4.8 Judicial Notice

TCT.4.8.010 Adjudicative Facts

The court may at any time in a proceeding take judicial notice of an adjudicative fact that is not subject to reasonable dispute in that it is either generally known within the territorial jurisdiction of the court or is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

TCT.4.8.020 Foreign Law

The court may take judicial notice of any foreign law properly authenticated.

Chapter TCT.5 Financial Services Regulatory Authority Administrative Appellate Procedures

Subchapter TCT.5.1 General Provisions

TCT.5.1.010 Applicability

This Chapter applies only to appeals from administrative decisions rendered by the Financial Services Regulatory Authority.

TCT.5.1.020 Jurisdiction of the Lac Courte Oreilles Tribal Court

(a) Jurisdiction. In addition to and consistent with §TCT.2.3.020, the Tribal Court shall have exclusive jurisdiction to review the actions of the Financial Services Regulatory Authority, as provided herein. The decision of the Tribal Court shall be final as to all such review.

(b) Exhaustion. When a person has exhausted all administrative remedies available within the Agency and is aggrieved by a final decision or order in a Contested Case, whether such decision or order is affirmative or negative in form, the decision or order is subject to direct review by the Tribal Court. Exhaustion of administrative remedies does not require the filing of a motion or application for rehearing or reconsideration unless the Agency rules require the filing before judicial review is sought.

(c) Administrative Appeal by Right or by Leave. An administrative appeal of an Agency Action shall be by right when expressly authorized by Tribal law or regulation. An administrative appeal of an Agency Action shall be by leave in all other circumstances and granting leave shall be within the discretion of the Tribal Court after review of a Petition filed under this Chapter.

(d) Constitutionality. In an administrative appeal properly filed under this Chapter the jurisdiction of the Tribal Court shall include the authority to determine the constitutionality of acts of any Person, the Governing Board, or any Tribal subdivision or Agency.

TCT.5.1.030 Laws Applicable to Administrative Appeals

In all administrative appeals, the Tribal Court shall first apply the Tribal ordinance authorizing the administrative appeal, then any other applicable Tribal law as well as any applicable federal laws and regulations. Where Tribal law and applicable federal laws are silent, the Tribal Court may look to federal court authority from the United States Court of Appeals, Seventh Circuit, or from any federal district court in Wisconsin, subject to modification by the Tribal Court, if necessary, to reflect the customs, traditions, values, and policies of the Tribe. The Tribal Court may of its own motion or that of a Party, adopt any other source of law as persuasive authority and may apply any such source with or without modification.

TCT.5.1.040 Administrative Appellate Judges; Disqualification and Recusal

(a) Any Tribal Court judge may preside over an administrative appeal. No Magistrate may preside over and administrative appeal.

(b) Disqualification, Recusal, or Removal of Judge shall be according to §TCT.2.4.050. Upon disqualification, recusal, or removal, the Clerk shall assign another judge.

TCT.5.1.050 Practice Before the Tribal Court – Administrative Appeals

(a) Any person admitted to practice before the Lac Courte Oreilles Tribal Court pursuant to Subchapter TCT.2.8 may appear in an administrative appeal.

Subchapter TCT.5.2 Definitions

TCT.5.2.010 General Definitions

(a) In addition to the terms defined in §TCT.2.2.010, the following definitions apply to this Chapter:

(1) "Administrative Record" means the documents submitted in a Contested Case and shall include all the documents relied upon by the Agency in determining to take an Agency Action appealed under this Chapter.

(2) "Agency" means the Financial Services Regulatory Authority.

(3) "Agency Action" means the Agency's act of issuing a rule, order, license, sanction, relief, or the equivalent or denial thereof, or the Agency's failure to act when such Action was required pursuant to Tribal law or regulation.

(4) "Contested Case" means an administrative proceeding in which a determination of the legal rights, duties, or privileges of a named Party is required by law to be made by the Agency after an opportunity for an evidentiary hearing.

(5) "Final Agency Action" means an Agency Action subject to administrative appeal. An Agency Action is a Final Agency Action when it is the consummation of the Agency's decision-making process and from which legal consequences shall flow and is made explicitly reviewable by Tribal law, regulation, or of which there is no other adequate remedy.

(6) "Party" means a Person or Agency named, admitted, or properly seeking and entitled of right to be admitted, as a party in a Contested Case. In a Contested Case regarding an application for a license, a Party includes the applicant for the license.

(7) "Person" means an individual, partnership, association, corporation, limited liability company, limited liability partnership, or other legal entity, however organized. The term does not include any government, governmental subdivision, or Agency.

(8) "Petition" means a written request to the Tribal Court to initiate an administrative appeal of a Final Agency Action.

(9) "Petitioner" means a person who files a Petition.

(10) "Prevailing party" means the party in whose favor a judgment, decree, or final order, after administrative appeal (if any), is rendered with respect to the claims or defenses, when based on the entire record.

(11) "Respondent" means the party responding to a Petition.

(b) Any term not defined in this Section or in §TCT.2.2.010 shall be given its ordinary meaning.

Subchapter TCT.5.3 Appeal Procedure and Practice

TCT.5.3.010 Form, Captioning, Signing, and Verifying Documents

(a) Scope. All documents filed and served under this subsection shall adhere to rules in this Subsection or shall be rejected by the Clerk.

(b) Page Limit. Unless otherwise specified by this Subchapter or preapproved by the Tribal Court, no document filed with the Tribal Court may exceed twenty (20) pages, double-spaced, exclusive of attachments and exhibits. Quotations and footnotes may be single spaced.

(c) Form. All documents shall be filed on 8½ by 11-inch paper, in English. At least one-inch margins shall be used. Font shall not be smaller than 12-point typeface, but footnotes may be 10-point typeface. Exhibits may be filed in their original format.

(d) Captions. The first page of every filing shall contain a caption containing: the name of the court; the names of the Parties; the title of the document; any case number; and the name, business address, telephone number, and email address of the Parties or the Parties' counsel.

(e) Citations. All documents filed with the Tribal Court that contain legal arguments and issues of law shall cite to controlling or persuasive authority using the citation format accepted by the federal courts in Wisconsin and/or by the Lac Courte Oreilles Tribal Court.

(f) Signature. All filings shall be signed by the Person filing the document. The signature of a Person filing a document constitutes a certification by the signer that the signer has read the document and to the best of the signer's knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needlessly increase in the cost of litigation. Electronic signatures are permitted, to be indicated by "/s/" before the signer's name.

(g) Electronic documents. Unless granted leave by the Tribal Court, all documents shall be filed and served electronically in a manner prescribed by the Tribal Court or via email.

TCT.5.3.020 Service

In addition to §§TCT.2.9.020 and TCT.2.9.040, the following shall apply:

(a) Unless leave is granted by the Tribal Court, all filing and service shall be made electronically via email or as otherwise instructed by the Tribal Court.

(b) Proof of Service. All documents filed and served shall include proof of service that describes the document(s), the date of filing and service, the means of filing and service, and the recipients of the filing and service. The proof of service shall be signed by the person effectuating service, the Party, or the Party's legal counsel.

TCT.5.3.030 Starting an Administrative Appeal; Notice of Administrative Appeal; Petition; Record on Administrative Appeal

(a) Subchapter TCT.2.9 does not apply to this Chapter.

(b) Any Person that is not the Prevailing Party to a Final Agency Action, opinion, order, or judgment may initiate an administrative appeal only as provided in this Subchapter.

(1) To initiate an administrative appeal, a Person shall file a notice of administrative appeal with the Clerk of the Tribal Court, and serve the notice to all other parties, no later than thirty (30) days after the entry of the Final Agency Action from which the administrative appeal is taken.

(2) If one Party has timely and properly filed a notice of administrative appeal, any other Party in the case on administrative appeal may file a cross notice of administrative appeal within fifteen (15) days of service of the initial Party's notice of administrative appeal.

(3) Failure to file a timely notice of administrative appeal as provided in this Subsection deprives the Tribal Court jurisdiction over the administrative appeal, and accordingly, the right to an administrative appeal is deemed waived and administrative remedies are deemed exhausted.

(d) Petition for Review.

(1) Time. A Person that files a notice of administrative appeal shall file a Petition with the Court within sixty (60) days after the Final Agency Action that is the subject of the Petition is issued.

(2) Service. The Person shall serve the Petition to all Parties and to the Agency whose Final Agency Action is the subject of the Petition.

(3) Content. A Petition shall contain a concise statement of the nature of the proceedings as to which review is sought; the reason(s) an administrative appeal is sought; and the relief sought.

(4) Page Limit. The Petition shall not exceed twenty (20) pages, inclusive of any caption page, but not including any exhibits.

(5) Exhibits. The Petitioner shall attach to the Petition, as exhibit(s), a copy of the Final Agency Action appealed.

(6) Transmission of Administrative Record. Within thirty (30) days after service of the Petition, or within such further time as the court allows, the Agency shall transmit to the court the original or certified copy of the entire Administrative Record on which the Final Agency Action was based, unless the Parties stipulate that the Administrative Record be shortened.

(e) Response to Petition

(1) Any Party named in the Petition may file a response to the Petition within fifteen (15) days after the Petition is filed and served. A Party's decision not to file a response shall not be a basis for a default and shall not be considered in any subsequent proceedings on the merits of the Petition.

(2) Any response shall not exceed twenty (20) pages, inclusive of any caption page, but not including any exhibits.

TCT.5.3.040 Scheduling Conference; Scheduling Order

(a) At any time after a Petition is filed, the Tribal Court shall hold a scheduling conference. At any such conference, any unrepresented Party shall appear in person, and at least one attorney or lay advocate shall appear in person for any Party who has representation.

(b) After consultation, the court shall issue a scheduling order including such of the following as are applicable to the circumstances and complexity of the case:

(1) The time for when any responses to the Petition shall be filed, if one has not already been filed;

(2) The deadlines for any motions to be filed and heard, closing the record, and briefing;

(3) The date for oral argument and the time allowed to each party for oral argument;

(4) The deadlines for post oral argument briefing, if any;

(5) Any other matters governing the conduct of the case that the court deems appropriate.

(6) The Tribal Court may from time to time thereafter amend the order.

TCT.5.3.050 Motions

(a) Before filing any motion, a Party shall meet and confer with the opposing Party to determine if the Parties can agree to the relief sought or otherwise narrow the issues. Failure to meet and confer shall be a basis to deny the motion.

(b) Any Party to an administrative appeal may file such motions as appear necessary, together with supporting briefs and affidavits, as appropriate, as well as a verification or exhibit confirming the Parties have met and conferred and were unable to resolve the matter. Parties shall file a proposed order with the motion.

(d) Motions that present an issue of law shall be accompanied by a brief citing relevant authority. Any such motion and accompanying brief may be filed as a single document.

(e) Such motions shall be filed with the Clerk.

(f) Any response shall be filed within fifteen (15) days and may not exceed ten (10) pages without leave of the Tribal Court.

(g) The judge has discretion to order oral argument on any motion.

(h) The Tribal Court shall issue a written order deciding each motion.

TCT.5.3.060 Appellate Briefs

(a) The Petitioner shall file and serve an opening brief within forty-five (45) days of the Agency's submission of the Administrative Record or within forty-five (45) days after the Tribal Court grants a Petition, whichever is later, unless otherwise indicated by the Scheduling Order.

(b) Any response shall be filed and served within thirty (30) days of service of the Petitioner's opening brief, or as indicated by the Scheduling Order.

(c) The Petitioner shall file any reply within fifteen (15) days of service of Respondent's brief, or as otherwise indicated by the Scheduling Order.

(d) All briefs shall contain:

(1) a caption page,

(2) an introduction including a statement of the case and stating the issues presented by the administrative appeal,

(3) a procedural background including an explanation of the Final Agency Action on administrative appeal,

(4) a factual background limited to the issues presented by the administrative appeal,

(5) an argument that is supported by the Administrative Record and authority,

(6) a conclusion specifying the precise relief sought.

(e) Amicus Briefs are not allowed.

TCT.5.3.070 Oral Argument

(a) When requested, the Tribal Court shall allow oral arguments. If not requested, oral argument may be permitted in the discretion of the Tribal Court. The judge shall establish the order of oral argument.

(b) There shall be no evidence presented at oral argument.

(c) The Tribal Court shall limit oral argument to the issues raised by the parties, the Administrative Record, and any other properly admitted evidence.

(d) The length of argument allowed, shall be set by the Scheduling Order.

(e) The Tribal Court may question either Party during their oral argument. The Parties are not entitled to additional time if the Tribal Court asks questions.

(f) Adjournment; Reconvening. For good cause, the Tribal Court may adjourn and reconvene oral argument. The Tribal Court may call for additional oral arguments.

TCT.5.3.080 Post Hearing Briefing

Upon motion or stipulation by either Party, or upon its own, the Tribal Court may order post hearing briefs on questions or issues that arose during oral argument and which the parties have not already had an opportunity to brief.

TCT.5.3.090 Administrative Appellate Opinions; Remand; Mandate; Final Decision

(a) All administrative appeals shall be heard by the judge and without a jury.

(b) Scope of Review. An administrative appeal of a Final Agency Action shall be limited to the Administrative Record and any other properly admitted evidence.

(1) The Agency's findings of fact, factual inferences, and findings, explicit or implicit, of witness credibility, shall be sustained unless clearly erroneous.

(2) The Tribal Court shall give deference to an Agency's reasonable interpretation and application of the Tribal law and applicable federal laws and regulations;

(3) The Agency's discretionary determination shall be sustained if the record reflects that the Agency exercised discretion and applied the appropriate legal standard to the admissible facts of record. The Agency's imposition of fines, forfeitures, and other penalties or remedial measures, not including the assessment of damages, shall be reviewed as a discretionary determination.

(4) The Agency's conclusions of law are reviewed de novo.

(5) A stipulated, uncontested, or documentary fact is reviewed de novo.

(6) The meaning of an unambiguous contract is reviewed de novo.

(7) Whether a finding of fact or a conclusion of law has been properly labeled as such by the Tribal Court is reviewed de novo.

(d) The court, as appropriate, may affirm, reverse, or modify a Final Agency Action or remand the matter to the Agency for further proceedings.

(e) Grounds for reversal. The court shall set aside a Final Agency Action, findings, and conclusions found to be:

(1) In violation of any tribal or applicable federal law.

(2) In excess of the statutory authority or jurisdiction of the Agency.

(3) Made upon unlawful procedure resulting in material prejudice to a Party.

(4) Unsupported by competent, material, and substantial evidence on the whole record.

(5) Arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.

(6) Affected by other substantial and material error of law.

(f) The Tribal Court shall not substitute its judgment for that of the Agency on a matter committed to the discretion of the Agency. Mere disagreement with the Agency's reasoning is not a basis for reversal.

(g) Decisions.

(1) Within a reasonable time after oral argument and the close of briefing, the Court shall issue its decision as an opinion and order.

(2) All decisions shall be in writing, shall specify the relief granted, if any, and shall state the Tribal Court's rationale therefore.

(3) Additionally, the decision shall include:

(A) a determination on Tribal Court's jurisdiction over the administrative appeal,

(B) findings of fact,

(D) whether the administrative process has been exhausted.

(4) The decision shall include instructions to the Agency detailing how to proceed upon remand, when applicable. The Agency shall be bound by the decision in all respects.

(h) Reconsideration. A request for reconsideration of a Tribal Court decision made under this Subchapter shall be filed in the Tribal Court within fifteen (15) days of the filing of any decision or order of the Tribal Court. The request for reconsideration shall state the specific change(s) in the decision sought, and all reasons, and the authority therefore, for the change(s). Any non-requesting Party shall have fifteen (15) days from the date of service of the request to respond. Oral argument on a request for reconsideration is discretionary with the Tribal Court.

(i) The Tribal Court's opinion and order is a final decision and shall become final once the time for requesting reconsideration has expired or after the Tribal Court issues a decision on any request for reconsideration, whichever is later. The Tribal Court's opinion and order may not be appealed.

(j) The Clerk shall, within two days of their filing, furnish copies of the decision and any order of the Tribal Court to the Agency and the Parties.

Subchapter TCT.5.4 Enforcement of Judgment

TCT.5.4.010 Enforcement.

Following exhaustion, an administrative decision is enforceable in the same manner as a Tribal Court judgment pursuant to §TCT.1.2.010.