Tribal Code

Courts

WARM SPRINGS TRIBAL CODE
CHAPTER 200 COURTS

Table of Contents

I. GENERAL
200.001 Establishment of Court
200.005 Scope and Application of Procedural Rules
200.007 Court Procedures
200.010 Definitions

II. JURISDICTION
200.025 Civil Jurisdiction
200.030 Criminal Jurisdiction
200.050 Persons Not Subject to Criminal Jurisdiction of the Warm Springs Tribal Court
200.100 Civil Statute of Limitations
200.102 Criminal Statute of Limitations
200.105 When Action Deemed Begun and Jurisdiction Obtained

III. SERVICE OF SUMMONS AND COMPLAINT
200.175 Issuance of Summons
200.180 Time for Response
200.185 Who May Serve Summons
200.190 Manner of Service
200.200 Service Methods
200.210 Service on Particular Defendants
200.215 Certificate of Service

IV. JUDGES
200.250 Appointments
200.255 Eligibility
200.260 Compensation
200.265 Performance of Duties
200.270 Disqualifications
200.275 Judges Pro Tempore
200.280 Improper Influence

V. JURIES
200.301 Jury Defined
200.302 Qualifications of Jurors
200.305 Excuse from Jury Duty
200.306 Fees of Jurors
200.307 Prohibited Acts

VI. TRIALS
200.310 Criminal Jury Trials
200.315 Civil Trials

VII. SELECTION OF JURORS
200.320 Juror Lists
200.325 Service
200.330 Selection of Panels

VIII. TRIALS
200.335 Empanelling
200.340 Instructions
200.345 Notification of Jurors; Failure to Appear

IX. APPEARANCES
200.350 General
200.355 Self-Representation
200.360 Admission to Practice
200.370 Competence
200.375 Conduct of Witness at Trial
200.380 Notice
200.385 Oaths
200.390 Fees

X. JUDGMENT
200.500 Judgment Defined
200.502 Order for Payment
200.505 Default Judgment Before Trial
200.506 Default Judgment at Trial or Hearing
200.509 Modification of Judgment
200.510 Relief from Judgment
200.511 Negligence
200.512 Intentional Injury
200.513 Both Parties Negligent

XI. ENFORCEMENT OF JUDGMENTS
200.515 Enforcement of Judgments for Other than Payment of Money
200.520 Enforcement of Judgments for Payment of Money, or Delivery of Real or Personal Property
200.522 Issuance of Order of Execution, Contents
200.525 Property Exempt from Execution
200.527 Property Exempt from Execution by All Persons Except the Confederated Tribes
200.530 Execution Procedure
200.532 Notice of Sale
200.534 Postponement of Sale
200.540 Garnishment

XII. CONTEMPT OF COURT
200.600 Contempt Powers
200.605 Contempt in the Presence of the Court
200.610 Contempt Occurring Outside the Presence of the Court
200.615 Failure to Comply

XIII. PERSONAL PROPERTY SECURITY PROCEEDINGS
200.700 Commencement of Proceedings
200.705 Contents of Petition
200.710 Parties
200.715 Custody of Property Pending the Completion of Proceedings Commenced Pursuant to WSTC 200.700
200.720 Notice of Proceedings
200.725 Posting of Security
200.730 Hearing
200.735 Appeal
200.740 Sale
200.745 Distribution of Sale Proceeds
200.750 Procedures Applicable to Disposition of Seized Contraband

XIV. RESTITUTION PROCEEDINGS
200.800 Restitution Order
200.805 Factors Considered in Ordering Restitution
200.810 Effect of Restitution Order on Other Remedies of Recipient of Restitution

XV. ENFORCEMENT OF TRIBAL INTEGRATED RESOURCES MANAGEMENT PLANS
200.820 Responsibility for Enforcement of Integrated Resource Management Plans
200.821 Inspection and Monitoring
200.822 Education and Voluntary Compliance
200.823 Issuance of Compliance Orders
200.824 Enforcement of Compliance Orders
200.825 Civil Penalties
200.826 Criminal Penalties
200.827 Exclusion
200.828 Seizure and Disposition of Security

WARM SPRINGS TRIBAL CODE
CHAPTER 200 COURTS

I. GENERAL

200.001 Establishment of Court. There is hereby established for the Confederated Tribes of the Warm Springs Reservation of Oregon, a court to be known as the Warm Springs Reservation Tribal Court, hereinafter referred to as the “Tribal Court.”

200.005 Scope and Application of Procedural Rules. The procedural rules set forth in the Warm Springs Tribal Code shall govern all cases before the Warm Springs Tribal Court. The rules shall be construed to secure the just, speedy, and inexpensive determination of every case. The rules, and amendments thereto, shall apply to all actions pending at the time of or filed after their effective date except where their application to a pending case would not be feasible or would work an injustice, in which event the former procedure applies. Noncompliance with a rule shall defeat an action in whole or in part only in the event that the non-compliance shall be shown to have substantially prejudiced the challenging party.

200.007 Court Procedures. The time and place of Court sessions and all other judicial procedure not otherwise prescribed in the WSTC shall be laid down in such Rules of Court as the Court Judges determine in the best interest of the judicial function.

  1. Proposed Rules of Court will be submitted by the Court Judges to the Tribal Council for approval.
  2. In cases of failure of the Tribal Council to establish or approve the Rules as submitted, the Chief Judge shall have authority to implement such rules.

200.010 Definitions.

  1. “Indian” means, unless otherwise specified, a member of the Confederated Tribes of the Warm Springs Reservation of Oregon, or any other person of Indian blood who is a member of a federally recognized Indian Tribe or any other person on the Reservation who is recognized by the community as an Indian, including a Canadian Indian or an Alaska native.
  2. “Reservation” means all territory within the external boundaries of the Warm Springs Reservation of Oregon.
  3. “Tribal Council” means the Tribal Council of the Confederated Tribes of the Warm Springs Reservation of Oregon.
  4. “Tribes” means the Confederated Tribes of the Warm Springs Reservation of Oregon.
  5. “Affidavit of Prejudice” means a sworn statement-making claim that a judge is biased or prejudiced in such a way as to not be able to render a fair decision at the trial or hearing.
  6. “Felony” means a crime under State or Federal law which is usually punishable by confinement in a prison and is more serious than a misdemeanor crime.
  7. “Relationship in First or Second Degree” means the children or grandchildren or parents and brothers or sisters or grandparents of the person claimed to have such relationship.
  8. “Judge Pro Tempore” means a judge who has been appointed on a temporary basis to serve at a particular time for a particular purpose.
  9. “Unanimous Verdict” means a complete agreement on the finding of fact made by all those who have voted.

II. JURISDICTION

200.025 Civil Jurisdiction.

  1. Jurisdiction over the Person. The Tribal Court shall have jurisdiction over the following persons: (a) All Indians, without regard to where they may be found, in cases herein the Tribal Court has subject matter jurisdiction. (b) Non-Indians, corporations, and other legal entities in cases authorized by the Warm Springs Tribal Code or other Tribal Council enactments.
  2. Jurisdiction of the Subject Matter. (a) The Tribal Court shall have subject matter jurisdiction over cases arising upon the Reservation, land owned by the Confederated Tribes, or held by the United States in trust for the Confederated Tribes, or involving an Indian defendant found upon the Reservation. (b) Claims for money damages. Recovery in cases other than actions based upon contracts, or in which a money judgment may be rendered in favor of the Tribes, against a single defendant shall not exceed the greater of $25,000 or, in the event the liability of that defendant is covered by insurance, the liability limits of any applicable policy or policies of insurance. In an action based upon contract or in which a money judgment may be rendered in favor of the Tribes, the amount recoverable shall be unlimited.
  3. Who may bring an action in Tribal Court. The following persons may bring an action in Tribal Court: (a) Indians. (b) The Confederated Tribes. (c) Non-Indians, corporations, and other legal entities in cases for personal injury or property damage arising upon the Reservation in which an Indian is a defendant or when authorized by a specific Tribal Council enactment.
  4. Interest and Nonpayment Charge on Obligations to the Confederated Tribes. Unless the parties otherwise agree, obligations owed to the Confederated Tribes that are more than 30 days past due shall bear interest at the rate of 12% per annum from the date due until the date paid. In addition, to encourage prompt payment, a nonpayment charge of 5% of the unpaid balance shall accrue on obligations that are more than 30 days past due. Interest and nonpayment charges due on such obligations shall be deemed a part of the obligation in any action in any tribal, federal or state court in which an action for collection is maintained, and any judgment entered shall include sums representing interest and nonpayment charges accruing until the payment of the judgment. This section applies to obligations to the Confederated Tribes arising out of : (a) WSTC 700.020 “Business Privilege Tax;” (b) WSTC 311.340 “Vehicle Overloads;” (c) WSTC 306.035 “Civil Trespass;” (d) WSTC 400.405 “Eviction from Tribal Housing;” (e) WSTC 451.300 “Woodcutting”; or (f) Tribal Leases.

200.030 Criminal Jurisdiction. The Tribal Court shall have jurisdiction over any criminal violation of a tribal law committed by an Indian within the boundaries of the Warm Springs Reservation, or committed by a member of the Tribes outside the Reservation in the exercise of any treaty reserved right, or upon lands owned by the Confederated Tribes or held by the United States in trust for the Confederated Tribes, and also within the boundaries of all Columbia River In Lieu Fishing Sites designated by the Federal Government pursuant to P.L. 79- 14 and all Columbia River Treaty Fishing Access Sites designated by the Federal Government pursuant to P.L. 100-581.

200.050 Persons Not Subject to Criminal Jurisdiction of the Warm Springs Tribal Court. Any person not subject to the criminal jurisdiction of the Warm Springs Tribal Court who violates any provision of the Warm Springs Tribal Code may, unless otherwise provided in this Code, be subject to a civil penalty in the Tribal Court for a civil infraction. Unless otherwise provided in this Code, such civil penalty shall not exceed the sum of $5,000 for each episode resulting in one or more civil infractions. Equipment and other personal property used in connection with such infraction may be seized and held as security for such person’s appearance before the Tribal Court and may be subject to sale or other disposition by the Tribe in the event that such person fails to pay the amount of any civil penalty imposed by the court in accordance with the procedures contained in WSTC Chapter 200. The procedures governing the adjudication of such civil infractions shall be those set out in WSTC Chapter 201 (Civil Procedure). The Tribal Council hereby specifically finds that such civil penalties are reasonably necessary and are related to the expense of governmental administration necessary in maintaining law and order and public safety on the Reservation and in managing, protecting and developing the natural resources on the Reservation. It is the legislative intent of the Tribal Council that such violations of the provisions of the Warm Springs Tribal Code by persons not subject to the criminal jurisdiction of the Warm Springs Tribal Court be considered civil in nature rather than criminal.

200.100 Civil Statute of Limitations. No action in Tribal Court shall be commenced more than two years after the claim arises, except where a different limitation is prescribed by the Warm Springs Tribal Code. Where the defendant is concealed or is absent from the Reservation such period of absence or concealment shall not count towards the two years.

200.102 Criminal Statute of Limitations. No criminal prosecution in Tribal Court shall be commenced more than one year after the offense, except where a different limitation is prescribed by the Warm Springs Tribal Code. The one-year limitation does not apply to the criminal offense of sexual abuse (WSTC 305.345) and any other criminal offense committed concurrently with the offense of sexual abuse, which shall have a five-year statute of limitations. Where the defendant is concealed or is absent from the Reservation such period of absence or concealment shall not count towards the statute of limitations.

200.105 When Action Deemed Begun and Jurisdiction Obtained. For purposes of WSTC 200.100 an action shall be deemed commenced as to each defendant when the complaint is filed. Jurisdiction of the Court is obtained over a defendant at the time of service of summons and complaint on that defendant.

III. SERVICE OF SUMMONS AND COMPLAINT

200.175 Issuance of Summons. Within three (3) working days after a complaint is filed, the Court shall issue summons of a form prescribed by the Court and deliver such summonses to persons authorized to serve summonses pursuant to WSTC 200.185.

200.180 Time for Response. If the summons is served by any manner other than publication, the defendant shall appear and defend within 30 days from the date of service. If the summons is served by publication pursuant to WSTC 200.200 or any other tribal law, the defendant shall appear and defend within 30 days from the date of first publication.

200.185 Who May Serve Summons. The following persons are authorized to serve Tribal Court summonses:

  1. Tribal Police Officers.
  2. Any person so authorized by the Chief Tribal Judge.

200.190 Manner of Service. Summonses shall be served, either within or without this Reservation, in any manner reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend. Service may be made, subject to the restrictions and requirements of WSTC 200.210, by the following methods:

  1. Personal service of summons upon defendant or an agent of defendant authorized to receive process;
  2. Substituted service by leaving a copy of summons and complaint at a person’s dwelling house or usual place of abode;
  3. Office service by leaving with a person who is apparently in charge of an office;
  4. Service by mail; or
  5. Service by publication.

200.200 Service Methods.

  1. Personal Service. Personal service may be made by delivery of a true copy of the summons and a true copy of the complaint to the person to be served.
  2. Substituted Service. Substituted service may be made by delivering a true copy of the summons and complaint at the dwelling house or usual place of abode of the person to be served, to any person over 14 years of age residing in the dwelling house or usual place of abode of the person to be served. Where substituted service is used, the court, as soon as reasonably possible, shall cause to be mailed a true copy of the summons and complaint to the defendant at defendant’s dwelling house or usual place of abode, together with a statement of the date, time, and place at which substituted service was made. For the purpose of computing any period of time related to service, substituted service shall be complete upon such mailing.
  3. Office Service. If the person to be served maintains an office for the conduct of business, office service may be made by leaving a true copy of the summons and complaint at such office during normal working hours with the person who is apparently in charge. Where office service is used, the court, as soon as reasonably possible, shall cause to be mailed a true copy of summons and complaint to the defendant at the defendant’s dwelling house or usual place of abode, together with a statement of the date, time, and place at which office service was made. For the purpose of computing any period of time related to service, office service shall be complete upon such mailing.
  4. Service by Mail. Service by mail may be made by mailing a true copy of the summons and a true copy of the complaint to the defendant by certified or registered mail, return receipt requested, restricted delivery. For the purpose of computing any period of time prescribed or allowed by these services, service by mail shall be complete when the registered or certified mail is delivered and the return receipt signed or when acceptance is refused.
  5. Service by Publication. When service by publication is authorized by the Warm Springs Tribal Code, it shall be accomplished as specified in that Code provision or if there is no provision specifying the manner of publication it shall be accomplished by posting written notice in three public places within the Reservation for at least 30 days prior to the hearing on the matter and publishing notice in the tribal newspaper at least five days prior the hearing. At least one posted notice shall be in the Simnasho Community and one in the Warm Springs Administration building and one in the Warm Springs Post Office.

200.210 Service on Particular Defendants. Service may be made upon specified defendants as follows:

  1. Individuals. Upon individuals in any manner permitted by WSTC 200.200.
  2. Minors. Upon any minor under the age of 14 years, by service in the manner specified in WSTC 200.200 upon both the minor and also upon such minor’s father, mother, guardian, or other person having the care and control of the minor.
  3. Corporations. Upon any corporation in the manner specified by WSTC 200.200 upon a registered agent, officer, director, or managing agent of the corporation.
  4. The Confederated Tribes. By personal service upon the Secretary/Treasurer of the Confederated Tribes of the Warm Springs Reservation of Oregon.

200.215 Certificate of Service. The person serving summons or other process shall file with the court as soon as practicable after such service a certificate of service of a form prescribed by the Tribal Court.

IV. JUDGES

200.250 Appointments. The Tribal Court shall consist of a Chief Judge and Associate Judges who shall serve full-time and shall be appointed by Tribal Council.

  1. The Tribal Council shall appoint an ad hoc judicial nominating commission whenever there is a vacancy on the bench or a new judicial position is created. The commission shall consist of three members; two tribal members who are not elected officials and one member from off-Reservation, preferably an Indian, who possesses some legal background. The commission shall interview and select the top three candidates for the judicial position. The Tribal Council shall then make its appointment from the list of three candidates submitted by the commission.
  2. Upon initial appointment to the bench, each Judge will be required to successfully complete a one-year probationary term. During this period, the Tribal Council may remove that Judge from office without cause.
  3. Automatic reappointment to a further four-year term will normally take place at the conclusion of a probationary term or upon completion of a regular four-year term of office.
  4. There will be no automatic reappointment of a Judge where the following occurs: (a) Tribal Council has received substantial complaints of improper conduct or performance by a Judge; and (b) Tribal Council determines that a full hearing is necessary to decide upon judicial fitness of the subject Judge; and (c) A full hearing is held before the Tribal Council; and (d) Tribal Council finds, by majority vote, that the subject Judge has been seriously deficient in the performance of official duties; or (e) It is found that the best interests of the Confederated Tribes would be served by removal of the subject Judge for cause, as defined in WSTC 200.265(1).

200.255 Eligibility. Every person appointed as a Judge of the Tribal Court must have demonstrated a high moral character and must be physically able to perform the duties of the office.

  1. The following eligibility requirements must be met for appointment to specific positions: (a) Chief Judge. Applicants must be persons over 26 years of age, possessing three or more years of experience on the bench, or at least two years of experience or college study in related fields. (b) Associate Judge. Applicants must be persons over 26 years of age who are resident on the Reservation and are an enrolled member of the Confederated Tribes.
  2. No person may be appointed as a Judge of the Tribal Court if they have ever been convicted of a felony or have been convicted of a criminal offense under this Code during the 12 months preceding application.
  3. No person may serve as a Judge of the Tribal Court until a bond is posted, at Tribal expense, in an amount determined by Tribal Council; or, that person is covered by a blanket bond provided for all tribal employees.

200.260 Compensation. The Tribal Court Judge shall be considered exempt from the tribal salary administration plan for the purpose of establishing salary levels. All other Tribal Court employees shall remain within the existing tribal salary structure. Salaries for all full-time Judges shall be set in the following manner:

  1. A base salary shall be set at the time of appointment from within a salary range established by the Tribal Council.
  2. Each salary base and range shall be reexamined and reestablished at each reappointment period. The minimum base salary adjustment shall be the average of the percentage increase for all the branch managers over the four-year judicial appointment period.
  3. There shall be a fixed base salary for a Judge’s term of office except that: (a) The Judges shall be awarded all cost of living increases offered to tribal managers; and (b) The Tribal Council may increase compensation for successful completion of a probationary period or for any other award of merit; and (c) The compensation for a Judge shall not be decreased during that Judge’s term of office.

200.265 Performance of Duties. The Chief Judge shall perform under the general supervision of the Tribal Council and shall have complete responsibility for the conduct of Court business. Additional responsibilities include direct supervision of the Associate Judges, the Court Administrator and such other departments and staff as the Tribal Council may designate.

  1. During tenure in office, any Judge of the Tribal Court may be removed for cause by the Tribal Council. Such removal may be recommended by submission of a written complaint to Tribal Council setting forth the facts and reasons for such proposed action. A copy of the complaint will be delivered to the Chief Judge, the Judge whose removal is being sought, the Tribal Council and the Superintendent. Causes for such action shall include, but are not limited to the following: (a) Excessive use of intoxicants. (b) Immoral behavior. (c) Conviction of a felony. (d) Conviction for an offense involving dishonesty or acts offensive to the morals of the Tribes. (e) Use of official position for personal gain. (f) Professional incompetence. (g) Demeaning the dignity and stature of the Court in the eyes of the community.
  2. An Acting Chief Judge will be appointed in writing whenever the Chief Judge is absent from the Reservation, on vacation, ill, or otherwise unable to perform the duties of the office. The person appointed will be one of the Associate Judges as selected by the Chief Judge. The Acting Chief Judge may, upon appointment, exercise all powers of the Chief Judge. (a) The duly appointed Chief Judge may, at any time, change the designation of that person selected to be the Acting Chief Judge. (b) Where the Chief Judge fails to designate an Acting Chief Judge, the Tribal Council may select one of the Associate Judges to perform these duties.

200.270 Disqualifications. A Tribal Court Judge may be disqualified from presiding over a particular case where there is a conflict of interest, a request for disqualification or a self-disqualification.

  1. No Judge shall be qualified to act as Judge in any case where in that Judge has a direct interest or where any party to the action is a relative by marriage or by blood in the first or second degree. Removal of the Judge from the case in these circumstances is mandatory. Parties to the case may not waive this disqualification rule.
  2. A Judge may be removed from the case upon the basis of an Affidavit of Prejudice which has been filed by one of the parties. The Affidavit must be in writing and must offer facts and evidence to support the request. The reasons presented must be sufficient to lead a reasonable person to believe that the party could not receive a fair trial from the Judge being opposed. Decision on the request by an impartial Judge is discretionary and final.
  3. In some cases, a Judge may elect to disqualify himself or herself. This is a personal decision and is not mandatory. Such decision will normally be made where the affected Judge feels that a decision on the case could not be fairly made without bias or prejudice. This very personal decision may not be challenged.

200.275 Judges Pro Tempore. No later than January 1 of each year, Tribal Council shall select and employ a person to act as Judge Pro Tempore.

  1. The Judge Pro Tempore shall be appointed to act as Tribal Court or Appellate Court Judge whenever it reasonably appears that the Chief Judge and all Associate Judges are unavailable or are disqualified from presiding as provided for in WSTC 200.270 and WSTC 203.001.
  2. The person selected must be qualified to practice as provided for in WSTC 200.360.
  3. Employment of the Judge Pro Tempore shall be on a general retainer basis with duties to be performed a minimum of two days each month.
  4. Compensation will be provided on the basis of not less than $40 per day plus expenses during the time that judicial services are being rendered to the Tribes.

200.280 Improper Influence. No person shall attempt to influence a decision of the Tribal Court outside of the regular court proceedings. The Chief Judge may make recommendations to the Tribal Council for dismissal for cause of employees of the Court who engage in such attempts.

V. JURIES GENERAL

200.301 Jury Defined. A jury is a body of persons temporarily selected from the qualified residents of the Warm Springs Indian Reservation, and invested with power to render a decision on a question of fact presented at an open trial.

200.302 Qualifications of Jurors.

  1. A person is competent to act as a juror if he or she is: (a) An enrolled member of the Confederated Tribes of Warm Springs; and (b) Over 21 years of age; and (c) Resident upon the Warm Springs Reservation; and (d) Of sound mind.
  2. A person who is physically handicapped shall not be deemed to be incompetent for jury duty or have his or her name excluded from a jury list solely on the basis of such handicap.
  3. An otherwise eligible person shall be excluded from jury duty if that person has previously been found guilty of a crime involving moral turpitude.

200.305 Excuse from Jury Duty. The Court may grant a temporary excuse from jury duty where it is found that there would be undue hardship or extreme inconvenience. Excusal is within the discretion of the Court.

  1. Persons who are temporarily excused may be called for jury duty at another time.
  2. Normally, excuses will not be granted unless there is serious illness of the potential juror; or serious illness or death of an immediate member of the juror’s family.
  3. Excuse for personal illness requires that the potential juror file a written statement from an attending physician. Failure to file such statement with the Court within 10 days from date of scheduled trial may result in a Court-imposed penalty under § 200.335(2) of this Chapter.
  4. A Judge may, on his or her own motion, excuse a juror whose presence on a jury would substantially impair the progress of the action or trial or prejudice the parties thereto.

200.306 Fees of Jurors. The fees paid summoned jurors should be as follows:

  1. For every day of attendance where the juror is sworn and empanelled, twelve dollars ($12).
  2. For every day of attendance where the juror is excused from participation, six dollars ($6).
  3. Mileage computed at 12¢ a mile for travel between the usual place of residence and the Warm Springs Tribal Court. Mileage fees will be paid each juror for each day of attendance upon the Court.

200.307 Prohibited Acts. Where certain acts are found to have occurred, the person doing such acts may be found in contempt of court and penalized according to the provisions of WSTC 200.600 through 200.610. No person shall do any of the following acts such as to impede the orderly administration of justice:

  1. Discharge or threaten to discharge any employee by reason of service or scheduled service as a juror.
  2. Intimidate, coerce, or encourage any juror to fail to appear for jury service or scheduled service.

VI. TRIALS

200.310 Criminal Jury Trials. The Court, upon request, shall grant a right to trial by jury to any Indian accused of an offense punishable by imprisonment.

  1. Such trials will be by a jury of not less than six persons who are qualified under WSTC 200.302.
  2. A criminal defendant may make request for jury trial by oral request in open court or by filing of a written request with the Court. (a) An election of jury trial shall be made and transmitted to the Court within five days after entering a plea at arraignment. (b) The Court may allow jury trial election after five days from arraignment only upon a showing of unusual circumstances.
  3. A contempt of court citation shall issue for any criminal defendant who fails to appear for a scheduled jury trial. In addition, such defendant will be deemed to have waived their further right to a jury trial upon the charge. Trial will be rescheduled before a Judge of the Court.

200.315 Civil Trials. Trial by jury will not be granted in civil cases.

VII. SELECTION OF JURORS

200.320 Juror Lists. By November 1 of each year, the Tribal Court shall prepare and submit to Tribal Council a list of eligible jurors for the following year. The list must be approved within 30 days from the date of submission to Tribal Council. Where Tribal Council fails to act or approve the list, it will be accepted by approval of the Chief Judge of the Tribal Court, not later than December 5 of each year.

  1. The juror list will consist of 250 or more persons who have been determined to be eligible under the provisions of WSTC 200.302.
  2. Prior to December 15 of each year, the juror list shall be posted at three public places within the boundaries of the Warm Springs Indian Reservation.5
  3. Certain persons will be exempt from consideration as jurors. They include: (a) tribal police officers; and (b) Tribal Council members.

200.325 Service.

  1. Persons selected on the master jury list shall be eligible for service during the following calendar year. A change in eligibility under WSTC 200.302 may result in a selected juror being dropped from the list.
    2. The master jury list will be divided into six panels of approximately equal size. Each panel shall be responsible for all jury trials during the term of two consecutive months during the calendar year. A juror orientation meeting shall be held for each panel. All members of the panel must attend. A tribal Judge shall preside over the orientation meeting, which shall be held within two weeks of the beginning of the panel’s term. The meeting will be held for the purpose of explaining Court procedures and juror responsibility.
    3. At the end of the selected calendar year, the names of the persons on the master list will be retired from jury consideration for at least two years.

200.330 Selection of Panels. Names will be drawn from the master jury list at least two weeks before the selected term of service. The names of jurors for the term will be randomly selected by drawing from the master list. The number of names to be drawn will be selected by the Chief Judge of the Tribal Court. Random drawing and recording shall be made by a Clerk of the Court, with the Court Administrator as supervisor and witness. Names selected for the panel will be reviewed and approved by the Chief Judge before the list becomes effective.

VIII. TRIALS

200.335 Empanelling.

  1. When a jury trial has been scheduled, a list of 18 or more potential jurors will be made for selection for that trial date. The names will be randomly drawn from members of the responsible panel. Drawing will be made by the Criminal Clerk and supervised by the Court Administrator. Before the list is final, it must be reviewed by the Chief Judge to ensure that apparent family conflicts will not occur.
  2. At the time of trial, the Court Clerk will randomly select a potential jury of six members from those eligible. An examination of fitness for service will be conducted by the presiding Judge in open court. The purpose of questioning is to determine the following: (a) Whether the potential juror being questioned has a bias or prejudice towards the guilt or innocence of the defendant. (b) Whether the potential juror is able to render a fair verdict upon the evidence presented at trial. (c) Whether the potential juror has a relationship to the defendant by marriage or blood in the first or second degree.
  3. Where questioning reveals bias or prejudice as in (2)(a) and (b) above, or a relationship as in (c) above, that juror shall be excused from duty.
  4. Examination of potential jurors will be conducted by the presiding Judge or, at the discretion of the presiding Judge, by the parties’ counsel or, if unrepresented, by the parties themselves. Any reasonable questions may be asked that would not prejudice the case for either side and which would serve to sit an unbiased jury. The Judge may, but need not, incorporate into the questioning specific questions or areas of inquiry requested by a party or their representative counsel. The presiding Judge may excuse a potential juror upon his or her own motion.
  5. A jury will be empanelled and sworn when six qualified members have been selected by the presiding Judge. If six persons cannot be selected from the 18 jurors eligible and present, the Judge may order tribal police to summon other tribal members to appear to act as jurors.
  6. When an emergency arises which would require seating of an alternative juror and such seating would seriously prejudice the rights of the defendant, the presiding Judge may declare a mistrial. The trial will then be rescheduled and a new jury empanelled.

200.340 Instructions.

  1. After final arguments have been concluded, the Court may issue oral instructions on the law for consideration in jury deliberation.
  2. The trial Judge is not required to present a jury instruction where it is the opinion of the Judge that such instruction does not reasonably or fairly reflect the law or would confuse or mislead jurors in their deliberations.
  3. It is mandatory that the jury be instructed that there must be a verdict for the complainant or for the defendant. The verdict of the jury shall be by unanimous vote. The Judge shall then render judgment in accordance with the verdict and existing law.

200.345 Notification of Jurors; Failure to Appear.

  1. Selected potential jurors will be notified of time and place of juror orientation and trial by summons served in accordance with WSTC 200.190 and 200.200.5
  2. Failure to appear for scheduled jury duty may result in a citation for contempt of court, which may be penalized as provided in WSTC 200.605(3) or by additional days of juror service.

IX. APPEARANCES COUNSEL

200.350 General.

  1. Any party to a civil action, or defendant in a criminal action, has a right to assistance of counsel. Such assistance shall be at the personal expense of the party.
  2. Appearance of a party is recognized by any of the following means: (a) self-representation; (b) representation by a selected spokesperson or other person authorized by the Chief Judge; or (c) representation by a licensed attorney.
  3. Failure to obtain representative counsel before a scheduled hearing or trial shall not be good cause to delay or continue the proceeding. Where no representative counsel has been retained before a proceeding commences, a party or defendant shall appear in a self-representation capacity.

200.355 Self-Representation.

  1. It is a Warm Springs custom and tradition that any individual party may appear and represent himself or herself in any proceeding before the Tribal Court. Self-representation shall be encouraged and supported.
  2. Judges of the Tribal Council shall take actions necessary to ensure that all parties have a full and equal opportunity to present their case and cross-examine opposing witnesses.
  3. Parties electing self-representation shall not be held to the same strict standards of procedural conduct as is required of trained counsel.

200.360 Admission to Practice.

  1. No person shall appear before the Tribal Court in a representative capacity unless such person has first been admitted to practice by authority and approval of the Chief Judge. The Court shall recognize the following classes of persons as eligible for admission, if otherwise qualified: (a) Enrolled members of the Confederated Tribes. (b) Other Indians resident or domiciled on the Warm Springs Reservation. (c) A licensed member in good standing of any State Bar Association. (d) Any other person whose appearance is approved by the Chief Judge.
  2. Admission will be by application and limited to those qualified under Rules of Court established by the Chief Judge.
  3. A non-Indian applicant, otherwise qualified, will be admitted to practice only after posting of a cash bond in the amount of $200. (a) The bond must be delivered to the Court Administrator before first appearance. (b) The bond shall be returned upon request unless there has been a court ordered forfeiture following a contempt of court hearing. (c) Where a bond has been returned upon request, the non-Indian attorney will be denied the right to appear before Tribal Court for six months from the date a bond is returned.
  4. All persons admitted to practice before the Tribal Court are deemed officers of the Court and subject to the disciplinary authority of the Court in all matters related to their representative capacity. They will be held responsible for meeting general ethical standards as established by the Chief Judge in the written Rules of Court.

WITNESSES

200.370 Competence. Except as otherwise hereafter provided, all persons may be witnesses who can demonstrate competence through showing of an ability to accurately observe, recall and relate an event.

  1. Persons not qualified as witnesses include the following: (a) Those of unsound mind at the time they are brought before the Court to testify. (b) Children under 10 years of age who cannot satisfactorily demonstrate competence to testify or who cannot show an understanding between truth and falsehood. Whenever a child under the age of 10 years is produced as a witness, the trial Judge shall, upon personal examination with counsel present, determine to his or her own satisfaction that the child has sufficient intelligence and understanding of his or her obligation to tell the truth. Decision of the Judge as to the child’s ability to testify is final.
  2. A Judge or juror may be called as a witness by either party. When a Judge is called, it is in the discretion of the Court to order the trial be suspended or postponed and to take place before another Judge. If a party expects to call a Judge as a witness, he or she shall notify the Court at last five days prior to the trial.
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  3. It is a public policy to encourage and preserve confidence in certain professional relations. Witness examination will be not permitted in the following cases: (a) An attorney or spokesperson shall not, without consent of the client, be examined as to any communication made by the client to the attorney, or advice given by the attorney, in the course of professional employment. (b) A physician, surgeon or nurse shall not, without the consent of the patient, be examined in a civil proceeding, as to any information acquired in attending the patient, which was necessary to enable the physician or surgeon to prescribe or act for the patient. (c) A licensed psychologist or psychiatrist shall not, without consent of a client or patient, be examined as to any communication made by the client to the psychologist or psychiatrist, or upon advice given the client in the course of professional employment. (d) A tribal social worker shall not be examined in a civil or criminal court proceeding as to any communication by a client in the course of non-investigatory professional activity when the communication was given to enable the social worker to aid the client.
  4. A witness who is otherwise competent may not have a privilege of confidentiality in the following situations: (a) Where a legally responsible client has given consent to disclosure of information. (b) When a privileged communication shows intent to commit a crime or harmful act. (c) When information reveals that a person under the age of 18 years or over the age of 60 years, was the victim of a crime, abuse or neglect. (d) When a professional is an employee of the Confederated Tribes and the employer has determined that examination in a civil or criminal court proceeding is necessary in the performance of the duty of the professional as a tribal employee.

200.375 Conduct of Witness at Trial. In a civil or criminal court proceeding a witness shall do the following:

  1. Testify as to those facts of which he or she has personal knowledge and which are derived from the witness’s own observations, except where the court has declared that the opinions or inferences of the witness, or declarations of others, are admissible.
  2. Answer questions that relate to the matter in issue although the answer may establish a claim against that witness; but he or she need not give an answer which will have a direct tendency to subject the witness to punishment for an offense.

200.380 Notice.

  1. Summons to service as a witness in a criminal trial shall be made upon the person named by any means contained in WSTC 200.200 which is most reasonably calculated to ensure appearance. (a) The names of desired witnesses must be made available to the Court within five calendar days from date of arraignment. Where witness requests are provided after that time, the Court cannot guarantee witness appearance. (b) Off-Reservation witnesses may be summoned by the Court, but jurisdictional limitations prevent a guarantee of appearance. (c) Where the Court reasonably determines that a witness will not respond to a summons, the Court may issue a subpoena compelling attendance.
  2. Parties to a civil proceeding will be held personally responsible for production of witnesses to support their case. The Court will send copies of a Notice of Hearing to identified witnesses by regular mail. Where a party in such action can show necessity for compelling attendance, the Court may issue a subpoena commanding appearance.

200.385 Oaths.

  1. A witness can testify only upon the giving of an oath or affirmation except that a child under the age of 10 years may testify upon a promise in open Court to tell the truth.
  2. Every Court Judge, Clerk of the Court or recognized notary public is authorized to administer and witness the giving of oaths or affirmations.

200.390 Fees.

  1. Witnesses who testify voluntarily may be paid by the party calling them.
  2. Witnesses appearing in response to a summons or subpoena issued by the Court shall be paid a witness fee as established by the Court.
  3. Witness fees shall not exceed twelve dollars ($12) a day and 12¢ a mile round-trip from residence to Court for each day of attendance.

X. JUDGMENT

200.500 Judgment Defined. A judgment is the final determination by the Tribal Court of the rights of the parties in a proceeding before the Court. Other determinations in a proceeding that are intermediate in nature are called orders.

200.502 Order for Payment. In all civil cases, judgment shall consist of an order of the Court awarding money damages, to be paid to the injured party, or directing the surrender of certain property, or the performance of some other act necessary to compensate the injured party.

200.505 Default Judgment Before Trial. A default judgment may be had when the defendant fails to appear within 30 days after having been duly served with the summons. The Judge shall first grant an order of default after finding that the defendant was duly served and has failed to appear. The plaintiff shall then present to the Judge evidence showing that plaintiff is entitled to the relief requested. Upon such showing, the Judge shall have authority to award relief up to the amount requested in plaintiff’s complaint.

200.506 Default Judgment at Trial or Hearing. Where a defendant or respondent fails to appear at the scheduled trial or hearing, the Court may allow the plaintiff or petitioner to proceed to offer evidence. A default judgment may then be rendered upon the evidence presented, granting such relief as the Court deems appropriate.

  1. Before a default judgment is ordered, the Court must find that there has been service of notice and a failure to answer or appear.
  2. Plaintiff must present proof of the claim asserted, or show that the relief requested can be reasonably determined from the evidence available.

200.509 Modification of Judgment. Upon petition of the prevailing party in a civil action, and upon a showing of substantially changed circumstances, the Court may entertain a motion for modification of judgment. It is within the discretion of the Court to grant or deny such motion.

200.510 Relief from Judgment. In the case of a default judgment the Court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, decree, order or other proceeding taken against him through his mistake or inadvertence.

200.511 Negligence. Where an injury is adjudged to have resulted from negligence by the defendant, the judgment order may fairly compensate the injured party for all of the loss suffered.

200.512 Intentional Injury. Where the Court finds that an injury to a party was suffered through deliberate action of the defendant, the judgment order may impose an additional punitive penalty in addition to compensation damages.

200.513 Both Parties Negligent. Where the Court finds that injury to the plaintiff resulted from the negligence of both the plaintiff and the defendant or defendants, the Court may compensate the plaintiff for the proportion of the loss or damage caused by the defendant or defendants.

XI. ENFORCEMENT OF JUDGMENTS

200.515 Enforcement of Judgments for Other than Payment of Money. A judgment requiring a party to do an act within a specified period, other than the payment of money may be enforced by punishing the party refusing or neglecting to comply with the judgment as for a contempt pursuant to WSTC 200.600 through 200.610.

200.520 Enforcement of Judgments for Payment of Money, or Delivery of Real or Personal Property. The party in whose favor a judgment is given which requires the payment of money, the delivery of real or personal property, or either of them, may have an order of execution issued by the Court for its enforcement.

200.522 Issuance of Order of Execution, Contents.

  1. The order of execution shall be issued by the Tribal Court and directed to the Chief of Police. It shall be of a form prescribed by the Tribal Court and shall describe the judgment, and if it is for money, shall state the amount actually due, and shall direct the Chief of Police to execute upon the property of the judgment debtor.
  2. If the judgment is for money, the order of execution shall direct the Chief of Police to sell such property of the judgment debtor as is necessary to satisfy the judgment debt
  3. If the judgment is for the delivery of the possession of real or personal property, it shall require the Chief of Police to deliver the possession of real or personal property to the party that is entitled to possession. (4) The Court may permit payment of monies due on judgments in any reasonable series of installments that would provide necessary relief to the injured party.

200.525 Property Exempt from Execution. The following property of the judgment debtor shall be exempt from execution:

  1. Real property held in trust for the benefit of the judgment debtor by the United States Government.
  2. A vehicle to the value of $1,000.
  3. The home of a judgment debtor, including a mobile home, to the value of $20,000.
  4. The tools, implements, or apparatus necessary to enable the judgment debtor to carry on the trade, occupation or profession by which he normally earns his living, to the value of $2,000.
  5. Personal effects not to exceed a value of $500.
  6. Funds in the IIM account of the judgment debtor not to exceed $500.
  7. Indian artifacts of the judgment debtor.
  8. 75% of the take home wages or salary of the judgment debtor earned on the Reservation.

200.527 Property Exempt from Execution by All Persons Except the Confederated Tribes. The following property shall be exempt from execution by all judgment creditors except the Confederated Tribes of the Warm Springs Reservation of Oregon: (1) The monthly per capita payment of the judgment debtor.

200.530 Execution Procedure.

  1. The Chief of Police shall seize such property of the judgment debtor as shall appear necessary to satisfy the judgment debt. If, after satisfying the judgment debt, any property or the proceeds of property remain in the custody of the Chief of Police, he shall deliver the property or proceeds to the judgment debtor.
  2. If the judgment debt has not been satisfied, the Chief of Police shall sell the property of the judgment debtor at a public sale. The proceeds of the sale shall be first applied to the costs of the Tribe in seizing and selling the property and then to the satisfaction of the judgment debt. Any excess proceeds shall be returned to the judgment debtor.

200.532 Notice of Sale.

  1. Before the sale of property on execution, notice of the sale shall be given by posting a written or printed notice of the time and place of sale in three public places on the Reservation for not less than 14 days prior to the date of sale.
  2. A copy of the notice shall be mailed to the judgment debtor at his last known post office address or place of residence at least 14 days prior to the sale.
  3. In the case of real property or personal property with a fair market value in excess of $100, the notice shall also be published in the tribal newspaper at least seven days prior to the sale.

200.534 Postponement of Sale. If, at the time set for the sale, the Chief of Police is prevented from attending at the place of the sale, or if he deems it for the advantage of all concerned to postpone the sale for lack of purchasers, or other good reason, he may postpone the sale for a period not to exceed one week.

200.540 Garnishment. When property or money owing to the judgment debtor is in the possession of a third party, and is not otherwise exempt from execution, the Court may issue an order of garnishment directing that the third party deliver to the Chief of Police sufficient property or money to satisfy the judgment debt. In the case of personal property, the personal property shall be sold as is provided in WSTC 200.530-200.534. Failure of the third party to deliver such property or money by refusing or neglecting to comply with the order of garnishment shall subject such persons to prosecution for contempt pursuant to WSTC 200.600 through 200.610.

XII. CONTEMPT OF COURT

200.600 Contempt Powers.

  1. The Tribal Court has inherent power to enforce and maintain dignity and respect for the judicial process. In the reasonable exercise of such power, the Court may punish or compel obedience of those persons who obstruct or interfere with the orderly administration of justice on the Warm Springs Indian Reservation.
  2. Contempt of Court is limited to the following: (a) Maintenance of order during the conduct of Court proceedings. (b) Enforcement of Court orders and decrees. (c) Punishment of out-of-court acts which tend to obstruct the orderly administration of justice.

200.605 Contempt in the Presence of the Court.

  1. A penalty may be summarily imposed for certain contemptuous conduct occurring within the presence or personal knowledge of the Court. (a) A person may be found in contempt under this section for behavior which is disorderly, contemptuous or insolent, tending to disrupt the conduct of a judicial proceeding in progress; or (b) A person may be found in contempt under this section for failure to appear in response to a summons as a juror or witness in a judicial proceeding.
  2. A penalty will be imposed for contempt in the presence of the Court upon issuance of a Court order reciting the facts as they occurred and adjudging that the person accused was guilty of the contempt and, indicating that a specified penalty be imposed.
  3. The fine to be imposed for Civil Contempt shall not exceed $500.00 and/or thirty (30) days in jail for any single act, except that Court costs may, in addition, be assessed against a juror or witness whose failure to appear as summoned resulted in rescheduling of a judicial proceeding.

200.610 Contempt Occurring Outside the Presence of the Court.

  1. When a contempt has been committed, but not in the presence or personal knowledge of a Judge, a warrant may issue and the accused person arrested and brought before the Court to answer to the charge. (a) The accused person must be given an opportunity to be heard in his own defense at a full trial in open Court. (b) A criminal defendant is entitled to a trial by jury upon request. (c) Conviction may occur only upon admission of guilt or a judgment based upon the proof of guilt beyond a reasonable doubt. (d) A contempt proceeding under this section does not require the presence of a defendant to satisfy due process if there has been notice and an opportunity to appear and be heard.
  2. A conviction for any single act of contempt occurring outside the presence of the Court shall result in a fine of $180, or three months in jail, or both. In addition, the Court may order payment of restitution, Court costs or damages.

200.615 Failure to Comply. It is not contempt of Court where a convicted person fails to comply with the conditions imposed upon a suspended sentence, conditions of probation, or conditions of parole. Such conduct will be brought before the Court upon the scheduling of a show cause hearing. However, the Court may in its discretion issue an arrest warrant based on allegations of a probation or parole violation as defined in WSTC 202.645 or WSTC 202.655. In cases where an arrest is issued, the next scheduled bail/bond hearing shall be treated as the show cause hearing provided in this section.

  1. The alleged offender shall appear at the schedule hearing and show good cause why the original sentence should not be imposed for failure to comply.
  2. The scheduled hearing shall not be a full hearing on the merits; defense is limited to the issue of failure to obey.
  3. There will no jury trial available and witnesses will not be summoned, except upon permission of the Court.
  4. Upon a finding that the accused person has failed to comply, the Court may impose the original jail sentence and/or fine, or order compliance with the probationary program.

XIII. PERSONAL PROPERTY SECURITY PROCEEDINGS

200.700 Commencement of Proceedings. In cases in which personal property has been seized by the Confederated Tribes as security for civil fines which may be levied in Tribal Court, the tribal prosecutor, on behalf of the Confederated Tribes, shall be authorized and required to institute in Tribal Court a proceeding for the Confederated Tribes to have the personal property sold, with the proceeds being applied to payment of the fine. Such proceeding shall be commenced after the Tribal Court has entered an order directing payment of the civil fine. The proceeding shall be commenced by the filing of a petition.

200.705 Contents of Petition. The petition to initiate proceedings shall:

  1. Contain a true description of the personal property sought to be sold as nearly as practicable, together with all marks, brands or any special features calculated to designate the gear or equipment from other gear or equipment of like nature.
  2. Allege facts showing that the personal property was entitled to be seized by the Confederated Tribes.
  3. Be verified by the oath of the Warm Springs Tribal Chief of Police or one of his deputies, the tribal prosecutor, or the Justice Service Administrator.

200.710 Parties. In an action commenced pursuant to WSTC 200.700 the Confederated Tribes shall be plaintiff, and the owner of the personal property, if know, shall be the defendant. If the owner of the personal property is unknown, he shall be designated as “John Doe” if his true name is unknown.

200.715 Custody of Property Pending the Completion of Proceedings Commenced Pursuant to WSTC 200.700. Personal property seized by the Confederated Tribes shall be held in the custody of the Chief of Police of the Warm Springs Police Department. The Warm Springs Chief of Police shall be entitled to incur reasonable costs of storage and protecting the personal property which shall become a debt of the owner of the property.

200.720 Notice of Proceedings. Notice of proceedings commenced pursuant to WSTC 200.700 shall be given to the owners of seized personal property by service of summons and petition upon the owner in the manner and method described in WSTC 200.190 and WSTC 200.200. If the owner is unknown or cannot be found, the Warm Springs Chief of Police shall file with the Tribal Court an affidavit to such effect and the Chief of Police shall forthwith post written notices in three conspicuous places on the Reservation requiring the defendant to appear within four weeks from the date of the notice. The notice shall contain a brief description of the property sought to be sold and the date when and the place where such property was seized. If the owner fails to appear and answer, judgment-directing sale shall be entered as prayed for in the petition. All persons owning or claiming any interest in the person property shall be permitted to answer, setting forth their various interests.

200.725 Posting of Security. At any time after the seizure of personal property, but before the entry of judgment pursuant to WSTC 200.735, the owner of the seized property may require the return thereof upon giving the Chief of Police as security the sum of $500 plus $200 execution and court costs and agree that such security may be applied to any sum adjudged to be due from the possessor or owner of such equipment to the Confederated Tribes. The Confederated Tribes shall then deliver the property to the owner.

200.730 Hearing.

  1. At the hearing of the proceedings commenced pursuant to WSTC 200.700 the Court shall determine whether or not the personal property was properly seized by the Confederated Tribes and the amount of any fine to which the proceeds of the sale of the personal property are to be applied.
  2. If judgment is entered that the personal property was properly seized and that a fine is owing to the Confederated Tribes, a judgment shall be rendered ordering the personal property to be sold with the proceeds distributed according to WSTC 200.745.
  3. If judgment is entered in a proceeding commenced pursuant to WSTC 200.700 finding that the owner is entitled to possession of the property, the property shall be returned forthwith to the owner without assessment of court costs or storage costs.

200.735 Appeal. Any party to an action commenced pursuant to WSTC 200.700 shall have the right to appeal from the Court’s final judgment in the manner provided for in WSTC Chapter 203.

200.740 Sale. Sale of personal property ordered sold pursuant to proceedings commenced under WSTC 200.700 shall be conducted in accordance with the provisions of WSTC 200.532.

200.745 Distribution of Sale Proceeds.

  1. The proceeds of the sale conducted pursuant to WSTC 200.740 shall be distributed in the following order: (a) For costs of the sale and storage costs; (b) For Court costs assessed; (c) For payment of the fine assessed; (d) To the owner of the property.
  2. All reasonable efforts shall be made to locate the owner of the property and distribute such funds to the owner. If the owner cannot be found, the excess proceeds shall be held by the Confederated Tribes for a period of one year from the date of judgment. If not claimed prior to the expiration of a one-year period, the funds shall be placed in the general fund of the Tribes for the Tribes’ use.

200.750 Procedures Applicable to Disposition of Seized Contraband. Contraband seized by the Confederated Tribes shall be disposed of in accordance with the provisions of WSTC 200.700 through 200.745, except in the case of narcotics or other like items harmful to the public interest which items shall be destroyed pursuant to an order of the Tribal Court and under the supervision of the Warm Springs Chief of Police.

XIV. RESTITUTION PROCEEDINGS

200.800 Restitution Order. In any case before the Tribal Court in which the Court is authorized to order one of the parties to make restitution to any person, the Court, if it orders restitution, shall do so in accordance with the provisions of WSTC 200.800 through 200.810. Restitution shall mean full, partial or nominal payment of actual damages to a person. Restitution is independent of and may be awarded in addition to punitive compensation.

200.805 Factors Considered in Ordering Restitution. In determining whether to order restitution which is complete, partial or nominal, the Court shall take into account:

  1. The financial resources of the person paying restitution and the burden that payment of restitution will impose;
  2. The ability of the person owing restitution to pay restitution on an installment basis or on other conditions to be fixed by the Court; and
  3. The rehabilitative effect on the person ordered to pay restitution of the payment of restitution and the method of payment. If the person ordered to pay restitution objects to the imposition, amount or distribution of the restitution, the Court shall allow him to be heard on such issue.

200.810 Effect of Restitution Order on Other Remedies of Recipient of Restitution. Nothing in WSTC 200.800 or 200.805 shall limit or impair the right of a person injured by another to sue and recover damages from that person in a civil action. However, if that person should obtain a judgment, the defendant in that action shall be entitled to a credit for any restitution paid to the judgment-holder by him.

XV. ENFORCEMENT OF TRIBAL INTEGRATED RESOURCES MANAGEMENT PLANS

200.820 Responsibility for Enforcement of Integrated Resource Management Plans. The General Manager of the Natural Resources Department (hereinafter “General Manager”) shall have primary responsibility for enforcement of the provisions of the Integrated Resources Management Plans (“IRMP”) adopted by the Tribal Council. The Integrated Resources Management Plan for Forested Lands was originally adopted by Tribal Council Ordinance No. 74 on April 29, 1992. The Integrated Resources Management Plan for Range Lands was adopted by the Tribal Council by Resolution No. 9723 on June 15. 1999. The Warm Springs tribal police and the Tribal Prosecutor shall provide assistance to the General Manager of the Natural Resources Department as needed to enforce the terms of the IRMP. The General Manager shall initiate this process through the filing of a complaint with the Warm Springs Police Department.

200.821 Inspection and Monitoring. The General Manager and his designees shall have the authority to enter, inspect and monitor all tribal lands and premises on tribal lands within the Reservation to ensure compliance with the IRMP. Entrance on allotted and fee lands in which the Tribe has no interest may only be had pursuant to the consent of the appropriate person or pursuant to a search warrant.

200.822 Education and Voluntary Compliance. The primary means for carrying out the provisions of the IRMP shall be education and voluntary compliance. The General Manager shall endeavor to resolve violations through education and verbal recommendations for mitigation necessary to correct the violation.

200.823 Issuance of Compliance Orders. In appropriate cases, where less restrictive means have been ineffective or are inappropriate, the General Manager, in consultation with the appropriate committee, shall have authority to issue a written order to anyone within the jurisdiction of the Tribes to correct a violation. The order may include required mitigation, monitoring and reporting.

200.824 Enforcement of Compliance Orders. The General Manager, through the Tribal Prosecutor, shall be entitled to seek injunctive and/or declaratory relief in connection with compliance orders. In addition to injunctive or declaratory relief, the Tribal Court may award damages which include, but are not limited to, the cost of investigations, inspections or monitoring surveys which lead to the establishment of violations; expenses incurred by the

Tribes in removing, correcting, or terminating any adverse effects upon human health and the environment resulting from the violative activity, whether or not accidental; and compensation for loss or destruction of wildlife, fish or aquatic life, or their habitat, or for any other damage caused by the violative activity, either to the Tribes or to any residents of the Reservation where directly aggrieved by the violative activity, or both. In any action brought under this section, the Court may also award the Tribe its reasonable costs incurred in enforcing the provisions of the IRMP, including its reasonable attorney fees.

200.825 Civil Penalties. Violation of any compliance order by any person subject to the jurisdiction of the Tribal Court shall be punishable by a fine not to exceed $5,000 for each day that such violation continues. The Tribal Council hereby finds that such civil penalties are reasonably related to the administrative expenditures necessary to maintain the Tribes’ health, welfare, and economic security, through the management, protection and development of natural resources on the Reservation. In determining the amount of a civil penalty, the Tribal Court shall consider the nature, circumstances, extent and gravity of the violation or violations, and, with respect to the violator, the economic benefit (if any) resulting from the violation, the history of such violations, any good faith efforts to comply with the applicable requirements, the economic impact of the penalty, and such other matters as justice may require. A single operational upset (any incident or activity which deviates from the normal operation of a permitted activity) which leads to simultaneous violations of more than one standard shall be treated as a single violation. The General Manager is authorized to commence an action under this section in the District Court for the United States if jurisdictional grounds are satisfied.

200.826 Criminal Penalties. Any person subject to the criminal jurisdiction of the Warm Springs Tribal Court who knowingly violates any compliance order issued pursuant to WSTC 200.823, shall be deemed guilty of Knowing Violation of Compliance Order, and, upon conviction, may be punished by a fine not to exceed $5,000 or by imprisonment for a period not to exceed one year, or by both such fine and imprisonment.

200.827 Exclusion. A knowing violation of a compliance order shall subject the violator to exclusion pursuant to the provisions of Warm Springs Tribal Code Chapter 300 “Exclusion of Persons Not Legally Entitled to Reside on the Reservation.”

200.828 Seizure and Disposition of Security. In cases in which the General Manager deems that there is a substantial risk of nonappearance in Tribal Court enforcement proceedings, the personal property of violators may be seized to secure payment of any fines which may be levied in the Tribal Court. Seizure and disposition of personal property shall be conducted in accordance with the provisions of WSTC 200.700 et. seq.

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