TITLE VI JUDICIAL REMEDIES CHAPTER 1 GENERAL PROVISIONS

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1 TITLE VI JUDICIAL REMEDIES CHAPTER 1 GENERAL PROVISIONS Section Purpose. The purpose of this title is to provide rules and procedures for certain forms of relief, including injunctions, declaratory judgments, mandamus and prohibition. This title shall not be construed as limiting other forms of judicial remedies and relief as are necessary for adjudication of individual rights. Section General Remedies. In any civil action, the Court may provide equitable or legal relief. The Court may adopt common law remedies, unless the measure of damages are specifically provided by contract or elsewhere in this Code. CHAPTER 2 INJUNCTIONS Section Injunctive Relief. There exists an action known as an action for injunctive relief. Section Kinds of Injunctive Relief. Relief by injunction is either temporary or permanent. Temporary injunctions may be referred to as interlocutory injunctions, and are either temporary restraining orders or preliminary injunctions. Permanent injunctions may be referred to as final injunctions. Section Purposes for Which Injunctions Are Specifically Prohibited. 1. To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded; 2. To prevent the execution of a tribal law by officers of the law, for public benefit; 3. To prevent the breach of contract, the performance of which would not be specifically enforced; 4. To prevent the exercise of a tribal office in a lawful manner, by the person in possession; 5. To prevent a legislative act by Tribal government. VI-1

2 Section Permanent Injunction By Judgment or Decree in Civil Action. A permanent injunction is obtained by a judgment or decree in a civil action under the procedures applicable to civil actions, and subject to the limitations of this Chapter. Section Preliminary Injunctions-Temporary Restraining Orders-Notice-Hearing-Duration-Security. No preliminary injunction shall be issued without notice to the adverse party. No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall: (1) be endorsed with the date and hour of issuance; (2) be filed forthwith in the Tribal Court Administrator s office and entered of record; (3) define the injury and state why it is irreparable and why the order has been granted without notice; and (4) expire by its terms within such time after entry, not to exceed fifteen (15) days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, a motion for a preliminary injunction or show cause hearing must be set down for hearing at the earliest possible time, taking precedence over all other matters except older matters of the same character; and when the motion comes on for hearing, the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the Court shall dissolve the temporary restraining order. On two (2) days notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the Court may prescribe, the adverse party may appear and move for its dissolution or modification, and in that event the Court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. Except as otherwise provided by law, no restraining order or preliminary injunction shall be issued, except upon the giving of security by the applicant, in such sum as the Court deems proper, for the payment of such costs and damages as may VI-2

3 be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the Ponca Tribe of Nebraska, or of an officer or agency thereof, nor shall it be required of a married person in a suit against the other party to the marriage contract. A surety upon a bond or undertaking under this rule submits himself to the jurisdiction of the Court and irrevocably appoints the Tribal Court Administrator as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the Court prescribes may be served on the Tribal Court Administrator who shall forthwith mail copies to the person giving the security if their addresses are known. Section Form and Scope of Injunction or Restraining Order; Service. Every order granting an injunction and every restraining order shall: (1) be specific in terms; (2) describe in reasonable detail, and not be reference to the complaint or other document, the act or acts sought to be restrained; and (3) is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. Section Grounds for Injunction. An injunction may be granted: 1. When it appears by the pleadings on file that a party is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act complained of, either for a limited period or perpetually; 2. When it appears during the litigation that either party is doing or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party respecting the subject matter of the action, and tending to render the judgment ineffectual; 3. In all other cases where an injunction would be proper in equity. VI-3

4 CHAPTER 3 DECLARATORY RELIEF Section Power of Court to Provide Declaratory Relief Form and Effect of Declarations. The Tribal Court shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. The declaration may be either affirmative or negative in form and effect and such declaration shall have the force and effect of a final judgment and decree. An action for declaratory relief shall involve a controversy of justiciable character between parties having adverse interests. The party seeking relief must have a legally protectable interest. Section Construction and Determination of Validity of Written Instruments and Legislative Acts. Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a tribal law, ordinance or contract, may have determined any question of construction or validity arising under the instrument, law, ordinance or contract and obtain a declaration of rights, status, or other legal relations thereunder. Section Procedure. Actions for declaratory relief shall be brought by petition in accordance with the tribal rules of civil procedures. Section Parties to be Joined in Action for Declaratory Relief. When declaratory relief is sought, all persons shall be made parties who have or claim any interest that would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. Section Tribe Joined in Proceeding Involving Tribal Law Or Ordinance. In any proceeding that involves the validity of a tribal law, ordinance, policy or regulation, the Tribe shall be made a party and shall be entitled to be heard. Section Trial of Issues of Fact. When a proceeding under this Chapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions. Section Judgment Refused Where Controversy Would Not Be Terminated. The Court may refuse to render or enter a VI-4

5 declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. Section Chapter Declared Remedial. This Chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; it is to be liberally construed and administered. CHAPTER 4 WRIT OF MANDAMUS Section Power to Issue Writ/Purposes For Issuances. The writ of mandamus may be issued by the Tribal Court or the Tribal Appellate Court to the Tribe, or any of its subdivisions, including individuals who are officials of the Tribe and any of its subdivisions, to compel the performance of an act which federal or tribal law, ordinance, policy or procedure specifically enjoins as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded from. Section Writ Issued When Ordinary Remedy Inadequate. The writ of mandamus shall be issued in all cases where there is no plain, speedy, and adequate remedy, in the ordinary course of law. It shall be issued upon petition and affidavit of the party beneficially interested. Section Grant of Writ on Default Prohibited. The writ of mandamus shall not be granted by default. The case must be heard by the Court whether the adverse party appears or not. Section Service of Writ-Service on Majority of Board. The writ of mandamus must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the Court. Service upon a majority of the members of any board or body is service upon the board or body, whether at the time of the service the board was in session or not. Section Alternative and Peremptory Writs-Terms of Writ. The writ of mandamus may be either alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party, immediately upon the receipt of the writ, or at some other specified time, to do the act required to be performed, or to VI-5

6 show cause before the Court, at a specified time and place, why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done the command, must be omitted, and a return day inserted. Section Alternative Writ Issued Without Notice-Minimum Notice Required for Peremptory Writ. When the application for writ of mandamus to the Court is made without notice to the adverse party, and the writ be allowed, the alternative writ must be first issued; but if the application be upon due notice, and the writ be allowed, the peremptory writ may be issued in the first instance. The notice of the application, when given, must be at least ten (10) days. Section Answer to Show Cause Against Writ. On the return of the alternative writ of mandamus, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may show cause by answer, under oath, made in the same manner as an answer to a complaint in a civil action. Section Hearing By Court When No Answer Made or No Questions of Fact Raised. If no answer is made, the case must be heard on the papers of the applicant. If the answer raises only questions of law, or puts in issue only immaterial statements, not affecting the substantial rights of the parties, the Court must proceed to hear, or fix a day for hearing the case. Section Objections and Proof Countervailing Answer Introduced By Applicant at Trial. On the trial the applicant is not precluded by the answer from any valid objection to its sufficiency and may countervail it by proof, either in direct denial or by way of avoidance. Section Discretionary Jury Trial And Postponement- Statement of Question to Be Tried-Assessment of Damages. If an answer be made which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of which allegation the application for the writ is based, the Court may, in its discretion, order the question to be tried before a jury, and postpone the hearing until such trial can be had and the verdict certified to the court. The question to be tried must be distinctly stated in the order for trial. VI-6

7 Section Verdict Transmitted to Court-Hearing on Application. If no notice of a motion for a new trial be given or, if given, the motion be denied, the Tribal Court Administrator, within five (5) days after rendition of the verdict or denial of the motion, must transmit to the Court a certified copy of the verdict attached to the order of trial, after which either party may bring on the hearing on the application, upon reasonable notice to the adverse party. Section Elements Included in Judgment. If judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury or as may be determined by the Court, together with costs; and for such damages and costs execution may issue; and a peremptory mandamus must also be awarded without delay. If judgment shall be for the defendant, costs in his favor shall be taxed as a part thereof. Section Fine For Disobedience of Peremptory Writ- Imprisonment On Persistent Disobedience. When a peremptory mandamus has been issued and directed to any inferior tribunal, board, or person, if it appears to the Court that any member of such tribunal, board, or any person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the Court may, upon motion, impose a fine not exceeding one thousand dollars ($1,000.00) CHAPTER 5 WRIT OF PROHIBITION Section Writ of Prohibition-Purpose for Which Writ Issued. The writ of prohibition is the counterpart of the writ of mandamus. It arrests the proceedings, administrative or judicial, of any tribal tribunal, board, council, or person, when such proceedings are without or in excess of the jurisdiction of such tribal tribunal, board, council, or person, or are without or in excess of powers of authority conferred by federal or tribal law upon such tribal tribunal, board, council, or person. Section Power To Issue. The writ of prohibition may be issued by the tribal court or tribal appellate court to an inferior tribunal, or to a tribal board, council or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. VI-7

8 Section Affidavit and Application For Writ. The writ of prohibition may be issued upon affidavit or application of the person beneficially interested. Section Alternative And Peremptory Writs-Terms. The writ of prohibition must be alternative or peremptory. The alternative writ shall state generally the allegation against the party to whom it is directed, and command such party to desist or refrain from further proceedings in the action or matter specified therein, until further order of the court, and to show cause before the court, at a specified time and place, why the party should not be absolutely restrained from any further proceedings in such action or matter. The peremptory writ shall be in a similar form, except that the words requiring the party to show cause why he should not be absolutely restrained must be omitted and a return day inserted. Section Proceedings Same As For Mandamus. The provisions for proceedings in mandamus shall apply to this chapter, except where inconsistent therewith. Approved 8/23/09 Resolution VI-8

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