NINILCHIK TRADITIONAL COUNCIL

TRIBAL JUDICIAL ORDINANCE

CHAPTER 1. GENERAL PROVISIONS

Section 1. Name

This ordinance may be referred to as the “Judicial Code of the Ninilchik Tribe”.

Section 2. Purpose

The purpose of this ordinance is to create a tribal judicial system to enforce tribal laws based on customary and traditional values, to resolve disputes, and to allow for efficient and fair administration of tribal laws with a minimum of outside interference.

Section 3. Authority

Traditionally, laws and customs of Ninilchik Tribe Village were enforced without intervention. Ninilchik Tribe Village as a federally recognized Native Tribe has the inherent authority to regulate activities within its territory and to provide for the administration of justice. Under the traditional laws and customs of the village judicial authority is vested in the Traditional Council, which may delegate such authority to a separate court, or courts.

Further authority for this ordinance is found in Article V of the Constitution of the Ninilchik Tribe.

CHAPTER 2. INFORMAL COUNCIL ACTION

Traditionally the Village Council solved many problems in the village by seeking consensus among the people involved. Traditionally, the council and respected village elders would meet with and counsel people who were behaving improperly and tell them to behave properly. The council may continue such informal methods of handling problems notwithstanding the creation of a tribal court.

CHAPTER 3. COURT STRUCTURE

Section 1. Composition and General Authority

The Tribal Court of Ninilchik Tribe Village is a trial court of general jurisdiction composed of three judges, including a presiding judge.

The Appeals Court of Ninilchik Tribe Village is an appellate court composed of three judges, including a presiding judge.

Each court is vested with all power and authority necessary to implement its judgements, decrees, and determination in all matters within its jurisdiction.

The presiding judge of each court may prescribe court rules and operating practices, not inconsistent with this ordinance, as are necessary for the fair and efficient administration of justice.

Section 2. Tribal Court Jurisdiction

The Tribal Court may hear all cases of a civil or criminal nature that are governed by written tribal law or established custom.

The Court’s geographic jurisdiction shall extend to all areas within the Ninilchik Tribal Boundaries (see attached) to all lands acquired by the Traditional Council to all lands selected by the Ninilchik Native Association, Inc. under the Alaska Native Claims Settlement Act, and to the customary and traditional hunting and fishing grounds of the village.

The court shall have jurisdiction over members of the tribe, non-member Natives who are members of any recognized tribe under Federal jurisdiction, and any other persons residing within the geographic jurisdiction of the Court or who consent to the jurisdiction of the Court.

In matters within the jurisdiction of federal or state courts, the jurisdiction of the Tribal Court shall be concurrent.

Section 3. Appeals Court Jurisdiction

The Appeals Court shall have appellate jurisdiction over all cases within the jurisdiction of the Tribal Court. Appellate review is discretionary; the Appeals Court may decline to review any case or limit the issues it will consider on appeal.

Section 4. Tribal Court Judges

The Trial Court shall consist of one judge appointed by the Traditional Council from among its members, and two judges elected by majority vote of the tribal members. One of the elected judges must be a village elder. Two alternate judges, one of whom must be a village elder, will also be elected by majority vote of the tribal members. Election of judges shall occur at the annual election membership meeting and all judges shall serve mutli year stressed terms, unless Traditional Council provides otherwise by resolution.

The Court shall select a presiding judge from among its members following the annual election.

Should a vacancy occur through death, resignation, or otherwise, the Council shall fill such a vacancy for the remainder of the term.

Three judges or alternate judges are necessary to hold a session of court.

Judges shall be eligible voters of the Ninilchik Traditional Council, and will submit a background check to the Council Office within 30 days of election if a background check is not currently on file with the Council Office.

Section 5. Appeals Court Judges

The presiding judge of the Appeals Court shall be elected by a majority vote of the tribal members at their annual election or meeting and shall serve for a multi year or election date by resolution. Whenever, a case is accepted the presiding judge for appellate review, a second appeals judge shall be appointed by the Traditional Council. The presiding judge and the judge appointed by the Council will jointly select a third judge.

Should the presiding judge’s position become vacant the Traditional Council shall appoint a presiding judge to fill the vacancy for the remainder of the term.

Should the presiding judge be disqualified for a particular appeal, the Traditional Council shall appoint a replacement for purposes of considering that appeal.

Section 6. Disqualification of Judges

No judge shall be involved in a case where he or she has any direct interest, where any direct family member by marriage or blood is a party, or where a judge has any prejudice in the case.

Section 7. Removal of Judges

Judges failing to submit, or to pass, a background check shall be removed from office.

Any judge may be suspended, dismissed, or removed if there is a good reason determined by the Traditional Council, after a hearing, by two-thirds vote of the Council, provided that

a judge may not be removed because of his decision in a particular case.

Section 8. Applicable Law

In making decisions, the Courts shall apply the law in the following order of priority:

The ordinances, regulations, and past court decisions of Ninilchik Tribe Village, not inconsistent with applicable federal law.

The Ninilchik Tribe traditional and customary law, not inconsistent with applicable federal law or the written laws of Ninilchik Tribe Village.

State and Ninilchik Tribe law, not inconsistent with applicable federal law or with tribal law or custom.

CHAPTER 4. COURT PROCEDURES

Section 1. Definitions

The following words and phrases, whenever used in this chapter, shall have the following meanings:

“Banishment” means sending a person out of the geographical jurisdiction of the village for a period of time or permanently.

“Clerk” means the person who is designated the Clerk of the Tribal Court. This person may be the Village Administrator

Parties” means the Plaintiff(s) and Defendant(s) listed in a complaint and the Petitioner(s) and Respondents(s) listed in a Petition to use the Tribal Court

“Pleading” means any document filed with the court other than written evidence.

“Restitution” means paying a person that has been in some way damaged or injured; money, services, or property to compensate for damage or injury. This includes, but is not limited to, payment or medical bills or other bills, repair of property or replacement of property.

“Serve” means to give or see that someone receives something. “Service” is the act of serving.

“Violation” means breaking an ordinance and involves conduct inappropriate to an orderly society but is not a criminal offence.

Section 2. Sentences and Orders

The Tribal Court may order civil penalties not to exceed $5,000 or equivalent community service work for violation of tribal ordinances. The value of community service work shall be $10 per hour. The Court shall order equal fines for equal violation, and shall publish a schedule of standard fines unless such a schedule is established by resolution of the Traditional Council.

The work sentences shall benefit the needy, village residents as a whole, elders, youth, the victim of an offense, or the council. Tribal Court judges shall not pass work sentences that only benefit themselves or other officials personally.

The Tribal Court has the authority to order the defendant to pay restitution to his or her victims.

Section 3. Banishment

The Tribal Court may order the temporary or permanent banishment of an individual from the village. Banishment is a penalty of last resort, and is to be ordered only where the Tribal Court finds it necessary to protect the lives and safety of community members or to prevent repeated law-breaking and disruption of community life by an offender. Consistent with these guidelines, banishment may be ordered in the following circumstances:

Upon an individual’s third or more conviction of a tribal civil violation within a 12 month period the Tribal Court may order banishment for a period not to exceed one year.

Individuals convicted in state court of a felony involving the death or serious injury of another may be banished from the village, permanently or temporarily; provided, that the tribal court shall first conduct a hearing in accordance with this chapter to determine whether banishment is necessary to protect the lives and safety of community members.

Individuals who exhibit violent behavior such that their continued presence in the village is found to put other community members in danger may be banished for a period not to exceed one year, provided that a hearing is held in accordance with this chapter.

Section 4. Bringing Cases to Tribal Court

Violation of ordinances: A case involving violation of tribal ordinance is started by filing a written complaint with the clerk of the Tribal Court. The Complaint can be filed by a law enforcement officer or by another person who witnessed the violation. The person who filed the Complaint will give a copy of the Complaint to the person accused and file a proof of service with the court. The person who is accused of violating an ordinance shall be called the “defendant”.

Other Matters: All other cases shall be started, by filing a Petition To Use Tribal Court. The person who files shall be called the “Petitioner”. The petitioner shall briefly state the reason why he or she wants to use the Tribal Court. If the petitioner wants the Court to resolve a dispute or problem involving some entity or person, they shall be called the “Respondent”. A copy of the Petition shall be given to the Respondent by the Petitioner. The Petitioner shall file a proof of service with the court.

Service of Process: Service of process of a Complaint, Petition, or other document required to be formally served may be by personal hand delivery, of a person designated by the Court, by certified or registered United States mail, return receipt requested, or by some other means upon prior approval of the Court.

Proof of Service: Proof that a Defendant or Respondent was given a Complaint, Petition, or other document requiring formal service shall be made by filing of a Statement of Mailing with a Return Receipt attached, a Statement of Personal Service, or such other proof as may be required by the Court if other means of service of process are used.

Time For Hearing: A hearing shall be held no more than 90 days and no less than 5 days, unless it is an emergency, after the Clerk of the Tribal Court receives proof of service of the Complaint or Petition. The Clerk shall fill out a Notice to Appear In Tribal Court form and the Plaintiff or Petitioner filing the Complaint or Petition shall give the Notice to all Defendants or Respondents involved in the case. Emergencies are cases where harm or damage to a person or property could occur if the Court had to wait. In cases of emergencies, the Court may hold a hearing as soon as proof is filed with Court that all persons involved in the case have received Notice of the Hearing.

Changing The Time Of A Hearing: The time for a hearing may be changed if the Court determines there is good reason for having the hearing at a later time.

Section 5. Hearings

Hearings on Complaints: The presiding judge shall open the court, read the Complaint into the record, and ask the Defendant how he or she answers the Complaint. If the Defendant admits the complaint, the Court may immediately find that a violation has occurred and pass sentence. If the Defendant denies the violation or any significant part of the Complaint, the Plaintiff shall present his case. Plaintiff shall make a statement to the Court and may present other evidence. The Defendant may then make a statement to the Court and may present other evidence. Each party shall be entitled to cross-examine the other parties’ witnesses. The Court may give its decision immediately or may take the case under consideration. The Court may have a hearing at a later date to give its decision, or the Court may issue a written Judgment or Order without having another hearing.

Hearings on Petitions: The presiding judge shall open the court. The petitioner shall make a statement to the court saying what he or she wants the Court to do. The Respondent may make a statement saying what he or she wants the Court to do. If it appears there is a basis for a consensus the court may counsel with the parties to settle the case. If the parties cannot agree, the Petitioner shall present his or her evidence. The Respondent shall then present his or her evidence. Each party shall be permitted to cross-examine the other party’s witnesses. After both sides have presented their cases, the court may give the decision or may take the case under consideration. The Court may have a hearing at a later date to give its decision, or the Court may issue a written Judgement or Order without another hearing.

Other Hearings: The Court can hold other hearings on any matter as needed.

Notice of Hearing: The Clerk of the Tribal Court shall give all parties Notice of a hearing before each hearing. The Notice shall be given at least 10 days before a hearing except as otherwise provided for in this Chapter or in another village ordinance. Each party shall be responsible for serving their own witnesses with a Notice of hearing.

Records of Hearings: The Court shall keep a record of all cases consisting of a tape recording of all hearings and a copy of all documents filed with the Court and all Judgements or Orders entered by the Court in a case.

Confidentiality: All cases and hearings shall be a matter of public record except as otherwise provided in these ordinances or except when the Court determines that a specific hearing or specific record shall be closed to the public. If a case is closed to the public or is designated confidential by these ordinances, no persons other than parties, witnesses and Court personnel may participate in and have access to the records of the case without further order of the Court.

Section 6. Judgements

Judgements: After the Court decides a case, the presiding Judge shall fill out a Judgement that shall be filed with the Court by the Clerk of the Court. The Clerk will see that all parties in a case receive a copy of the Judgement.

Default Judgement: If, after 30 days, the Respondent to a petition cannot be found or does not come to the hearing after receiving Notice, the Court may rule against the Respondent when requested to do so or on its own decision

Proof of Compliance With Judgement: If a party is ordered to do something or make a payment to another party, proof that the ordered action has been done or that the money has been paid shall be filed with the Court within14 days of completion of the act or payment. If a party is ordered to pay a fine, payment shall be made to the Clerk of Tribal Court. Failure to comply with an Order of Judgement of the Court shall be considered Contempt of Court and may result in an additional fine or other penalty.

Section 7. Request to Change Order

After the Judgement or Order has been filed and given to the parties, a party may request that the Court change its Judgement or Order by filing a Request to Change Order and giving it to the other parties in the case. The Request shall state the reason the party believes a change should be made. The party may present new evidence to the Court in support of the request. The Court may deny the request or set a hearing according to these ordinances.

Section 8. Court of Appeals

Beginning an Appeal: If a person believes that the Tribal Court issued a Judgement or Order that does not follow tribal law, the party may request that the Judgement or Order be reviewed by the Court of Appeals. The party shall file an Appeal with the Tribal Court Clerk within 10 days after the party receives the Judgement or Order from the Tribal Court. The person appealing the Judgement or Order shall be called the “Appellant” and the other person(s) or party(s) in the case shall be called the “Appellee”. The Appellee may file a Response to Appeal.

Appeal: The Appeal shall state the name and address of the person who is appealing the case, the name of the case, and case number. It shall contain a brief statement of why the Appellant believes that the Judgement or Order is against Tribal law. A copy of the written Judgement or Order the Appellant is appealing shall be attached.

Response to Appeal: The Appellee may file a Response to Appeal within 10 days after receiving the Appeal. The Response to Appeal shall contain a brief statement of why the Appellee believes that the Judgement or Order of the Tribal Court is correct and not contrary to Tribal law.

Procedure: The Tribal Court Clerk shall notify the Traditional Council and the Presiding Judge of the Court of Appeals that an Appeal has been filed. The Presiding Judge of the Court of Appeals shall review the Appeal, the Response and the Tribal Court case file and may accept the case for review, deny appellate review, or refer the matter to a full Court of Appeals constituted pursuant to Chapter 3, Section 5 of this Title.

Hearing: If the Presiding Judge or the full Court of Appeals accepts a case for appellate review, the Tribal Court Clerk shall set a hearing date and shall give all parties notice of the hearing at least 10 days in advance. At the hearing, the parties may arguethe appeal but may not present new evidence.

Proof of Service: The Appellant shall give a copy of the Appeal to the Appellee(s). The Appellee shall give a copy of the Response to Appeal to the Appellant. Proof of service shall be made in the same manner as for complaints and petitions. If no Proof of Service is filed proving that a party entitled to be served with a pleading has received the pleading, the hearing must be postponed.

Decision of Appeals Court: After the Court hears an Appeal, the Presiding Judge shall fill out a Decision of Appeal that shall be filed with the Appeals Court and with the Tribal Court. The Clerk of Court will see that all parties in a case receive a copy of the Decision of Appeal. The Appeals Court can either uphold the Tribal Court Judgement or overturn it. If the Appeals Court overturns the Judgement, it can order the Tribal Court to redecide the case in a way that is consistent with the decision of the Appeals Court, it can order the Tribal Court to hold a new trial, it can require that different judges hear the new trial, or it can dismiss the case.

Extensions of Time: The Presiding Judge of the Court of Appeals may extend any of the time deadlines provided by this section.

Section 9. Forms

The Clerk of Court shall maintain commonly used court forms in the village of offices for use by the public.

PROPOSED AMENDMENT

NINILCHIK TRADITIONAL COUNCIL TRIBAL JUDICIAL ORDINANCE

TO CHAPTER 3., Section 4, add:

E. Judges shall be eligible voters of the Ninilchik Traditional Council, and will submit a background check to the Council Office within 30 days of election if a background check is not currently on file with the Council Office.

TO CHAPTER 3., SECTION 7., add: