THE LAW AND ORDER CODE
UTE INDIAN TRIBE
UINTAH AND OURAY RESERVATION
-Last Updated 1988
This Law and Order Code for the Ute Indian Tribe of the Uintah and Ouray Reservation is established for the purposes of strengthening Tribal self-government, providing for the judicial needs of the Reservation, and thereby assuring the maintenance of law and order on the Reservation.
TITLE I - GENERAL PROVISIONS
CHAPTER 1. PRELIMINARY PROVISIONS
§1-1-1. Constitutional Authority.
This Law and Order Code is adopted pursuant to the authority vested in the Tribal Business Committee under Article VI of the Constitution of the Ute Indian Tribe of the Uintah and Ouray Reservation.
§1-1-2. Name of Code.
This Law and Order Code shall be known as The Law and Order Code of the Ute Indian Tribe of the Uintah and Ouray Reservation and may be referred to as the Ute Law and Order Code, or Law and Order Code, and may be abbreviated as the U.L.O.C. Sub-codes and rules included herein may be cited by the name given in the sub-code or rule heading.
§1-1-3. Prior Inconsistent Ordinances Repealed.
Any and all ordinances of the Tribal Business Committee which conflict in any way with the provisions of this Law and Order Code are hereby repealed to the extent that they are inconsistent with or conflict with, or are contrary to the spirit and/or purpose of this Law and Order Code.
§1-1-4. C.F.R. No Longer Applicable.
Any and all provisions of the Code of Federal Regulations, Title 25, Part II, as presently constituted or hereafter constituted which deal with subjects covered in this Law and Order Code or are otherwise inconsistent with or in conflict with the provisions of this Law and Order Code or the purpose and/or spirit of this Law and Order Code are declared to be no longer applicable to the Uintah and Ouray Reservation.
§1-1-5. Amendment of Law and Order Code.
This Law and Order Code may be amended, additions made hereto, or deletions made herefrom in the manner provided for the adoption of tribal ordinances. Amendments and additions to this Law and Order Code shall become a part thereof for all purposes and shall be codified and incorporated herein in a manner consistent with the numbering and organization hereof.
CHAPTER 2. JURISDICTION
§1-2-1. Jurisdiction - Tribal Policy.
It is hereby declared as a matter of Tribal policy and legislative determination, that the public interest and the interests of the Ute Indian Tribe demand that the Tribe provide itself, its members, and other persons living within the territorial jurisdiction of the Tribe as set forth in Article I of the Constitution of the Ute Indian Tribe with an effective means of redress in both civil and criminal cases against members and non-Tribal members who through either their residence, presence, business dealings, other actions or failures to act, or other significant minimum contacts with this Reservation and/or its residents commit criminal offenses against the Tribe or incur civil obligations to persons or entities entitled to the Tribe's protection. This action is deemed necessary as a result of the confusion and conflicts caused by the increased contact and interaction between the Tribe, its members, and other residents of the Reservation and other persons and entities over which the Tribe has not previously elected to exercise jurisdiction. The jurisdictional provisions of this Law and Order Code, to insure maximum protection for the Tribe, its members and other residents of the Reservation, should be applied equally to all persons, members and non-members alike.
§1-2-2. Territorial Jurisdiction.
(1) The Jurisdiction of the Courts of the Ute Indian Tribe shall extend to the territory within the original confines of the Uintah and Ouray Reservation as set forth by Executive Orders of October 3, 1861, and January 5,1882, and by the Acts of Congress approved May 27,1902, June 19,1902, and March 11,1948, and to such other lands without such boundaries as have been or may hereafter be added to the Reservation or held in trust for the Tribe under any law of the United States or otherwise.
(2) The jurisdiction of the Courts of the Ute Indian Tribe shall extend beyond the territorial limitation set forth next above, to effectuate the jurisdictional provisions set forth below, to the greatest extent permissible by law.
§1-2-3. Personal Jurisdiction.
(1) As used in these jurisdictional provisions, the word "person" shall include any individual, firm, company, association, or corporation.
(2) Subject to any contrary provisions, exceptions or limitations contained in either federal law, the Tribal Constitution, or as expressly stated elsewhere in this Law and Order Code, the Courts of the Ute Indian Tribe shall have civil and criminal jurisdiction over the following persons:
A. Any person residing, located or present within the Reservation for:
i) Any civil cause of action; or
ii) Any charge of criminal offense prohibited by this Code or other ordinance of the Tribe when the offense is alleged to have occurred within the Reservation.
B. Any person who transacts, conducts, or performs any business or activity within the Reservation, either in person or by an agent or representative, for any civil cause of action or charge of criminal offense for any act expressly prohibited by this Code or other ordinance of the Tribe arising from such business or activity.
C. Any person who owns, uses or possesses any property within the Reservation, for any civil cause of action or charge of criminal offense prohibited by this Code or other ordinance of the Tribe arising from such ownership, use or possession.
D. Any person who commits a tortious act or engages in tortious conduct within the Reservation, either in person or by an agent or representative, for any civil cause of action arising from such act or conduct.
E. Any person who commits a criminal offense prohibited by this Code or other ordinance of the Tribe, by his own conduct or the conduct of another for which he is legally accountable, if:
i) The conduct occurs either wholly or partly within the Reservation; or
ii) The conduct which occurs outside the Reservation constitutes an attempt, solicitation, or conspiracy to commit an offense within the Reservation, and an act in furtherance of the attempt or conspiracy occurs within the Reservation; or
iii) The conduct which occurs within the Reservation constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense prohibited by this Code or ordinances of the Tribe and such other jurisdiction.
(3) None of the foregoing bases of jurisdiction is exclusive, and jurisdiction over a person may be established upon any one or more of them as applicable.
§1-2-4. Jurisdiction Over Property.
Subject to any contrary provisions, exceptions, or limitations contained in either federal laws and regulations, the Tribal Constitution, or as expressly stated elsewhere in this Law and Order Code, the Courts of the Ute Indian Tribe shall have jurisdiction over any real or personal property located on the Reservation to determine the ownership thereof or rights therein or to determine the application of such property to the satisfaction of a claim for which the owner of the property may be liable.
§1-2-5. General Subject Matter Jurisdiction; Limitations.
Subject to any contrary provisions, exceptions, or limitations contained in either federal law, or the Tribal Constitution, the Courts of the Ute Indian Tribe shall have jurisdiction over all civil causes of action, and over all offenses prohibited by this Code except the Courts of the Ute Indian Tribe shall not assume jurisdiction over any civil or criminal matter which does not involve either the Tribe, its officers, agents, employees, property or enterprises, or a member of the Tribe, or a member of a federally recognized tribe, if some other forum exists for the handling of the matter and if the matter is not one in which the rights of the Tribe or its members may be directly or indirectly affected.
§1-2-6. Concurrent Jurisdiction.
The jurisdiction invoked by this Code over any person, cause of action, or subject shall be concurrent with any valid jurisdiction over the same of the courts of the United States, any state, or any political subdivision thereof; provided, however, this Code does not recognize, grant, or cede jurisdiction to any other political or governmental entity in which jurisdiction does not otherwise exist in law.
§1-2-7. Exclusive Original Jurisdiction.
(1) The Courts of the Ute Indian Tribe shall have exclusive original jurisdiction in all matters in which the Ute Indian Tribe or its officers or employees are parties in their official capacities.
(2) Nothing contained in the preceding paragraph or elsewhere in this Law and Order Code shall be construed as a waiver of the sovereign immunity of the Tribe or its officers or enterprises unless specifically denominated as such.
CHAPTER 3. ESTABLISHMENT OF COURTS; JUDGES AND OTHER COURT PERSONNEL
§1-3-1. Courts Established.
(1) There is hereby established a Ute Indian Appellate Court, which may be referred to as the Appellate Court, to handle all appeals from the Tribal Juvenile Court and Tribal Court as provided elsewhere in this Law and Order Code. The Appellate Court shall consist of three justices.
(2) There is hereby established a Ute Indian Tribal Court, which may be referred to as the Tribal Court, to handle all matters of a judicial nature not specifically placed within the jurisdiction of some other judicial forum. The Ute Indian Tribal Court shall be a court of general civil and criminal jurisdiction and shall hear appeals from all Tribal administrative bodies.
(3) There is hereby established a Ute Indian Tribal Juvenile Court, which may be referred to as the Tribal Juvenile Court, to handle all matters set forth in the Juvenile Code contained in this Law and Order Code.
(1) There shall be appointed:
(a) Three Appellate Court Justices for the Appellate Court;
(b) One Chief Judge and as many associate Judges as the Business Committee sees fit for the Tribal Court; and
(c) One Juvenile Court Judge and as many associate Judges as the Business Committee may see fit for the Juvenile Court.
(2) The appointment, qualifications, terms of office, and compensation to be received by such judges shall be determined by the Business Committee, provided, however, that a judge once appointed shall not have his compensation decreased during his term of office, and provided further that no judge shall be suspended or removed from office prior to the expiration of his term except as provided hereinafter.
(3) Judges may be appointed to successive terms of office.
§1-3-3. Removal of Judges.
Any judge may be removed from office prior to the expiration of his term of office by the affirmative vote of four members of the Business Committee only upon the grounds of neglect of duty or gross misconduct, and only after the holding of a public hearing at which the judge, after being given not less than five days notice, is given an opportunity to answer all charges and present evidence in his own defense.
§1-3-4. Powers and Duties of Judges.
(1) Judges shall administer justice and discharge all duties imposed upon them by law and shall hear and decide matters of a judicial nature and enter judgments and orders disposing of such matters. In the absence of the Court Clerk, a Judge may perform the clerk's duties in addition to his own and may receive cash bail or bonds whenever a clerk or other authorized person is not available.
(2) The Chief Judge shall be responsible for the administration of all courts, except the Tribal Juvenile Court which shall be administered by the Juvenile Court Judge, and shall supervise all probation and parole officers. In addition, the Chief Judge shall be responsible for the assignment of cases and the management of the Court's calendar and business. The Chief Judge shall designate an Associate Judge to act as Chief Judge in his absence.
(3) All judges of the Courts of the Ute Indian Tribe shall conform their conduct to the Code of Judicial Conduct as adopted by the American Bar Association.
(4) Every judicial officer has power to:
(a) preserve and enforce order in his immediate presence, and in proceedings before him, when he is engaged in the performance of his official duty;
(b) compel obedience to his lawful orders;
(c) compel the attendance of persons to testify in a proceeding before him as provided bylaw;
(d) administer oaths to persons in proceedings before him and in any other case where such shall be necessary in the exercise of his powers and duties;
(e) punish for contempt to assure the effectual exercise of these powers.
§1-3-5. Disqualification of Judges.
(1) A Judge shall disqualify himself from hearing any matter in which he has a direct interest or in which any party to the matter is a relative by blood, in the fourth degree (first cousins), or where he feels that he will not be able to render a just decision.
(2) Any party to a legal proceeding may request a change of assignment of judges to hear the proceeding by filing a written Affidavit of Prejudice giving sufficient, reasonable grounds why the judge assigned should not hear the case. Such affidavit shall be presented to the Judge assigned to hear the case who shall rule on the sufficiency of the affidavit, and, if sufficient, either disqualify himself or turn the affidavit over to the Chief Judge or some other judge for a decision as to whether a different Judge should be assigned.
§1-3-7. Oath of Office of Judge.
(1) Every Judge prior to taking office or acting in such office shall take the following oath or affirmation:
I, ____________,do solemnly swear (affirm) that l will support and defend the laws and the Constitution of the United States; that I will support, defend and uphold the Constitution, Bylaws and Treaties of the Ute Indian Tribe and support and defend the best interests of the Ute Indian Tribe; that I will support, uphold, and enforce the Law and Order Code of the Ute Indian Tribe and the resolutions and ordinances duly passed by the Business Committee of the Ute Indian Tribe, and that I will faithfully and impartially discharge the duties of my office to the best of my ability.
(2) Said oath may be administered by a member of the Business Committee or a Judge of the Court.
§1-3-8. Clerk of Court.
(1) There shall be a clerk of the Tribal Juvenile Court and a Clerk of the Tribal Court who shall also serve as the Clerk of the Tribal Appellate Court. Additional assistant clerks may be appointed by the Business Committee if such is deemed necessary.
(2) The appointment, qualifications, terms of office and compensation of Clerks shall be determined by the Business Committee.
§1-3-9. Duties of Clerks.
It shall be the duty of the Clerks of the Tribal Courts to supervise and keep all records, files, dockets or other records required to be kept by this Law and Order Code, by rule of the Court, Tribal resolution or as otherwise established, and further to keep a written record of all proceedings of the Court, to administer oaths, to collect and account for all fines, bail or bond money, fees or other charges which cause money to come to the Court, to deposit and account for all such moneys in the manner prescribed by the Business Committee, and to disburse such money as authorized by law. The Clerks shall further assist the Court in any way required to facilitate the performance of its duties, to aid the police or private citizens in their dealings with the Court, and may render advice and assistance to individual members of the Tribe or their counsel in the drafting of documents incidental to proceedings in the Courts.
§1-3-10. Oath of Clerks.
(1) Every Clerk shall take the following oath upon assuming office:
I, ____________, having been appointed Clerk of the Ute Indian Tribal (Juvenile) Court, do solemnly swear (affirm) that I will truly, faithfully, honestly and impartially discharge all of the duties of my office to the best of my ability and understanding.
(2) Such oath shall be administered by a Judge of the Tribal Court.
§1-3-11. Court Administrator.
The Business Committee may, at such time as it appears reasonably necessary for the efficient functioning of the Court, appoint a Court Administrator whose job it will be to aid the Chief Judge in administering the courts, the scheduling of cases and processing of papers for scheduled cases, and do such other things as the Business Committee or Chief Judge directs to assure the orderly and efficient operation of all Tribal Courts.
§1-3-12. Probation and Parole Officers.
(1) The Business Committee shall appoint one or more persons to be Probation and Parole Officers and shall determine the qualifications, terms of employment and compensation of such officers.
(2) Probation and Parole Officers, subject to the supervision of the Chief Judge, shall have the responsibility of assuring the faithful performance of probation or parole agreements by persons subject thereto, counseling such persons and their families, preparing presentence or other reports as requested by a Tribal Judge, and doing such other things as may be directed by a Tribal Judge or otherwise required by law.
(3) A Probation and Parole Officer shall have the authority of a police officer to make arrests for violation of probation or parole agreements.
§1-3-13. Bonding of Court Personnel.
(1) All Judges and Clerks shall be bonded, at the Tribe's expense, in amounts determined by the Business Committee, to secure the honest performance of their duties.
(2) The Business Committee may provide for the bonding at Tribal expense, of jailers of the Tribal jail for the specific and limited purpose of receiving cash bails and bonds to secure the release of persons incarcerated in the tribal jail.
CHAPTER 4. CONTEMPTS
§1-4-1. Acts or Failures to Act Which Constitute Contempt of Court.
The following acts or failures to act may serve as the basis for finding an individual or other entity in contempt of court:
(1) Disorderly, contemptuous, or insulting behavior toward a Judge while holding Court, which tends to interrupt the course of the proceedings or undermine the dignity of the Court.
(2) A breach of the peace, or loud or boisterous conduct which tends to interrupt the course of a judicial proceeding.
(3) Misbehavior in office, or other willful neglect or violation of duty as a counselor, attorney, or other spokesman, or a clerk, court administrator, police officer or other person appointed, elected, or hired to perform a representative, judicial or ministerial service in connection with the operation of the Court.
(4) Deceit, or abuse of process or proceedings of the Court by a party or counselor to a judicial proceeding.
(5) Disobedience to a lawful judgment, order or process of the Court.
(6) Assuming to be an officer, spokesman or other official of the Court and acting as such without authority.
(7) Rescuing or taking any person or property from the Court or an officer acting under Court order, contrary to the order of the Court.
(8) Unlawfully detaining or otherwise interfering with a witness or party to an action while such person is going to or from a Court proceeding or attending Court.
(9) Disobedience of a subpoena duly served, or refusing to be sworn or answer as a witness.
(10) Any other interference with the process, proceedings, or dignity of the Court or a Judge of the Court while in the performance of his official duties.
§1-4-2. Civil Contempt.
(1) A civil contempt is prosecuted to preserve, protect, enforce or restore the duly adjudicated rights of a party to a civil action against one under legal obligation to do or refrain from doing something as a result of a judicial decree or order.
(2) Relief in a civil contempt proceeding may be coercive or compensatory in nature as to the complaining party and may include a fine payable to the Court or to the complaining party or imprisonment of the party in contempt to secure compliance, or both.
§1-4-3. Criminal Contempt.
(1) Conduct which is directed at, or is detrimental to, the dignity and authority of the Court is a criminal contempt.
(2) Criminal contempt is an offense which may be punishable, at the discretion of the Court based on the nature of the conduct in question, with a fine of up to $500.00 and/or up to six (6) months in jail.
§1-4-4. Contempt Procedure.
(1) A direct contempt is one committed in the presence of the Court or so near thereto as to be disruptive of the Court proceedings, and such may be adjudged and punished summarily.
(2) All other contempts shall be determined at a hearing at which the person accused of contempt is given notice and an opportunity to be heard.
CHAPTER 5. COUNSELORS AND PROFESSIONAL ATTORNEYS
§1-5-1. Lay Counsel.
(1) Any person appearing as a party in any judicial proceeding before a Court of the Ute Indian Tribe shall have the right to be represented by a lay counselor (not a professional attorney) and to have such person assist in the preparation and presentation of his case.
(2) The Ute Indian Tribe shall have no obligation to provide or pay for such lay counselors and such obligation shall rest entirely with the person desiring such a counselor.
(3) Any person appearing as a lay counselor shall be subject to the same ethical obligations of honesty and confidentiality towards his client as would be a professional attorney, and the attorney client testimonial privilege shall apply in appropriate circumstances.
(4) Lay counselors shall be deemed officers of the Court for purposes of their representation of a party and shall be subject to the disciplinary authority of the Court in all matters related to their representative capacity.
§1-5-2. Right to be Represented by a Professional Attorney.
Any person appearing as a party in any civil or criminal action shall have the right to be represented by a professional attorney of his own choice and at his own expense; provided, however, that the Ute Indian Tribe has no obligation to provide or pay for such an attorney; provided further, that any such attorney appearing before the Courts of the Ute Indian Tribe shall have first obtained admission to practice before such Courts in accordance with the procedures set forth herein.
§1-5-3. Eligibility for Admission.
Any attorney who is an active member in good standing of the Utah State Bar, or any attorney certified and eligible to practice before the highest court of any other state or of the Supreme Court of the United States is eligible to be admitted to practice before the Courts of the Ute Indian Tribe.
§1-5-4. Procedure for Admission.
(1) Any professional attorney desiring to be admitted to practice before the courts of the Ute Indian Tribe shall apply for admission by certifying under oath, either verbally or in writing to the following:
(a) That he is an active member in good standing of the Utah State Bar or is certified and eligible to practice before the highest court of any other state or of the Supreme Court of the United States.
(b) That if admitted to practice before the Courts of the Ute Indian Tribe he will take the required oath as prescribed in the Law and Order Code for Attorneys and be bound thereby.
(c) That if admitted to practice he will accept and represent indigent clients without compensation or without full compensation when asked by a Judge of the Court to do so.
(2) The Admission Fee of $50.00 shall be tendered with the application, subject to return if the application is denied.
(3) Upon receipt of an application for admission to practice before the Courts of the Ute Indian Tribe, the Chief Judge shall review the application and may, but need not, investigate into the truth of the matters contained therein. If satisfied that the applicant meets the qualifications set forth herein, the Chief Judge shall notify such person who may appear in person to take the oath prescribed herein or may subscribe his signature to such oath and forward it to the Chief Judge.
(4) Upon the taking of the oath, either orally or in writing, the Chief Judge shall cause a certificate to be issued evidencing the admission of the attorney to practice before the Courts of the Ute Indian Tribe.
§1-5-5. Disbarrment and Discipline.
(1) Whenever it is made to appear to the Chief Judge that any attorney admitted to practice before the Courts of the Ute Indian Tribe has been disbarred or suspended from the practice of law in the State of Utah or other state to which reference for admission to practice was made as a condition to obtaining admission to practice before the Tribal Courts, he shall immediately be given notice at his last known address that he shall be suspended from practice before the Courts of the Ute Indian Tribe for an indefinite period unless he appears within five (5) days and shows good cause why such order should not be made.
(2) Any judge who finds an attorney admitted to practice before the Courts of the Ute Indian Tribe to be in contempt of Court may, in addition to any other sanction imposed, order the attorney to appear within ten (10) days and show cause why he should not be suspended from practicing before the Courts of the Ute Indian Tribe.
(3) The Chief Judge may, upon receiving a written, verified complaint which indicates that an attorney admitted to practice before the Courts of the Ute Indian Tribe has acted in an unethical or otherwise improper manner while functioning as an attorney, order such attorney to appear and defend himself at a hearing to hear all evidence relevant to the matter, and may order the suspension of such an attorney if such appears reasonably necessary or appropriate.
(4) All suspensions from practicing before the Courts of the Ute Indian Tribe shall be for an indefinite period unless the Judge specifically orders otherwise. An attorney suspended for an indefinite period, or one suspended for a specific period, may petition the Tribal Court for permission to re-apply for permission to practice at the end of one year or the specific period of suspension, and such permission shall be granted if it is made to appear, at a hearing or otherwise as the Court shall direct that he has been adequately reproved and now appears willing to conduct himself in a proper manner, and that the petitioner has been reinstated to practice if previously disbarred or suspended in another jurisdiction.
(5) Any person appearing as lay counsel for another may be suspended from further appearance as such for misconduct or improper behavior by any Judge upon the same conditions of notice and hearing provided professional attorneys.
§1-5-6. Standards of Conduct and Obligations for Attorneys and Lay Counsel.
(1) Every attorney admitted to practice before the Courts of the Ute Indian Tribe, and every lay counsel employed or appointed to represent another before such courts when acting in such capacity or in matters in any way related thereto, shall conform his conduct in every respect to the requirements and suggested behavior of the Code of Professional Responsibility as adopted by the American Bar Association.
(2) Both professional attorneys and lay counselors who hold themselves out as being available to act as such have a responsibility to accept as clients and represent without compensation or without full compensation, such persons as a Judge of a Tribal Court may feel have a particularly urgent need for such representation but are personally unable to afford or pay for such legal help.
§1-5-7. Oath of Attorneys and Counselors.
(1) Upon admission to practice as provided herein, an attorney shall take the following oath, either verbally before the Court, or subscribe his signature to such oath if admitted without personally appearing:
I do solemnly swear (affirm):
That I will support the Constitution and laws of the United States and support and defend the Constitution and Bylaws, Law and Order Code and all resolutions and ordinances of the Ute Indian Tribe;
That I will maintain the respect due the Courts and Judicial officers of the Ute Indian Tribe;
That I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land;
That I will employ for the purposes of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;
That I will maintain the confidences and preserve inviolate the secrets of my client, and will accept no compensation in connection with his business except from him or with his knowledge and approval;
That I will abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required injustice by the cause with which I am associated;
That I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man's cause for lucre or malice.
SO HELP ME GOD.
(2) A lay counselor hired, retained or appointed to represent another before any Court of the Ute Indian Tribe, shall take the foregoing oath at the time of his first appearance in Court.
§1-5-8. Admission Fees for Professional Attorneys.
(1) Before any professional attorney shall be admitted to practice before the Courts of the Ute Indian Tribe, and as an annual condition to maintaining that privilege, he shall pay a fee of $50.00, payable prior to taking the oath as set forth herein and annually thereafter. Any attorney failing to pay such annual fee within 30 days after the anniversary date of his admission shall forfeit the right to practice before the Courts of the Ute Indian Tribe until formally readmitted.
(2) A Judge of one of the Courts of the Ute Indian Tribe may waive the formal admission procedure and payment of the fee as required herein only in the case of an attorney, not a resident of the State of Utah, making an appearance for the limited purpose of a single, specific case, and only if such attorney is associated in such case with an attorney or counselor who is formally admitted to practice before the Courts of the Ute Indian Tribe.
CHAPTER 6. JURORS
§1-6-1. Eligibility for Jury Duty.
(1) Any enrolled member of the Ute Indian Tribe, between the ages of 18 and 70, who has not been convicted of a felony or a Class A offense under this Code, and who resides on the Uintah and Ouray Reservation, shall be eligible to be a juror, Judges and other officers or employees of the Court shall not to be eligible to be jurors while thus employed.
(2) The Chief Judge may by rule adopt procedures whereby non-enrolled Indians and non-Indians may be summoned for jury duty in cases in which one or more non-Indian parties are involved.
§1-6-2. Jury List.
Each year, the Business Committee, or the Chief Judge at the direction of the Business Committee, shall prepare a list of eligible jurors, which list shall contain not less than forty (40) names and which shall contain the names of persons from each community and Band, prorated as nearly as possible according to the relative populations of the communities and Bands.
§1-6-3. Trial Juries.
(1) The Clerk shall subpoena not less than twelve (12) persons from the list of eligible jurors to appear and be available to serve as jurors whenever a jury trial is scheduled in a civil or criminal matter.
(2) The selection from the list of eligible jurors shall be by lot or some other means of random, impartial selection.
(3) Selection of jurors to hear the case shall be accomplished as provided in the Rules of Civil and Criminal Procedure elsewhere in this Law and Order Code.
§1-6-4. Power to Excuse Jurors.
The Judge assigned to hear a case shall have the power to excuse a person subpoenaed to appear as a juror on account of sickness, disability, extreme hardship or other good cause shown upon the request for such excusal by the person subpoenaed.
§1-6-5. Compensation of Jurors.
Each juror who is called and reports for jury duty or who serves on a jury shall be entitled to receive such fees for daily service and/or mileage, if any, as the Business Committee shall establish by resolution, or as established by a rule of the Court.
CHAPTER 7. SUBPOENAS AND SERVICE OF OTHER PAPERS
§1-7-1. Issuance of Subpoenas.
(1) The Clerk shall issue subpoenas to compel the attendance of witnesses, jurors or such other persons as a judge may direct for a trial, hearing or other proceeding before a Court of the Ute Indian Tribe.
(2) In a criminal case, the complaining witness and all witnesses for the Ute Indian Tribe may be subpoenaed to appear at the date and time set for trial or a reasonable time before such time, plus the defendant shall have the right to have witnesses subpoenaed to appear in his behalf by notifying the Clerk of the Court of the names and addresses of such witnesses not less than ten (10) days prior to the scheduled trial date.
§1-7-2. Service of Subpoenas; Return on Service.
(1) Subpoenas in criminal cases shall be served by a tribal policeman, or other person designated by the Chief Judge, Chief of Police or Business Committee.
(2) Subpoenas in non-criminal cases may be served by any person, over 18 years of age, not a party to the action.
(3) Except by order of the Court based upon good cause shown therefor, no subpoena shall be served between the hours of 9:00 p.m. and 7:00 a. m. or on Sundays or legal holidays.
(4) The person serving a subpoena shall endorse upon the copy served his name, title, and the place, date, and time of service.
(5) The person serving a subpoena shall make a return to the Clerk stating the name of the case, the name of the person served, the place, date, and time of service, and shall subscribe his name thereto under penalty of perjury for the intentional making of a false return.
CHAPTER 8. GENERAL PROVISIONS
§1-8-1. Copies of Laws.
There shall be kept available for public inspection during regular business hours at the office of the Clerk of the Tribal Court, copies of this Law and Order Code and any amendments thereto, plus copies of all laws or rules which are incorporated by reference from other jurisdictions into this Law and Order Code, plus a copy of the Code of Professional Responsibility of the American Bar Association.
§1-8-2. Signature Defined.
The term "signature" or any term relating thereto as used in this Law and. Order Code or subsequent resolutions or ordinances of the Business Committee, shall mean the written signature, official seal, or the mark or thumbprint of any individual witnessed by two disinterested persons subscribing their names therewith.
§1-8-3. Records of Court Open to Public Inspection; Exceptions.
The files and records of the Courts of the Ute Indian Tribe shall be open for public inspection, except that the files and records of adoptions, incompetency proceedings, and Tribal Juvenile Court proceedings shall not be open to public inspection and may be inspected only with prior specific judicial authorization.
§1-8-4. Adoption by Reference Not A Waiver of Sovereign Power Of The Ute Indian Tribe.
The adoption of any law, code or other document by reference into this low and Order Code shall in no way constitute a waiver or cession of any sovereign power of the Ute Indian Tribe to the jurisdiction whose law or code is adopted or in any way diminish such sovereign power, but shall result in the law or code thus adopted becoming the law of the Ute Indian Tribe.
§1-8-5. Sovereign Immunity.
Except as required by federal law, or the Constitution and Bylaws of the Ute Indian Tribe, or as specifically waived by a resolution or ordinance of the Business Committee specifically referring to such, the Ute Indian Tribe shall be immune from suit in any civil action, and its officers and employees immune from suit for any liability arising from the performance of their official duties.
§1-8-6. Actions By or Against Tribe or Its Officers or Employees.
In any action otherwise authorized by or against the Tribe or its officers or employees arising from the performance of their official duties, the following modifications to the rules or procedures set forth in this Law and Order Code shall apply:
(1) The periods of time specified for civil cases or appeals of either a civil or criminal nature in which an answer, reply or other pleading or response of any kind shall be required shall be double the period specified.
(2) Neither the Tribe nor its officers or employees when involved in a civil action arising from the performance of their official duties shall be liable for the payment of the costs or expenses of the opposing party.
(3) Neither the Tribe nor its officers or employees when involved in a civil action arising from the performance of their official duties shall be required to post security by bond or otherwise for any purpose.
(4) No action, otherwise authorized, may be instituted against any officer or employee of the Tribe for a cause of action arising out of, or in the course of the performance of his duty, or any action upon the bond of any such officer or employee, unless there is filed with the complaint a cash or written bond or undertaking with at least two sufficient sureties subject to the jurisdiction of the Court in the amount of $300.00 or such greater amount as the Court may order, conditioned for the payment of such costs, charges and reasonable attorney's fees to be fixed by the Court as may be awarded against the Plaintiff in said action.
(5) No action may be instituted against the Tribe unless security under the same conditions as set forth next above is filed with the complaint.
§1-8-7. Limitations in Civil Actions.
Unless otherwise specifically provided in the Law and Order Code, the following limitations on the banging of civil actions will apply:
(1) Any action against the Tribe or its officers or employees arising from the performance of their official dudes must be commenced within one year of the date the cause of action accrued.
(2) Any other action must be commenced within three years of the date the cause of action accrued, provided, however, that any cause of action based on fraud or mistake shall not be deemed to have accrued until the aggrieved party has discovered or reasonably should have discovered the facts constituting the fraud or mistake.
§1-8-8. Principles of Construction.
The following principles of construction will apply to all of the Law and Order Code unless a different construction is obviously intended:
(1) Masculine words shall include the feminine, and singular words shall include the plural, and vice versa.
(2) Words shall be given their plain meaning and technical words shall be given their usually understood meaning where no other meaning is specified.
(3) Whenever a term is defined for a specific part of this Law and Order Code, that definition shall apply to all parts of this Code unless a contrary meaning is clearly intended.
(4) This Law and Order Code shall be construed as a whole to give effect to all its parts in a logical, consistent manner.
(5) If any provision of this Law and Order Code or the application of any provision to any person or circumstance is held invalid, the remainder of this Code shall not be affected thereby and to this end the provisions of this Law and Order Code are declared to be severable.
(6) Any typographical errors or omissions shall be ignored whenever the intended meaning of the provision containing the error or omission is otherwise reasonably certain to the Court.
(7) Any other issues of construction shall be handled in accordance with generally accepted principles of construction giving due regard for the underlying principles and purposes of this Law and Order Code.
The following definitions will apply to this Law and Order Code:
(1) "Indian" or "Indian person" shall include any person of Indian descent who is a member of any recognized tribe under federal jurisdiction.
(2) " Member" shall include a person whose name appears on the Membership Role of the Ute Indian Tribe of the Uintah and Ouray Reservation.
(3) "Reservation" shall include all lands within the exterior boundaries of the Uintah and Ouray Reservation as defined in Article I of the Constitution of the Ute Indian Tribe of the Uintah and Ouray Reservation.
(4) "Tribe" shall mean the Ute Indian Tribe of the Uintah and Ouray Reservation unless another or nonspecific Indian tribe is clearly intended.
(5) "Business Committee" or "Tribal Business Committee" shall mean the Uintah and Ouray Tribal Business Committee as specified in Article III, Section 1 of the Constitution of the Ute Indian Tribe of the Uintah and Ouray Reservation.
(6) "Superintendent" shall mean the Superintendent of the Bureau of Indian Affairs, Uintah and Ouray Agency, Utah.
(7) " Age of Majority" shall mean 18 years of age unless otherwise provided in this Law and Order Code or the Tribal Constitution.
TITLE II - UTE INDIAN RULES OF CIVIL PROCEDURE
I. GENERAL PROVISIONS.
Rule 1. SCOPE OF RULES
a) Scope. Except when different rules prescribed in this Code specifically apply, these rules shall govern the procedure in the trial and appellate courts of Uintah and Ouray Indian Reservation, in all actions, suits and proceedings of a civil nature, in all special proceedings established by law, and in criminal matters to the extent no different rule is specified.
b) Construction. These rules shall be liberally construed to secure a just, speedy, and inexpensive determination of every action.
c) One Form of Action. There shall be one form of action known, except in criminal cases, as a " civil action."
d) Collateral References. Any procedures or matters not specifically set forth herein shall be handled in accordance with the Federal Rules of Civil Procedure insofar as such are not inconsistent with these rules, and with general principles of fairness and justice as prescribed and interpreted by the court.
II. COMMENCEMENT OF ACTION AND PRELIMINARY MATTERS.
Rule 2. COMMENCEMENT OF ACTION; SERVICE OF PROCESS.
a) Commencement of Action. A civil action is commenced by filing a complaint and serving a copy of such on the defendant or defendants as provided herein. The court shall have jurisdiction from such time as both the complaint is filed and properly served upon the defendant and a return of service is filed with the clerk.
b) Service of Process. Service of process shall consist of delivering to the party served a copy of the complaint along with a summons, which need not be issued by the judge or clerk, which advises the defendant that he is required to answer the complaint within 20 days or a default judgment will be entered against him.
1) The return of service shall be endorsed with the name of the person serving and the date, time, and place of service and shall be filed with the clerk.
2) Service may be made on a party by delivering the required papers to the party himself or upon some person of suitable age and discretion over 14 years old at the party's home or principal place of business, or on an officer, managing agent or employee, or partner of a non-individual party.
3) Service by publication may be made upon order of the court for good cause shown by publishing the contents of the summons in a local newspaper of general circulation at least once per week for four weeks and by leaving an extra copy of the complaint or paper with the court for the party.
4) Service may be made by any law enforcement officer or other person, not a party, 18 years of age or older.
5) Service upon a person otherwise subject to the jurisdiction of the Ute Indian Tribal Court may be made anywhere in the United States; otherwise, service shall be made within the exterior boundaries of the Reservation.
6) If a person personally refuses to accept service, service shall be deemed performed if the person is informed of the purpose of the service and offered copies of the papers served.
c) All papers required to be filed shall be served as under this rule or, except for the complaint, may be served on the counselor or attorney of a party. Service of all papers except the complaint may be made by mail, first class postage prepaid and properly addressed.
Rule 3. TIME.
a) Computation. In computing any period of time set forth herein, the day that the period is to commence from shall not be counted and the last day of the period shall be counted; provided, however, that any time period under 7 days will not include intermediate Saturdays, Sundays, or legal holidays in the period and any period which would otherwise end on a Saturday, Sunday, or legal holiday will be deemed to end on the next day which is not a Saturday, Sunday or legal holiday.
b) Enlargement. The court for good cause shown may enlarge the prescribed period of time within which any required act may be done.
c) Notice of Motions. Written motions and notice of hearing thereon, other than ones which may be heard ex parte, shall be served not later than 5 days prior to the time specified for hearing.
d) Service by Mail. Whenever service is accomplished by mail, three days shall be added to the prescribed period of time, but such addition shall not cause Saturdays, Sundays, or legal holidays to be counted in the time period if they would not otherwise have been counted.
Rule 4. PLEADINGS, MOTIONS AND ORDERS.
a) Pleadings. There shall be a complaint and an answer; plus a responsive pleading shall be allowed whenever, by cross claim, counterclaim or otherwise, a party is first claimed against unless the court shall otherwise order. The court may grant additional leave to plead in the interest of narrowing and defining issues or as justice may require.
b) Motions and Orders.
Rule 5. GENERAL RULES OF PLEADING.
a) Claims for Relief. A pleading which sets forth a claim for affirmative relief shall contain:
b) Defenses and Denials. A party shall state in plain, concise terms the grounds upon which he bases his defense to claims pleaded against him, and shall admit or deny the claims and statements upon which the adverse party relies. If he is without information or knowledge regarding a statement or claim, he shall so state and such shall be deemed to be a denial. Denials shall fairly meet the substance of the claims or statements denied and may be made as to specified parts but not all of a claim, statement, or averment. A general denial shall not be made unless the party could in good faith deny each and every claim covered thereby. A claim to which a responsive pleading is required, except for amount of damages, shall be deemed admitted unless denied; if no responsive pleading is allowed the claims of the adverse party shall be deemed denied.
c) General Content of Claims and Defenses. Claims and defenses shall be simply, concisely, and directly stated, but may be in alternative or hypothetical form, on one or several counts or defenses, need not be consistent with one another, and may be based on legal or equitable grounds or both.
d) Affirmative Defenses. Matters constituting an affirmative defense or avoidance shall be affirmatively set forth. When a party has mistakenly designated a defense as a counterclaim or vice versa, the court may treat the pleading as if it had been properly designated if justice so requires.
e) Construction of Pleadings. All pleadings shall be construed so as to do substantial justice.
Rule 6. FORM OF PLEADINGS
a) Caption. Every pleading shall contain a caption heading, the name of the court, the title of the action, the court file number (if known) and a designation as to what kind of pleading it is. All pleadings shall contain the names of the parties except the name of the first party on each side may be used on all pleadings except the complaint.
b) Paragraphs. All averments of claim or defense shall be set forth in separate numbered paragraphs each of which is limited, as nearly as possible, to a single circumstance. Claims or defenses founded upon separate transactions or occurrences should be set forth in separate counts or defenses.
c) Exhibits; Adoption by Reference. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of a written instrument which is an exhibit to a pleading is a part thereof for all purposes.
d) Paper Used in Pleadings. Insofar as is possible, pleadings and other papers filed in any action shall be on legal size paper, double spaced, except for matters customarily single spaced, contain at least a 2-inch top margin and a 1-inch left side margin, and contain the court file number on the first page thereof. Substantial compliance with this rule will be sufficient for all parties not represented by a professional attorney.
Rule 7. DEFENSES AND OBJECTIONS.
a) When Presented. A defendant or other party against whom a claim has been made for affirmative relief shall have 20 days from the date of service upon him to answer or respond to the claim.
b) Motions. Motions to dismiss or to make the opposing parties' pleadings more definite may be made prior to answering a claim and an answer will not be due until 10 days after the disposition of the motion by the Court.
Rule 8. COUNTERCLAIM OR CROSSCLAIM.
a) Counterclaim. A party against whom a claim is made may assert in his answer any claims he has against the party claiming against him and both claims shall be resolved at trial.
b) Crossclaim. A party against whom a claim is made may assert any claim he has against a co-party and have such claim resolved at trial.
c) Third Party Claim. A party against whom a claim is made may complain against a third party who is or may be liable for payment or performance of the claim of the opposing party and have such complaint resolved at trial.
Rule 9. AMENDMENT OF PLEADINGS.
a) Amendment before trial. A party may amend his pleadings once before the opposing party has replied or if no reply is required, not less than 20 days before the case is scheduled for trial. The opposing party may respond, if appropriate, and the trial date be delayed if necessary. Other amendments shall be allowed only upon motion and order of the Court.
b) At Trial. When issues or evidence not raised in the pleadings are heard at trial, the judgment may conform to such issues or evidence without the necessity of amending the pleadings.
Rule 10. PARTIES.
a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest, except a personal representative or other person in a fiduciary position can sue in his own name without joining the party for whose benefit the action is maintained.
b) Guardian Ad Litem. When an infant, or insane, or incompetent person who has not had a general guardian appointed is a party, the Court shall appoint a guardian ad litem to represent such person in the suit or action.
c) Joinder of Parties. To the greatest extent possible given the limited jurisdiction of the Ute Indian Tribal Court, all persons or parties interested in a particular action may be joined in the action, but failure to join a party over whom the Court has no jurisdiction will not require dismissal of the action unless it would be impossible to reach a just result without such party; otherwise, the failure to join a party may be taken into account to assure that justice is done.
Rule 11. INTERVENTION.
A person may intervene and be treated in all respects as a party to an action in cases in which property in which he has an interest may be affected or a question or law or fact common to a claim of his may be litigated.
Rule 12. SUBSTITUTION OF PARTIES.
If a party dies or becomes incompetent or transfers his interest or separates from some official capacity, a substitute party may be joined or substituted as justice requires.
Rule 13. DISCOVERY.
a) Interrogatories. A party may submit written interrogatories to any other party who shall answer them in writing, under oath, within 25 days of receipt of such.
b) Depositions. A party may take the oral deposition of an adverse party or non-party witness under oath upon not less than 10 days notice, specifying the time and place on the reservation where such will occur.
c) Production, Entry, or Inspection. A party may request another party to produce any documents or things in his custody or possession for inspection or copying or request permission to enter and inspect property reasonably related to the case, and the opposing party shall within 25 days reply as to whether or not such will be allowed and if not, why not.
d) Scope of Discovery. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the pending action, whether or not such would be admissible at trial, if such appears reasonably calculated to lead to the discovery of admissible evidence; except that discovery may not be had of the work product of a party's counselor or attorney.
e) Protective Order. A party against whom discovery is sought may move the Court for a protective order to prevent undue annoyance, harassment, embarrassment, oppression, or undue burden or expense, and the court may order that the discovery cease or proceed only upon specified conditions.
f) Failure to Make Discovery. If a party fails to respond or appear for discovery as provided in this rule, the opposing party may move for an order to compel the defaulting party to perform and the court may award costs to the non-defaulting party. If a party fails to perform after being ordered to do so by the Court, the Court may, upon motion, order that a certain fact, claim, or defense be deemed established or strike part of a claim or defense, or dismiss or render a judgment by default against the non-complying party in an aggravated case.
g) Use of Discovery. Answers to interrogatories and depositions may be used in a motion, hearing or at trial to impeach or contradict the testimony of the person discovered, or by an adverse party for any purpose.
Rule 14. JURY TRIALS.
a) When Allowed. Trials of all civil actions shall be to the court without a jury unless a party to the action files a request for a jury trial and a fee of $10.00 not less than 25 days prior to the scheduled date of trial. A judge may, upon good cause shown, waive payment of the required fee.
b) Issues Triable. Unless the requesting party specifies otherwise, all factual issues properly triable by a jury shall be decided by the jury at trial. A party requesting a jury trial may specify only those issues he wants tried to the jury, and any other party may specify, not less than 5 days before the date scheduled for trial, any other issues he wishes to be so tried. Once any or all issues of a case have been requested for a jury trial, such request may not be withdrawn without the consent of all of the parties.
c) Designation by Judge.
Rule 15. ASSIGNING CASES FOR TRIAL.
a) Assignment of Judge and Date. The Chief Judge shall determine which judge shall hear a case, and shall provide by rule for the placing of cases on the court calendar with or without the request of any party provided all parties are given adequate notice of trial dates.
b) Postponement. Upon motion of a party, the court may in its discretion, and upon such terms as it deems just, including the payment of any cost occasioned by such postponement, postpone a trial or proceeding upon good cause shown.
Rule 16. DISMISSAL OF ACTIONS.
a) Voluntary Dismissal. Prior to the responsive pleading of a party against whom a claim has been made or motion to dismiss odor summary judgment on such claim, the party making the claim may file a notice of dismissal and his claim shall be deemed dismissed without prejudice. In all other circumstances a party may move the court to dismiss his own claim and the court shall do so either with or without prejudice as is just and proper given the stage of the proceedings, provided, however, if a crossclaim or counterclaim has been filed against the moving party, the judge shall dismiss the claim only with the consent of the adverse party or only if it appears that the other party can prosecute his claim independently without undue additional hardship.
b) Involuntary Dismissal. A party against whom a claim has been made may move the court to dismiss the claim of the adverse party upon any of the following grounds:
Such dismissal shall be deemed an adjudication of the merits of the issue dismissed unless the court shall, for good cause shown, order otherwise. The Court may postpone ruling on a motion to dismiss for failure to establish a right to any relief until the close of all the evidence.
c) The court may order a party moving to dismiss his own claim to pay the costs of the adverse party if the proceeding has progressed beyond the pleading stage, and may order payment of costs in other circumstances where such is deemed appropriate.
Rule 17. CONSOLIDATION; SEPARATE TRIALS.
a) Consolidation. The court may, upon motion of any party or its own motion, order some or all of the issues of separate actions tried together when there is a common issue of fact or law relating the actions or if such will tend to avoid unnecessary cost or delay.
b) Separate Trials. The court may, to avoid prejudice or in furtherance of convenience, order a separate trial of a claim or issue.
Rule 18. EVIDENCE.
a) Form and Admissibility. At all hearings and trials, the testimony of witnesses shall be taken orally under oath, unless otherwise provided in these rules. All evidence admissible under the Utah Rules of Evidence or the Federal Rules of Evidence, once adopted, or as specified in this Law and Order Code shall be admissible and the competency of witnesses to testify shall be similarly determined.
b) Examination and Cross Examination.
c) Physical Evidence. Written documents and other physical evidence shall be received upon being identified, authenticated, and a showing of relevance to the action.
d) Official Documents. Official documents or an official law, record or copy thereof may be admitted into evidence upon the testimony of an official having custody or official knowledge thereof or without such testimony if the document or record or copy thereof is accompanied by a certificate identifying such thing and stating that it is a true and correct representation of what it purports to be.
e) Record of Excluded Evidence. In an action tried to a jury, excluded evidence may upon request be included in the record for purposes of appeal and excluded oral testimony shall be put into evidence by means of an offer of proof made out of the hearing of the jury. In an action tried only to the court, the judge may receive such excluded testimony into the record.
Rule 19. SUBPOENAS.
a) Issuance. Subpoenas for attendance of witnesses or production of documents or things shall be issued and served as provided elsewhere in this Law and Order Code.
b) Failure to Appear. A person who has been properly served with a subpoena and fails to appear or produce may be deemed in contempt of court and/or the Court may order his arrest for the offense of Failure of Obey a Lawful Order of the Court.
c) Subpoena Unnecessary. A person present in court, or before a judicial officer, may be required to testify in the same manner as if he were in attendance upon a subpoena.
Rule 20. JURORS.
a) Number of Jurors; Alternate. There shall be 'six jurors chosen to hear a case plus the Court may allow one additional juror to be chosen as an alternate juror. In the event that an alternate juror is chosen and hears the case, he shall be dismissed prior to the jury's deliberation if not needed, and treated like a regular juror if needed.
b) Examination of Jurors. The court shall permit the parties or the attorneys to conduct the examination of prospective jurors and may itself examine the jurors.
d) Selection of Jury. The clerk shall draw lots to determine potential jurors and shall replace jurors for whom a challenge is sustained until a full panel is completed. Upon completion, the clerk shall administer the oath to the jurors, the form of which shall be prescribed by rule of the Court.
e) Discharge of Juror. If, after the proceedings begin and before a verdict is reached, a juror becomes unable or disqualified to perform his duty, the alternate juror shall take his place; if there is no alternate juror, the parties may agree to complete the action with the other jurors. If no agreement can be reached, the judge shall discharge the jury and the case shall be tried with a new jury.
f) View of Jury. The Court may, for good cause shown, allow the jury to view the property or place of occurrence of a disputed or otherwise relevant event.
g) Separation of the Jury. Any time prior to their verdict when the jurors are allowed to leave the courtroom, the judge shall admonish them not to converse with or listen to any other person on the subject of the trial and further admonish them not to form or express an opinion on the case until the case is submitted to the jury for their decision.
h) Deliberation. Once the case is submitted to them, the jury shall retire to deliberate in private under the charge of an officer of the court who will refrain from communicating with them except to inquire whether they have reached a verdict, and he shall prevent others from improperly communicating with the jury.
i) Things Taken by Jury. The jury may take with them when deliberating any of the following:
j) Additional Instructions. If after the jury retires, there is some question on an instruction or other point of law or disagreement regarding the testimony, the jury may request additional instructions from the Court, such to be given on the record after notice to the parties or their counsel.
k) No Verdict. If the jury is discharged before rendering their verdict or for any reason prevented from giving a verdict, the action shall be retried.
l) Declaration of the Verdict. When all or at least five of the six jury members agree on a verdict, they shall so inform the officer who shall notify the Court. The jury shall be conducted into the courtroom and the clerk shall call the jury roll; the verdict shall be given in writing to the clerk and then read by the clerk to the court; inquiry shall be made by the court to the jury foreman as to whether such is their verdict. Either party may have the jury polled individually to determine if such is, in fact, their verdict. If insufficient jurors agree with the verdict, the jury shall be sent out again to reconsider; otherwise, the verdict is complete and the jury shall be dismissed. If the verdict is read or recorded incorrectly by the clerk or foreman, the jury shall retire to correct the verdict.
Rule 21. SPECIAL VERDICTS AND INTERROGATORIES.
The court may require the jury to return their verdict in the form of specific findings on specified issues or may require the jury to return a general verdict accompanied by answers to questions related to the issues under consideration.
Rule 22. INSTRUCTIONS TO THE JURY; ARGUMENTS.
a) Instructions. At the close of the evidence or at such earlier time as the Court may direct, any party may file written requested instructions for the court to give to the jury. The court shall inform the parties or their counsel of the instructions it intends to give and hear argument thereon out of the hearing of the jury.
b) Arguments. Final arguments for the parties shall be made after the jury has been instructed. The court shall not comment on the evidence of the case and, if it should restate any of the evidence, it shall inform the jury that they are the sole judges of the facts.
Rule 23. MOTIONS FOR DIRECTED VERDICT AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT.
a) Motion For A Directed Verdict. A party who moves for a directed verdict at the close of the evidence offered by the opposing side may offer evidence as if no motion had been made in the event that the motion is denied. A motion for directed verdict shall state the grounds therefor and may be granted by the court without the assent of the jury.
b) Motion For Judgment Notwithstanding The Verdict. A party who has made a motion for a directed verdict at the close of all the evidence, which motion has been denied or not granted, may, within 10 days after entry of judgment move to have the verdict and any judgment entered thereon set aside and entered according to his motion for directed verdict; or if there has been verdict, the party may so move within 10 days after the jury has been discharged. A motion for a new trial may be made in the alternative. The court shall enter judgment or make any orders consistent with his decision on the motions.
Rule 24. FINDINGS BY THE COURT.
In cases tried without a jury, and except in cases where a party defaults, fails to appear or otherwise waives such, findings of fact and conclusions of law shall be made by the court in support of all final judgments. Upon its own motion or the motion of any party within ten days of the entry of judgment, findings may be amended or added to and the judgment may be amended accordingly.
Rule 25. JUDGEMENT; COSTS.
a) Definition. A judgment includes any final order from which an appeal is available and no special form of judgement is required.
b) Judgment on Multiple Claims. When more than one claim for relief is presented in an action, however designated, a final judgment may be entered on less than all of such claims only upon the Court's specifically finding that such is justified. Absent such a finding, an order or decision will not terminate the action as to any of the claims until all claims are finally decided, nor will the appeal period commence to run.
c) Demand for Judgment.
d) Costs. Unless the court shall otherwise direct, the court shall allow necessary costs and disbursements to the prevailing party or parties as a matter of course. Such prevailing party shall file with the court a verified memorandum of his costs and necessary disbursements within five days of the envy judgment and serve a copy of such on the opposing party, and if such are not objected to within 10 days, they shall be deemed to be a part of and included in the judgment rendered. The appellate court may award costs in alike manner.
e) Attorney's Fees. The court shall not award attorney's fees in a case unless such have been specifically provided for by a contract or agreement of the parties under dispute, or unless it reasonably appears that the case has been prosecuted for purposes of harassment only, or that there was no reasonable expectation of success on the part of the affirmatively claiming party. In any action in which the Tribe and/or any of its officers or employees are sued for a cause of action arising out of, or in the course of, the performance of a tribal function or duty, or in any action, except by the Tribe, against the bond of any such officer or employee, if judgment shall be against the Plaintiff the Court shall award a reasonable attorney's fee against such Plaintiff and in favor of the Defendant or Defendants.
Rule 26 DEFAULT.
a) Entry of Default. When a parry against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, his default may be entered by the clerk and judgment by default granted. Once the default is entered no further notice to the defaulting party of any action taken or to betaken need be given.
b) Judgment by Default. Judgment by default may be entered by the clerk if a party's claim against the opposing party is for a sum of money which is or can by computation be made certain, and if the opposing party has been personally served on the reservation. Otherwise, judgment by default can be entered only by the court upon receipt of whatever evidence the court deems necessary to establish the claim. No judgment by default shall be entered against the Ute Indian Tribe.
c) Setting Aside Default. The court may, for good cause shown, set aside either an entry of defaulter a default judgment.
Rule 27. SUMMARY JUDGMENT.
Anytime 20 days after commencement of an action, any party may move the court for summary judgment as to any or all of the issues presented in the case and such shall be granted by the court if it appears that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such motions, which shall be served not less than 10 days prior to the hearing on said motion, may be supported by affidavits, discovery, or memoranda, all of which must be made available to opposing parties at least two days prior to the hearing.
Rule 28. ENTRY OF JUDGMENT.
a) Judgment. Judgment upon verdict of a jury shall be signed by the clerk and filed. All other judgments shall be signed by the judge and filed with the clerk.
b) Effectiveness; Recordation. A judgment is complete and shall be deemed entered for all purposes when it is signed and filed as provided herein. The clerk shall immediately make a notation of the judgment in the register of actions and the judgment docket.
c) Death of a Party. If a party dies after a verdict or decision upon any issue of fact and before judgment, judgment may nevertheless be entered thereon. d) Satisfaction of Judgment. A judgment may be satisfied, in whole or in part, as to any or all of the judgment debtors by the owner thereof or his attorney of record executing under oath and filing an acknowledgment of satisfaction specifying the amount paid and whether such is a full or partial satisfaction. A judge may order the entry of satisfaction upon proof of payment and failure of the judgment creditor to file a satisfaction. The clerk shall file all satisfactions of judgment and note the amount thereof in the register of actions and the judgment docket.
e) Effect of Satisfaction; Limitation. A judgment satisfied in whole, with such fact being entered in the judgment docket, shall cease to operate as such. A partially satisfied judgment or unsatisfied judgment shall continue in effect for eight years or until satisfied. An action to renew the judgment remaining unsatisfied may be maintained anytime prior to the expiration of eight years and will extend the period of limitations an additional 8 years and may be thereafter further extended by the same procedure.
Rule 29. NEW TRIALS; AMENDMENTSOFJUDGMENT.
a) Grounds; Time. Any party may petition for a new trial on any or all of the issues presented by serving a motion not later than 10 days after the entry of judgment, for any of the following causes:
b) Harmless Error. A new trial shall not be granted on the basis of error or irregularity which was harmless in that it did not affect substantial justice.
c) Support for Motion. Parties may include memoranda or affidavits in support of their motions to which reply memoranda and affidavits shall be allowed if desired.
d) Court Initiative. The court may, on its own initiative, not later than 10 days after entry of judgment, order a new trial on any grounds assertable by a party to the action, and shall specify the reasons for so ordering.
e) Motion To Alter Or Amend Judgment. A motion to alter or amend a judgment shall be served not later than 10 days after entry of the judgment.
Rule 30. RELIEF FROM JUDGMENT OR ORDER.
a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice as the court may direct; mistakes may be corrected before an appeal is docketed in the Appellate Court, and thereafter while the appeal is pending may be corrected with leave of the Appellate Court.
b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may, in the furtherance of justice, relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
Rule 31. HARMLESS ERROR.
No error in either the admission or the exclusion of evidence, and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding shall disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Rule 32. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT.
a) Stay upon Entry of Judgment. Proceedings to enforce a judgment may issue immediately upon the entry of the judgment, unless the court in its discretion and on such conditions for the security of the adverse party as are proper, otherwise directs.
b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of, or any proceedings to enforce, a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment or of a motion for relief from a judgment or order, or of a motion for judgment in accordance with a motion for a directed verdict, or of a motion for amendment to the findings or for additional findings.
c) Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such conditions as it considers proper for the security of the rights of the adverse party.
d) Stay Upon Appeal. When an appeal is taken the appellant by giving a bond in an amount set by the court may obtain a stay, unless such a stay is otherwise prohibited bylaw or these rules. The bond may be given at or within10 days after the time of filing the notice of appeal. The stay is effective when the bond is approved and received by the court.
e) Stay in Favor of the Tribe, or Agency Thereof. When an appeal is taken by the Tribe, or an officer or agency of the Tribe, and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required from the appellant.
f) Power of Appellate Court Not Limited. The provisions in this rule do not limit any power of an .appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.
g) Stay of Judgment Upon Multiple Claims. When a court has ordered a final judgment on some but not all of the claims presented in the action under the conditions stated in Rule 25, the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
h) Waiver of Undertaking. In all cases, the parties may, by written stipulation, waive the requirements of this rule with respect to the filing of a bond or undertaking. In all cases where an undertaking is required by these rules a deposit in court in the amount of such undertaking, or such lesser amount as the court may order, is equivalent to the filing of the undertaking.
Rule 33. DISABILITY OR DISQUALIFICATION OF A JUDGE.
a) Disability. If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.
b) Disqualification. Whenever a party to any action or proceedings, civil or criminal, or his attorney shall make and file an affidavit that the judge before whom such action or proceeding is to be tried or heard has a bias or prejudice, either against such party or his attorney or in favor of any opposite party to the suit, such judge shall proceed no further therein, except to call in another judge to hear and determine the matter.
Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed as soon as practicable after the case has been assigned or such bias or prejudice is known. If the judge against whom the affidavit is directed questions the sufficiency of the affidavit, he shall enter an order directing that a copy thereof be forthwith certified to another judge (naming him), which judge shall then pass upon the legal sufficiency of the affidavit. If the judge against whom the affidavit is directed does not question the legal sufficiency of the affidavit, or if the judge to whom the affidavit is certified finds that it is legally sufficient, another judge must be called in to try the case or determine the matter in question. No party shall be entitled in any case to file more than one affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.
Rule 34. INJUNCTIONS.
a) Preliminary Injunction; Notice. No preliminary injunction shall be issued without notice to the adverse party.
b) Temporary Restraining Order; Notice; Rehearing; Duration. 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 be endorsed with the date and hour of issuance; and shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 15 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for alike 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, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matter 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 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 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.
c) Security. Except as otherwise provided by law, no restraining order or preliminary injunction shall issue 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 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 United States, the Ute Indian Tribe, or of an officer, or agency, of either; 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 clerk of the court 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 clerk of the court who shall forthwith mail copies to the persons giving the security if their addresses are known.
d) Form and Scope of Injunction or Restraining Order; Service. Every order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the actor acts sought to be restrained; and 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.
e) 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 pan thereof, consists in restraining the commission or continuance of some act complained of, either for a limited period or perpetually;
2) When it appears from the pleadings 'or by affidavit that the commission or continuance of some act during the litigation would produce great or irreparable injury to the party seeking injunctive relief;
3) 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 actin violation of the rights of another party respecting the subject matter of the action, and tending to render the judgment ineffectual;
4) In all other cases where an injunction would be proper in equity.
Rule 35. EXTRAORDINARY WRITS.
a) Grounds for Relief. Where no other plain, speedy and adequate remedy exists, relief may be obtained by obtaining an extraordinary writ which may be granted for any one of the following grounds:
b) Habeas Corpus. Appropriate relief by habeas corpus proceedings shall be granted whenever it appears to the court that any person is unjustly imprisoned or otherwise restrained of his liberty. Upon the filing of the complaint the court shall, unless it appears from such complaint or the showing of the plaintiff that he is not entitled to any relief, issue a writ directed to the defendant commanding him to bring the person alleged to be restrained before the court at a time and place therein specified, at which time the court shall proceed in a summary manner to hear the matter and render judgment accordingly. If the writ is not issued, the court shall state its reasons therefor in writing and file the same with the complaint, and shall deliver a copy thereof to the plaintiff. If the defendant cannot be found, or if he does not have such person in custody, the writ (and any other process issued) may be served upon any one having such person in custody, in the manner and with the same effect as if he had been made defendant in the action.
The defendant shall appear at the proper time and place with the person designated or show good cause for not doing so and must answer the complaint within the time allowed. The answer must state plainly and unequivocally whether he then has, or at any time has had the person designated under his control and restraint, and if so, the cause thereof. If such person has been transferred, the defendant must state that fact, and to whom, and when, the transfer was made, and the reason or authority therefor. The writ shall not be disobeyed for any defect of form or misdescription of the person restrained or defendant, if enough is stated to show the meaning and intent thereof.
The person restrained may waive his right to be present at the hearing, in which case the writ shall be modified accordingly. Pending a determination of the matter the court may place such person in the custody of such individual or individuals as may be deemed proper.
c) Habeas Corpus; Decision. In each case, the court, upon determining the case, shall enter specific findings of fact and conclusions of law and judgment, in writing, and the same shall be made a part of the record in the case. If the court finds in favor of the complainant, it shall enter an appropriate order with respect to judgment or sentence in the former proceedings and such further orders with respect to rearraignment, retrial, custody, bail, or discharge as the court may deem just and proper in the case.
d) Habeas Corpus Availability. Except in cases of extraordinary injustice, habeas corpus relief shall not be available to a person incarcerated as a result of a criminal conviction where the alleged grounds for relief have been or could have been raised by an appeal following the conviction.
Rule 36. EXECUTION.
a) Time. If within 60 days after envy of a judgment awarding money damages and/or costs against a party, or within 60 days after final resolution of an appeal to the appellate court from such a judgment, it is made to appear to the court that the judgment debtor has not paid the judgment amount in full or commenced making installment payments in a manner agreed to by the parties, or is not current in such payments, the Court shall upon motion of the judgment creditor, heard ex parte, order the Ute Indian Tribal Police to execute on the personal property of the judgment debtor as provided herein.
b) Procedure. The court shall order the judgment debtor to appear before it and answer under oath regarding all his personal property. The court shall then determine what property of the judgment debtor is available for execution and order the Ute Indian Tribal Police to seize as much of such property as reasonably appears necessary to pay the judgment amount. Failure of the judgment debtor to appear may be deemed a contempt of court and the court may proceed without such appearance. Sale of the seized property shall be at public auction conducted by the Ute Indian Tribal Police after giving at least 10 days public notice posted in at least three conspicuous public places on the reservation. Property shall be sold to the highest bidder who shall make payment for the property at the time of sale. The person conducting the auction may postpone such in his discretion if there is inadequate response to the auction or the bidding, and may reschedule such upon giving the required notice. The person conducting the sale shall give a certificate of sale to the purchaser and shall make a return to the Court reciting the details of the sale.
c) Exemption From Execution. The Court shall only order seizure and sale of such property of the judgment debtor to satisfy a money judgment the loss of which will not impose an immediate substantial hardship on the immediate family of the judgment debtor. Only property of the judgment debtor himself may be subject to execution and not property of his family.
d) Redemption From Sale. At any time within 6 months after sale under this Rule, the judgment debtor may redeem his property from the purchaser thereof by paying the amount such purchaser paid for the properly plus 8 percent interest, plus any expenses actually incurred by the purchaser, such as taxes and insurance. to maintain the property.
Rule 37. APPEAL.
a) Appellate Court. All appeals from the Ute Indian Tribal or Juvenile Courts shall be heard by the Ute Indian Appellate Court.
b) Right to Appeal. Any party who is aggrieved by any final order, commitment or judgment of the trial court may appeal in the manner prescribed by this Rule.
c) Time; Notice of Appeal. Within 20 days from the entry of the order of judgment appealed from the party taking the appeal must file with the trial court a written notice of appeal specifying the parties to the appeal, the order or judgment appealed from, and a short statement of the reason or grounds for the appeal. The clerk shall file the notice and mail copies, to be provided by the appealing party, to all other parties to the appeal at their last known address.
d) Parties. The party taking the appeal shall be referred to as the appellant; all other parties shall be referred to as the respondents. The name of the case shall be the same as that used in the trial court.
e) Bond on Appeal. At the time of filing the Notice of Appeal, the appellant shall also file cash or a bond in an amount set by the trial court sufficient to guarantee performance of the judgment if such performance is stayed on appeal plus, in any event, sufficient to guarantee payment of such costs or interest as the appellate court may award.
f) Stay Pending Appeal. In any case in which an appeal is perfected as required by this Rule, the appellant may petition the trial court for an order staying the order, commitment or judgment rendered conditioned upon execution of a bond to guarantee performance of the judgment, order or commitment. A stay shall be granted in all cases in which it is requested unless manifest injustice would result therefrom.
g) Clerk. The Clerk of the trial court shall also serve as the Clerk of the Appellate Court. Within 5 days after a Notice of Appeal is filed, the Clerk shall prepare, certify and file with the Appellate Court all papers comprising the record of the case appealed. A separate docket shall be maintained for the appellate court in which shall be recorded each stage of the proceedings on each case appealed.
h) Subpoenas. The presiding judge of the appellate court shall, when hearing a case, have authority by subpoena to compel a witness to attend and testify or compel the production of documents where such is deemed necessary to the rendition of the court's opinion. There shall not, however, be a new trial in the appellate court, and, except in cases where the findings of fact of the trial court are clearly erroneous, there will be no review of the factual findings of the trial court.
i) Briefs and Memoranda. Within 30 days of the filing of the Notice of Appeal or within such longer time as the Appellate Court shall allow, the appellant shall file a written brief, memorandum or statement in support of his appeal. An original and three copies shall be filed with the clerk and one additional copy shall be served upon or mailed to each other patty or his counselor or attorney. The respondent shall have 20 days after receipt of the appellant's brief, memorandum or statement within which to file a reply brief, memorandum or statement and shall file and serve such in the same manner as the appellant's brief, memorandum or statement. No response shall be allowed either party without leave of court.
j) Argument. The Appellate Court shall decide all cases upon the briefs, memoranda and statements filed plus the record of the trial court without oral argument unless either party requests oral argument .and shows to the court that such will aid the court's decision, or unless the court decides on us own motion to hear orb argument.
k) Decision. The Appellate Court shall issue a written decision and all judgments on appeal shall be final.
Rule 38. CITATION.
These Rules shall be known as the Ute Indian Rules of Civil Procedure and may be abbreviated U.I.R.C.P.
UTE INDIAN JUVENILE CODE
CHAPTER 1. GENERAL PROVISIONS
§4-1-1. Purpose and Construction.
It is the purpose of this Juvenile Code to secure for each child coming before the Tribal Juvenile Court such care, guidance, and control, preferably in his own home, as will serve his welfare and the best interests of the Ute Indian Tribe, the State of Utah, and the United States; to preserve and strengthen family ties whenever possible; to preserve and strengthen the child's cultural and ethnic identity wherever possible; to secure for any child removed from his home that care, guidance, and control as nearly equivalent as the which he should have been given by his parents to help him develop into a responsible, well adjusted adult; to improve any conditions or home environment which may be contributing to his delinquency; and at the same time, to protect the peace and security of the community and its individual residents from juvenile violence or law-breaking. To this end, this Code shall be liberally construed.
As used in this Juvenile Code, the following definitions shall apply:
(1) "Court" means the Tribal Juvenile Court of the Ute Indian Tribe of the Uintah and Ouray Reservation unless the Tribal Court or some other court is clearly intended.
(2) "Committee' means the Tribal Business Committee of the Ute Indian Tribe of the Uintah and Ouray Reservation.
(3) "Child" means a person who is an enrolled member of the Ute Indian Tribe, or any other Indian on the Reservation, who is less than 18 years of age, or if over 18 years of age, and less than 21 years of age, a person still subject to the continuing jurisdiction of the Tribal Juvenile Court.
(4) "Adult" means any person who has reached his eighteenth birthday.
(5) " Detention" means the temporary care of children who require secure custody, in physically restricting facilities pending court disposition or transfer to another jurisdiction.
(6) " Shelter" means the temporary care of children in physically unrestricting facilities pending court disposition or transfer to another jurisdiction.
(7) "Legal Custody" means a relationship embodying the following rights and duties: the right to physical custody of a child; the right and duty to protect, train and discipline him; the duty to provide him with food, clothing, shelter, education, and ordinary medical care; the right to determine where and with whom he shall live, and the right, in an emergency, to authorize surgery or other extraordinary care.
(8) "Guardian" means a guardian of the person and not a guardian of the property or estate.
(9) "Guardianship of the person" includes, among other things, the authority to consent to marriage, to enlistment in the Armed Forces, and to consent to major medical, surgical, or psychiatric treatment. "Guardianship of the person" also includes legal custody, if legal custody is not vested in another person, agency, or institution.
(10) "Residual parental rights and duties" means those rights and duties remaining with the parents after legal custody or guardianship, or both, have been vested in another person or agency, including, but not limited to, the responsibility for support, the right to consent to adoption, the right to determine the child's religious affiliation, and the right to reasonable visitation unless restricted by the court. If no guardian has been appointed, "residual parental rights and duties" also includes the right to consent to marriage, to enlistment in the Armed Forces, and to consent to major medical, surgical or psychiatric treatment.
(11) "Adjudication" means a finding by the court, incorporated in the decree, that the facts alleged in the petition have been proved.
(12) "Child placement agency" means an agency licensed to receive children for placement or adoption under Title 55, Chapter 8a, Utah Code Annotated, 1953; or an agency receiving children for placement or adoption in another state, which agency is licensed or approved for such license or approval as required bylaw.
(13) " Deprivation of custody" means transfer of legal custody by the court from a parent or the parents or a previous legal custodian to another person, agency, or institution.
(14) "Termination of parental rights" means permanent elimination of all parental rights and duties, including residual parental rights and duties, by court order.
(15) "Probation" means a legal status crated by court order following an adjudication on the ground of a violation of law or under Section 4-3-1(1), (3) hereof, whereby the child is permitted to remain in his home under prescribed conditions and under supervision by a probation officer designated by the court subject to return to the court for violation of any of the conditions prescribed.
(16) "Protective supervision" means a legal status created by court order following an adjudication on the ground of neglect or dependency whereby the child is permitted to remain in his home, and supervision and assistance to correct the neglect or dependency is provided by a probation officer or other agency designated by the court.
(17) " Neglected child" is a child found to be in one or more of the following situations:
(18) " Dependent child" is a child found to be in one or more of the following situations:
(19) "State" means the State of Utah.
The singular includes the plural, the plural the singular, and the masculine the feminine, when consistent with the intent of this Code.
CHAPTER 2. DUE PROCESS OF LAW TO BE AFFORDED.
§4-2-1. Procedures Established.
All provisions and procedures established herein shall be construed and applied so as to provide not less than the minimum requirements of due process of law to both children and adults subject to this Juvenile Code.
CHAPTER 3. JURISDICTION.
Except as otherwise specifically provided, the Juvenile Court shall have original jurisdiction over any Indian or Member child residing upon or found upon the Reservation, and over all persons having the care, custody or control of such children in the following situations:
(1) Concerning any child who has violated any Federal, State, local or municipal ordinance, or Tribal ordinance, regardless of where the violation occurred.
(2) Concerning any child who is a neglected or dependant child, as defined in Section 4-1-2 of this Code.
(3) Concerning any child who: a) being subject to compulsory school attendance, .is habitually truant from school in defiance of persistent efforts by parents or school authorities; or b) habitually disobeys the reasonable and lawful demands of his parents, guardian, or other custodian and is ungovernable and beyond their control to such an extent as to clearly endanger his own welfare or the welfare of others.
(4) Proceedings to terminate the legal parent-child relationship, including termination of residual parental rights and duties.
(5) For the judicial consent to marriage, employment, or enlistment of a child in the Armed Forces and to emergency medical or surgical treatment of the child.
(6) The Juvenile Court shall also have original jurisdiction of the following proceedings, which shall be governed by the laws relating thereto without regard to the other provisions of this Juvenile Code:
§4-3-2. Concurrent Jurisdiction.
When a person 18 years of age or over who is under the continuing jurisdiction of the Juvenile Court pursuant to this Code violates any federal, state, or local law, municipal or Tribal ordinance, the Tribal Juvenile Court shall have concurrent jurisdiction with the court having jurisdiction of the new offense.
§4-3-3. Transfer of Cases.
If, during the pendency of a criminal or quasi-criminal proceeding in the Tribal Court, including a preliminary hearing, it shall be ascertained that the person charged was less than 18 years of age at the time of committing the alleged offense, that Court shall transfer the case to the Tribal Juvenile Court, together with all the papers, documents and transcripts of any testimony connected therewith. The Tribal Court shall order the person to be taken forthwith to the Tribal Juvenile Court or to the place of detention designated by the Tribal Juvenile Court, or shall release him to the custody of his parent or guardian or other person legally responsible for him, to be brought before the Tribal Juvenile Court at a time designated by it. The Juvenile Court shall then proceed as provided herein.
Exercise of jurisdiction over a child on probation or under protective supervision, or of a child who is otherwise under the continuing jurisdiction of the Court, may be transferred by the Court, if the receiving court consents, to any court with proper jurisdiction.
§4-3-5. Felony Cases.
If the petition in the case of a child 14 years of age or older alleges that he committed an act which would constitute a felony or Class A offense if committed by an adult, and if the Court after full investigation and a hearing finds that it would be contrary to the best interests of the child, or of the public, or the Tribe, to retain jurisdiction, the Court may enter an order certifying to that effect and directing that the child be held for criminal proceedings in the Tribal Court. The provisions of Chapter 11 of this Juvenile Code and other provisions relating to provisions in children's cases shall, to the extent they are pertinent, be applicable to such hearing held under this section.
§4-3-6. Jurisdiction over Adults.
The Juvenile Court shall exercise jurisdiction over any adult in the following cases:
§4-3-7. Continuance of Jurisdiction.
Jurisdiction obtained by the Court of a child through adjudication under Chapter 13 of this Juvenile Code shall continue for purposes of this Code until he becomes 21 years of age, unless terminated prior thereto.
§4-3-8. Termination of Jurisdiction.
The continuing jurisdiction of the Court shall terminate:
The continuing jurisdiction of the Court is not terminated by marriage.
CHAPTER 4. POWERS AND DUTIES
§4-4-1. Powers and Duties of the Tribal Juvenile Court.
The Tribal Juvenile Court shall have the same powers and duties as provided for other Tribal Courts in this Law and Order Code.
CHAPTER 5. JUDGES
§4-5-1. Appointment of Judges.
Immediately following the enactment of this Code and each six years thereafter (unless a vacancy occurs earlier), the Business Committee shall appoint a judge for the Tribal Juvenile Court. Such judge shall be chosen without regard to political affiliation and on the basis of ability, judicial temperament, and special aptitude for juvenile court work. The judge of the Tribal Juvenile Court may be a member or a non-member of the Tribe and in the interest of uniformity and cooperation between the Tribal Juvenile Court, the Utah State Juvenile Court, and all Tribal, state and federal agencies concerned with the interests of children, any Judge of the Utah State Juvenile Court may be appointed as Tribal Juvenile Court Judge provided said state judge is otherwise acceptable to the Business Committee and consents to so act Any judge serving as the judge of the Tribal Juvenile Court at the time this Code is adopted, shall continue so to act
§4-5-2. Term and Salary.
A judge shall be appointed for a term of six years and until his successor is appointed, provided that in the event a state juvenile court judge is appointed, his term as Tribal Juvenile Court Judge shall not extend beyond his term or terms as State Judge. The judge of the Tribal Juvenile Court shall receive such compensation, expenses, payments and other benefits as the Business Committee shall prescribe.
§4-5-3. Temporary Appointments.
The Business Committee may appoint a judge on a temporary basis when required to take the place of a judge who is temporarily disabled or absent or for any reason unable temporarily to perform the duties of his office.
§4-5-4. Annual Reports.
The Judge of the Tribal Juvenile Court shall prepare and submit to the Business Committee an annual report of the operation of the Tribal Juvenile Court which shall include financial and statistical data, and shall report all funds received from all sources in connection with his office and the expenditure thereof.
§4-5-5. Expenditure of Funds.
The Judge of the Tribal Juvenile Courts is authorized to receive and expend any funds which may become available from the federal or state governments or any sub-divisions thereof to carry out any of the purposes of this Code; and to this end, the judge may meet any federal or state requirements not in conflict with this Code which may be conditions precedent to receiving such funds.
§4-5-6. Cooperation with Other Agencies.
The Judge of the Tribal Juvenile Court may cooperate with the Federal government in a program for training personnel employed or preparing for employment in the Tribal Juvenile Court, and may receive and expend funds from federal or state sources or from private donations for such purposes. Subject to the approval of the Business Committee, the judge of the Tribal Juvenile Court may contract with public or non-profit institutions of higher learning for the training of such personnel, may conduct short-term gaining courses of its own, and may hire experts on a temporary basis for such purposes, and may cooperate with the Utah State Department of Public Welfare and other state departments or agencies in personnel training programs.
The judge, in the exercise of his duties and in the exercise of any duties to be performed by any other officers under his supervision or control, shall utilize such social services as may be furnished by the federal or state governments to the end that the Court may be economically administered without unnecessary duplication or expense.
§4-5-7. Placement of Children.
(1) In making any decision to place children in homes or institutions other than with one or both of the natural parents of the child, the Court shall, in all cases in which such action would not obviously be contrary to the child's best interests, determine whether or not there are relatives, friends, or other persons living on the Reservation who would be willing and able to provide a suitable temporary or permanent living environment for the child. The Court shall give consideration to and due regard for Tribal or family customs relative to the raising of children and shall endeavor to place all children requiring such in homes with cultural backgrounds similar to that which the child would have enjoyed if properly raised by his natural parents.
(2) In order to enable the Court to place children in a manner consistent with the foregoing subsection, whenever possible, the Court shall make, or cause to be made, a continuing survey of Tribal members and other Indians living on the Reservation to determine the availability of homes suitable for child placement and the willingness of such persons to accept and care for placed children on either a permanent or temporary basis, or both. The Court shall, if necessary, determine the fitness of a home into which a child is to be placed, at or immediately prior to the time such placement is made.
(3) The Judge may contract, on behalf of the Tribe, with agencies or departments of the federal government, or with agencies or departments of the Sate of Utah or of other states, for the care and placement of children whose status is adjudicated under this Code, subject, however, to the approval of the Business Committee before expenditure of any Tribal funds.
CHAPTER 6. OTHER OFFICERS-APPOINTMENT, SALARY AND DUTIES
§4-6-1. Appointment of Probation Officers.
The Business Committee with the approval of the Juvenile Court Judge shall appoint such probation officers, clerks and other persons as may be required to carry out the work of the Court. Probation officers of the adult Tribal Court may serve also for the Juvenile Court, or other persons so appointed may be appointed to serve with or without pay.
§4-6-2. Duties and Powers of Probation Officers.
The probation officer shall make preliminary inquiries and social studies, and such other investigations as the judge may direct, and shall keep written records of such investigations or studies, and shall make reports to me judge as provided in this Code or as directed by the Judge. Upon the placing of any person upon probation or under protective supervision, the probation officer shall explain to the child, if old enough, and the parents and other persons concerned, what the meaning and conditions of probation or protective supervision are and shall give them the necessary instructions. The probation officer shall keep informed concerning the conduct and conditions of each person on probation or under protective supervision and shall report thereon to the judge as he may direct. Probation officers shall use all suitable methods to aid persons on probation or under protective supervision to bring about improvements in their conduct or condition, and shall perform such other duties in connection with the care, custody or transportation of children as the Court may require. Probation officers shall have the powers of police officers for purposes of this Juvenile Code but shall, whenever possible, refrain from exercising such powers except in urgent situations in which a regular police officer is not immediately available.
The clerk shall keep a record of the Court proceedings and shall have power to issue all processes and notices required herein, and shall perform such other duties as may be assigned by the Judge.
The compensation and terms of employment of all employees of the Tribal Juvenile Court shall be fixed by the Business Committee.
§4-6-5. Referees - Appointment.
The Judge, with the approval of the Business Committee, may appoint a probation officer or other qualified person as referee to serve during the pleasure of the Court.
§4-6-6. Referee's Function.
The Judge may refer any case to a referee, or he may direct that all cases of a certain class or within a certain geographical area shall be heard in the first instance by a referee, in the same manner as cases are initiated and hearings are held by the Court. At the conclusion of the hearing before him, the referee shall transmit to the judge all papers relating to the case, together with his findings and recommendations in writing. The referee shall perform the functions of the court, except for the conducting of hearings on matters not assigned to the referee, in the judge's absence.
CHAPTER 7. COURT
Court sessions shall be held within the Reservation at such places and at such times as the Judge shall direct.
§4-7-2. Court Facilities.
Suitable courtrooms shall be provided by the Business Committee for the hearing of cases, and office space, equipment, and supplies for the use of the judge, officers, and employees of the Court.
CHAPTER 8. ADULTS
§4-8-1. Procedures Applicable.
Except when specific procedures are otherwise specified in this Juvenile Code, all matters concerning adults or the rights of any adult which come before the Juvenile Court need not be handled according to procedures established for the Tribal Court, but may be handled in an informal manner as in other juvenile cases, provided, however, that the court shall see to it that minimum standards of procedural fairness are observed.
§4-8-2. Consent to Jurisdiction by Persons Living Off the Reservation.
Any adult living off the Reservation who obtains custody of a child, however designated, from the Juvenile Court either personally or as the result of association with an agency or institution to which such custody has been awarded, shall be deemed to have consented to the jurisdiction of the Ute Indian Tribal Juvenile Court for all purposes or actions in any way related to such custody or the child subject thereto.
CHAPTER 9. PROCEDURE
§4-9-1. Rules of Procedure.
To the extent feasible, the rules and forms governing practice and procedure and policies followed by the Utah State Juvenile Court shall be adopted and followed in the Tribal Juvenile Court, subject, however, to the approval of the Business Committee. Copies of such rules and forms shall be made available for public inspection by the Clerk of the Juvenile Court.
§4-9-2. Commencement of Action.
(1) Except as otherwise provided below, proceedings in children's cases before the Juvenile Court are commenced by petition.
(2) In the case of violations of motor vehicle or boating laws and ordinances, or fish and game laws and ordinances, a petition shall not be required and the issuance of a traffic or other citation or summons shall be sufficient to invoke the jurisdiction of the Juvenile Court; nor, unless the Court shall otherwise order, shall a preliminary investigation be required in such cases.
(3) Whenever the Court is informed by a police officer or any other person that a child is or appears to be within the Court's jurisdiction, the Clerk of the Court shall notify a probation officer or other designated person who shall make a preliminary inquiry to determine whether the interests of the public, the Tribe, or the child require that further action be taken. The report on the preliminary investigation shall be filed with the Court without unnecessary delay.
(4) The Court may, by rule, provide that police reports or reports by other social service related agencies having contact with or custody or supervision over a child, may be filed with the Court in lieu of a preliminary investigation, in which case, further preliminary investigation as provided herein shall not be required unless otherwise specifically ordered.
(5) On the basis of the preliminary inquiry, or other report as provided next above, the Juvenile Court Judge, or referee in his absence, may authorize a petition to be filed.
(6) As an alternative to filing a petition, the Court may, with the assistance of probation officers or other designated individuals, make such non-judicial adjustment of the case as is practicable without a petition and proceedings thereunder. Such adjustments shall be made only in cases in which the facts are admitted and establish prima facie jurisdiction in the Tribal Juvenile Court, and further provided that consent is obtained from the parents or other custodians and also from the child if, in the court's opinion, he is of suitable age and discretion. Efforts to effect a non-judicial adjustment may not extend for a period of more than two months without leave of the Judge of the Juvenile Court who may extend the period for an additional two months. A person attempting to effect such non-judicial adjustment shall have no authority to compel any person to appear at or visit any place or to produce any papers or things.
§4-9-3. Petitions - Content.
The petition shall set forth in simple and brief language the facts which bring the child within the jurisdiction of the Court, as provided in Section 4-3-1 of this Code. The petition shall further state: a) the name, age and residence of the child; b)the names and residences of his parents; c)the name and residence of his guardian, if there is one; d) the name and address of the nearest known relative if no parent or guardian is known; e)the name and residence of the person having physical custody of the child; and f) if any of the facts herein required to be stated are not known by the petitioner, the petition shall so state.
§4-9-4. Verification of Petition.
The statements in the petition may be made upon information and belief and the petition shall be verified.
§4-9-5. Petitions - Probation Officers.
The petition may be prepared and filed by a probation officer. At any time after a petition is filed, the Court may make an order providing for temporary custody of the child.
The Court may, upon such conditions of notice and hearing, if any, as it deems best, order that a child concerning whom a petition has been filed shall be examined by a physician, surgeon, psychiatrist, or psychologist, and may place the child in a hospital or other facility for such examination. After due notice and a hearing set for this specific purpose, the Court may order a similar examination of a parent or guardian whose ability to care for the child is at issue, if the Court finds from the evidence presented at the hearing that the parents or guardian's physical, mental or emotional condition may be a factor in causing the neglect, dependency or delinquency of the child.
§4-9-7. Petitions - Dismissal.
The Court may dismiss a petition at any stage of the proceedings.
§4-9-8. Double Jeopardy.
When a petition has been filed under this Code, the child shall not then thereafter be subject to criminal prosecution based on the facts giving rise to the petition, except as otherwise provided in this Code.
§4-9-9. Professional Attorneys.
No professional attorneys shall appear in any proceeding before the Tribal Juvenile Court unless the judge of said Court is also a professional attorney or has received professional training as a juvenile court judge and consents either generally or in a specific case to the appearance of professional attorneys. When any person is entitled to be represented by a professional attorney of his own choice and at his own expense in the Tribal Juvenile Court, he shall be so advised by the judge at the commencement of any proceedings before such court.
CHAPTER 10. SERVICE OF PROCESS AND SEARCH WARRANTS
§4-10-1. Summons - When Required.
After a petition is filed and after such further investigation as the Court may direct, the Court shall promptly issue a summons. No summons is required as to any person who appears voluntarily or who files a written waiver of service with the Clerk of the Court at or prior to the hearing.
§4-10-2. Summons - Content - Requirements.
The summons shall contain the name of the Court, the title of the proceedings, and (except for a published summons) a brief statement of the substance of the allegations in the petition. A published summons shall simply state that a proceeding concerning the child is pending in the Court and that adjudication will be made. The summons shall require the person or persons who have physical custody of the child to appear personally and bring the child before the Court at a time and place stated. If the person or persons so summoned are not the parent, parents, or guardian of the child, then a summons shall also be issued to the parent, parents, or guardian, as the case may be, notifying them of the pendency of the case and of the time and place set for the hearing. No summons heed be issued to a parent or parents whose parental rights have been terminated.
§4-10-3. Summons - Other Persons.
Summons may be issued to any person within the jurisdiction of the Court requiring the appearance of any person whose presence the Court deems necessary.
§4-10-4. Immediate Custody of Child.
If it appears, from an affidavit or a sworn statement presented to the judge or referee, that the welfare of the child or protection of the public requires that the child be placed in detention or shelter care, when a petition is filed the judge or referee may endorse upon the summons an order that an officer serving the summons shall at once take the child into custody or may issue a separate emergency custody or detention order for placement in a facility or with an agent as designated by the Court.
§4-10-5. Emergency Medical Treatment.
Upon the sworn testimony of one or more reputable physicians, the Court may order emergency medical or surgical treatment which is immediately necessary for a child concerning whom a petition has been filed pending the service of summons upon his parents, guardian, or custodian.
§4-10-6. Compulsory Attendance of Witnesses.
A parent or guardian shall be entitled to the issuance of compulsory process for the attendance of witness on his own behalf or on behalf of the child. A guardian ad litem or a probation officer shall be entitled to compulsory process for the attendance of witnesses on behalf of the children or on behalf of the Tribe.
§4-10-7. Payment of Travel Expenses.
The Court may authorize the payment of necessary travel expenses incurred by persons summoned or otherwise required to appear at the hearing of a case under this Code, not to exceed the amount allowed to witnesses for travel in other Tribal courts.
§4-10-8. Manner of Service - By Whom Served.
(1) Service of summons or process shall be made by an officer of the Tribal police; but upon request of the Court such service may be made by any other peace officer, or by another suitable person selected by the Court.
(2) Service of summons on the Reservation may be made by delivering a copy thereof to the person summoned; provided, however, that parents of a child living together at their usual place of abode may both be served personally by delivering to either parent copies of the summons, one copy for each parent.
(3) If the Judge is satisfied that personal service of the summons is impractical under the circumstances, he may order service by registered mail, with a return receipt requested to be signed by the addressee only, to be addressed at the last known address of the person to be served on the Reservation. Service shall be complete upon return to the Court of the signed receipt.
§4-10-9. Substituted Service - Jurisdiction.
If the parent, parents, or guardian required to be summoned under Chapter 10 hereof cannot be found within the Reservation, the fact of their child's presence within the Reservation shall confer jurisdiction on the Court in proceedings in children's cases under this Code as to any absent parent or guardian, provided that due notice has been given in one of the following manners:
(1) If the address of the parent or guardian is known, by sending him a copy of the summons by registered mail with return receipt requested to be signed by the addressee only, or by personal service outside the Reservation. Service by registered mail shall be complete upon return to the Court of the signed receipt.
(2) If the address or whereabouts of the parent or guardian outside the Reservation cannot, after diligent inquiry, be ascertained, by publishing a summons in a newspaper having general circulation on the Reservation. The summons shall be published once a week for four (4) successive weeks. Service shall be complete on the day of the last publication.
§4-10-10. Service - Time Requirement.
In the case of service on the Reservation, service completed not less than 48 hours before the time set in the summons for the appearance of the person served, shall be sufficient to confer jurisdiction. In the case of service outside the Reservation, service completed not less than five (5) days before the time set in the summons for appearance of the person served, shall be sufficient to confer jurisdiction.
§4-10-11. Search and Seizure Warrants.
If it appears to the Court upon an affidavit sworn to by a police officer or any other person, and upon the examination of other witnesses if required by the Court, that there is probable cause to believe that a child is being detained or ill-treated in any place within the jurisdiction of the Court, the Court may issue a warrant authorizing a duly authorized police officer or probation officer to search for the child: Upon serving such warrant upon the person in possession of the premises specified in the warrant, the officer making the search may enter the house or premises, if necessary by force, in order to remove the child. The officer must thereupon take the child to the Court or to the place of detention or shelter designated by the Court in accordance with Chapter 13 hereof.
§4-10-12. Disobedience - Contempt.
Any person summoned as herein provided who, without reasonable cause, fails to appear, may be proceeded against for contempt of court, and the Court may cause a bench warrant to be issued to produce such person in Court.
§4-10-13. Arrest of Parent, Guardian, or Custodian.
If the summons cannot be served, or if it is made to appear by affidavit or sworn statement to the Court that the person served will not obey the summons, or that serving the summons will be ineffectual, or that the welfare of the child requires that he be brought immediately into the custody of the Court, a warrant may be issued for the arrest of the parent, guardian, custodian, or the child, and any such warrant may be served anywhere within the jurisdiction of the Court.
CHAPTER 11. INVESTIGATION AND HEARINGS
§4-11-1. Social Investigations.
Whenever practicable, the Court shall require that a social investigation be made and a report be submitted to the Court in writing in all cases under § 4-3-1 of this Code in which a petition has been filed, except violations of traffic, fish and game and boating laws and ordinances.
§4-11-2. Social Investigations - Scope.
The investigation shall cover the child's home environment, history and associations, the present condition of the child and family, and recommendations as to the child's future care. In cases involving the duty of support, the study shall include such matters as earnings, assets, financial obligations, and employment.
§4-11-3. Proceedings - Civil in Nature.
Proceedings in children's cases shall be regarded as civil proceedings, with the Court exercising equitable powers. Children's cases under §4-3-1 of this Code shall be handled separately from adult cases under §4-3-6 hereof.
§4-11-4. Conduct of Hearings - Informal in Manners.
Hearings in children's cases shall be before the Court without a jury and may be conducted in an informal manner. The general public shall be excluded and only such persons admitted as the Judge finds have a direct and legitimate interest in the case or in the work of the Court. The child or one of his parents may be separately interviewed at any time at the discretion of the Court. The hearing may be continued from time to time, at a date specified in the Order of the Court.
§4-11-5. Hearings - Record.
Whenever possible, or when an interested party to a proceeding bears the expense of such, a verbatim record by either stenographic or electrical or mechanical recording device shall be taken. The Court may dispense with such record in its discretion.
§4-11-6. Records - Use in Other Courts.
Neither the record in the Tribal Juvenile Court nor any evidence given therein shall be admissible as evidence against the child in any proceeding in any other Court. No child shall be charged with any crime nor be convicted in any Tribal Court except as provided in §4-3-5 of this Code.
§4-11-7. Hearings - Tribal Council.
Upon request of the Court, the Business Committee shall designate or appoint an attorney who shall represent the Tribe in the interests of the child in any proceeding in a child's case, provided the judge is also an attorney, or if not an attorney, consents to such representation.
§4-11-8. Hearings - Evidence.
For the purpose of determining proper disposition of the child, and for the purpose of establishing the fact of neglect or dependency, written reports and other materials relating to the child's mental, physical, and social history and condition, may be received in evidence, and may be considered by the court along with other evidence, but the court may require that the person who wrote the report or prepared the material appear as a witness if he is seasonably available.
§4-11-9. Consolidation of Proceedings.
When more than one child is involved in a home situation in which may be found to constitute neglect or dependency, or when more than one child is alleged to be involved in the same law violation, the proceedings may be consolidated, except that separate hearings may be held with respect to disposition.
§4-11-10. Amendment of Pleadings - Continuances.
When it appears, during the course of any proceeding in a child's case that the evidence presented points to material facts not alleged in the petition, the court may proceed to consider forthwith the additional or different matters raised by the evidence. In such event, the court, on motion of any interested party or on its own motion, shall direct that the petition be amended to conform to the evidence. The court shall grant such continuances as justice may require.
§4-11-11. Special Rules of Procedure - Traffic, Fish and Game, and Boating Violations.
The court may adopt special rules of procedure to govern proceedings involving violations by children of traffic laws or ordinances, and violations of fish and game and boating laws or ordinances.
§4-11-12. Presence of Parents - Protection of Child.
The Court shall endeavor, through the use of the warrant of arrest if necessary, as provided in Section 4-10-13 hereof, or by other means, to insure the presence at the hearing of one or both parents or of the guardian of the child. If neither of them is present, the Court may appoints guardian ad litem to protect the interests of the child. A guardian ad litem may also be appointed whenever necessary for the welfare of the child. whether or not a parent or guardian is present.
§4-11-13. Ground for Re-Hearing.
A parent, guardian, custodian, or next friend of any child whose status has been adjudged under this ordinance, or any adult affected by a decree in a child's proceeding hereunder, may at any time petition the court for a new hearing on the ground that new evidence which was not known or could not with due diligence have been made available at the original hearing and which might affect the decree, has been discovered. If it appears to the Court that there is such new evidence which might affect its decree, it shall order a new hearing and enter such decree and make such disposition of the case as is warranted by all the facts and circumstances and the best interests of the child.
§4-11-14. Maintenance of Order During Hearings.
Upon request of the Court, the Chief of the Tribal Police or his deputy or other officer shall aid the Court in maintaining order during any hearing.
CHAPTER 12. ARREST AND DETENTION OF CHILDREN
§4-12-1. Arrest of Child.
A child may be taken into custody by any police officer or probation officer without order of the Court:
(1) When in the presence of the officer the child has violated a State, Federal, or local law or a municipal or Tribal ordinance;
(2) When there are reasonable grounds to believe that he has committed an act which if committed by an adult would be a felony or an offense under this Law and Order Code and there is reasonable cause for believing that such child before a warrant or other court order can be obtained may:
(a) flee the jurisdiction or conceal himself to avoid arrest; or
(b) destroy or conceal evidence of the commission of an offense; or
(c) injure or annoy another person or damage property belonging to another person.
(3) When he is seriously endangered by his surroundings, and immediate removal appears to be necessary for his protection;
(4) When there are reasonable grounds to believe that he has run away or escaped from his parents, guardian, or custodian.
§4-12-2. Citizen's Arrest of Child.
A private citizen may take a child into custody if the circumstances are such that he could make a citizen's arrest if an adult were involved. Taking a child into custody under this section shall not be deemed an arrest.
§4-12-3. Notification of Parents - Release of Child.
When an officer or other person takes a child into custody, he shall immediately notify a parent or an adult person with whom the child lives if not the parent (custodian).Such notification shall be made by contact-, the parent or custodian personally or through the assistance of other officers or persons unless notification can be and is, in fact, made by phone. If a parent or custodian cannot, after due diligence, be found or contacted, then such notice shall be given to the nearest known relative or to an adult person who is well acquainted with the child. The parent or person notified shall be told why the child has been taken into custody and where the child is being held. The child shall then be released to the care of his parents or other responsible adult unless his immediate welfare or the protection of the community requires that he be detained. Before the child is released, the parent or other person to whom the child is released may be required by the person holding the child to sign a written promise, on forms supplied by the Courts, to bring the child to the Court at time set or to be set by the Court.
§4-12-4. Detention of Child.
A child shall not be detained by the Tribal Police or in a police station any longer than is reasonably necessary to obtain his name, age, residence and other identifying information, and to contact his parents, guardian or custodian. If he is not thereupon released as provided in the preceding section, he must be taken without unnecessary delay to the Court or to the place of detention or shelter designated by the Court.
§4-12-5. Detention - Report to Court.
The officer or other person who takes a child to a detention or shelter facility must notify the referee or a probation officer at the earliest opportunity that the child has been taken into custody and where he was taken; he shall also promptly file with the referee or the Court a brief written report stating the occurrences or facts which bring the child within the jurisdiction of the Tribal Juvenile Court and give the reason why the child was not released.
§4-12-6. Restrictions on Detention.
No child shall be placed or kept in a detention or shelter facility pending Court proceeding unless it is unsafe for the child or the public to leave him in the custody of his parents, guardian or custodian.
§4-12-7. Detention - Discretion of Judge.
After immediate investigation by a duly authorized officer of the Court, the Judge or other authorized officer shall, upon written promise to bring the child to the Court at a set time or without restriction, order the release of the child to his parents, guardian or custodian if it is found that he can be safely left in their care. If it is found that it is not safe to release the child, the Judge or authorized officer may order that the child be held in the facility or be placed in another appropriate facility, subject to further order of the Court.
CHAPTER 13. DISPOSITION OF CASES.
§4-13-1. Findings of Jurisdictional Facts - Disposition of Case.
When a child is found to come within the provisions of Section 4-3-1 of this Code, the Court shall so adjudicate, and make findings of the facts upon which it bases its jurisdiction over the child, and shall enter its decree. Upon such adjudication, the Court may make the following dispositions by Court order:
(1) Place the child on probation or under protective supervision (as these terms are defined herein) in his own home, upon conditions determined by the Court
(2) Place the child in the legal custody of a relative or other suitable person, with or without probation or protective supervision;
(3) Vest legal custody of the child in the Utah State Division of Family Services or other public agency, department, or institution, or in a child placement agency as defined herein, for placement in a foster family home or other facility, not including the Utah State Industrial School or any similar institution, and not including Utah State Hospital or the Utah State Training School or any similar institution;
(4) Commit the child to an authorized industrial school, state training school, or other training or corrective institution authorized to receive Indian children, except that a child found to come within the Court's jurisdiction solely on the ground of neglect or dependency under Section 4-3-1 of this Code, may not be committed to an industrial school or any other similar institution within or without the State of Utah;
(5) The Court may commit the child to an institution or facility for short-term confinement or for the purpose of study and evaluation that may be established or may accept children in accordance with accepted standards for the care and treatment of delinquent children;
(6) Place the child in an approved Indian boarding school, on a ranch, a forestry camp, or other camp or a similar facility, for care, and for work, if possible, provided that the person, agency or association operating the facility has been approved by the Business Committee, or has otherwise complied with all applicable Tribal, state and local laws. The child placed in a forestry camp or similar facility may be required to work on fire prevention, forestation, and reforestation, recreational works, forest roads, and on other works on or off the grounds of such facility, and may be paid wages, all subject to the approval of, and under conditions set by, the Court;
(7) If the Court has assurance that the responsibility to make payments will rest on the child, and not on his parents, guardian, or custodian, it may order that the child be required to make restitution for damage or loss caused by his wrongful acts, and may impose fines not to exceed $500.00;
(8) Arrange for employment or work programs, to enable children to fulfill their obligations under Subsection 7 of this Section, and for other purposes when deemed desirable by the Court;
(9) In cases of violations of traffic laws or ordinances, the Court may, in addition to any other disposition, restrain the child from driving for such period of time as the Court deems necessary, and may take possession of the child's driver's license;
(10) Order that the child be examined or treated by a physician, surgeon, psychiatrist, or psychologist, or that he receive other special care, and for such purposes may place the child in a hospital or other suitable facility;
(11) Appoint a guardian for the child where it appears necessary to do so in the interest of the child, and may appoint a public or private institution or agency in which legal custody of the child is vested, as such guardian.
§4-13-2. Primary Consideration - Welfare of the Child.
(1) In placing a child under the guardianship or legal custody of an institution or of a private agency or institution, the Court shall give primary consideration to the welfare of the child, but whenever practicable, may take into consideration the religious references of the child and his parents, and shall consider the factors set forth in Section 4-5-7 above.
(2) No child found to come within the jurisdiction of the Court under Section 4-3-1 shall be committed to or placed in an institution or facility established for the care and rehabilitation of delinquent children unless such child is found delinquent for the commission of an act that would be a crime or offense if committed by an adult or unless said child has once before within a period of six months been found to be within the jurisdiction of the Court under Section 4-3-1(3).
§4-13-3. Establishment of Conditions by Court.
In support of a decree under Section 4-3-1 of this Code, the Court may make an order setting forth reasonable conditions to be complied with by the parents, the child, his custodian, or any other person who has been made a party to the proceedings, including, but not limited to, restrictions on visitations by the parents or one parent, restrictions on the child's associates, occupation and other activates, and requirements to be observed by the parents or custodian.
§4-13-4. Hospitalization of Child.
With respect to a child within the jurisdiction of the Court under Section 4-3-1 hereof, the Court may order hospitalization in an authorized hospital if the Court finds, upon due notice to the parents or guardian and a special hearing conducted in accordance with any applicable laws and regulations, that the child is (1) mentally ill, and (2) because of his illness is likely to injure himself or others if allowed to remain at liberty, or is in need of custody, care or treatment in the mental hospital.
§4-13-5. Commitment to Training School.
The Court may make an order committing a child within its jurisdiction to an authorized training school if the child has been found mentally deficient in accordance with the provisions of applicable law and regulation.
§4-13-6. Termination of Parental Rights.
The Court may terminate all parental rights, provided it complies with the provisions of Chapter 15 hereof.
§4-13-7. Other Disposition of Cases.
The Court may make any other reasonable orders which are for the best interests of the child or are required for the protection of the public, except that no child may be committed to prison or any child under 16 years of age to jail upon adjudication under this Code. The Court may combine several of the above listed modes of disposition where they are compatible.
§4-13-8. Review of Cases.
An order under this Chapter for the placement a child with an individual or an agency shall include a date certain for review of the case by the Court, with a new date to be set upon each review.
CHAPTER 14. JUDGMENTS AND ORDERS.
§4-14-1. Judgments-Inoperative After Age 21.
No judgment, order or decree of the Tribal Juvenile Court shall operate after the child becomes twenty-one years of age.
§4-14-2. Orders - Termination - Renewals.
An order vesting legal custody of a child in an individual, agency, or institution shall be for an indeterminate period, but shall not remain in force longer than two years from the date it is entered unless, within the two-year period, the Court, after notice to the parties and a hearing, shall have reviewed the order and found its renewal necessary to safeguard the welfare of the child or the public interest, in which case the order shall be extended for a two-year period. The findings of the Court and the reasons therefor shall be entered with the review order or with the order denying renewal. The provisions of this Section shall not apply when a child has been properly committed to an industrial school.
§4-14-3. Orders - Modifications.
The Court may modify or set aside any order or decree made by it; but no modification of an order placing a child on probation shall be made upon an alleged violation of the terms of probation, until there has been a hearing after due notice to all persons concerned. Notice and a hearing shall also be required in any other case in which the effect of modifying or setting aside an order may be to deprive a parent of the legal custody of the child, to place the child in an institution or agency, or to transfer the child from one institution or agency to another, except that transfer from one foster home to another may be effected without notice and hearing.
§4-14-4. Orders of Termination - Notice.
Notice of an order terminating probation or protective supervision shall be given to the parents, guardian, custodian, and, where appropriate, to the child.
§4-14-5. Court Adjudication - Not Criminal in Nature.
An adjudication by the Tribal Juvenile Court that a child is within its jurisdiction under Section 4-3-1 of this Ordinance shall not be deemed a conviction of a crime.
CHAPTER 15. CUSTODY OF CHILDREN
§4-15-1. Parent's Preferred Right to Custody.
Before depriving any parent of the custody of his or her child, the Court shall give due consideration to the preferred right of parents to the custody of their children, as expressed in Section 4-1-1 hereof, and shall not transfer custody to another person, agency, or institution, unless the Court finds from all the circumstances in the case that the welfare of the child or the public interest requires that the child be taken from his home.
§4-15-2. Termination of Parental Rights.
The Court may decree a termination of parental rights as defined herein concerning a child within the purview of Section 4-3-1 hereof, if the provisions of Chapter 15 are complied with. The rights of one parent may be terminated without affecting the rights of the other parent.
§4-15-3. Parental Rights - Grounds for Termination.
The rights of the parent or parents may be terminated if the Court finds:
(1) That the parent or parents are unfit and incompetent by reason of conductor condition seriously detrimental to the child; or
(2) That the parent or parents have abandoned the child. It shall be prima facie evidence of abandonment that the parent or parents, although having legal custody of the child, have surrendered physical custody of the child, and for a period of one year following such surrender have not by some affirmative act manifested to the child or to the person having the physical custody of the child an intention to resume physical custody or to make arrangements for the care of the child; or
(3) That after a period of trial, during which the child was kept in his own home under protective supervision or probation, or during which the child was returned to live in his own home, the parent or parents substantially and continuously or repeatedly refused or failed to give the child proper parental care and protection.
§4-15-4. Procedure for Terminating Parental Rights.
A termination of parental rights maybe ordered only after a hearing is held specifically on the question of terminating the rights of the parent or parents. A verbatim record of the proceedings must betaken and the parties must be advised as to their rights to counsel, in the event the judge is a duly licensed attorney. No such hearing shall be held earlier than 10 days after service of summons is completed inside or outside of the state in accordance with Chapter 10 hereof. The summons must contain a statement to the effect that the rights of the parent or parents are proposed to the permanently terminated in the proceeding. The statement may be made in the summons originally issued in the proceeding or in a separate summons subsequently issued.
§4-15-5. Parental Rights - Order Terminating - Contents - Appeals.
Every order terminating the rights of one or both parents shall recite the facts upon which the Court bases it jurisdiction over the child and shall include the findings upon which the decree is based. Unless there is an appeal within three months from the entry of the order, the order permanently terminates all rights of the parents or the parent involved.
§4-15-6. Action of Court After Termination of Parental Rights.
Upon the entry of an order terminating the rights of the parent or parents, the Court may (a) place the child for adoption under applicable law and regulations; or (b) make any other disposition of the child authorized under Chapter 13 hereof.
§4-15-7. Parental Rights - Right of Non-Terminated Parent.
If the rights of only one parent have been terminated, the right of the other parent to consent to adoption is not affected by an order placing the child for adoption as provided in the preceding section.
§4-15-8. Parental Rights - Voluntary Surrender.
Nothing contained in this section shall preclude a parent or parents from surrendering permanent legal custody voluntarily by instrument in writing, duly acknowledged, for purposes of adoption, and in accordance with applicable laws and regulations.
§4-15-9. Proceedings to Return Custody to Parent, Guardian, Etc.
A parent, guardian, or next friend of a child whose legal custody has been transferred by the Court to an individual agency, or institution, except an industrial school, may petition the Court for restoration of custody or other modification or revocation of the decree, on the ground that a change of circumstances has occurred which requires such modification or revocation in the best interest of the child or the public. The Court shall make preliminary investigation, and may dismiss the petition if it finds that the alleged change of circumstances, if proved, would not affect the decree. If the Court finds that a further examination of the facts should be had, or if the Court on its own motion determines that the decree should be reviewed, it shall conduct a hearing upon due notice to all persons concerned, and may thereupon enter an order continuing, modifying, or terminating the decree.
§4-15-10. Limitations on Parent's Right to Regain Custody.
No petition by a parent may be filed under the preceding Section after his or her parental rights have been terminated in accordance with this chapter.
§4-15-11. Custody - Rights and Duties.
An agency granted legal custody shall have the right to determine where and with whom the child shall live, provided that placement of the child does not remove him from the Reservation without Court approval. An individual granted legal custody shall exercise the rights and responsibilities involved in legal custody personally, unless otherwise authorized by the Court.
§4-15-12. Custody - Agency - Duty of Court.
Whenever legal custody of a child is vested in an institution or agency, the Court shall transmit with the court order copies of any reports and other information pertinent to the care and treatment of a child. The institution or agency shall give the Court any information concerning the child that the Court may at any time require.
§4-15-13. Modification and Revocation of Custody Orders.
An individual, agency, or institution vested with legal custody of a child may petition the Court for modification or revocation of the custody order on the ground that such change is necessary for the welfare of the child or in the public interest. The Court shall proceed upon such petition in the same manner as upon a petition filed under Section 4-15-9 hereof.
CHATPER 16. SUPPORT OF CHILDREN
§4-16-1. By Parents.
When legal custody of a child is vested by the Court in an individual or agency other than his parents or an industrial school, the Court may in the same or any subsequent proceeding inquire into the ability of the parents, a parent, or any other person who may be obligated, to support the child and to pay any other expenses of the child, including the expense of any medical, psychiatric, or psychological examination or treatment provided under order of the Court. The Court may, after due notice and a hearing on the matter, require the parents or other person to pay the whole or part of such support and expenses, depending on their financial resources and other demands on their funds. The amounts so required to be paid shall be paid at such intervals as the Court may direct, and unless otherwise ordered, payment is to be made to the clerk of the Tribal Juvenile Court for transmission to the person or agency having legal custody of the child or to whom compensation is due. The clerk of the Court shall have authority to receive periodic payments towards the care and maintenance of the child, such as social security payments made in the name of or for the benefit of the child.
§4-16-2. Procedure for Payment.
No court order issued under the preceding Section against a parent or other person shall be entered, unless summons has been served on the Reservation or a voluntary appearance is made or a waiver of service given. The summons shall specify that a hearing with respect to the financial support of the child will be held.
§4-16-3. Enforcement of Support Orders.
(1) An order entered under Section 4-16-1 against a parent or other person may be enforced by contempt proceedings, and shall also have the affect of a civil judgment at law. In addition to other remedies, the Court may issue an order to any employer, trustee, financial agency, or other person, firm, or corporation on the Reservation, indebted to the parents or either of them, or indebted to any other person ordered to make payment under this Code, to withhold and pay over to the clerk of the Court, moneys due or to become due not in excess of the lesser of the following:
(a) the amount ordered to be paid by the Court under §4-16-1 hereof, or
(b) one-fourth of the amount due or becoming due the parent or other person at each regular or usual pay day or day of disbursement.
(2) A copy of such order shall, if possible, be served on the parents or either of them adjudged liable and either the parents or parent or the indebted party may request a hearing to determine the property of the order or the extent of the indebtedness.
(3) No property of the parents, or either of them, shall be exempt from execution to enforce collection of the amounts ordered to be paid by the Court under this Section, except that property held in trust by the United States shall be subject to the conditions of the trust.
§4-16-4. Support From Other Sources.
If the Court finds that the parents are unable to pay for full or partial support, examination, treatment, and other expenses of the child and that no other provision for the payment of such support and expenses has been made, or if the parents or other person obligated to pay under court order issued under this Chapter have failed to make such payment, or if summons could not be served on the reservation upon the parents or other person under Section 4-16-2 hereof, the Court shall request the Tribal Public Welfare Division or any other, public or tribal agency or department of the United States or the State of Utah with funds available for such purposes to pay for such support and other expenses and if such department or agency consents, it shall be so ordered by the Court.
§4-16-5. Payments Directly to Agency - Report to Court- Visits.
Payment for child support may be made to a non-governmental agency in whom the Court vests legal custody, provided that the agency shall make periodic reports to the Court concerning the care and treatment the child is receiving and his response to such treatment. Such reports shall be made at such intervals as the Court may direct, and shall be made with respect to each child at least every 6 months. The agency shall also afford an opportunity for a representative of the Court to visit the child as frequently as the Court deems necessary.
CHAPTER 17. APPEALS
An appeal to the Tribal Appellate Court may betaken from any order, decree, or judgment of the Tribal Juvenile Court. Such appeal shall be taken in the same manner in which appeals are taken from judgments or decrees of the Tribal Court. Except as provided in Section 4-15-5 of this Code, the appeal must be taken within one month from the envy of the order, decree, or judgment appealed from.
§4-17-2. Stay Pending Appeal.
Unless the Court stays its order, the pendency of an appeal shall not stay the order or decree appealed from in a child's case. Where the order or decree appealed from directs a change of legal custody of a child, the appeal shall be heard and decided at the earliest practicable time. The name of the child shall not appear on the record on appeal.
CHAPTER 18. MISCELLANEOUS PROVISION
§4-18-1. Disobedience - Contempt.
Any person who willfully violates or refuse to obey any order of the Court, may be proceeded against for contempt of Court.
§4-18-2. Payment of Fines, Penalties, Etc.
Except as otherwise provided bylaw, all fines, penalties, and forfeitures imposed and collected by the Court shall be paid out as the Business Commute shall direct.
§4-18-3. Filing Fees - Witness Fees - Travel Expenses, Etc. - By Whom Payable.
There shall be no fee for filing a petition under Section 4-3-1(1) and (2) of this Code, nor shall any fees be charged by any tribal officer for the service of process or for attendance in court in any such proceedings. Witness fees shall be payable in accordance with Section 4-10-7 of this Code. Such fees and expenses, the cost of publication of summons, and the expense of a trial of an adult person, when approved by the Court, shall be paid by the Tribe.
§4-18-4. Records To Be Kept - Accessibility.
The Court shall keep such records as may be required by the Judge. Records in children's cases shall be withheld from public inspection; but the Court Records shall be open to inspection by the parents or guardian, other parties in the case, the attorneys, and agencies to which custody of a child has been transferred; and with the consent of the Judge, Court Records may be inspected by the child, by persons having a legitimate interest in the proceedings, and by persons conducting pertinent research studies. Probation records and reports of social and clinical studies shall not be open to inspection, except by consent of the Court.
§4-18-5. Short Title.
This Code shall be known and may be cited as the Juvenile Code.
TITLE V - UTE INDIAN DOMESTIC RELATIONS CODE
§5-1-1. Marriage License.
(1) No marriage shall be performed under authority of this Code unless the parties have first obtained a marriage license from the Clerk of the Ute Indian Tribal Court.
(2) Upon payment of a $2.00 fee, the Clerk shall issue a marriage license to persons who appear entitled to be married as provided in this Domestic Relations Code.
(3) The Clerk shall keep a record of all marriage licenses and certificates issued.
(4) The marriage license, properly endorsed by the person performing the marriage, shall be returned to the Clerk who shall issue a marriage certificate to the parties.
§5-1-2. Existing Marriages.
(1) All marriages performed other than as provided for in this Domestic Relations Code, which are void under the laws of the jurisdiction where and when performed, are valid within the jurisdiction of the Ute Indian Tribe.
(2) All marriages performed on the Reservation prior to the effective date of this Code, including those perfected according to Tribal custom, are declared valid for all purposes under this Code. Parties to such marriages may obtain a marriage certificate upon proof to the Clerk by affidavit or otherwise of the validity of their marriage, and payment of a $2.00 fee.
§5-1-3. Persons Who May Marry.
No marriage license shall be issued or marriage performed unless the persons to be married meet the following qualifications:
(1) he is at least 14 years old and, if over 14 years of age but less than 18 years of age, has the written consent of his parent or guardian, properly notarized, to marry;
(2) at least one of the persons to be married is an enrolled member of the Ute Indian Tribe;
(3) he has obtained a blood test to detect venereal disease within 30 days prior to the marriage and such test results were negative. A certificate of the test results shall be presented to the Clerk before any license is issued.
§5-1-4. Who May Perform Marriages.
(1) A marriage may be solemnized on the Reservation by any of the following:
(a) recognized clergyman or person recognized by his religion as having authority to marry;
(b) a judge of the Ute Indian Tribal Court;
(c) the Chairman of the Tribe Business Committee;
(d) any person recognized by Utah State law as having authority to marry.
(2) No marriage solemnized before any person professing to have authority to marry shall be invalid for want of such authority, if consummated in the belief of the parties or either of them that he had such authority and that they have been lawfully married.
§5-1-5. Marriage Ceremony.
No particular form of marriage ceremony is required, provided, however, that the persons to be married must declare in the presence of the person performing the ceremony, that they take each other as husband and wife, and he must thereafter declare them to be husband and wife.
§5-1-6. Void and Voidable Marriages.
(1) Marriages between an ancestor and his descendant, between brothers and sisters, of the half as well as the whole blood, between an uncle and his niece or an aunt and her nephew, or between first cousins are void from the beginning, whether or not the degree of relationship is legitimate or illegitimate.
(2) Marriages between a person who is at the time of the marriage married to another person, still living are void; provided, however, that such marriages will be considered valid until ruled otherwise by a court of competent jurisdiction if the party previously married:
(a) actually believed in good faith that the prior marriage had been dissolved as a result of divorce or annulment; or
(b) actually believed, in good faith, that his prior spouse was dead.
(3) When a marriage is contacted in good faith and in the belief that it is a valid marriage, the issue of such marriage born or conceived prior to the voiding or receiving notice of the invalidity of the marriage for any reason shall be the legitimate issue of both parents.
(4) If either party to a marriage is incapable as a result of some physical cause to enter into the marital state and such cause appears to be permanent, or if the consent of either party to marry was obtained by force or fraud, the marriage is voidable.
§5-2-1. Grounds for Annulment.
A marriage may be annulled for any of the following causes existing at the time of marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled, was under the age of 18 years, and such marriage was contracted without the consent of his or her parents or guardian, or persons having charge of him or her, unless, after attaining the age of consent, such party freely cohabit with the other as husband or wife;
(2) That the former husband or wife of either party was living, and the marriage with such former husband or wife was then in force;
(3) That either patty was of unsound mind, unless such party, after coming into reason, freely cohabited with the other as husband or wife;
(4) That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud; freely cohabited with the other as husband or wife;
(5) That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife; or
(6) Impotence which continues and appears to be incurable.
§5-2-2. Action to Annul - Parties and Limitations.
An action to obtain a decree of annulment of a marriage, for causes mentioned in the preceding section, must be commenced within the periods and by the parties as follows:
(1) For causes mentioned in Subsection 1, by the party to marriage who was married under the age of legal consent, within two years after arriving at the age of consent, or by a parent, guardian or other person having charge of such minor male of female, at any time before such married minor has arrived at the age of legal consent;
(2) For causes mentioned in Subsection 2 by either party during the life of the other, or by such former husband or wife;
(3) For causes mentioned in Subsection 3 by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party;
(4) For causes mentioned in Subsection 4 by the party injured, within two years after the discovery of the facts constituting a fraud;
(5) For causes mentioned in Subsection 5 by the injured party, within four years after the marriage;
(6) For causes mentioned in Subsection 6 by the injured party, within two years after the marriage.
§5-2-3. Legitimacy of Children.
When a marriage is annulled for any reason, other than for fraud in that the wife is pregnant with a child from a man other than the husband, children begotten before judgment are legitimate and succeed to the estate of both parents. The Court may at the time of granting the annulment or at any future time, make necessary orders for the custody and support of said child or children as the circumstances and surroundings of the parents may require.
§5-2-4. Conclusiveness of Judgment of Annulment.
A judgment of annulment of a marriage is conclusive only as against the parties to the action and those claiming under them.
§5-3-1. Divorce and Annulment Procedure.
Proceedings in divorce and annulment shall be commenced and conducted in the manner provided bylaw for civil cases, except as otherwise specifically provided. A final decree of divorce shall restore the parties to the status of unmarried persons.
§5-3-2. Divorce and Annulment Residency Requirement.
In order to maintain an action for divorce or annulment in the Ute Indian Tribal Court, at least one parry to the marriage must be an enrolled member of the Tribe and have lived within the territorial jurisdiction of the Ute Tribal Court for at least three months prior to bringing the action, except that an annulment may be granted where either party lives within the jurisdiction of the Court and the marriage was performed under authority of this Code.
§5-3-3. Grounds for Divorce.
A divorce may be granted for any of the following causes:
(1) Impotency of the defendant the time of the marriage where such impotency continues to the time of commencement of the action;
(2) Adultery committed by the defendant subsequent to marriage;
(3) Willful desertion of the plaintiff by the defendant for more than one year;
(4) Willful neglect of the defendant to provide for the plaintiff the common necessities of life for a period of six months;
(5) Habitual drunkenness or drug incapacitation of the defendant for a period of at least one year;
(6) Conviction of the defendant of a Class A offense under the Ute Indian Law and Order Code, or of a felony in any other court;
(7) Cruel treatment of the plaintiff by the defendant to the extent of causing bodily injury or great mental distress to the plaintiff;
(8) When the parties have lived apart without cohabitation for a period of three consecutive years either voluntarily or under a decree of separate maintenance;
(9) Permanent insanity of the defendant; provided, however, that no divorce shall be granted on this ground unless the defendant has been duly and regularly adjudged insane by a court of competent jurisdiction and such insanity reasonably appears to be permanent; further, no divorce shall be granted unless a guardian ad litem has been appointed to represent the defendant in the divorce proceedings.
A divorce must be denied:
(1) when the cause is adultery and the action is not commenced within one year after its discovery by the injured party,
(2) when the cause is conviction of an offense and the action is not commenced before the expiration of one year after a pardon or the termination of the period of sentence, or
(3) in all cases when there is unreasonable lapse of time before the commencement of the action, or two years have passed since the grounds became or should have become known to the complaining party.
§5-3-5. Right of Husband to Divorce.
The husband may in all cases obtain a divorce from his wife for the same causes and in the same manner as the wife may obtain a divorce from her husband.
§5-3-6. Temporary Alimony and Suit Money; Restraint.
(1) The court may order either party to pay to the clerk for the benefit of the other party a sum of money for the separate support and maintenance of the adverse party and the children, and to enable such party to prosecute and defend the action.
(2) The court may restrain either party from doing certain acts harmful to the other or to the children, or to the property of either, during the pendency of the divorce proceedings.
§5-3-7. Pleadings; Findings; Decree.
The complaint shall be in writing and signed by the plaintiff or the plaintiff's counsel or attorney. No decree of divorce shall be granted upon default or otherwise, except upon legal evidence taken in the cause by the Court who shall make and file its findings and decree upon the evidence. The decree shall become absolute upon entry unless the judge orders otherwise in which case the period of time until which it becomes absolute may be up to three months.
§5-3-8. Disposition of Property and Children.
When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children by alimony and child support, as may be equitable. Subsequent changes or new orders may be made by the court with respect to the custody of the children or the distribution of property as shall be reasonable and proper.
§5-3-9. Custody of Children in Case of Separation.
In any case of separation of husband and wife having minor children, or whenever a marriage is declared void or dissolved, the court shall make such order for the future care and custody of the minor children as it may deem just and proper. In determining custody, the court shall consider the best interests of the child and the past conduct and demonstrated moral standards of each of the parties and the natural presumption that the mother is best suited to care for young children. The court may inquire of the children and take into consideration the children's desires regarding the future custody; however, such expressed desires shall not be controlling and the court may, nevertheless, determine the children's custody otherwise.
IV. SEPARATE MAINTENANCE AND PROPERTY RIGHTS
§5-4-1. Separate Maintenance.
(1) A wife, living on the Reservation, who through no fault of her own or by agreement with her husband, is living separate and apart from her husband, or whose husband has deserted her, or has failed to support her when otherwise able to do so, may maintain an action for a decree of separate maintenance.
(2) During the pendency of the action the Court may order the husband to pay temporary alimony and suit money as in an action for divorce.
(3) If it appears that the wife is entitled to such, the Court shall grant a decree of separate maintenance awarding custody of children, alimony, child support and expenses of suit as may be equitable under the circumstances.
§5-4-2. Property Rights of Married Persons.
(1) Either a wife or a husband can obtain, own, hold, give, sell or otherwise deal with real or personal property as if they were unmarried.
(2) Either a wife or a husband can enter into contracts and sue or be sued to the same extent and in the same manner as if unmarried.
(3) Neither a wife nor a husband nor the property of either in which their spouse has no interest is liable for the debts or obligations of the other spouse solely by reason of marriage to the other spouse.
(4) A conveyance, transfer, or lien executed by either husband or wife in favor of the other shall be valid to the same extent as between other persons.
§5-4-3. Family Expenses.
The expenses of the family and the education of the children are chargeable upon the property of both husband and wife or either of them, and they may be enforced jointly or separately.
§5-4-4. Custody of Children and Property.
(1) Absent a judicial decree of property distribution or custody or otherwise, neither the husband or the wife can remove the other or the children from the place of family dwelling without the consent of the other, provided, however, that children may be removed from the family residence by one parent without the consent of the other if such appears to be reasonably necessary to protect the physical well being of the children, the children are thereafter provided with a more proper living environment, and application is made to the Court within ten days for an order of the court, modifiable at any time, approving such removal of the children.
(2) If a husband abandons his wife, the wife is entitled to custody of all children under the age of 16 unless a court of competent jurisdiction shall otherwise direct.
§5-5-1. Jurisdiction Over Adoption.
The Ute Indian Tribal Juvenile Court shall have full original jurisdiction in adoption matters where the person to be adopted is the child of at least one Indian parent and the child lives within the Reservation or has been placed outside the Reservation by order of the Tribal Juvenile Court.
§5-5-2. Who May Adopt.
(1) Any minor child subject to the jurisdiction of the Ute Indian Tribe may be adopted by any adult person, Indian or non-Indian, as hereinafter provided.
(2) Any person whose parents are both dead may be adopted by an adult person, as hereinafter provided.
(3) A married man, not lawfully separated from his wife, cannot adopt a child without the consent of his wife, nor can a married woman, not lawfully separated from her husband, adopt a child without the consent of her husband, if the spouse not consenting is legally capable of giving such consent.
(4) A person adopting a child must be at least 10 years older than the child adopted.
(5) In any adoption involving an Indian child, preference shall be given to Indian adoptive parents, and as between Indian adoptive parents, preference shall be given to residents of the Uintah and Ouray Reservation.
§5-5-3. Consent to Adoption.
(1) No consent to adoption shall be required from a parent or parents whose parental rights have been terminated by a court of competent jurisdiction.
(2) A legitimate child cannot be adopted without the consent of both parents, if living, provided, however, that the court can allow the adoption of a legitimate child without the consent of a parent whose whereabouts are unknown after a reasonable search and who has deserted the family for a period of two years without in that time ever contacting the family.
(3) An illegitimate child cannot be adopted without the consent of its mother, if living.
(4) A child deserted by its parents or surviving parent and having no legal guardian may be adopted without the consent of its parents upon a finding by the Court that the child has in fact been deserted and that the identity of the parents is unknown after reasonable investigation.
(5) The consent of a child over the age of twelve years is necessary to its adoption.
(6) A child who has a guardian of its person other than a parent cannot be adopted without the consent of such guardian, provided, however, that an adoption of such a child may be accomplished without such consent the court finds that the adoption will be in the child's best interest.
(7) Consent of a parent shall be taken by the court and shall be accomplished by signing a consent form to be provided by the court, which explains the consequences of consenting to the adoption. For parents residing outside the Reservation, the consent form shall be executed before a Notary Public who shall certify that the consent of the parent appears to be freely given.
(8) A consent to adoption may be withdrawn only prior to the entry of an Order of Adoption, and only upon permission of the Court for the reason that the best interests of the child will be served by such withdrawal.
§5-5-4. Petition to Adopt.
A person or persons wishing to adopt a child through the Ute Indian Tribal Juvenile Court shall file a petition, verified under oath, which shall contain the following information:
(1) The full names, address, and ages of the adopting parents, plus the names and ages of an other children living in their household, if any;
(2) The full name, residence, sex and birthdate of the child whose adoption is sought, plus documentary proof of the child's date and place of birth, if available;
(3) Proof of parental or guardian's consent to the adoption or of the termination of the natural parent's or parental rights or of the deserted status of the child, as is appropriate;
(4) A full description and statement of value of all property owned or possessed by the child;
(5) A statement by the adopting parents that it is their desire to adopt the child, and to establish the relation of parent and child with the adopted child, and that they will protect and care for the child to the best of their ability if the adoption is granted.
§5-5-5. Investigation Report.
After the filing of the petition for adoption, the Court may request the assistance of Tribal, Federal, or state officials or agencies to inquire into and report in writing to the Court on the suitability of the child for adoption, and the financial, moral, and physical fitness and general background of the adoptive parents and their home, together with a recommendation regarding the proposed adoption.
§5-5-6. Adoption Hearing.
Within five days after the written investigation report is received or within a reasonable time, the Court shall fix a time for hearing on the petition for adoption. The adoptive parent or parents and adoptive child shall appear personally at the hearing. All other persons whose consent is necessary to the adoption shall be duly notified if possible and may appear or be represented by a spokesman authorized to represent them for the purpose of adoption. The Judge shall examine all persons appearing separately, and if satisfied as to the suitability of the child for adoption, the financial ability and moral and physical fitness and responsibility of the adoptive parents, and that the best interests of the child will be promoted by the adoption, may enter a final decree of adoption, or may place the child in the legal custody of the petitioners for a period of not more than six months prior to entering a final decree of adoption, or if the Court is satisfied that the adoption petition will not be in the best interests of the child, the petition shall be denied and the child's guardian instructed to arrange suitable care for the child, and the Court may request the tribal agencies, federal agencies, or other agencies authorized to provide such services to assist in the placement and the care of the child.
§5-5-7. Report and Final Decree of Adoption.
If the Court does not enter a final Decree of Adoption at the time of the hearing for adoption, but places the child in the legal custody of the petitioners, within six months after the child has been in the custody of the petitioner, the Court shall request a supplementary written report as to the welfare of the child, the current situation and conditions of the adoptive home and the adoptive parents. If the Court is satisfied that the interests of the child are best served by the proposed adoption, a final Decree of Adoption may be entered. No final order shall be entered by the Court unless it appears to the Court that the adoption is in the best interests of the child. In any case where the Court finds that the best interests of the child will not be served by the adoption, a guardian shall be appointed and suitable arrangements for the care of the child shall be made and the court may request tribal agencies or federal agencies or other agencies authorized to provide such services to assist in the placement and the care of the child.
§5-5-8. Adoption Records.
All records, reports, proceedings, and orders in adoption cases are confidential and permanent records of the court and shall not be available for release to or inspection by the public. Information contained in such records may be released upon petition to the Court by the adopted person after reaching legal majority, or otherwise upon order of the Court upon good and sufficient cause shown.
§5-5-9. Contents of Adoption Order.
The final order of adoption shall include such facts as are necessary to establish that the child is eligible and suitable for adoption, and that the adoptive home and parents are adequate and capable for the proper care of the child, as shown by the investigation reports and the findings of the court upon the evidence adduced at the hearings. Within five days after the final decree of adoption has been entered by the Court, the Division of Vital Statistics of the Utah State Board of Health shall be notified by the Clerk of the Court that the adoption has taken place, giving the full name, sex, birthdate, names of natural parent(s) and full names of adoptive parent(s)so that a new record of birth in the new name and with the name or names of the adopting parents is recorded, and provided with a certified true and correct copy of the final decree of adoption.
§5-5-10. Name and Legal Status of Adopted Child.
Minor children adopted by order of court shall assume the surname of the person whom they are adopted, unless the court orders otherwise, and shall be entitled to the same rights of persons and property as children or heirs of the persons adopting them. Adoption shall not affect Tribal membership status or any rights incident thereto.
§5-5-11. Rights and Liabilities of Natural Parents.
The natural parents of an adopted child are, from the time of the final decree of adoption, relieved of all parental duties toward, and all responsibility for the child so adopted, and shall have no further rights over him.
(1)The Ute Indian Tribal Court shall have authority, whenever it appears necessary or convenient, to appoint guardians for the persons and/or the estates, or for the purpose of actual or contemplated litigation (guardian ad litem) of either minors or persons incompetent by reason of physical or mental sickness or deficiency, advanced age, or chronic use of drugs or alcohol.
(2) The Ute Indian Tribal Court shall have authority to appoint guardians when the person for whom the guardianship is sought is a member of the Tribe or the child of a member of the Tribe, whether or not he lives on the Reservation.
(3) The Tribal Court may, in its discretion, refer matters concerning the guardianship of a minor to the Tribal Juvenile Court.
§5-6-2. Appointment of Guardian in Connection With Probating an Estate.
(1) The Court may, in the process of administering an estate for which there is a valid will containing a designation of a guardian for minor children if orphaned by the deceased's death, appoint the person therein designated as guardian of the minors involved without the necessity of a separate guardianship hearing.
(2) If the person so designated is unable or unwilling to serve, or if such person's appointment is objected to by any child over 14 years of age, or if the Court deems such to be in the minor's best interest, a separate guardianship hearing shall be held as provided herein.
(1) Except as provided in the preceding section, guardianship proceedings shall be initiated by the filing of a petition by a relative or other person on behalf of the minor or incompetent, or by a minor himself if over 14 years of age. The Court may initiate proceedings to appoint a guardian if such appointment reasonably appears necessary and no other person has initiated such proceedings.
(2)The petition shall set forth the name of the petitioner; the petitioner's relationship to the minor or incompetent, shall list all known relatives of the minor or incompetent and their addresses, relationships and ages insofar as is known to petitioner; shall list all property of the minor or incompetent, real and personal, known to petitioner; shall list in detail the present conditions and circumstances which warrant the appointment of a guardian; shall pray that Letters of Guardianship be issued to himself or some other suitable person to act as guardian of the minor or incompetent.
§5-6-4. Notice; Hearing
(1) The petitioner, or the Clerk of the Court, if a minor or the Court itself initiates the proceeding, shall cause notice of the hearing to be given by mail or personal service to all known interested persons listed on the petition not less than five days before a scheduled hearing. Such notice need not be given in the case of a minor whose parents appear and consent to waive such notice prior to the hearing or in the case of an adult where the spouse and children living on the Reservation appear and waive such notice. An appearance and waiver may be made personally or by affidavit to the Court.
(2) Hearing for minor. At a hearing conducted to appoints guardian for a minor, the Court shall: examine the petition; determine the need to have a guardian appointed; examine the minor (if over 14 years of age) to determine who he would prefer to have as his guardian; determine which person, either the petitioner or some other person, is most suitable to act as guardian, and that person's willingness to act as such; and make an order appointing a guardian, setting forth the scope of the guardian's authority, whether or not security for his performance is to be required, and the duration of such appointment.
(3) Hearing for incompetent. At a hearing conducted to appoints guardian for an incompetent, the Court shall: examine the petition; determine the need to have a guardian appointed by taking such testimony as any interested party wishes to present, but including not less than two doctors' reports, written or oral, under oath, to the effect that the incompetent is not presently able to handle his property or affairs, the anticipated duration of the incapacity, and that the best interests of the incompetent will be served by having a guardian appointed; determine which person, either the petitioner or some other person, is most suitable to act as guardian, and that person's willingness to act as such; and make an order appointing a guardian, setting forth the authority of the guardian, whether or not security for his performance is to be required, and the duration of such appointment.
§5-6-5. Who May Serve As Guardian.
Any adult person 21 years of age or older and subject to the jurisdiction of the Ute Indian Tribal Court may serve as a guardian. Preference shall be given to relatives of the minor or incompetent in order of their closeness of relationship and some preference shall also be given to a person with whom the minor or incompetent is living at the time of the guardianship hearing. Preference shall be given to the person preferred to act as his guardian by a minor or incompetent over 14 years of age, but in all cases, the Court shall determine the best interests of the minor or incompetent in selecting a guardian.
§5-6-6. Security for Faithful Performance of Duties.
The Court may, but need not, require a guardian to provide security in the form of a bond or otherwise to assure the faithful performance of the guardian's duties. Any surety of any such security will be deemed to have consented to the jurisdiction of the Ute Indian Tribal Court for purposes of action against such security.
§5-6-7. Oath; Letters of Guardianship.
(1) The guardian appointed by the Court shall be required to take an oath, the form of which to be prescribed by the Court, to the effect that he will faithfully perform his duties as guardian.
(2) Upon taking the oath and filing with the Court such security, if any, as may have been required, the guardian shall be issued Letters of Guardianship, issued by the Clerk under the seal of the Court, as evidence of his appointment. Any limitations in the authority of the guardian shall be set forth on the Letters so issued.
§5-6-8. Inventory and Appraisement.
(1) Within 45 days after the appointment of a general guardian or guardian of the property or estate of a minor or incompetent, the guardian shall prepare and submit to the Court an inventory and appraisement of the estate.
(2) The appraisement shall be made by three disinterested persons who shall certify under oath to their appraisement and may receive reasonable compensation for their services.
(3) No appraisement shall be required of items of obvious, readily ascertainable value; e.g. bank account assets, or where the value of the estate is reasonably believed by the guardian to be less than $1,000.00. If no appraisement is required, the guardian shall certify under oath to the obvious or estimated value of the assets not appraised.
§5-6-9. Annual Accounting.
(1) The guardian of every estate in value over $1,000.00 shall submit an annual account of the estate to the court for approval, on such notice as the court may direct, in each year in which the value of the estate is or is reasonably believed to be in excess of $1,000.00.
(2) Such account shall be verified on the oath of the Guardian and shall contain an accounting of all additions to and withdrawals from the estate, and shall be accompanied by supporting cancelled checks, vouchers, receipts, statements, etc.
§5-6-10. Guardian's Compensation.
(1) No guardian shall receive any compensation for acting as such without the prior approval of the Court.
(2) The guardian of an estate in excess of $1,000.00 in value may receive annual compensation for acting as such in amount not less than $25.00 nor greater than 10% of the gross income of the estate.
(3) The guardian of an estate less than $1,000.00 in value shall receive no compensation unless specifically ordered by the Court for extraordinary service to the estate.
(4) The right to receive compensation as guardian of an estate shall be deemed waived for any year in which such is not requested and received.
§5-6-11. Powers and Responsibilities of Guardian.
(1) Except as otherwise specifically ordered or limited by the Court:
(a) A general guardian or guardian of the person of a minor or incompetent shall have the right to take or provide for the custody of the person of the minor or incompetent and shall be required to care for the health, safety and welfare of such minor or incompetent and provide for their education and medical care as needed or appropriate.
(b) A general guardian or guardian of the estate or property of a minor or incompetent shall have authority to invest, manage and dispose of the property of the minor or incompetent in a prudent and reasonable manner and expend such portions of the estate, income and then principle, as he shall deem reasonably necessary for the support, care, including medical care, and education of the minor or incompetent given the size and nature of the estate and the station in life and needs of the minor or incompetent.
(c) A guardian ad litem shall have power and authority to represent a minor or incompetent's best interests in actual, threatened or contemplated litigation or other proceedings of a legal nature (other than of a criminal nature and/or under the Juvenile Code), and to employ counsel, and settle or compromise suits or claims, subject to the approval of the Court.
(2) A guardian of any kind may petition the court for authority to do any act about which he is uncertain of his authority, and the Court may grant such authority, after such notice and hearing, if any, as the Court may direct, if such appears to be consistent with the best interests of the minor or incompetent.
(3) A guardian of any kind shall stand in a fiduciary relationship to the minor or incompetent ward; shall exercise a high degree of care in managing the estate of his ward; shall derive no personal benefit of any kind from his management of the estate of his ward; and shall be civilly liable to said ward for any losses to the estate attributable to a breach of these duties. Action to enforce such liability may be brought by the ward or a subsequently appointed guardian on behalf of the ward within two years after the appointment of a new guardian or the removal of the incompetency or the arriving at the age of majority.
§5-6-12. Discharge of Guardian.
(1) Every guardian appointed as provided herein shall serve until discharged by the Court.
(2) A guardian of a minor, not otherwise incompetent, or the minor himself, may petition the Court on or after the date the minor reaches the age of majority to have the guardian discharged and the estate turned over to the minor. The Court shall grant such discharge with or without notice and hearing, upon the receipt of sufficient, competent evidence that the minor has reached the age of majority unless the minor appears to be otherwise incompetent, in which case a hearing shall be held to determine such fact.
(3) A person, other than a minor, who has had a guardian appointed for reasons of incompetency, or the guardian or a relative of such incompetent may petition the Court for a determination of his restoration to capacity and for the discharge of the guardian. The Court shall hold a hearing, after such notice to known interested persons as the Court shall direct, and receive evidence, both of a medical nature and otherwise, of the ward's competency. If it be found that the ward is of sound mind and capable of taking care of himself and his property, his restoration to capacity shall be adjudged and his guardianship and guardian discharged.
§5-6-13. Guardianship Records.
The Clerk shall keep a separate, permanent file for each guardianship proceeding and shall file all papers relevant thereto, including petitions, notices, orders for hearings, etc. Any guardian duly appointed shall be entitled to receive, without charge, three certified copies of the Letters of Guardianship. Certified copies of filed papers shall be otherwise available at a fee per copy to be established by the Court.
§5-6-14. Guardianship of Trust Property.
The Court is hereby authorized to appoint a Guardian of the trust estate of minors or incompetents using the procedures and safeguards outlined herein for the purpose of conveying or consenting to the conveyance of an interest in trust property owned by such minor or incompetent if it appears that the price to be paid is reasonable and adequate and that such sale is to the best interests of said minor or incompetent, the Court may enter an order authorizing such action. All actions taken by such guardian consenting to or conveying trust property shall be subject to the approval of the Superintendent.
§5-6-15. Temporary Guardianship and Custody.
The Court shall have the power to entertain and grant or deny petitions for temporary guardianship and custody when it determines it to be in the best interest of the child involved.
TITLE VI - UTE INDIAN PROBATE CODE
I. GENERAL PROVISIONS
The Ute Indian Tribal Court shall have jurisdiction to appoint administrators, determine heirs, appoint executors, determine the validity of wills, and to probate and distribute the estates and wills of any member of the Ute Indian Tribe with respect to non-trust personal property and non-restricted or non-trust real property located on the Reservation. The Tribal Court shall exercise such functions over restricted or trust property to the greatest extent allowed by law.
These provisions relating to decedent's estates shall be liberally construed and applied to give effect to the underlying policy of distributing a decedent's property according to the decedent's intent where there is a valid will manifesting such intent, or according to the provisions of this Probate Code where there is not a valid will.
§6-1-3. Reference to Other Law.
The law of the State of Utah relative to decedent's estates may be referred to and followed in situations where this Probate Code provides no guidance regarding the handling of decedents' estates, but only so far as such law is not inconsistent with the provisions and spirit of this Probate Code.
§6-1-4. Effect of Fraud and Evasion.
Whenever fraud has been perpetrated in connection with any proceeding or in any statement filed under this Probate Code or if fraud is used to avoid or circumvent the provisions or purposes of this Probate Code, any person injured thereby may obtain appropriate relief against the perpetrator of the fraud including restitution from any person (other than a bona fide purchaser) benefiting from the fraud, whether innocent or not. Any proceeding must be commenced within 2 years after the discovery of the fraud, but no proceeding may be brought against one not a perpetrator of the fraud later than 5 years after the time of commission of the fraud. This section has no bearing on remedies relating to fraud practiced on a decedent during his lifetime which affect the succession of his estate.
§6-1-5. Evidence as to Death or Status.
In proceedings under this Code the rules of evidence in the trial court are applicable unless specifically displaced by the Probate Code. In addition, the following rules relating to determination of death and status are applicable:
(1) A certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie proof of the fact, place, date and time of death and the identity of the decedent;
(2) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that a person is missing, detained, dead, or alive, is prima facie evidence of the status and of the dates, circumstances and places disclosed by the record or report;
(3) A person who is absent for a continuous period of 5 years, during which he has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
§6-1-6. Practice in Court.
Unless specifically provided to the contrary in this Probate Code or unless inconsistent with its provisions, the Ute Indian Rules of Civil Procedure including the rules concerning vacation of order and appellate review govern formal proceedings under this Probate Code.
§6-1-7. Records and Certified Copies.
The Clerk shall keep a file for each decedent of all documents filed with the Court under this Probate Code and shall keep a numerical index of all such estates to facilitate access to such records. Upon payment of the fee not to exceed fifty cents per copy page), the Clerk shall issue certified copies of any document or paper so filed.
§6-1-8. Jury Trial.
If properly demanded, a party is entitled to a trial by jury in any proceeding in which any genuine controverted question of fact arises, or the trial judge may order a jury trial on any such issue on his own motion. Otherwise all proceedings under this Probate Code shall be handled by a trial judge or the Clerk, as is appropriate.
§6-1-9. Oath or Affirmation on Filed Documents.
Except as specifically provided in this Probate Code, every document filed with the Court under this Probate Code shall be deemed to include an oath, affirmation, or statement to the effect that its representations are true as far as the person executing or filing it knows or is informed, and the penalties for penury shall follow deliberate falsification therein.
(1)If notice of a hearing on any petition or other matter is required, and except for specific notice requirements as otherwise provided, the petitioner shall cause notice of the time and place of hearing of any petition to be given to any interested person or his attorney if he has appeared by attorney or requested that notice be sent to his attorney. Notice shall be given:
(a) by mailing a copy thereof at least 14 days before the time set for the hearing by certified, registered or ordinary first class mail addressed to the person being notified at the post office address given in his demand for notice, if any, or at his office or place of residence, if known; or
(b) by delivering a copy thereof to the person being notified personally at least 14 days before the time set for the hearing; or
(c) if the address, or identity of any person is not known and cannot be ascertained by reasonable diligence, by posting a copy of the notice in at least three (3) conspicuous public places on the Reservation at least 14 days before the time set for the hearing.
(2) The Court for good cause shown may Provide for a different method or time of giving notice for any hearing.
(3) Proof of the giving of notice shall be made at or before the hearing and filed in the proceeding.
(4) A person, including a guardian ad litem, or other fiduciary, may waive notice by a writing signed by him or his attorney and filed in the proceeding.
§6-1-11. Renunciation of Succession.
A person (or his personal representative) who is an heir, devisee, person succeeding to a renounced interest, beneficiary under a testamentary instrument or person designated to take pursuant to a power of appointment exercised by a testamentary instrument may renounce in whole or in part the succession to any property or interest therein by filing a written instrument with the Court not later than 6 months after the decedent's death or the time at which it is determined that the person is entitled to take property if such is not known at the time of death. The instrument shall (i) describe he property or part thereof or interest therein renounced, (ii) be signed by the person renouncing and (iii)declare the renunciation and the extent thereof. Upon proper renouncement, the interest renounced passes as if the renouncing person had predeceased the decedent or donee.
§6-1-12. Effect of Divorce, Annulment, and Decree of Separation.
A person who is divorced from a decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he is married to the decedent at the time of death. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this Probate Code.
§6-1-13. Effect of Homicide on Intestate Succession, Wills, Joint Assets, Life Insurance and Beneficiary Designations.
(1) A surviving spouse, heir or devisee who criminally and intentionally kills the decedent is not entitled to any benefits under the will or under this Probate Code, and the estate of the decedent passes as if the killer had predeceased the decedent. Property appointed by the will of the decedent to odor the benefit of the killer passes as if the killer had predeceased the decedent.
(2) Any joint tenant who criminally and intentionally kills another joint tenant thereby effects a severance of the interest of the decedent so that the share of the decedent passes as his property and the killer has no rights by survivorship. This provision applies to joint tenancies in real and personal property, joint accounts in banks, savings and loan associations, credit unions and other institutions, and any other form of co-ownership with survivorship incidents.
(3) A named beneficiary of a bond, life insurance policy, or other contractual arrangement who criminally and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.
(4) Any other acquisition of property or interest by the killer shall be heated in accordance with the principles of this section.
(5) A final judgment of conviction of an offense containing the elements of criminal and intentional killing is conclusive for purposes of this section. In the absence of a conviction of criminal and intentional killing, the Court may determine by a preponderance of evidence whether the killing was criminal and intentional for purposes of this section.
II. INTESTATE SUCCESSION
§6-2-1. Intestate Estate.
When any member of the Tribe dies without disposing of all or part of his property by a valid will, all such property not so disposed will pass in accordance with the laws of Intestate Succession of the State of Utah. See Utah Code Annotated, Title 74, Chapter 4.
III. PROBATE OF INTESTATE ESTATE
(1) When any member of the Tribe dies leaving an intestate estate subject to the jurisdiction of the Ute Indian Tribal Court, any person claiming to be an heir of the decedent, or the Tribe, may petition the Court for a determination of the heirs of the decedent and for the distribution of such property. The petition shall contain the names and addresses of all persons known to the petitioner who may be entitled to share in the distribution of the estate.
(2) Whenever there is a valid will probated by the Court which does not dispose of all of the decedent's property, a determination of the heirs entitled to such property and its distribution shall be made by the Court at or before the time the remainder of the estate is distributed without the necessity of a separate petition and proceeding.
§6-3-2. Administrator of Intestate Estate.
(1) If an executor is appointed over a decedent's property which is disposed of by a valid will, such person shall likewise assume authority over the decedent's interstate estate and administer it with the rest of the decedent's estate.
(2) Whenever it reasonably appears that such is necessary to the preservation, administration and/or distribution of a decedent's intestate estate, the Court shall appoint an administrator over the estate. It shall not be necessary to appoint an administrator if the value of the decedent's property appears to be less than $1,000.00 in value, no problems in administering the estate are foreseen, and no one requests that one be appointed.
(3) The following persons, if legally competent, shall be afforded priority in order of their listing for appointment as administrator: the surviving spouse, children in descending order of age, other blood relatives in order of their closeness of relationship; any adult tribal member.
(4) The duties of the administrator shall be:
(a) to take possession of all property of the decedent subject to this Probate Code;
(b) within one month of his appointment make an inventory and appraisement of such property and file it with the Court;
(c) determine and file with the Court a list of all known relatives of the decedent, their ages, and their relationship to the decedent;
(d) subject to the approval of the Court ascertain and pay all of the debts and legal obligations of the decedent;
(e) prosecute and defend actions for or against the estate;
(f) distribute the estate in accordance with the order of the Court and file receipts with the Court showing distribution of the estate.
(5) The Administrator shall file a bond in an amount to be set by the Court to insure his faithful, honest performance of his duties as administrator. Unless otherwise made to appear necessary or desirable, no bond shall be required of an administrator who is the spouse or child of a decedent.
§6-3-3. Appointment of Administrator.
(1) Upon receipt of a petition to administer an intestate estate, the clerk shall schedule a hearing at which an administrator will be appointed. Said hearing shall be scheduled far enough in advance to allow the required notice to be made.
(2) Notice of the hearing shall be made by the petitioning party or by the Clerk if the Tribe is the petitioning party and shall also be posted in a conspicuous place in the Tribal Administration Building.
(3) The Court shall determine who is the proper person to appoint as Administrator, and if such person manifests his willingness to serve, order his appointment as administrator.
§6-3-4. Oath of Administrator; Letters of Administration.
(1) Upon his appointment as administrator, the person appointed shall take an oath to be prescribed by the Court to the effect that he will faithfully and honestly administer the estate.
(2) Upon taking the oath and filing the bond, if any is required, the administrator shall be granted Letters of Administration as proof of his appointment.
§6-3-5. Notice to Creditors.
The administrator of the estate or the Clerk if no administrator is appointed shall cause notice to creditors to be posted in at least three conspicuous places on the Reservation and published at least twice in a publication of general distribution on the Reservation. Said notice shall state that creditors have 90 days from the date of the first publication of the notice to present their claims to the administrator or Clerk and that only those claims so presented shall be paid by the estate.
§6-3-6. Payment of Creditors.
(1) Payment to creditors of the decedent shall be made by the administrator only upon the order of the Court after determining the validity of the claims by affidavit or personal testimony of the claimant.
(2) All just claims of creditors allowed by the Court shall be paid before distribution of the estate but shall be paid only after payment of the family allowance and homestead allowance as provided herein.
Prior to the distribution of every estate for which an administrator has been appointed, such administrator shall render an accounting to the Court, for its approval, of all receipts and disbursements from the estate, showing the present status of the estate and that it is ready for distribution, and also showing the computation of any attorney's and/or administrator's fees involved for which approval for payment is sought. In estates in which no administrator is appointed, the Clerk shall account to the Court for all transactions relating to the estate.
§6-3-8. No Taker.
If there is no taker under the provisions of this part, the intestate estate passes to the Tribe.
If a person dies intestate as to all his estate, property which he gave in his lifetime to an heir is heated as an advancement against the latter's share of the estate only if declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir to be an advancement. For this purpose, the property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of death of the decedent, whichever first occurs. If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the interstate share to be received by the recipient's issue, unless the declaration or acknowledgment provides otherwise.
§6-3-10. Debts to Decedent.
A debt owed to the decedent is not charged against the intestate share of any person except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's issue.
§6-3-11. Status of Heirs.
No person is disqualified to take as an heir because he or a person through whom he claims is not a member of the Ute Indian Tribe or because he does not live on the Reservation.
§6-4-1. Who May Make a Will.
Any person 18 or more years of age who is of sound mind may make a will.
Except as provided for holographic wills, every will shall be in writing signed by the testator or in the testator's name by some other person in the testator's presence and by his direction, and shall be signed by at least two (2) persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.
§6-4-3. Holographic Will.
A will which does not comply with the next preceding section is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.
§6-4-4. Self-Proved Will.
An attested will may, at the time of its execution or at any subsequent date, be made self-proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before a notary public or Tribal judge and evidenced by the notary or judge's certificate, under official seal, attached or annexed to the will in form and content substantially as follows:
THE STATE OF____________________________________
We, ___________________________, ________________________________, and _________________________________, the testator and the witnesses,
respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he had signed willingly or directed another to sign for him, and that he executed it as his free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his knowledge the testator was at the time 18 or more years of age, of sound mind and under no constraint or undue influence.
Subscribed, sworn to and acknowledged before me by _____________________,
the testator, and subscribed and sworn to before me by _______________________ and
____________________________, witnesses, this _____________ day of ___________, 19____.
(Official capacity of officer)
§6-4-5. Who May Witness.
(1) Any person generally competent to be a witness may act as a witness to a will.
(2) A will or any provision thereof is not invalid because the will is signed by an interested witness.
§6-4-6. Choice of Law as to Execution.
A written will is valid if executed in compliance with this Probate Code or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the rime of execution or at the time of death the testator is domiciled, has a place of abode or is a national.
§6-4-7. Revocation by Writing or by Act.
A will or any part thereof is revoked:
(1) By a subsequent will which revokes the prior will in whole or in part expressly or by inconsistency; or
(2) By being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.
§6-4-8. Revocation by Divorce; No Revocation by Other Changes of Circumstances.
If, after executing a will, the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.
§6-4-9. Revival of Revoked Will.
(1) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from testator's contemporary or subsequent declarations that he intended the first will to take effect as executed.
(2) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.
§6-4-10. Incorporation by Reference.
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.
§6-4-11. Events of Independent Significance.
A will may dispose of property by referance to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of a will of another person is such an event.
§6-4-12. Requirement That Devisee Survive Testator by 120 Hours.
A devisee who does not survive the testator by 120 hours is treated as if he predeceased the testator, unless the will of the decedent contains some language dealing explicitly with simultaneous deaths or deaths in a common disaster, or requiring that the devisee survive the testator or survive the testator for a stated period in order to take under the will.
§6-4-13. Simultaneous Death.
(1) Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise.
(2) Where two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is to sufficient evidence that these beneficiaries have died otherwise than simultaneously the property thus disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived.
(3) Where there is no sufficient evidence that two joint tenants or tenants by the entirety have died otherwise than simultaneously, the property so held shall be distributed one-half as if one had survived and one-half as if the other had survived. If there are more than two joint tenants and all of them have so died the property thus distributed shall be in the proportion that one bears to the whole number of joint tenants.
(4) Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously, the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.
(5) These provisions on simultaneous death shall not apply in cases where the decedent has made provision for a different distribution in a will, trust, deed or contract of insurance.
§6-4-14. Rules of Construction and Intention.
The intention of a testator as expressed in his will controls the legal effect of his dispositions. The rules of construction expressed in the succeeding sections of this Probate Code apply unless a contrary intention is indicated by the will.
§6-4-15. Construction That Will Passes All Property; After-Acquired Property.
A will is construed to pass all property which the testator owns at his death including property acquired after the execution of the will.
§6-4-16. Anti-Lapse; Deceased Devisee; Class Gifts.
If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator by 120 hours take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take by representation. One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.
§6-4-17. Failure of Testamentary Provision.
(1) Except as provided in the next preceding section if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.
(2) Except as provided in the next preceding section if the residue is devised to two or more persons and the share of one of the residuary devisees fails for any reason, his share passes to the other residuary devisee, or to other residuary devisees in proportion to their interests in the residue.
§6-4-18. Exercise of Power of Appointment.
A general residuary clause in a will, or a will making general disposition of all of the testator's property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intention to include the property subject to the power.
A specific devise passes subject to any security interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.
§6-4-20. Construction of Generic Terms to Accord With Relationships as Defined for Intestate Succession.
Half-bloods, adopted persons and persons born out of wedlock are included in class gift terminology and terms of relationship in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so heated by the father.
§6-4-21. Ademption by satisfaction.
Property which a testator gave in his lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if the will provides for deduction of the lifetime gift, or the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or the devisee acknowledges in writing that the gift is in satisfaction. For purpose of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first.
V. PROBATE OF WILLS
§6-5-1. Petition for Letters Testamentary.
A petition for Letters Testamentary may be made by any person having possession of a decedent's will. The petition must be in writing, signed by the petitioner, and shall state the basis for the Court's jurisdiction, the names of the heirs of the decedent, if known, and the name or names of any person specified in the will as executor and the address of such person if known. The original copy of the will shall be submitted to the Court with the petition.
§6-5-2. Qualification of Executor.
The Court shall appoint an executor to administer the estate. The executor shall be a competent adult Tribal member and preference shall be given, if such persons are otherwise qualified, to the person named in the will as such, followed by the surviving spouse or child of the decedent with preference given in descending order of age.
§6-5-3. Appointment of Executor.
(1) Upon receipt of a petition for Letters Testamentary, the clerk shall schedule a hearing at which an executor will be appointed and Letters Testamentary authorized. The hearing shall be scheduled so that adequate notice to interested persons can be made.
(2) Notice of the hearing shall be made by the petitioning party to all persons named as takers under the will, and to all known heirs of the decedent if different from the named takers, and also posted in a conspicuous place in the Tribal Administration Building.
(3) At the hearing, the Court shall first determine the validity of the decedent's will and then appoint an executor to administer the estate according to the terms of this Probate Code and the decedent's will.
(4) Letters Testamentary shall be granted to the person appointed as executor upon his taking an oath, to be prescribed by the Court, to the effect that he will faithfully and honestly administer the estate, and upon his filing the bond, if required.
§6-5-4. Duties of Executor, Bond.
The duties of the executor shall be the same as those prescribed in this Probate Code for the Administrator of an intestate estate, and he shall file a bond in a like manner and subject to the same exceptions.
Notice to creditors, determination of the validity of claims, and payment of claims shall be handled as prescribed for intestate estates.
Prior to the distribution of the estate remaining after payment of all just claims and priority payments, the executor shall submit to the Court for approval an accounting of all receipts and disbursements from the estate, showing the present status of the estate and that it is ready for distribution, and also showing the computation of any attorney's and/or executor's fees involved for which approval for payment is sought.
§6-5-7. Distribution; Closing Estate.
(1) When it is made to appear to the Court that an estate is ready to be distributed, the Court shall order such distribution according to the provisions of the decedent's will or the rules of intestate succession whichever is applicable, and according to the rules set forth in this Probate Code.
(2) The estate shall be closed and the personal representative of the estate dismissed and his bond, if any, released upon filing with the Court receipts showing that the estate is fully distributed, and also upon filing the personal representative's affidavit that the estate is fully administered and ready to be closed.
§6-5-8. Distribution; Order in Which Assets Appropriated; Abatement.
(1) Except as provided in subsection (2)and except as provided in connection with the share of the surviving spouse who elects to take an elective share, shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (a) property not disposed of by the will; (b)residuary devises; (c) general devises;(d)specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.
(2) If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (1),the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.
(3) If the subject of a preferred devise is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.
§6-5-9. Property Discovered After Estate Closed.
An estate may be reopened whenever necessary to dispose of a decedent's property discovered after his estate has been closed. The Court shall order distribution of the property to the person or persons entitled thereto after making whatever orders appear necessary to assure a just participation of the after discovered property in the expenses of the estate.
§6-5-10. Personal Representative and Attorney's Fees;
(1) An administrator or executor may elect to receive a fee of 5% of the value of the gross estate but not less than $50.00 to be paid from the estate prior to final distribution of the estate.
(2) An attorney who represents the personal representative of an estate for purposes of administering the estate may be paid from the estate a fee of 5%.of the gross estate, but not less than $50.00. A greater amount may be approved upon a showing of extraordinary service to the estate.
VI. FAMILY RIGHTS
§6-6-1. Right to Elective Share.
If a married Tribal member domiciled on the Reservation dies, the surviving spouse has a right to elect to take an elective share of one-third of the estate of the decedent, less funeral and administration expenses, family allowance and enforceable claims against the estate, plus the value of all property in excess of $1,000.00 transferred by the decedent to any person other than the surviving spouse in the three years preceding his death to which the surviving spouse has not joined by written consent.
§6-6-2. Right of Election Personal to Surviving Spouse.
The right of election of the surviving spouse may be exercised only during his lifetime by him. In the case of an incompetent or protected person, the right of election may be exercised only by order of the court in which protective proceedings as to his property are pending, after finding that exercise is necessary to provide adequate support for the protected person during his probable life expectancy.
§6-6-3. Waiver of Right to Elect and of Other Rights.
The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contact, agreement or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of " all rights" (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property and family allowance by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.
§6-6-4. Proceeding for Elective Share; Time Limit.
(1) The surviving spouse may elect to take his elective share in the estate by filing in the Court and mailing or delivering to the personal representative a petition for the elective share within 6 months after the publication of notice to creditors for filing claims which arose before the death of the decedent. The Court may extend the time for election as it sees fit for cause shown by the surviving spouse before the time for election has expired.
(2) The surviving spouse shall give notice of the time and place set for hearing to persons interested in the estate and to the distributees and recipients of portions of the estate whose interests will be adversely affected by the taking of the elective shares.
(3) The surviving spouse may withdraw his demand for an elective share at any time before entry of a final determination by the Court.
(4) After notice and hearing, the Court shall determine the amount of the elective share and shall order its payment from the assets of the estate or by contribution as appears appropriate under the following section. If it appears that a fund or property included in the estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the Court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he would have been if relief had been secured against all persons subject to contribution.
(5) The order or judgment of the Court may be enforced as necessary in a suit for contribution or payment.
§6-6-5. Effect of Election on Benefits by Will.
(1) An election by a surviving spouse does not affect the right of such spouse to participate in a family allowance but the value of any part of the estate passing to the surviving spouse by testate or intestate succession shall, unless renounced by the spouse in his petition, be counted against his elective share.
(2) When an election to take an elective share has been made and there is insufficient property in the estate which is not specifically disposed of to pay the elective share, liability for payment of the elective share shall be equitably apportioned among the other recipients of the estate in proportion to the value of their interests therein.
(3) Only original transferees from, or appointees of, the decedent and their donees, to the extent the donees have the property or its proceeds, are subject to the contribution to make up the elective share of the surviving spouse. A person liable to contribution may choose to give up the property transferred to him or to pay its value as of the time transferred.
§6-6-6. Omitted Spouse.
(1) Notwithstanding the provisions of §6-6-1 of this Code, if a testator fails to provide by will for his surviving spouse who married the testator after the execution of the will, the omitted spouse shall receive the same share of the estate he would have received if the decedent left no will unless it appears from the will that the omission was intentional or the testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
(2) In satisfying a share provided by this section, the devises made by the will abate as provided in the section of this Probate Code which concerns "abatement."
§6-6-7. Pretermitted Children.
(1) If a testator fails to provide in his will for any of his children living or born or adopted after the execution of his will, the omitted child receives a share in the estate equal in value to that which he would have received if the testator had died intestate unless:
(a) it appears from the will that the omission was intentional; or
(b) when the will was executed the testator had one or more children and devised substantially all his estate to the other parent of the omitted child; or
(c) the testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by statements of the testator or from the amount of the transfer or other evidence.
(2) If at the of execution of the will, the testator fails to provide in his will for a living child solely because he believes the child to be dead, the child receives a share in the estate equal in value to that which he would have received if the testator had died intestate.
(3) In satisfying a share provided by this section, the devises made by the will abate as provided in the section of the Probate Code which concerns "abatement."
§6-6-8. Homestead Allowance.
A surviving spouse of a decedent who was domiciled on the Reservation is entitled to a homestead allowance of $2,500.00. If there is no surviving spouse, each minor child and each dependant child of the decedent is entitled to a homestead allowance amounting to $2,500.00 divided by the number of minor and dependant children of the decedent. The homestead allowance is exempt from and has priority over all claims against the estate. Homestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent unless otherwise provided, by intestate succession or by way of elective share.
§6-6-9. Exempt Property.
In addition to the homestead allowance, the surviving spouse of a decedent who was domiciled on the Reservation is entitled from the estate to value not exceeding $2,500.00 in excess of any security interests therein in household furniture, automobiles, furnishings, appliances and personal effects. If there is no surviving spouse, children of the decedent are entitled jointly to the same value. If encumbered chattels are selected and if the value in excess of security interests, plus that of other exempt property, is less than $2,500.00, or if there is not $2,500.00 worth of exempt property in the estate, the spouse or children are entitled to other assets of the estate, if any, to the extent necessary to make up the $2,500.00 value. Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, except that the right to any assets to make up a deficiency of exempt property shall abate as necessary to permit prior payment of homestead allowance and family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided, by intestate succession, or by way of elective share.
§6-6-10. Family Allowance.
In addition to the right to homestead allowance and exempt property, if the decedent was domiciled on the Reservation, the surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by him are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than one year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump sum or in periodic installments. It is payable to the surviving spouse, if living, for the use of the surviving spouse and minor and dependent children; otherwise to the children, or persons having their care and custody; but in case any minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or his guardian or other person having his care and custody, and partially to the spouse, as their needs may appear. The family allowance is exempt from and has priority over all claims but not over the homestead allowance.
The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent unless otherwise provided by intestate succession, or by way of elective share. The death of any person entitled to family allowance terminates his right to allowances not yet paid.
§6-6-11. Source, Determination and Documentation.
If the estate is otherwise sufficient, property specifically devised is not used to satisfy rights to homestead and exempt property. Subject to this restriction, the surviving spouse, the guardians of the minor children, or children who are adults may select property of the estate as homestead allowance and exempt property. The personal representative may make these selections if the surviving spouse, the children or the guardians of the minor children are unable or fail to do so within a reasonable time or if there are no guardians of the minor children. The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as homestead allowance or exempt property. He may determine the family allowance in slump sum not exceeding $3,600.00 or periodic installments not exceeding $300.00 per month for one year, and may disburse funds of the estate in payment of the family allowance and any part of the homestead allowance payable in cash. The personal representative or any interested person aggrieved by any selection, determination, payment, proposed payment, or failure to act under this section may petition the Court for appropriate relief, which relief may provide a family allowance larger or smaller than that which the personal representative determined or could have determined.
TITLE VII - UTE INDIAN CODE OF CREDITORS' RIGHTS AND RESPONSIBILITIES
I. FORECLOSURE OF SECURED OBLIGATIONS
§7-1-1. Self Help Remedies Eliminated.
(1) All self help remedies for the recovery of real or personal property secured to insure payment of obligations are hereby declared unavailable except as otherwise specifically provided herein.
(2) This section shall not be construed to prevent the voluntary surrender of secured property to a creditor by a debtor, provided, however, that such voluntary surrender occurs at the time of such surrender. All contractual provisions for such executed in advance of the need therefore shall be of no effect.
§7-1-2. One Action to Foreclose Security Interest.
(1) There can be but one action in the Tribal Court to recover any debt or enforce or foreclose any right secured by a mortgage or other security interest on non-trust real or non-trust personal property situated or located on the Reservation, which action must be in accordance with the procedures outlined herein.
(2) Notwithstanding the provisions next above, if the debt for which the encumbrance is held is not all due, but is payable in installments, whether such debt is evidenced by one or more principal notes or otherwise, such encumbrance may be foreclosed, at the election of the holder thereof, for the installment or installments due or other charges which are to be paid by the mortgagor, and the Court may by its judgment, direct the sale of the encumbered property or of the equity of the defendants therein, or so much thereof as may be necessary to satisfy the amount due, and such encumbrance shall otherwise remain in full force and effect and the holder thereof shall have the right to foreclose on the balance or any part thereof.
§7-1-3. Action to Foreclose Interest in Personal Property.
(1) An action to foreclose a security interest in non-trust personal property shall be commenced by filing a complaint in the Tribal Court.
(2) The Tribal Court shall determine the issues presented and may, by its judgment, direct the sale of the encumbered property, or so much thereof as is necessary, and direct the of the proceeds of the sale to the payment of the costs of court, the expenses of such sale and to the amount due the plaintiff. If it appears from the police officer's return on the sale that the proceeds thereof are insufficient and that an amount still remains due, the Court can direct entry of a judgment for such balance against the defendant or defendants.
(3) If it is reasonably made to appear after the complaint is filed that the collateral is in imminent danger of being concealed, removed from the Reservation, or otherwise disposed of in a manner inconsistent with the security interest, the court may order the person having possession or control over such property to appear and show cause why such property should not be taken into the custody of the court or other security provided to prevent the improper disposal of the collateral.
(4) Sale of properly under the Courts judgment shall be conducted in the manner provided for execution sales under Rule 36 of the Ute Indian Rules of Civil Procedure.
§7-1-4. Action to Foreclose Mortgage.
(1) An action to foreclose a mortgage or other security interest in non-trust real property shall be commenced by filing a complaint in the Tribal Court.
(2) A complaint to foreclose a security interest in real property shall name as parties all persons who claim an interest in said property as a result of a proper recordation of such interest in either the Tribal or county records or both, as applicable. No interest of the Ute Indian Tribe, whether recorded or not, may be affected in any action in which the Tribe is not a party by its own affirmative action or consent. Interests in the secured property which are not recorded may be affected as if recorded and the owner thereof made a party.
(3) The Tribal Court shall determine the issues presented and may, by its judgment, direct the sale of the encumbered property or so much thereof as is necessary, and direct the application of the proceeds to the costs of court, the expenses of sale, and to the amount due the plaintiff. If it appears from the police officer's return on the sale that the proceeds thereof are insufficient and that an amount still remains due, the Court can direct the entry of a judgment for such balance against the defendant or defendants as provided below.
§7-1-5. Sale of Property - Notice.
(1) Before the sale of real property subject to a decree of foreclosure and order of sale, notice thereof must be given as follows: by posting written notice of the time and place of the sale giving a specific legal and general description of the property for 20 days in at least four public places of the Reservation, including one copy posted at the Tribal Headquarters, one Copy posted in the post office nearest the property to be sold, one copy posted on the property to be sold, and one copy posted at the Tribal Justice Building.
(2) If ever there is a sale of property conducted without at least good faith, substantial compliance with the notice requirements as set forth herein, said sale may be declared void and of no effect by the Tribal Court.
§7-1-6. Conduct of Sale.
(1) All sales of property under decrees of foreclosure and orders for sale must be made at auction, conducted at the Tribal Justice Building, to the highest bidder between the hours of 9:00 a.m. and 5:00 p.m. on any business day.
(2) Once sufficient property has been sold to satisfy the judgment plus the costs of court and of the sale, no more property shall be sold.
(3) The person conducting the sale may not be a purchaser or be interested in any purchase at such sale.
(4) If the property being sold consists of several known lots or parcels, they must be sold separately. The judgment debtor, if present at the sale, may direct the order in which the property shall be sold when such property consists of several known lots or parcels. If a third person claims an interest in part of the property to be sold, he may require that such part be sold separately.
(5)If a purchaser refuses to pay the amount bid by him for property sold to him at sale, the officer conducting the sale may again sell the property to the highest bidder and if any loss be occasioned thereby, the officer may recover the amount of such loss, plus costs, from the bidder so refusing, in the Tribal Court. When a purchaser refuses to pay, the officer may, in his discretion, thereafter reject any subsequent bid of such person.
§7-1-7. Return on Sale.
(1) The Tribal police officer conducting the sale shall make a return thereon to the Tribal Court reciting all of the details of the sale.
(2) A certified copy of such return together with a certified copy of the Court's order directing said sale shall be filed by the purchaser in the appropriate county recorder's office.
§7-1-8. Title to Real Property.
(1) On a sale of real property, the purchaser is substituted to, and acquires all of the right, title, interest and claim of the judgment debtors thereto.
(2) The property so acquired is subject to redemption as provided herein.
(3) At the time payment for the sale is made, the officer conducting such must give to the purchaser a Certificate of Sale containing: a) the name of the purchaser, b) the name of the judgment debtor, c) the particular legal description of property sold, d) the price bid for each particular lot or parcel (if applicable), e) the total price paid, and f) that the sale is subject to redemption.
(4) The officer conducting the sale shall provide the purchaser with sufficient certified copies of the Certificate of Sale that the purchaser may file one copy with the office of the Recorder in each county where the property is located. The purchaser shall be provided with one certified copy for his own records and one copy shall be filed with the officer's return on the sale in the Tribal Court.
(5) If the purchaser or real property sold pursuant to an order of sale, or his successor in interest, should be evicted therefrom in consequence of irregularities in the proceedings concerning the sale, or of the reversal or discharge of the judgment, he may recover the price paid plus interest at the rate of 8% per annum from the judgment creditor.
(6) If the purchaser of real property sold pursuant to an order of sale, or his successor in interest, fails to obtain possession of the property as a consequence of irregularity in the proceedings related to the sale, or because the property sold was not subject to execution and sale, the Court having jurisdiction thereof must, after notice and on motion of such party in interest, revive the original judgment in the name of the petitioner, for the amount paid by such purchaser, with interest thereon at the rate of 8 % per annum, and the judgment so revived has the same force and effect as would the original judgment as of the date of revival.
(1) All real property sold as provided herein is subject to redemption in the manner hereinafter provided by the judgment debtor or his successor in interest in the whole or any part of the property.
(2) The judgment debtor or redemptioner may redeem real property from the purchaser within six months after the sale by paying the purchaser for the amount of his purchase together with interest thereon at the rate of 8% per annum from the date of sale to the date of redemption, together with the amount of any assessments or additional costs which the purchaser may have paid thereon after the date of the purchase.
(3) Written notice of redemption must be given to the Tribal Police and a duplicate filed with the office of the County Recorder in each county in which the property is situated.
(4) If the debtor redeems, the effect of the sale is terminated and he is restored his estate.
(5) Upon redemption by the debtor, the person to whom the payment is made must execute and deliver to him sufficient copies of a Certificate of Redemption acknowledged and proved before an officer authorized to take acknowledgments of conveyances of real property. Copies of such certificates shall be filed at the appropriate county recorder's office.
(6) If no redemption is made within six months, the purchaser or his assignee is entitled to a conveyance by means of a Tribal Police Officer's Deed at the expiration of such time. Such Deeds shall be recorded at the appropriate county recorder's office.
(7) Redemption payment must be made in U.S. currency or by certified or Cashier's check and be made to the purchaser or for him to the officer who made the sale or his successor in office.
(8) A judgment debtor or successor in interest desiring to redeem property must present to the person from whom he seeks to redeem or the officer, a)a certified copy of the judgment and order of sale under which he claims a right to redeem, and b) his own affidavit that he is the person entitled to redeem and showing the amount due to effect the redemption.
(9) Until expiration of the time for the redemption, the Court may restrain the commission of waste or changing the character of the property, but it shall not be waste for the person entitled to possession of the property to continue to use it in the manner it had been previously used, or use it in the ordinary course of husbandry, or to make necessary repairs thereon, or to make a reasonable use of the wood and timber thereon for the benefit of the property or the possessor in his reasonable enjoyment of the property.
(10) The purchaser from the time of sale until redemption is entitled to receive from the tenants in possession, the rents of the property sold, or the value of the use and occupation thereof. However, when any rents or profits have been received by the purchaser, or his assigns from the property thus sold prior to redemption, the amount of such rents and profits shall be a credit on the redemption money to be paid. If the judgment debtor or person entitled to redeem, prior to the expiration of the time for redemption, demands of the purchaser or his assigns a written and verified statement of the amount of such rents and profits received, and/or assessments or costs paid by the purchaser, the period of redemption is extended until five days after such sworn statement is received by the redemptioner. If such purchaser or his assign fails or refuses for a period of one month to give such statement, the redemptioner may, within 60 days of such demand, bring an action in the Tribal Court to compel an accounting and disclosure of such rents and profits, and until fifteen days after the final determination of such action, the right of redemption is extended to such redemptioner.
§7-1-10. Surpluses and Deficiencies From Sales.
(1) If there remains surplus money remaining after the payment of the costs of court and of the sale and payment of the judgment creditor, such funds shall be distributed by the Court to the judgment debtor or other person entitled thereto.
(2) A deficiency judgment may be entered by the Court in a case involving the foreclosure and sale of real property whenever the amount due under the secured indebtedness plus costs of court and of the sale exceed the reasonable value of the property at the time of sale. The Court is not bound by the price for the property received at the sale but may take evidence to determine the actual reasonable value.
II. ACTIONS TO RECOVER POSSESSION OF REAL PROPERTY
§7-2-1. Self Help Remedies Forbidden.
Except in the case where a person in possession voluntarily surrenders such possession to another claiming a paramount right to such possession, all self help remedies to recover possession of real property are forbidden except as otherwise provided herein.
§7-2-2. "Forcible Entry" Defined.
A person commits a forcible entry whenever he either:
(1) Breaks open or by any other type of unauthorized opening of the doors, windows, or other parts of a house or other residential dwelling or by fraud, intimidation or stealth, or by any kind of violence or circumstances of terror, enters upon or into any real property; or
(2) After entering peaceably upon real property, turns out by force, threats, or menacing conduct the party in actual possession.
§7-2-3. "Forcible Detainer" Defined.
A person commits a forcible detainer whenever he:
(1) By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or
(2) In the nighttime or in the absence of the occupants of any real property, unlawfully enters thereon, and, after demand made for the surrender thereof, refuses for the period of three days to surrender the same to the former occupant. The occupant of real property within the meaning of this subsection is one who within five days preceding such unlawful entry was in the peaceable and undisturbed possession of such property.
§7-2-4. "Unlawful Detainer" Defined.
A person commits an unlawful detainer if, being a tenant of real property with a term of less than his life, he either:
(1) Continues in possession, in person or by subtenant, of the property or any part thereof; after the expiration of the term for which it is let to him. In all cases where real property is leased or rented for a specified .term or period, or by express or implied contact, whether written or parole, the tenancy shall be terminated without notice at the expiration of such specified term or period; or
(2) Having leased or rented property for an indefinite time with monthly or other periodic rent reserved, he continues in possession thereof in person or by subtenant after the end of such month or period after having been served with notice requiring him to quit the premises at the end of such month or period, such notice having been served upon him fifteen or more days prior to the end of such month or period, or in cases of tenancies at will, where he remains in possession of such premises after the expiration of a notice of not less than five days; or
(3) When he continues in possession, either in person or by subtenant, after default in the payment of any rent and after a notice in writing requiring in the alternative the payment of the rent or the surrender of the detained premises shall have remained uncomplied with for a period of three days; or
(4) When he assigns or sublets the leased or rented property contrary to the covenants in the lease or contract, or commits or permits waste thereon, or when he sets up or carries on thereon any unlawful business, or when he suffers, permits or maintains on or about said premises any nuisance, and remains in possession after service upon him of a notice to surrender the premises within three days; or
(5) Continues in possession in person or by subtenant, after a neglect or failure to perform any material condition or covenant of the lease or rental agreement under which the property is held, other than those herein before mentioned, and after notice in writing requiring in the alternative the performance of such conditions or covenants or the surrender of the property served upon him, and, if there is a subtenant in actual occupation of the premises, also upon such subtenant, shall remain uncomplied with for five days after service thereof. Within the five-day period, any subtenant, or mortgagee of the term, or other person interested in the continuance of the term may perform such condition or covenant and thereby save the lease or agreement from forfeiture, unless such condition or covenant cannot then be performed or cannot be performed by anyone except the original tenant. If the broken covenant or condition is not capable of remedial performance after its breach, the required notice need not list such performance as an alternative.
§7-2-5. Notices - How Served.
The notices required by the preceding section may be served either:
(1) By delivering a copy to the tenant personally; or
(2) If he is absent from his place of residence, or from his usual place of business, by leaving a copy with some person of suitable age and discretion at either place and sending a copy thereof through the mail addressed to the tenant at his place of residence or place of business; or
(3) If such place of residence or business cannot be ascertained or a person of suitable age or discretion cannot be found there, then by fixing a copy in a conspicuous place on the property and also delivering a copy to a person there residing, if such person can be found, and also sending a copy through the mail addressed to the tenant at the place where the leased property is situated.
(4) Service on a subtenant may be made in the same manner.
§7-2-6. Action to Regain Possession.
(1) The Tribal Court shall have jurisdiction to hear and decide actions to recover possession of both trust and non-trust property as a result of an alleged forcible entry, forcible detainer or unlawful detainer in an accelerated manner as provided herein. Any other action to regain possession of property may at the discretion of the judge, but need not, be handled in an accelerated manner as provided herein.
(2) In any accelerated proceeding allowed herein, the Court shall endorse on the summons the number of days within which the defendant has to answer, which shall not be less than three nor more than twenty days from the date of service. The time for reply to a counterclaim, if any, shall be deemed likewise shortened.
(3) At the close of the pleadings, the Court may advance hearing the matter on its trial calendar.
(4) The plaintiff's complaint, in addition to setting forth the facts and allegations on which he seeks to recover, may also set forth therein any circumstances of fraud, force or violence which may have accompanied the alleged forcible envy or forcible or unlawful detainer and claim damages therefor or compensation for the occupation of the premises, or both. When unlawful detainer is charged after default in the payment of rent, the complaint must state the amount of such rent.
(5) At the trial of any proceeding for forcible entry or forcible detainer the plaintiff shall only be required to show, in addition to the forcible entry or detainer complained of, that he was peaceably in the actual possession of the premises in question or was entitled to the possession the time of the forcible detainer.
(6) In cases of tenancy of agricultural land where the tenant has held over and retained possession for more than sixty days after the expiration of his term without any demand of possession or notice to quit by the landlord or his successor in estate, the tenant shall be deemed to have the permission of the landlord or his successor in estate to hold over for a full year under the same terms and conditions as the original tenancy, and such tenant shall not be guilty of an unlawful detainer for such period by reason of his holding over.
(7) The remedies available herein shall be available to a tenant to regain possession from a subtenant in appropriate cases.
(8) No person other than the tenant of the premises and subtenant if there is one in actual occupation of the premises at me time the action is commenced need be made a party defendant. Any person entering into possession with the consent of the tenant after an action is commenced for forcible entry or forcible or unlawful detainer shall be bound by such action, whether made a party or not.
(1) If at trial, whether with or without a jury, the finding is in favor of the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises to the plaintiff.
(2) In a proceeding for unlawful detainer for neglect or failure to perform any condition or covenant under a lease or agreement under which property is held, or after default the payment of rent, the judgment shall declare the forfeiture of such lease or agreement.
(3) At dial, the finder of fact, whether the jury or the judge without a jury, shall also assess damages caused to the plaintiff by the forcible entry or forcible or unlawful detainer, including damage for waste by the defendant during the tenancy, if proved, and shall also find the amount of rent due if such is in issue.
(4) When the action is for unlawful detainer after defaulting in the payment of rent and the lease or agreement under which the rent is payable has not by its terms expired, execution upon the judgment shall not issue until five days after the envy of the judgment, within which time the tenant or any subtenant, or other party interested in the continuance of the term may pay into the court for the landlord the amount of the judgment and costs and thereupon that portion of the judgment shall be satisfied and the tenant's estate shall be restored. However, if such payment is not made within five days, the judgment may be enforced in its full amount and for the possession of the premises. In all other cases, the judgment may be enforced immediately.
§7-2-8. Time for Appeal.
(1) The time in which an appeal, if any, shall be taken from an action for forcible entry or forcible or unlawful detainer shall be ten days and the appellate court may, but need not, allow expedited handling of such appeal.
(2) Appeals in other actions to recover possession of real property shall be handled in the usual manner.
III. CANCELLATION OF ASSIGNMENTS OR OTHER PRIVILEGES GRANTED BY THE TRIBE.
§7-3-1. Procedure for Cancellation of Assignments or Other Privileges Granted by the Tribe.
(1) The Tribal Court shall have jurisdiction over actions to cancel, suspend, or modify any assignment of land or any other privilege granted or administered by the Tribe to any person.
(2) Such actions shall be commenced by the filing of a complaint or petition on behalf of the Tribe by an officer, agent, or attorney for the Tribe. A copy of such petition shall be served upon the person or persons whose assignment or other right will be affected thereby.
(3) The person or persons whose assignment or other privilege be affected by the action proposed in the complaint or petition shall have ten (10) days from the date of such service to file an answer or otherwise respond with the Court. No further pleadings nor any discovery shall thereafter be allowed unless the Court shall otherwise order in the interests of preventing serious injustice. No default shall be entered for failure to answer or respond.
(4) Following the receipt of the answer or other response, or at the end of the ten day period, if no such response is filed, the Clerk shall schedule a hearing before a judge of the Tribal Court and cause notice thereof to be served upon the Tribe and the other parties. The scheduling of such hearings shall be given priority on the Court calendar over all matters for which no priority in scheduling is established in this Law and Order Code. The Clerk shall cause notice of the date, time and place of the hearing to be served upon the affected party or parties not less than 48 hours prior to the time set for the hearing. If personal service is not reasonably possible, such notice may be served by mailing a copy of the notice to the person or persons involved at their last known address and by posting a copy of said notice on the property to be affected, if any.
§7-3-2. Hearings on Cancellation of Tribal Assignments or Other Privileges Granted by the Tube.
(1) The Tribal Court may, by rule, establish procedures for hearings as provided herein.
(2) At the time set for the hearing, the Judge shall examine the complaint or petition and any response thereto and shall determine whether proper notice to all parties has been provided.
(3) The Court sitting without a jury shall then hear such evidence as the parties wish to present and render its decision thereon.
(4) The person or persons whose assignment or other privilege may be affected shall pave the following rights:
(a) To be represented by a professional attorney admitted to practice before the Courts of the Ute Indian Tribe or by a lay counselor, provided, however, that such attorney or counselor is hired by the person or persons affected at their own expense;
(b) To confront, examine and cross-examine all evidence presented against him;
(c) To present evidence in his own behalf;
(d) To receive written notice of any decision of the Tribal Court affecting any assignment or other privilege granted by the Tribe. Such notice may be personally served or may be mailed to such person at his last known address and a copy thereof posted in a conspicuous place on the property affected, if an interest in the use of real property is involved.
§7-3-3. Grounds for Canceling, Suspending, or Modifying Any Assignment or Other Privilege Granted By the Tribe.
(1) The Tribal Court shall cancel any assignment or other privilege granted by the Tribe if, after receiving a petition or complaint from the Tribe and conducting a hearing thereon, it reasonably appears that the person or persons to whom the assignment or privilege has been granted has sold, leased, assigned or otherwise transferred the assignment or privilege or the right to use or take advantage of the assignment or privilege to any other person or persons or entity contrary to the terms, conditions, or covenants contained in the grant of the assignment or privilege and that by so doing they have derived a pecuniary or other benefit therefrom.
(2) The Tribal Court may cancel, suspend or modify any assignment or other privilege granted by the Tribe, if, after receiving a petition or complaint and conducting a hearing thereon, it reasonably appears that the person or persons to whom the assignment or privilege has been granted has done any act contrary to the terms, conditions or covenants contained in the grant of the assignment or privilege.
(3) The Tribal Court may cancel, suspend, or modify any assignment or other privilege granted by the Tribe if, after receiving a petition or complaint and conducting a hearing thereon, it reasonably appears that such cancellation, suspension or modification is reasonably necessary to promote, implement, or preserve some governmental or proprietary interest of the Tribe. When ordering the cancellation, suspension or modification of an assignment or other privilege by the Tribe for the reasons set forth in this subsection, the Court shall condition its order upon such terms for the harvesting of crops, removal of livestock, relocation of persons or things, or winding up of business as appears just under the circumstances.
§7-3-4. Imposition of Penalties or Damages.
Whenever the Tribal Court finds grounds for the cancellation, suspension or modification of an assignment or other privilege granted by the Tribe, it may order the party or parties affected thereby to pay or repay to the Tribe any fees or charges past due, any money or the value of any benefits received by such party as a result of his violating any of the terms, conditions, or covenants contained in the grant of the assignment or privilege, and may assess damages for damage done to any Tribal property or interest as a result of the wrongful or improper acts of the party involved. Said charges may be enforced as civil judgments.
§7-3-5. Privilege Defined.
As used herein, the term "privilege" shall include all business licenses, and any benefit, right or advantage granted to or enjoyed by a particular entity, person or group of persons by reason of any official action of the Ute Indian Tribe.
§7-3-6. Exceptions to Procedures.
The procedures contained herein shall not apply to the cancellation of fishing, hunting, or driver's licenses or in any other case where some other procedure is set forth in this Law and Order Code or other Tribal Ordinance.
TITLE XII - UTE INDIAN RULES OF CRIMINAL PROCEDURE
I. SCOPE, PURPOSE AND CONSTRUCTION
Rule 1. Scope, Purpose and Construction.
(1) These rules govern the procedure in all criminal proceedings in the Ute Indian Tribal Court and all preliminary or supplementary procedures as specified herein.
(2) Every proceeding in which a person is charged with an offense of any degree and brought to trial and punished is a criminal proceeding.
(3) These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.
II. PRELIMINARY PROVISIONS
Rule 2. Prosecution of Offenses.
(1) No person shall be punished for an offense except upon a legal conviction, including a plea or admission of guilt in open court, by a court of competent jurisdiction, provided, however, that no incarceration or other disposition of one accused of an offense prior to trial in accordance with these rules shall be deemed a punishment.
(2) All criminal proceedings shall be prosecuted in the name of the Ute Indian Tribe, Plaintiff, against the person charged with an offense, referred to as the Defendant.
Rule 3. Rights of Defendant.
In all criminal proceedings, the Defendant shall have the following rights:
(1) To appear and defend in person or by counsel, except:
(a) Trial of Class B and C offenses may be prosecuted without the presence of the Defendant upon a showing that the Defendant has received actual notice five (5) days prior to the proceeding;
(b) The Defendant may represent himself or be represented by an adult enrolled Tribal member, or by any attorney admitted to practice before the Ute Tribal Court, but no Defendant shall have the right to have appointed professional counsel provided at the Tribe's expense.
(2) To be informed of the nature of the charges against him and to have a copy thereof;
(3) To testify in his own behalf, or to refuse to testify regarding the charge against him, provided, however, that once a defendant takes the stand to testify on any matter relevant to the immediate proceeding against him, he shall be deemed to have waived all right to refuse to testify in that criminal proceeding;
(4) To confront and cross examine all witnesses against him, subject to the Rules of Evidence;
(5) To compel by subpoena the attendance of witnesses in his own behalf;
(6) To have a speedy public trial by an impartial judge or jury as provided in these rules;
(7) To appeal in all cases;
(8) To prevent his present spouse from testifying against him, except:
(a) in any casein which the offense charged is alleged to have been committed against the spouse, or the children of either the spouse or the defendant, or against the marital relationship;
(b) Any testimony by the spouse in the defendant's behalf will be deemed a waiver of this privilege.
(9) Not to be twice put in jeopardy by the Ute Tribal Court for the same offense.
Rule 4. Limitations.
(1) Except as provided in (2), a complaint shall be filed following the commission of an offense within the period specified:
(a) Class A offenses - 5 years;
(b) Class B offenses - 2 years;
(c) Class C offenses - 1 year.
(2) The period of limitations shall commence upon the commission of the offense and shall not run during any period in which the defendant is not physically located on the Reservation.
III. PRELIMINARY PROCEEDINGS
Rule 5. The Complaint
(1) The complaint is a written statement of the essential facts constituting the offense charged.
(2) All complaints shall be made upon oath before a judge of the Ute Tribal Court.
(3) The complaint must state:
(a) The name of the person accused, if known, or some other name if not known plus whatever description of the person accused is known;
(b) The general location where the offense was committed;
(c) The general name and code designation of the offense;
(d) A short, concise statement of the specific acts or omissions to act complained of;
(e) The person against whom or against whose property the offense was committed, if known, otherwise no statement need be made;
(f) The date and approximate time of the commission of the offense, if known;
(g) The name of the person filing the complaint.
No minor omission from or error in the form of the complaint shall be grounds for dismissal of the case unless some significant prejudice against the defendant can be shown to result therefrom.
(4) It shall not be necessary to charge a specific class (Class A, B, or C) of an offense which depends for the degree of punishment upon some factual finding (e.g., the value of the property taken in a theft offense). If a factual allegation is made which will supply the information needed to determine the degree of the offense, such allegation shall be considered as true for all preliminary matters (e.g., setting bail). If no such factual allegation is made, the offense shall be considered, for all preliminary matters, to be of the least degree possible under the facts alleged.
(5) The judge issuing the complaint shall examine such complainant under oath to ascertain his knowledge as to the facts alleged in the complaint and determine if probable cause exists to issue such complaint.
(6) If it appears from the complaint and the examination of the complainant that probable cause exists to believe that an offense has been committed, the judge will issue the complaint by affixing his signature thereto.
Rule 6. Arrest - Warrant or Summons.
(1) Upon the issuance of the complaint, a warrant of arrest or a summons shall issue to bring the defendant named in the complaint before a judge of the Ute Tribal Court.
(2) Whenever it is provided that a warrant may issue for the arrest of a person charged with a commission of a Class B or C offense, the judge shall issue, or cause to be issued, a summons instead of a warrant, unless he has reasonable ground to believe that the person will not appear upon a summons, in which case he shall issue a warrant of arrest. A warrant of arrest shall issue in all cases in which a Class A offense is charged.
(3) The warrant of arrest shall be signed by the judge issuing such and shall contain the name of the defendant, or, if such is not known, some other name plus a reasonable description of the defendant, if known. It shall describe the offense charged and it shall command that the defendant be arrested and brought before the judge to enter a plea.
(4) When a summons shall issue, it shall name the defendant, the offense charged, and order the defendant to appear before a Tribal judge within five (5) days from time of service to enter a plea to the charge. If a Defendant fails to appear in response to the summons, a warrant of arrest shall issue.
(5) Warrants and summonses shall be served by any Tribal police officer or any other adult person designated to perform such function by a judge of the Court or the Chief of Police.
(a) Such service may be accomplished any place within the exterior boundaries of the Uintah and Ouray Indian Reservation as defined in Article I of the Constitution of the Ute Indian Tribe of the Uintah and Ouray Reservation.
(b) The date, time, and place of service or arrest shall be endorsed on the warrant or summons along with the name of the person serving such which shall be returned to the Court, and a copy of which, so endorsed, shall be left with the person served.
(c) An officer need not have the warrant in his possession at the time of arrest; but, if he does not, he shall inform the defendant that a warrant has been issued, the nature of the charge, and shall provide the defendant with a copy of the arrest warrant and complaint not later than at the time of entering a plea by the defendant.
(d) If reasonably possible, a properly endorsed copy of the summons or warrant plus a copy of the complaint shall be given to the defendant at the time of service or arrest.
(6) Should a defendant refuse service of a summons or should a defendant's whereabouts be unknown after a reasonable search, an arrest warrant shall issue.
Rule 7. Arraignment.
(1) As soon as reasonably possible after arrest but not more than 24 hours thereafter, or within the period designated on the summons, the defendant shall appear or be brought before a Tribal judge, and the defendant shall be informed of his right to counsel If the defendant desires but does not presently have counsel, he will be given a reasonable time to secure such before entering his plea.
(2) At such time, the complaint will be read to the defendant, and the defendant will be asked to enter a plea.
(3) The defendant will enter his plea or the Court will enter one for him, and he will then be advised regarding sentencing or bail as is appropriate.
(4) The defendant shall be provided with a copy of the complaint if he has not before received one.
Rule 8. Commitments.
(1) No person shall be detained or jailed under this Law and Order Code for a longer period than 36 hours unless there has been issued a commitment bearing the signature of a judge of the Ute Indian Tribal Court.
(2) Pending investigation of charges or pending dial, a temporary commitment shall be issued.
(3) A final commitment shall be issued for persons jailed as a result of a sentence of the Ute Indian Tribal Court.
Rule 9. Joinder of Offenses and of Defendants.
(1) Two or more offenses may be charged in the same complaint in a separate count for each offense if such offenses are of the same character or are based on the same act or transaction or constitute parts of a common scheme or plan.
(2) Two or more defendants may be charged in the same complaint if they are alleged to have participated in the same actor transaction constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of such defendants need not be charged on each count.
Rule 10. Pleas.
(1) A defendant may plead guilty or not guilty. The Court shall not accept a plea of guilty without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If the defendant refuses to plead or if the Court refuses to accept a plea of guilty, the Court shall enter a plea of not guilty. The Court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
(2)The defendant, with the consent of the Court and of the prosecuting attorney, may plead guilty to any lesser offense than that charged which is included in the offenses charged in the complaint or to any lesser degree of the offense charged.
Rule 11. Pleadings and Motions Before Trial; Defenses and Objections.
(1) Pleadings in criminal proceedings shall consist of the complaint and the plea of either guilty or not guilty. All other pleas and motions shall be made in accordance with these rules.
(2) Motions raising defenses and objections may be made as follows:
(a) Any defenses or objections which are capable of determination other than at trial may be raised before dial by motion.
(b) Defenses and objections based on defects in the institution of the prosecution of the complaint other than that it fails to show jurisdiction in the Court or fails to charge an offense may be raised on motion only before trial or such shall be deemed waived, unless the Court for good cause shown grants relief from such waiver. Lack of jurisdiction or failure to charge an offense may be raised as defenses or noticed by the Court on its own motion at any stage of the proceeding.
(c) Such motions shall be made in writing and filed with the Court at least five (5) business days before the day set for trial. Such motions will be argued before trial on the date of trial unless the Court directs otherwise. Decision on such motions shall be made by the judge and not by the jury.
(d) If a motion is decided against a defendant, the trial shall proceed as if no motion were made. If a motion is decided in favor of a defendant, the judge shall alter the proceedings or enter judgment as is appropriate in light of the decision.
Rule 12. Trial Together of Charges.
(1) The Court may order two or more defendants tried together if they could have been joined in a single complaint or may order a single defendant cried on more than one complaint at a single trial.
(2)If it appears that a defendant or the Ute Indian Tribe is prejudiced by a joinder of offenses or other defendants for trial together, the Court may order separate complaints and may order separate trials or provide such other relief as justice requires. In ruling on a motion for severance, the Court may order the Tribe to deliver to the Court for inspection in chambers, any statements made by a defendant which the Tribe intends to introduce in evidence at the trial.
Rule 13. Discovery and Inspection.
(1) The police, or prosecutor, shall, upon request, permit the defendant or his attorney to inspect and copy any statements or confessions, or copies thereof, made by the defendant if such are within the possession or control of reasonably obtainable by the police or prosecution. The police and prosecution shall make similarly available copies of reports of physical, mental or scientific tests or examinations relating to or done on the defendant
(2)The defendant or his attorney shall reveal by written notice to the Court at least five (5) working days before trial the names of any witnesses upon whom the defense intends to rely to provide an alibi defense for the defendant. Failure to provide such notice will prevent the use of such witnesses by the defense unless it can be shown by the defense that prior notice was impossible or that no prejudice to the prosecution has resulted, in which case the judge may order the trial delayed or make such other orders as tend to assure a just determination of the case.
Rule 14. Subpoena.
(1) A subpoena is an order of court issued by a judge or the clerk of the Court. It shall contain the name of the Court, the title of the case, and shall command each person to whom it is directed to attend and give testimony or produce for use at vial objects names, at the time and place specified therein. The clerk may issue subpoenas, signed and otherwise complete except for the name of the person or thing subpoenaed, to a defendant upon request.
(2) A subpoena may be served by any police officer or court employee or any person over the age of 18 years who is not a party. Service shall be accomplished by handing a copy of the subpoena to the person named therein. No fees or mileage allowance need be tendered with service.
(3) A subpoena may be served any place within the territorial jurisdiction of the Ute Tribal Court.
(4) Failure, without adequate excuse, to obey a properly served subpoena may be deemed a contempt of court and prosecution thereof may proceed upon the order of the Court. No contempt shall be prosecuted unless a return of service of the subpoena has been made on which is endorsed the date, time and place of service and the person performing such service.
Rule 15. Trial by Jury or By the Court.
(1) All trials of offense shall be by the Court without a jury unless the defendant files a request for a jury trial and ten dollars ($10.00) jury fee not less than two weeks prior to the date set for trial. A judge may in his discretion waive the ten dollar ($10.00)jury fee.
(2)Juries shall be composed of six (6) members with one alternate if such is deemed advisable by the Court.
(3)In a case tried without a jury, the judge shall make a general finding of guilt or innocence and shall, upon request of any party, make specific findings which may be embodied in a written decision.
Rule 16. Trial Jurors.
(1) Jurors shall be drawn from the list of eligible jurors, prepared as provided elsewhere in this Law and Order Code, by the clerk in advance of trial. Jurors to sit at trial shall be drawn by lot from the group of potential jurors by the judge or clerk at trial.
(2) The Court shall permit the defendant or his counsel and the prosecutor to examine the jurors and the Court itself may make such an examination.
(3) Challenges regarding jury members may be taken as follows: (a) Each side shall be entitled to three (3) peremptory challenges; (b) Either side may challenge any juror for cause; (c) An alternate juror shall be treated as a regular juror for purpose of challenges.
(4) The alternate juror shall be dismissed prior to the jury's retiring to deliberate if he has not first been called to replace an original juror who has become for any reason unable or disqualified to serve.
Rule 17. Judge Disability.
(1) If by reason of death, sickness or other disability, the judge before whom a jury trail has commenced is unable to proceed with the trail, any other Tribal judge may, upon certifying that he has familiarized himself with the record of the trial, proceed with the trail.
(2) If by reason of death, sickness or other disability, the judge before whom the defendant has been tried is unable to perform the required duties of a judge after the verdict or finding of guilt, any other Tribal judge may perform those duties unless such judge feels he cannot fairly perform those duties in which case a new trial may be granted. A new trial shall not be granted if all that remains to be done is the sentencing of a defendant.
Rule 18. Evidence.
The admissibility of evidence and the competence and privileges of witnesses shall be governed by the Utah Rules of Evidence until such time as the Federal Rules of Evidence are adopted at which time they shall apply, except as herein otherwise provided.
Rule 19. Expert Witnesses and Interpreters.
(1) Either party may call expert witnesses of their own selection and each bear the cost of such.
(2) The Court may appoint an interpreter of its own selection and each party may provide their own interpreters. An interpreter through whom testimony is received from a defendant or witness or communicated to a defendant or other witness shall be put under oath to faithfully and accurately translate and communicate as required by the Court.
(3) The trial judge or clerk may act as interpreter with the consent of all parties.
Rule 20. Motion for Judgment of Acquittal.
(1)The Court on motion from defendant or on its own motion, shall order the entry of a judgment of acquittal of one or more offenses charged in the complaint after the evidence of either side is closed if the evidence is insufficient as a matter of law to sustain a conviction of such offenses. A motion for acquittal by the defendant does not affect his right to present evidence.
(2) If a motion for judgment of acquittal is made at the close of all evidence, the Court may reserve decision on the motion, submit the case to the jury and decide the motion anytime either before or after the jury returns its verdict or is discharged.
Rule 21. Instructions.
At the close of the evidence or at such earlier time during the trial as the Court reasonably direct, any party may file written requests that the Court instruct the jury on the law as set forth in the request. At the same time, copies of such requests shall be furnished to adverse parties. The Court shall inform counsel of its proposed action upon the requests prior to the arguments of counsel to the jury, but the Court shall instruct the jury after the arguments are completed. No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing or if necessary out of the presence of the jury.
Rule 22. Verdict.
(1) The verdict of the jury shall be unanimous. It shall be returned by the jury to the judge in open court.
(2)If there are two or more defendants, the jury may at any time during its deliberations return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed; it the jury cannot agree as to all, the defendant or defendants as to whom it does not agree may be tried again.
(3) The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if such an attempt is an offense, without the necessity of the defendant having been formally charged with such lesser offenses or with attempt.
(4) When a verdict is returned and before it is recorded, the jury shall be polled at the request of any party or upon the Court's own motion. If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.
Rule 23. Sentence and Judgment.
(1) A judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence when imposed. If the Defendant is found not guilty or for any other reason entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the Clerk.
(2) Sentence shall be set forth as follows:
(a) Sentence shall be imposed without unreasonable delay as provided in this Code. Pending sentence the Court may commit the defendant to jail or continue or alter the bail. Before imposing sentence, the Court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.
(b) After imposing sentence in a case which has gone to trial on a plea of not guilty, the Court shall advise the Defendant of his right to appeal.
(3) The determination and imposition of sentence shall be in accordance with the provisions on sentencing set forth in the Ute Indian Criminal Code.
(4) A motion to withdraw a plea of guilty may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the Court after sentence may set aside the judgment of conviction and permit the Defendant to withdraw his plea.
Rule 24. New Trial.
The Court, on motion of a defendant, may grant a new trial to him if required in the interest of justice. If trial was by the Court without a jury, the Court, on motion of a defendant for a new trial, may vacate the judgment, if entered, take additional testimony, and direct the entry of a new judgment. A motion for a new trial based on the ground of newly discovered evidence may be made only within one month after final judgment, but if an appeal is pending the Court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within seven (7) days after verdict or finding of guilty or within such further time as the Court may fix during the seven-day period.
Rule 25. Arrest of Judgment.
The Court, on motion of a Defendant, shall dismiss the action if the complaint does not charge an offense of if the Court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within seven (7) days after verdict or finding of guilty or plea of guilty, or within such further time as the Court may fix during the seven-day period.
Rule 26. Correction or Reduction of Sentence.
The Court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within thirty days after the sentence is imposed, or within thirty days after receipt by the Court of a mandate issued upon affirmance of the judgment or dismissal of the appeal. The Court may also reduce a sentence upon revocation of probation as provided in this Code.
Rule 27. Clerical Mistakes.
Clerical mistakes in judgments, orders, or other parts of the record and errors in the record arising from oversight or omission may be corrected by the Court at any time and after such notice, if any, as the Court orders.
Rule 28. Right of Appeal; How Taken.
(1) The defendant has the right to appeal from the following:
(a) A final judgment of conviction;
(b) From an order made, after judgment, affecting his substantial rights.
(2) The Tribe has the right to appeal from the following:
(a) A judgment of dismissal in favor of the Defendant upon a motion to dismiss based on any procedural irregularity occurring before trial;
(b) An order arresting judgment or acquitting the defendant contrary to the verdict of the jury or before such verdict can be rendered;
(c) An order of the Court directing the jury to find for the Defendant;
(d) An order made after judgment affecting the substantial rights of the Tribe.
(3) A notice of appeal must be filed within 10 days of the entry of the final judgment or other appealable order and such must be served on all parties except the party filing the appeal.
(4) The Clerk of the trial court will prepare and transmit to the appellate court the record of the case appealed including a transcript or copy of the minutes taken in alt proceedings relevant thereto.
(5) The party taking the appeal shall be referred to as the appellant and the other party as the respondent. The name of the case will be the same as the name used at trial except the names of parties not involved in the appeal may be omitted.
(6) Within ten (10) days after the receipt by the appellate court of the trial court record, the appellant shall file a brief supporting his position on appeal. Within twenty (20) days after receipt of a copy of appellant's brief, the respondent shall file its brief. As soon thereafter as possible, the appellate court shall decide the case and may schedule and hold a hearing on the appeal. Each party shall file four copies of its brief with the Court.
Rule 29. Stay of Judgment and Relief Pending Review.
(1) A sentence of imprisonment may be stayed if an appeal is taken and the defendant may be given the opportunity to make bail. Any defendant not making bail or otherwise obtaining release pending appeal shall have all time spent in incarceration counted towards his sentence in the matter under appeal.
(2) A sentence to pay a fine or a fine and costs, may be stayed pending appeal upon motion of the defendant but the Court may require the Defendant to pay such money subject to return if the appeal should favor the defendant and negative the requirement for paying such.
(3) An order placing the defendant on probation may be stayed on motion of the defendant if an appeal is taken.
Rule 30. Appellate Court Review of Appeal.
(1) If the appeal is irregular in any substantial particular, the appellate court may order, upon motion of the respondent, either the correction of the defects or the dismissal of the appeal.
(2) The appellate court will decide the appeal on the basis of the briefs submitted without oral argument unless oral argument is requested by any party to the appeal or by the Court on its own motion.
(3) The appellate court will issue a written opinion or such separate opinions as required to fully explain the court's disposition of the case. No order or disposition of an appeal shall be effective unless concurred in by at least two (2) judges though their reasoning for such disposition need not concur.
(4) The appellate court shall make one of the following determinations of the appeal:
(a) Affirm the trial court result;
(b) Reverse or vacate the trial court judgment and remand for disposition in accordance with the order of the appellate court;
(c) The judgment of the trial court will be deemed affirmed if no majority disposition can be reached by the appellate court.
VII. GENERAL PROVISIONS
Rule 31. Search and Seizure
(1) A search warrant authorized under this rule may be issued by a Tribal judge on request of a Tribal police officer, or any police officer or law enforcement officer of the federal, state or municipal government.
(2) A warrant may be issued under this rule to search for and seize any
(a) Property that constitutes evidence of the commission of a crime;
(b) Contraband, the fruits of crime, or things otherwise criminally possessed;
(c) Property designed or intended for use or which is or has been used, as the means of committing a criminal offense.
(3) A warrant shall issue only on an affidavit or affidavits sworn to before a Tribal judge and establishing grounds for issuing the warrant. If the judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based on hearsay evidence either in whole or in part. Before ruling on a request for a warrant, the judge may require the affiant to appear personally and be examined under oath. The warrant shall be directed to any police or law enforcement officer or official and shall command such person or persons to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified. The warrant shall be served in the daytime unless the issuing judge otherwise authorizes on the warrant. The warrant shall be returned to the judge after service or at the end of the 10-day period.
(4) The officer taking property under a warrant shall give the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return to the issuing judge shall be made promptly and shall be accompanied by an inventory of the property taken.
(5) A person aggrieved by an unlawful search and seizure may move the Tribal court for the return of the property on the ground that he is entitled to lawful possession of the property illegally seized. The judge may receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned and shall not be admissible at any hearing or trial.
(6) No law enforcement officer shall search or seize any premises, property or person without a search warrant unless he knows or has reasonable cause to believe that the person in possession of such property is engaged in the commission of an offense or such is done incident to a lawful arrest or under such other circumstances in which it would not be reasonable to require the obtaining of a warrant prior to the search.
(7) A law enforcement officer may stop any person in a public place whom he has probable cause to believe is in the act of committing an offense, or has committed an offense, or is attempting to commit an offense and demand of him his name, address, an explanation of his actions and may, if he has reasonable grounds to believe his own safety or the safety of others nearby is endangered, conduct a frisk type search for weapons of such person.
(8) The term "property" is used in this rule to include documents, books. papers, and any other tangible object. The term "daytime" as used in this rule shall mean the hours from 6:00 o'clock a. m. to 10:00 o'clock p. m., according to local time.
Rule 32. Arrest.
(1) An arrest is the taking of a person into custody in the manner authorized bylaw. An arrest may be made by either a police or law enforcement officer or by a private person.
(2) A police or law enforcement officer may make an arrest in obedience to an arrest warrant, or he may, without a warrant, arrest a person:
(a) For an offense committed in his presence;
(b) When he has reasonable cause for believing the person to have committed an offense, although noon his presence, and there is reasonable cause for believing that such person before a warrant can be obtained may
(i) flee the jurisdiction or conceal himself to avoid arrest, or
(ii) destroy or conceal evidence of the commission of an offense, or
(iii) injure or annoy another person or damage property belonging to another person.
(c) When the person arrested has committed a Class A or B offense although noon his presence;
(d) When a Class A or B offense has, in fact, been committed and he has reasonable cause to believe the person arrested committed such offense;
(e) Upon the verbal complaint of another that an offense has been committed and that the person arrested has committed it;
At night, when there is reasonable cause to believe that he has committed an offense.
(3) A private person may arrest another
(a) For an offense committed or attempted in his presence;
(b) When the person arrested has committed a Class A offense although not in his presence;
(c) When a Class A offense has been committed and he has reasonable cause for believing the person arrested to have committed it.
(4) Any person making an arrest may orally summon as many persons as he deems necessary to help him.
(5) If the offense charged is a Class A or B offense, the arrest may be made at any time of the day or night. If it is a Class C offense, the arrest pursuant to a warrant cannot be made at night unless such is specifically authorized by the issuing judge.
(a) Must inform the person to be arrested of his intention to arrest him, of the cause or reason for the arrest, and his authority to make it, except when the person to be arrested is actually engaged in the commission of, or an attempt to commit an offense, or is pursued immediately after its commission or an escape or if such is not reasonably possible under the circumstances;
(b) Must show the warrant of arrest if such exists and is demanded as soon as is practicable;
(c) If a law enforcement officer, may use reasonable force and use all necessary means to effect the arrest if the person to be arrested either flees or forcibly resists after receiving information of the officer's intent to arrest;
(d) If a law enforcement officer, may break open a door or window of a building in which the person to be arrested is, or is reasonably believed to be, after demanding admittance and explaining the purpose for which admittance is desired;
(e) May search the person arrested and take from him and put into evidence all weapons he may have about his person;
(f) Shall, as soon as is reasonably possible, deliver the person arrested to a police officer, or do as commanded by the arrest warrant or deliver the person arrested to the jail and obtain a complaint and arrest warrant;
(g) May, if a law enforcement officer, and in fresh pursuit, continue in such fresh pursuit and arrest upon capture the person pursued even if such occurs outside the territorial boundaries of the Uintah and Ouray Indian Reservation. All persons so arrested may be returned to the Reservation by the arresting officer if the arrest occurs in the State of Utah. Otherwise, the arrested person will be turned over to local police officials pending extradition proceedings.
Rule 33. Extradition.
(1) The Chief Judge, with the consent of the Tribal Business Committee, may, upon receipt of certified copies of a complaint, information or indictment, and arrest warrant plus a request to extradite from the executive authority of any Tribal, state or the federal government, cause to be arrested and delivered to such executive authority, any person subject to the jurisdiction of the Ute Tribal Court who is charged with a felony and who has fled from justice and is seeking to use the Reservation as a refuge.
(2) The Tribal Business Committee shall be the only entity which may request the extradition to the Reservation of any person otherwise subject to the jurisdiction of the Ute Tribal Court who has committed a Class A or a Class B offense on the Reservation and thereafter fled from the Reservation to avoid prosecution.
Rule 34. Bail; Release From Custody.
(1) Except as herein provided, all persons arrested for offenses under this Law and Order Code and incarcerated shall be given the opportunity to make bail and be released pending their trial or appeal.
(2) A bail schedule for Class B and C offenses shall be adopted by the Court and a defendant may obtain release from jail at any time prior to arraignment by posting the amount or amounts of bail specified in the bail schedule for the offense or offenses charged; provided, however, that if the arresting officer or complaining witness shall certify to the jailer, or if the jailer shall certify based on his own observation, that the defendant is at the time he is brought to the jail unconscious or in an intoxicated or apparently intoxicated condition, or for any reason does not appear to be in a conscious and sober condition, such defendant shall not be allowed to post bail according to the bail schedule for 8 hours. The defendant shall be informed by the jailer of his right to make bail at the appropriate time such is available. Bail for Class A offenses may be set only by a judge upon consideration of the relevant factors and must be set or denied within 24 hours following arrest.
(3) At the arraignment or other appropriate time, the judge shall set bail at an amount, not to exceed twice the maximum fine payable for the offense charged, which will tend to assure the appearance of the defendant at trial or at such time as his appearance is necessary. A defendant may at arraignment request that any bail posted under the bail schedule be reduced or that he be released as under (4) below.
(4) The judge may at his discretion release the defendant on his own recognizance, if it appears substantially certain, considering all relevant factors, that the defendant will appear at the appointed time.
(5) The required bail may be tendered in the form of cash, or a bail bond executed by two or more reliable persons as sureties subject to the jurisdiction of the Court in the form which the Court shall by rule direct.
(6)In the event the defendant fails to appear as required, the Court will forfeit any cash deposited or order the sureties of the bail bond to pay the designated amount to the Court. The liability of the sureties may be enforced by order of the Court without the necessity of an independent action or judgment.
(7) The Court may order the forfeiture of bail for non-appearance set aside if it appears that justice does not require the enforcement of the forfeiture.
(8)The Court may deny release on bail pending trial or appeal when a Class A offense is involved and it appears reasonably certain that the defendant will pose a serious threat to the safety and well being of the Reservation and its residents if released.
(9) The right to be released on bail as provided herein shall not accrue until charges under this Law and Order Code shall have been filed. Persons incarcerated in the Tribal jail for violation of federal or state laws shall be subject to be released on bail by the jurisdiction under whose authority the arrest was made according to the provisions of the laws under which their arrest was made. A person arrested for violation of federal law shall not be entitled to be released on bail until the prosecution of such charges has been declined by the U.S. Attorney, plus a reasonable time thereafter, not to exceed 36 hours after receipt of notification of such declination, in which charges for violation of this Law and Order Code, if any, may be filed.
Rule 35. Time Computations.
In computing any period of time in these Rules, the day of the act or event from which the designated period begins to run shall not be included, and the last day of the period will be included unless it is a Saturday or Sunday or a legal holiday. If a time period prescribed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall not be counted.
Rule 36. Motions.
An application to the Court for an order shall be by motion. A motion other than one made at trial or hearing shall be in writing unless the Court permits it to be made orally. It shall state the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by affidavit and/or a memorandum or points and authorities.
Rule 37. Dismissal.
(1) The prosecuting attorney or representative of the Tribe serving as prosecuting attorney may move that a complaint be dismissed and upon the Court's granting such motion the prosecution of that complaint shall cease, the defendant shall be released and any bail or bail bond released. Such a dismissal shall not be made during trial without the consent of the defendant.
(2) If there is an unreasonable and unnecessary delay in bringing a defendant to trial, the Court may, on motion of the defendant or its own motion, dismiss the complaint.
Rule 38. Service and Filing of Papers.
(1) Written motions other than those which are heard ex parte, written notices and similar papers shall be served on each party in the manner provided for in civil actions.
(2) All papers required to be served shall also be filed with the Court.
Rule 39. Calendars.
(1) The Tribal Court shall provide for the placing of criminal proceedings on the court calendar with as little delay as is reasonably possible.
(2) The Tribal Court shall schedule criminal trials no less frequently than one day per month.
(3) The Court may for good cause shown by either party direct that a trial be postponed to the next or some succeeding month. However, if the prosecution, for good cause shown, requests and is granted a delay, and if the defendant is incarcerated not having made bail, the defendant shall be released on his own recognizance pending the rescheduled trial.
Rule 40. Exceptions Unnecessary.
Exceptions to rulings or order of the Court are unnecessary, and it is sufficient that a party at the time a ruling or order of the Court is sought or makes known to the Court his objection or what action he wishes the Court to take and the grounds therefore; but if a party has no opportunity to object to a ruling or order, the absence of an objection does not thereafter prejudice him.
Rule 41. Harmless Error and Plain Error.
(1) Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
(2) Errors or defects affecting substantial rights may be recognized and acted upon by the Court even though they were not brought to the attention of the Court by counsel.
Rule 42. Regulation of Conduct in the Court Room.
Each judge may regulate the conduct of persons in his court room and may forbid the taking of photographs or other visual or audio recordation of proceedings occurring therein.
Rule 43. Records.
The Clerk of the Court shall keep such records in criminal proceedings as the Chief Judge shall by rule direct. Among the records required to be kept by the Clerk shall be a book known as the " Criminal Docket" in which, among other things, shall be entered each order or judgment of the Court and the date thereof.
Rule 44. Rules of Court.
(1) The Chief Judge may, in conjunction with the other Tribal judges, promulgate rules governing criminal procedure not inconsistent with these rules and in supplement thereto, and copies of such rules shall be made available for public inspection and copying.
(2)If no procedure is specifically prescribed by rule, the Court may proceed in any lawful manner not inconsistent with these rules or the principles of justice and fairness underlying these rules.
Rule 45. Forms.
Any forms adopted for use in the courts are illustrative and not mandatory.
Rule 46. Citation.
These rules may be known and cited as the " Ute Indian Rules of Criminal Procedure," or " U.I.R.Cr.P."
TITLE XV - PRETRIAL PROCEDURES CODE
The procedures established in this Pretrial Procedures Code are intended to establish a means whereby both civil and criminal disputes can be settled in the traditional, customary Indian manner by discussion between the parties before a trusted, impartial tribal authority prior to resorting to formal trial procedures adopted from the non-Indian society and incorporated as a part of tribal law. The procedures require that formal court authority be invoked by the filing of a complaint, but anticipate that a great percentage of cases can be settled by traditional and customary means, administered thereafter by the Tribal Court. The procedures set forth herein shall not be interpreted or applied to deny any person any right otherwise guaranteed by Tribal or Federal law.
The procedures established in this code shall apply in all cases, both civil and criminal, if, at the appropriate times referred to herein, there are two or more judges of the Tribal Court holding office and available to participate as provided herein.
§15-1-3. Civil Cases.
A pretrial conference as provided herein shall be held in all civil cases once the case is at issue.
§15-1-4. Criminal Cases.
A pretrial conference as provided herein shall be held in all criminal cases once the case is at issue by virtue of the Defendant entering a plea of not guilty to a Complaint.
Not less than two weeks prior to the scheduled trial date of a civil or criminal case, or at such other time prior thereto as the Chief Judge shall order, a pretrial conference shall be held as provided herein.
§15-1-6. Attendance - Civil Cases.
All plaintiffs and all defendants shall be required to attend the pretrial conference in a civil case. The parties may, upon obtaining the advance consent of the judge assigned to conduct the pretrial conference, bring with them such other persons, not including their attorney, advocate or lay counselor, as will tend to further the resolution of the issues of the case.
§15-1-7. Attendance - Criminal Cases.
The defendant, complaining witness, arresting officer and such other witnesses as either side may desire to summon shall be required to attend the pretrial conference in a criminal case. Upon obtaining the advance consent of the judge assigned to conduct the pretrial conference, either side may summon other persons, not including the prosecuting or defense attorneys, advocates or lay counselors, as will tend to further the resolution of the issues of the case and the proper disposition of the defendant should guilt be admitted. Such other persons may, but need not include the defendant's spouse or other family members, and any social workers, probation officers or similar persons having professional training.
§15-1-8. Failure to Appear; Penalties.
Any person summoned to appear at a pretrial conference who shall fail to appear shall be subject to being charged for failing to obey the lawful order of the Court and/or, if a party to the action, having the case summarily determined against him.
§I5-1-9. Conduct of Pretrial Conference.
There shall be no record or transcript made of the proceedings at the pretrial conference nor shall any statement made therein by any person be used for any purpose should the case ultimately come to trial. If agreement is reached on some or all of the issues presented in the case, such agreement shall be recorded by the judge conducting the pretrial conference, or court clerk at his direction, and may be embodied in a final or interlocutory order or judgment or in a pretrial order prepared to govern the conduct of any trial subsequently held.
§15-1-10. Attorneys and Public.
Pretrial conferences as provided herein shall not be open to the public nor shall professional attorneys, advocates or lay counselors be allowed to attend as representatives of the parties or otherwise (unless parties themselves).
§15-1-11. Judge's Function.
The judge conducting the pretrial conference shall listen to the positions of the parties and attempt to work out a settlement of all or some of the issues of the case. Such settlement shall not be inconsistent with the laws, ordinances, customs and traditions of the Tribe.
§15-1-12. Disposition of Cases.
In the event a settlement of the case is worked out, the judge conducting the pretrial conference shall cause a record to be made of such settlement by means of an order or judgment entered in the record of the case. In the event that some of the issues are not agreed to the judge shall cause a pretrial order to be prepared stating what issues have been settled and what issues remain to be died and such pretrial order shall supercede the pleadings for purposes of framing the issues for trial. The pretrial order may also contain agreements, stipulations, or orders by the court as to the production of witnesses and evidence and the conduct of discovery before trial. If trial appears necessary, the court clerk shall, at the time of the pretrial conference, obtain the names of all persons to be subpoenaed as witnesses and prepare and arrange for service of the necessary subpoenas.
§15-1-13. Voluntary Agreements.
No settlement of any issue in a civil case shall be made at the pretrial conference except with the voluntary agreement, taken by the judge conducting the pretrial conference, of all parties involved in the determination of the issue. No settlement of any issue in a criminal case shall be made at the pretrial conference except with the voluntary agreement, taken by the judge conducting the pretrial conference, of the defendant. The defendant in a criminal case shall be afforded the opportunity to consult with counsel of his choosing (and at his own expense) if he so desires, prior to agreeing to any judgment or order settling the case or any issue thereof or agreeing to a pretrial order.
§15-1-14. Criminal Defendants.
A defendant in a criminal case summoned to a pretrial conference shall be required to attend but shall not be required to testify, cooperate or otherwise participate in the pretrial conference. The judge conducting the pretrial conference in a criminal case shall explain these matters to the defendant at the beginning of the conference and shall, if a settlement involving an admission of guilt is reached, determine the voluntariness of the agreement and determine that the defendant understands the rights heir giving up to the same extent as would be determined by the Court if a guilty plea had been offered originally. If a defendant in a criminal case indicates his unwillingness to cooperate, no further discussion or proceeding need be held.
§15-1-15. Unsettled Cases.
All cases not settled either in whole or in part at the pretrial conference shall be scheduled for trial and a trial held before a judge, other than the judge conducting the pretrial conference, as if no such pretrial conference had been held, except that any pretrial order agreed to by the parties prior to the trial shall be controlling at the trial.