Title 2 Tribal Court

Chapter 2.01 Tribal Court and Judiciary Code

2.01.010 Title and Codification

This chapter shall be known as the Saint Regis Mohawk Tribal Court and Judiciary Code (the "Code").

2.01.020 Purpose

The purpose of this chapter is to enact provisions of law that establish the general organization and powers of the Tribal court system and define procedures for the appointment of judges.

2.01.030 Definitions

"Act of Civil Disobedience" means a deliberate, but nonviolent act of law breaking to call attention to a particular law or set of laws believed by the lawbreaker to be of questionable legitimacy or morality.

"Serious Crime" means a felony or misdemeanor, not involving an act of civil disobedience, which involves an act of moral turpitude. Crimes of moral turpitude are crimes involving conduct that is considered contrary to community standards of justice, honesty and good morals, such as larceny, fraud or murder, for example.

2.01.040 The Judiciary

The judicial power of the Saint Regis Mohawk Tribe ("Tribe") shall be vested in the judicial branch of the Tribal government, which shall consist of a Tribal Court, a Court of Appeals, a Traffic Court and such other lower courts as deemed necessary by the Saint Regis Mohawk Tribal Council ("Tribal Council").

2.01.050 Jurisdiction

(a) The Tribal Court shall have original jurisdiction extending to all cases, matters or controversies arising under and as may be limited by the laws, ordinances, regulations, customs and judicial decisions of the Tribe.

(b) The Court of Appeals shall have both original and appellate jurisdiction. The Court of Appeals shall have jurisdiction to hear all appeals from the Tribal Court. Decisions of the Court of Appeals on all matters within its appellate jurisdiction shall be final.

(c) The Saint Regis Mohawk Tribal Court, Traffic Court Division shall have original jurisdiction over any violation of the "Act Relating to the Regulation of Vehicle and Traffic On and Through the Saint Regis Mohawk Indian Reservation, as enacted in TCR 2000-109, and any amendments thereto.

(d) In order to preserve the independence of the Tribal Court and to prevent the Tribal Court from being used for political purposes, hereinafter, all disputes or disagreements concerning the form of governance that is employed to govern the Tribe shall hereinafter be determined by the enrolled members of the Tribe through a ballot referendum.

2.01.060 Power of the Courts

The Courts of the Tribe shall have the power to:

(a) Interpret, construe and apply the laws and regulations of the Tribe;

(b) Issue injunctions, attachments, writs of mandamus, quo warranto, review extradition, certiorari and prohibition, and to issue writs of habeas corpus upon petition by, or on behalf of any person held in actual custody; and

(c) Establish court rules, forms and procedures for the Tribal Court except that all such rules and procedures shall be approved in the form of a law passed by the Tribal Council.

2.01.070 Composition of the Judiciary

(a) The Tribal Court shall consist of a Chief Judge and as many Associate Judges as deemed necessary by the Tribal Council. Each judge shall be elected by the eligible voters of the Tribe for a term of three (3) years. The Court of Appeals shall consist of a Chief Judge and two Associate Justices. The Tribal Court Judges may sit as members of the Court of Appeals. The future composition of the Tribal Court may be changed through amendments to this chapter.

(b) Until such time as elections are held to elect judges, all judges of the Tribal Court and the Court of Appeals shall be temporarily appointed as either contract or per diem judges. Notwithstanding the provisions for elected judges, the Tribal Council may appoint per diem Judges to hear cases from time to time as needed because of vacations, disabilities, disqualification, recusal or removal of any judge.

2.01.080 Election and Qualification of Judges

Tribal judges shall be elected pursuant to Saint Regis Mohawk Tribe's Election and Referendum Ordinance, as amended, for three (3) year terms. Judges shall be at least twenty five (25) years old, of good moral character and not have been convicted of a serious crime as defined by this chapter. The Chief Judge must be an attorney with at least five (5) years' experience and knowledge working with Federal Indian and Tribal law and customs. Judges who run for all other offices except for Traffic Court shall meet one or more of the following professional qualifications to be eligible to serve as a Tribal Judge:

(a) Graduation from an American law school accredited by the American Bar Association;

(b) Admission to practice law before any State or Federal Court;

(d) Possession of a Bachelor's or advanced degree with substantial law-related experience.

2.01.090 Provisions Supplement Existing Law

The provisions of this chapter shall supplement existing law.

2.01.100 Repeal Provisions and Conforming Amendments

Tribal Council Resolution 2008-22 is specifically repealed and replaced by this enactment. No current or previous provisions of law are conformed by this enactment.

2.01.110 Severability

The provisions of this chapter are severable, and if any part or provision shall be held void by any court of competent jurisdiction, the decision of the court so holding shall not affect or impair any of the remaining parts or provisions of this chapter.

Chapter 2.02 Rules of Civil Procedure

2.02.010 Title and Codification

This chapter shall be known as the Saint Regis Mohawk Tribal Court Rules of Civil Procedure.

2.02.020 Purpose

The purpose of this chapter is to establish Rules of Civil Procedure and practice before the courts of the Saint Regis Mohawk Tribe.

2.02.030 Definitions

There are no words or phrases of that require statutory definition as part of this enactment.

2.02.040 [Rule 1] Filing and Notice

(a) The original written complaint, petition, answer, summons, motion, argument, agreement, order or other document served upon a party during a case in Tribal Court shall be filed with the Court Clerk.

(b) A party who files any document with the Court Clerk in a lawsuit shall give a copy of the same document to every other party in the case. If a party is represented by counsel, all documents except the complaint and summons shall be given to counsel, instead of the party. Delivery of a copy as required by this Rule may be made either by giving it to the party or counsel in person or by mailing it first class, postage paid, to the party's or counsel's correct address.

(c) Every decision and order of the court shall be written by a judge or court clerk staff and signed by a judge. The Court Clerk shall file a copy and give or send a copy of each ruling to each party and counsel in the case.

2.02.050 [Rule 2] Timing

(a) Whenever a rule, Tribal Law, or an order of the Court requires that an action be taken within a certain number of days, the day of the action from which the time limit begins shall not be counted; but the last day shall be counted unless it is a Saturday, Sunday or Tribal holiday. When the last day is a Saturday, Sunday or Tribal holiday, the deadlines shall be the first work day following that day that is not counted. Where the time limit is less than seven (7) days, Saturdays, Sundays and Tribal holidays shall be counted.

(b) When a time limit is counted from or to the time that notice is delivered to a person and the notice is delivered by mail rather than given directly to the person, it shall be presumed that delivery takes place three (3) days after the notice is placed in a United States Postal Service mailbox.

(c) On request of a party, and if good cause exists, the Judge may allow an extension of any time limit prescribed by a Rule of Civil Procedure or a Rule of the Court.

2.02.060 [Rule 3] Civil Procedure

(a) Unless otherwise specified by these Rules, or ordered by a Judge pursuant to a Rule of the Court, motions, arguments, discovery requests and other actions taken by the parties during the course of lawsuit may be oral or written. Oral actions taken by the parties, in order to be enforceable by the Court, shall take place in open court in the presence of the Judge and all parties.

(b) All oral actions taken by the parties in open court shall be subject to the notice requirements of Section 2.02.160, Rule 13. The Notice of Motion form provided for by that Rule may be used to satisfy the notice requirements for all oral actions.

2.02.070 [Rule 4] Form of Court Papers

All written material submitted to the Court must be clear and legible on 8 'A" X 11" white paper and shall contain the name of the Court, the names of the parties, the Court file number for the case, the signature of the party filing it or the party's counsel, and any other information required by these Rules. For convenience, the Court may develop standard forms for pleadings, motions, notices and orders. Standard forms officially adopted by the Court will become an appendix to these Rules of Civil Procedure.

2.02.080 [Rule 5] Limitations of Actions

(a) A civil lawsuit filed in Tribal Court must be started:

(1) In the case of torts and oral contracts, and actions not otherwise provided for herein, within three (3) years;

(2) In the case of causes of action based upon a statute or ordinance, within one (1) year, unless stated otherwise in the applicable statute or ordinance;

(3) In the case of written contracts, five (5) years from the time of the breach of contract.

(4) In the case of actions to enforce a judgment, except judgments rendered in regard to child custody, adoption proceedings or matrimonial cases, within ten (10) years of the date the person or persons in whose favor the judgment was rendered was first entitled to enforce.

(b) The time within which a civil lawsuit must be filed shall be counted from the date on which the injury or breach was first known to the injured party or should have been known to a reasonably aware person in the position of the injured party.

(c) For the purposes of meeting the deadline set in this Rule, a civil suit is started when the complaint is filed with the Clerk of the Court.

2.02.090 [Rule 6] Commencement of a Lawsuit; Complaints; Proof of Service; Filing Fee; Summons

(a) To start a civil lawsuit in Tribal Court, a person shall first file a written complaint with the Court Clerk. The person who has filed the complaint shall be known as the plaintiff in the lawsuit. The complaint shall describe the injury or breach the plaintiff is complaining of, name or describe the person responsible for such injury or breach, who shall be known as the defendant, and state the relief requested. The plaintiff shall sign the complaint and have the document notarized. If a person is unable to prepare a written complaint, the Clerk may help that person complete a complaint form provided by the Rules of the Court.

(b) After the plaintiff has filed the complaint, the Clerk shall issue a summons directing the defendant to answer the complaint within twenty (20) days of the time the defendant receives the complaint and summons. The summons shall be on the official form provided by the Rules of the Court. The summons must notify the defendant that a failure to appear and defend will result in a default judgment being entered against the defendant for the relief demanded in the complaint.

(c) Within sixty (60) days after plaintiff files a civil complaint, plaintiff shall cause a copy of the complaint, together with the summons, to be served upon (delivered to) each defendant named in the complaint. The complaint and summons must be served by a person eighteen (18) or more years old who has no stake in the outcome of the lawsuit. It may be served either by giving it to the defendant directly or by leaving it at a defendant's residence or place of employment with a person at least fourteen (14) years old who lives or works there.

(d) The person who delivers the complaint shall sign and file a proof of service with the Clerk. The proof of service shall indicate the type of document served, the date and place of service, and the name of the person served, and shall be on the form provided for that purpose by the Rules of the Court. This shall be done within thirty (30) days from the date of service.

(e) Every person who files a civil lawsuit shall pay a filing fee to be established by the Rules of the Court.

2.02.100 [Rule 7] Amendment, Withdrawal, Dismissal of the Complaint

(a) A plaintiff may change the complaint without Court permission at any time before the defendant answers it, as long as a copy of the changed complaint is delivered to all parties according to the rules for complainants. After the defendant has answered the complaint, the judge may still allow plaintiff to change the complaint as long as allowing the change would not be unfair to the defendant.

(b) The Judge shall allow plaintiff to withdraw the complaint and shall dismiss the case at any time plaintiff requests unless the defendant has counterclaimed against plaintiff, or dismissal of the case would otherwise be unfair to the defendant. The judge may order a plaintiff who withdraws a complaint to pay to the defendant all costs of the suit incurred by the defendant.

2.02.110 [Rule 8] Defenses, Answers; Counterclaims

(a) Within twenty (20) days after a defendant receives a copy of a civil complaint and summons, he or she must answer the complaint in writing. The Defendant must sign the answer, file it with the Clerk, and cause it to be served upon and delivered to the plaintiff If the defendant is not able to prepare a written answer, he or she shall explain to the Clerk the nature of the defense which will be presented, and the Clerk shall help the defendant to put the answer in writing, on the form provided for that purpose by the Rules of the Court.

(b) In addition to or as a way of raising a defense to the complaint, a defendant may file a complaint/counterclaim against plaintiff, following the same rules which apply to complaints.

2.02.120 [Rule 9] Preliminary Injunctions and Temporary Restraining Orders

(a) A party to a civil suit may ask the judge for a pretrial order (injunction) prohibiting or requiring particular action by another party to keep things as they are until the Court has a chance to reach a final decision in the case. The order shall be granted if the person requesting it shows that there is a good chance that he or she will win the suit and that he or she will suffer irreparable loss or injury if the injunction is not issued.

(b) Unless otherwise stated in the injunction, a pretrial injunction shall remain in effect until final judgment in the case.

(c) Except as provided in this section, Rule 9(d), no pretrial injunction shall be issued unless the party to be enjoined first has notice and an opportunity to be heard in court.

(d) A judge may issue a temporary restraining order prohibiting or requiring particular action by a party to keep things as they are pending the court's final decision in the case without prior notice to the party to be restrained when the party who requests such an order provides by sworn statement or oral testimony that he or she will suffer permanent loss or injury if the order is not issued before the opposing party can be notified and heard and that he or she made a reasonable attempt to notify the opposing party of the time when the request would be made.

(e) A temporary restraining order shall be effective only for the time period specified in the order, and in no case for longer than ten (10) days. Subject to the requirements of this section, Rule 9(d), a temporary restraining order may be renewed once and only for good cause.

(f) The judge may require a party who requests a restraining order or pretrial injunction to provide security for any loss or injury which may be suffered by a party who is wrongfully enjoined or restrained; provided, however, that the judge shall not require such security from the Tribal government or any of its branches or instrumentalities.

2.02.130 [Rule 10] Default

(a) Failure of a defendant to file and serve an answer upon the plaintiff within twenty (20) days after the complaint was served shall be in default and shall provide grounds for judgment against the defendant as asked for in the complaint. No judgment of default shall be made, however, unless the plaintiff makes a written motion for a default judgment and serves a copy of the motion on each defendant. If defendant files an answer to the complaint at or before the time that the motion is to be argued to the Judge, no default judgment shall be granted, and the matter shall proceed as though answered on time. If defendant does not answer by that time, a default judgment shall be entered.

(b) In granting a default judgment, the Judge may refuse to grant relief requested by plaintiff if granting the relief would be contrary to Tribal law or would be unjust. The judge may not grant plaintiff greater relief on default than was requested in the complaint.

2.02.140 [Rule 11] Discovery

(a) It is the policy of the Tribal Court that the truth will be revealed if all parties in a civil case have access to all information and evidence related to the case. In preparation for trial the parties may ask each other for and shall make available to each other all information in each other's possession or control which will be used as evidence in the case or which can reasonably be expected to lead to evidence.

(b) Methods of discovering and exchanging information may include but need not be limited to written questions, oral examination, requests for witness' names, requests for admissions, physical inspection of property, requests to perform scientific or physical tests, and requests for documents. The party who makes a request under this Rule shall be as clear and as specific as possible in describing what he or she wants.

(c) A party may refuse to make available the information requested pursuant to this Rule if its release would cause the responding party or a third person undue hardship, annoyance, or embarrassment, or would violate a confidence which is Tribal custom or official Tribal policy to protect. If parties disagree about whether the responding party is required to release the information, the judge shall decide the dispute. The Judge may place conditions on the release of information to protect confidential material, prevent unreasonable burden or expense to one party, or otherwise ensure fairness to all parties.

(d) A party who receives a request for information under this Rule shall, within ten (10) days of receiving the request, respond either with information, with an indication where and when the information will be available, or with an objection and refusal to comply with the request. Failure to respond within ten (10) days is grounds for a Court order requiring a response.

(e) A copy of all written requests for discovery shall be filed with the Court.

2.02.150 [Rule 12] Pretrial Conference

(a) In the interest of saving time, simplifying the issues and avoiding unnecessary litigation, the Judge may, on his or her own motion, or on the motion of any party, schedule one or more pretrial conferences with all parties to a case. In any case determined by the Judge to be complex, at least one pretrial conference shall be held after the completion of discovery and early enough to aid parties in planning for trial.

(b) The pretrial conference shall be held in an informal setting and shall be conducted without formal procedures. The parties and the Judge shall discuss areas where the parties are in agreement and areas where they disagree. The purpose of the discussion shall include the following:

(1) To identify and dispose of issues which may be resolved without a trial;

(2) To narrow and focus issues of law which remain to be decided and to identify central acts which are still in dispute;

(3) To limit the number of witnesses and the evidence that will be presented so that testimony and other evidence is not repetitious or irrelevant; and

(4) To avoid surprise at trial.

(c) To accomplish the above purposes, all parties to a lawsuit shall, at the pretrial conference after discovery, fully disclose:

(1) The names and addresses of all witnesses they expect to present at trial, and the basic information to which they expect the witness to testify;

(2) All documents they expect to introduce as evidence, and the basic information which they intend to prove with those documents; and

(3) All objects which they intend to introduce as evidence and the basic information which they intend to prove with those objects.

(d) No party shall be permitted to use the testimony of any witness or introduce as evidence any document or object unless they disclose the witness, document, or object at the pretrial conference as provided in (c) above, unless the party proves that at the time of the pretrial conference they were unaware of the existence or nature of the witness, document or object and could not, with reasonable effort, have discovered it in time to disclose it. Such evidence must, in any case, be disclosed to the judge and opposing party as soon as possible before it may be offered in the trial.

(e) No offer of settlement or other statement which is made by a party during a pretrial conference may be used as evidence against that party if settlement is not then achieved. Agreements reached as a result of a pretrial conference shall be put in writing and signed by all parties. Such agreement shall be made part of the final judgment issued by the judge.

2.02.160 [Rule 13] Motions

(a) Any questions regarding procedure or the rights of the parties which arise during a lawsuit and which cannot be settled by agreement of the parties may be presented to the judge in a motion, which is a request for an order.

(b) Motions may be made in writing or orally. If the motion is not made during and as a consequence of events at a trial or other hearing, the moving party shall notify other parties of the nature and basis of the motion and the hearing time at least ten (10) days before the motion is presented in Court, so the responding party has a chance to plan a response. The notice required by this section shall be called a Notice of Motion, shall be in writing, and shall be served upon the party, or, if the party is represented by counsel, upon the party's counsel, according to Section 2.02.040, Rule 1 (b). Persons who are unable to prepare their own written Notice of Motion may be assisted by the Clerk in the filling out of a Notice of Motion form, provided for that purpose by the Rules of the Court.

(c) Motions to dismiss the lawsuit because the Court lacks jurisdiction or because the plaintiff has not stated a legitimate basis for relief may be made at any time. All other pretrial motions which would determine the procedures used at trial must be made at least five (5) days before the trial. The judge may deny a motion which could and should have been made earlier in the case if it appears that the moving party knew or should have known earlier about the basis for the motion and has raised it late because of negligence or an intent to harass the other party.

2.02.170 [Rule 14] Compelling Witnesses to Appear; Subpoenas

(a) Any party to a lawsuit or other proceeding in Tribal Court shall have the right to compel witnesses to appear in Court and testify concerning the matter.

(b) Upon request of a party, the Court shall issue a subpoena, an order which commands a named person to appear in Court and/or to bring certain evidence or documents to court.

(d) Every subpoena shall be in writing and shall include the name of the Court, the Court's seal, the names of all parties, the time and place that the witness must appear, and a clear and detailed description of any documents or evidence that the witness is required to bring.

(e) Subpoenas shall be delivered to the witness by a person of the age of eighteen (18) or more years who has no stake in the case. The subpoena must be delivered by giving it to the witness directly.

(f) A person who delivers a subpoena shall promptly file with the Clerk a copy of the subpoena and a proof of service as defined in Section 2.02.090, Rule (6)(d). The proof of service must be filed prior to the date the person is to appear, and in any event no more than thirty (30) days after the date of service.

(g) Failure of a witness to obey a subpoena shall be grounds for holding the witness in contempt of Court after a hearing.

(h) A witness who responds to a civil subpoena shall be entitled to a fee of Thirty Dollars ($30.00) for each day or partial day that he or she must appear in court. The judge may, in addition, order that the witness be paid reasonable and necessary travel and living expenses incurred in responding to the subpoena. Witnesses shall be offered full payment of their fees for one day's service at the time they are served with the subpoena. The party requesting the issuance of a subpoena shall tender the fees to the witness upon service of the subpoena.

2.02.180 [Rule 15] Jury Trials

(a) Jury request; fee.

A jury trial shall be held if requested by either party to the case at least ten (10) days before the trial, and only if specifically allowed by applicable Tribal law. The party who requests a jury trial shall pay to the Court a jury fee established by the Rules of the Court. Payment of the jury fee may be waived by the Chief Judge upon the request of a party if payment of the fee would result in severe hardship to the party. The party who requests a jury trial or a visiting judge who fails to provide at least five (5) days notice by a written motion to continue shall be liable for the payment of jury fees and fees payable to the visiting judge at the discretion of the Judge presiding over the trial.

(b) Eligibility; jury list.

To be eligible to serve as a juror on a civil case, a person must be a Tribal member who is a resident of the St. Regis Mohawk Reservation, must be eighteen (18) years of age or older, must never have been convicted in any court of a felony, and must not at the time the list is made, or at the time of trial, be holding the office of Tribal judge, Tribal police officer, or Tribal Council Member.

(1) For the purposes of this section, a permanent resident of the Reservation is a person who rents or owns a dwelling place on the reservation, and who resides in that dwelling place other than seasonally or periodically, and who receives mail on the reservation at a reservation post office box or reservation street address, and who intends to make the reservation his or her permanent home for the future, and who does not claim residence in any other location for any purpose.

(2) The Tribal Clerk shall prepare each year a list of persons eligible to serve as jurors, and shall provide the jury list to the Clerk of the Court. The Clerk of the Court shall prepare a ballot in the name of each eligible person and protect the ballots from access by unauthorized persons by placing the ballots in a master ballot box and securing the master ballot box in a safe.

(1) Not less than seven (7) days before the date set for the beginning of a jury trial, the judge shall draw from the master ballot box, at random, the number of ballots specified by the Rules of the Court for a civil jury trial of the type scheduled. The Clerk of the Court shall then issue and cause to be served upon each person whose ballot was drawn a Jury Summons.

(2) The Jury Summons shall notify the person being summoned to appear in Court on the date set for the beginning of the trial, one hour before the time set for the trial. Failure of a person served with a Jury Summons to appear shall constitute contempt of court and the Summons shall contain a warning to that effect. Any person for whom jury service would be a severe hardship may be excused from service by a judge, but such excuse from jury duty shall be disfavored.

(d) Jury selection.

On the day of the trial, the Clerk shall deposit in a ballot box ballots containing the names of each of the summoned potential jurors who have appeared by the time set for their appearance. Those persons whose names are in the ballot box shall be known as the jury panel. After the Judge calls the Court to order, he or shall draw from the jury panel ballot box, at random, the names of fourteen (14) members of the jury panel, who shall then be seated in the jury area. The Clerk shall make a list of the names in the order in which they are called.

(e) Removal for cause; examination by Court, parties.

(1) After the first fourteen (14) members of the jury panel have been seated, the judge shall examine each of them as to their qualifications, and excuse any who appear to him or her to be biased, prejudiced, unable to fairly and effectively perform the duties of a juror or otherwise not qualified to serve as juror. The judge shall permit the parties or their counsel to similarly examine and ask for the removal of jurors for cause, without any limit to the number of jurors so challenged or removed, except that all such challenges must be in good faith. The judge shall excuse any juror he or she believes to be unqualified, directing him or her to leave the jury area.

(2) After all the disqualified jurors have been excused from the jury area, enough additional ballots shall be drawn by the judge to replace the disqualified persons with members of the jury panel. The Clerk shall add their names to the list in the order in which they were called. The procedure for challenge for cause shall continue until fourteen (14) qualified persons are seated in the jury area.

(f) Peremptory Challenges.

After the fourteen (14) qualified persons have been seated in the jury area, each party shall have the right to remove three persons from the jury without stating any reason. The parties shall alternatively remove jurors, or waive their turn to do so, until they have exhausted their peremptory challenges.

(g) Trial jury; alternate.

The Clerk of the Court shall then read aloud the first seven (7) names on the list and those persons shall be jurors for the trial. The Clerk shall also read aloud the eighth (8th) name on the list, and that person shall be an alternate juror for the trial. The alternate juror shall act in all respects as a juror, except that he or she shall not vote during jury deliberations unless one of the other jurors has been excused by the judge during the course of the trial.

2.02.190 [Rule 16] Order of Trial

(a) At the trial of a civil case, presentations shall be made in the following order unless otherwise agreed by the parties or determined at the pretrial conference:

(1) Motions by either party regarding procedure at trial, evidence to be presented, jurisdiction of the Court, or the sufficiency of claim;

(2) Evidence and statements presented by the party (the plaintiff) who filed the original complaint;

(3) Evidence, statements or motions presented by the person complained against (the defendant);

(4) Motions of either party which are based on events at trial; and

(5) Final arguments by both parties.

(b) The judge may announce a final decision at the close of trial or may take the matter under submission and issue a written decision at a later time. All decisions shall be announced within thirty (30) days after the end of the trial.

2.02.200 [Rule 17] Burden and Standard of Proof; Jury Verdicts

(a) Unless otherwise provided by Tribal law, the burden of providing a civil claim shall be on the party who makes the claim.

(b) Unless otherwise provided by Tribal law, a party to a civil case shall be considered to have met the burden of proof by a preponderance of the evidence standard. This shall mean the necessary party met the burden of proof by providing superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

2.02.210 [Rule 18] Rules of Evidence Governing Trials

(a) Purpose.

The purpose of these informal Rules of Evidence is to ensure that the Tribal Court is able to determine the truth of a matter with a minimum of delay, confusion, and uncertainty of the parties.

(b) General Rules.

(1) Where there is more than one kind of evidence about the same subject, the judge shall give each item of evidence the importance (weight) which, according the judge's common sense and sense of fairness, that particular type of evidence deserves. For example, in oral testimony, the testimony of persons who testify from their personal knowledge, such as first-hand observation of, or participation in, the event described shall be given more weight than the testimony of persons who only have knowledge of the event that they gained from other persons.

(2) Evidence admitted in the Tribal Court must be related either to the issues before the court or to the weight and credibility which should be given to other evidence. When questioned by the judge or another party as to why certain evidence should be allowed, the party who wishes to present the evidence shall:

(A) State the issue which he or she will use the evidence to resolve; and

(B) Explain how the evidence is relevant to the issue.

(C) When the relevance or reliability of evidence is challenged, the judge shall decide whether or not to use the evidence, and explain the decision.

(c) Oaths. Prior to testifying before the Tribal Court, every witness shall first state before the judge, parties and spectators that he or she will testify truthfully. The Court may prescribe an oath for this purpose by the Rules of the Court.

(d) Questioning Witnesses.

(1) When questioning a witness, the judge and parties or their counsel shall not ask questions in such a way as to suggest the answer, unless the witness is one who was called by the opposing party, or is clearly hostile to the person asking questions.

(2) The judge shall determine the order in which the parties or their counsel shall be allowed to question witnesses. The judge shall protect the witnesses from harassment or unnecessarily repetitious or irrelevant questioning.

(3) During the questioning of a witness, the judge may exclude from the Court room any witnesses who have not yet testified, if this seems to be necessary to ensure that all witnesses will give truthful testimony. At the request of any party, such witness shall be excluded.

(4) The Judge may call and/or question any witnesses on his or her own initiative.

(e) Sworn Written Testimony: Subject to the provisions of this section, Rule 18 (b) (2), testimony of a witness may be presented in sworn written form if and only if:

(1) The witness is unable to appear in person to testify, or

(2) If the evidence presented in writing is not contradicted by other parties, or

(3) If the sworn written testimony is offered to support a motion or an uncontested request for relief, or

(4) If the sworn written testimony contradicts oral testimony already given by the same witness.

(5) Written testimony must show clearly who gave it and when the witness gave it. Notarized documents are favored.

(6) Copies or written records, photographs, and other documentary evidence may be presented as long as there is a reasonably reliable way to identify the items and the methods used to prepare them.

(7) When the relevance or reliability of evidence is challenged, the Judge shall decide whether or not to use the evidence, and explain the decision.

2.02.220 [Rule 19] Judgments

(a) A judgment is a final order of the Court which disposes of a claim in whole or in part. The Judge may announce a judgment orally at a hearing in open Court before the parties, or in writing, at the time of hearing or after the hearing, but in no case more than thirty (30) days after the end of the trial.

(b) Finality: A judgment becomes final when it has been recorded in the Docket Book by the court Clerk. The Court shall establish, by the Rules of the Court, the length of time after issuance of an order within which the Court Clerk must enter the Order in the Docket Book.

2.02.230 [Rule 20] Proceedings After Judgment

(a) No later than ten (10) days after a judgment is final, a party may ask the Judge for a rehearing, reconsideration, correction, vacation, or modification of the judgment.

(b) The Judge may grant a new hearing or reconsider any change in the judgment if he or she finds at least one of the following to be true:

(1) The original judgment was based on or reached as a result of fraud or mistake of law;

(2) There is newly discovered evidence which probably would have affected the outcome of the case and which could not, with reasonable effort, have been discovered in time for a hearing of the case;

(3) The court did not have jurisdiction over a party or over the subject matter.

(c) No later than ten (10) days after judgment is final or no later than ten (10) days after a motion made pursuant to subsection (a) of this Rule is denied, a party may appeal an adverse judgment as provided in the Rules of Appellate Procedure.

(d) No civil judgment shall be enforced sooner that thirty (30) days after judgment is entered in the docket.

(e) Failure to abide by the decision of the Court for resolution of the action, within a reasonable time as may be determined by the Court, will result in a "letter of warning" from the Court Clerk. Further non-compliance may result in a judgment for Contempt of Court, and enforcement of the original decision will be determined by the Court through such measures as garnishment of wages, restraining orders on bank accounts, sale offer implement liens on personal and/or real property, or any other remedy as authorized by the law.

(f) A party appealing a judgment against him or her, or filing a motion pursuant to this section, Rule 20(a) may make a motion requesting that the Court delay (stay) enforcement of the judgment until after the this section, Rule 20(a) motion or appeal has been decided. The party who won the original judgment may oppose the motion for a stay and/or may request that the Court require that the party asking for the stay post a bond to protect him or her from further damage, to cover costs, or to guarantee that sufficient assets are within the control of the Court to satisfy the judgment if the original winning party wins the motion or the appeal. Stays shall be granted only under the terms of this section and the Rules of Appellate Procedure, and no stays shall be granted automatically.

2.02.240 [Rule 21] Costs

(a) Upon judgment, the Judge shall order the losing party to pay to the winning party the costs of the lawsuit, unless the applicable law provides otherwise or the judge determines that such an order would be unjust. Costs shall not be imposed on the Tribe or any branch of the Tribe unless specifically permitted by an applicable Tribal law or agreement.

(b) Costs shall include civil filing fees, any costs for delivering documents required by these Rules to be delivered, postage for court notice sent to the parties, and fees and expenses paid to witnesses and jurors, but shall not include counsel fees unless Tribal law so provides in a particular type of case.

2.02.250 [Rule 22] Interpretation and Publication of Rules of Civil Procedure

The Tribal Court may apply interpretation of like provisions in the Federal Rules of Civil Procedure in construing these rules. The Tribal Court may authorize special, as well as annotated editions of these Rules of Civil Procedure, together with any requirement for citations of practice before the Tribal Courts.

2.02.260 Provisions as Cumulative

The provisions of this chapter shall be cumulative to existing law.

2.02.270 Repeal Provisions and Conforming Amendments

(a) No provisions of law are expressly repealed by this enactment.

(b) No current or previous provisions of law are conformed by this enactment.

2.02.280 Severability

The provisions of this chapter are severable and if any part or provision shall be held void by any Court of competent jurisdiction, the decision of the Court shall not affect or impair any of the remaining parts or provisions of this chapter.

Chapter 2.03 Civil Code

2.03.010 Title and Purpose

(a) This chapter shall be known as the "Saint Regis Mohawk Tribal Civil Code".

(b) The purpose and intent of this Code is to ensure that civil disputes arising in Mohawk Indian Country or over which the St. Regis Mohawk Tribal Court ("Tribal Court") otherwise has jurisdiction should be decided in the Tribal Court and not in state or federal courts.

2.03.020 Jurisdiction

The Tribal Court shall have civil jurisdiction over civil disputes as follows:

(a) Disputes arising in, connected with, or substantially affecting Mohawk Indian Country;

(b) Disputes involving contracts (i) negotiated, executed, or performed in Mohawk Indian Country, or (ii) whose subject matter substantially involves Mohawk Indian Country, or (iii) under which substantial performance would occur in Mohawk Indian Country, or (iv) in which the Saint Regis Mohawk Tribe ("Tribe") or any of its subordinate entities, agencies, or agents is a party (except that this provision does not waive Tribal sovereign immunity);

(c) Disputes involving torts in which (i) a proximate cause (or the last component in a chain or sequence of proximate cause) occurred or was carried out in Mohawk Indian Country, or (ii) the effect or injury occurred or was inflicted in Mohawk Indian Country, or (iii) the Saint Regis Mohawk Tribe or any of its subordinate entities, agencies, or agents is the injured party or alleged to be the party causing the injury (except that this provision does not waive Tribal sovereign immunity);

(d) Disputes involving claims against (i) the Saint Regis Mohawk Tribe or any of its subordinate entities, or agencies (except that this provision does not waive Tribal sovereign immunity), or (ii) against Tribal officers, agents, or employees for acts, omissions, or within their official capacity (except that this provision does not waive the sovereign immunity or governmental official immunity of Tribal officials, agents, or employees);

(e) Claims against the Saint Regis Mohawk Tribe (but not against individual Indians, officials, officers, employees or agents of the Tribe) under the federal Indian Civil Rights Act, in which case the Court may grant equitable relief only (injunctive or declaratory remedies, excluding monetary damage or monetary relief of any kind);

(f) Review of the denial of a gaming license by the Tribal Gaming Commission to the limited extent, and only to the limited extent, that a petition for the review of such denial is filed with the Court within 30 days of notice of the denial to the applicant, where after the Court shall grant equitable relief to direct approval of a license only if it finds upon review of the record before the Tribal Gaming Commission (in the nature of an appellate proceeding not involving de novo evidence) that the denial was a violation of due process by being wholly arbitrary and capricious and without any basis whatsoever in law or fact; and

(g) Except as limited by St. Regis Mohawk Tribal laws, to the fullest extent, reach, and scope of civil jurisdiction otherwise permitted under applicable principles of American Indian law for Indian tribes located within the territorial boundaries of the United States, as recognized by the Supreme Court of the United States.

2.03.030 Definitions

The following definitions are used in this Civil Judicial Code:

(a) "Mohawk Indian Country" means the Saint Regis Mohawk Reservation and any other land controlled by the Tribe which is classified as federal Indian Country.

(b) "Mohawk Court" or "Court" means either the Tribal Court or the Court of Appeals, or both, as the context indicates.

(c) "Mohawk Tribal Court" or "Tribal Court" means the trial court established by the St. Regis Mohawk Tribe, in which civil disputes are initially filed.

(d) "United States" and "Federal" means the government and courts of the United States of America, and not the government and courts of any state.

(e) "Laws of the United States" means the laws of the government of the United States of America, and not the laws of any state.

(f) "Mohawk Tribe" and "Tribe" means the Saint Regis Mohawk Tribe, a federally recognized Tribe.

2.03.040 Sovereign Immunity

(a) The Saint Regis Mohawk Tribe hereby asserts and preserves its sovereign immunity to the fullest possible extent on behalf of itself and its subordinate entities, agencies, officers, agents (including its Tribal attorneys), and employees.

(b) The officers, agents (including Tribal attorneys), and employees of the Saint Regis Mohawk Tribe are immune from suit for acts of omission within the scope of their official capacity and for acts or omissions which such officers, agents (including Tribal attorneys), or employees reasonably believed to be within their official capacity.

(c) Nothing in this Civil Code shall be interpreted as waiving or diminishing the sovereign immunity of the Saint Regis Mohawk Tribe or of its subordinate entities, agencies, officers, agents, or employees.

(d) Tribal sovereign immunity is hereby found and stated to be an essential element of self-determination and self-government, and as such will be waived by the Saint Regis Mohawk Tribal Council only under such circumstances as the Saint Regis Mohawk Tribal Council finds to be in the interests of the Tribe in promoting economic or commercial development or for other Tribal purposes. Any such specific waivers of sovereign immunity as may from time to time be executed must be clear, explicit and in writing; any such waivers shall be interpreted narrowly and limited to the explicit terms of the waivers; and any such waivers shall not by implication or interpretation be extended in any manner or fashion beyond their narrow, explicit terms.

(e) The filing of a claim or complaint by the Saint Regis Mohawk Tribe or any of its subordinate entities, officers, agents or employees does not waive, and shall not be interpreted as waiving sovereign immunity in any manner or fashion including immunity from counter-claims, cross-claims, off-sets, and similar claims.

(f) The Mohawk Tribe does not assert sovereign immunity against claims for equitable relief brought in Mohawk Court (and only in Mohawk Court) under the federal Indian Civil Rights Act, but such claims may not be brought against individual Indians or officers, agents or employees of the Tribe and such claims must be limited to non-monetary (injunctive or declaratory) relief.

2.03.050 Applicable Law

(a) Civil disputes over which the Tribal Court has jurisdiction shall be decided by the Court in accordance with and by applying the following principles of law in the priority and precedence in which the principles of law are first identified below (higher priority and precedence being accorded those identified earliest in the list, so that in the event of inconsistency or conflict between principles of law, the principle of law identified earlier in the list shall be relied upon as the controlling principle for deciding the dispute):

(1) Such portions of the Constitution of the United States and federal law are clearly applicable in Mohawk Indian Country (with great weight given at all times to principles of the United States Constitution and federal Indian law which recognize Indian sovereignty, self-determination, and self-government, which render many federal and state laws inapplicable to federal Indian Country, which provide for a federal trust responsibility to Indian tribes, and which provide rules of legal interpretation favorable to Indian tribes);

(2) Written Mohawk laws adopted by the recognized governmental system of the Mohawk Tribe;

(3) Unwritten Mohawk laws, and written and unwritten Mohawk customs, traditions and practices, whenever such Mohawk laws, customs, traditions or practices are found by the Mohawk Court to be (i) well-established within the Tribe and recognized by Tribal members, (ii) applicable or relevant to the dispute in issue, and (iii) not inconsistent with due process and other rights established under Tribal law;

(4) Generally recognized principles of the law of contracts (including quasi-contracts or imperfectly formed invalid contracts), as reflected by the most recent Restatement of Contracts or in such expert treatises as the Court may choose to recognize or as the Court may otherwise determine;

(5) Generally recognized principles of the law of torts, as reflected by the most recent Restatement of Torts or in such expert treatises as the Court may choose to recognize or as the Court may otherwise determine;

(6) If (but only if) consistent with principles of Tribal sovereignty, self- government, and self-determination, and if (but only if) consistent with principles of law identified earlier in this section, New York State laws on contracts and torts.

(b) Principles of New York State law for resolving private civil disputes are not automatically applied in Mohawk Courts. Principles of New York State law for resolving private civil disputes may be applied in Mohawk Courts for the purpose of resolving a private civil dispute over which the Mohawk Court has jurisdiction if (but only if) the Mohawk Court finds: (i) there is no other controlling principle of Mohawk law; (ii) application of the New York State law is consistent with principles of Tribal sovereignty, self-government, and self-determination; and (iii) application of the New York State law is in the overall interest of justice and fairness to the parties.

2.03.060 Practice, Procedure and Organization

(a) Rules of Procedure

Until the Court adopts its own rules of procedure or when not otherwise in conflict with a specific rule adopted by the Tribal Court or the Tribal Council, the Federal Rules of Civil Procedure shall be deemed to be the rules of procedure for the Tribal Court, but the Court may modify, set or direct any specific rule or procedure for individual cases as the Court deems appropriate.

(b) Rules of Evidence

Until the Court adopts its own rules of evidence or when not otherwise in conflict with a specific rule adopted by the Tribal Court or the Tribal Council, the Federal Rules of Evidence shall be deemed to be the rules of evidence for the Tribal Court, but the Court may modify, set or direct any specific rule for individual cases as the Court deems appropriate and may accept such evidence as it deems useful in the interests of justice.

Any party may represent himself, herself or itself, so long as the Court determines that the party is reasonably competent to comprehend and participate effectively in the proceedings. Any person may be admitted to practice before the Court for the purpose of representing clients therein if the person meets the requirements set forth by the Tribal Court for practice before the Court and the requirements established by any applicable Tribal code or ordinance.

(d) Assigning and Deciding Cases

A case shall be assigned to a single Judge of the Tribal Court, but another Tribal Court Judge may from time to time handle various aspects of the case upon the request of the primary Judge as considerations of scheduling, workload, and the like may make such temporary assignment convenient and in the interests of justice. All aspects of cases (including preliminary procedures, motions, and trials) shall be decided by one Tribal Court Judge; civil cases will not be decided by jury trial except if allowed by a specific Tribal ordinance.

(e) Service of Process

Process may be served by any Mohawk Tribal police officer, by any adult (not interested in the case), or by certified mail with return receipt executed by recipient. The Court may set aside claimed service of process when it finds the process was not in fact received.

2.03.070 Judicial Power and Enforcement of Judgments

(a) The Tribal Court is hereby further empowered with the inherent judicial authority which is necessary and proper to decide civil disputes over which it has jurisdiction (except as otherwise limited in this Code, is limited by the scope of its jurisdiction, and as limited by Tribal sovereign immunity).

(b) The Tribal Court may enforce its judgments using methods and procedures commonly recognized for such enforcement in United States courts, provided that in all enforcement proceedings due process is accorded the parties. When not inconsistent with Mohawk law, custom and practice with Tribal sovereignty and self-determination, enforcement procedures commonly recognized in New York State courts may be utilized by the Tribal Court.

Chapter 2.04 Rules of Evidence

2.04.010 Title and Codification

This chapter shall be known as the Saint Regis Mohawk Tribal Rules of Evidence Act of 2008.

2.04.020 Purpose

The purpose of this Tribal Council action is to establish Rules of Evidence and practice in cases brought into the Courts of the Saint Regis Mohawk Tribe.

2.04.030 Definitions

There are no words or phrases that require statutory definition as part of this enactment.

2.04.040 [Rule 1] Scope and Applicability

(a) These Rules govern proceedings in the Tribal Court of the Saint Regis Mohawk Reservation.

(b) These Rules apply to civil actions and proceedings, to criminal cases and proceedings, to contempt proceedings and to juvenile proceedings.

(c) These Rules do not apply to preliminary examinations in criminal cases; sentencing, or granting or revoking probation or parole; issuance of warrants for arrest; criminal summonses and search warrants; and proceedings covering release on bail.

(d) The Tribal Court may apply the interpretation of similar provisions of the Federal Rules of Evidence in construing these rules. The Tribal Court shall look to the Federal Rules of Evidence for guidance on any matter not covered by these Rules.

2.04.050 [Rule 2] Rulings on Evidence

(a) Effect of Erroneous Ruling. Error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike is made and appears on the record, stating the specific ground for the objection, if such is not obvious from the context; or

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the Court by offer of proof or was apparent from the context within which the questions were asked.

(b) Record of Offer and Ruling. The Court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling. The Court may direct the making of an offer of proof in question and answer form.

(c) Hearing of the Jury. In jury cases, proceedings shall be conducted to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain Error. Nothing in this Rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the Court.

2.04.060 [Rule 3] Preliminary Questions

(a) Questions of Admissibility Generally. Preliminary questions concerning the qualifications of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the Court, subject to the provisions of subdivision of this Rule. In making its determination, the Court is not bound by the Rules of Evidence except those pertaining to privileges.

(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shall admit it subject to the introduction of evidence sufficient to support a finding that the condition of fact was fulfilled.

(c) Hearing of the Jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearing on other preliminary matters shall be conducted when the interests of justice require, or when an accused is a witness and requests a hearing.

(d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(e) Weight and Credibility. This Rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

2.04.070 [Rule 4] Limited Admissibility

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the Court, upon request, shall restrict the evidence to its proper scope and instruct the jury.

2.04.080 [Rule 5] Relevancy and Its Limits / Definition: Generally Admissible

(a) "Relevant evidence" means evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

(b) All evidence is generally admissible, except as otherwise provided by Ordinances, by acts of the Tribal Council, by these rules or other rules prescribed by the Court pursuant to statutory authority.

2.04.090 [Rule 6] Exclusion of Relevant Evidence

Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or it will cause undue delay, waste of time or be a needless presentation of cumulative evidence.

2.04.100 [Rule 7] Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes

(a) Generally. Evidence of the character or character trait of a person is not admissible if it is to be used to prove conduct or for the purpose of proving action in conformity therewith on a particular occasion.

(b) Exceptions

(1) The accused may offer evidence of his own pertinent character traits, and the prosecution may do so to rebut the same.

(2) Evidence of a pertinent character trait of the victim, if offered by the accused, except in rape or assault with intention to commit rape cases, or if offered by the prosecution to rebut the same is admissible.

(3) Evidence of other crimes, wrongs or acts only for the purpose of showing motive, intent, opportunity, preparation, plan, knowledge, identity or absence of mistake or accident.

2.04.110 [Rule 8] Methods of Proving Character Trait

(a) Reputation or Opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into specific instances of conduct.

(b) Specific Instances of Conduct. In cases in which character or trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person's conduct.

2.04.120 [Rule 9] Habit; Routine Practice

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eye witnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

2.04.130 [Rule 10] Subsequent Remedial Measures

If after an event measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the measures is not admissible to prove negligence or culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction in connection with the event. This Rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted or impeached.

2.04.140 [Rule 11] Compromise and Offers of Settlement

Evidence of accepting or offering a compromise of a disputed claim shall not be admissible to prove liability or invalidity of the claim or amount. Evidence of conduct or statements made in compromise negotiations are inadmissible.

2.04.150 [Rule 12] Payment or Offer of Payment of Medical or Similar Expenses

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

2.04.160 [Rule 13] Inadmissibility of Pleas, Plea Discussions, and Related Statements

(a) Except as otherwise provided in this Rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) A plea of guilty which was later withdrawn.

(2) Any statements made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable tribal or state procedure regarding the foregoing plea; or

(3) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

(b) However, such a statement is admissible (a) in any proceeding when another statement made in the course of the same plea or plea discussions has been introduced and the statement ought, in fairness, be considered contemporaneously with it, or (b) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

2.04.170 [Rule 14] Liability Insurance

Evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully. This Rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

2.04.180 [Rule 15] Sexual Behavior

(a) When inadmissible. In a criminal case in which a person is accused of a sexual offense against another person, the following is not admissible:

(1) Evidence of reputation or opinion regarding the other sexual behavior of the victim of the sexual offense alleged.

(2) Evidence of specific instances of sexual behavior of an alleged victim with persons other than the accused offered on the issue of whether the alleged victim consented to the sexual behavior with respect to the sexual offense alleged.

(b) Exceptions. The Rule does not require the exclusion of evidence of:

(1) Specific instances of sexual behavior if offered for a purpose other than the issue of consent, including proof of the source of semen, pregnancy, disease, injury, mistake or the intent of the accused; or

(2) False allegations of sexual offenses; or

(3) Sexual behavior with other than the accused at the time of the event giving rise to the sexual offense alleged.

2.04.190 [Rule 16] Privileges / Policy

It is the policy of the Tribal Court to encourage and foster relationships of trust and confidence. It is believed that the probative value of certain communications is substantially outweighed by the impairment of those relationships which would result from disclosure.

2.04.200 [Rule 17] Privileges / General

The following subsections apply to Rule 16 through Rule 22:

(a) To be privileged a communication must come within these Rules.

(b) Generally the privilege does not cease upon the termination of the relationship.

(d) Communications not made in confidence, e. g., intended to be relayed to third parties, made in the presence of third parties, etc., are not within the privilege.

(e) Waiver of the privilege can only be effected by the holder; i.e., by the client or patient, and not by the professional. In matters of nonprofessional privilege, the waiver can only be affected by the one making the communications.

(f) A third person unknown to the privilege holder cannot testify about the communication between the parties if the conversation took place in a location where there was a reasonable expectation of privacy.

2.04.210 [Rule 18] Attorney-Client Privilege

(a) "Client" a person, corporation, public officer, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who, consults with a lawyer with the view of obtaining professional legal services from the lawyer.

(b) "Lawyer" is a person authorized or reasonably believed by the client to be authorized to practice law in the relevant jurisdiction, state or nation.

(d) A lawyer shall not, without consent of the client, be examined as to any communication made by the client to him, or his advice given in the course of professional representation.

(e) The lawyer's staff, including secretary, clerk, stenographer, etc., shall not be examined concerning any fact or knowledge which was acquired in such capacity.

(f) Exceptions. There is no privilege under this rule where:

(1) The services sought or obtained were to enable someone in the furtherance of a crime or fraud, which the client knew or reasonably should have known to be a crime or fraud;

(2) The communication is relevant to an issue of breach of duty by the lawyer to the client, or by the client to his lawyer;

(3) The communication is relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.

2.04.220 [Rule 19] Doctor-Patient

A physician or surgeon shall not, without the consent of the patient, be examined as to any communication made by the patient with reference to any physical or mental disease or disorder or supposed physical or mental disease or disorder or as to any such knowledge obtained by personal examination of the patient. The patient has the privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis, treatment, or consultation of the patient's physical or mental condition, among himself, the physician or any persons who are participating in the diagnosis, treatment or consultation under the direction of the physician.

(a) A "physician" is a person authorized to provide medical services, treatment, diagnosis or consultation including a person trained in the Native American healing practices in a state or tribe or reasonably believed by a patient to be so.

(b) A "patient" is a person who consults, or is examined or interviewed by a physician.

(c) The patient, by placing his medical condition at issue, i.e., by filing a personal injury suit, waives this privilege.

2.04.230 [Rule 20] Clergy-Penitent

A person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as a spiritual advisor.

(a) A "clergyman" is a minister, priest, rabbi, Native American spiritual leader or other similar functionary of a religious organization, including such which is recognized by the customs of the Tribe, or an individual reasonably believed to be so by the person consulting him.

(b) A clergyman may claim the privilege on behalf of the person, if that person has not done so nor waived the privilege. Such authority is presumed absent evidence to the contrary.

2.04.240 [Rule 21] Husband-Wife

(a) Anti-Marital Fact. In any action before the Court, a husband may not be examined for or against his wife without her consent, and a wife may not be examined for or against her husband without his consent, as to events occurring during the marriage.

(b) Communications. Neither husband nor wife may be examined during the marriage or after the marriage as to any communication made by one or the other during the marriage without consent of the other, i.e., the speaker. Only the speaker may waive this privilege.

(1) In any action for divorce or a civil action by one against the other, the privileges are waived.

(2) In a criminal action or proceeding for a crime committed by one against the other, or in a criminal proceeding for abandonment, failure to support or provide for, or failure or neglect to furnish the necessities of life to the spouse or the minor children, the privileges are waived.

2.04.250 [Rule 22] Waiver

A person upon whom the Rule confers a privilege against disclosure of confidential matters or communications waives the privilege if the person, while the holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the matter or communication.

2.04.260 [Rule 23] Witnesses; Competence; Personal Knowledge

Every person is competent to testify except as otherwise provided by the Rules or by statute.

A witness may not testify about a matter unless it is shown that the witness has personal knowledge about the matter. Such a showing may, but need not, consist of the witness' own testimony. The Rule is subject to Section 2.04.460; Rule 43, regarding opinion testimony of experts.

2.04.270 [Rule 24] Oath or Affirmation

Before testifying in the Tribal Court, every witness shall first state before the judge, parties, and spectators that he will testify truthfully pursuant to an oath prescribed by the Court.

2.04.280 [Rule 25] Interpreters]

All interpreters before the Court are subject to the administration of an oath or affirmation to make a true interpretation.

2.04.290 [Rule 26] Competency of Judge or Juror as Witness

(a) The judge presiding at trial may not testify in that trial as a witness.

(b) A member of the jury may not testify at a trial in which the juror is sitting as a trier of fact.

2.04.300 [Rule 27] Who May Impeach

The credibility of a witness may be attacked by any party, including the party calling the witness to testify.

2.04.310 [Rule 28] How a Witness' Credibility May Be Attacked

(a) The witness' credibility may be attacked or supported by evidence of opinion or reputation, provided the evidence refers to truthfulness or untruthfulness; and evidence of truthfulness is admissible only when it has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct of a witness, for the purpose of attacking or supporting his credibility, may only be inquired into on cross examination, concerning the witness' truthfulness or untruthfulness. The Rule does not operate as a waiver of the privilege against self-incrimination.

2.04.320 [Rule 29] Impeachment by Evidence of Conviction of a Crime

(a) For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted, if it is elicited from the witness or established by public record, during cross examination, but only if the crime:

(1) Was punishable by death or imprisonment in excess of one (1) year pursuant to the law under which he was convicted; or

(2) It involved dishonesty or false statement, regardless of the punishment.

(b) Evidence under the Rule is not admissible if ten (10) years have elapsed since the date of conviction or date of release from the confinement for that conviction whichever is the later date; nor shall juvenile adjudications be admissible.

2.04.330 [Rule 30] Mode and Order of Interrogation and Presentation

(a) Control by Court; The Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence as to:

(1) Make the interrogation and presentation effective for the ascertainment of the truth, and

(2) Avoid needless consumption of time, and

(3) Protect witnesses from harassment or undue embarrassment.

(b) Scope or Cross-Examination; Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The Court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading Questions; Leading questions shall not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Leading questions shall be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

2.04.340 [Rule 31] Writing Used to Refresh Memory

If a witness uses a writing to refresh memory for the purpose of testifying either:

(a) While testifying, or

(b) Before testifying, the Court may determine in the interest of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross examine the witness, and to introduce in evidence the portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the Court shall examine the writing, excise any portions not related, and order delivery of the remainder to the party entitled. Any portion withheld over objections shall be preserved and made available to the Appellate Court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this Rule, the Court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one ruling out the testimony or, if the Court in its discretion determines that the interests of justice so require, declaring a mistrial.

2.04.350 [Rule 32] Prior Inconsistent Statement of Witnesses

(a) When examining a witness regarding a prior statement made by him, the statement need not be disclosed to the witness at that time; but upon request it shall be shown or disclosed to opposing counsel.

(b) Evidence of a prior inconsistent statement made by a witness is not admissible unless the witness is given an opportunity to explain or deny it, and the opposing party is afforded an opportunity to interrogate the witness.

The Rule does not apply to the Admissions by the Party Opponent covered under the Saint Regis Mohawk Rules of Evidence, Section 2.04.400, Rule 37 (b).

2.04.360 [Rule 33] Calling and Interrogating of Witness by Court

(a) Calling by the Court. The Court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses called.

(b) Interrogation by the Court. The Court may interrogate witnesses, whether called by itself or by a party.

(c) Objections. Objections to the calling of witnesses by the Court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

2.04.370 [Rule 34] Exclusion of Witnesses

At the request of a party or, on its own motion, the Court shall order witnesses to be excluded from the Court room, so that they cannot hear the testimony of other witnesses. This rule does not apply to:

(a) Parties

(b) Officer or employee of a party

2.04.380 [Rule 35] Hearsay: Definitions

The following definitions apply to this section.

(a) A "Statement" is

(1) Oral or written assertion, or

(2) Nonverbal conduct of a person, if it is intended by him to be an assertion.

(b) "Declarant" is the person who makes the statement.

(c) "Hearsay" is a statement other than one made by the declarant, made out of court, offered in evidence to prove the truth of the matter asserted.

2.04.390 [Rule 36] Inadmissible

Hearsay is not admissible except as provided by these Rules.

2.04.400 [Rule 37] Statements Which Are Not Hearsay

(a) Prior statements by witness. Prior statement by witness is not hearsay when the declarant testifies and is subject to cross-examination, and the statement is:

(1) Inconsistent with the declarant's testimony and given under oath subject to penalty of perjury, or

(2) Consistent with the declarant's testimony and is offered to rebut and expressed or implied charge against the declarant of recent fabrication or improper influence or motive, or

(3) One of identification of a person made after perceiving the person.

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

(1) The party's own statement, or one which the party has manifested an adoption or belief in its truth, or

(2) A statement by a person authorized by the party to make a statement, or

(3) A statement by the party's agent or servant acting within the scope of agency or employment, or

(4) A statement made by a co-conspirator of a party during the course and in furtherance of the conspiracy.

2.04.410 [Rule 38] Hearsay Exception: Availability of Declarant Material

The following are not excluded by the Hearsay Rule, even though the declarant is available as a witness:

(a) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately after.

(b) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(c) Statements for Purpose of Medical Diagnosis or Treatment. Statements made for the purpose of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character or the cause or external source insofar as reasonably pertinent to diagnosis or treatment,

(d) Recorded Recollection. A memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(e) Business Records, A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of ever kind, whether or not conducted for profit.

(f) Public Records and Reports. Records, reports, statements, or data compilations, in any form, or public offices or agencies, setting forth:

(1) The activities of the office or agency, or

(2) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or

(3) In civil actions and proceedings and against the government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

2.04.420 [Rule 39] Hearsay Exceptions: Declarant Unavailable

(a) Definition of "Unavailability:" A declarant is unavailable in situations where the declarant:

(1) Is exempted by ruling of the Court on the grounds of privilege from testifying;

(2) Persists in refusing to testify despite an order of Court to do so;

(3) Testifies to a lack of memory;

(4) Is unable to be present because of death or then existing physical or mental illness or infirmity;

(5) Is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance by process or other reasonable means.

(b) Declarant is not unavailable as a witness if that unavailability is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying.

(1) Former testimony. Testimony which was given under oath at the same or different proceeding, so long as the party offering the evidence, or a predecessor in interest in a civil action, has an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.

(2) Statement against interest. A statement, at the time made, that is contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to criminal or civil liability, that a reasonable person in the declarant's position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances indicate the trustworthiness of the statement.

(3) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceedings, a statement made by a declarant while believing that the declarant's death was imminent concerning the cause or circumstances of what the declarant believed to be impending death.

2.04.430 [Rule 40] Hearsay Within Hearsay

Hearsay included within hearsay is not excluded under the Hearsay Rules if each part of the combined statements conforms independently with an exception to the Hearsay Rules provided.

2.04.440 [Rule 41] Attacking and Supporting Credibility of Declarant

When a hearsay statement, or statement defined in Section 2.04.400, Rule 37 (b) (1-4), has been admitted into evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would have been admissible for such purposes had the declarant testified. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross examination.

2.04.450 [Rule 42] Opinion and Expert Testimony: Opinion Testimony by Lay Witness

If the witness is not testifying as an expert, the witness' testimony in the form of opinion is limited to those which are:

(a) Rationally based on the perception of the witness, and

(b) Helpful to a clear understanding of the witness; testimony or a determination of a fact in issue.

2.04.460 [Rule 43] Testimony by Experts

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of opinion or other.

(b) The facts or data in the case, upon which the expert bases an opinion or interference may be those perceived by or made known to the expert at or before the hearing. If the facts or data are of such a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

2.04.470 [Rule 44] Bases of Opinion Testimony by Experts

The expert may testify in terms of opinion or inference and give reasons without prior disclosure of the underlying facts or data, unless the Court requires otherwise. However, the expert may be required to disclose such facts or data on cross-examination.

2.04.480 [Rule 45] Court Appointed Experts

(a) The Court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations.

(1) The Court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection.

(2) Upon consenting to act, the witness shall be informed of the duties, either in writing by the Court, copy to be filed with the clerk, or at a conference in which the parties may participate.

(3) A witness shall advise the parties of his findings, if any; his deposition may be taken by any party; the witness may be called to testify by the Court or any party; the witness shall be subject to cross-examination by each party, including the party calling the witness.

(b) Compensation. The Court shall determine appropriate compensation.

(c) Disclosure. In the exercise of its discretion, the Court may authorize disclosure to the jury of the fact that the Court appointed the expert witness.

(d) Nothing in the rule limits either party from calling expert witnesses of their own selection.

2.04.490 [Rule 46] Authentication and Identification:

Requirement of Authentication or Identification

(a) General. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what it's proponent claims.

(b) Illustrations. The following are illustrative examples conforming with this Rule, and are not limitations:

(1) Testimony by a witness with knowledge that the matter is what it claimed to be.

(2) Characteristics in appearance, contents, substance, internal patterns, taken in conjunction with circumstances which support that the matter is what it is claimed to be.

(3) Voice identification: Identification of a voice, whether heard or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any other time under circumstances connecting it with the alleged speaker.

(4) Telephone conversations, by evidence that a call was made to the number assigned at the time by the phone company to a person or business, if:

(A) To a person, circumstances include self-identification, showing the person answering the phone to be the one called, or

(B) To a business, the call was made to a place of business and the conversation related to business reasonably transacted over the phone.

(5) Public records or reports: Evidence that a writing authorized by law to be recorded or filed and in fact was recorded or filed in the public office where such items are kept.

2.04.500 [Rule 47] Self-Identification

Extrinsic evidence of the authenticity as a condition precedent to admissibility is not required for the following:

(a) Official Public Documents. Documents bearing the official seal and attesting or executing signature of the United States, any State, Indian Tribe or Nation, district, territory, political subdivision, department or agency.

B, Public Documents. Documents without official seal by purporting to have authorizing signature of official or employee of any entity included in paragraph (A) above, who has the official capacity to certify under seal and such signature is genuine.

(b) Foreign Documents. Documents purporting to be executed or attested in an official capacity by a person authorized under the laws of a foreign country, to make such an execution and accompanied by a final certification as to the genuineness of the signature and official position of:

(1) The executing or attesting person, or

(2) Any foreign official whose certification of genuineness relates to the execution or attestation. Final certification may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or the United States or a diplomatic or consular official of the foreign country assigned to the United States.

(c) Certified Copies of Public Documents: A copy of an official record or report or entry, or of a document authorized by law to be recorded or filed and actually is filed or recorded in a public office, certified as correct by the custodian or other persons authorized to make the certification, which complies with paragraphs (a), (b) or (c) of this Rule.

(d) Official Publications: Books, pamphlets, or other publications supporting to be issued by a public authority.

(e) Newspapers and Periodicals: Printed materials purporting to be a newspaper or periodical.

(f) Signs, Tags. Labels: Inscription, signs, tags, labels purporting to have been affixed in the course of business and indicating ownership, control or origin.

(g) Documents including a certification of acknowledgement executed in the manner provided by law by a notary public or other officer authorized by law to make acknowledgments.

(h) Commercial paper, signatures, and documents relating to the extent provided by general commercial law.

2.04.510 [Rule 48] Contents of Writings. Recordings and Photographs: Definitions

(a) "Writings" and "recordings" consist of letters, words, numbers or their equivalent, set down by handwriting, typewriting, printing, photocopying, photographing, magnetic impulse, mechanical or electronic recording or other forms of data compilation.

(b) "Photographs" include still photographs, x-ray films, video tapes, and motion pictures.

(c) An "original" of a written or recording is the best thing itself, or any counterpart intended to have the same effect by a person executing or issuing it. An "original" photograph includes the negative or any print. If data is stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately is an original.

(d) "Duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography including enlargements and miniatures, or by mechanical or electronic re-recordings, or by chemical reproduction, or by other equivalent technique which reproduces the original.

2.04.520 [Rule 49] Requirement of Original

To prove the content of a writing, recording or photograph, the original is required, except as provided in this Article.

Chapter 2.05 Rules of Civil Appellate Procedure

2.05.010 Title and Codification

This Ordinance shall be known as the Saint Regis Mohawk Tribal Rules of Civil Appellate Procedure.

2.05.020 Scope of Rules

(a) These Rules govern procedure in appeals to the Saint Regis Mohawk Court of Appeals from any final judgment of the Saint Regis Mohawk Tribal Court.

(b) Any procedure, issue, question or other matter not covered by these Rules shall be governed by the federal Rules of Appellate Procedure.

2.05.030 Right of Appeal

(a) Any aggrieved party may appeal from a final judgment of the tribal court. A final judgment is one that disposes of all issues in the case.

(b) Failure to file an appeal within the time limits imposed by Rule 3 shall result in the dismissal of the appeal.

(c) Failure to follow any procedure required by these Rules, other than the timely filing of a notice of appeal, shall not affect the validity of the appeal, but is grounds only for such action as the appellate court deems appropriate, which may include dismissal of the appeal.

(d) Appeals may be considered by order of the appellate court upon its own motion, or upon motion of a party, or by stipulation of the parties to the several appeals.

2.05.040 Suspension of Rules

Except as provided in Section 2.05.060, Rule 4(b), the Appellate Court may, upon motion for good cause shown, suspend the requirements or provision of any of these Rules in a particular case, and may order proceedings accordingly within its discretion. These Rules shall be liberally construed in the furtherance of justice.

2.05.050 [Rule 3] Filing and Service

(a) Filings; Form of Papers; Number of Copies.

All papers required or permitted to be filed in the Appellate Court shall be filed with the Clerk of the Appellate Court. All papers filed shall be typewritten and double spaced. Quotations may be single spaced. The paper shall contain a caption stating the Saint Regis Mohawk Tribal Appellate Court, the title of the case, the case number and a brief descriptive title. All filings, except those provided by Section 2.05.100, Rule 8, shall consist of an original and four (4) copies. Filing may be accomplished by certified mail addressed to the Clerk, but filing shall not be made timely unless the papers are received and stamped by the Clerk within the time scheduled for filing.

(b) Service of All Papers Required; Notice By the Court Manner of Service

Copies of all papers filed by any party shall be served by a party or person acting for him or her, who is over the age of eighteen (18), on all other parties to the appeal at or before the time of filing. This Rule shall not apply to the transcript filed pursuant to Section 2.05.100, Rule 8. Service may be personal or by mail. Personal service includes delivery of the copy to counsel, or a clerk, or other responsible person over the age of eighteen (18) at the office of counsel, or to any pro per party. Service by mail is complete upon mailing. Service of copies of notice and papers that the Clerk of the Appellate Court must serve on parties to the appeal shall also be made in accordance with the foregoing.

Papers presented for filing shall contain an acknowledgement of service by the person served, or proof of service in the form of a statement of the date and manner of service and of the name of the person served, signed by the person who made service. Proof of service may appear on or be annexed to the paper filed.

(d) Service on Attorney or Guardian Ad Litem; Substitution; Notice.

Attorneys or guardians ad litem in the Court or at the administrative hearing will be deemed attorneys and guardians ad litem of the same parties in the Appellate Court until a substitution is made or there has been an appropriate withdrawal. Service of notices, briefs and all paper shall be made, when appropriate under these Rules, on such attorneys or guardians ad litem until a substitution is made and notice given to all other parties.

2.05.060 [Rule 4] Computation, Shortening or Extension of Time

(a) Computation of Time

In computing time limits required by these Rules, or by order of the Appellate Court, or by any applicable law, the day of the act, event or judgment shall not be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or court holiday, in which case the period shall extend to the end of the next business day which is not Saturday, Sunday or court holiday.

(b) Shortening or Extension of Time

The time for doing any of the acts provided for in these Rules, or by order of the Appellate Court, or by any applicable statute or ordinance, may be shortened or extended upon stipulation and approval by the Appellate Court, or upon written motion for good cause shown, but the Appellate Court may not shorten or extend the time for filing a Notice of Appeal.

Whenever a party is required or permitted to do an act within a prescribed period after the filing of a paper and the paper is served on the party by mail, five (5) days shall be added to the prescribed period.

2.05.070 [Rule 5] Motion

(a) Contents of Motions; Responses; Reply

An application for an order or other relief shall be made by filing a written motion. The motion shall contain or be accompanied by any matter required by a specific provision of these Rules governing such a motion, shall specifically state the grounds on which it is based, and shall set forth the order or relief sought. Any party may file a response to a motion within twenty (20) days after service of the motion. The moving party may file a reply memorandum within ten (10) days after service of the response. The reply memorandum shall be confined to rebuttal of points argued in the response to the motion.

(b) Motions on Papers, Requiring Supporting Affidavits or Other Evidence

Motion papers which rely on facts not apparent in the record, and of which the Appellate Court cannot take judicial notice, shall be supported by affidavit or other satisfactory evidence.

Notwithstanding the preceding subsections, motions for procedural orders may be acted upon at any time without awaiting a response. Any such motion must contain an affidavit containing the following:

(1) The reason why the motion constitutes a motion for procedural order and can be acted upon without a response; and

(2) A description of all efforts to secure a stipulation from adverse counsel and the reason why the stipulation has not been obtained.

The majority of the Justices of the Appellate Court may grant a motion for a procedural order without awaiting a response. Any party adversely affected by the granting of a procedural order may file a motion requesting rehearing, vacation, or modification of the order.

(d) Oral Argument

Motions shall be considered and decided without oral argument unless otherwise ordered.

2.05.080 [Rule 6] How Appeals Are to Be Taken

(a) Filing of the Notice of Appeal

All appeals shall originate by filing a Written Notice of Appeal with the Clerk of the Appellate Court. A certified copy of the judgment, order, or administrative decision being appealed, signed by the Judge or hearing officer and dated, must be attached to the Notice of Appeal, and the filing fee must be paid at the time of filing.

(b) Filing Fee

The Clerk shall not accept any appeal for filing and no appeal shall be considered filed until the filing fee has been paid and a copy of the final judgment has been attached. Filing fees shall be established by the Appellate Court and become effective upon thirty (30) days notice to the public.

The Notice of Appeal shall state the title of the Saint Regis Mohawk Tribal Court and of the action; shall specify the party or parties taking the appeal; shall designate the judgment or part appealed from; shall name the court or administrative agency from which the appeal is taken; and shall be signed by the attorney, or if the party is not represented by an attorney, then by the party taking the appeal. The Notice of Appeal shall conform to Form 1 in the Appendix of Forms.

(d) Service of the Notice of Appeal

The Notice of Appeal and any motion or other papers filed in support of an appeal shall be served in accordance with Section 2.05.050, Rule 3(b). Service shall be sufficient notwithstanding the death of a party or counsel.

(e) Filing of Notice of Appeal with the Court or Administrative Agency

The appellant shall file a copy of the Notice of Appeal with the Tribal Court or the Administrative agency and shall have this copy dated by the Tribal Court clerk or the administrative agency. The Tribal Court or administrative agency shall be notified of the appeal in the above manner no later than the same day the Notice of Appeal is filed with the Appellate Court.

2.05.090 [Rule 7] When Appeals May Be Taken

(a) Time; Personal Representative; Cross-Appeal

The Notice of Appeal required by Section 2.05.080, Rule 6 shall be filed no later than thirty (30) days after the entry of the judgment from which the appeal is taken, unless a different time is provided by law. If a party dies during the time he is entitled to take an appeal, the appeal may be taken by his personal representative within ninety (90) days after the death of the party. A notice of cross-appeal may be filed by an opposing party within twenty (20) days from the date the Notice of Appeal is filed.

(b) Extension of Appeal Time

When any of the following motions are timely filed, the time of appeal is extended, and times set forth in this section, Rule 7(a) shall be computed from the entry of any of the following orders:

(1) Granting or denying a motion for judgment notwithstanding the verdict.

(2) Granting or denying a motion to amend or make additional findings of fact whether or not granting the motion would alter the judgment.

(3) Granting of denying a motion to alter or amend the judgment.

(4) Denying a motion for a new trial.

If more than one of the motions is timely filed, the expiration of the time for appeal is to be computed from the date of the entry of the order which disposes of the last remaining motion. When a motion to amend or make additional findings of fact is granted, the time begins to run when the amendment or addition has been accomplished by the Court Order. The same applies to the granting of a motion to amend or alter the judgment. Entry of an order occurs when the judge or hearing officer signs and dates the order.

2.05.100 [Rule 8] Record on Appeal

(a) Composition of Record on Appeal; Transmission of Record

(1) The papers making up the record on appeal to the Appellate Court shall be on the original paper, exhibits and other objects filed with the Court Clerk or administrative agency, a reporter's transcript, the transcription of any electronic recording or narrative or agreed statement and copies of all entries. The Tribal Court Clerk or administrative agency shall make and retain copies of original papers, exhibits, and objects as are capable of being copied before transmittal to the Appellate Court.

(2) The Tribal Court Clerk shall number the items comprising the record, and shall transmit the record to the Appellate Court, together with an appropriate index listing the contents of the record and the number, within thirty (30) days from the date of filing the notice of appeal. The Tribal Court Clerk shall serve a copy of the index upon all parties to the appeal. If a time extension is desired, the appellant may obtain an order from the court extending the time for transmitting the record to not more than forty-five (45) days from the date of the first Notice of Appeal, application by the appealing party shall be made to the Appellate Court. The order for extension must be made before the extension of the period for transmittal as originally prescribed or as extended by previous order. If a transcript cannot be obtained within forty-five (45) days from the date of the first Notice of Appeal, application by the appealing party shall be made to the Appellate Court for relief.

(3) The parties to an appeal may agree by written stipulation that any portion of the record on appeal need not be transmitted to the Appellate Court. Either party may include copies of any of the papers making up the record on appeal as an appendix to their briefs.

(b) The Transcript of Proceedings; Duty of Appellant to Order; Notice of Appellee if Partial Transcript Is Ordered

(1) No later than ten (10) days after filing the Notice of Appeal, the appellant shall order from the court reporter or transcriber an original and one copy of a transcript, of such parts of the proceedings necessary for inclusion in the record. If the Appellant intends to argue on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion.

(2) Unless the entire transcript is to be included, the appellant shall, within the time provided in this section, Rule 8(b)(1), file a description of the parts of the transcript which he intends to include in the record and a concise statement of the issues he intends to present on appeal, a copy of which shall be served by appellant on appellee. If the appellee deems a transcript of other parts of the proceedings to be necessary, he shall within ten (10) days after the service of the statement of the appellant, file a designation of additional parts to be included. If the appellant refuses to order such parts, he shall within five (5) days notify the appellee in writing of such refusal. The appellee may either order the parts or apply to the Appellate Court for an order requiring the appellant to do so. At any time prior to the submission to the Appellate Court for a decision, a party may apply to the Appellate Court to include any additional part of the transcript.

(3) At the time of ordering, the party shall make satisfactory arrangement with the court reporter or transcriber for payment of the cost of the transcript and file a notice with the Appellate Court to that effect. Failure or delay in making satisfactory arrangements with the court reporter or transcriber shall be cause for such sanctions as the Appellate Court deems proper pursuant to Section 2.05.300, Rule 28.

(4) The appellant shall file an original and one copy of the transcript with the Tribal Court Clerk or administrative agency, within the period of time for transmitting the record stated in this section, Rule 8 (a). Notice of the filing of the transcript shall be served by the appellant upon the other parties to the appeal. If there is one appellee, the Court Clerk shall mail a copy of the transcript to him or her. If there is more than one appellee, the copy of the transcript shall remain with the Court Clerk and shall be available for the use of all appellees and shall be released to one of the appellees only upon stipulations of all the appellees, or upon order of the court.

(5) The transcript shall not contain voir dire of jurors, or any other matters preceding the impaneling of a jury, or the opening statements of counsel to the jury, or any part, unless requested by one of the parties to be contained in the transcript.

(6) The parties shall not include in the transcript any matter not essential to the decision of questions presented by the appeal. For any infraction of this Rule, the Appellate Court may impose sanctions pursuant to Section 2.05.300, Rule 28.

If a transcript is unavailable, the appellant may prepare and file with the Tribal Court or administrative agency a sworn narrative statement of the evidence or proceedings from the best available means, including appellant's recollection. The sworn statement shall be filed within thirty (30) days after filing the Notice of Appeal. The appellee may file objections or propose amendments within ten (10) days after service. If the appellant does not intend to file a sworn statement, he shall notify the appellee and the appellee may prepare and file a sworn statement within the time remaining, and the appellant may file objections or propose amendments within ten (10) days after service.

(d) Agreed Statements in Lieu of Transcript

In lieu of the transcript, the parties may stipulate and file an agreed statement in the Tribal Court or administrative agency setting forth evidence or proceedings as are essential to a decision of the issues presented on appeal which shall be filed within thirty (30) days after filing the Notice of Appeal.

(e) Correction or Modification of the Record

If a dispute arises as to whether the record discloses what actually occurred in the Tribal Court or in the administrative proceeding, the difference shall be submitted to and settled by that court or agency, and the record made to conform to the truth. If material is omitted from the record by error or accident or is misstated, the parties upon stipulation, or the Tribal Court upon motion, may direct that the omission or misstatement be corrected. An amended record shall be transmitted to the Appellate Court.

(f) Several Appeals

When more than one appeal is taken from the same judgment, a single transcript (or narrative statement of the evidence or agreed statement) shall be prepared containing all the matters designated or agreed upon by the parties, without duplication.

(g) Certification of Copies of Relevant Portions of Original Record of Preliminary Hearing in the Appellate Court

If prior to the time the record is transmitted, a party files a motion for dismissal, for a stay pending appeal, or for any intermediate order, that party or the party responding to the motion, shall attach to the motion a copy of those portions of the original record which are relevant. The Tribal Court Clerk or administrative agency shall attach to the copy a certification stating that the attached portions of the record are true copies of the Tribal Court or administrative record.

2.05.110 [Rule 9] Docketing the Appeal; Filing of the Record

(a) Docketing the Appeal

The appellant shall pay to the Clerk of the Appellate Court the required filing fee within the time provided. The Clerk shall enter the appeal upon the docket. An appeal shall be docketed under the title given to the action in the Court or the administrative agency with the appellant identified as such, but if the title does not contain the name of the appellant, his name, identified as appellant, shall be added to the title.

(b) Filing of the Record

Upon receipt of the record by the Clerk of the Appellate Court and after the appeal has been timely docketed, the Clerk shall file the record and immediately give notice to all parties of the date of filing.

If the appellant fails to timely transmit or to pay the filing fee if a filing fee is required, the Appellate Court shall dismiss the appeal on its own motion.

2.05.120 [Rule 10] Briefs

(a) Brief of the Appellant

The appellant's brief shall clearly state under appropriate headings and in the order indicated:

(1) A table of contents with page references.

(2) A table of citations, which shall be arranged alphabetically and case indexed with authorities cited, with reference to the pages of the briefs on which they are cited.

(3) A brief statement of the case, proceedings, and the disposition in the Tribal Court or administrative agency below.

(4) A statement of relevant facts to the issues presented for review, with appropriate references to the record. The statement shall not contain evidentiary matters unless material to a proper consideration of the issues is presented, in which instance reference shall be made to the record or page of the transcript wherever such evidence appears.

(5) A statement of the issues presented for review which shall be deemed to include every subsidiary issue comprised within.

(6) An argument, which shall contain the contentions of the appellant with respect to the issues presented, and the reasons, with citations to the authorities, statutes, ordinances and parts of the record relied on. The argument may include a summary. Citations of authorities shall be to the volume and page number of the official reporters and also when possible to the unofficial reporters and other sources.

(7) A short conclusion stating the relief sought.

(b) Brief of the Appellee

The Appellee's brief shall conform to the preceding subsection, except that a statement of the case, a statement of the proceedings, a statement of the facts, or a statement of the issues need not be included unless the appellant considers it to be insufficient or incorrect.

The appellant may file a reply brief, but it shall be confined to rebuttal of points argued in the appellee's brief. No further briefs may be filed except as provided in Section 2.05.140, Rule 12.

(d) Reproduction of the Tribal Code Provisions, Tribal Council Regulations, Applicable Statues, Rules, Regulations and Instructions; The Appendix

If the determination of the issues presented requires the study of the Tribal Code provisions, Tribal Council Resolutions, rules, applicable statutes, ordinances, regulations or instructions given or refused, the relevant parts of any of the foregoing shall be reproduced in the brief or in an appendix to the brief. An appendix may include additional items of the record, as provided in Section 2.05.100, Rule 8(a) (3). An appendix may include extended quotations from cases and authorities where quotations are required for proper presentation of the issues.

(e) Briefs in Cases Involving Cross-Appeals

A party who files a cross-appeal may combine in one brief his brief as appellee and as cross-appellant. If the appellant files a further brief, he may combine in one brief his reply brief as appellant and as cross-appellee. The cross-appellant may file a reply brief on the issues of cross-appeal.

(f) Briefs Involving Multiple Appellants or Appellees

In cases involving more than one appellant or appellee, including cases consolidated for appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another.

2.05.130 [Rule 11] Filing of Briefs

(a) Time for Filing Briefs

The appellant shall file his brief and four (4) copies within thirty (30) days after the Clerk of the Appellate Court mails the notice required by Section 2.05.110, Rule 9(b). The appellee shall file his brief and four (4) copies within thirty (30) days after service of the appellant's brief. The appellant may file a reply brief and four (4) copies within fifteen (15) days after service of the appellee's brief, or the appellant may file a notice that no reply brief will be filed, at which time the appeal shall be "at issue." Otherwise, the appeal shall be "at issue" upon the filing of the reply brief or fifteen (15) days after service of the appellee's brief, whichever occurs first.

(b) Service of Briefs

One copy of each brief shall be served on each party separately represented and proof of service shall be filed with the Clerk of the Appellate Court.

If an appellant does not timely file a brief, the Appellate Court, upon Appellee's motion, may dismiss the appeal. If the appellee does not timely file a brief, the appeal may be decided on the appellate record.

2.05.140 [Rule 12] Amicus Curiae

An amicus curiae brief shall be filed only with permission of the Appellate Court. The motion shall identify the interest of the applicant, state that the applicant has read the briefs of the parties, and reason why applicant's amicus curiae brief is necessary. Any response to an amicus curiae brief shall be filed within fifteen (15) days after service. No further briefs shall be allowed. Section 2.05.120, Rule 10 shall govern the form of an amicus curiae brief.

2.05.150 [Rule 13] Supplemental Citation of Legal Authority

Any party may supplement the citation of legal authority previously presented to his brief by filing with the Appellate Court a list of supplemental citations of legal authority. The list of citations shall identify by page number which portion or portions of the party's appeal brief is intended to be supplemented. Supplemental citations shall not be governed by Section 2.05.120, Rule 10(a) (2).

2.05.160 [Rule 14] Conference

The Appellate Court may direct the attorneys for the parties to appear before the Appellate Court for a conference to simplify the issues, and to address other matters which may aid the Appellate Court in the disposition of the proceeding.

2.05.170 [Rule 15] Oral Argument

(a) Appeal Granted may be scheduled for Oral Argument

The clerk of the Appellate Court shall notify the parties of the date, time and place at which oral argument will be heard at least twenty (20) days prior to the date scheduled for oral argument. Cases given priority pursuant to Section 2.05.280, Rule 26 shall be scheduled as directed by the Appellate Court.

(b) Disqualification of Justice

Any justice may be disqualified on motion of one of the parties or on his own motion. When any justice is disqualified, the Chief Justice shall name another Justice to complete the panel. A motion to disqualify a Justice shall be made at least ten (10) days prior to the date set for the oral argument. The motion shall state the grounds on which it is based and it shall be supported by affidavit or other satisfactory evidence.

If either party fails to appear at the time set for the hearing of the appeal, the Appellate Court may hear the argument presented by the party appearing and decide the appeal on the basis of the presentation and of the briefs submitted.

(d) Decision on the Basis of Briefs Alone

The Appellate Court may, within its discretion or if the parties stipulate, decide the appeal on the basis of the briefs alone.

2.05.180 [Rule 16] Notice of Decisions and Orders

Immediately after a decision is rendered or an order is made in any appeal, the Clerk of the Appellate Court shall notify all attorneys of record, and any party not represented by an attorney pursuant to Section 2.05.050, Rule 3(b). The notice shall state the date on which the decision was rendered or the order made, and shall include a copy of any opinion, memorandum, decision, or order respecting the decision. The date of notice shall be entered in the docket.

2.05.190 [Rule 17] Costs and Attorney's Fees

(a) Statement of Costs; Objections

A party entitled to costs may, within ten (10) days after the Clerk has given notice that a decision has been rendered, file with the Clerk a verified itemized costs of appeal. An adverse party may file objections to the statement of costs within five (5) days after service of such statement. If no objections are filed, the clerk may compute the cost in accordance with these rules. If objections are filed, the party entitled to costs may reply within five (5) days after service of the objections. The Appellate Court shall determine the amount of costs, if any, to be allowed.

(b) Costs of Briefs; Appendices

The allowance for cost of the copies of briefs and appendices shall be the amount expended.

(1) When attorney's fees are claimed pursuant to statute, law, or contract, a request for allowance of attorney's fees in connection with the prosecution or defense of the appeal shall be by written motion filed and served prior to oral argument or submission of the appeal. If recovery of attorney's fees is allowed by the Appellate Court in its decision, a statement of the amount claimed for such fees may be included in the statement of costs prescribed by this section, Rule 17(a).

(2) The statement of the amount claimed for attorney's fees shall set forth any relevant statutory or contractual provision and any other factors relevant to the determination of a reasonable fee. Counsel shall also attach and submit an affidavit containing an itemized statement of hours, indicating the following:

(A) The date on which the service was performed

(B) The time and costs expended on such date

(D) The name and title of the persons performing the service.

(d) Clerk to Insert Costs in Mandate

The clerk shall include in the mandate an itemized statement of any attorney's fees and costs allowed on appeal.

2.05.200 [Rule 18] Petition for Reconsideration

(a) Time for Filing; Response

Any party seeking reconsideration of a decision of the Appellate Court shall file a petition for reconsideration with a supporting memorandum with the Clerk of the Appellate Court within twenty (20) days after the Clerk has notified the parties that a decision has been rendered by the Appellate Court. The petition shall not be amended except by leave of Court.

Any adverse party may file a response to the petition within fifteen (15) days after service of the petition and memorandum. Failure to file a response shall not be considered an admission that the petition should be granted.

(b) Contents

A petition for reconsideration and supporting memorandum shall be directed to the discussion of the matters of law in which it is claimed that the Appellate Court erred.

After a petition for reconsideration is filed, the Justices who heard the appeal may deny it or if they believe it has merit, they may set it for oral argument before the original Justices with notice to all parties. No single Justice shall have authority to modify the decision or to order any temporary stay of execution of an Appellate Court decision.

(d) Petitions Not Permitted

Unless permitted by order of the Appellate Court, no party shall file a petition for reconsideration of:

(1) An order denying a petition for reconsideration; or

(2) An order declining to accept jurisdiction of a petition for special action; or

(3) A decision denying an appeal.

2.05.210 [Rule 19] Issuance of Mandates

(a) Mandates by Appellate Court

(1) If a petition for reconsideration has not been filed, the Clerk of the Appellate Court shall issue the mandate at the expiration of the time for filing the petition.

(2) If a petition for reconsideration has been filed, the mandate shall not issue until the disposition of the petition.

(3) The papers making up the record on appeal, transmitted by the Clerk of the Tribal Court or administrative agency to the Appellate Court pursuant to Section 2.05.100, Rule 8(a) (1), shall be returned with the mandate to the Clerk of the Court or to the administrative agency.

(b) Dismissal in the Appellate Court

If the parties to an appeal file with the Clerk of the Appellate Court a stipulation that the proceeding be dismissed, indicating the terms as to payment of costs and after all fees are paid, the Appellate Court shall dismiss the case. An appeal may be dismissed on motion of the party appealing or if there are multiple appellants, the appeal may be dismissed only to the appellant motioning the dismissal.

2.05.220 [Rule 20] Substitution of Parties

(a) Death of a Party

If a party to an appeal dies while the appeal is pending, the action shall not cease unless provided by law. The personal representative of the deceased may be substituted in his or her place, upon motion and supporting affidavit or any relevant document filed with the Appellate Court by the representative or by any party. The motion shall be served upon all parties to the appeal. If the deceased party has no representative, then any party may advise the Court of the death and proceedings shall then be had as the Appellate Court may direct.

(b) Substitution of a Party

If substitution of a party is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subsection (a) herein.

(1) When a public officer in his official capacity is a party to an appeal, and during its pendency he ceases to hold the office, the action shall not cease and his successor will be substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the rights of the parties shall be disregarded. An order of substitution may be entered at any time, but failure to enter such an order shall not affect the substitution.

(2) When a public officer in his official capacity is a party to an appeal, he may be described as a party by his official title rather than by name; but the Appellate Court may require his name be added.

2.05.230 [Rule 21] Publication of Opinions of the Appellate Court

(a) Opinion; Memorandum Decision; Order; Publication

Dispositions of all matter before the Appellate Court shall be by opinion only when a majority of the Justices acting determine that it:

(1) Establishes, alter, modifies or clarifies a rule of law, or

(2) Calls attention to a rule of law which appears to have been generally overlooked, or

(3) Criticizes the law, or

(4) Involves a legal or factual issue of unique interest or substantial public importance, or

(b) If the disposition of a matter is accompanied by a separate concurring or dissenting expression, and the author of such expression desires that it be published. All other dispositions shall be in the form of orders or memorandum decisions.

Memoranda decisions and order shall not be used as precedent nor cited in any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Only opinions shall be used as precedent.

(d) Designation of Disposition

The disposition of the case shall contain in the caption the designation "Opinion", "Memorandum of Decision", or "Order".

2.05.240 [Rule 22] Appeals in Forcible Entry and Detainer Cases

In an appeal from a judgment in a proceeding of forcible entry and detainer, the procedure and time period for filing a notice of appeal shall be the same as provided for appeals, in these rules, except that within five (5) days from the entry of judgment, the appellant shall file with the Court an appeal bond. Proof that the bond has been filed shall be forwarded to the Clerk of the Appellate Court with the case record.

2.05.250 [Rule 23] Appeals in Children's Court Cases

An appeal from a judgment of the Saint Regis Mohawk Tribal Family Court shall follow the same procedure as provided for appeals in these rules, except that the names of the child shall not appear in the record on appeal. The cases shall be designated by the child's initial (i.e., IN RE: ABC), or other appropriate designation (i.e., IN RE: Doe), and the case number from the Saint Regis Mohawk Tribal Family Court.

2.05.260 [Rule 24] Stay of Execution

(a) Filing Requirements

The appellant may file with the Tribal Court or administrative agency a motion for a stay of execution of its judgment or order, at the time the Notice of Appeal is filed, or at any time after. If the Court or administrative agency denies the motion, it shall set forth its reasons in writing.

(b) Bond

A stay may be required upon appeal bond or otherwise as the Tribal Court or administrative agency may require.

All original documents, orders, and other papers filed in the Tribal Court or administrative agency relating to the stay of execution shall be included in the case file and forwarded to the Appellate Court on appeal.

(d) Motion for Stay Denied

If the Tribal Court or administrative agency denies the motion for stay, a petition for a stay may be filed with the Appellate Court, which may grant the stay as provided in subsection (b) above. The Order of the Tribal Court or administrative agency denying the stay shall be attached to the petition to the Appellate Court for such a stay. If the Tribal Court or administrative agency grants the stay, the order of the stay shall be added to the Notice of Appeal filed with the Clerk of the Appellate Court. The Clerk of the Tribal Court of administrative agency shall retain a copy of the order granting or denying the stay.

2.05.270 [Rule 25] Extraordinary Writs

(a) Writs of Mandamus and Prohibition

The applicant for a writ of mandamus or of prohibition shall file a petition and the appropriate fee with the Clerk of the Appellate Court. The petition shall contain a statement of the facts necessary for an understanding of the issues presented; a statement of issues presented; an argument with respect to the issues presented; a statement of relief sought; and copies of any order, or opinion, or parts of the record which is necessary for an understanding of the matters set forth in the petition.

(b) Service of Petition

The petition for a writ of mandamus or of prohibition shall be served on the respondent judge, and if not a judge, then on the party against whom the writ is sought, and upon all parties to the action in the Court or administrative agency pursuant to Section 2.05.050, Rule 3.

If the Appellate Court is of the opinion that the writs should not be granted, it shall deny the petition. Otherwise, the Appellate Court shall grant an alternative writ and order the respondent to show cause why the Writ should not be made permanent. The response to the petition shall be filed by the respondent within the time determined by the Appellate Court. The order shall be served by the Clerk on the respondent and on all parties to the action. All parties below, other than the petitioners, may be deemed respondents. If the respondent judge does not intend to appear in the proceedings, he shall advise the Court Clerk and all other parties by letter, but the petition shall not be taken as admitted. The Clerk shall advise the parties of the date of oral argument if ordered by the Appellate Court.

(d) Other Extraordinary Writs

Petitions for extraordinary writs, other than those for mandamus or prohibition, shall conform so far as practicable to the procedures prescribed in subdivision (a), (b), and (c) of this Rule.

2.05.280 [Rule 26] Cases Given Priority

Notices of Appeal involving custody of a child, adoption, elections, applications for extraordinary writs and other Notices of Appeal within the discretion of the Appellate Court shall be given priority over ordinary civil cases.

The appellant or petitioner shall inform the Clerk of the Appellate Court, in writing, of such priority at the time of filing the Notice of Appeal or petition or immediately after.

2.05.290 [Rule 27] Withdrawal of Counsel

Whenever counsel has once filed papers in an appeal, such counsel shall not be allowed to withdraw from appeal, except by order of the Appellate Court upon written motion showing good cause, notice to the client, and naming new counsel.

2.05.300 [Rule 28] Sanctions

Where the appeal is not real or taken solely for the purpose of delay, or where any party has been guilty of an unreasonable infraction of these rules, the Appellate Court may impose upon the offending attorneys, parties, or both, such penalties or damages (including contempt, withholding or imposing costs, or imposing of attorney's fees) as the circumstances of the case and the discouragement of conduct in the future may require.

2.05.310 [Rule 29] Disciplinary Power of the Court over Attorney's

The Appellate Court may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested by the offending counsel, take any appropriate disciplinary action (including suspension from practice before the Appellate Court, Tribal Court and/or complete disbarment) against any attorney or advocate, who practices before it for conduct unbecoming a member of the bar, or for failure to comply with rules or any order of the Appellate Court.

2.05.320 [Rule 30] Interpretation and Publication of Rules of Appellate Procedure

The Tribal Court may apply interpretation of like provisions in the Federal Rules of Appellate Procedure in construing these rules. The Tribal Court may authorize special as well as annotated editions of these rules of Appellate Procedure together with any requirements for citations of practice before the Tribal Courts.

2.05.330 Provisions as Cumulative

The provisions of this enactment shall be cumulative to existing law.

2.05.340 Repeal Provisions and Conforming Amendments

No provisions of law are expressly repealed by this enactment. No current or previous provisions of law are conformed by this enactment.

2.05.350 Severability

The provisions of this enactment are severable and if any part or provision shall be held void by any court of competent jurisdiction so holding shall not affect or impair any part of the remaining parts or provisions of this enactment.

Chapter 2.06 Code of Judicial Conduct

2.06.010 Purpose

This chapter contains rules of high standards of conduct binding on the judges of the Saint Regis Mohawk Tribal Court so that the integrity and independence of the judiciary is preserved. This chapter is interpreted in accordance with applicable law and procedures and with consideration of relevant facts and circumstances.

This chapter is enforced by the Judicial Oversight Commission of the Saint Regis Mohawk Tribe by appropriate disciplinary measures, if determined necessary by them, while safeguarding the right of judges to decide cases independently and promoting public confidence in the integrity and honor of the Saint Regis Mohawk Tribal Court system.

2.06.020 Definitions

The following terms used as follows:

(a) "Economic Interest" denotes ownership of more than a de minimis legal or equitable interest, or a relationship as officer, director, advisor or other active participant in the affairs of a party.

(b) "Close Relationship" denotes the children, parents, grandparents, aunts or uncles, siblings, nieces or nephews of the judge and their spouse, any other individual living in the home of the judge, and any other person which could be perceived as causing bias or prejudice against a party in a proceeding before the judge.

(c) "De Minimis" denotes an insignificant interest that could not raise reasonable questions as to a judge's impartiality.

(d) "Judge" is any judge of the Saint Regis Mohawk Tribe Court System, whether elected or appointed, full-time or per diem.

2.06.030 A Judge Shall Uphold the Integrity and Independence of the Judiciary

A judge shall participate in establishing, maintaining and enforcing high standards of conduct, and shall observe those standards for the preservation of the integrity and independence of the judiciary.

2.06.040 A Judge Shall Avoid Impropriety and the Appearance of Impropriety in All of the Judge's Activities

(a) A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(b) A judge shall not allow family, social, political or other relationships to influence judicial conduct or judgment.

(c) A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

(d) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of age, race, creed, color, sex, sexual orientation, religion, national origin, disability or marital status. This provision does not prohibit a judge from holding membership in an organization that is dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members especially the Mohawk people.

(e) A judge shall not practice law in the court on which the judge serves.

(f) A judge full-time or part- time shall not hold a position as police officer.

(g) A judge either full-time or part-time may not act as mediator or arbitrator in any legal proceedings unless both parties consent.

(h) A judge shall not directly or indirectly solicit, accept or demand from any person or pay or offer to pay or agree to offer a gift, a reward, a commission, a kickback, a discount, a loan, repayment of a debt, a favor or any other advantage or consideration liable to compromise his impartiality, judgment or fairness.

2.06.050 A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently

(a) Judicial and adjudicative duties and responsibilities shall take precedence over all the judge's other activities.

(1) A judge shall uphold the law without influence by partisan interests, public clamor or fear of criticism and shall not manifest, by words or conduct, bias or prejudice based on age, race, creed, color, sex, sexual orientation, religion, national origin, disability, marital status or socioeconomic status.

(2) A judge shall require all litigants, jurors, witnesses, lawyers, court staff and officials to refrain from any bias or prejudice, by words or conduct, as described in the previous sub clause unless it is an issue in the proceedings.

(3) A judge shall require order and decorum in proceedings and shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, court staff and officials.

(4) A judge shall promote development of judicial competence by exchange of knowledge and participation in courses and conferences.

(5) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law and shall not initiate, permit, or consider ex parte communications concerning a pending or impending proceeding, except:

(A) For scheduling or administrative purposes which does not affect any rights of the litigants.

(B) For advice of a disinterested expert on the law applicable to a proceeding with notice to the parties and providing opportunity to respond to the advice.

(D) With the consent of the parties, the judge may confer separately with the parties and their lawyers on certain matters.

(6) A judge shall dispose of all judicial matters promptly, efficiently and fairly. As an example, this requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court officials, litigants and their lawyers cooperate with the judge to that end. Further, a judge should monitor and supervise eases in ways that reduce or eliminate dilatory practices, avoiding delays and unnecessary costs to the parties.

(7) A judge shall not make any public comment or any commitments about a pending proceeding in the Saint Regis Mohawk Tribe's courts unless the judge is a litigant in a personal capacity or providing public information on their duties and procedures of the court and shall direct the court personnel to do same.

(8) A judge shall not disclose or use, for any purpose unrelated to judicial duties, confidential information acquired in a judicial capacity.

(b) Administrative Responsibilities:

(1) A judge shall diligently discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.

(2) A judge shall direct court personnel to conduct themselves in a manner that promotes public confidence in the integrity and honor of the Saint Regis Mohawk Tribal Court system.

(1) A judge who receives information indicating a substantial likelihood that another judge has committed a substantial violation of tribal law shall take appropriate action.

(2) A judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of tribal law or the lawyer's applicable Code of Professional Responsibility shall take appropriate action.

(d) Disqualification:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where the judge has a personal bias or prejudice concerning a party or their lawyer or the judge has personal knowledge of disputed evidentiary facts or made public statements or comments or has an economic interest which could give rise to a personal bias or prejudice.

(2) A judge shall keep informed about the economic interests of anyone in the household of the judge which could give rise to a personal bias or prejudice or the appearance of impropriety.

(e) If there exists facts that may give rise to a personal bias or prejudice, or the appearance of impropriety, the judge must remove himself, and this shall be part of the court record.

2.06.060 A Judge's Extra-Judicial Activities Shall Not Conflict with Judicial Obligations

(a) A judge shall conduct all extra-judicial activities including speaking, writing, lecturing and teaching to avoid: (i) casting reasonable doubt on the judge's capacity to act impartially (ii) detracting from the dignity of judicial office (iii) interference with judicial duties and (iv) incompatibility with judicial office.

(b) A judge shall not serve in an organization as an officer, director, trustee or non-legal advisor or engage in financial and business dealings if it is likely that the organization or business will be engaged in proceedings that ordinarily would come before the judge.

(c) A judge and any member of the household of the judge shall not accept a gift, bequest, favor or loan from anyone over $150 value and if the value exceeds $50 then it must be reported to the Judicial Oversight Commission who may direct that it be returned or donated to another worthy organization if it could be perceived as influencing the judge and in the interests of preserving of public confidence in the integrity and honor of the Saint Regis Mohawk Tribal Court system.

(d) A judge may receive compensation and reimbursement of actual expenses for the extra-judicial activities if a reasonable amount for the activity and the experience of the judge.

(e) A judge shall report any compensation and reimbursement of expenses in excess of $150, and the name of the payor for the annual public report of the Saint Regis Mohawk Tribal Court.

(f) Financial disclosure of a judge's income, debts, investments or other assets is required only to the extent provided in this Ordinance and as otherwise required by tribal law.

2.06.070 A Judge Shall Refrain from Inappropriate Political Activity

(a) Judges shall not directly or indirectly engage in any Saint Regis Mohawk Tribe political activity except (i) as otherwise authorized by tribal law, (ii) to vote and to identify as a member of a political party, and (iii) on behalf of measures to improve the law, the legal system or the administration of justice.

(b) Judges cannot hold an elective position on the Council of the Saint Regis Mohawk Tribe.

(c) Judges, except for their own political campaign for judicial office, cannot contribute to any other political campaign in excess of $500 including the purchase of tickets for campaign functions and cannot solicit funds or sell or promote tickets to campaign functions.

2.06.080 Amendment

This chapter may be amended by the Tribal Council.

2.06.090 Severability

If any word, clause, phrase, sentence, subsection, section, or other provision of this chapter is held invalid by a court of competent jurisdiction, the invalidity shall not affect any other provisions or applications of this law that can be given effect without the invalid provision.

Chapter 2.07 Judicial Oversight Commission Ordinance

2.07.010 Purpose

The Judicial Oversight Commission's objective shall be to enforce the obligation of judges to observe high standards of conduct while safeguarding their right to decide cases independently. The Judicial Oversight Commission will not act as an appellate court. It will not review judicial decisions or alleged errors of law, nor will it issue advisory opinions, give legal advice or represent litigants.

By offering a forum for members with conduct-related complaints, and by disciplining those judges who transgress ethical constraints, the Judicial Oversight Commission seeks to insure compliance with established standards of ethical judicial behavior, thereby promoting public confidence in the integrity and honor of the judiciary.

2.07.020 Definitions

For the purposes of this chapter the following terms have the following meanings:

"Commission" or "Tribal Commission" means the Saint Regis Mohawk Tribal Commission on Judicial Conduct.

"Judge" means a judge or justice of any court of the Saint Regis Mohawk Tribe.

"Special Prosecutor" means an attorney in good standing who is licensed and admitted to practice law in any state, who may be retained by the Saint Regis Mohawk Tribe to prosecute cases initiated by the Commission.

2.07.030 Tribal Commission on Judicial Conduct; Organization

(a) A Tribal Commission on Judicial Conduct is hereby established. The Commission shall consist of three (3) members appointed by Tribal Council. At least one (1) member of the Commission shall be an attorney in good standing, who is licensed and admitted to practice law in any state, with at least ten (10) years experience practicing law. These appointments shall be made within ninety (90) days of the Effective Date of this chapter.

(b) The members of the Commission shall elect one of their members to serve as chairperson during his or her term of office or for a period of two years, whichever is shorter.

(1) One (1) person shall be appointed for a three (3) year term;

(2) One (1) person shall be appointed for a two (2) year term; and

(3) One (1) person shall be appointed for a one (1) year term.

Appointments thereafter shall be for a term of three (3) years. Membership shall also terminate if a member attains a position which would have rendered him ineligible for appointment at the time of his appointment. A vacancy shall be filled by the Tribal Council for the remainder of the term vacated and shall be filled within ninety (90) days.

(d) A Commission Member may be removed for cause upon submission of a written complaint by an eligible voter, including any members of the Commission, to the Tribal Council who shall have the sole discretion to rule on the removal, which decision shall not be subject to appeal. For purposes of this chapter, "cause" means the Commissioner's fraud, dishonesty, willful misconduct or gross negligence in the performance of his/her duties hereunder.

(e) Each member of the Commission shall be compensated at the normal rate established by the Tribal Council for service on other similar Tribal Commissions and shall be entitled to receive actual and necessary expenses incurred in the discharge of his or her duties.

(f) For any action taken three (3) members of the Commission shall constitute a quorum of the Commission and the concurrence of two (2) members of the Commission shall be necessary.

2.07.040 Qualifications

In order to be eligible to serve as a member of the Commission, one must:

(a) Be at least 35 years of age;

(b) Not be a member of the Tribal Court Staff;

(d) Possess a Bachelor's degree in a related field.

(e) Demonstrate knowledge of Tribal law and Indian issues.

(f) In addition to the requirements listed above, at least one (1) member of the Commission shall be an attorney in good standing, who is licensed and admitted to practice law in any state, with at least ten (10) years experience practicing law.

2.07.050 Functions; Powers and Duties

The Commission shall have the following functions, powers and duties:

(a) To conduct hearings and investigations, administer oaths or affirmations, subpoena witnesses, compel their attendance, examine them under oath or affirmation and require the production of any books, records, documents or other evidence that it may deem relevant or material to an investigation; and the Commission may designate any of its members or any member of its staff to exercise any such powers, provided, however, only a member of the Commission shall exercise the power to subpoena witnesses or require the production of books, records, documents or other evidence.

(b) To request and receive from any court, department, division, board, bureau, Commission, or other agency of the Tribe such assistance, information and data as will enable it properly to carry out its functions, powers and duties.

(c) To report at least annually, and at such other times as the Commission shall deem necessary, to the Tribal Council and the Tribal membership at a regular Tribal Monthly Meeting, with respect to proceedings which have been finally determined by the Commission. The contents of the annual report and any other report shall conform to the provisions of this chapter relating to confidentiality.

(d) To adopt, promulgate, amend and rescind rules and procedures, not otherwise inconsistent with law, necessary to carry out the provisions and purposes of this chapter.

(e) To do all other things necessary and convenient to carry out its functions, powers and duties expressly set forth in this article.

2.07.060 Complaint; Investigation; Hearing and Disposition

(a) The Commission shall receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform, or performance of official duties of any judge, and may determine that a judge be admonished, censured or removed from office for cause, including, but not limited to, misconduct in office, persistent failure to perform his duties, habitual intemperance and conduct, on or off the bench, prejudicial to the administration of justice, or that a judge be retired for mental or physical disability preventing the proper performance of his judicial duties. A complaint shall be in writing and signed by the complainant and notarized. Upon receipt of a complaint the Commission shall (a) conduct an investigation of the complaint; or (b) may dismiss the complaint if it determines that the complaint on its face lacks merit. If the complaint is dismissed, the Commission shall so notify the complainant. If the Commission shall have notified the judge of the complaint, the Commission shall also notify the judge of such dismissal.

(b) The Commission may, on its own motion, initiate an investigation of a judge with respect to his qualifications, conduct, fitness to perform or the performance of his official duties. Prior to initiating any such investigation, the Commission shall file as part of its record a written complaint, signed by the Chairman of the Commission, which complaint shall serve as the basis for such investigation. In cases where a complaint is initiated by the Commission, a special prosecutor may be retained to prosecute the particular case for its duration.

(c) In the course of an investigation, the Commission may require the appearance of the judge involved before it, in which event the judge shall be notified in writing of his required appearance, either personally, at least three days prior to such appearance, or by certified mail, return receipt requested, at least five days prior to such appearance. In either case a copy of the complaint shall be served upon the judge at the time of such notification. The judge shall have the right to be represented by counsel during any and all stages of the investigation in which his appearance is required and to present evidentiary data and material relevant to the complaint. A transcript shall be made and kept with respect to all proceedings at which testimony or statements under oath of any party or witness shall be taken, and the transcript of the judge's testimony shall be made available to the judge without cost. Such transcript shall be confidential except as otherwise permitted by this chapter.

(d) If in the course of an investigation, the Commission determines that a hearing is warranted it shall direct that a formal written complaint signed and verified by the Chairman be drawn and served upon the judge involved, either personally or by certified mail, return receipt requested. The judge shall file a written answer to the complaint with the Commission within twenty (20) days of such service. If, upon receipt of the answer, or upon expiration of the time to answer, the Commission shall direct that a hearing be held with respect to the complaint, the judge involved shall be notified in writing of the date of the hearing either personally, at least twenty (20) days prior thereto, or by certified mail, return receipt requested, at least twenty-two (22) days prior thereto. Upon the written request of the judge, the Commission shall, at least five (5) days prior to the hearing or any adjourned date thereof, make available to the judge without cost copies of all documents which the Commission intends to present at such hearing and any written statements made by witnesses who will be called to give testimony by the Commission.

The Commission shall, in any case, make available to the judge at least five (5) days prior to the hearing or any adjourned date thereof any exculpatory evidentiary data and material relevant to the complaint. The failure of the Commission to timely furnish any documents, statements and/or exculpatory evidentiary data and material provided for herein shall not affect the validity of any proceedings before the Commission provided that such failure is not substantially prejudicial to the judge. The complainant may be notified of the hearing and unless he shall be subpoenaed as a witness by the judge, his presence thereat shall be within the discretion of the Commission. The hearing shall not be public unless the judge involved shall so demand in writing. At the hearing the Commission may take the testimony of witnesses and receive evidentiary data and material relevant to the complaint. The judge shall have the right to be represented by counsel during any and all stages of the hearing and shall have the right to call and cross- examine witnesses and present evidentiary data and material relevant to the complaint. A transcript of the proceedings and of the testimony of witnesses at the hearing shall be taken and kept with the records of the Commission.

(e) Subject to the approval of the Commission, the judge may agree on a statement of facts and may stipulate in writing that the hearing shall be waived. In such a case, the Commission shall make its determination upon the pleadings and the agreed statement of facts.

(f) If, after a formal written complaint has been served pursuant to this chapter, or during the course of or after a hearing, the Commission determines that no further action is necessary, the complaint shall be dismissed and the complainant and the judge shall be so notified in writing.

(g) After a hearing, the Commission may determine that a judge be admonished, censured, removed or retired. The Commission shall transmit its written determination, together with its findings of fact and conclusions of law and the record of the proceedings upon which its determination is based, to the Tribal Council who shall cause a copy thereof to be served either personally or by certified mail, return receipt requested, on the judge involved. Upon completion of service, the determination of the Commission, its findings and conclusions and the record of its proceedings shall be made public and shall be made available for public inspection at the principal office of the Commission (or at the Tribal Clerk's office.) If the Commission has determined that a judge be admonished, censured, removed or retired, the Commission shall thereupon admonish or censure him in accordance with its findings.

(h) Suspension pending investigation

(1) The Tribal Council may suspend a judge or justice from exercising the powers of his office while there is pending a determination by the Commission for his removal or retirement, or while he is charged in any jurisdiction with a felony by an indictment. The suspension shall continue upon conviction and, if the conviction becomes final, he shall be removed from office. The suspension shall be terminated upon reversal of the conviction and dismissal of the accusatory instrument.

(2) A judge or justice who is suspended from office by the court shall receive his judicial salary during such period of suspension, unless the Tribal Council directs otherwise. If the Tribal Council has so directed and such suspension is thereafter terminated, the court may direct that he shall be paid his salary for such period of suspension.

(3) Nothing in this subdivision shall prevent the Commission from determining that a judge or justice be admonished, censured, removed, or retired pursuant to this chapter.

(i) If during the course of or after an investigation or hearing, the Commission determines that the complaint or any allegation thereof warrants action, other than in accordance with the provisions of this chapter within the powers of: (a) a person having administrative jurisdiction over the judge involved in the complaint or; (b) the Tribal Council; or (c) an applicable district attorney's office or other prosecuting agency, the Commission shall refer such complaint or the appropriate allegations thereof and any evidence or material related thereto to such person, agency or court for such action as may be deemed proper or necessary.

(j) The Commission shall notify the complainant of its disposition of the complaint.

2.07.070 Confidentiality of Records

(a) Except as hereinafter provided, all complaints, correspondence, Commission proceedings and transcripts thereof, other papers and data and records of the Commission shall be confidential and shall not be made available to any person except pursuant to Section 2.07.060. of this chapter. The Commission and its designated staff personnel shall have access to confidential material in the performance of their powers and duties. If the judge who is the subject of a complaint so requests in writing, copies of the complaint, the transcripts of hearings by the Commission thereon, if any, and the dispositive action of the Commission with respect to the complaint, such copies with any reference to the identity of any person who did not participate at any such hearing suitably deleted therefrom, except the subject judge or complainant, shall be made available for inspection and copying to the public, or to any person, agency or body designated by such judge.

(b) Notwithstanding any provision in this section, the Commission, with the consent of the person who brought the complaint, shall provide the record of any proceeding pursuant to a formal written complaint against an applicant for judicial appointment in which the applicant's misconduct was established, any pending complaint against an applicant, and the record to date of any pending proceeding pursuant to a formal written complaint against an applicant for judicial appointment to any person designated to receive such information by the applicant. The Commission shall respond within fifteen (15) days of a request for the information provided for in this subdivision.

2.07.080 Breach of Confidentiality of Commission Information

Any staff member, employee or agent of the Commission who violates any of the provisions of Section 2.07.070 of this chapter shall be subject to a reprimand, a fine, suspension or removal by the Commission, in addition to any sanctions proscribed by the Tribe's Personnel Policy.

2.07.090 Resignation Not to Divest Commission of Jurisdiction

The jurisdiction of the Commission pursuant to this chapter shall continue notwithstanding that a judge resigns from office after a determination of the Commission that the judge be removed from office has been made. Any determination by the Commission that a judge who has resigned should be removed from office shall render such judge ineligible to hold any other judicial office. The Tribal Council shall give written notice to the Commission of the resignation of any judge who is the subject of an investigation within five days after its receipt thereof.

2.07.100 Severability

The provisions of this chapter are severable and if any part or provision shall be held void by any court of competent jurisdiction, the decision of the court so holding shall not affect or impair any of the remaining parts or provisions of this chapter.

2.07.110 Amendment

This chapter may be amended upon the approval and adoption of such amendments by the majority of Tribal Council.

2.07.120 Effective Date

This chapter shall become effective ninety (90) days from its enactment by Tribal Council.