Chapter 4-3 PROCESS, SUMMONS, SUBPOENAS

CHAPTER 4-3
PROCESS, SUMMONS, SUBPOENAS

4-3-1 Issuance of Summons.

Upon filing the complaint the Court Clerk shall issue a summons and deliver the summons and complaint for service of process to a person appointed by the Court to serve it.

4-3-2 Form of Summons.

The summons must follow the substantial form in Subsection 4-2-4(A) and shall:

(A) be directed to an individual,

(B) include addresses of all parties,

(D) give notification for failure to appear or defend,

(E) be signed by the Court Clerk, and

(F) be under the seal of the Court.

4-3-3 Manner of Process Service.

Every order required by its terms to be served, shall be served upon each of the parties, except as otherwise provided in this Code. No service need be made on parties in default for failure to appear. Service of process must be made by delivering a copy of the process personally or by leaving copies at his dwelling or to an agent authorized by appointment or by law to receive service of process.

4-3-4 Who May Serve Process.

(A) If served in person service shall be made by a person licensed to make service of process or a person appointed by the Court for that purpose who is not a party to the action. The Court shall freely make special appointments to serve all process under this subsection.

(B) If served by mail service shall be made by certified mail, return receipt requested and delivery restricted to the addressee. Service by mail shall not be the basis for the entry of default unless a return receipt showing defendant’s acceptance is in the record.

(C) Service by publication may be made if, and only if, it can be shown that with due diligence service cannot be made upon the individual by any other method. When service is made according this subsection, it shall be made in a publication authorized by law to publish legal notices. The Court reserves the right to vacate an entry of default when service is made by publication.

(D) When process has been served, proof of service shall be filed with the Court Clerk promptly and in any event within the time during which the person served must respond to the process. Failure to make proof of service does not affect the validity of the service.

4-3-5 Proof of Service.

The person serving the process shall make proof of service to the Court. These provisions are not jurisdictional, but if the failure to comply with them prejudices the party served, the Court may extend the time to answer. Proof of service may be shown by:

(A) An acknowledgment on the back of the summons.

(B) The voluntary appearance of a defendant.

(D) A copy of each publication of notice.

(E) An affidavit.

4-3-6 Territorial Limits of Effective Service.

All process, other than subpoenas, may be served anywhere within the reservation boundaries, or any Indian Country, as defined by 18 U.S.C. § 1151, which is subject to the jurisdiction of the Tribe and, when authorized beyond these territorial limits.

4-3-7 Time Limit for Service.

If service of process is not made upon a defendant within one hundred twenty (120) days after the filing of the complaint and the plaintiff cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the Courts own initiative with notice to the plaintiff or upon motion.

4-3-8 Vacating Default Judgments Where Service is By Publication.

(A) A party against whom a default judgment has been rendered, when service was by publication, may apply to have the judgment opened and be let in to defend, if such application is within three (3) years after the date of the judgment.

(B) Before the judgment is opened, the applicant shall notify the adverse party of his intention to make such a challenge, and shall

(1) File a full answer to the petition, and

(2) Satisfy the Court by affidavit or other evidence that during the pendency of the action he had no actual notice in time to appear in Court and make his defense.

(C) The adverse party, on the hearing of any application to open a judgment as provided by this Section, shall be allowed to present evidence to show that during the pendency of the action the applicant had notice in time to appear in Court and make his defense.

4-3-9 Subpoena.

(A) Every subpoena must follow the substantial form in Section 4-3-2 and shall:

(1) command each person to whom it is directed to attend and give testimony at a time and place specified, or

(2) command the person to whom it is directed to produce the books, papers, documents, or tangible things designated.

(B) The person to whom the subpoena is directed may object within ten (10) days after the service or on or before the time specified in the subpoena for compliance, if such time is less than ten (10) days after service. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the Court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.

(C) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him within the Tribal jurisdiction may be deemed contempt of the District Court.

4-3-10 Computation and Enlargement of Time.

(A) Computation. In computing any time period, the day of the act shall not be included, but the last day of the time period shall be included, provided, that any period which would otherwise end on a Saturday, a Sunday, or a legal holiday, will be deemed to end on the next day that is not a Saturday, a Sunday or a legal holiday.

(B) Enlargement. The Court for good cause shown may at any time, in its discretion, order the period enlarged if request is made before the expiration of the period originally prescribed or as extended by a previous order.

Whenever a party has been served by mail, three (3) days shall be added to the prescribed period.

4-3-11 Extraterritorial Service Authorized.

Service of process by which an action is instigated may be made outside the territorial limits described in Section 4-3-8 in the following cases in addition to any circumstances specifically or otherwise provided for:

(A) In all actions arising under the tribal juvenile statutes or the Indian Child Welfare Act;

(B) In all divorce actions when one of the parties is a resident of the tribal jurisdiction or a member of the Tribe;

(C) In all actions arising in contract where the contract was entered into, or some material portion thereof was to be performed, within the tribal jurisdiction; or

(D) In all actions arising out of the negligent operation of an automobile within the tribal jurisdiction by a non-resident when an injury to person or property resulted within the tribal jurisdiction from the negligent operation of the motor vehicle.