1.21.160 Preservation of Issues for Appeal

(a) Absent a compelling reason, issues not raised before the Tribal Court will not be heard before the Court of Appeals.

(b) An issue raised but not argued orally or by brief is deemed abandoned.

(c) A moot issue will not be reviewed unless it is capable of repetition yet due to its nature is likely to evade appellate review.

(d) No facts not in the trial record may be presented in any manner to the Court of Appeals.

(2-24-89-24; 4-22-88-148.)

Prior Codifications

§1.21.160 was formerly codified as 121.16

Commentary

Subsections (a) and (d) preserve the basic function of the appeals court as a court of review, not a court of initial determination. The trial court should have the first opportunity to consider all issues in litigation and to see as only it can do that the record is fully developed.

Subsection (b) protects the court and parties from expending energy on issues that an appellant has no intention of pursuing.

Subsection (c) states the principle that a court will not decide issues over which there is no current controversy. The controversy that existed during trial may be dispelled by the time of appeal. The exception to this rule is the type of case that may occur again but is likely never to survive long enough to receive appellate review. For instance, an individual may wish to challenge a court's suspension of his hunting and fishing rights for a period of three months, but by the completion of the appellate briefing schedule the suspension would be ended and the case moot. Since the issue could recur, but would always become moot before it was ready for decision, the mootness doctrine would be set aside.